4–9–07 Monday Vol. 72 No. 67 Apr. 9, 2007

Pages 17353–17788

VerDate Aug 31 2005 23:06 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\09APWS.LOC 09APWS hsrobinson on PROD1PC76 with PROPOSALS6 II Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.archives.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication FEDERAL REGISTER WORKSHOP established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT The Federal Register is published in paper and on 24x microfiche. FOR: Any person who uses the Federal Register and Code of It is also available online at no charge as one of the databases Federal Regulations. on GPO Access, a service of the U.S. Government Printing Office. WHO: Sponsored by the Office of the Federal Register. The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority WHAT: Free public briefings (approximately 3 hours) to present: of the Administrative Committee of the Federal Register as the 1. The regulatory process, with a focus on the Federal official legal equivalent of the paper and microfiche editions (44 Register system and the public’s role in the development U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and of regulations. graphics from Volume 59, Number 1 (January 2, 1994) forward. 2. The relationship between the Federal Register and For more information about GPO Access, contact the GPO Access Code of Federal Regulations. User Support Team, call toll free 1-888-293-6498; DC area 202- 3. The important elements of typical Federal Register doc- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. uments. The Support Team is available between 7:00 a.m. and 9:00 p.m. Eastern Time, Monday–Friday, except official holidays. 4. An introduction to the finding aids of the FR/CFR sys- The annual subscription price for the Federal Register paper tem. edition is $749 plus postage, or $808, plus postage, for a combined WHY: To provide the public with access to information nec- Federal Register, Federal Register Index and List of CFR Sections essary to research Federal agency regulations which di- Affected (LSA) subscription; the microfiche edition of the Federal rectly affect them. There will be no discussion of specific Register including the Federal Register Index and LSA is $165, agency regulations. plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to llllllllllllllllll orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, WHEN: Tuesday, April 10, 2007 is based on the number of pages: $11 for an issue containing 9:00 a.m.–Noon less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues WHERE: Office of the Federal Register of the microfiche edition may be purchased for $3 per copy, Conference Room, Suite 700 including postage. Remit check or money order, made payable 800 North Capitol Street, NW. to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Washington, DC 20002 Discover. Mail to: New Orders, Superintendent of Documents, P.O. RESERVATIONS: (202) 741–6008 Box 371954, Pittsburgh, PA 15250-7954; or call toll free 1-866- 512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 72 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington DC 20402, along with the entire mailing label from the last issue received.

.

VerDate Aug 31 2005 23:06 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\09APWS.LOC 09APWS hsrobinson on PROD1PC76 with PROPOSALS6 III

Contents Federal Register Vol. 72, No. 67

Monday, April 9, 2007

Agency for International Development Coast Guard NOTICES RULES Agency information collection activities; proposals, Navigation and navigable waters: submissions, and approvals, 17475 Technical, organizational, and conforming amendments; correction, 17409 Agricultural Marketing Service PROPOSED RULES RULES Ports and waterways safety; regulated navigation areas, Onions grown in South Texas, 17360–17362 safety zones, security zones, etc.: Raisins produced from grapes grown in California, 17362– Patapsco River, Northwest and Inner Harbors, Baltimore, 17367 MD, 17458–17460 NOTICES Regattas and marine parades: Committees; establishment, renewal, termination, etc.: Plymouth Drag Boat Race Series, 17456–17458 National Organic Standards Board, 17475–17476 NOTICES Committees; establishment, renewal, termination, etc.: Agriculture Department South Louisiana Area Maritime Security Committee, See Agricultural Marketing Service 17573–17574 See Animal and Plant Health Inspection Service Meetings: See Farm Service Agency Navigation Safety Advisory Council, 17574 Reports and guidance documents; availability, etc.: Animal and Plant Health Inspection Service National Pollution Funds Center; marine casualty NOTICES investigation reports use in claims process, 17574– Agency information collection activities; proposals, 17575 submissions, and approvals, 17476 Antitrust Division Commerce Department NOTICES See Census Bureau Competitive impact statements and proposed consent See International Trade Administration judgments: See National Oceanic and Atmospheric Administration Mittal Steel Co., 17634–17686 National cooperative research notifications: Defense Department ASTM International-Standards, 17582 See Army Department Interchangeable Virtual Instruments Foundation, Inc., See Engineers Corps NOTICES 17582 Meetings: International Serum Industry Association, 17583 U.S. Joint Forces Command Transformation Advisory LiMo Foundation, 17583 PXI Systems Alliance, Inc., 17583 Group, 17521–17522 Telemanagement Forum, 17583–17585 Meetings; Sunshine Act, 17522 Army Department Disability Employment Policy Office See Engineers Corps NOTICES NOTICES New Freedom Initiative Award; nominations solicitation, Meetings: 17585 U.S. Military Academy, Board of Visitors; correction, 17522 Drug Enforcement Administration Patent licenses; non-exclusive, exclusive, or partially RULES exclusive: List I and List II chemicals; importation and exportation: Functional Genetics, 17523 Combat Methamphetamine Epidemic Act of 2005; implementation, 17401–17409 Census Bureau NOTICES Education Department Meetings: RULES Census Advisory Committees, 17477 Elementary and secondary education and special education and rehabilitative services: Centers for Disease Control and Prevention Children with disabilities; assistance to States, 17748– NOTICES 17781 Agency information collection activities; proposals, NOTICES submissions, and approvals, 17553–17554 Agency information collection activities; proposals, Meetings: submissions, and approvals, 17526–17528 Disease, Disability, and Injury Prevention and Control Special Emphasis Panels, 17554–17556 Employee Benefits Security Administration National Center for Environmental Health/Agency for NOTICES Toxic Substances and Disease Registry— Agency information collection activities; proposals, Scientific Counselors Board, 17556 submissions, and approvals, 17585–17589

VerDate Aug<31>2005 23:09 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\09APCN.SGM 09APCN hsrobinson on PROD1PC76 with PROPOSALS5 IV Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Contents

Energy Department Federal Emergency Management Agency See Energy Efficiency and Renewable Energy Office RULES See Federal Energy Regulatory Commission Flood elevation determinations: New York and North Carolina, 17413–17426 Energy Efficiency and Renewable Energy Office Various States, 17426–17433 PROPOSED RULES NOTICES Consumer products; energy conservation program: Flood elevation determinations: Mitsubishi Electric; waiver from commercial water source Kentucky and Texas, 17463–17465 heat pump test procedures, 17533–17540 NOTICES Mitsubishi Electric; waiver from residential and Agency information collection activities; proposals, commercial package air conditioner and heat pump submissions, and approvals, 17575 test procedures, 17528–17533 Disaster and emergency areas: Indiana, 17575–17576 Engineers Corps NOTICES Federal Energy Regulatory Commission Environmental statements; notice of intent: RULES Apex et al., NC; Western Wake Regional Wastewater Electric utilities (Federal Power Act): Management Facilities, 17525–17526 Public utilities including regional transmission Los Angeles County, CA; Sun Valley Environmental organizations; accounting and financial reporting Restoration Plan, 17523 requirements, 17393–17394 Mendocino County, CA; Coyote Dam Study, 17524 NOTICES Agency information collection activities; proposals, Environmental Protection Agency submissions, and approvals, 17540–17541 Complaints filed: PROPOSED RULES Air quality implementation plans; approval and Louisianan Public Service Commission, 17547–17548 promulgation; various States: Electric rate and corporate regulation combined filings, Minnesota, 17461–17463 17548–17549 NOTICES Environmental statements; notice of intent: Air programs: Petal Gas Storage, L.L.C., 17549–17550 State implementation plans; adequacy status for Applications, hearings, determinations, etc.: transportation conformity purposes— Colorado Interstate Gas Co., 17541–17542 Georgia, 17550–17551 Dominion Cove Point LNG, LP, 17542 Superfund; response and remedial actions, proposed East Tennessee Natural Gas Co., 17542–17543 settlements, etc.: Enbridge Offshore Pipelines (UTOS) LLC, 17543 Anaconda/Milgo Site, FL, 17551 Equitrans, L.P., 17543 Hardy Storage Co., LLC, 17543–17544 Executive Office of the President National Fuel Gas Supply Corp., 17544 North American Electric Reliability Corp., 17544–17545 See Presidential Documents Northern Natural Gas Co., 17545 Panhandle Eastern Pipe Line Co., LP, 17545 Farm Service Agency Tennessee Gas Pipeline Co., 17545–17546 RULES Transcontinental Gas Pipe Line Corp., 17546–17547 Special programs: Vector Pipeline L.P., 17547 Interest Assistance Program, 17353–17359 Wyoming Interstate Co., Ltd, 17547

Federal Aviation Administration Federal Highway Administration RULES PROPOSED RULES Airworthiness directives: Engineering and traffic operations: Airbus, 17376–17379 Construction quality assurance procedures— General Electric Co., 17379–17381 PROPOSED RULES Roadside safety hardware acceptance; crash test Airworthiness directives: laboratory accreditation requirements, 17447– Dassault, 17443–17445 17449 Airworthiness standards: NOTICES Special conditions— Environmental statements; notice of intent: Boeing Model 787-8 airplane, 17441–17443 Clackamas County, OR, 17594–17595 Class E airspace, 17445–17447 Reports and guidance documents; availability, etc.: NOTICES Motor vehicle registration and licensed driver Advisory circulars; availability, etc.: information, 17595–17596 Aircraft Certification Service advisory circulars, policy documents, and technical standard orders, 17593– Federal Railroad Administration 17594 RULES Practice and procedure: Federal Election Commission Emergency Relief Dockets establishment and emergency NOTICES safety regulations waiver petitions handling Meetings; Sunshine Act, 17551 procedures, 17433–17439

VerDate Aug<31>2005 23:09 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\09APCN.SGM 09APCN hsrobinson on PROD1PC76 with PROPOSALS5 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Contents V

Federal Reserve System See U.S. Citizenship and Immigration Services NOTICES RULES Banks and bank holding companies: Chemical facility anti-terrorism standards, 17688–17745 Formations, acquisitions, and mergers, 17552 NOTICES Privacy Act; systems of records, 17569–17573 Federal Trade Commission NOTICES Interior Department Prohibited trade practices: See Fish and Wildlife Service Darden Restaurants, Inc., et al., 17552–17553 See Land Management Bureau See National Park Service Fish and Wildlife Service See Surface Mining Reclamation and Enforcement Office NOTICES Endangered and threatened species permit applications, International Trade Administration determinations, etc., 17576–17578 NOTICES Antidumping: Food and Drug Administration Tissue paper from— RULES China, 17477–17484 Food for human consumption: Countervailing duties: Irradiation in production, processing, and handling of Coated free sheet paper from— food— China, 17484–17498 Ionizing radiation in treatment of food; x-ray maximum Indonesia, 17498–17507 permitted energy level, 17394–17397 Korea, 17507–17521 Medical devices: Meetings: Technical amendments, 17397–17401 Exporters’ Textile Advisory Committee, 17521 NOTICES Human drugs: International Trade Commission New drug applications— NOTICES King Pharmaceuticals, Inc., et al.; approval withdrawn, Import investigations: 17556–17558 Fabric and yarns in African Growth and Opportunity Act Meetings: countries; commercial availability, 17578–17580 Blood Products Advisory Committee, 17558 Glycine from— Medical Devices Advisory Committee, 17558–17559 Various countries, 17580–17581 Medication guides use to distribute drug risk information Sodium hexametaphosphate from— to patients; hearing, 17559–17561 China, 17581 Reports and guidance documents; availability, etc.: Dosage and administration section of labeling for human Justice Department prescription drug and biological products; content See Antitrust Division and format, 17561–17562 See Drug Enforcement Administration Human subject protection, improvement; adverse event NOTICES reporting; clinical investigators, sponsors, and Pollution control; consent judgments: investigational review boards guidance, 17562–17563 Montgomery, William, et al., 17581–17582 Orally disintegrating tablets, 17563–17564 Labor Department General Services Administration See Disability Employment Policy Office RULES See Employee Benefits Security Administration Federal travel: See Mine Safety and Health Administration Relocation income tax allowance tax tables, 17410–17413

Health and Human Services Department Land Management Bureau See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Oil and gas leases: See Health Resources and Services Administration Wyoming, 17578 See National Institutes of Health See Substance Abuse and Mental Health Services Maritime Administration Administration NOTICES Coastwise trade laws; administrative waivers: Health Resources and Services Administration GENESIS, 17597–17598 NOTICES JO, 17597 Meetings: PROSIT, 17598 Graduate Medical Education Council, 17564 Reports and guidance documents; availability, etc.: Mine Safety and Health Administration Reimbursement of Travel and Subsistence Expenses NOTICES toward Living Organ Donations Program; eligibility Agency information collection activities; proposals, criteria, 17564–17566 submissions, and approvals, 17589–17590

Homeland Security Department National Council on Disability See Coast Guard NOTICES See Federal Emergency Management Agency Meetings; Sunshine Act, 17590–17591

VerDate Aug<31>2005 23:09 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\09APCN.SGM 09APCN hsrobinson on PROD1PC76 with PROPOSALS5 VI Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Contents

National Highway Traffic Safety Administration Meetings: PROPOSED RULES Regulatory Fairness Boards— Insurer reporting requirements: Region III; hearing, 17593 Insurers required to file reports; list, 17465–17469 Applications, hearings, determinations, etc.: NOTICES Sorrento Growth Partners I, L.P., 17591 Agency information collection activities; proposals, submissions, and approvals, 17598–17605 State Department Motor vehicle defect proceedings; petitions, etc.: NOTICES Moening, Eric; petition denied, 17605–17606 Meetings: Motor vehicle safety standards; exemption petitions, etc.: Private International Law Advisory Committee, 17593 Grote Industries, LLC, 17608 Koenigsegg Automotive AB, 17608–17614 Substance Abuse and Mental Health Services Motor vehicle theft prevention standards; exemption Administration petitions, etc.: Fuji Heavy Industries U.S.A., Inc., 17606–17607 NOTICES General Motors Corp., 17614–17617 Agency information collection activities; proposals, Reports and guidance documents; availability, etc.: submissions, and approvals, 17568–17569 Motor vehicle theft (2001); annual insurer report, 17617– 17618 Surface Mining Reclamation and Enforcement Office PROPOSED RULES National Institutes of Health Permanent program and abandoned mine land reclamation NOTICES plan submissions: Committees; establishment, renewal, termination, etc.: Virginia, 17449–17456 Council of Councils, 17566 Meetings: Thrift Supervision Office National Institute of Nursing Research, 17567 NOTICES National Institute on Alcohol Abuse and Alcoholism, Reports and guidance documents; availability, etc.: 17568 Savings and loan holding company rating system, 17618– National Institute on Deafness and Other Communication 17625 Disorders, 17566–17567 Scientific Review Center, 17568 Transportation Department See Federal Aviation Administration National Oceanic and Atmospheric Administration See Federal Highway Administration PROPOSED RULES See Federal Railroad Administration Fishery conservation and management: See Maritime Administration West Coast States and Western Pacific fisheries— See National Highway Traffic Safety Administration Pacific Coast groundfish, 17469–17474 RULES Procedural regulations: National Park Service General aviation operators and service providers in NOTICES Washington, DC, area; reimbursement procedures, Environmental statements; availability, etc.: 17381–17393 Dayton Aviation Heritage National Historical Park, OH, 17578 Treasury Department See Thrift Supervision Office Nuclear Regulatory Commission PROPOSED RULES U.S. Citizenship and Immigration Services Rulemaking petitions: NOTICES Union of Concerned Scientists, 17440–17441 Agency information collection activities; proposals, submissions, and approvals, 17576 Presidential Documents PROCLAMATIONS Veterans Affairs Department Special observances: NOTICES National Former Prisoner of War Recognition Day (Proc. Agency information collection activities; proposals, 8121), 17787–17788 submissions, and approvals, 17625–17630 Pan American Day and Pan American Week (Proc. 8120), Privacy Act; systems of records, 17631 17783–17786

Small Business Administration RULES Separate Parts In This Issue Privacy Act; implementation, 17367–17376 NOTICES Part II Agency information collection activities; proposals, Justice Department, Antitrust Division, 17634–17686 submissions, and approvals, 17591 Disaster loan areas: Part III Alabama, 17591–17592 Homeland Security Department, 17688–17745 Georgia, 17592 Minnesota, 17592 Part IV New Mexico, 17592–17593 Education Department, 17748–17781

VerDate Aug<31>2005 23:09 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4748 Sfmt 4748 E:\FR\FM\09APCN.SGM 09APCN hsrobinson on PROD1PC76 with PROPOSALS5 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Contents VII

Part V Executive Office of the President, Presidential Documents, To subscribe to the Federal Register Table of Contents 17783–17788 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 Reader Aids settings); then follow the instructions. 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.

VerDate Aug<31>2005 23:09 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4748 Sfmt 4748 E:\FR\FM\09APCN.SGM 09APCN hsrobinson on PROD1PC76 with PROPOSALS5 VIII Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Contents

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR 50 CFR Proclamations: Proposed Rules: 8120...... 17785 660...... 17469 8121...... 17787 6 CFR 27...... 17688 7 CFR 762...... 17353 959...... 17360 989...... 17362 10 CFR Proposed Rules: 73...... 17440 13 CFR 102...... 17367 14 CFR 39 (2 documents) ...... 17376, 17379 331...... 17381 Proposed Rules: 25...... 17441 39...... 17443 71...... 17445 18 CFR 101...... 17393 21 CFR 179...... 17394 803...... 17397 814...... 17397 820...... 17397 821...... 17397 822...... 17397 874...... 17397 886...... 17397 1002...... 17397 1005...... 17397 1020...... 17397 1300...... 17401 1313...... 17401 23 CFR Proposed Rules: 637...... 17447 30 CFR Proposed Rules: 946 (2 documents) ...... 17449, 17452 33 CFR 160...... 17409 Proposed Rules: 100...... 17456 165...... 17458 34 CFR 200...... 17748 300...... 17748 40 CFR Proposed Rules: 52...... 17461 41 CFR 302-17...... 17410 44 CFR 67 (2 documents) ...... 17413, 17426 Proposed Rules: 67...... 17463 49 CFR 211...... 17433 Proposed Rules: 544...... 17465

VerDate Aug 31 2005 23:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\09APLS.LOC 09APLS hsrobinson on PROD1PC76 with PROPOSALS4 17353

Rules and Regulations Federal Register Vol. 72, No. 67

Monday, April 9, 2007

This section of the FEDERAL REGISTER comment period deadline of August 22, Seven comments supported this change. contains regulatory documents having general 2005, was extended to September 6, One respondent indicated that FO’s applicability and legal effect, most of which 2005, due to a change in the e-mail would be too costly for the program. are keyed to and codified in the Code of address of the information contact. However, 35 comments received were Federal Regulations, which is published under Comments were received from 144 50 titles pursuant to 44 U.S.C. 1510. opposed to the change citing that it respondents from 18 states and the would be a mistake to eliminate The Code of Federal Regulations is sold by District of Columbia. Many of the regulations governing the use of IA for the Superintendent of Documents. Prices of respondents provided multiple FO’s and/or existing OL’s. In the event new books are listed in the first FEDERAL comments. that funds were appropriated to fund IA REGISTER issue of each week. Six respondents supported the for these other types of loans, proposed rule in its entirety, stating that implementation would be delayed while the entire proposed rule was well FSA implemented regulations again to DEPARTMENT OF AGRICULTURE written and easy to understand, or govern these aspects of the program. commenting that the proposed rule The respondents stated that they Farm Service Agency looks good and will save a lot of time. recognize the desire to streamline the Three respondents did not approve of Code of Federal Regulations, but believe 7 CFR Part 762 the IA program at all; however, they did it does no harm to leave regulations in RIN 0560–AG46 not give specific reasons as to why they place for currently unfunded opposed the IA program. applications of IA. The Agency carefully Revision of the Interest Assistance Two respondents asked that the considered the comments and Program Agency keep the program the same determined that because funding has because they really needed to keep not been provided since fiscal year 1992 AGENCY: Farm Service Agency, USDA. receiving the money. Another indicated and such funding would be ACTION: that the assistance received makes the Final rule. prohibitively expensive, the proposed difference between making a profit or change is warranted. Therefore, the final SUMMARY: The Farm Service Agency not. While the Agency understands the rule implements the proposal to limit IA (FSA) is amending its regulations importance of the assistance, there were to new guaranteed OL’s only. governing how FSA guaranteed farm no specific recommendations provided loan borrowers may obtain a subsidized to support their general comments. One respondent stated the Agency interest rate on their guaranteed farm One respondent generally asked how should eliminate the requirement to loan. This program is known as the the changes would affect those serving consider IA after loan default. The interest assistance (IA) program. in Iraq. No specific changes were made Agency agrees with this comment, Changes include deletion of annual to address this issue. Borrowers called however, this requirement is required review requirements, limitations on to active duty will continue to be by 7 U.S.C. 1999 and can only be maximum subsidy payments and period handled in accordance with existing changed by Congress. of assistance, and streamlining of claim procedures. One respondent recommended that submission. The changes are intended One respondent indicated under the the Agency prohibit the use of a loan to reduce paperwork burden on program discussion of the proposed rule, the with IA to refinance debt owed by the participants and agency employees, Agency gave a negative connotation of applicant to another lender. The Agency make IA available to more farmers, borrowers receiving IA by stating those agrees that this change would prevent reduce the costs of the program, and recipients were ‘‘underdeveloped’’. The lenders from using IA to unfairly market enhance the fiscal integrity of the Agency in no way intended to portray their loans to their competitor’s program. farmers in a negative connotation, so customers and would extend limited EFFECTIVE DATE: June 8, 2007. this terminology has not been used in program funds. However, this is a the final rule. localized problem and would be a FOR FURTHER INFORMATION CONTACT: While these comments received in Tracy L. Jones, Senior Loan Officer, significant program change that would opposition to the proposed changes make a large number of applicants Farm Service Agency; telephone: (202) were reviewed, they did not provide 720–3889; Facsimile: (202) 720–6797; e- ineligible. Thus, the agency decided not specific recommendations, so no to include this change in the final rule. mail: [email protected]. changes were made in the final rule to Persons with disabilities who require address them. One respondent requested additional alternative means for communication Following is a review of specific guidance on the definition of (Braille, large print, audio tape, etc.) comments and the changes made in the nonessential assets. The Agency feels should contact the USDA Target Center final rule in response to the comments. that the definition and discussion in the at (202) 720–2600 (voice and TDD). rule are sufficiently clear. No changes Loans Eligible for Interest Assistance SUPPLEMENTARY INFORMATION: are made in the final rule; however, The Agency proposed to delete additional guidance will be provided in Summary of Public Comments references to providing IA on Farm the FSA field office handbook for the FSA published a proposed rule on Ownership (FO) loans and existing Guaranteed Loan Program. Also, as was June 22, 2005, (69 FR 36055–36060) to guaranteed Operating Loans (OL) in suggested by one respondent, direction amend its regulations governing loans conjunction with a rescheduling action will be added to this handbook for FSA made under the guaranteed farm loan because Congress has not appropriated employees on when it is appropriate to program, IA program. The initial IA funds for these purposes since 1992. encourage lenders to use the FO

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17354 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

program rather than IA to fund an have achieved the Agency’s preferred typically have smaller operations with applicant’s needs. lender status. The Agency acknowledges less debt. For example, a beginning that some applicants will become farmer or rancher may have a pickup Debt-to-Asset Ratio ineligible, but believes that applicants truck with very few other assets and As stated in the proposed rule, below the 50 percent threshold have the almost no debt, and could very easily current regulations provide for IA based financial strength to restructure their have greater than 50 percent equity and, simply on cash flow. Agency reviews debt and cash flow without an interest therefore, be ineligible for IA subsidy. have revealed that some borrowers who subsidy. Guidance will be provided in This was not the Agency’s intent. receive IA have a significant net worth, the Agency’s handbook on how to Beginning farmers are specifically with adequate financial strength that address fraud or misrepresentation of targeted by FSA for increased assistance would allow them to restructure their asset values. because of their inability to access liabilities to meet their credit needs Forty-six respondents recommended private credit programs. In addition, this without receiving IA. To address this that the Agency use a measure of program could provide such applicants concern the Agency proposed to limit repayment ability rather than one of with the assistance needed to get them IA to applicants who possess a debt-to- solvency. Thirteen respondents through the difficult early years as they asset ratio in excess of 50 percent prior indicated that it would be difficult to accumulate farm assets and become to receiving the new loan. There were impossible to lend money solely based financially viable. By specifically 18 comments that supported this on this change; a true depiction of the targeting funds to beginning farmers in change. These comments pointed out need for IA should be based instead on the statute, Congress has clearly that this would limit subsidy to the a producer’s cash flow. Three signaled its intent that the Agency more highly stressed borrowers and respondents indicated that this proposal should endeavor to address the specific reduce the number of large loans that was unfair, because it does not take into needs of this group. Therefore, the rule have used a large portion of the funding account each individual operation, has been modified to exclude beginning allocation. unfairly penalized those who have farmers and ranchers from this debt to Conversely, 73 comments received owned real estate for some time, or asset restriction. The 50 percent equity did not support this change. Seven unfairly impacted agricultural operators limitation will be applied to applicants respondents disagreed with this in their areas who need IA initially to not defined as beginning farmers. This proposal in general but did not give have adequate repayment capacity. will target the limited amount of IA specific reasons for their concern. The Agency acknowledges that an funds to those most in need of the Another had strong objection to the applicant with a strong net worth does assistance. change, although the respondent went not necessarily have strong cash flow on to comment that most of the loans on and vice versa. This rule maintains the Maximum Assistance Period IA have a 50 percent or higher debt-to- current IA capacity provision which Existing regulations limit IA for each asset ratio. Nine respondents were requires that an applicant be unable to borrower to a maximum of 10 years concerned that the ratio would limit repay the debt at the note rate of interest from the date of the first IA agreement eligibility and may screen out needy without a subsidy. However, this signed by the loan applicant, including operations. Three respondents suggested control by itself has been inadequate. entity members, or the outstanding term that a 50 percent debt-to-asset ratio was The Agency’s long standing policy is of the loan, whichever is less. The too liberal, and suggested that a ratio that IA is intended for farmers with proposed rule would limit each between 35 to 40 percent would be more inadequate financial resources. borrower to a total of 5 consecutive appropriate. Three other respondents Producers with a strong net worth have years of IA eligibility. Seventy-nine indicated that 50 percent was too low assets with which to restructure their comments received were opposed to and suggested the agency adopt a 65 debt and improve their cash flow. this change. These comments stated that percent ratio. Six respondents were Therefore, this rule provides that this change would be detrimental to concerned that this proposed change applicants with such resources cannot some borrowers and suggested that the would only cause problems, would not receive an interest subsidy. current 10-year limitation is the simplify the program, and could lead to One respondent suggested the Agency minimum time needed to give farmers burdensome documentation and calculate the applicant’s debt to asset and ranchers adequate opportunity to applicants’ manipulation of balance ratio as it would be after the loan is establish their operations considering sheets. closed. The Agency seriously the realities of weather. One respondent The Agency’s proposed limit for new considered this recommendation. indicated that he believed the Agency IA applicants to possess a debt to asset However, it was determined that this had ‘‘sold out’’, and the Agency should ratio in excess of 50 percent prior to the limitation would be subject to extend and not shorten the program. new loan is reasonable. The 50 percent manipulation in that an applicant could Three respondents suggested a 7-year level was proposed after the Agency possibly purchase assets or acquire debt maximum assistance period. There were performed an analysis of the financial in order to achieve a debt/asset ratio 25 comments that supported the change characteristics of borrowers in the that would qualify them for the subsidy. and stated that 5 years was an adequate guaranteed loan program to determine The Agency, therefore, is not adopting period of time for a farm to achieve, or the correlation between debt to asset this suggestion. return to, profitability. ratio, loan performance, and the need One respondent suggested using an Two respondents stated that the for interest subsidy. The Agency found applicant’s current ratio, not debt to maximum assistance period should be that one-third of the borrowers in the asset ratio. The Agency chose to not for the life of the borrower, not current guaranteed portfolio have a debt adopt this recommendation because of consecutive years. To adopt this to asset ratio of 50 percent or greater the volatility of this ratio throughout the suggestion, the need for subsidy would while approximately one-fourth of the operating year. need to be determined each year and the guaranteed operating loans receive IA. Of the comments opposed to the Agency could not eliminate the annual Additionally, a 50 percent debt to asset change, five indicated that the proposal needs test. Of the changes in this rule, ratio is the most common capital would unjustly impact beginning elimination of the annual needs test will standard used by those lenders who farmers and ranchers because they result in the most significant reduction

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17355

in burden on the public. The advantage change. The opposing comments stated accessing the program; the Agency still to a borrower receiving 5 years of that this change was too restrictive, expects all available funds to be utilized subsidy in intermittent 1-year periods, arbitrary, limits legitimate borrowers each year. rather than in one 5-year block, would from accessing the program, and was Guarantee Fees be minimal when compared to the inappropriate considering that the costs increased administrative burden to all required for farming have increased. The proposed rule proposed to parties involved with adopting such a Another four respondents suggested eliminate the waiver of a guarantee fee proposal. Some producers will receive the subsidized debt limit be indexed to for IA loans. Seventy-five comments less total subsidy due to the reduced inflation and adjusted annually were opposed to this change. These term. Nonetheless, budget constraints accordingly. The Agency concedes that respondents stated that a fee is counter- force the Agency to make difficult indexing the maximum amount of debt productive and adds stress to farmers decisions regarding the best use of on which an applicant may receive IA already in financial trouble. Four Government resources. The IA program would be minimally advantageous to respondents expressed an additional is intended to provide temporary relief, farmers. However, changing the concern about how the fee would affect and the Agency has determined that 5 maximum amount annually would beginning farmers and ranchers. years is an adequate maximum subsidy increase the cost of the program each Since the IA proposed rule was period within which an applicant’s year, would be administratively published on June 22, 2005, the Agency operation should become sufficiently complex, and would make planning published another rule proposing to profitable to eliminate the need for an difficult because the amount would be increase the fees charged for guaranteed interest subsidy. changing each year. Therefore, the final loans (71 FR 27978, May 15, 2006). To One respondent supported the rule does not link the maximum subsidy comply with anticipated budget reduction to 5 years only if the annual amount to inflation. requirements and maintain new loan renewal process is eliminated as Thirty-two respondents stated that activity at the proposed level, the proposed. The Agency agrees. this change would limit a benefit that Agency must increase fees. The Agency is making an additional Congress intended to be available across The Agency has decided to leave this change in the final rule with regard to the board. However, the Agency feels issue open and will finalize it with the the maximum IA period for beginning that Congress intended that IA be proposed rule (71 FR 27978) regarding farmers and ranchers. It was determined provided to those who need it most. If fees. All comments on this issue will be that 5 years may be too short a period Congress had intended that borrowers of carefully considered at that time. No of time for beginning farmers and all sizes receive the maximum benefit it change of the guarantee fee for IA loans ranchers to accumulate assets and seems the level of IA funds appropriated is being made in this rule. reduce debt load to a level necessary for annually would have kept pace with Reduced Application Requirements the operation to be viable without IA. demand. However, this is not the case. The final rule permits beginning farmers In recent fiscal years, IA funds have The existing regulation requires to receive a second 5-year period of IA been depleted early in the fiscal year. lenders to submit a repayment schedule eligibility if their cash flow requires the The numbers of large loans receiving IA for the guaranteed loan and a projected subsidy, and they are still beginning are a main cause for this rapid depletion monthly cash flow budget on lines of farmers at the end of the first 5-year of funds and the result is a decrease in credit. The Agency proposed to delete period. Non-beginning farmers are still the number of borrowers assisted with these requirements as the forms are not limited to one 5-year period of IA. Appropriations to the program have necessary to make the evaluation, and eligibility as provided in the proposed not increased while the sizes of impose significant burdens on program rule. guaranteed loans, including those with participants. Sixty-seven comments Some respondents expressed concern IA, have increased. Therefore, the supported this change to make the that this rule would reduce the term on Agency believes the respondent’s program more attractive to lenders due existing IA agreements. That is rationale is misplaced, and reducing the to the reduced paperwork burden. incorrect. Existing agreements will maximum amount of subsidy payable to Twelve respondents opposed the remain in effect as written. In addition, each producer does not violate change, indicating that the monthly the rule provides existing borrowers Congressional intent for the program. budgets are important financial analysis time to prepare for the reduced period A number of respondents implied that documents and the requirement for of eligibility to ease the transition to this the Agency was proposing to decrease lines of credit should not be removed. new maximum period. the maximum guaranteed loan to The Agency acknowledges that monthly $400,000. This is not correct; a borrower cash flow budgets can be useful tools Maximum Interest Assistance Payment with IA may still incur the maximum and certainly may be used when The proposed rule did not restrict the allowable guaranteed loan debt; needed, at the lender’s discretion. maximum guaranteed loan that could be however, subsidy payments will be However, they are not always necessary received, but did limit the maximum limited to $16,000 per year. As clarified and should not be required by the amount of debt on which an applicant in the final rule, this maximum Agency. The final rule adopts the may receive IA to $400,000. With the guaranteed loan level with interest proposed rule as written with regard to percentage rate of IA subsidy assistance is a lifetime limit. the application requirements. established at 4 percent, this change In summary, the Agency, as proposed, would limit the amount of subsidy that will limit subsidy payments to $16,000 Removal of Annual Review may be paid to a maximum of $16,000 per year, for a term of 5 years. The IA Requirements annually ($400,000 × .04). Twenty-four program is the most expensive of the Current regulations require a lender to comments supported this change, Agency’s guaranteed farm loan submit to FSA—once a year, each year, stating that this would permit FSA to programs. These limits will help control for each IA borrower, for the term of the assist a larger number of young, costs, allow limited funds to reach more IA agreement—a form requesting the beginning, and small producers and borrowers, and target those funds to previous year’s interest subsidy reduce abuse in the program. There applicants with the most need. These payment and a ‘‘needs test’’. This needs were 76 comments opposed to the changes will not prevent borrowers from test must document that the borrower

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17356 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

needs IA in the next production cycle, Fees Charged by Lenders for IA Claims date of the first IA agreement. This usually a year, in order to achieve a Submissions comment stated that such IA loans are feasible business plan. The proposed Agency reviews of guaranteed lenders in need of maximum assistance and rule proposed to reduce the submission indicate that some lenders charge fees to these interest assistance agreements requirements for annual claims for IA the borrower for the preparation of should be extended to 10 years. Extending the term due to restructuring payment. In the proposal, IA would documentation and claims for payment would be difficult to control, as even simply be authorized for 5 years for the of IA that are submitted to FSA. The performing loans might be restructured borrower from the date of the first IA Agency proposed to prohibit these fees. in an effort to assure that every borrower agreement. The lender would only be There were 36 comments opposed to has IA available for an additional time required to submit an Agency IA this change, stating that the Agency period. This would defeat the purpose payment form and the average daily should not be in the business of of limiting the term to 5 years per principal balance for the claim period, regulating fees charged by lenders, and borrower. For consistency purposes, all with supporting documentation. that banks should be allowed to recover borrowers will be treated the same, and their preparation costs. Respondents Comments were received from 58 the Agency did not adopt this comment. respondents supporting this change. opposed to the change also stated that Another respondent requested that These comments stated that this it was contradictory to prohibit a fee entities be allowed to assume a loan streamlined claim process should make when the Agency will be increasing its with IA. The Agency agrees and will the program much more attractive to all guarantee fee. Twenty-three respondents allow this to occur if the entity is participants. There were 11 comments supported this change, stating that eligible and one of the entity members opposed to the change stating that borrowers are in financially stressed was liable for the debt when the original although the existing submission circumstances, additional fees are agreement was signed. Since the entity requirements may be burdensome, they counter-productive, and lenders did not is eligible for a loan with IA, this is a were necessary to determine if IA was charge a fee anyway. The Agency has reasonable way to accommodate the actually needed. One respondent stated carefully considered the comments and situation, and save loan funds. that this would remove a ‘‘supervision has adopted as final the prohibition on Otherwise, the entity would have to tool’’. fees as proposed. Most of the make an application for a new loan, requirements for IA claims are As discussed in the preamble to the requiring expenditure of more loan eliminated in this rule, greatly reducing proposed rule, the annual review funds and more subsidized funding, all lender administrative costs. Since IA requirements have not been a to achieve the same result, a loan with claims are now very easy to submit meaningful control for the program. IA. charging fees for IA claims is not Approximately 93 percent of the Two respondents suggested that the appropriate. borrowers operating under an IA Agency was not clear on how it would agreement receive a subsidy payment First and Final Claims handle restructuring of a guaranteed each year, regardless of the amount and loan above the authorized IA amount. Existing regulations require final IA One of the respondents thought that the scope of documentation that has been claims to be submitted concurrently required. Clearly, the significant amount restructured above the IA with the submission of any estimated portion of the loan would not be administrative burden has not been cost loss claims. The Agency proposed that, effective and is not warranted. In guaranteed. In response, the Agency has upon liquidation of a loan, the lender clarified and expanded on § 762.150(k) addition, this burden has resulted in an complete the Request for Interest unbalanced program as it discourages to more specifically state that lenders Assistance and submit it to the Agency are able to capitalize interest when many lenders from participating at all, concurrently with any estimated or final effectively making the program restructuring up to the original loan loss claims. Approximately 15 amount under the remaining terms and unavailable to producers in certain parts comments supported this change; still have interest assistance available of the country. The Agency feels that the however, some comments indicated that for the full amount of the original loan. few producers who may receive a it should be more clearly stated. Based This clarification mirrors the existing subsidy payment at a time when they on these comments, the Agency has practice and has no impact on funding may not need it is far outweighed by the clarified this section regarding final IA because IA funds have already been set improved delivery and more equitable claims being submitted with the aside at loan origination. When distribution of the program throughout estimated loss claim or final loss claim restructuring, if terms are increased or the country that will result from these if an estimated loss claim was not interest is capitalized to the extent that reduced annual review requirements. previously provided, and added that the additional funds are needed, Agency The Agency will continue to honor IA accrual date cannot exceed the last approval is subject to funding existing Interest Assistance agreements date of interest accrual for a loss claim. availability. Interest assistance is not that require an annual needs test. available on that portion of the loan as Servicing Two respondents suggested that the interest assistance is limited to the producer be required to keep loan The proposed rule proposed to clarify original loan amount. agreements, such as accounting for numerous servicing actions concerning A final technical correction is being collateral and supplying requested IA including: transfers, assumptions, made to remove the requirement for an financial information, to receive annual writedown, interest reduction due to IA claim to be submitted through the subsidy payments. The Agency believes court order in bankruptcy effective date of rescheduling. Claims that it is the lender’s responsibility to reorganization, and loan restructuring. are required to be submitted annually enforce its loan agreements. FSA will There were 15 comments received on the date identified on the interest make subsidy payments upon the supporting these changes. assistance agreement and in the event of lender’s request in accordance with the One respondent objected to allowing rescheduling; only an annual claim is Interest Assistance Agreement and FSA the rescheduling of loans subject to IA, needed. The claim submission is regulations. No changes have been made but not allowing the IA agreement term already addressed in this rule and more in relation to these comments. to be extended beyond 5 years from the details on administrative processing

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17357

will be elaborated on in the Agency have considered these terms Environmental Quality (40 CFR parts Handbook. synonymous; however for clarity, the 1500–1508), and the FSA regulations for Agency is amending the definition in compliance with NEPA, 7 CFR part Miscellaneous Changes § 762.102(a) and reference in 1940 subpart G. FSA concluded that the The proposed rule proposed to § 762.124(a)(2) to ‘‘average agricultural rule does not require preparation of an update, clarify, and remove references loan customer’’, instead of ‘‘average environmental assessment or to forms and internal administrative farm customers.’’ The definition also is environmental impact statement. processes to be completed for IA loans. being clarified to refer to the Executive Order 12988 There were 5 comments that supported conventional farm borrower who is these changes. The Agency adopts the required to pledge their crops, livestock, This rule has been reviewed in proposed rule on these miscellaneous other chattel, ‘‘and/or’’ real estate accordance with Executive Order 12988, changes as written. In addition, the security for the loan. As has always Civil Justice Reform. In accordance with Agency is removing the definitions for been the case, depending on the type of that Executive Order: (1) All State and ‘‘Interest Assistance Review’’ and loan, available security and market local laws and regulations that are in ‘‘Interest Assistance Anniversary Date’’ conditions, different types of security conflict with this rule will be as unnecessary. It is also revising the may be required from conventional farm preempted; (2) no retroactive effect will definition of ‘‘Average Farm Customer’’ borrowers and not all types of security be given to this rule; it will not affect to ‘‘Average Agricultural Loan listed will be required of all borrowers. IA agreements entered into prior to the Customer.’’ No substantive policy changes are made effective date of the rule to the extent Average Customer Rate at this time. that it is inconsistent with the terms of those agreements; and (3) administrative The proposed rule provided in Exception Authority proceedings in accordance with 7 CFR § 762.150(b)(6) that the lender may The proposed rule failed to provide part 11 must be exhausted before charge a fixed or variable interest rate, exception authority as provided in the requesting judicial review. but not in excess of what the lender current § 762.150(k). The Agency is Executive Order 12372 charges its average farm customer. One reinserting the exception authority rule. respondent stated that FSA should not Based upon past experience and the For reasons contained in the Notice dictate rates and a guaranteed customer need in the final for flexibility in related to 7 CFR part 3015, subpart V should not be compared with a non- implementing the new requirements in (48 FR 29115, June 24, 1983) the guaranteed customer because of this rule, exception authority is needed programs and activities within this rule increased risk. Another indicated that to address unusual situations that may are excluded from the scope of they had not used the program; arise. If a case is not adverse to the Executive Order 12372, which requires however, higher risk borrowers should Government or contrary to statute, and intergovernmental consultation with pay a higher rate like the rest of the is in the Government’s best financial state and local officials. borrowing community. The Agency interest, the Agency may use this does not agree. This limitation has been Unfunded Mandates exception authority to waive a in place many years under § 762.124 regulatory provision involving interest This rule contains no Federal and the proposed rule did not propose assistance. mandates, as defined by Title II of the a change in this area. The guarantee Unfunded Mandates Reform Act of 1995 from FSA compensates the lender for Executive Order 12866 (UMRA), Public Law 104–4, for State, most of its risk of loss. Lenders This rule has been determined by the local, and tribal governments or the ordinarily charge higher risk customers Office of Management and Budget to be private sector. Therefore, this rule is not a higher interest rate to compensate for not significant for the purposes of subject to the requirements of sections the higher probability of loss associated Executive Order 12866, and was 202 and 205 of UMRA. with such loans. The guarantee therefore not reviewed by the Office of Executive Order 13132 eliminates most of that risk, so the Management and Budget. lender cannot justify charging a ‘‘risk The policies contained in this rule do premium’’ as a part of the interest rate Regulatory Flexibility Act not have any substantial direct effect on on guaranteed loans. The lender, when The Agency certifies that this rule states, on the relationship between the it comes to alleviating the higher risk will not have significant economic effect national government and the states, or from a loan to a borrower that they may on a substantial number of small on the distribution of power and not normally extend credit, may charge entities, because it does not require any responsibilities among the various that customer a higher rate of interest, specific actions on the part of the levels of government. Nor does this rule or obtain an FSA guarantee, not both. borrower or the lenders. The Agency impose substantial direct compliance Thirty-one respondents objected to made this certification in the proposed costs on state and local governments. FSA using the term ‘‘average farm rule, and no comments were received in Therefore, consultation with the states customers’’ to describe the maximum this area. The Agency, therefore, is not is not required. interest rate that could be charged. required to perform a Regulatory Paperwork Reduction Act These respondents stated that there is Flexibility Analysis as required by the no single, clear definition of this term. Regulatory Flexibility Act, Public Law The amendments to 7 CFR part 762 Respondents also recommended that the 96–534, as amended (5 U.S.C. 601). contained in this rule require no Agency clarify the limitation on the revisions to the information collection maximum interest rate that can be Environmental Evaluation requirements that are currently charged under § 762.124(a)(3). They The environmental impacts of this approved by OMB under control pointed out that this provision discusses final rule have been considered number 0560–0155. A proposed rule ‘‘average agricultural loan customer’’ consistent with the provisions of the containing an estimate of the while the term ‘‘average farm National Environmental Policy Act of information collection burden of this customers’’ is defined in § 762.102(a). 1969 (NEPA), 42 U.S.C. 4321 et seq., the rule was published on June 22, 2005 (70 FSA and guaranteed lenders historically regulations of the Council on FR 36055–36060). No comments

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17358 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

regarding the burden estimates were (8) Any holder agrees to any changes (d) Maximum time for which interest received. in the original loan terms. * * * assistance is available. (1) A borrower may only receive interest assistance for Federal Assistance Programs * * * * * I 5. Revise § 762.150 to read as follows: one 5-year period. The term of the These changes affect the following interest assistance agreement executed FSA programs as listed in the Catalog of § 762.150 Interest assistance program. under this section shall not exceed 5 Federal Domestic Assistance: (a) Requests for interest assistance. In consecutive years from the date of the 10.406—Farm Operating Loans addition to the loan application items initial agreement signed by the loan 10.407—Farm Ownership Loans required by § 762.110, to apply for applicant, including any entity members, or the outstanding term of the List of Subjects in 7 CFR Part 762 interest assistance the lender’s cash flow budget for the guaranteed loan applicant loan, whichever is less. This is a Agriculture; Loan programs; Banks, must reflect the need for interest lifetime limit. banking; Credit. assistance and the ability to cash flow (2) Beginning farmers and ranchers, as I For the reasons stated in the preamble, with the subsidy. Interest assistance is defined in § 762.102, however, may be the Farm Service Agency is amending 7 available only on new guaranteed considered for two 5-year periods. The CFR Chapter VII as set forth below: Operating Loans (OL). applicant must meet the definition of a (b) Eligibility requirements. The beginning farmer or rancher and meet PART 762—GUARANTEED FARM lender must document that the the other eligibility requirements outlined in paragraph (b) of this section LOANS following conditions have been met for at the onset of each 5-year period. A the loan applicant to be eligible for I 1. The authority citation for part 762 needs test will be completed in the fifth interest assistance: continues to read as follows: year of IA eligibility for beginning (1) A feasible plan cannot be achieved farmers, to determine continued Authority: 5 U.S.C. 301; 7 U.S.C. 1989. without interest assistance, but can be I 2. Amend § 762.102(b) by removing eligibility for a second 5-year period. achieved with interest assistance. (3) Notwithstanding the limitation of the definitions of the terms ‘‘average (2) If significant changes in the farm customers’’, ‘‘interest assistance paragraph (d)(1) of this section, a new borrower’s cash flow budget are interest assistance agreement may be anniversary date’’ and ‘‘interest anticipated after the initial 12 months, assistance review’’ and adding the approved for eligible borrowers to then the typical cash flow budget must provide interest assistance through June following definition in alphabetical demonstrate that the borrower will still 8, 2009, provided the total period does order: have a feasible plan following the not exceed 10 years from the effective § 762.102 Abbreviations and definitions. anticipated changes, with or without date of the original interest assistance interest assistance. * * * * * agreement. (3) The typical cash flow budget must (e) Multiple loans. In the case of a (b) * * * demonstrate that the borrower will have Average agricultural loan customer. borrower with multiple guaranteed a feasible plan throughout the term of loans with one lender, interest The conventional farm borrower who is the loan. required to pledge crops, livestock, assistance can be applied to each loan, (4) The borrower, including members only to one loan or any distribution the other chattels and/or real estate security of an entity borrower, does not own any for the loan. This does not include the lender selects, as necessary to achieve a significant assets that do not contribute feasible plan, subject to paragraph (c) of high-risk farmer with limited security directly to essential family living or and management ability that is generally this section. farm operations. The lender must (f) Terms. The typical term of charged a higher interest rate by determine the market value of any such scheduled loan repayment will not be conventional agricultural lenders. Also, non-essential assets and prepare a cash reduced solely for the purpose of this does not include the low-risk farm flow budget and interest assistance maximizing eligibility for interest customer who obtains financing on a calculations based on the assumption assistance. A loan must be scheduled secured or unsecured basis, who has as that these assets will be sold and the over the maximum term typically used collateral items such as savings market value proceeds used for debt by lenders for similar type loans within accounts, time deposits, certificates of reduction. If a feasible plan can then be the limits in § 762.124. An OL for the deposit, stocks and bonds, and life achieved, the borrower is not eligible for purpose of providing annual operating insurance to pledge for the loan. interest assistance. and family living expenses will be * * * * * (5) A borrower may only receive scheduled for repayment when the § 762.124 [Amended] interest assistance if their total debts income is scheduled to be received from (including personal debts) prior to the the sale of the crops, livestock, and/or I 3. Amend § 762.124(a)(2) to replace new loan exceed 50 percent of their livestock products which will serve as the phrase ‘‘average farm customers’’ total assets (including personal assets). security for the loan. An OL for with ‘‘average agricultural loan An entity’s debt to asset ratio will be purposes other than annual operating customer’’ in the second sentence. based upon a financial statement that and family living expenses (i.e. I 4. Amend § 762.145 by revising consolidates business and personal purchase of equipment or livestock, or paragraph (b)(2)(i) and the first sentence debts and assets of the entity and its refinancing existing debt) will be of paragraph (b)(8) to read as follows: members. Beginning farmers and scheduled over 7 years from the ranchers, as defined in § 762.102, are effective date of the proposed interest § 762.145 Restructuring guaranteed loans. excluded from this requirement. assistance agreement, or the life of the * * * * * (c) Maximum assistance. The security, whichever is less. (b) * * * maximum total guaranteed OL debt on (g) Rate of interest. The lender may (2) * * * which a borrower can receive interest charge a fixed or variable interest rate, (i) A feasible plan as defined in assistance is $400,000, regardless of the but not in excess of what the lender § 762.102(b). number of guaranteed loans charges its average agricultural loan * * * * * outstanding. This is a lifetime limit. customer.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17359

(h) Agreement. The lender and (iv) A cash-flow budget for the period interest reduced by bankruptcy court borrower must execute an interest being planned. A monthly cash-flow order are not eligible for interest assistance agreement as prescribed by budget is required for all lines of credit assistance. the Agency. and operating loans made for annual (m) Termination of interest assistance operating purposes. All other loans may (i) Interest assistance claims and payments. Interest assistance payments payments. To receive an interest include either an annual or monthly will cease upon termination of the loan assistance payment, the lender must cash-flow budget. guarantee, upon reaching the expiration prepare and submit a claim on the (v) A copy of the interest assistance date contained in the agreement, or appropriate Agency form. The following needs analysis portion of the conditions apply: application form which has been upon cancellation by the Agency under (1) Interest assistance payments will completed based on the planned the terms of the interest assistance be four (4) percent of the average daily period’s cash-flow budget. agreement. In addition, for loan principal loan balance prorated over the (6) Interest Assistance Agreements guarantees sold into the secondary number of days the loan has been dated June 8, 2007 or later do not market, Agency purchase of the outstanding during the payment period. require a request for continuation of guaranteed portion of a loan will For loans with a note rate less than four interest assistance. The lender will only terminate the interest assistance. be required to submit an Agency IA (4) percent, interest assistance payments (n) Excessive interest assistance. payment form and the average daily will be the weighted average interest Upon written notice to the lender, principal balance for the claim period, rate multiplied by the average daily borrower, and any holder, the Agency principal balance. with supporting documentation. (7) Lenders may not charge or cause may amend or cancel the interest (2) The lender may select at the time a borrower with an interest assistance assistance agreement and collect from of loan closing the date that they wish agreement to be charged a fee for the lender any amount of interest to receive an interest assistance preparation and submission of the items assistance granted which resulted from payment. That date will be included in required for an annual interest incomplete or inaccurate information, the interest assistance agreement. assistance claim. an error in computation, or any other (i) The initial and final claims (j) Transfer, consolidation, and reason which resulted in payment that submitted under an agreement may be writedown. Loans covered by interest the lender was not entitled to receive. for a period less than 12 months. All assistance agreements cannot be (o) Condition for Cancellation. The other claims will be submitted for a 12- consolidated. Such loans can be Interest Assistance Agreement is month period, unless there is a lender transferred only when the transferee incontestable except for fraud or substitution during the 12-month period was liable for the debt on the effective in accordance with this section. date of the interest assistance misrepresentation, of which the lender (ii) In the event of liquidation, the agreement. Loans covered by interest or borrower have actual knowledge at final interest assistance claim will be assistance can be transferred to an entity the time the interest assistance submitted with the estimated loss claim if the entity is eligible in accordance agreement is executed, or which the or the final loss claim if an estimated with § 762.120 and § 762.150(b) and at lender or borrower participates in or loss claim was not submitted. Interest least one entity member was liable for condones. will not be paid beyond the interest the debt on the effective date of the (p) Substitution. If there is a accrual cutoff dates established in the interest assistance agreement. Interest substitution of lender, the original loss claims according to § 762.149(d)(2). assistance will be discontinued as of the lender will prepare and submit to the (3) A claim should be filed within 60 date of any writedown on a loan Agency a claim for its final interest days of its due date. Claims not filed covered by an interest assistance within 1 year from the due date will not assistance payment calculated through agreement. the effective date of the substitution. be paid, and the amount due the lender (k) Rescheduling and deferral. When This final claim will be submitted for will be permanently forfeited. a borrower defaults on a loan with processing at the time of the (4) All claims will be supported by interest assistance or the loan otherwise detailed calculations of average daily requires rescheduling or deferral, the substitution. principal balance during the claim interest assistance agreement will (1) Interest assistance will continue period. remain in effect for that loan at its automatically with the new lender. (5) Requests for continuation of existing terms. The lender may (2) The new lender must follow interest assistance for agreements dated reschedule the loan in accordance with paragraph (i) of this section to receive prior to June 8, 2007 will be supported § 762.145. For Interest Assistance their initial and subsequent interest by the lender’s analysis of the Agreements dated June 8, 2007 or later assistance payments. applicant’s farming operation and need increases in the restructured loan for continued interest assistance as set amount above the amount originally (q) Exception Authority. The Deputy out in their Interest Assistance obligated do not require additional Administrator for Farm Loan Programs Agreements. The following information funding; however, interest assistance is has the authority to grant an exception will be submitted to the Agency: not available on that portion of the loan to any requirement involving interest (i) A summary of the operation’s as interest assistance is limited to the assistance if it is in the best interest of actual financial performance in the original loan amount. the Government and is not inconsistent previous year, including a detailed (l) Bankruptcy. In cases where the with other applicable law. income and expense statement. interest on a loan covered by an interest Signed in Washington, DC, on March 15, (ii) A narrative description of the assistance agreement is reduced by 2007. causes of any major differences between court order in a reorganization plan the previous year’s projections and under the bankruptcy code, interest Teresa C. Lasseter, actual performance, including a detailed assistance will be terminated effective Administrator, Farm Service Agency. income and expense statement. on the date of the court order. [FR Doc. 07–1748 Filed 4–4–07; 3:38 pm] (iii) A current balance sheet. Guaranteed loans which have had their BILLING CODE 3410–05–P

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17360 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

DEPARTMENT OF AGRICULTURE 682–5942, or E-mail: Section 959.52 of the order authorizes [email protected]. the issuance, amendment, modification, Agricultural Marketing Service Small businesses may request suspension, or termination of information on complying with this regulations for grade, size, quality, 7 CFR Part 959 regulation by contacting Jay Guerber, maturity, pack, and container for any [Docket No. AMS–FV–07–0043; FV07–959– Marketing Order Administration variety of onions grown in the 2 IFR] Branch, Fruit and Vegetable Programs, production area. Section 959.53 AMS, USDA, 1400 Independence provides that regulations in effect Onions Grown in South Texas; Avenue, SW., STOP 0237, Washington, pursuant to §§ 959.42, 959.52, or 959.60 Exemption of Onions for Export DC 20250–0237; Telephone (202) 720– may be modified, suspended or 2491; Fax: (202) 720–8938; or E-mail: terminated to facilitate the handling of AGENCY: Agricultural Marketing Service, [email protected]. onions for specified special purpose USDA. shipments, including export. Section SUPPLEMENTARY INFORMATION: This rule ACTION: 959.60 provides that whenever onions Interim final rule with request is issued under Marketing Agreement are regulated pursuant to § 959.52, such for comments. No. 143 and Order No. 959, both as onions must be inspected by the amended (7 CFR part 959), regulating SUMMARY: This rule exempts onions Federal-State Inspection Service, and the handling of onions grown in South being shipped to export markets from certified as meeting the applicable Texas, hereinafter referred to as the regulations prescribed under the South requirements of such regulations. Texas onion marketing order. The ‘‘order.’’ The order is effective under the Section 959.322 contains the order’s marketing order regulates the handling Agricultural Marketing Agreement Act handling regulations and includes of onions grown in South Texas, and is of 1937, as amended (7 U.S.C. 601–674), provisions for grade, size, and administered locally by the South Texas hereinafter referred to as the ‘‘Act.’’ inspection requirements, as well as a Onion Committee (Committee). This The Department of Agriculture minimum quantity exemption, certain rule provides a special purpose (USDA) is issuing this rule in special purpose shipment exemptions, shipment exemption for onions being conformance with Executive Order and experimental shipments. The shipped to export markets. Under this 12866. handling regulations also provide change, onion shipments for export will This rule has been reviewed under safeguards to ensure that onions being be exempt from the grade, size, quality, Executive Order 12988, Civil Justice shipped for special purposes are and inspection requirements of the Reform. This rule is not intended to handled in accordance with order marketing order. This rule will provide have retroactive effect. This rule will provisions. handlers additional flexibility in not preempt any State or local laws, The Committee meets prior to and marketing onions of different grades and regulations, or policies, unless they during each season to consider quality in various markets outside of the present an irreconcilable conflict with recommendations for modification, U.S. This change is expected to help the this rule. suspension, or termination of the South Texas onion industry develop The Act provides that administrative regulatory requirements for South Texas additional markets for its onions, while proceedings must be exhausted before onions which have been issued on a increasing returns to producers and parties may file suit in court. Under continuing basis. Committee meetings providing an increased supply of onions section 608c(15)(A) of the Act, any are open to the public and interested to help satisfy a rapidly developing handler subject to an order may file persons may express their views at these export market. with USDA a petition stating that the meetings. The USDA reviews order, any provision of the order, or any DATES: Committee recommendations and Effective April 10, 2007. obligation imposed in connection with Comments received by June 8, 2007 will information submitted by the the order is not in accordance with law Committee and other available be considered prior to issuance of a final and request a modification of the order rule. information, and determines whether or to be exempted therefrom. Such modification, suspension, or ADDRESSES: Interested persons are handler is afforded the opportunity for termination of the regulatory invited to submit written comments a hearing on the petition. After the requirements would tend to effectuate concerning this rule. Comments must be hearing USDA would rule on the the declared policy of the Act. sent to the Docket Clerk, Marketing petition. The Act provides that the Based on discussion at the March 16, Order Administration Branch, Fruit and district court of the United States in any 2007, meeting, the Committee has Vegetable Programs, AMS, USDA, 1400 district in which the handler is an conveyed to USDA that there currently Independence Avenue, SW., STOP inhabitant, or has his or her principal exists an extremely short supply of 0237, Washington, DC 20250–0237; Fax: place of business, has jurisdiction to onions in Mexico and other countries. (202) 720–8938; or Internet: http:// review USDA’s ruling on the petition, This shortage has fueled a greater www.regulations.gov. All comments provided an action is filed not later than demand for all grades of onions. The should reference the docket number and 20 days after the date of the entry of the Committee indicated that there is a great the date and page number of this issue ruling. deal of interest in various foreign of the Federal Register and will be This action, unanimously markets for onions of varying grade, made available for public inspection in recommended by the Committee at its size, and quality. Texas producers and the Office of the Docket Clerk during March 16, 2007, meeting, exempts onion handlers are characterized by the regular business hours or can be viewed export shipments from the grade, size, Committee as being eager to supply this at: http://www.regulations.gov. quality and inspection requirements demand and are thus fully in support of FOR FURTHER INFORMATION CONTACT: prescribed under the South Texas onion relaxing the handling regulations in an Belinda G. Garza, Regional Manager, marketing order. To effectuate the effort to provide onions for the Texas Marketing Field Office, Marketing exemption, paragraphs (e)(1) and (f) of developing export markets. Order Administration Branch, Fruit and § 959.322 are modified by adding the The Committee also reports that the Vegetable Programs, AMS, USDA; term ‘‘export’’ to the list of authorized onion supply situation in Texas is Telephone: (956) 682–2833, Fax: (956) special purpose shipment categories. hampered by a very short onion crop—

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17361

approximately 12,500 acres this year integrated corporations involved in The Committee considered compared with approximately 18,000 producing, shipping, and marketing alternatives to this recommendation. acres in past seasons—and recent cold onions. For the 2005–06 marketing year, One consideration would have relaxed weather that has caused some quality the industry’s 38 handlers shipped the minimum quality requirement of all issues in certain areas of the South onions produced on 17,694 acres with onion shipments, both domestic and Texas onion production area. the average and median volume handled export, from U.S. No. 1 to U.S. No. 2. By exempting onions for export from being 182,148 and 174,437 fifty-pound Although this option may have taken the handling regulations, this rule will equivalents, respectively. In terms of care of the export market demands, it provide handlers additional flexibility production value, total revenues for the was rejected early in the discussion due in marketing onions of different grades 38 handlers were estimated to be $44.2 to the problems associated with trying and quality in various markets outside million, with average and median to market onions that grade less than of the U.S. This change is expected to revenues being $1.6 million and $1.12 U.S. No. 1 to U.S. consumers. Also help the South Texas onion industry million, respectively. briefly considered was the option of develop additional markets for its The South Texas onion industry is suspending the entire handling onions, while increasing returns to characterized by producers and regulation, either on a temporary basis producers and providing an increased handlers whose farming operations or indefinitely. The Committee also supply of onions to help satisfy a generally involve more than one rejected this option as being too extreme rapidly developing export market. commodity, and whose income from for the current situation. Currently, all handlers making onion farming operations is not exclusively In accordance with the Paperwork shipments for relief, charity, processing, dependent on the production of onions. Reduction Act of 1995 (44 U.S.C. or experimental purposes are required Alternative crops provide an Chapter 35), the information collection to apply for and obtain a Certificate of opportunity to utilize many of the same requirements that are contained in this Privilege from the Committee to make facilities and equipment not in use rule are currently approved by the such shipments. Once handlers are when the onion production season is Office of Management and Budget approved for such shipments, a Report complete. For this reason, typical onion (OMB), under OMB No. 0581–0178, of Special Purpose Onion Shipment producers and handlers either produce Vegetable and Specialty Crops. This rule form must be submitted to the multiple crops or alternate crops within will impose minimal additional Committee for each such onion a single year. reporting or recordkeeping shipment in order to ensure that the Based on the SBA’s definition of requirements, deemed to be shipments are in accordance with small entities, the Committee estimates insignificant, on both small and large Committee requirements. This action that all of the 38 handlers regulated by onion handlers that export onions. will allow all shipments to export the order would be considered small As with all Federal marketing order markets to also be exempt from grade, entities if only their onion revenues are programs, reports and forms are size, quality, and inspection considered. However, revenues from periodically reviewed to reduce requirements and will be tracked other farming enterprises could result in information requirements and through the use of the Report of Special a number of these handlers being above duplication by industry and public Purpose Onion Shipment form. the $6,500,000 annual receipt threshold. sector agencies. In addition, USDA has Initial Regulatory Flexibility Analysis All of the 114 producers may be not identified any relevant Federal rules Pursuant to the requirements set forth classified as small entities based on the that duplicate, overlap or conflict with in the Regulatory Flexibility Act (RFA), SBA definition if only their revenue this rule. the Agricultural Marketing Service from onions is considered. The AMS is committed to complying (AMS) has considered the economic This rule exempts onion export with the E-Government Act, to promote impact of this action on small entities. shipments from the grade, size, quality the use of the Internet and other Accordingly, AMS has prepared this and inspection requirements prescribed information technologies to provide initial regulatory flexibility analysis. under the South Texas onion marketing increased opportunities for citizen The purpose of the RFA is to fit order. To realize the exemption, access to Government information and regulatory actions to the scale of paragraphs (e) and (f) of § 959.322 are services, and for other purposes. business subject to such actions so that modified by adding the term ‘‘export’’ to The Committee’s meeting was widely small businesses will not be unduly or the list of authorized special purpose publicized throughout the South Texas disproportionately burdened. Marketing shipment categories. onion industry and all interested orders issued pursuant to the Act, and Section 959.52 of the order authorizes persons were invited to attend the the rules issued thereunder, are unique the issuance of regulations for grade, meeting and participate in Committee in that they are brought about through size, quality, maturity, pack, and deliberations. Like all Committee group action of essentially small entities container for any variety of onions meetings, the March 16, 2007, meeting acting on their own behalf. Thus, both grown in the production area. Section was a public meeting and all entities, statutes have small entity orientation 959.53 provides for the exemption from both large and small, were able to and compatibility. Small agricultural the handling regulations certain kinds of express their views on this issue. producers are defined by the Small onion shipments, including export. Furthermore, interested persons are Business Administration (SBA) (13 CFR The Committee anticipates that this invited to submit information on the 121.201) as those having annual receipts rule will not negatively impact small regulatory and informational impacts of of less than $750,000. Small agricultural businesses. This rule exempts onions this action on small businesses. service firms are defined as those with being shipped to export markets from A small business guide on complying annual receipts of less than $6,500,000. the order’s handling regulations, and with fruit, vegetable, and specialty crop There are approximately 114 thus should provide enhanced marketing agreements and orders may producers of onions in the production marketing opportunities for all handlers, be viewed at: http://www.ams.usda.gov/ area and approximately 38 handlers increased income for South Texas onion fv/moab.html. Any questions about the subject to regulation under the order. producers, and increased purchasing compliance guide should be sent to Jay Most of the handlers are vertically flexibility for foreign consumers. Guerber at the previously mentioned

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17362 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

address in the FOR FURTHER INFORMATION processing if handled in accordance the date and page number of this issue CONTACT section. with paragraph (f) of this section. of the Federal Register and will be This rule invites comments on the * * * * * made available for public inspection in exemption of onions for export from the (f) Safeguards. Each handler making the Office of the Docket Clerk during handling regulations prescribed under shipments of onions for charity, relief, regular business hours, or can be viewed the Texas onion marketing order. Any export, processing, or experimental at: http://www.regulations.gov. comments received will be considered purposes shall: FOR FURTHER INFORMATION CONTACT: Rose prior to finalization of this rule. * * * * * M. Aguayo, Marketing Specialist, or After consideration of all relevant Kurt J. Kimmel, Regional Manager, Dated: April 4, 2007. material presented, including the California Marketing Field Office, Committee’s recommendation, and Lloyd C. Day, Marketing Order Administration other information, it is found that this Administrator, Agricultural Marketing Branch, Fruit and Vegetable Programs, interim final rule, as hereinafter set Service. AMS, USDA; Telephone: (559) 487– forth, will tend to effectuate the [FR Doc. 07–1749 Filed 4–4–07; 4:27 pm] 5901; Fax: (559) 487–5906; or E-mail: declared policy of the Act. BILLING CODE 3410–02–P [email protected] or Pursuant to 5 U.S.C. 553, it is also [email protected]. Small businesses may request found and determined upon good cause DEPARTMENT OF AGRICULTURE that it is impracticable, unnecessary, information on complying with this and contrary to the public interest to Agricultural Marketing Service regulation by contacting Jay Guerber, give preliminary notice prior to putting Marketing Order Administration this rule into effect and that good cause 7 CFR Part 989 Branch, Fruit and Vegetable Programs, exists for not postponing the effective AMS, USDA, 1400 Independence date of this rule until 30 days after [Docket No. AMS–FV–07–0027; FV07–989– Avenue, SW., STOP 0237, Washington, publication in the Federal Register 1 IFR] DC 20250–0237; Telephone: (202) 720– because: (1) This rule relaxes the order’s 2491; Fax: (202) 720–8938; or E-mail: Raisins Produced From Grapes Grown [email protected]. regulatory requirements by exempting in California; Final Free and Reserve South Texas onions shipped to the Percentages for 2006–07 Crop Natural SUPPLEMENTARY INFORMATION: This rule export market from the order’s handling (sun-dried) Seedless Raisins is issued under Marketing Agreement regulations; (2) onion handlers are and Order No. 989, both as amended (7 aware of this recommendation and need AGENCY: Agricultural Marketing Service, CFR part 989), regulating the handling no additional time to comply with the USDA. of raisins produced from grapes grown relaxed requirements; (3) the shipping ACTION: Interim final rule with request in California, hereinafter referred to as season for South Texas onions started for comments. the ‘‘order.’’ The order is effective under around March 1, thus this rule should the Agricultural Marketing Agreement SUMMARY: be effective as soon as possible to ensure This rule establishes final Act of 1937, as amended (7 U.S.C. 601– that all handlers can take advantage of volume regulation percentages for 2006– 674), hereinafter referred to as the the relaxation for as much of the season 07 crop Natural (sun-dried) Seedless ‘‘Act.’’ as possible; and (4) this rule provides a (NS) raisins covered under the Federal The Department of Agriculture 60-day comment period, and any marketing order for California raisins (USDA) is issuing this rule in comments received will be considered (order). The order regulates the handling conformance with Executive Order prior to finalization of this rule. of raisins produced from grapes grown 12866. in California and is locally administered This rule has been reviewed under List of Subjects in 7 CFR Part 959 by the Raisin Administrative Committee Executive Order 12988, Civil Justice Onions, Marketing agreements, (Committee). The volume regulation Reform. Under the order provisions now Reporting and recordkeeping percentages are 90 percent free and 10 in effect, final free and reserve requirements. percent reserve. The percentages are percentages may be established for intended to help stabilize raisin I For the reasons set forth in the raisins acquired by handlers during the supplies and prices, and strengthen preamble, 7 CFR part 959 is amended as crop year. This rule establishes final free market conditions. follows: and reserve percentages for NS raisins DATES: Effective April 10, 2007. The for the 2006–07 crop year, which began PART 959—ONIONS GROWN IN volume regulation percentages apply to August 1, 2006, and ends July 31, 2007. SOUTH TEXAS acquisitions of NS raisins from the This rule will not preempt any State or 2006–07 crop until the reserve raisins local laws, regulations, or policies, I 1. The authority citation for 7 CFR from that crop are disposed of under the unless they present an irreconcilable part 959 continues to read as follows: marketing order. Comments received by conflict with this rule. Authority: 7 U.S.C. 601–674. June 8, 2007, will be considered prior to The Act provides that administrative issuance of a final rule. proceedings must be exhausted before I 2. Section 959.322 is amended by ADDRESSES: Interested persons are parties may file suit in court. Under revising paragraph (e)(1) and the invited to submit written comments section 608c(15)(A) of the Act, any introductory sentence of paragraph (f) to concerning this rule. Comments must be handler subject to an order may file read as follows: sent to the Docket Clerk, Marketing with USDA a petition stating that the * * * * * Order Administration Branch, Fruit and order, any provision of the order, or any (e) Special purpose shipments. (1) Vegetable Programs, AMS, USDA, 1400 obligation imposed in connection with The minimum grade, size, quality, and Independence Avenue, SW., STOP the order is not in accordance with law inspection requirements set forth in 0237, Washington, DC 20250–0237; Fax: and request a modification of the order paragraphs (a) through (c) of this section (202) 720–8938; or Internet: http:// or to be exempted therefrom. A handler shall not be applicable to shipments of www.regulations.gov. All comments is afforded the opportunity for a hearing onions for charity, relief, export, and should reference the docket number and on the petition. After the hearing USDA

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17363

would rule on the petition. The Act condition tons, whichever is higher. For Seedless, Golden Seedless, and Other provides that the district court of the all other varietal types, the desirable Seedless raisins. It was ultimately United States in any district in which carryout shall equal the total shipments determined at Committee meetings held the handler is an inhabitant, or has his of free tonnage during August, on November 21, 2006, and January 23, or her principal place of business, has September and one-half of October for 2007, that volume regulation was only jurisdiction to review USDA’s ruling on each of the past 5 crop years, converted warranted for NS raisins. As in past the petition, provided an action is filed to a natural condition basis, dropping seasons, the Committee submitted its not later than 20 days after the date of the high and low figures, and dividing marketing policy to USDA for review. the entry of the ruling. the remaining sum by three. In This rule establishes final volume accordance with these provisions, the Computation of Final Volume regulation percentages for 2006–07 crop Committee computed and announced Regulation Percentages NS raisins covered under the order. The the 2006–07 trade demand for NS Pursuant to § 989.54(c), at its volume regulation percentages are 90 raisins at 219,870 tons as shown below. November 21, 2006, meeting, the percent free and 10 percent reserve. Free Committee announced interim tonnage raisins may be sold by handlers COMPUTED TRADE DEMANDS percentages for NS raisins to release to any market. Reserve raisins must be [Natural condition tons] slightly less than the full trade demand. held in a pool for the account of the Based on a revised NS crop estimate of Committee and are disposed of through NS raisins 244,300 tons (down from the October various programs authorized under the estimate of 259,557 tons), interim order. For example, reserve raisins may Prior year’s shipments ...... 301,460 percentages for NS raisins were be sold by the Committee to handlers for Multiplied by 90 percent ...... 0.90 announced at 89.75 percent free and Equals adjusted base ...... 271,314 free use or to replace part of the free 10.25 percent reserve. tonnage raisins they exported; used in Minus carryin inventory ...... 111,444 Plus desirable carryout ...... 60,000 Pursuant to § 989.54(d), the diversion programs; carried over as a Equals computed NS trade De- Committee also recommended final hedge against a short crop; or disposed mand ...... 219,870 percentages at its November 21, 2006, of in other outlets not competitive with meeting to release the full trade those for free tonnage raisins, such as Computation of Preliminary Volume demands for NS raisins. Final government purchase, distilleries, or Regulation Percentages percentages were recommended at 90 animal feed. percent free and 10 percent reserve. The Section 989.54(b) of the order requires The volume regulation percentages Committee’s calculations and that the Committee announce, on or are intended to help stabilize raisin determinations to arrive at final before October 5, preliminary crop supplies and prices, and strengthen percentages for NS raisins are shown in estimates and determine whether market conditions. The Committee the table below: unanimously recommended final volume regulation is warranted for the varietal types for which it computed a percentages for NS raisins on November FINAL VOLUME REGULATION 21, 2006, and on January 23, 2007. trade demand. That section allows the Committee to extend the October 5 date PERCENTAGES Computation of Trade Demands up to 5 business days if warranted by a [Natural condition tons] Section 989.54 of the order prescribes late crop. procedures and time frames to be The Committee met on September 6, NS raisins followed in establishing volume 2006, and announced preliminary Trade demand ...... 219,870 regulation. This includes methodology percentages for Zante Currant (ZC) Divided by crop estimate ...... 244,300 used to calculate percentages. Pursuant raisins. They met again on October 4, Equals the free percentage ...... 90.00 to § 989.54(a) of the order, the 2006, and announced preliminary 100 minus free percentage Committee met on August 15, 2006, to percentages and a preliminary crop equals the reserve percent- review shipment and inventory data, estimate for NS raisins of 259,557 tons, age ...... 10.00 and other matters relating to the which is about 21 percent lower than supplies of raisins of all varietal types. the 10-year average of 327,410 tons. NS By the week ending February 3, 2007, The Committee computed a trade raisins are the major varietal type of data showed that deliveries of NS demand for each varietal type for which California raisin. Adding the carryin raisins exceeded the Committee’s crop a free tonnage percentage might be inventory of 111,444 tons to the estimate of 244,300 tons. By that date recommended. Trade demand is 259,557-ton crop estimate resulted in a deliveries totaled 262,477 tons. Thus, computed using a formula specified in total available supply of 371,001 tons, deliveries are likely to be at least 18,000 the order and, for each varietal type, is which was significantly higher (169 tons higher than estimated by the equal to 90 percent of the prior year’s percent) than the 219,870-ton trade Committee during the fall. Based on shipments of free tonnage and reserve demand. Thus, the Committee this, the Committee’s recommendation tonnage raisins sold for free use into all determined that volume regulation for will provide handlers 6.2 percent more market outlets, adjusted by subtracting NS raisins was warranted. The raisins than would be provided if a the carryin on August 1 of the current Committee announced preliminary free 262,477 ton estimate had been used, but crop year, and adding the desirable and reserve percentages for NS raisins, the additional tonnage is not expected carryout at the end of that crop year. As which released 85 percent of the to result in disorderly marketing specified in § 989.154(a), the desirable computed trade demand since a conditions. carryout for NS raisins shall equal the minimum field price (price paid by In addition, USDA’s ‘‘Guidelines for total shipments of free tonnage during handlers to producers for their free Fruit, Vegetable, and Specialty Crop August and September for each of the tonnage raisins) had been established. Marketing Orders’’ (Guidelines) specify past 5 crop years, converted to a natural The preliminary percentages were 72 that 110 percent of recent years’ sales condition basis, dropping the high and percent free and 28 percent reserve. should be made available to primary low figures, and dividing the remaining In addition, preliminary percentages markets each season for marketing sum by three, or 60,000 natural were also announced for Dipped orders utilizing reserve pool authority.

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17364 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

This goal will be met for NS raisins by behalf. Thus, both statutes have small market needs, and strengthening market the establishment of final percentages, entity orientation and compatibility. conditions. The volume regulation which release 100 percent of the trade There are approximately 20 handlers procedures fully supply the domestic demand and the offer of additional of California raisins who are subject to and export markets, provide for market reserve raisins for sale to handlers under regulation under the order and expansion, and help reduce the burden the ‘‘10 plus 10 offers.’’ As specified in approximately 4,500 raisin producers in of oversupplies in the domestic market. § 989.54(g), the 10 plus 10 offers are two the regulated area. Small agricultural Raisin grapes are a perennial crop, so offers of reserve pool raisins which are firms are defined by the Small Business production in any year is dependent made available to handlers during each Administration (SBA) (13 CFR 121.201) upon plantings made in earlier years. season. For each such offer, a quantity as those having annual receipts of less The sun-drying method of producing of reserve raisins equal to 10 percent of than $6,500,000, and small agricultural raisins involves considerable risk the prior year’s shipments is made producers are defined as those having because of variable weather patterns. available for free use. Handlers may sell annual receipts of less than $750,000. Even though the product and the their 10 plus 10 raisins to any market. Eleven of the 20 handlers subject to industry are viewed as mature, the For NS raisins, the first 10 plus 10 regulation have annual sales estimated industry has experienced considerable offer was made in February 2007. A to be at least $6,500,000, and the change over the last several decades. total of 30,146 tons was made available remaining 9 handlers have sales less Before the 1975–76 crop year, more than to raisin handlers. The second 10 plus than $6,500,000. No more than 9 50 percent of the raisins were packed 10 offer of 20,923 tons (the balance handlers and a majority of producers of and sold directly to consumers. Now, remaining in the reserve pool) will be California raisins may be classified as about 64 percent of raisins are sold in made available to handlers by July 31, small entities. bulk. This means that raisins are now 2007. Adding the total figure of 51,648 Since 1949, the California raisin sold to consumers mostly as an tons of 10 plus 10 raisins to the 219,870 industry has operated under a Federal ingredient in another product such as marketing order. The order contains cereal and baked goods. In addition, for ton trade demand figure, plus the authority to, among other things, limit a few years in the early 1970’s, over 50 111,444 tons of 2005–06 carryin NS the portion of a given year’s crop that percent of the raisin grapes were sold to inventory, equates to 382,962 tons of can be marketed freely in any outlet by the wine market for crushing. Since natural condition raisins, or 360,819 raisin handlers. This volume control then, the percent of raisin-variety grapes tons of packed raisins, that are available mechanism is used to stabilize supplies sold to the wine industry has decreased. to handlers for free use or primary and prices and strengthen market California’s grapes are classified into markets. This is about 127 percent of the conditions. If the primary market (the three groups—table grapes, wine grapes, quantity of NS raisins shipped during normal domestic market) is over- and raisin-variety grapes. Raisin-variety the 2005–06 crop year (301,460 natural supplied with raisins, grower prices grapes are the most versatile of the three condition tons or 284,030 packed tons). decline substantially. types. They can be marketed as fresh In addition to the 10 plus 10 offers, Pursuant to § 989.54(d) of the order, grapes, crushed for juice in the § 989.67(j) of the order provides this rule establishes final volume production of wine or juice concentrate, authority for sales of reserve raisins to regulation percentages for 2006–07 crop or dried into raisins. Annual handlers under certain conditions such NS raisins. The volume regulation fluctuations in the fresh grape, wine, as a national emergency, crop failure, percentages are 90 percent free and 10 and concentrate markets, as well as change in economic or marketing percent reserve. Free tonnage raisins weather-related factors, cause conditions, or if free tonnage shipments may be sold by handlers to any market. fluctuations in raisin supply. This type in the current crop year exceed Reserve raisins must be held in a pool of situation introduces a certain amount shipments during a comparable period for the account of the Committee and of variability into the raisin market. of the prior crop year. Such reserve are disposed of through certain Although the size of the crop for raisin- raisins may be sold by handlers to any programs authorized under the order. variety grapes may be known, the market. When implemented, the Volume regulation is warranted this amount dried for raisins depends on the additional offers of reserve raisins make season because the revised crop demand for crushing. This makes the even more raisins available to primary estimate of 244,300 tons combined with marketing of raisins a more difficult markets, which is consistent with the carryin inventory of 111,444 tons task. These supply fluctuations can USDA’s Guidelines. results in a total available supply of result in producer price instability and Initial Regulatory Flexibility Analysis 355,744 tons, which is about 162 disorderly market conditions. percent higher than the 219,870 ton Volume regulation is helpful to the Pursuant to requirements set forth in trade demand. raisin industry because it lessens the the Regulatory Flexibility Act (RFA), the Handlers provide their best estimate impact of such fluctuations and Agricultural Marketing Service (AMS) on the amount of tonnage growers will contributes to orderly marketing. For has considered the economic impact of deliver each crop year. By the week example, producer prices for NS raisins this action on small entities. ending February 3, 2007, data showed remained fairly steady between the Accordingly, AMS has prepared this that deliveries of NS raisins exceeded 1993–94 through the 1997–98 seasons, initial regulatory flexibility analysis. the Committee’s crop estimate of although production varied. As shown The purpose of the RFA is to fit 244,300 tons by 18,177 tons. The higher in the table below, during those years, regulatory actions to the scale of deliveries further warrant volume production varied from a low of 272,063 business subject to such actions in order regulation, as the total available supply tons in 1996–97 to a high of 387,007 that small businesses will not be unduly is currently expected to be 373,921 tons, tons in 1993–94. or disproportionately burdened. which is about 170 percent higher than According to Committee data, the Marketing orders issued pursuant to the the 219,870 ton trade demand. total producer return per ton during Act, and rules issued thereunder, are The volume regulation procedures those years, which includes proceeds unique in that they are brought about have helped the industry address its from both free tonnage plus reserve pool through group action of essentially marketing problems by keeping supplies raisins, has varied from a low of $904.60 small entities acting on their own in balance with domestic and export in 1993–94 to a high of $1,049.20 in

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17365

1996–97. Total producer prices for the Record large crops followed and demand stagnated. However, the 1998–99 and 1999–2000 seasons producer prices dropped dramatically producer prices were higher for the increased significantly due to back-to- for the 2000–01 through 2003–04 crop 2004–05 and the 2005–06 crop years, as back short crops during those years. years, as inventories grew while noted below:

NATURAL SEEDLESS PRODUCER PRICES

Deliveries Crop year (natural condition Producer prices tons) (per ton)

2005–06 ...... 319,126 1 $998.25 2004–05 ...... 265,262 2 1210.00 2003–04 ...... 296,864 1 567.00 2002–03 ...... 388,010 1 491.20 2001–02 ...... 377,328 650.94 2000–01 ...... 432,616 603.36 1999–2000 ...... 299,910 1,211.25 1998–99 ...... 240,469 2 1,290.00 1997–98 ...... 382,448 946.52 1996–97 ...... 272,063 1,049.20 1995–96 ...... 325,911 1,007.19 1994–95 ...... 378,427 928.27 1993–94 ...... 387,007 904.60 1 Return-to-date, reserve pool still open. 2 No volume regulation.

There are essentially two broad the 2002–03 crop year, 296,864 for the showed that deliveries of NS raisins markets for raisins—domestic and 2003–04 crop year, and 265,262 tons for were at 262,477 tons. The 10 percent export. Domestic shipments have been the 2004–05 crop year. After three crop reserve would limit the total free generally increasing in recent years. years of high production and a large tonnage to 236,229 natural condition Although domestic shipments decreased 2001–02 carryin inventory, the industry tons (.90 × the 262,477 ton crop). from a high of 204,805 packed tons diverted raisin production to other uses Adding the 236,229 ton figure with the during the 1990–91 crop year to a low or removed bearing vines. Diversions/ carryin of 111,444 tons, plus the 51,648 of 156,325 packed tons in 1999–2000, removals totaled 41,000 acres in 2001; tons of reserve raisins that are available they increased from 174,117 packed 27,000 acres in 2002; and 15,000 acres for purchase and release to handlers tons during the 2000–01 crop year to of vines in 2003. These actions resulted during the 2006–07 crop year under the 186,358 tons during the 2005–06 crop in declining deliveries of 296,864 tons 10 plus 10 offers, would make the total year. Export shipments ranged from a for the 2003–04 crop year and 265,262 free supply equal to 399,321 natural high of 107,931 packed tons in 1991–92 tons for the 2004–05 crop year. condition tons. to a low of 91,599 packed tons in the Although deliveries increased in 2005– To assess the impact that volume 1999–2000 crop year. Since that time, 06 to 319,126 tons, this may have been control has on the prices producers export shipments increased to 106,755 because fewer growers opted to contract receive for their product, a price tons of raisins during the 2004–05 crop with wineries, as raisin variety grapes dependent econometric model was year, but fell to 97,672 tons in 2005–06. crushed in 2005–06 decreased by estimated. This model is used to The per capita consumption of raisins 161,000 green tons, the equivalent of estimate producer prices both with and has declined from 2.07 pounds in 1988 over 40,000 tons of raisins. without the use of volume control. The to 1.44 pounds in 2005. This decrease The order permits the industry to volume control used by the raisin is consistent with the decrease in the exercise supply control provisions, industry would result in decreased per capita consumption of dried fruits which allow for the establishment of shipments to primary markets. Without in general, which is due to the free and reserve percentages, and volume control the primary market increasing availability of most types of establishment of a reserve pool. One of (domestic) could be over-supplied fresh fruit throughout the year. the primary purposes of establishing resulting in lower producer prices and While the overall demand for raisins free and reserve percentages is to the build-up of unwanted inventories. has increased in two out of the last three equilibrate supply and demand. If raisin With volume controls, producer years (as reflected in increased markets are over-supplied with product, prices are estimated to be approximately commercial shipments), production has producer prices will decline. $65 per ton higher than without volume been decreasing. Deliveries of NS dried Raisins are generally marketed at controls. This price increase is raisins from producers to handlers relatively lower price levels in the more beneficial to all producers regardless of reached an all-time high of 432,616 tons elastic export market than in the more size and enhances producers’ total in the 2000–01 crop year. This large inelastic domestic market. This results revenues in comparison to no volume crop was preceded by two short crop in a larger volume of raisins being control. Establishing a reserve allows years; deliveries were 240,469 tons in marketed and enhances producer the industry to help stabilize supplies in 1998–99 and 299,910 tons in 1999– returns. In addition, this system allows both domestic and export markets, 2000. Deliveries for the 2000–01 crop the U.S. raisin industry to be more while improving returns to producers. year soared to a record level because of competitive in export markets. Free and reserve percentages are increased bearing acreage and yields. The reserve percentage limits what established by varietal type, and usually Deliveries for the 2001–02 crop year handlers can market as free tonnage. in years when the supply exceeds the were at 377,328 tons, 388,010 tons for Data available as of February 7, 2007, trade demand by a large enough margin

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17366 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

that the Committee believes volume duplication by industry and public submitted by the Committee and other regulation is necessary to maintain sector agencies. available information, it is hereby found market stability. Accordingly, in The AMS is committed to complying that this rule, as hereinafter set forth, assessing whether to apply volume with the E-Government Act, to promote will tend to effectuate the declared regulation or, as an alternative, not to the use of the Internet and other policy of the Act. apply such regulation, it was information technologies to provide Pursuant to 5 U.S.C. 553, it is also determined that volume regulation is increased opportunities for citizen found and determined upon good cause warranted this season for only one of access to Government information and that it is impracticable, unnecessary, the nine raisin varietal types defined services, and for other purposes. and contrary to the public interest to under the order. In addition, USDA has not identified give preliminary notice prior to putting any relevant Federal rules that this rule into effect, and that good cause The free and reserve percentages duplicate, overlap, or conflict with this established by this rule release the full exists for not postponing the effective rule. date of this rule until 30 days after trade demand and apply uniformly to Further, the Committee’s meetings all handlers in the industry, regardless publication in the Federal Register were widely publicized throughout the because: (1) The relevant provisions of of size. For NS raisins, with the raisin industry and all interested exception of the 1998–99 and 2004–05 this part require that the percentages persons were invited to attend the designated herein for the 2006–07 crop crop years, small and large raisin meetings and participate in the year apply to all NS raisins acquired producers and handlers have been Committee’s deliberations. Like all from the beginning of that crop year; (2) operating under volume regulation Committee meetings, the August 15, handlers are currently marketing their percentages every year since 1983–84. 2006, September 6, 2006, October 4, 2006–07 crop NS raisins and this action There are no known additional costs 2006, November 21, 2006, and January should be taken promptly to achieve the incurred by small handlers that are not 23, 2007, meetings were public meetings intended purpose of making the full incurred by large handlers. While the and all entities, both large and small, trade demand available to handlers; (3) level of benefits of this rulemaking are were able to express their views on this handlers are aware of this action, which difficult to quantify, the stabilizing issue. was unanimously recommended at a effects of the volume regulations impact Also, the Committee has a number of public meeting, and need no additional small and large handlers positively by appointed subcommittees to review time to comply with these percentages; helping them maintain and expand certain issues and make and (4) this interim final rule provides markets even though raisin supplies recommendations to the Committee. a 60-day comment period, and all fluctuate widely from season to season. The Committee’s Reserve Sales and comments timely received will be Likewise, price stability positively Marketing Subcommittee met on August considered prior to finalization of this impacts small and large producers by 15, 2006, September 6, 2006, October 4, rule. allowing them to better anticipate the 2006, November 21, 2006, and January revenues their raisins will generate. 23, 2007, and discussed these issues in List of Subjects in 7 CFR Part 989 detail. Those meetings were also public There are some reporting, meetings and both large and small Grapes, Marketing agreements, recordkeeping and other compliance entities were able to participate and Raisins, Reporting and recordkeeping requirements under the order. The express their views. Finally, interested requirements. reporting and recordkeeping burdens persons are invited to submit I For the reasons set forth in the are necessary for compliance purposes information on the regulatory and preamble, 7 CFR part 989 is amended as and for developing statistical data for informational impacts of this action on follows: maintenance of the program. The small businesses. requirements are the same as those A small business guide on complying PART 989—RAISINS PRODUCED applied in past seasons. Thus, this with fruit, vegetable, and specialty crop FROM GRAPES GROWN IN action imposes no additional reporting marketing agreements and orders may CALIFORNIA or recordkeeping requirements on either be viewed at: http://www.ams.usda.gov/ I 1. The authority citation for 7 CFR small or large raisin handlers. The forms fv/moab.html. Any questions about the part 989 continues to read as follows: require information which is readily compliance guide should be sent to Jay available from handler records and Guerber at the previously mentioned Authority: 7 U.S.C. 601–674. which can be provided without data address in the FOR FURTHER INFORMATION I 2. Section 989.257 is revised to read processing equipment or trained CONTACT section. as follows: statistical staff. The information This rule invites comments on the collection and recordkeeping establishment of final volume regulation § 989.257 Final free and reserve requirements have been previously percentages for 2006–07 crop NS raisins percentages. approved by the Office of Management covered under the order. Any comments (a) The final percentages for the and Budget (OMB) under OMB Control received will be considered prior to respective varietal type(s) of raisins No. 0581–0178. As with all Federal finalization of this rule. acquired by handlers during the crop marketing order programs, reports and After consideration of all relevant year beginning August 1, which shall be forms are periodically reviewed to material presented, including the free tonnage and reserve tonnage, reduce information requirements and information and recommendation respectively, are designated as follows:

Free Reserve Crop year Varietal type percentage percentage

2003–2004 ...... Natural (sun-dried) Seedless ...... 70 30 2005–2006 ...... Natural (sun-dried) Seedless ...... 82.50 17 .50 2006–2007 ...... Natural (sun-dried) Seedless ...... 90 10

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17367

(b) The volume regulation percentages FOR FURTHER INFORMATION CONTACT: addresses how to ensure the accurate apply to acquisitions of the varietal type Delorice P. Ford, Agency Chief FOIA and secure maintenance of records on of raisins for the applicable crop year Officer, (202) 401–8203. individuals, and how to report new until the reserve raisins for that crop are SUPPLEMENTARY INFORMATION: SBA is systems of records. disposed of under the marketing order. revising Subpart B of Part 102 to include Section 102.23—Publication in the Dated: April 3, 2007. more in-depth information about Federal Register Notices of systems of records explains that SBA will publish Lloyd C. Day, Privacy Act (PA) responsibilities, and to further ensure the security and notice of new or modified systems of Administrator, Agricultural Marketing records and routine uses in the Federal Service. confidentiality of the Agency’s personally identifiable records, Register. This section is not currently [FR Doc. E7–6530 Filed 4–6–07; 8:45 am] including the standards for disclosure of included in SBA rules. BILLING CODE 3410–02–P information under computer matching Section 102.24—Requests for access programs. This rule will further assist to records describes procedures for the SBA in focusing on the four basic individuals on how and where to make requests for access to records under the SMALL BUSINESS ADMINISTRATION policy objectives of the Privacy Act. Those objectives are: the restriction of PA. This section is similar to current 13 CFR Part 102 disclosure of personally identifiable SBA rule at 13 CFR 102.34. information; individuals’ increased right Section 102.25—Responsibility for responding to requests for access to RIN 3245–AF20 of access to records maintained on them; individuals’ right to seek records provides a description of Record Disclosure and Privacy amendment of records maintained on responsibilities for Agency respondents them; and the establishment of fair to requests for access to records, while AGENCY: U.S. Small Business information practices. SBA is § 102.26—Responses to requests for Administration (SBA). substantially revising this rule to access to record describes what to ACTION: Direct Final Rule. present it in a statement and narrative include in those responses. Current SBA format rather than question and answer, rule at 13 CFR 102.36 provides similar SUMMARY: This rule updates the U.S. which conforms to the current writing information. Small Business Administration’s (SBA) style of Subpart A. As a result, the New § 102.27—Appeals from denials regulations implementing the Privacy headings and section numbers are of requests for access to records Act of 1974. This rule ensures the different than current SBA rule 13 CFR provides procedures for individuals on security and confidentiality of part 102, Subpart B. how and where to make appeals from personally identifiable records and SBA is publishing this rule as a direct denials of requests for access to records. protects against hazards to their final rule because it believes the rule is Section 102.28—Requests for integrity. Specifically, Subpart B of the non-controversial since it merely amendment or correction of records, Privacy Act regulations is revised to enforces the basic policy objectives of provides a description of how and include SBA’s procedures for the Privacy Act and does not present where to make requests and appeals for maintaining appropriate administrative, novel or unusual policies or practices. amendment or correction of records, technical and physical safeguards to Because the rule follows routine, including how to file Statements of ensure the security of the records. Also standard government-wide Privacy Act Disagreement if appeals under this included are Privacy Act standards of practices, SBA believes that this direct section are denied in whole or part. conduct for Agency employees; training final rule will not elicit any significant Section 102.29—Requests for an and reporting requirements pursuant to adverse comments. However, if such accounting of record disclosures Privacy Act guidelines and the Office of comments are received, SBA will describes procedures for individuals to Management and Budget (OMB) publish a timely notice of withdrawal in make requests and appeals for an guidance; and the Privacy Act the Federal Register. accounting of records disclosures. responsibilities of the Chief, Freedom of Section 102.30—Preservation of Section-by Section Analysis Information/Privacy Acts (FOI/PA) records this section describes how SBA Office. General provisions, § 102.20, provides will implement the record retention an overview of the scope of regulations requirements of Title 44 of the United DATES: This rule is effective June 8, 2007 contained in Subpart B as well as States Code or the National Archives without further action, unless definitions for terms that are not and Records Administration’s General significant adverse comment is received previously defined in Part 102. Records Schedule 14. by May 9, 2007. If significant adverse New § 102.21 Agency officials Section 102.31—Fees this section comment is received, the SBA will responsible for the Privacy Act, states that for PA matters, SBA charges publish a timely withdrawal of the rule describes the various Agency personnel only for duplication of records and all in the Federal Register. responsible for the PA and a listing of fees under $25 are waived. ADDRESSES: You may submit comments, their duties. Some of this information is Section 102.32—Notice of court- identified by RIN 3245–AF20, by any of currently included in SBA PA rules at ordered and emergency disclosures this the following methods: (1) Federal 13 CFR 102.29 and 102.32. section explains SBA’s compliance with rulemaking portal at http:// Section 102.22 Requirements relating court-ordered and emergency www.regulations.gov; (2) e-mail: to systems of records, this section disclosures. SBA will notify individuals [email protected], include RIN expands current SBA PA rules at by mailing a notice to their last known number 3245–AF20 in the subject line §§ 102.24 and 102.25 and establishes address. of the message; (3) mail to: Delorice P. parameters for the type of information Section 102.33—Security of systems Ford, Agency Chief FOIA Officer, 409 that SBA may collect from an of records this section requires SBA 3rd Street, SW., Mail Code: 2441, individual, including the prohibition on offices that maintain PA records to Washington, DC 20416; and (4) Hand maintaining records concerning First establish controls to protect records on Delivery/Courier: 409 3rd Street, SW., Amendment rights in certain individuals and ensure that record Washington, DC 20416. circumstances. Section 102.22 also access is limited to only those

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17368 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

individuals who must have access to the approximate number of records, would not have retroactive or records to perform their duties. estimate of savings, procedures for preemptive effect. Section 102.34—Contracts for the individualized notice, information Executive Order 13132 operation of record systems this section verification, record retention and establishes that SBA contractors are security, prohibitions on duplication This rule would not have substantial subject to the PA and this rule. The and re-disclosure, assessments on direct effects on the States, on the contractor and its employees are record accuracy, and record access by relationship between the national considered SBA employees during the the Comptroller General. Copies of all government and the States, or on the contract and can be subject to the matching agreements must be provided distribution of power and sanctions of the PA. to appropriate Congressional responsibilities among the various Section 102.35—Use and collection of committees. levels of government. Therefore, for Social Security Numbers under this purposes of Executive Order 13132, This section also establishes a Data section, individuals may not be SBA has determined that this rule does Integrity Board to oversee and negatively affected if they refuse to not have sufficient federalism coordinate the matching programs, provide their social security numbers, implications to warrant the preparation approve and maintain all written unless such numbers are required under of a Federalism Assessment. agreements, and if OMB requests, a statute or regulation adopted prior to compile a report on SBA’s matching Paperwork Reduction Act 1975, or the collection in general is activities that will be available to the authorized by statute. Individuals must For the purpose of the Paperwork be informed whether submitting the public. Finally, this section sets forth Reduction Act, 44 U.S.C. Ch. 35, SBA social security number is mandatory or the process for filing an appeal with has determined that this rule will not voluntary; the authority for collecting it; OMB of any matching agreement the impose any new reporting or record and the purpose for which it will be Data Integrity Board disapproves. OMB keeping requirements. may approve such a matching used. Regulatory Flexibility Act Section 102.36—Privacy Act agreement, if it finds that the program standards of conduct this section will be consistent with all applicable The Regulatory Flexibility Act (RFA) requires SBA to inform its employees legal, regulatory and policy requires administrative agencies to how the Agency enforces PA provisions, requirements, is cost-effective and is in consider the effect of their actions on including civil liability and criminal the public interest. If the Board and small entities, small non-profit penalty provisions. The section sets OMB disapprove a matching program enterprises, and small local forth standards for collecting, proposed by OIG, the IG may report governments. The RFA requires maintaining, accessing, or disclosing such disapproval to the Administrator agencies to prepare an analysis which information in a system of records, in and to Congress. describes the impact of each rule on order to comply with those standards. Section 102.41—Other provisions this such entities. However, in lieu of Section 102.37—Training section explains that SBA personnel preparing an analysis, section 605 of the requirements according to this section records are maintained in accordance RFA allows an agency to certify that the all SBA employees with PA duties must with Office of Personnel Management rulemaking is not expected to have a periodically attend Agency PA training. regulations, describes the conditions for significant economic impact on a Section 102. 38—Other rights and disclosing an individual’s medical substantial number of small entities. services this section limits the rights of records, and notifies individuals that This rule concerns the rights of persons to access any record they are SBA will not profit from the sale of an individuals under the Privacy Act and not entitled to under the PA. individual’s name or address. outlines the responsibilities of the Section 102.39—SBA’s Exempt Agency to ensure that information it Privacy Act Systems of Records this Compliance With Executive Orders collects on those individuals is used section identifies the systems of records 12866, 12988, and 13132, the and maintained in a manner that that are exempt from disclosure and the Regulatory Flexibility Act (5 U.S.C. ensures its confidentiality. An basis for their exemption. In general 601–612), and the Paperwork individual is not a small entity as such systems contain Office of Inspector Reduction Act (44 U.S.C. Ch. 35) defined in the RFA. Furthermore, the General (OIG) investigatory materials, Executive Order 12866 Privacy Act does not concern small Equal Employment Opportunity entities. Accordingly, SBA certifies that records, personnel records, and The Office of Management and Budget this rule will not have a significant litigation records that contain has determined that this rule does not economic impact on a substantial personally identifiable criminal, constitute a significant regulatory action number of small entities. within the meaning of Executive Order investigative, and financial information. List of Subjects in 13 CFR Part 102 The exemption of these systems will 12866. This rule merely makes SBA’s help protect the investigative process, Privacy Act program more compliant Freedom of information, Privacy. information sources, and classified with current law and facilitates greater I For the reasons stated in the preamble, information. public understanding of why personal the Small Business Administration Section 102.40—Computer matching information is collected, how that amends 13 CFR Chapter I, part 102, as agreements this section establishes that information will be used and shared, follows: SBA may not disclose information on an how it may be accessed, and securely PART 102—RECORD DISCLOSURE individual for use in a computer stored. AND PRIVACY matching program unless the Agency Executive Order 12988 has entered into a written agreement I 1. The authority citation for part 102 governing the use of the information This rule meets the applicable is revised to read as follows: with the recipient of such information. standards set forth in §§ 3(a) and Authority: 5 U.S.C. 301, 552, 552a; 31 Among other things, matching (3)(b)(2) of Executive Order 12988, to U.S.C. 9701; 44 U.S.C. 3501, et seq., E.O. agreements must specify the purpose, minimize litigation, eliminate 12600, 52 FR 23781, 3 CFR, 187 Comp., p. legal authority, description and ambiguity, and reduce burden. This rule 235.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17369

I 2. Revise subpart B of part 102 to read (1) Agency means the U.S. Small (12) Requester is an individual who as follows: Business Administration (SBA) and makes a request for access, a request for includes all of its offices wherever amendment or correction, or a request Subpart B—Protection of Privacy and located; for an accounting under the Privacy Act; Access to Individual Records Under (2) Employee means any employee of and the Privacy Act of 1974 the SBA, regardless of grade, status, (13) Authority to request records for a Sec. category or place of employment; law enforcement purpose means that the 102.20 General provisions. (3) Individual means a citizen of the head of an Agency or a United States 102.21 Agency officials responsible for the United States or an alien lawfully Attorney, or either’s designee, is Privacy Act of 1974. admitted for permanent residence. This authorized to make written requests 102.22 Requirements relating to systems of term shall not encompass under subsection (b)(7) of the Privacy records. entrepreneurial enterprises (e.g. sole Act for records maintained by other 102.23 Publication in the Federal proprietors, partnerships, corporations, agencies that are necessary to carry out Register—Notices of systems of records. or other forms of business entities); an authorized law enforcement activity. 102.24 Requests for access to records. (4) Maintain includes maintain, 102.25 Responsibility for responding to § 102.21 Agency employees responsible requests for access to records. collect, use, or disseminate; for the Privacy Act of 1974. 102.26 Responses to requests for access to (5) Record means any item, collection, records. or grouping of information about an (a) Program/Support Office Head is 102.27 Appeals from denials of requests for individual that is maintained by the the SBA employee in each field office access to records. SBA, including, but not limited to and major program and support area 102.28 Requests for amendment or education, financial transactions, responsible for implementing and correction of records. medical history, and criminal or overseeing this regulation in that office. 102.29 Requests for an accounting of record employment history and that contains (b) Privacy Act Systems Manager disclosures. (PASM) is the designated SBA employee 102.30 Preservation of records. the individual’s name, or an identifying number, symbol, or other identifying in each office responsible for the 102.31 Fees. development and management of any 102.32 Notice of court-ordered and particular assigned to the individual emergency disclosures. such as a finger or voice print or Privacy Act systems of records in that 102.33 Security of systems of records. photograph; office. (c) Senior Agency Official for Privacy 102.34 Contracts for the operation of record (6) System of records means a group is SBA’s Chief Information Officer (CIO) systems. of any records under the control of SBA 102.35 Use and collection of Social Security who has overall responsibility and from which information is retrieved by Numbers. accountability for ensuring the SBA’s the name of the individual or by an 102.36 Privacy Act standards of conduct. implementation of information privacy identifying number, symbol, or other 102.37 Training requirements. protections, including the SBA’s full identifying particular assigned to the 102.38 Other rights and services. compliance with Federal laws, 102.39 SBA’s exempt Privacy Act systems individual; regulations, and policies relating to of records. (7) Statistical record means a record information privacy such as the Privacy 102.40 Computer matching. in a system of records maintained for Act and the E-Government Act of 2002. 102.41 Other provisions. statistical research or reporting purposes (d) Chief, Freedom of Information/ only and not used in whole or in part Subpart B—Protection of Privacy and Privacy Acts (FOI/PA) Office oversees in making any determination about an Access to Individual Records Under and implements the record access, identifiable individual; the Privacy Act of 1974 amendment, and correction provisions (8) Routine use means, with respect to of the Privacy Act. § 102.20 General provisions. the disclosure of a record, the use of (a) Purpose and scope. This subpart such record for a purpose which is § 102.22 Requirements relating to systems implements the provisions of the compatible with the purpose for which of records. Privacy Act of 1974, 5 U.S.C. 552a. it was collected; (a) In general. Each SBA office shall, These regulations apply to all records (9) Request for access to a record in accordance with the Privacy Act: which are contained in systems of means a request made under Privacy (1) Maintain in its records only such records maintained by the U.S. Small Act subsection (d)(1) allowing an information about an individual as is Business Administration (SBA) and that individual to gain access to his or her relevant and necessary to accomplish a are retrieved by an individual’s name or record or to any information pertaining purpose of the Agency required to be personal identifier. These regulations to him or her which is contained in a accomplished by a statute or by set forth the procedures by which system of records; Executive Order of the President; individuals may request access to (10) Request for amendment or (2) Collect information to the greatest records about themselves, request correction of a record means a request extent practicable directly from the amendment or correction of those made under Privacy Act subsection subject individual when the information records, and request an accounting of (d)(2), permitting an individual to may affect an individual’s rights, disclosures of those records by the SBA. request amendment or correction of a benefits, and privileges under Federal These regulations also set forth the record that he or she believes is not programs; requirements applicable to SBA accurate, relevant, timely, or complete; (b) Requests for information from employees maintaining, collecting, (11) Request for an accounting means individuals. If a form is being used to using or disseminating records a request made under Privacy Act collect information from individuals, pertaining to individuals. This subpart subsection (c)(3) allowing an individual either the form used to collect the applies to SBA and all of its offices and to request an accounting of any information, or a separate form that can is mandatory for use by all SBA disclosure to any SBA officers and be retained by the individual, must state employees. employees who have a need for the the following: (b) Definitions. As used in this record in the performance of their (1) The authority (whether granted by subpart: duties; statute, or by Executive Order of the

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17370 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

President) which authorizes the (ii) PASMs, with the approval of the (b) Notice of new or modified routine solicitation of the information and head of their offices, shall adopt access uses to be published in the Federal whether disclosure of such information restrictions to insure that only those Register. At least 30 days prior to is mandatory or voluntary; individuals within the agency who have disclosing records pursuant to a new (2) The principal purpose or purposes a need to have access to the records for use or modification of a routine use, as for which the information is intended to the performance of their duties have published under paragraph (a)(1)(iv) of be used; access to them. Procedures shall also be this section, each SBA office shall (3) The routine uses which may be adopted to prevent accidental access to, publish in the Federal Register notice of made of the information; and or dissemination of, records. such new or modified use of the (4) The effects on such individual, if (e) Prohibition against maintenance of information in the system and provide any, of not providing all or any part of records concerning First Amendment an opportunity for any individual or the requested information. rights. No SBA office shall maintain a persons to submit written comments. record describing how any individual (c) Report on new systems. Each SBA § 102.24 Requests for access to records. office shall provide adequate advance exercises rights guaranteed by the First (a) How made and addressed. An notice to Congress and OMB through the Amendment (e.g. speech), unless the individual, or his or her legal guardian, FOI/PA Office of any proposal to maintenance of such record is: may make a request for access to an SBA establish or alter any system of records (1) Expressly authorized by statute, or record about himself or herself by in order to permit an evaluation of the (2) Expressly authorized by the individual about whom the record is appearing in person or by writing probable or potential effect of such directly to the SBA office that maintains proposal on the privacy and other maintained, or (3) Pertinent to and within the scope the record or to the FOI/PA Office by personal or property rights of mail to 409 3rd St., SW., Washington, individuals or the disclosure of of an authorized law enforcement activity. DC 20416 or fax to 202–205–7059. A information relating to such individuals. request received by the FOI/PA Office (d) Accurate and secure maintenance § 102.23 Publication in the Federal will be forwarded to the appropriate of records. Each SBA office shall: Register—Notices of systems of records. SBA Office where the records are (1) Maintain all records which are (a) Notices of systems of records to be located. used in making any determination about published in the Federal Register. (1) (b) Description of records sought. A any individual with such accuracy, The SBA shall publish in the Federal request for access to records must relevance, timeliness, and completeness Register upon establishment or revision describe the records sought in sufficient as is reasonably necessary to assure a notice of the existence and character detail to enable SBA personnel to locate fairness to the individual in the of any new or revised systems of the system of records containing them determination; records. Unless otherwise instructed, with a reasonable amount of effort. A (2) Prior to disseminating any record each notice shall include: request should also state the date of the from a system of records about an (i) The name and location of the record or time period in which the individual to any requestor, including system; record was compiled, and the name or an agency, make reasonable efforts to (ii) The categories of individuals on identifying number of each system of assure that such records are accurate, who records are maintained in the records in which the requester believes complete, timely, and relevant for SBA system; the record is kept. The SBA publishes purposes; and (iii) The categories of records notices in the Federal Register that (3) Establish appropriate maintained in the system; describe its systems of records. A administrative, technical, and physical (iv) Each routine use of the records description of the SBA’s systems of safeguards to insure the security and contained in the system, including the records also may be found at http:// confidentiality of records and to protect categories of users and the purpose of www.sba.gov/foia/systemrecords.doc. against any anticipated threats or such use; (c) Verification of identity. Any hazards to their security or integrity (v) The policies and practices of the individual who submits a request for which could result in substantial harm, office regarding storage, retrievability, access to records must verify his or her embarrassment, inconvenience, or access controls, retention, and disposal identity. No specific form is required; unfairness to any individual on whom of the records; however, the requester must state his or information is maintained. (vi) The title and business address of her full name, current address, and date (i) PASMs, with the approval of the the SBA official who is responsible for and place of birth. The request must be head of their offices, shall establish the system of records; signed and the requester’s signature administrative and physical controls, (vii) A statement that SBA procedures must either be notarized or submitted consistent with SBA regulations, to allow an individual, at his or her under 28 U.S.C. 1746. This law permits insure the protection of records systems request, to determine whether a system statements to be made under penalty of from unauthorized access or disclosure of records contains a record pertaining perjury as a substitute for notarization, and from physical damage or to him or her, to review such records the language states: destruction. The controls instituted and to contest or amend such records, (1) If executed outside the United shall be proportional to the degree of located in sections 102.25 through States: ‘‘I declare (or certify, verify, or sensitivity of the records but at a 102.29 of these regulations. state) under penalty of perjury under the minimum must ensure that records (viii) A statement that such requests laws of the United States of America other than those available to the general may be directed to the SBA’s FOI/PA that the foregoing is true and correct. public under the FOIA, are protected Office, 409 3rd St., SW., Washington, Executed on (date). Signature’’; or from public view, that the area in which DC 20416 or faxed to 202–205–7059; (2) If executed within the Untied the records are stored is supervised and States, its territories, possessions or during all business hours and physically (ix) The categories of sources of commonwealths: ‘‘I declare (or certify, secured during non-business hours to records in the system. verify, or state) under penalty of perjury prevent unauthorized personnel from (2) Minor changes to systems of that the foregoing is true and correct. obtaining access to the records. records shall be published annually. Executed on (date). Signature’’.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17371

(d) Verification of guardianship. whether the record is exempt from by the first office or agency, not any When making a request as a legal agent access and with any other office or later date. or the parent or guardian of a minor or agency that has a substantial interest in (h) Agreements regarding as the guardian of someone determined it; or consultations and referrals. Offices may by a court to be incompetent, for access (2) Refer the responsibility for make agreements with other offices or to records about that individual, the responding to the request to the office agencies to eliminate the need for requester must establish: best able to determine whether the consultations or referrals for particular (1) The identity of the individual who record is exempt from access or to types of records. is the subject of the record, by stating another agency that originated the the name, current address, date and record (but only if that agency is subject § 102.26 Responses to requests for access place of birth, and, at the requester’s to the Privacy Act). Ordinarily the office to records. option, the social security number of the or agency that originated a record will (a) Acknowledgements of requests. On individual; be presumed to be best able to receipt of a request, an office shall send (2) The requester’s own identity, as determine whether it is exempt from an acknowledgement letter to the required in paragraph (c) of this section; access. requester. (3) That the requester is the legal (d) Law enforcement information. agent or parent or guardian of that Whenever a request is made for access (b) Grants of requests for access. Once individual, which may be proven by to a record containing information that an office makes a determination to grant providing a copy of the individual’s relates to an investigation of a possible a request for access in whole or in part, birth certificate showing his parentage violation of law and that was originated it shall notify the requester in writing. or by providing a court order by SBA’s Office of the Inspector General The Program/Support Office Head or establishing guardianship; and (OIG) or another agency, the receiving designee shall inform the requester in (4) That the requester is acting on office shall refer the responsibility for the notice of any fee charged under behalf of that individual in making the responding to the request regarding that § 102.31 and shall disclose records to request. information to either SBA’s OIG or the the requester promptly on payment of § 102.25 Responsibility for responding to other agency ‘‘depending on where the any applicable fee. If a request is made requests for access to records. investigation originated.’’ in person, the office may disclose records to the requester directly, in a (a) In general. Except as stated in (e) Classified information. Whenever a manner not unreasonably disruptive of paragraphs (c), (d), and (e) of this request is made for access to a record its operations, on payment of any section and in § 102.24(a), the office that containing information that has been applicable fee and with a written record first receives a request for access to a classified by or may be appropriate for made of the grant of the request. If a record, and has possession of that classification by another office or requester is accompanied by another record, is the office responsible for agency under Executive Order 12958 or person, he or she shall be required to responding to the request. That office any other executive order concerning authorize in writing any discussion of shall acknowledge receipt of the request the classification of records, the the records in the presence of the other not later than 10 days (excluding receiving office shall refer the person. Saturdays, Sundays, and legal public responsibility for responding to the holidays) after the date of receipt of the request regarding that information to the (c) Adverse determinations of requests request in writing. In determining office or agency that classified the for access. A Program/Support Office which records are responsive to a information, should consider the Head or designee making an adverse request, an office ordinarily shall information for classification, or has the determination denying a request for include only those records in its primary interest in it, as appropriate. access in any respect shall notify the possession as of the date the office Whenever a record contains information requester of that determination in begins its search for them. If any other that has been derivatively classified by writing. Adverse determinations, or date is used, the office shall inform the an office because it contains information denials of requests, consist of: a requester of that date. classified by another office or agency, determination to withhold any (b) Authority to grant or deny the office shall refer the responsibility requested record in whole or in part; a requests. The Program/Support Office for responding to the request regarding determination that a requested record Head, or designee, is authorized to grant that information to the office or agency does not exist or cannot be located; a or deny any request for access to a that classified the underlying determination that the requested record of that office. information. Information determined to information is not a record subject to the (c) Consultations and referrals. When no longer require classification shall not Privacy Act; a determination on any an office receives a request for access to be withheld from a requester on the disputed fee matter; and a denial of a a record in its possession, it shall basis of Exemption (k)(1) of the Privacy request for expedited treatment. The determine whether another office, or Act. notification letter shall be signed by the another agency of the Federal (f) Notice of referral. Whenever an Program/Support Office Head or Government, is better able to determine office refers all or any part of the designee, and shall include: whether the record is exempt from responsibility for responding to a (1) The name and title or position of access under the Privacy Act. If the request to another office or agency, it the person responsible for the denial; receiving office determines that it is best shall notify the requester of the referral able to process the record in response to and inform the requester of the name of (2) A brief statement of the reason(s) the request, then it shall do so. If the each office or agency to which the for the denial, including any FOIA or receiving office determines that it is not request has been referred and of the part Privacy Act exemption(s) applied in best able to process the record, then it of the request that has been referred. denying the request; and shall either: (g) Responses to consultations and (3) A statement that the denial may be (1) Respond to the request regarding referrals. All consultations and referrals appealed under § 102.27(a) and a that record, after consulting with the shall be processed according to the date description of the requirements of office or agency best able to determine the access request was initially received § 102.27(a).

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17372 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

§ 102.27 Appeals from denials of requests (b) Office responses. Within ten (10) agencies to which it previously for access to records. days (excluding Saturdays, Sundays, disclosed the record, if an accounting of (a) Appeals. If the requester is and legal public holidays) of receiving that disclosure was made, that the dissatisfied with an office’s response to a request for amendment or correction record has been amended or corrected. his or her request for access to records, of records, an office shall send the If an individual has filed a Statement of the requester may make a written appeal requester a written acknowledgment of Disagreement, the office shall append a of the adverse determination denying receipt, and the office shall notify the copy of it to the disputed record the request in any respect to the SBA’s requester within 30 days (excluding whenever the record is disclosed and FOI/PA Office, 409 3rd St., SW., Saturdays, Sundays, and legal public may also append a concise statement of Washington, DC 20416. The appeal holidays) of receipt of the request its reason(s) for denying the request to must be received by the FOI/PA Office whether it is granted or denied. If the amend or correct the record. within 60 days of the date of the letter Program/Support Office Head or (f) Records not subject to amendment denying the request. The requester’s designee grants the request in whole or or correction. The following records are appeal letter should include as much in part, the amendment or correction not subject to amendment or correction: information as possible, including the must be made, and the requester (1) Transcripts of testimony given identity of the office whose adverse advised of his or her right to obtain a under oath or written statements made determination is being appealed. Unless copy of the corrected or amended under oath; otherwise directed, the Chief, FOI/PA record. If the office denies a request in (2) Transcripts of grand jury will decide all appeals under this whole or in part, it shall send the proceedings, judicial proceedings, or subpart. requester a letter signed by the Program/ quasi-judicial proceedings, which are Support Office Head or designee that (b) Responses to appeals. The the official record of those proceedings; shall state: (3) Pre-sentence records that decision on a requester’s appeal will be (1) The reason(s) for the denial; and made in writing not later than 30 days (2) The procedure for appeal of the originated with the courts; and (excluding Saturdays, Sundays, and denial under paragraph (c) of this (4) Records in systems of records that legal public holidays) after the date of section, including the name and have been exempted from amendment receipt of such appeal. A decision business address of the official who will and correction under Privacy Act, 5 affirming an adverse determination in act on your appeal. U.S.C. 552a (j) or (k) by notice published whole or in part will include a brief (c) Appeals. An individual may in the Federal Register. statement of the reason(s) for the appeal a denial of a request for affirmation, including any Privacy Act § 102.29 Requests for an accounting of amendment or correction to the FOI/PA record disclosures. exemption applied, and will inform the Office in the same manner as a denial requester of the Privacy Act provisions of a request for access to records (see (a) How made and addressed. Except for court review of the decision. If the § 102.27), and the same procedures shall where accountings of disclosures are not adverse determination is reversed or be followed. If the appeal is denied, the required to be kept (as stated in modified on appeal in whole or in part, requester shall be advised of his or her paragraph (b) of this section), an the requester will be notified in a right to file a Statement of Disagreement individual may make a request for an written decision and his request will be as described in paragraph (d) of this accounting of any disclosure that has reprocessed in accordance with that section and of his or her right under the been made by the SBA to another appeal decision. Privacy Act for court review of the person, organization, or agency of any (c) Judicial review. In order to seek decision. record in a system of records about him judicial review by a court of any adverse (d) Statement of Disagreement. If an or her. This accounting contains the determination or denial of a request, a appeal under this section is denied in date, nature, and purpose of each requester must first appeal it to the FOI/ whole or in part, the requester has the disclosure, as well as the name and PA Office under this section. right to file a Statement of Disagreement address of the person, organization, or that states the reason(s) for disagreeing agency to which the disclosure was § 102.28 Requests for amendment or with the SBA’s denial of his or her made. The request for an accounting correction of records. request for amendment or correction. A should identify each particular record in (a) How made and addressed. Unless Statement of Disagreement must be question and should be made by writing the record is not subject to amendment concise, must clearly identify each part directly to the SBA office that maintains or correction as stated in paragraph (f) of any record that is disputed, and the record, following the procedures in of this section, an individual may make should be no longer than one typed page § 102.24. a request for amendment or correction for each fact disputed. An individual’s (b) Where accountings are not of an SBA record about himself or Statement of Disagreement must be sent required. Offices are not required to herself by writing directly to the office to the office that maintains the record provide accountings where they relate that maintains the record, following the involved, which shall place it in the to: procedures in § 102.24. The request system of records in which the disputed (1) Disclosures for which accountings should identify each particular record in record is maintained and shall mark the are not required to be kept; disclosures question, state the amendment or disputed record to indicate that a that are made to employees within the correction sought, and state why the Statement of Disagreement has been SBA and disclosures that are made record is not accurate, relevant, timely, filed and where in the system of records under the FOIA; or complete. The requester may submit it may be found. (2) Disclosures made to law any documentation that he or she thinks (e) Notification of amendment/ enforcement agencies for authorized law would be helpful. If the requester correction or disagreement. Within 30 enforcement activities in response to believes that the same record is in more days (excluding Saturdays, Sundays, written requests from those law than one system of records, that should and legal public holidays) of the enforcement agencies specifying the be stated and the request should be sent amendment or correction of a record, civil or criminal law enforcement to each office that maintains a system of the office that maintains the record shall activities for which the disclosures are records containing the record. notify all persons, organizations, or sought; or

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17373

(3) Disclosures made from law address and shall state the nature of the and use of SSN is performed only when enforcement systems of records that information disclosed; the person, the functionality of the system is have been exempted from accounting organization, or agency to which it was dependant on use of the SSN as an requirements under Privacy Act, 5 disclosed; the date of disclosure; and identifier. Employees authorized to U.S.C. 552a(j) or (k) by notice published the compelling circumstances justifying collect information must be aware: in the Federal Register. the disclosure. (a) That individuals may not be (c) Appeals. An individual may denied any right, benefit, or privilege as appeal a denial of a request for an § 102.33 Security of systems of records. a result of refusing to provide their accounting to the FOI/PA Office in the (a) Each Program/Support Office Head social security numbers, unless: same manner as a denial of a request for or designee shall establish (1) The collection is authorized either access to records (see § 102.27), and the administrative and physical controls to by a statute; or same procedures will be followed. prevent unauthorized access to its (2) The social security numbers are systems of records, to prevent required under statute or regulation § 102.30 Preservation of records. unauthorized disclosure of records, and adopted prior to 1975 to verify the Each office will preserve all to prevent physical damage to or identity of an individual; and correspondence pertaining to the destruction of records. The stringency of (b) That individuals requested to requests that it receives under this these controls shall correspond to the provide their social security numbers subpart, as well as copies of all sensitivity of the records that the must be informed of: requested records, until disposition or controls protect. At a minimum, each (1) Whether providing social security destruction is authorized by title 44 of office’s administrative and physical numbers is mandatory or voluntary; the United States Code or the National controls shall ensure that: (2) Any statutory or regulatory Archives and Records Administration’s (1) Records are protected from public authority that authorizes the collection General Records Schedule 14. Records view; of social security numbers; and will not be disposed of while they are (2) The area in which records are kept (3) The uses that will be made of the the subject of a pending request, appeal, is supervised during business hours to numbers. or lawsuit under the Privacy Act. prevent unauthorized persons from § 102.36 Privacy Act standards of conduct. having access to them; § 102.31 Fees. (3) Records are inaccessible to Each Program/Support Office Head or SBA offices shall charge fees for unauthorized persons outside of designee shall inform its employees of duplication of records under the Privacy business hours; and the provisions of the Privacy Act, Act in the same way in which they (4) Records are not disclosed to including its civil liability and criminal charge duplication fees under unauthorized persons or under penalty provisions. Unless otherwise § 102.6(b)(3). No search or review fee unauthorized circumstances in either permitted by law, an employee of the may be charged for any record unless oral or written form. SBA shall: the record has been exempted from (b) Each Program/Support Office Head (a) Collect from individuals only the access under Exemptions (j)(2) or (k)(2) or designee shall establish procedures information that is relevant and of the Privacy Act. SBA will waive fees that restrict access to records to only necessary to discharge the under $25.00. those individuals within the SBA who responsibilities of the SBA; must have access to those records in (b) Collect information about an § 102.32 Notice of court-ordered and individual directly from that individual emergency disclosures. order to perform their duties and that prevent inadvertent disclosure of whenever practicable; (a) Court-ordered disclosures. When a (c) Inform each individual from whom record pertaining to an individual is records. (c) The OCIO shall provide SBA information is collected of: required to be disclosed by order of a (1) The legal authority to collect the court of competent jurisdiction, the offices with guidance and assistance for privacy and security of electronic information and whether providing it is office that maintains the record shall mandatory or voluntary; make reasonable efforts to provide systems and compliance with pertinent laws and requirements. (2) The principal purpose for which notice of this to the individual. Notice the SBA intends to use the information; shall be given within a reasonable time § 102.34 Contracts for the operation of (3) The routine uses the SBA may after the office’s receipt of the order, record systems. make of the information; and except that in a case in which the order When SBA contracts for the operation (4) The effects on the individual, if is not a matter of public record, the or maintenance of a system of records or any, of not providing the information; notice shall be given only after the order a portion of a system of records by a (d) Ensure that the office maintains no becomes public. This notice shall be contractor, the record system or the system of records without public notice mailed to the individual’s last known portion of the record affected, are and that it notifies appropriate SBA address and shall contain a copy of the considered to be maintained by the officials of the existence or development order and a description of the SBA, and subject to this subpart. The of any system of records that is not the information disclosed. Notice shall not SBA is responsible for applying the subject of a current or planned public be given if disclosure is made from a requirements of this subpart to the notice; criminal law enforcement system of contractor. The contractor and its (e) Maintain all records that are used records that has been exempted from the employees are to be considered by the SBA in making any notice requirement. employees of the SBA for purposes of determination about an individual with (b) Emergency disclosures. Upon the sanction provisions of the Privacy such accuracy, relevance, timeliness, disclosing a record pertaining to an Act during performance of the contract. and completeness as is reasonably individual made under compelling necessary to ensure fairness to the circumstances affecting health or safety, § 102.35 Use and collection of Social individual in the determination; the office shall notify that individual of Security Numbers. (f) Except as to disclosures made to an the disclosure. This notice shall be Each Program/Support Office Head or agency or made under the FOIA, make mailed to the individual’s last known designee shall ensure that collection reasonable efforts, prior to

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17374 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

disseminating any record about an State, local, or foreign regulatory or law confinement, release, and parole and individual, to ensure that the record is enforcement agency; probation status; accurate, relevant, timely, and complete; (5) Litigation and Claims Files—SBA (2) Information, including reports of (g) Maintain no record describing how 19, contains records relating to informants and investigators, associated an individual exercises his or her First recipients classified as ‘‘in litigation’’ with an identifiable individual Amendment rights, unless it is and all individuals involved in claims compiled to investigate criminal expressly authorized by statute or by the by or against the Agency; activity; or individual about whom the record is (6) Personnel Security Files—SBA 24, (3) Reports compiled at any stage of maintained, or is pertinent to and contains records on active and inactive the process of enforcement of the within the scope of an authorized law personnel security files, employee or criminal laws from arrest or indictment enforcement activity; former employee’s name, background through release from supervision (h) When required by the Privacy Act, information, personnel actions, OPM, associated with an identifiable maintain an accounting in the specified and/or authorized contracting firm individual. form of all disclosures of records by the background investigations; (e) The systems of records described SBA to persons, organizations, or (7) Security and Investigations Files— in paragraph (d) of this section are agencies; SBA 27, contains records gathered or exempt from the Privacy Act to the (i) Maintain and use records with care created during preparation for, conduct extent described in that paragraph to prevent the unauthorized or of, and follow-up on investigations because they are records maintained by inadvertent disclosure of a record to conducted by OIG, the FBI, and other the Investigations Division of the OIG, anyone; and Federal, State, local, or foreign which is a component of SBA which (j) Notify the appropriate SBA official regulatory or law enforcement agencies performs as its principal function of any record that contains information as well as other material submitted to or activities pertaining to the enforcement that the Privacy Act does not permit the gathered by OIG in furtherance of its of criminal laws within the meaning of SBA to maintain. investigative function; and 5 U.S.C. 552a(j)(2). They are exempt in (8) Standards of Conduct Files—SBA order to: § 102.37 Training requirements. 29, contains records on confidential (1) Prevent the subjects of OIG All employees should attend privacy employment and financial statements of investigations from using the Privacy training within one year of employment employees Grade 13 and above. Act to frustrate the investigative with SBA. All employees with Privacy (b) These systems of records are process; Act responsibilities must attend Privacy exempt from the following provisions of (2) Protect the identity of Federal Act training, whenever needed, that is the Privacy Act and all regulations in employees who furnish a complaint or offered by the SBA. this part promulgated under these information to the OIG, consistent with provisions: section 7(b) of the Inspector General Act § 102.38 Other rights and services. (1) 552a(c)(3) (Accounting of Certain of 1978, 5 U.S.C. app. 3; Nothing in this subpart shall be Disclosures); (3) Protect the confidentiality of other construed to entitle any person, as a (2) 552a(d) (Access to Records); sources of information; right, to any service or to the disclosure (3) 552a(e)(1), 4G, H, and I (Agency (4) Avoid endangering confidential of any record to which such person is Requirements); and sources and law enforcement personnel; not entitled under the Privacy Act. (4) 552a(f) (Agency Rules). (5) Prevent interference with law (c) The systems of records described enforcement proceedings; § 102.39 SBA’s exempt Privacy Act in paragraph (a) of this section are (6) Assure access to sources of systems of records. exempt from the provisions of the confidential information, including that (a) Systems of records subject to Privacy Act described in paragraph (b) contained in Federal, State, and local investigatory material exemption under of this section in order to: criminal law enforcement information 5 U.S.C. 552a(k)(2), or 5 U.S.C. (1) Prevent the subject of systems; 552a(k)(5) or both: investigations from frustrating the (7) Prevent the disclosure of (1) Office of Inspector General investigatory process; investigative techniques; or Records Other Than Investigation (2) Protect investigatory material (8) Prevent the disclosure of classified Records—SBA 4, contains records compiled for law enforcement purposes; information. pertaining to audits, evaluations, and (3) Fulfill commitments made to other non-audit services performed by protect the confidentiality of sources § 102.40 Computer matching. the OIG; and to maintain access to necessary The OCIO will enforce the computer (2) Equal Employment Opportunity sources of information; or matching provisions of the Privacy Act. Complaint Cases—SBA 13, contains (4) Prevent interference with law The FOI/PA Office will review and complaint files, Equal Employment enforcement proceedings. concur on all computer matching Opportunity counselor’s reports, (d) In addition to the foregoing agreements prior to their activation and/ investigation materials, notes, reports, exemptions in paragraphs (a) through (c) or renewal. and recommendations; of this section, the systems of records (a) Matching agreements. SBA will (3) Investigative Files—SBA 16, described in paragraph (a) of this comply with the Computer Matching contains records gathered by the OIG in section numbered SBA 4, 16, 17, 24, and and Privacy Protection Act of 1988 (5 the investigation of allegations that are 27 are exempt from the Privacy Act U.S.C. 552a(o), 552a notes) . The Privacy within the jurisdiction of the OIG; except for subsections (b), (c)(1) and (2), Protection Act establishes procedures (4) Investigations Division (e)(4)(A) through F, (e)(6), (7), (9), (10) Federal agencies must use if they want Management Information System—SBA and (11) and (i) to the extent that they to match their computer lists. SBA shall 17, contains records gathered or created contain: not disclose any record which is during preparation for, conduct of, and (1) Information compiled to identify contained in a system of records to a follow-up on investigations conducted individual criminal offenders and recipient agency or non-Federal agency by the OIG, the Federal Bureau of alleged offenders and consisting only of for use in a computer matching program Investigation (FBI), and other Federal, identifying data and notations of arrests, except pursuant to a written agreement

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17375

between SBA and the recipient agency Representatives and be available upon opportunity to contest may be satisfied or non-Federal agency specifying: request to the public. by notice, hearing, and appeal rights (1) The purpose and legal authority (1) No such agreement shall be governing such Federal benefit program. for conducting the program; effective until 30 days after the date on The exercise of any such rights shall not (2) The justification for the purpose which a copy is transmitted. affect rights available under the Privacy and the anticipated results, including a (2) Such an agreement shall remain in Act. specific estimate of any savings; effect only for such period, not to (3) SBA may take any appropriate (3) A description of the records that exceed 18 months, as the Data Integrity action otherwise prohibited by the will be matched, including each data Board determines is appropriate in light above if SBA determines that the public element that will be used, the of the purposes, and length of time health or safety may be adversely approximate number of records that will necessary for the conduct, of the affected or significantly threatened be matched, and the projected starting matching program. during the notice period required by and completion dates of the matching (3) Within three (3) months prior to paragraph (c)(2)(ii) of this section. program; the expiration of such an agreement, the (d) Sanctions. Notwithstanding any (4) Procedures for providing Data Integrity Board may without other provision of law, SBA may not individualized notice at the time of additional review, renew the matching disclose any record which is contained application, and periodically thereafter agreement for a current, ongoing in a system of records to a recipient as directed by the Data Integrity Board, matching program for not more than one agency or non-Federal agency for a that any information provided by any of additional year if: matching program if SBA has reason to the above may be subject to verification (i) Such program will be conducted believe that the requirements of through matching programs to: without any change; and paragraph (c) of this section, or any (i) Applicants for and recipients of (ii) Each party to the agreement matching agreement entered into financial assistance or payments under certifies to the Board in writing that the pursuant to paragraph (b) of this section Federal benefit programs, and program has been conducted in or both, are not being met by such (ii) Applicants for and holders of compliance with the agreement. recipient agency. positions as Federal personnel. (c) Verification. In order to protect (1) SBA shall not renew a matching (5) Procedures for verifying any individual whose records are used agreement unless, information produced in such matching in matching programs, SBA and any (i) The recipient agency or non- program as required by paragraph (c) of recipient agency or non-Federal agency Federal agency has certified that it has this section. may not suspend, terminate, reduce, or complied with the provisions of that (6) Procedures for the retention and make a final denial of any financial agreement; and timely destruction of identifiable assistance or payment under the Federal (ii) SBA has no reason to believe that records created by a recipient agency or benefit program to such individual, or the certification is inaccurate. non-Federal agency in such matching take other adverse action against such (e) Review annually each ongoing program; individual as a result of information matching program in which the Agency (7) Procedures for ensuring the produced by such matching programs has participated during the year, either administrative, technical, and physical until such information has been as a source or as a matching agency in security of the records matched and the independently verified. results of such programs; (1) Independent verification requires order to assure that the requirements of (8) Prohibitions on duplication and independent investigation and the Privacy Act, OMB guidance, and any redisclosure of records provided by SBA confirmation of any information used as Agency regulations and standard within or outside the recipient agency a basis for an adverse action against an operating procedures, operating or non-Federal agency, except where individual including, where applicable: instructions, or guidelines have been required by law or essential to the (i) The amount of the asset or income met. conduct of the matching program; involved, (f) Data Integrity Board. SBA shall (9) Procedures governing the use by a (ii) Whether such individual actually establish a Data Integrity Board (Board) recipient agency or non-Federal agency has or had access to such asset or to oversee and coordinate the of records provided in a matching income or such individual’s own use, implementation of the matching program by SBA, including procedures and program. The Board shall consist of the governing return of the records to SBA (iii) The period or periods when the senior officials designated by the or destruction of records used in such individual actually had such asset or Administrator, to include the Inspector programs; income. General (who shall not serve as (10) Information on assessments that (2) SBA and any recipient agency or chairman), and the Senior Agency have been made on the accuracy of the non-Federal agency may not suspend, Official for Privacy. The Board shall: records that will be used in such terminate, reduce, or make a final denial (1) Review, approve and maintain all matching programs; and of any financial assistance or payment written agreements for receipt or (11) That the Comptroller General under a Federal benefit program, or take disclosure of Agency records for may have access to all records of a other adverse action as a result of matching programs to ensure recipient agency or non-Federal agency information produced by a matching compliance with paragraph (a) of this that the Comptroller General deems program, section and with all relevant statutes, necessary in order to monitor or verify (i) Unless such individual has regulations, and guidance; compliance with the agreement. received notice from such agency (2) Review all matching programs in (b) Agreement specifications. A copy containing a statement of its findings which SBA has participated during the of each agreement entered into pursuant and information of the opportunity to year, determine compliance with to paragraph (a) of this section shall be contest such findings, and applicable laws, regulations, guidelines, transmitted to OMB, the Committee on (ii) Until the subsequent expiration of and Agency agreements, and assess the Governmental Affairs of the Senate and any notice period provided by the costs and benefits of such programs; the Committee on Governmental program’s governing statute or (3) Review all recurring matching Operations of the House of regulations, or 30 days. Such programs in which SBA has participated

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17376 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

during the year, for continued Operations of the House of DEPARTMENT OF TRANSPORTATION justification for such disclosures; Representatives. (4) At the instruction of OMB, (1) OMB may approve a matching Federal Aviation Administration compile a report to be submitted to the agreement despite the disapproval of the Administrator and OMB, and made Data Integrity Board if OMB determines 14 CFR Part 39 available to the public on request, that: [Docket No. FAA–2007–27012; Directorate describing the matching activities of (i) The matching program will be Identifier 2006–NM–188–AD; Amendment SBA, including, 39–15017; AD 2007–07–15] (i) Matching programs in which SBA consistent with all applicable legal, has participated; regulatory, and policy requirements; RIN 2120–AA64 (ii) Matching agreements proposed (ii) There is adequate evidence that that were disapproved by the Board; the matching agreement will be cost- Airworthiness Directives; Airbus Model (iii) Any changes in membership or effective; and A300 B4–601, A300 B4–603, A300 B4– structure of the Board in the preceding 605R, A300 C4–605R Variant F, A310– (iii) The matching program is in the 204, and A310–304 Airplanes Equipped year; public interest. (iv) The reasons for any waiver of the With General Electric CF6–80C2 requirement described below for (2) The decision of OMB to approve Engines a matching agreement shall not take completion and submission of a cost- AGENCY: Federal Aviation benefit analysis prior to the approval of effect until 30 days after it is reported to the committees described in Administration (FAA), Department of a matching program; Transportation (DOT). (v) Any violations of matching paragraph (h) of this section. agreements that have been alleged or (3) If the Data Integrity Board and the ACTION: Final rule. OMB disapprove a matching program identified and any corrective action SUMMARY: The FAA is superseding an taken; and proposed by the Inspector General, the existing airworthiness directive (AD), (vi) Any other information required Inspector General may report the which applies to certain Airbus Model by OMB to be included in such report; disapproval to the Administrator and to A300 B4–600, B4–600R, C4–605R (5) Serve as clearinghouse for the Congress. Variant F, and F4–600R (collectively receiving and providing information on called A300–600) series airplanes; and the accuracy, completeness, and § 102.41 Other provisions. Model A310 series airplanes. That AD reliability of records used in matching (a) Personnel Records. All SBA currently requires a one-time inspection programs; personnel records and files, as for damage of the integrated drive (6) Provide interpretation and prescribed by OPM, shall be maintained guidance to SBA offices and personnel generator (IDG) electrical harness and in such a way that the privacy of all pyramid arm, and repair if necessary. on the requirements for matching individuals concerned is protected in programs; This new AD adds new repetitive accordance with regulations of OPM (5 inspections, which, when initiated, (7) Review Agency recordkeeping and CFR parts 293 and 297). disposal policies and practices for terminate the inspection required by the (b) Mailing Lists. The SBA will not matching programs to assure existing AD. This new AD also requires sell or rent an individual’s name or compliance with the Privacy Act; and repairing damage and protecting the (8) May review and report on any SBA address. This provision shall not be harness. This new AD also provides for matching activities that are not construed to require the withholding of optional terminating action for the matching programs. names or addresses otherwise permitted repetitive inspections. This new AD also (g) Cost-benefit analysis. Except as to be made public. removes certain airplanes from the provided in paragraphs (e)(2) and (3) of (c) Changes in Systems. The SBA applicability of the existing AD. This this section, the Data Integrity Board shall provide adequate advance notice AD results from a report of structural shall not approve any written agreement to Congress and OMB of any proposal to damage on the forward pyramid arm of for a matching program unless SBA has establish or alter any system of records an engine pylon due to chafing of the completed and submitted to such Board in order to permit an evaluation of the IDG electrical harness against the a cost-benefit analysis of the proposed probable or potential effect of such structure of the pyramid arm. We are program and such analysis demonstrates proposal on the privacy and other issuing this AD to prevent electrical that the program is likely to be cost personal or property rights of arcing in the engine pylon, which could effective. The Board may waive these individuals or the disclosure of result in loss of the relevant alternating requirements if it determines, in information relating to such individuals, current (AC) bus bar, reduced structural writing, and in accordance with OMB and its effect on the preservation of the integrity of the engine pylon, and guidelines, that a cost-benefit analysis is constitutional principles of federalism possible loss of control of the airplane. not required. Such an analysis also shall and separation of powers. DATES: This AD becomes effective May not be required prior to the initial (d) Medical Records. Medical records 14, 2007. approval of a written agreement for a shall be disclosed to the individual to The Director of the Federal Register matching program that is specifically whom they pertain. SBA may, however, approved the incorporation by reference required by statute. transmit such information to a medical of certain publications listed in the AD (h) Disapproval of matching doctor named by the requesting as of May 14, 2007. agreements. If a matching agreement is individual. In regard to medical records On May 13, 2004 (69 FR 23090, April disapproved by the Data Integrity Board, in personnel files, see also 5 CFR 28, 2004), the Director of the Federal any party to such agreement may appeal 297.205. Register approved the incorporation by to OMB. Timely notice of the filing of reference of Airbus All Operators Telex such an appeal shall be provided by Steven C. Preston, A310–54A2038, dated February 19, OMB to the Committee on Administrator. 2004; and Airbus All Operators Telex Governmental Affairs of the Senate and [FR Doc. 07–1651 Filed 4–6–07; 8:45 am] A300–54A6037, dated February 19, the Committee on Government BILLING CODE 8025–01–P 2004.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17377

ADDRESSES: You may examine the AD Discussion Comments docket on the Internet at http:// dms.dot.gov or in person at the Docket The FAA issued a notice of proposed We provided the public the Management Facility, U.S. Department rulemaking (NPRM) to amend 14 CFR opportunity to participate in the of Transportation, 400 Seventh Street, part 39 to include an AD that development of this AD. No comments SW., Nassif Building, Room PL–401, supersedes AD 2004–09–01, amendment have been received on the NPRM or on Washington, DC. 39–13590 (69 FR 23090, April 28, 2004). the determination of the cost to the Contact Airbus, 1 Rond Point Maurice The existing AD applies to certain public. Bellonte, 31707 Blagnac Cedex, France, Airbus Model A300 B4–600, B4–600R, Change to Applicability for service information identified in this C4–605R Variant F, and F4–600R AD. (collectively called A300–600) series We have removed Airbus Model FOR FURTHER INFORMATION CONTACT: Tom airplanes; and Model A310 series A310–308 airplanes from the Stafford, Aerospace Engineer, airplanes. That NPRM was published in applicability of this AD. That model is International Branch, ANM–116, FAA, the Federal Register on January 26, not listed as an FAA-certified model in Transport Airplane Directorate, 1601 2007 (72 FR 3764). That NPRM our type certificate data sheets. Lind Avenue, SW., Renton, Washington proposed to require a one-time Conclusion 98057–3356; telephone (425) 227–1622; inspection for damage of the integrated fax (425) 227–1149. drive generator (IDG) electrical harness We have carefully reviewed the SUPPLEMENTARY INFORMATION: and pyramid arm, and repair if available data and determined that air Examining the Docket necessary. That NPRM proposed to add safety and the public interest require You may examine the airworthiness new repetitive inspections, which, adopting the AD with the change directive (AD) docket on the Internet at when initiated, would terminate the described previously. We have http://dms.dot.gov or in person at the inspection required by the existing AD. determined that this change will neither Docket Management Facility office That NPRM also proposed to require increase the economic burden on any between 9 a.m. and 5 p.m., Monday repairing damage and protecting the operator nor increase the scope of the through Friday, except Federal holidays. harness. That NPRM also proposed to AD. The Docket Management Facility office provide for optional terminating action Costs of Compliance (telephone (800) 647–5227) is located on for the repetitive inspections. That the plaza level of the Nassif Building at NPRM also proposed to remove certain The following table provides the the street address stated in the airplanes from the applicability of the estimated costs for U.S. operators to ADDRESSES section. existing AD. comply with this AD.

ESTIMATED COSTS

Average Action Work labor rate Cost of Cost per airplane Number of U.S.- Fleet cost hours per hour parts registered airplanes

One-time inspection 2 $80 $0 $160...... 100 ...... $16,000. (from AD 2004–09–01). Repetitive inspections 4 80 0 $320, per inspection 100 ...... $32,000, per inspection and harness protection cycle. cycle. (new requirement). New optional modification 8 80 2,460 $3,100 ...... Up to 100 ...... Up to $310,000.

Authority for This Rulemaking products identified in this rulemaking under the criteria of the Regulatory action. Flexibility Act. Title 49 of the United States Code specifies the FAA’s authority to issue Regulatory Findings We prepared a regulatory evaluation rules on aviation safety. Subtitle I, We have determined that this AD will of the estimated costs to comply with Section 106, describes the authority of not have federalism implications under this AD and placed it in the AD docket. the FAA Administrator. Subtitle VII, Executive Order 13132. This AD will See the ADDRESSES section for a location Aviation Programs, describes in more not have a substantial direct effect on to examine the regulatory evaluation. detail the scope of the Agency’s the States, on the relationship between List of Subjects in 14 CFR Part 39 authority. the national government and the States, We are issuing this rulemaking under or on the distribution of power and Air transportation, Aircraft, Aviation the authority described in Subtitle VII, responsibilities among the various safety, Incorporation by reference, Part A, Subpart III, Section 44701, levels of government. Safety. ‘‘General requirements.’’ Under that For the reasons discussed above, I section, Congress charges the FAA with certify that this AD: Adoption of the Amendment promoting safe flight of civil aircraft in (1) Is not a ‘‘significant regulatory air commerce by prescribing regulations action’’ under Executive Order 12866; I Accordingly, under the authority for practices, methods, and procedures (2) Is not a ‘‘significant rule’’ under delegated to me by the Administrator, the Administrator finds necessary for DOT Regulatory Policies and Procedures the FAA amends 14 CFR part 39 as safety in air commerce. This regulation (44 FR 11034, February 26, 1979); and follows: is within the scope of that authority (3) Will not have a significant because it addresses an unsafe condition economic impact, positive or negative, that is likely to exist or develop on on a substantial number of small entities

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17378 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

PART 39—AIRWORTHINESS fasteners, and pyramid arm, in accordance terminates the requirements of paragraph (g) DIRECTIVES with the applicable AOT. of this AD. If any discrepancy is found: (1) For airplanes on which Airbus Before further flight, repair in accordance I 1. The authority citation for part 39 Modification 07591 has not been with the applicable service bulletin; except, continues to read as follows: incorporated as of May 13, 2004 (the effective where the service bulletin specifies to contact date of AD 2004–09–01): Within 10 days after Authority: 49 U.S.C. 106(g), 40113, 44701. the manufacturer for repair instructions, this May 13, 2004. AD requires repair using a method approved § 39.13 [Amended] (2) For airplanes on which Airbus by either the Manager, International Branch, Modification 07591 has been incorporated as I ANM–116; or the EASA (or its delegated 2. The Federal Aviation of May 13, 2004: Within 600 flight hours after agent). Administration (FAA) amends § 39.13 May 13, 2004. by removing amendment 39–13590 (69 Note 1: For the purposes of this AD, a Report FR 23090, April 28, 2004) and by adding detailed inspection is defined as: ‘‘An (l) At the applicable times specified in the following new airworthiness intensive visual examination of a specific paragraphs (l)(1) and (l)(2) of this AD, submit directive (AD): structural area, system, installation, or a report of the findings (both positive and assembly to detect damage, failure, or 2007–07–15 Airbus: Amendment 39–15017. negative) of each inspection required by irregularity. Available lighting is normally paragraph (k) of this AD. Send the report to Docket No. FAA–2007–27012; supplemented with a direct source of good Airbus Customer Services Directorate, Directorate Identifier 2006–NM–188–AD. lighting at intensity deemed appropriate by Department AI/SE–E43, 1 Rond Point Effective Date the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface Maurice Bellonte, 31707 Blagnac Cedex, (a) This AD becomes effective May 14, cleaning and elaborate access procedures France. The report must include the 2007. may be required.’’ information specified in Appendix 01 of Affected ADs Airbus Service Bulletin A300–24–6097 or Related Investigative and Corrective Actions A310–24–2100, both dated March 3, 2006, as (b) This AD supersedes AD 2004–09–01. for Damaged Electrical Harness applicable. Under the provisions of the Applicability (h) If any discrepancy in the IDG electrical Paperwork Reduction Act (44 U.S.C. 3501 et (c) This AD applies to Airbus Model A300 harness, fretting at the convoluted conduits, seq.), the Office of Management and Budget B4–601, A300 B4–603, A300 B4–605R, A300 or contact between the IDG electrical harness (OMB) has approved the information C4–605R Variant F, A310–204, and A310– and the pyramid arms is found during the collection requirements contained in this AD 304 airplanes; certificated in any category; inspection required by paragraph (g) of this and has assigned OMB Control Number equipped with General Electric CF6–80C2 AD: Before further flight, do the applicable 2120–0056. engines without full-authority digital related investigative actions and corrective (1) For each inspection done after the electronic control (FADEC); excluding actions in accordance with the applicable effective date of this AD: Send the report airplanes on which Airbus Modification AOT. within 30 days after the inspection. 13184 was done in production. Corrective Action for Damaged Electrical (2) If an inspection was done before the effective date of this AD: Send the report Unsafe Condition Harness Bracket, Retaining Fasteners, or Pyramid Arm within 30 days after the effective date of this (d) This AD results from a report of AD. structural damage on the forward pyramid (i) If any discrepancy in the electrical arm of an engine pylon due to chafing of the harness bracket, retaining fasteners, or Optional Terminating Action integrated drive generator (IDG) electrical pyramid arm is found during the inspection (m) Replacement of the bracket feeder on harness against the structure of the pyramid required by paragraph (g) of this AD: Before the pylons terminates the requirements of arm. We are issuing this AD to prevent further flight, repair in accordance with a this AD if the bracket feeder is replaced in method approved by the Manager, electrical arcing in the engine pylon, which accordance with Airbus Service Bulletin International Branch, ANM–116, Transport could result in loss of the relevant alternating A300–54–6038, dated May 12, 2006 (for current (AC) bus bar, reduced structural Airplane Directorate, FAA; the Direction Model A300 B4–601, A300 B4–603, A300 integrity of the engine pylon, and possible Ge´ne´rale de l’Aviation Civile (DGAC) (or its B4–605R, and A300 C4–605R Variant F loss of control of the airplane. delegated agent); or the European Aviation Safety Agency (EASA) (or its delegated airplanes); or A310–54–2039, dated May 12, Compliance agent). After the effective date of this AD, 2006 (for Model A310–204, and A310–304 (e) You are responsible for having the repair in accordance with a method approved airplanes); as applicable. actions required by this AD performed within by the FAA or the EASA. Alternative Methods of Compliance (AMOCs) the compliance times specified, unless the actions have already been done. No Reporting Requirement for Paragraph (g) (n)(1) The Manager, International Branch, of this AD ANM–116, has the authority to approve Restatement of Certain Requirements of AD (j) Although the referenced AOTs describe AMOCs for this AD, if requested in 2004–09–01 procedures for submitting certain accordance with the procedures found in 14 All Operators Telex Reference information to the manufacturer, no report is CFR 39.19. required for the inspection required by (2) Before using any AMOC approved in (f) The term ‘‘All Operators Telex,’’ or paragraph (g) of this AD. accordance with § 39.19 on any airplane to ‘‘AOT,’’ as used in paragraphs (g), (h), and (j) of this AD, means the following AOTs, as New Requirements of this AD which the AMOC applies, notify the applicable: appropriate principal inspector in the FAA (1) For Model A300 B4–601, A300 B4–603, Repetitive Inspections Flight Standards Certificate Holding District A300 B4–605R, and A300 C4–605R Variant F (k) Within 6 months after the effective date Office. airplanes: Airbus AOT A300–54A6037, dated of this AD, and thereafter at intervals not to Related Information February 19, 2004; and exceed 12 months: Do a detailed inspection (2) For Model A310–204, and A310–304 for damage of the IDG harness and the pylon (o) EASA airworthiness directive 2006– airplanes: Airbus AOT A310–54A2038, dated pyramid arms, and protect the harness. Do 0155, dated June 1, 2006, also addresses the February 19, 2004. the actions in accordance with Airbus subject of this AD. Service Bulletin A300–24–6097, dated March Material Incorporated by Reference Inspection 3, 2006 (for Model A300 B4–601, A300 B4– (g) At the applicable time in paragraph 603, A300 B4–605R, and A300 C4–605R (p) You must use the service information (g)(1) or (g)(2) of this AD, do a one-time Variant F airplanes); or A310–24–2100, dated identified in Table 1 of this AD to perform detailed inspection for discrepancies of the March 3, 2006 (for Model A310–204, and the actions that are required by this AD, IDG harness, harness bracket, retaining A310–304 airplanes). The initial inspection unless the AD specifies otherwise.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17379

TABLE 1.—REQUIRED MATERIAL Issued in Renton, Washington, on March You may examine the AD docket on INCORPORATED BY REFERENCE 28, 2007. the Internet at http://dms.dot.gov or in Ali Bahrami, Room PL–401 on the plaza level of the Manager, Transport Airplane Directorate, Nassif Building, 400 Seventh Street, Airbus Service informa- Date tion Aircraft Certification Service. SW., Washington, DC. [FR Doc. E7–6450 Filed 4–6–07; 8:45 am] FOR FURTHER INFORMATION CONTACT: All Operators Telex February 19, 2004. BILLING CODE 4910–13–P A300–54A6037. Mark Bouyer, Engine Certification All Operators Telex February 19, 2004. Office, FAA, Engine and Propeller Directorate, 12 New England Executive A310–54A2038. DEPARTMENT OF TRANSPORTATION Service Bulletin A300– March 3, 2006. Park, Burlington, MA 01803; telephone 24–6097, including Federal Aviation Administration (781) 238–7755; fax (781) 238–7199. Appendix 01. SUPPLEMENTARY INFORMATION: The FAA Service Bulletin A310– March 3, 2006. 14 CFR Part 39 24–2100, including proposed to amend 14 CFR part 39 with Appendix 01. a proposed AD. The proposed AD [Docket No. FAA–2005–20944; Directorate applies to GE CT7–5A2, –5A3, –7A, Identifier 2003–NE–64–AD; Amendment 39– –7A1, –9B, –9B1, and –9B2 turboprop You must use the service information 15018; AD 2007–08–01] identified in Table 2 of this AD to perform engines, with certain P/N and serial the optional terminating action, if RIN 2120–AA64 number stage 2 turbine aft cooling plates accomplished, unless the AD specifies installed. We published the proposed otherwise. Airworthiness Directives; General AD in the Federal Register on March 31, Electric Company CT7–5, –7, and –9 2006 (71 FR 16248). That action TABLE 2.—OPTIONAL MATERIAL Series Turboprop Engines proposed to expand the population of INCORPORATED BY REFERENCE affected CT7 turboprop engine models AGENCY: Federal Aviation required to undergo a onetime ECI of Airbus Service informa- Administration (FAA), Department of boltholes in certain P/N stage 2 turbine tion Date Transportation (DOT). aft cooling plates. That action also ACTION: Final rule. proposed to reduce the number of Service Bulletin A300– May 12, 2006. cooling plates affected by identifying 54–6038. SUMMARY: The FAA is superseding an the serial numbers. Service Bulletin A310– May 12, 2006. existing airworthiness directive (AD) for 54–2039. General Electric Company (GE) CT7– Examining the AD Docket 5A2, –5A3, –7A, –7A1, –9B, –9B1, and You may examine the docket that (1) The Director of the Federal Register –9B2, –9C, –9C3, –9D, and –9D2 contains the AD, any comments approved the incorporation by reference of turboprop engines, with certain part received, and any final disposition in the service information identified in Table 3 number (P/N) and serial number stage 2 person at the Docket Management of this AD in accordance with 5 U.S.C. 552(a) turbine aft cooling plates installed. That and 1 CFR part 51. Facility between 9 a.m. and 5 p.m., AD currently requires a onetime eddy Monday through Friday, except Federal current inspection (ECI) of boltholes in holidays. The Docket Office (telephone TABLE 3.—NEW MATERIAL certain P/N stage 2 turbine aft cooling (800) 647–5227) is located on the plaza INCORPORATED BY REFERENCE plates. This AD expands the population level of the Department of of affected CT7 turboprop engine Transportation Nassif Building at the Airbus Service Bulletin Date models, but reduces the number of street address stated in ADDRESSES. cooling plates affected. It also requires Comments will be available in the AD A300–24–6097, includ- March 3, 2006. a onetime ECI of boltholes in certain P/ ing Appendix 01. docket shortly after the DMS receives N stage 2 turbine aft cooling plates with them. A300–54–6038 ...... May 12, 2006. specific serial numbers. This AD results A310–24–2100, includ- March 3, 2006. from the manufacturer expanding the Comments ing Appendix 01. list of affected engine models and A310–54–2039 ...... May 12, 2006. We provided the public the identifying the affected stage 2 turbine opportunity to participate in the aft cooling plates by serial number. We (2) On May 13, 2004 (69 FR 23090, April development of this AD. We have are issuing this AD to prevent 28, 2004), the Director of the Federal Register considered the comments received. approved the incorporation by reference of separation of the stage 2 turbine aft Airbus All Operators Telex A310–54A2038, cooling plate, resulting in uncontained Clarification of ECI Requirements dated February 19, 2004; and Airbus All engine failure and damage to the airplane. GE suggests that we clarify paragraph Operators Telex A300–54A6037, dated (f) of this AD to limit the required ECI February 19, 2004. DATES: This AD becomes effective May to stage 2 turbine aft cooling plates that (3) Contact Airbus, 1 Rond Point Maurice 14, 2007. The Director of the Federal are being returned to service. This Bellonte, 31707 Blagnac Cedex, France, for a Register approved the incorporation by change would eliminate any copy of this service information. You may reference of certain publications listed requirement to ECI cooling plates that review copies at the FAA, Transport Airplane in the regulations as of May 14, 2007. are not going to be reused. We agree. If Directorate, 1601 Lind Avenue, SW., Renton, ADDRESSES: You can get the service the cooling plate is not going to be Washington; or at the National Archives and information identified in this AD from reused, there is no need to ECI it Records Administration (NARA). For General Electric Aircraft Engines CT7 immediately after it is removed. information on the availability of this Series Turboprop Engines, 1000 Paragraph (h) of this AD requires an ECI material at NARA, call 202–741–6030, or go Western Ave, Lynn, MA 01910; of all cooling plates affected by this AD to: http://www.archives.gov/federal-register/ telephone (781) 594–3140, fax (781) before they are returned to service. We cfr/ibr-locations.html. 594–4805. made the clarification to paragraph (f).

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17380 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Clarification of Onetime Inspection for practices, methods, and procedures Affected ADs GE proposes that we add a the Administrator finds necessary for (b) This AD supersedes AD 2005–18–01, terminating action statement to clarify safety in air commerce. This regulation Amendment 39–14247. that the ECI is a onetime inspection and is within the scope of that authority Applicability repetitive inspections of the stage 2 because it addresses an unsafe condition that is likely to exist or develop on (c) This AD applies to General Electric turbine aft cooling plate is unnecessary. Company (GE) CT7–5A2/–5A3/–7A/–7A1/– We do not agree. This information is products identified in this rulemaking 9B/–9B1/–9B2/–9C/–9C3/–9D/–9D2 already included in paragraph (f), which action. turboprop engines with stage 2 turbine aft specifies that the inspection is a Regulatory Findings cooling plates, part number (P/N) onetime ECI. We did not change the AD. 6064T07P01, 6064T07P02, 6064T07P05, or We have determined that this AD will 6068T36P01 installed. These engines are Question on Compliance Threshold of not have federalism implications under installed on, but not limited to, 6,000 Cycles-in-Service (CIS) Executive Order 13132. This AD will Construcciones Aeronauticas, SA CN–235 GE also questions whether the not have a substantial direct effect on series and SAAB Aircraft AB SF340 series calculated compliance threshold of the States, on the relationship between airplanes. 6,000 CIS is viable given the amount of the national government and the States, Unsafe Condition time required to publish the AD. We do or on the distribution of power and (d) This AD results from the manufacturer not agree. The number of engine cycles responsibilities among the various expanding the list of affected engine models that will accumulate during the AD levels of government. and identifying the affected stage 2 turbine review process will not change the For the reasons discussed above, I aft cooling plates by serial number. We are safety assessment that is based on the certify that this AD: issuing this AD to prevent separation of the calculated compliance time. We did not (1) Is not a ‘‘significant regulatory stage 2 turbine aft cooling plate, resulting in change the AD. action’’ under Executive Order 12866; uncontained engine failure and damage to (2) Is not a ‘‘significant rule’’ under the airplane. Conclusion DOT Regulatory Policies and Procedures Compliance We have carefully reviewed the (44 FR 11034, February 26, 1979); and (3) Will not have a significant (e) You are responsible for having the available data, including the comments actions required by this AD performed at the received, and determined that air safety economic impact, positive or negative, next engine or hot section module shop visit, and the public interest require adopting on a substantial number of small entities but before accumulating an additional 6,000 the AD with the changes described under the criteria of the Regulatory cycles-in-service after the effective date of the previously. We have determined that Flexibility Act. AD, unless already done. We prepared a summary of the costs these changes will neither increase the Onetime Eddy Current Inspection (ECI) economic burden on any operator nor to comply with this AD and placed it in (f) Perform a onetime ECI of the stage 2 increase the scope of the AD. the AD Docket. You may get a copy of this summary at the address listed turbine aft cooling plates P/N 6064T07P01, 6064T07P02, 6064T07P05, or 6068T36P01, Costs of Compliance ADDRESSES under . that are listed by serial number in Section 4, We estimate that this AD will affect List of Subjects in 14 CFR Part 39 Appendix A, of GE Alert Service Bulletin 494 engines installed on airplanes of (ASB) No. CT7–TP S/B 72–A0464, Revision U.S. registry. We also estimate that it Air transportation, Aircraft, Aviation 04, dated December 12, 2005, and that will will take about 1 work-hour per engine safety, Incorporation by reference, be returned to service. Use 3.B.(1) through to perform the actions, and that the Safety. 3.B.(3) of GE ASB No. CT7–TP S/B 72– A0464, Revision 4, dated December 12, 2005 average labor rate is $80 per work-hour. Adoption of the Amendment Based on the number of cracks found in to perform the inspection. the inspected engines, we estimate that I Accordingly, under the authority (g) For stage 2 turbine aft cooling plates that do not pass the Return to Service 2.5 percent of the 494 engines will delegated to me by the Administrator, the Federal Aviation Administration Criteria, do either of the following: require replacing stage 2 turbine aft (1) Replace the stage 2 turbine aft cooling cooling plates because of rejection by amends 14 CFR part 39 as follows: plate with a new cooling plate that has a the onetime ECI. Required parts will serial number that is not listed in Section 4, cost about $17,000 per engine. Based on PART 39—AIRWORTHINESS Appendix A, of GE ASB No. CT7–TP S/B 72– these figures, we estimate the total cost DIRECTIVES A0464, Revision 04, dated December 12, of the AD to U.S. operators to be I 1. The authority citation for part 39 2005, or $243,520. continues to read as follows: (2) Replace the stage 2 turbine aft cooling plate with a cooling plate that meets the Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. acceptance criteria of 3.B.(1) through 3.B.(3) Title 49 of the United States Code of GE ASB No. CT7–TP S/B 72–A0464, § 39.13 [Amended] Revision 4, dated December 12, 2005. specifies the FAA’s authority to issue I 2. The FAA amends § 39.13 by (h) After the effective date of this AD, do rules on aviation safety. Subtitle I, removing Amendment 39–14247 70 FR not install any stage 2 turbine aft cooling Section 106, describes the authority of 54835, September 19, 2005, and by plates with serial numbers identified in the FAA Administrator. Subtitle VII, adding a new airworthiness directive, Section 4, Appendix A, without inspecting Aviation Programs, describes in more Amendment 39–15018, to read as the cooling plate as specified in 3.B.(1) through 3.B.(3) of GE ASB No. CT7–TP S/B detail the scope of the Agency’s follows: authority. 72–A0464 Revision 04, December 12, 2005. 2007–08–01 General Electric Company: We are issuing this rulemaking under Previous Credit the authority described in Subtitle VII, Amendment 39–15018. Docket No. (i) Eddy current inspections of the stage 2 Part A, Subpart III, Section 44701, FAA–2005–20944; Directorate Identifier 2003–NE–64–AD. turbine aft cooling plate boltholes done ‘‘General requirements.’’ Under that before the effective date of this AD that use section, Congress charges the FAA with Effective Date GE ASB No. CT7–TP S/B 72–A0464, dated promoting safe flight of civil aircraft in (a) This airworthiness directive (AD) February 25, 2003; or Revision 1, dated air commerce by prescribing regulations becomes effective May 14, 2007. March 12, 2003; or Revision 2, dated May 9,

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17381

2003; or Revision 3, dated July 23, 2004, ACTION: Final rule. pre-September 11, 2001 levels due to comply with the requirements specified in continuing security restrictions, and the this AD. SUMMARY: This rule provides South Capitol Street Heliport was not reimbursement to fixed-base general Definition of Engine or Hot Section Module reopened to general aviation traffic and Shop Visit aviation operators and providers of is now used exclusively by the general aviation ground support services Washington DC Metropolitan Police. (j) For the purposes of this AD, an engine at five metropolitan Washington, DC or hot section module shop visit is defined Because of the reduction in general as the introduction of the engine or hot area airports, for the direct and aviation activity at these locations, the section module into a shop that includes incremental financial losses they fixed-base operators and service separating major case flanges. incurred while the airports were closed providers that supported general due to Federal government actions taken Alternative Methods of Compliance aviation were also affected, with many after the terrorist attacks on September claiming that they were incurring (k) The Manager, Engine Certification 11, 2001. The airports are: Ronald sustained and significant financial Office, has the authority to approve Reagan Washington National Airport; alternative methods of compliance for this losses due to the closures. College Park Airport in College Park, These fixed-base operators and AD if requested using the procedures found Maryland; Potomac Airfield in Fort in 14 CFR 39.19. service providers were not eligible for Washington, Maryland; Washington either compensation or loan guarantees Related Information Executive/Hyde Field in Clinton, under the Air Transportation Safety and (l) Contact Mark Bouyer, Engine Maryland; and Washington South System Stabilization Act, Pub. L. 107– Certification Office, FAA, Engine and Capitol Street Heliport in Washington, 42 (Sept. 22, 2001), which had been Propeller Directorate, 12 New England DC. enacted to provide compensation to ‘‘air Executive Park, Burlington, MA 01803; e- DATES: This rule is effective May 9, carriers’’ who had incurred financial mail: [email protected]; telephone (781) 238–7755; fax (781) 238–7199, for more 2007. losses due to the terrorist attacks. Under information about this AD. FOR FURTHER INFORMATION CONTACT: that program, approximately $4.6 billion Interested persons with questions about has been paid to qualifying air carriers. Material Incorporated by Reference In 2003, the United States House of this regulation should contact James R. (m) You must use General Electric Alert Representatives Committee on Dann, U.S. Department of Service Bulletin No. CT7–TP S/B 72–A0464, Appropriations requested that the Transportation, Office of General Revision 04, dated December 12, 2005, to Department of Transportation (DOT) Counsel, 400 7th Street, SW., Room perform the actions required by this AD. The prepare a report detailing the 10102, Washington, DC 20590; Director of the Federal Register approved the documented financial losses by holders incorporation by reference of this service telephone 202–366–9154. Interested of real property leases at the five bulletin in accordance with 5 U.S.C. 552(a) persons with questions about how to affected airports that were attributable and 1 CFR part 51. Contact General Electric apply for assistance, the status of Aircraft Engines CT7 Series Turboprop to the Federal actions since September application reviews, etc. should contact 11, 2001. (House Report 108–243, July Engines, 1000 Western Ave, Lynn, MA Tim Carmody, U.S. Department of 01910; telephone (781) 594–3140; fax (781) 30, 2003, p. 8.) The Committee stated Transportation, Office of Aviation 594–4805 for a copy of this service that such a report would assist the information. You may review copies at the Analysis, 400 7th Street, SW., Room Congress in considering ‘‘potential FAA, New England Region, Office of the 6417, Washington, DC 20590; telephone federal reimbursement for a portion of Regional Counsel, 12 New England Executive 202–366–2348. Application materials these unusual financial losses.’’ In Park, Burlington, MA; or at the National and data sources that may assist October 2005, the Secretary of Archives and Records Administration applicants in preparing applications are Transportation submitted to the (NARA). For information on the availability available at the Department of of this material at NARA, call 202–741–6030, Committee the requested report, which Transportation, Office of the Secretary’s was entitled: Estimated Financial Losses or go to: http://www.archives.gov/federal- Web site at http://ostpxweb.dot.gov/ register/cfr/ibr-locations.html. to Selected General Aviation Entities in aviation/index.html under ‘‘Programs,’’ the Washington, DC Area Final Report Issued in Burlington, Massachusetts, on and then ‘‘General Aviation Operator April 2, 2007. (October 2005 DOT study). A copy of and Services Reimbursement: this Report has been placed onto the Peter A. White, Procedures for Reimbursement of Office of the Secretary’s Web site, at the Acting Manager, Engine and Propeller General Aviation Operators and Service address noted above. (See FOR FURTHER Directorate, Aircraft Certification Service. Providers in the Washington, DC Area.’’ INFORMATION CONTACT). [FR Doc. E7–6446 Filed 4–6–07; 8:45 am] SUPPLEMENTARY INFORMATION: Following The October 2005 DOT study BILLING CODE 4910–13–P the terrorist attacks on the United States identified sixteen general aviation on September 11, 2001, general aviation leaseholders at the five airports, and activity in the Washington, DC estimated the financial losses that each DEPARTMENT OF TRANSPORTATION metropolitan area was suspended. Five incurred during its study period (which airports were most affected: Ronald ran from September 11, 2001 to January Office of the Secretary Reagan Washington National Airport 23, 2004) due to the Federal actions (DCA); College Park Airport in College taken after the terrorist attacks. The 14 CFR Part 331 Park, Maryland; Potomac Airfield in estimates reflected the difference in net [Docket OST–2006–25906] Fort Washington, Maryland; income stated on a pre-tax basis Washington Executive/Hyde Field in between what the companies projected RIN 2105–AD61 Clinton, Maryland; and Washington for the study period and the actual pre- Procedures for Reimbursement of South Capitol Street Heliport in tax net income for that period, and General Aviation Operators and Washington, DC. While DCA and the included both losses in pre-tax net Service Providers in the Washington, three Maryland airports have since been income and one-time costs attributable DC Area reopened to transient general aviation directly to compliance with new traffic, the volume of general aviation restrictions or regulations resulting from AGENCY: Office of the Secretary, DOT. activity has not returned to the terrorist attacks. In formulating its

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17382 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

estimates, the Department’s consultant Section 185 further states that the than using the less direct ‘‘providers of relied primarily on voluntary appropriated funds included the cost of general aviation services’’ language it information provided by each entity, ‘‘an independent verification regime’’; chose. Finally, Congress, DOT, and and while interviews were conducted to that no funds shall be obligated or other public authorities have used other confirm the general reasonableness and distributed to such general aviation vehicles to provide financial assistance consistency of the numbers provided, entities until an independent audit is to airports to reflect increased security no independent analysis, audit or completed; that losses incurred as the and other requirements after the certification was conducted. Therefore, result of violations of law, or through September 11 terrorist attacks, under the October 2005 DOT study advised fault or negligence of such entities or of which we understand various airports that these estimates were merely third parties (including airports) are not here recovered at least some elements of preliminary and meant solely to inform eligible for reimbursement; and that the their added costs. The history of this Congress in determining whether and in obligation and expenditure of funds are legislation indicates that it was designed what amount to appropriate funds to conditional upon full release of the to assist those general aviation entities reimburse these general aviation United States Government for all claims who were not eligible under other entities. The October 2005 DOT study for financial losses resulting from such programs to recover their losses after 9/ also indicated that, if compensation actions. 11. were to be made available, ‘‘the On October 4, 2006, the Department Of course, if an airport here can show financial data establishing the basis for published in the Federal Register a that it served as a fixed-base operator, or any payment, especially forecast Notice of Proposed Rulemaking (NPRM) provider of general aviation ground revenue, cost and net income, should in order to implement this Act (71 FR support services as those terms are * * * be subject to a more rigorous 58546 et seq.). There, the Department defined in Section 331.3 of the Rule, verification regime.’’ (Estimated proposed definitions of various terms then it would qualify in that capacity for Financial Losses to Selected General found in the Act; the eligibility reimbursement under this program. requirements for applicants; the Aviation Entities in the Washington, DC Eligibility of General Aviation Entities methodology for determining the losses Area Final Report, at fn. 3.) That Did Not Operate at One of the Five The total estimated financial losses to be reimbursed, including the forms Airports on September 11, 2001 for the period reviewed were by which applications would be made; $10,443,936, with more than half of that the time periods at each airport for Glenwood Aviation, a leaseholder and amount being reported for one firm, which reimbursement of losses would fixed-base general aviation operator at Signature Flight Support. The estimates be made; the procedures for verifying the South Capitol Street Heliport who were in current dollars and reflected no and auditing claims; and various other initiated operations there after the consideration for the time value of matters. The Department invited September 11 attacks (specifically, on money. comments on its proposals, and 16 October 1, 2002), expressed concern that On November 30, 2005, the responsive comments were received. certain language in the NPRM preamble, Transportation, Treasury, Housing and Below, we summarize the comments proposed rule, and application forms Urban Development, the Judiciary, the that we received and describe our could be construed as precluding it from District of Columbia, and Independent response to those comments, including, qualifying for reimbursement. DOT’s Agencies Appropriation Act, 2006, where appropriate, the modifications we language causing this concern generally became law. Section 185 of the Act are making based upon those comments. referenced eligible applicants as limited provides for the reimbursement of to those that had operations at one or Eligibility of Airports Per Se To Apply ‘‘fixed-base general aviation operators more of the five airports on September for Reimbursement and the providers of general aviation 11, 2001. The commenter stated that, in ground support services’’ at the five One commenter, a small airport, fact, Section 185 imposes no such cited airports for the ‘‘direct and contended that airports should be restriction, and should be read more incremental financial losses incurred eligible for reimbursement for their broadly to include the commenter while such airports were closed to losses under the Rule, because they within the class eligible for general aviation operations, or as of the ‘‘provide leaseholds to those who reimbursement. date of enactment of this provision in operate, service, and otherwise support DOT Response: The relevant language the case of airports that have not general aviation aircraft,’’ and simply by of Section 185 appropriates funds to reopened to such operations, by these doing so provide ‘‘general aviation reimburse general aviation operators operators and service providers solely ground support services.’’ and the providers of general aviation due to actions of the Federal DOT Response: DOT believes that ground support services ‘‘at’’ the five government following the terrorist Section 185 should not be read, and was airports for direct and incremental attacks on the United States that not meant to be read, to include airports financial losses, incurred while the occurred on September 11, 2001.’’ The per se as ‘‘providers of general aviation airports were closed solely due to the Act provides up to $17 million to ground support services’’ eligible for actions of the Federal government after reimburse these general aviation reimbursement under this program. the terrorist attacks of September 11, entities; however, it states that, of the First, providing a facility that others 2001. Thus, the commenter is correct in $17 million provided, an amount not to may use for general aviation support is asserting that the legislative language exceed $5 million, if necessary, is to be not the same as itself providing does not limit general aviation entities available on a pro rata basis to fixed- ‘‘services’’ to general aviation, and the eligible for reimbursement to those base general aviation operators and the latter formulation represents an operating at one or more of the airports providers of general aviation ground interpretation that is more faithful to the on September 11, 2001. support services located at the three language Congress actually used. The commenter does not disclose, in Maryland airports: College Park Airport Second, Congress clearly knows what an its comment, how it became the fixed- in College Park, Maryland; Potomac ‘‘airport’’ is, and if it intended that base operator at South Capitol Street, Airfield in Fort Washington, Maryland; airports ‘‘as airports’’ be reimbursed for and in particular, whether it has any and Washington Executive/Hyde Field losses it surely would have plainly contractual relationship with its in Clinton, Maryland. provided for that in Section 185, rather predecessor, Air Pegasus. Air Pegasus

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17383

abandoned its lease to operate at that support services (collectively ‘‘operators reimburse for speculative losses or for facility on September 30, 2002, and or providers’’) at an eligible airport or losses that were not fully borne, in the Glenwood Aviation states that it began airports in the Washington, DC area, and normal course of business, during the its operations on October 1, 2002, the incurred direct or incremental losses allowable eligibility period. following day. If Glenwood is simply during the applicable reimbursement As to debt and equity investment asserting rights to reimbursement based periods stated at § 331.13 that were represented by loans and use of on an assignment of these rights to it by solely due to the actions of the Federal personal funds, these would normally Air Pegasus, the Department would government following the terrorist be reported as ‘‘debt and equity consider its application so long as there attacks on the United States on investment’’ on the balance sheet of the is a full disclosure of this basis for doing September 11, 2001, you may apply for business as offsets to increased cash in so, the necessary information from Air reimbursement under this part * * *. ’’ compliance with accounting principles. Pegasus was supplied, and copies of the DOT will also modify the application The reimbursement methodology contractual documents are attached. form item 3 on Appendix A to read ‘‘At proposed by DOT would permit However, if the commenter’s theory of which of the following airports did the carrying the interest on the loan as a recovery is not as an assignee, there is applicant operate as a fixed-base non-operating business expense on the a further issue: Section 185 limits operator or provider of general aviation income statement. This expense, along reimbursement to those losses that were ground support services during the with other non-operating expenses and incurred ‘‘solely due to the actions of eligible period for reimbursement?’’ operating expenses would be, in the Federal government following the These modifications do not reflect any essence, subtracted from forecast terrorist attacks on the United States change to the reimbursement revenues to produce an adjusted that occurred on September 11, 2001’’ methodology that will be employed, or income, to be compared against forecast (emphasis supplied). On October 1, to the showing of loss and sole cause for income in determining the amount of 2002, when the commenter began its loss that will be necessary to have an any loss. Funds ‘‘reinvested’’ back into operations at South Capitol Street, the application approved. a company constitute an investment that Federal government had already taken Reimbursement Methodology would be carried as additional capital its actions to close that facility to invested (an increase in equity), or general aviation operations. The A number of commenters raised retained earnings, on the balance sheet. commenter knew or had constructive concerns about the inclusiveness of the These retained earnings or additional knowledge of that closure, and rule’s methodology for determining the invested capital increase the value of presumptively assumed the risk when it eligibility of losses. They maintained the firm that inures to the benefit of negotiated the lease and began its that losses due to foreclosure on homes, equity holders on a continuing basis, operations that security or other loss in value of real property, the and so would not be reimbursed as a considerations could require that the adverse effect on their credit, fixed loss within the proposed methodology. facility remain closed for some time, expenses, required maintenance, the DOT believes its methodology for and perhaps never be reopened at all. cost of loans, personal savings invested determining loss is appropriately Further, the status and uncertain future in the business, and debts and wages comprehensive and fully satisfies the of the heliport should have permitted that had gone unpaid should constitute intent of Congress. We therefore are not one then negotiating for a lease to obtain eligible losses for which there would be proposing any modifications to it as a terms reflecting this risk-laden situation. reimbursement. Several also indicated result of the comment process. that DOT’s ‘‘lost profits’’ approach Thus, in these instances, the notion that Tax Treatment Issues a ‘‘loss’’ was incurred ‘‘solely’’ due to failed to recognize that some GA entities actions taken by the Federal government were small businesses, which tended to One commenter questioned whether following the attacks—and not due at reinvest in the business rather than the intent of the legislation is to least in part to miscalculation of risk or ‘‘take profits.’’ reimburse for damages rather than failure to adequately provide for it—is DOT Response: As background, the replacement of income, in which case difficult to envision. reimbursement methodology proposed the Rule should specify that any Nonetheless, because the statute itself by DOT in the NPRM relied on an reimbursements should be tax-free. does not foreclose reimbursement to applicant’s forecast of revenues and Another commenter urged that the applicants that were not operating at expenses had the 9/11 attacks not Department’s reference to net income be one of the airports on September 11, we occurred, which would then be clarified to specify income before taxes, will not foreclose reimbursement to this compared with the actual revenues and and that any other calculations of or other similarly-situated parties expenses that occurred for the period of amount should be based on income without affording them an opportunity eligibility. As proposed, the claimant before tax. to demonstrate, to DOT’s satisfaction, would generally be reimbursed for the DOT Response: DOT does not view that they can meet the other difference in forecast revenues and the language or intent of the legislation requirements of the statute and expenses and actual revenues and as providing reimbursement for regulation. To meet those requirements, expenses for the period. damages, and disagrees that payments they would still need to supply an Some of the loss items asked about by under the reimbursement program actual or, if none exists, a reasonable commenters would be addressed within should be tax-free. DOT agrees with the forecast showing post-9/11 business this reimbursement scheme. For second comment, viewing Section 185 expectations absent the actions of the example, their forecasts would as providing for reimbursement of losses Federal government following the presumably itemize their projected through payments that essentially serve September 11 terrorist attacks, and show ‘‘fixed expenses,’’ ‘‘maintenance,’’ as replacement revenues to offset the further that any claimed losses were ‘‘wages,’’ etc., and their actual expenses losses incurred while the airports were solely due to those actions. for those same items over the closed due to Federal government DOT will therefore modify § 331.5 to reimbursement period would be tallied. actions. These replacement revenues, read as follows: ‘‘If you are or were a However, personal (as opposed to like normal business revenues, would fixed-base general aviation operator or business) losses are not compensable be subject to taxes. Since the provider of general aviation ground under Section 185, nor can DOT reimbursements granted here would be

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17384 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

subject to taxation, they should not be reimbursement period and actual net percentage to all claims, which would calculated on the basis of taxes that income earned for that period. We effectively be a payment in lieu of have already been paid. For explicitly excluded from the interest. clarification, we are therefore revising reimbursement the time value of money Fifth Amendment Taking § 331.7 to change four references to ‘‘net through the payment of interest on lost income’’ to read ‘‘net income before profits for the period of time the funds A large fixed-base operator argued taxes’’ instead, and, in the application were available for use, tentatively that reimbursement under this program form, modifying the reimbursement determining that, as a legal matter, the should follow just compensation claim form by using the term ‘‘adjusted Department is precluded from payment principles of the Fifth Amendment, income,’’ which reflects the net of of interest under the circumstances specifically in the payment of interest. operating revenues and expenses and present here. See, e.g., United States v. This commenter asserted that the intent certain prescribed non-operating Alcea Bank of Tillamooks, 341 U.S. 48, of Section 185 was to reimburse expenses and revenues upon which 49 (1951). While several commentators claimants for the effective taking of their taxes are calculated. asserted that interest should be property, in accordance with the Fifth Amendment to the Constitution. Mitigation of Losses reimbursable in the context of compensation paid pursuant to a DOT Response: DOT has not used a One commenter, who had been able to governmental taking, such as the closure Fifth Amendment takings approach in recapture some losses by moving of airports, we do not believe that this proposing its methodology for operations to another, non-impacted comparison is valid. As noted below, reimbursing eligible GA entities. This airport, argued that ‘‘although it is the analogy to a governmental taking is action is consistent with and follows possible to estimate, it would be inapt. A closer analogy is to the from the decision of the United States complex and somewhat judgmental for compensation paid under the Air Court of Appeals for the Federal Circuit, [it] to attempt to measure secondary Transportation Safety and System in Air Pegasus of DC, Inc. v. United effects at other locations, not reflected Stabilization Act, Pub. Law 107–42. States, 424 F. 3d 1206 (2005). In in any financial documents, that may be That compensation, which was affirming a decision by the United attributable in part to the closure by the distributed in up to three tranches over States Court of Federal Claims, the government of operations at DCA and to time, did not include interest payments Federal Circuit there found that the determine how this may or may not in any of the three distributions, Federal regulations restricting aviation have affected [its] DCA’s losses.’’ It including payments made even into activity in the District of Columbia area further asserted that, as a company with 2004 and 2005. While the time period did not effect a taking of the private operations around the world, it engaged for applicants under Section 185 does property of Air Pegasus, a lessee of real in many aviation and non-aviation differ from the time periods for property at the South Capitol Street income-producing activities before and applicants under the Stabilization Act, Heliport. Fifth Amendment takings after September 11, 2001, which have we believe that the payment of interest precedents are thus not applicable to no relationship with the shutdown of should be excluded here as it was there. our Rulemaking here. DCA and should not be a factor relating to its reimbursement. One commenter asserted that, Lobbying Expenses DOT Response: DOT is proposing no however the Department must treat One commenter questioned the change to the Rule in this regard. If an interest, ‘‘time value of money’’ NPRM’s general preclusion of legal and applicant was able to derive increased represents a different concept and may lobbying expenses as eligible for profits at another airport or airports as and should be paid. In its view, the time reimbursement. The commenter argued a result of diversion of traffic due to value of money reflects the erosion in that general lobbying and legal expenses closure of one or more of the eligible the value of money due to inflation, as are reasonable expenses, and a airports, then those increases should well as the fact that funds available for necessary cost of doing business. serve to offset its reimbursable losses. use today can be put to productive use However, it allowed that lobbying While quantifying that offset amount that will increase returns in the future. expenses specifically incurred in an may be ‘‘complex and somewhat However, the erosion in the value of effort to ‘‘obtain funding for the judgmental,’’ the commenter conceded money is compensated for by paying shutdown’’ may be excluded by law. that it was possible to estimate, and interest, and, as explained, DOT is DOT Response: The Department DOT staff and, if necessary, an precluded by law from paying interest. believes this comment has merit, and independent audit can help to ensure However, as to lost capital earnings, the accordingly will modify § 331.7(g) of the that an appropriate adjustment is made. reimbursement calculus does permit an Rule to read: ‘‘Lobbying and attorneys’’ If a narrower methodology were applicant to receive compensation if it fees incurred to promote reimbursement adopted, focusing only on an entity’s can successfully demonstrate that its for losses resulting from the terrorist revenues and expenses associated with forecast showed a likely increase in net attacks or enact Section 185 of Pub. L. an eligible airport and ignoring the fact income that was planned for further 109–115 are not eligible for that some operations had migrated to investment at a reasonable rate, which reimbursement.’’ The Department will another airport and produced income increase and investment did not occur also modify § 331.21(i) of the Rule to there, it could produce a windfall profit due to Federal government actions after change ‘‘lobbying expenses’’ to for the entity that DOT believes was not September 11. In doing so, applicants ‘‘lobbying expenses incurred to promote intended by Congress. must provide suitable supporting reimbursement for losses resulting from documentation for their specific claims the terrorist attacks or enact Section 185 Time Value of Money because it would be highly speculative of Pub. L. 109–115.’’ The intent of Congress was to to hypothesize as to how earnings reimburse eligible claimants for ‘‘the would have been reinvested and how Eligible Reimbursement Period direct and incremental financial losses those investments would fare, especially Section 185 provides reimbursement incurred.’’ In the NPRM, we proposed in the volatile economic climate after for losses incurred while the five that applicants would report forecasted September 11. DOT will not simply airports ‘‘were closed to general aviation net income for the applicable provide a generalized ‘‘time value’’ operations, or [up to] the date of

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17385

enactment of this provision [i.e., is whether they have ‘‘reopened’’ in the parties and not the United States. As a November 30, 2005] in the case of sense that Congress provided in the Act. consequence, the Department airports that have not reopened to such The commenters did not address the determines that Hyde Field and its operations. * * * ’’ Only one airport, Department’s reasoning, in the NPRM, general aviation service providers will the South Capitol Street Heliport, that Congress must not have considered not be eligible for reimbursement during remained closed to general aviation all five airports to be ‘‘closed’’ at the the period that the airport was closed as traffic through November 30, 2005. The time it passed the statute. Had it done a result of violations of the law. other four airports were reopened to so, Congress would have simply Washington, DC Air Defense general aviation in stages: (1) First, after provided for reimbursement through the Identification Zone (ADIZ) September 11, 2001, but only via special date of enactment of the Act for each of waiver, (2) then, opened to limited the airports, and not provided for a case- One comment raised concerns about general aviation operations for based by-case determination as to when each the economic impact of the Washington, aircraft, (3) and then, opened to include ‘‘reopened.’’ Congress of course was DC Air Defense Zone (ADIZ) on other transient traffic. Due to continuing aware of the continuing security airports and businesses in the security restrictions, in no case has requirements and operational Washington, DC metropolitan area. The general aviation activity reached the restrictions at the airports, and nothing comment further proposed that the same level as it had before September in relevant legislative history indicates ADIZ should be rescinded or modified 11, 2001. Because the statute speaks in any basis other than airport ‘‘reopening’’ to reduce the economic impact on terms of binary ‘‘closed’’ and as the point at which eligibility for airports. ‘‘reopened’’ airports, admitting of no reimbursement was to terminate. The DOT Response: Any losses that are intermediate stages, the issue arises as Department believes that the not covered by Section 185 of the 2006 to what point during the reopening interpretation it proposed in the NPRM Appropriations Act are outside the process the airports ceased to be is the one most consistent with the Act’s scope of this rule and compensation for ‘‘closed’’ and should be considered language, and provides for a reasonably such losses is beyond the authority of ‘‘reopened’’ for purposes of determining generous and consistent treatment the Department. Modifications to the the ending date for any reimbursement among the airports. As a result, we have ADIZ, the flight restrictions and payments. not modified the ending dates for the maintenance of the ADIZ security zone The NPRM addressed the issue at reimbursement periods in this Final are also not within the scope of this length. It proposed that the airports be Rule. Rule. considered reopened for purposes of the Independent Audit Costs statute as of the date that transient Hyde Field Closure traffic was permitted back. Under that A number of commenters having their The NPRM preamble stated that proposal, the ending date for eligibility businesses or interests at Hyde Field ‘‘larger claims, and any questioned for reimbursement at Ronald Reagan argued that excluding any claims, would be subject to audit,’’ and Washington National Airport would be reimbursements for the period that that the Department is ‘‘proposing to October 18, 2005; for College Park, airport was closed for the second time retain the flexibility to recover the costs Potomac, and Washington Executive/ due to a security violation is not in of the audit from the amount of Hyde Field would be February 13, 2005; keeping with the intent of the legislation reimbursement.’’ While the NPRM did and for the South Capitol Street and would create an undue hardship for not go on to explain the reasoning Heliport, since it was never reopened to them. Typically, they further asserted behind the latter proposal, it was transient general aviation traffic, the that they were not responsible for any intended to provide an incentive for date of enactment of the Act, or violations, that the closure was for a applicants to resolve their November 30, 2005. minor security violation that should reimbursement claims short of an audit. Three commenters with interests at have taken but a few days to resolve, It would also prevent audit costs from one of the Maryland airports, and one and that the length of the closure was always being spread as overhead across national association on behalf of Ronald due to government delay. the entire program, which could Reagan Washington National Airport, DOT Response: Section 185 states, unfairly reduce reimbursements on a argued that general aviation activity at ‘‘That losses incurred as a result of pro rata basis for small entities whose these airports remains subject to violations of law, or through fault or applications did not give rise to any security restrictions and that the negligence, of such operators and issues on review. airports are not operating at their pre-9/ service providers or of third parties One commenter, a large entity, 11 levels. While not contesting the fact (including airports) are not eligible for asserted that the large size of a claim that the four airports allow transient reimbursements.’’ While the should not dictate that it must be traffic to land, these commenters urged commenters may be correct that they audited, and that audits should only that the eligibility period be extended to themselves may not have been at fault occur where claims are unresolved after the latest possible ending date in or otherwise responsible for the security DOT consultation. It also argued that recognition of the fact general aviation violation that closed the airport, neither Section 185 provides funding for both aircraft do not have the same practical was the United States, and the statute audits and reimbursement of all eligible access to these airports as they did authorizes reimbursement only for losses up to the $17 million ceiling. before September 11, 2001. losses that were ‘‘solely due to the Thus, in its view, ‘‘Full reimbursement DOT Response: DOT agrees that the actions of the Federal government should be made for any accepted claim levels of general aviation activity at following the terrorist attacks on the unless all the funds available have been none of the five airports have returned United States that occurred on expended and the Department has no to those experienced prior to September September 11, 2001.’’ Moreover, the choice but to reimburse an applicant for 11, 2001. However, it is clear that, aside exclusionary language is directed at a less than its accepted claim for losses.’’ from the South Capitol Street heliport, situation like the one at Hyde Field, and Several other commenters asserted that the airports are no longer closed to the legislative intent is clear that Section 185 does not provide for any general aviation traffic and have reimbursements not be available if the reductions in reimbursement for audit reopened to some degree; the question losses were proximately caused by third costs, one adding that the costs of an

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17386 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

audit can be substantial, and if this Accordingly, we are amending the $5 million set-aside, then that money offset principle were effectuated it could application form to include a separate will be available to reimburse valid swallow up the entire amount of a line item for professional accounting claims originating from other airports. claim. services required in the submission of To clarify this point in the Rule, DOT DOT Response: While larger claims the application, which DOT may will add a Section 331.37, to read as are more likely to involve significant reimburse at 80%. (A sharing of cost follows: issues and to require an audit, the will reduce the prospect for the § 331.37. What will happen to any remaining decision to audit a claim will be based provision of unnecessary services.) No funds if operators and providers at the on the Department’s evaluation of the reimbursements will be made for more three Maryland airports make reimbursable completeness and reasonableness of a general accounting or other legal or claims totaling less than $5 million? claimant’s entire application. While professional services, and all claims will If the operators and providers who are DOT has the flexibility to offset the cost be subject to a review for eligible for the $5 million set-aside do not of an audit against the reimbursement reasonableness. Invoices for services exhaust the funds designated under the set- amount, it will do so only when aside, then any remaining money from the rendered must be attached to the set-aside will be made available for other reimbursements would need to be application form to allow for prompt valid claims made under this Part. reduced because ceiling amounts have determinations to be made on been reached, and where the reason for allowability. The reimbursement would Assistance Available During the the audit involved questioned amounts also be capped at a maximum amount Application Process that could not be resolved informally. of $2,000, which should be more than A trade association commented that Moreover, the maximum offset would be sufficient in at least the great majority many of the applicants eligible for one-third of the total audit cost incurred of cases for an accountant to provide the reimbursement are small businesses and by the Department. A reduction by one- services needed. do not regularly develop full financial third is considered sufficient to achieve Submission Period statements and forecasts. The the aims of dissuading unsupported association therefore requested that claims and encouraging cooperation Several commenters requested an Departmental staff be flexible and during the resolution process. extension of our proposed submission provide as much assistance as possible deadline of 30 calendar days from the It is, of course, entirely possible that to the applicants that need help. an audit would sustain the full amount effective date of the Final Rule. Two DOT Response: As discussed above, of an applicant’s claim, in which case suggested a minimum submission DOT will provide fee reimbursements, the claim would be paid in full (subject period of 90 days. We recognize that to a limited degree, to enable small some small claimants may need of course to the overall $17 million businesses to obtain professional additional time to compile their ceiling). Only applicants whose claims assistance in preparing their supporting data; however, consideration are not supported by audits would have applications. We have also posted other of giving extra time must also factor in their verified reimbursement allocations potentially useful information on DOT’s reduced, by a maximum of one-third of other concerns that potential applicants Web site. DOT personnel will, to the their total Departmental audit costs. are interested in receiving their extent resources permit, answer general reimbursement as soon as possible. On Reimbursement for Professional Fees questions and provide information on this point, a trade association had Used in the Application Process such matters as reimbursement complained that DOT had already taken eligibility and processing status. A trade association argued that fees considerable time to publish the NPRM, However, DOT staff will not be able to for professional service used in the and called for the remainder of the assist in the actual preparation of the application process for reimbursement process to be ‘‘clear, concise, and applications, or provide tax or should be eligible for repayment by the timely.’’ In order to balance these accounting advice or interpretations. Federal government. The association competing concerns, and also to provide stated that many of the applicants are sufficient time for accounting Regulatory Analyses and Notices small businesses that do not have the professionals to assist applicants, we are Executive Order 12866 and DOT resources to outsource attorney or establishing a submission period of 60 Regulatory Policies and Procedures accountant services to assist in the calendar days from the effective date of application process, and that the the final rule. We believe that this This rule is nonsignificant for application process required activities extension will benefit potential purposes of Executive Order 12866 and that would not be necessary absent the applicants that require additional time the Department of Transportation’s events of September 11 and the without burdening all applications with Regulatory Policies and Procedures. The subsequent airport closures. 90-day waits. rule establishes procedures to provide DOT Response: Upon review, DOT reimbursement to eligible applicants agrees that the application process Funds Available if Set-Aside from funds appropriated by Congress. would benefit, overall, if claimants were Reimbursements Underrun $5 Million The Department administers a number able to utilize the services of Section 185 requires at least $5 of programs entailing similar professionals familiar with accounting million to be set aside for claims procedures. This rule therefore does not standards and rules in submitting their originating from College Park Airport, represent a significant departure from applications. Particularly where Potomac Airpark, and Washington existing regulations and policy. applicants are subject to audit and, Executive/Hyde Field. One commenter Furthermore, once implemented, this potentially, to have to pay the costs of requested that DOT clarify what it will rule would have only minimal cost that audit if any part of their claim is do with any funds remaining after all impacts on regulated parties. rejected, DOT believes they should have claims are processed from these three professionals available to them to help airports. Federalism ensure that their applications comply DOT Response: Under the statutory This rule does not directly affect the with generally accepted accounting language, after the claims from these States, the relationship between the standards and thereby meet the designated airports are processed, if national government and the States, or Department’s requirements. there are any funds remaining from the the distribution of power among the

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17387

national government and the States, operators and providers of general 331.1 What is the purpose of this part? such that consultation with the States aviation ground support services 331.3 What do the terms used in this part and local governments is required under identified in the October 2005 DOT mean? Executive Order 13132. study. 331.5 Who may apply for reimbursement Burden Estimate: Total applicant under this part? Regulatory Flexibility Act 331.7 What losses will be reimbursed? burden of between $2,501 and $5,003 331.9 What funds will the Department The Department certifies that this rule based on a burden of between three (3) distribute under this part? would not have significant economic and six (6) hours per applicant and a 331.11 What are the limits on effects on a substantial number of small weighted average cost per hour of reimbursement to operators or providers? entities. Many of the applicants for $34.74. 331.13 What is the eligible reimbursement reimbursements are likely to be small Form(s): The data will be collected on period under this part? entities. However, the overall benefits to the Form entitled, ‘‘Application Form 331.15 How will other grants, subsidies, or for Reimbursement Under Section 185 incentives be treated by the Department? be provided to applicants are modest in 331.17 How will the Department verify and size and application costs themselves of Public Law 109–115,’’ and referenced audit claims under this part? are likely to be low. In the aggregate, the in this part. 331.19 Who is the final decision maker on cost among all applicants for gathering Average Burden Hours per eligibility for, and amounts of information and submitting an Respondent: A weighted average of four reimbursement? (4) hours per application. The application should range from $2,501 to Subpart B—Application Procedures $5,003. Department has requested approval from the Office of Management and 331.21 What information must operators or Paperwork Reduction Act Budget for this information collection. providers submit in their applications for reimbursement? This rule contains information Other Statutes and Executive Orders 331.23 In what format must applications be collection requirements subject to the submitted? Paperwork Reduction Act of 1995, There are a number of other statutes 331.25 To what address must operators or specifically the application documents and Executive Orders that apply to the providers send their applications? that fixed-base general aviation rulemaking process that the Department 331.27 When are applications due under operators and providers of general must consider in all rulemakings, but this part? aviation ground support services must which the Department has determined Subpart C—Set-Aside for Operators and submit to the Department to obtain are not sufficiently implicated by this Providers at Certain Airports rule to require further action. compensation. The title, description, 331.31 What funds are available to and respondent description of the Specifically, this rule does not impact applicants under this subpart? information collections are shown the human environment under the 331.33 Which operators and providers are below as well as an estimate of the National Environmental Policy Act, eligible for the set-aside under this annual recordkeeping and periodic does not concern constitutionally subpart? reporting burden. Included in the protected property rights such that 331.35 What is the basis upon which operators and providers will be estimate is the time for reviewing Executive Order 12630 is implicated, does not involve policies with tribal reimbursed through the set-aside under instructions, searching existing data this subpart? sources, gathering and maintaining the implications such that Executive Order 331.37 What will happen to any remaining data needed, and completing and 13175 is invoked, does not concern civil funds if operators and providers at the reviewing the collection of information. justice reform under Executive Order three Maryland airports make Title: Procedures (and Form) for 12988, does not involve the protection reimbursable claims totaling less than $5 Reimbursement of General Aviation of children from environmental risks million? Operators and Service Providers in under Executive Order 13045, and will Appendix to Part 331—Application Form for Washington, DC Area. not result in expenditures by State, Reimbursement Under Section 185 of Public Need for Information: The local, and tribal governments, in the Law 109–115 aggregate, or by the private sector, of information is required to administer Authority: 49 U.S.C. 322(a). the requirements of the Act. $100 million or more in any one year. Use of Information: The Department List of Subjects in 14 CFR Part 331 Subpart A—General Provisions of Transportation will use the data submitted by the fixed-base general Air Transportation, Airports, § 331.1 What is the purpose of this part? aviation operators and providers of Airspace, Claims, Grant programs, The purpose of this part is to establish general aviation ground support services Reporting and recordkeeping procedures to implement section 185 of to determine their reimbursement for requirements. the Transportation, Treasury, Housing direct and incremental financial losses Issued this 28th day of March, 2007, at and Urban Development, the Judiciary, incurred while the airports were closed Washington DC. the District of Columbia, and due to Federal government actions taken Mary E. Peters, Independent Agencies Appropriation after the terrorist attacks on September Secretary of Transportation. Act, 2006 (‘‘the Act’’ or ‘‘the 2006 Appropriation Act’’), Public Law 109– 11, 2001. I For the reasons set forth in the 115, 119 Stat. 2396. Section 185 is Frequency: For this final rule, the preamble, the Department adds 14 CFR intended to reimburse certain fixed-base Department will collect the information part 331 to read as follows: once from fixed-base general aviation general aviation operators or providers operators and providers of general PART 331—PROCEDURES FOR of general aviation ground support aviation ground support services. REIMBURSEMENT OF GENERAL services at five airports in the Respondents: The respondents AVIATION OPERATORS AND SERVICE Washington, DC metropolitan area for include an estimated 24 fixed-base PROVIDERS IN THE WASHINGTON, DC direct and incremental losses due to the general aviation operators and providers AREA actions of the Federal government to of general aviation ground support close airports to general aviation service. This estimate is based on the Subpart A—General Provisions operations following the terrorist attacks number of fixed-base general aviation Sec. of September 11, 2001.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17388 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

§ 331.3 What do the terms used in this part entity that exclusively provides such an adjustment or loss, you must mean? products for general aviation activities demonstrate that such adjustments were The following terms apply to this (e.g. a parts or equipment supplier). solely attributable to the Federal part: You means fixed-base general aviation government’s closure of the five Airport means Ronald Reagan operators or providers of general Washington-area airports, are in Washington National Airport; College aviation ground support services. conformity with Generally Accepted Park Airport in College Park, Maryland; Accounting Principles, were fully borne Potomac Airfield in Fort Washington, § 331.5 Who may apply for reimbursement under this part? within the statutory reimbursement Maryland; Washington Executive/Hyde period, that the loss was not If you are or were an eligible fixed- Field in Clinton, Maryland; or discretionary in nature, and that base general aviation operator or Washington South Capitol Street reimbursement would not be provider of general aviation ground Heliport in Washington, DC. duplicative of other relief. support services (collectively ‘‘operators Closed or closure means the period of (b) A temporary loss that you or providers’’) at an eligible airport or time until the first general aviation recovered after the attacks of September airports in the Washington, DC area, and operations were generally permitted at 11, 2001, or that you expect to recover, incurred direct or incremental losses Ronald Reagan Washington National is not eligible for reimbursement under during the applicable reimbursement Airport; until November 30, 2005 at this part. You will not be reimbursed for periods stated at § 331.13 that were Washington South Capitol Street those losses incurred through your own solely due to the actions of the Federal Heliport; or the earliest that transient fault, negligence, or violation of law, or government following the terrorist traffic was generally permitted to return because of the actions of a third party attacks on the United States on to the three Maryland airports. (e.g. an airport). Department means the U.S. September 11, 2001, you may apply for (c) If you engaged in any non-aviation Department of Transportation and all its reimbursement under this part. If you income-producing activities after components, including the Office of the are applying for reimbursement based September 11, 2001, such income must Secretary (OST) and the Federal on losses at more than one airport, then be reported under question number 5 in Aviation Administration (FAA). you must submit separate applications the appendix to this part. Direct and incremental losses means for each airport. For example, if you are (d) So called ‘‘cost savings’’ claims losses incurred by a fixed-base general a provider of general aviation ground (i.e. increasing the claimed amount of aviation operator or a provider of support services at Ronald Reagan reimbursement by reducing actual general aviation ground support services Washington National Airport and expenses to ‘‘adjust’’ for savings in as a result of the Federal government’s Potomac Airfield in Fort Washington, expense categories asserted not to have closure of an airport following the Maryland, you must submit two been affected by the terrorist attacks) are terrorist attacks against the United separate applications. not eligible for reimbursement. States on September 11, 2001. These § 331.7 What losses will be reimbursed? (e) You cannot claim reimbursement losses do not include any losses that (a) You may be reimbursed an amount for the lost time value of money (i.e. would have been incurred had the interest on lost profits for the period of terrorist attacks on the United States of up to the difference between the adjusted income you actually or time the funds were not available for September 11, 2001 not occurred. your use). Fixed-base general aviation operator reasonably forecasted for the eligible reimbursement period and the actual (f) Lobbying fees and attorneys’ fees means an entity based at a particular incurred to promote reimbursement for airport that provides services to and adjusted income you earned during the eligible reimbursement period. If you losses after the terrorist attacks or enact support for general aviation activities, Section 185 of Pub. L. 109–115 are not including the provision of fuel and oil, did not forecast for the eligible reimbursement period or any part of the eligible for reimbursement. aircraft storage and tie-down, airframe (g) Your calculation of revenues, and engine maintenance, avionics eligible reimbursement period, you may be reimbursed for the difference expenses and income must be based on repair, baggage handling, deicing, and financial documents maintained in the the provision of air charter services. The between what you can show you would have reasonably expected to earn as ordinary course of business that were term does not include an entity that prepared for the eligible reimbursement exclusively provides products for adjusted income during that period had the airport at which you are or were an period, such as income statements, general aviation activities (e.g. a parts statements of operations, profit-and-loss supplier). operator or provider not been closed as the result of Federal government statements, operating forecasts, budget Forecast or forecast data means a documents or other similar documents. projection of revenue and expenses actions, and the actual adjusted income during the eligible reimbursement you earned during the eligible § 331.9 What funds will the Department period had the attacks of September 11, reimbursement period. Adjusted income distribute under this part? 2001 not occurred. is calculated on a pretax basis. It is the The Department will distribute the Incurred means to become liable or total of Operating Profit or Loss (i.e., full amount of reimbursement it subject to (as in ‘‘to incur a debt’’). Total Operating Revenues minus Total determines is payable to you under Loss means something that is gone Operating Expenses) and Nonoperating section 185 of the Act. Payment may be and cannot be recovered. Income (Loss); however, it excludes made in one or more installments. Provider of general aviation ground certain expenses, including lobbying support services means an entity that expenses that were incurred to promote § 331.11 What are the limits on does not qualify as a fixed-base general reimbursement for losses after the reimbursement to operators or providers? aviation operator but operates at a terrorist attacks or enact what became (a) You are eligible to receive particular airport and supplies services, Section 185 of Pub. L. 109–115. reimbursement subject to the set-aside either exclusively or predominantly, to Extraordinary, non-recurring, or (subpart C of this part) for eligible support general aviation activities, unusual adjustments, and capital losses operators or providers at College Park including flight schools or security are normally ineligible for Airport in College Park, Maryland; services. The term does not include an reimbursement. If you wish to claim for Potomac Airfield in Fort Washington,

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17389

Maryland; and Washington Executive/ programs, or maintaining or providing Estimated Financial Losses to Selected Hyde Field in Clinton, Maryland. The general aviation services and facilities, General Aviation Entities in the amount available to you as will be considered revenues and should Washington, DC Area (Oct. 2005) (‘‘2005 reimbursement may be reduced to cover be reported as such on your application. General Aviation Study’’), you should the cost of independent verification and not simply reiterate the same data auditing, as set forth in § 331.17. § 331.17 How will the Department verify provided to the Department at that time; and audit claims under this part? (b) If you receive more reimbursement you must provide the most current than the amount to which you are Departmental staff will initially information that is available to you. If entitled under section 185 of the Act or review each claim in detail, and contact you do reiterate that same data provided the subpart C set-aside, the Department you should questions arise. If they are to the Department for the 2005 General will notify you of the basis for the unable to satisfactorily resolve the Aviation Study, the basis for your determination and the amount that you matter following consultation with you, estimates must be verifiable from the must repay to the Department. The your claim will be forwarded to the supporting financial documents that Department will follow collection Office of the Inspector General, or you submit with your application. procedures under the Federal Claims another independent auditor, for (e) Failure to include all required Collection Act of 1966 (31 U.S.C. 3701 verification and, if necessary, an audit. information will delay consideration of et seq.) to the extent required by law, in In addition, the Department may consult your application by the Department and recovering such overpayments. with, or make referrals to, other may result in a rejection. You have the (c) Payment will not be made to you government agencies, including the burden to document and substantiate until you have agreed to release the Department of Justice. If an audit is your claim; the Department will provide United States Government for all claims necessary, a ceiling amount reached, reimbursement only if it is satisfied that for financial losses resulting from the and the audit does not support the payment is fully supported. closure of the five airports in the claimed amount, your reimbursement (f) If, prior to September 11, 2001, you Washington, DC area. The Department may be reduced to cover one-third the did not prepare a forecast covering the will provide a release form to applicants cost of the audit. entire eligible reimbursement period, or that must be completed before any if the forecast you completed is not § 331.19 Who is the final decision maker relevant to the information required by payment is made under Section 185 of on eligibility for, and amounts of the Act. reimbursement? this part, you may submit an ‘‘after-the- fact’’ estimate of the amount that you The Assistant Secretary of Aviation § 331.13 What is the eligible would have reasonably expected to reimbursement period under this part? and International Affairs will make a accrue as adjusted income had the final determination of your eligibility The eligible reimbursement period for airport at which you are or were an and the amount of reimbursement you direct and incremental losses differs by operator or provider not closed. ‘‘After- will receive. airport: the-fact’’ estimates must consider items (a) For Ronald Reagan Washington Subpart B—Application Procedures particular to your business, including National Airport the eligibility period labor agreements and the terms of for reimbursement is from September § 331.21 What information must operators contracts in place at the time of the 11, 2001 until October 18, 2005. or providers submit in their applications for eligible reimbursement period, short- (b) For College Park Airport in College reimbursement? term or long-term budget documents, Park, Maryland, the eligibility period for (a) You must submit the Application documents submitted in support of reimbursement is from September 11, Form for Reimbursement under Section applications for loans or lines-of-credit, 2001 until February 13, 2005. 185 of Public Law 109–115 and other similar documents. You must (c) For Potomac Airfield in Fort (‘‘Application Form’’), located in the explain the methodology that you used Washington, Maryland, the eligibility appendix to this part, along with the when preparing your reconstructed period for reimbursement is from profit and loss statements, forecasts, or forecast. September 11, 2001 until February 13, other financial documents (collectively (g) You must certify that the 2005. ‘‘supporting financial documents’’) information on the application in the (d) For the Washington South Capitol generated as a routine matter for the appendix to this part and all of the Street Heliport in Washington, DC, the purposes of managing your business, supporting financial documents that eligibility period for reimbursement is and relied upon in completing your you are submitting is true and accurate from September 11, 2001 to November application. under penalty of law and that you 30, 2005. (b) To the extent that your calculation acknowledge that falsification of (e) For Washington Executive/Hyde of revenues, expenses and incomes are information may result in prosecution Field in Clinton, Maryland, there are based on monthly records, you must and the imposition of a fine and/or two eligibility periods for adjust your calculation, on a pro-rata imprisonment. reimbursement. The first period is from basis, to conform to the eligibility (h) You must retain all materials you September 11, 2001 until May 16, 2002. period. For example, if you utilize a relied upon to establish your claim for The second period is from September monthly financial record to prepare a losses. 29, 2002 until February 13, 2005. calculation of your September 2001 (i) You must provide mitigating revenues, you should apportion your expenses, lobbying expenses incurred to § 331.15 How will other grants, subsidies, results for the period between promote reimbursement for losses after or incentives be treated by the Department? September 11 and September 30, 2001. the terrorist attacks or enact Section 185 Grants, subsidies, or incentives that (c) If multiple forecasts were prepared of the Act, and special expenses, as well you have received during the eligible for the same period, you must utilize the as extraordinary adjustments, as reimbursement period, either directly or one most recently approved, prior to instructed in the appendix to this part. indirectly, from Federal, State, and local September 11, 2001, so long as it is (j) If you need professional accounting entities, to reimburse you for the cost of otherwise objective and reliable. services to assist in the preparation of operations and capital improvements (d) If you provided information to the your application, you may claim associated with implementing security Department as part of its study entitled reimbursement for 80% of the actual

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17390 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

amount you paid for such services, up Postal Service, Federal Express, UPS, or 2. Applicant address: to a maximum reimbursement of $2,000. DHL. lllllllllllllllllllll You may claim reimbursement only for (c) If complete applications are not lllllllllllllllllllll lllllllllllllllllllll professional services; your own time in submitted to the address in paragraph applying for reimbursement is not (a) of this section, they will not be 3. At which of the following airports did reimbursable. Any claim for accepted by the Department. the applicant operate as a fixed-base operator or provider of general aviation ground professional accounting services must § 331.27 When are applications due under support services during the eligible period be accompanied with appropriate this part? for reimbursement? documentation as to the nature and You must submit your application by extent of services performed, the • b June 8, 2007. Ronald Reagan Washington National amount billed, and payment. Airport • Employment or use of such professional Subpart C—Set-Aside for Operators or College Park Airport in College Park, b Maryland services does not relieve you of the Providers at Certain Airports responsibility for the accuracy and • Potomac Airfield in Fort Wash- b ington, Maryland completeness of the application. § 331.31 What funds are available to • applicants under this subpart? Washington Executive/Hyde Field in b (k) If you believe that the release of Clinton, Maryland financial information provided to the The Department is setting aside a sum • Washington South Capitol St. Heli- b Department in support of your of $5 million to reimburse eligible port, Washington, DC operators or providers, as set forth in application would cause you substantial 4. Briefly describe the nature of the harm if released by the Department to section 185 of the Act. applicant’s operations as a fixed-base general the public upon an appropriately made § 331.33 Which operators and providers aviation operator or a provider of general request, you may request that the are eligible for the set-aside under this aviation ground support services at each Department hold portions of your subpart? airport during the eligible period for application as confidential. Your reimbursement. Operators or providers at the lllllllllllllllllllll request must specify the portions of following three airports during the your application that should be held by lllllllllllllllllllll eligible reimbursement periods are lllllllllllllllllllll the Department as confidential, and you eligible for the set-aside: must provide an explanation as to how 5. Did the applicant or any part of it (a) College Park Airport in College conduct non-fixed-base general aviation the release of such information would Park, Maryland; activities or provide non-aviation ground cause you substantial harm. (b) Potomac Airfield in Fort support services during the 2001 through 2005 period? § 331.23 In what format must applications Washington, Maryland; and be submitted? (c) Washington Executive/Hyde Field b Yes. Briefly describe the non-fixed-base in Clinton, Maryland. general aviation activities and non- (a) The Application Form, located in aviation ground support services. the appendix to this part, must be § 331.35 What is the basis upon which lllllllllllllllllllll submitted in hardcopy format and, if operators or providers will be reimbursed lllllllllllllllllllll possible, in electronic format. The through the set-aside under this subpart? lllllllllllllllllllll Department has made available an Operators or providers eligible under b No. electronic version of this form at the this subpart will be reimbursed 6. Briefly describe how the events of following Web site: http:// pursuant to the same procedures set September 11, 2001 affected the applicant’s ostpxweb.dot.gov/aviation/index.html. forth in subpart B of this part. If total operations as a fixed-base general aviation (Click on ‘‘Programs’’ and scroll to losses for all eligible claims at the three operator or a provider of general aviation ground support services. ‘‘General Aviation Operator and Service airports set forth in § 331.31 of this part lllllllllllllllllllll Provider Reimbursement.’’ are less than $5 million, then such lllllllllllllllllllll (b) All supporting financial claims will be paid in full. If the total lllllllllllllllllllll documents must be submitted in hard losses for all eligible claims at the three 7. In response to the events of September copy. In addition, you may submit airports set forth in § 331.31 of this part 11, 2001, did the applicant take any action financial and accounting tabular data in exceed $5 million, then the total losses to lessen or offset the impact of those events? Excel spreadsheet format, utilizing a will be divided on a pro rata basis, and b Yes. Briefly describe those actions and 3.5″ floppy disk, compact disk, or flash a proportionate amount for each claim the effect they had on the applicant. memory device, and doing so may will be distributed to applicants. lllllllllllllllllllll expedite the processing of your claim. lllllllllllllllllllll § 331.37 What will happen to any lllllllllllllllllllll (c) Faxed and e-mailed applications remaining funds if operators and providers b No. are not acceptable and will not be at the three Maryland airports make considered. reimbursable claims totaling less than $5 8. Has the applicant filed income taxes for million? any period between 1999 and 2005? § 331.25 To what address must operators b Yes. Specify the filing status under or providers send their applications? If the operators and providers who are eligible for the $5 million set-aside do which the applicant filed (corporation, partnership, sole proprietorship, etc.) (a) You must submit your application not exhaust the funds designated under and all required supporting information, lllllllllllllllllllll the set-aside, then any remaining money lllllllllllllllllllll to the following address: U.S. from the set-aside will be made b No. Department of Transportation, Office of available for other valid claims made 9. Baseline Financial Data and Forecasts. Aviation Analysis (X–50)Aviation Relief under this part. Desk, Room 6401, 400 7th Street, SW., Attach to this Appendix copies of your profit Washington, DC 20590. Appendix to Part 331—Application and loss statements, or such financial records as you generated as a routine matter for the (b) Your application must be Form for Reimbursement Under Section 185 of Public Law 109–115 use of management, for the periods 1999 submitted via courier or an express through 2005, that show your actual financial package service, such as registered U.S. 1. Applicant name: lllllllllll results. Similarly, attach copies of any actual

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17391

forecasts that you prepared for both these adjusted company forecast/budget of the remaining eligible period may be baseline periods and for any part of the operating results that existed prior to submitted. If such an after-the-fact estimate is reimbursement periods that were prepared September 11, 2001 if such a forecast/budget used, describe below the period for which it prior to September 11, 2001. was actually prepared. If the applicant did applies and the methodology that was used 10. The requested amount of not prepare any such pre-September 11 to determine it. reimbursement claimed below must be based forecasts, or prepared them for less than the lllllllllllllllllllll on a comparison of actual operating results full reimbursement period, an after-the-fact lllllllllllllllllllll (revenues, expenses and profits or losses), estimate of what the applicant can document lllllllllllllllllllll adjusted as indicated, with a similarly can reasonably be expected to earn during 11. Reimbursement Claim

Financial Data Column A Column B Column C

Pre 9–11–01 Forecast or after- Actual results for the eligible Column A minus Column B the-fact estimate for the eligi- period*. ble period*.

Line 1—Total Operating Revenues

Line 2—Total Operating Expenses

Line 3—Operating Profit or (Loss)

Line 4—Nonoperating Revenue

Line 5—Nonoperating Expenses.

Line 6—Nonoperating income (loss) before taxes.

Line 7—Professional Application Fee (@80%, max. $2000).

Total—Adjusted Income Line 3 plus line 6 and line 7 in the last column.

The table above applies to the period 9– or providers submit in their applications for Position of Contact Person (if different from 11–01 through 2–13–05 for the three reimbursement?’’), or extraordinary, non- above) Maryland airports, including Washington recurring, or unusual adjustments? Phone Number of Contact Person: Executive/Hyde Field. However, for Hyde b Yes. Briefly describe these expenses and (voice) llllllllllllll Field please prepare separate claims for the the amount of each, and state if they (fax) lllllllllllllll periods before, during and after the ineligible have been included in or excluded from E-mail Address of Contact Person: period, 5–17–02 through 9–28–02. For the totals in the table at item number 11. lllllllllllllllllllll Ronald Reagan Washington National Airport, lllllllllllllllllllll Instructions for Completing Application the eligible period is from 9–11–02 through lllllllllllllllllllll Form for Reimbursement Under Section 185 10–18–05 and for Washington South Capitol lllllllllllllllllllll Street Heliport, the period is from 9–11–01 of Public Law 109–115 b No. through 11–30–05. 1. Applicant name. Lobbying expenses incurred to promote 14. Certification. I certify the above This is the person or legal entity who reimbursement for losses after the terrorist information and all attached documents as undertakes to act as a fixed-base general attacks or enact Section 185 of Public Law true and accurate under penalty of law, and aviation operator or who provides general 109–115 are to be excluded from both acknowledge that falsification of information aviation ground support services, directly or Columns A and B. may result in prosecution and imposition of by a lease or any other arrangement. 12. Has the applicant or any of its a fine and/or imprisonment. 2. Applicant address. subsidiaries or affiliates received grants, lllllllllllllllllllll The applicant address is that location subsidies, incentives or similar payments Signature of Company Official (must be within the local tax authority jurisdiction from local, state, or Federal governmental President, CEO, COO, or CFO) that is held out to the public as the business entities in support of the security, or airport address. maintenance and provision of general lllllllllllllllllllll 3. Airport of operation on September 11, aviation services and facilities furnished in Printed Name of Company Official 2001. response to the events of September 11, lllllllllllllllllllll This question asks the applicant to identify 2001? (This includes payments under the Position (President, CEO, COO, or CFO) of those airports in the Washington, DC area Aviation Transportation Security Act (ATSA) Company Official where it provided either fixed-base general Public Law 107–71 November 19, 2001, and aviation services or general aviation ground the Airport Improvement Program (AIP)). Phone Number of Company Official: support services on September 11, 2001. (voice) llllllllllllll b Yes. Enter amount = $llllll . Check as many airports as you served on (fax) lllllllllllllll September 11, 2001. b No. Date llllllllllllllllll 4. Briefly describe the nature of the 13. Has the applicant or any of its applicant’s operations as a fixed-base general lllllllllllllllllllll subsidiaries or affiliates incurred lobbying aviation operator or a provider of general expenses, mitigating expenses, or special Name of Contact Person (if different from aviation ground support services at each expenses (as described in the section above) airport during the eligible period for captioned ‘‘What information must operators lllllllllllllllllllll reimbursement.

VerDate Aug<31>2005 17:14 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17392 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

You should describe the specific fixed-base registrations, or other similar information For purposes of completing the general aviation services or general aviation that in whole or in part cover the period from information in the reimbursement claim ground support services that you provided at 1999 through 2005. table, total operating revenues (line 1) each of the airports. 10. The requested amount of include the inflow of funds to the applicant 5. Did the applicant or any part of it reimbursement claimed below must be based resulting from the sale of goods and services conduct non-fixed-base general aviation on a comparison of actual operating results related to the activities of a fixed-base activities or provide non-aviation ground (revenues, expenses and profits or losses) operator or a provider of general aviation support services during the 2001 through (adjusted as shown), with a similarly services. Examples include, but are not 2005 period? adjusted company forecast of operating limited to, monetary amounts or value Check ‘‘Yes’’ if you conducted any non- results that existed prior to September 11, received for providing: aircraft fuel or oil; fixed-base general aviation activities or 2001 if such a forecast was actually prepared. delivery of aircraft fuel or oil; transient and provided non-aviation ground support If the applicant did not prepare any such pre- long-term storing, tie down parking and services during the 2001 through 2005 September 11 forecasts, or prepared them for sheltering of aircraft; maintenance, period. Describe the activities that you less than the full reimbursement period, an inspection, checking, upgrading of aircraft undertook during this period that did not after-the-fact estimate of what the applicant and aircraft related equipment and for directly support general aviation at the can document that it reasonably expected to polishing and cleaning property and airport. earn during the remaining eligible period equipment; providing flight instruction 6. Briefly describe how the events of may be submitted. If such an after-the-fact services and materials; and miscellaneous September 11, 2001 affected the applicant’s estimate is used, describe below the period items for purchase such as maps, books, operations as a fixed-base general aviation for which it applies and the methodology flight clothing, sectional charts, devices and operator or a provider of general aviation that was used to determine it. parts for aircraft, food services, hospitality ground support services. Indicate here whether an ‘‘after-the-fact’’ services, auto rentals, aircraft custodial and You should describe how the level and forecast was prepared, and briefly describe sanitation services, assistance grants from conduct of your operations as a fixed-base the methodology used in preparing the state and Federal government agencies, general aviation operator or your operations forecast. Your methodology must take into insurance payments, and revenues derived as a provider of general aviation ground account items relevant to your businesses, from the business activities conducted at support services were changed as a result of such as the terms of existing contracts, short- alternative airports to those that were closed. September 11, 2001 and the ensuing security term or long-term budget documents, Total operating expenses (line 2) include restrictions that were imposed by the Federal documents submitted in support of the cost to the applicant of providing the government. applications for loans or lines-of-credit, goods and services related to the activities of a fixed-base operator or a provider of general 7. Did the applicant undertake any actions existing labor agreements and leasing aviation services. Examples include, but are to lessen or offset the impact of the Federal agreements, and other similar types of not limited to: Labor costs for all categories government’s closure of airports in the documents. of employees (including compensation, Washington, DC area following the attacks of In preparing your ‘‘after-the-fact’’ forecast, vacation and sick leave pay, medical benefits, September 11, 2001? you may wish to consult a July 2001 report workmen’s compensation contributions, prepared for the FAA, entitled Forecasting Check ‘‘Yes’’ if you attempted to minimize accruals or annuity payments to pension the impact that the terrorist attacks of Aviation Activity by Airport. This report was funds, training reimbursements, professional September 11, 2001 had on your business. prepared by GRA, Incorporated (GRA), for fees, licensing fees, educational or Briefly describe your actions and the effect the FAA’s Office of Aviation Policy Plans recreational activities for the benefit of the that they had on you. Include any activities Statistical and Forecast Branch (APO–110). employee, stock incentives, etc.); the cost of or services undertaken after September 11, While the Department recognizes that fixed- fuel and oil including nonrefundable aircraft 2001 that did not provide support for general base general aviation operators and providers fuel and oil taxes; insurance; flight and aviation but that did provide revenues to of general aviation ground support services ground equipment parts; general services sustain your business. are different entities than larger airports at purchased for flight or ground equipment 8. Has the applicant filed income taxes for which scheduled service is provided, the maintenance; depreciation of flight and any period between 1999 and 2005? Department believes that this document ground equipment; amortization of Check ‘‘Yes’’ if you filed income taxes offers relevant guidance to applicants who do capitalized leases for flight and ground during this period, and indicate the filing not prepare forecasts as part of regular equipment; provisions for obsolescence and status under which you filed your income tax business operations. This July 2001 report deterioration of spare parts; insurance returns. may be accessed at: http://www.faa.gov/ premiums; and rental expenses of flight and _ _ _ 9. Baseline Financial Data and Forecasts. data statistics/aviation data statistics/ ground equipment expenses associated with Attach to this Appendix copies of your profit forecasting/media/AF1.doc. business activities conducted at alternative and loss statements, or such financial records The July 2001 report explains the basic airports to those that were closed. as you generated as a routine matter for the steps usually utilized in preparing forecasts, Advertising, promotion and publicity use of management, for the periods 1999 including: Identifying parameters and expenses, landing fees, clearance, customs through 2005, that show your actual financial measures to forecast; collecting forecast and duties, utilities, bookkeeping, results. Similarly, attach copies of any actual information of expected revenues or accounting, recordkeeping and legal services forecasts that you prepared for both these expenses, including budgets; gathering and are also part of the total operating expenses. baseline periods and for any part of the evaluating data; selecting a forecast method Operating profit or loss is calculated by reimbursement periods that were prepared (such as regression and trend analysis, share subtracting the total operating expenses from prior to September 11, 2001. analysis, or exponential smoothing); applying the total operating revenues. If the total This question directs applicants to provide methods and evaluating results; and operating revenues exceed the total operating the Department with certain financial summarizing and documenting the results. expenses, the calculation results in an documents in order to verify and substantiate Additionally, data sources to assist you in operating profit. If the total operating their claims. Documents that you have making adjustments to your forecast are expenses exceed the total operating revenues, already prepared should be sufficient. When available from the Department’s Web site at the calculation results in an operating loss. necessary, you should supplement these http://ostpxweb.dot.gov/aviation/index.html Nonoperating income and expenses documents with footnotes or explanations (Click on ‘‘Programs’’ and scroll down to include: income and loss incident to that are pertinent to your reimbursement ‘‘General Aviation Operator and Service commercial ventures not inherently related claim. The financial data may include such Provider Reimbursement’’). The Department to the direct provision of fixed-base operator documents as income statements, statements notes that, while it can answer questions for services or general aviation ground support of operations, forecasts of operating results, applicants that might arise while applicants services; other revenues and expenses income projections, pro forma budget develop forecasts, the Department is not in a attributable to financing or other activities projections, budget documents, tax position to propose or develop projections for that are extraneous to and not an integral part preparation support material, information applicants. of general aviation services; and special presented in investment perspectives and 11. Reimbursement Claim. recurrent items of a nonperiod nature.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17393

Examples of non-operating income subsidies, incentives or similar payments 14. Certification. include, but are not limited to: Interest from local, state, or Federal governmental You must certify that all information income; foreign exchange gains; equity entities in support of the security, contained on the Background and Eligibility investment in an investor controlled maintenance and provision of general Form and the documents submitted in company; intercompany transactions; aviation services and facilities furnished in support of your application (e.g., profit and dividend income; and net unrealized gains response to the events of September 11, loss statements, actual forecasts, after-the-fact on marketable equity securities. 2001? (This includes payments under the forecasts, etc.) are accurate. This certification Examples of non-operating expenses Aviation and Transportation Security Act of is made under penalty of law. Falsification include, but are not limited to: Interest on 2001 (Public Law 107–38) and the Airport may be grounds for monetary and/or criminal long-term debt and capital leases; interest on Improvement Program under the Airport and sanctions. This certification must be made by short-term debt; imputed interest capitalized; Airway Improvement Act of 1982 (Public a company President, CEO, COO, or CFO. amortization of discount and expense on Law 97–248).) debt; foreign exchange losses; fines or This question requires that you disclose all [FR Doc. E7–6350 Filed 4–6–07; 8:45 am] penalties imposed by governmental grants, subsidies, or incentives that you BILLING CODE 4910–9X–P authorities; costs related to property held for received during the eligible reimbursement future use; donations to charities, social and period, either directly or indirectly, from community welfare purposes; losses on Federal, State, and local entities, to reacquired and retired or resold debt reimburse you for the cost of operations and DEPARTMENT OF ENERGY securities; and losses on uncollectible non- capital improvements associated with operating receivables. implementing security programs, or Federal Energy Regulatory For reasons set forth elsewhere in § 331.7 maintaining or providing general aviation Commission of this part, you may not include lobbying services and facilities. expenses that were incurred to promote 13. Has the applicant or any of its reimbursement for losses after the terrorist subsidiaries or affiliates incurred lobbying 18 CFR Part 101 attacks or enact Section 185 of Pub. L. 109– expenses, mitigating expenses, or special 115. Non-operating income is the result of expenses (as described in the section [Docket No. RM04–12–000] subtracting the non-operating expenses from captioned ‘‘What information must operators the non-operating revenues. Professional or providers submit in their applications for Accounting and Financial Reporting application fees provide for reimbursement reimbursement?’’), or extraordinary of 80 percent of the cost of professional for Public Utilities Including RTOs; adjustments? Notice of Extension of Time accounting services required in the Check ‘‘Yes’’ if you incurred any such preparation and submission of the expenses or experienced any such application. Adjusted Income for each of the April 2, 2007. adjustments. You must briefly describe the Columns A and B is the sum of the Operating AGENCY: Federal Energy Regulatory nature of such expenses and adjustments, profit (or loss) (line 3) plus line 6, Non- including the amounts. Additionally, you Commission, DOE. operating income (loss). Each line of Column must indicate whether or not such expenses C is the result of subtracting Column B from ACTION: Final rule: notice of extension of Column A, except on line 7, Professional or adjustments have been included in or time. Application Fees, where the claimant may excluded from the totals in the table at item enter 80 percent of professional application number 11. SUMMARY: On December 16, 2005, the fees (up to a maximum of $2,000). The Lobbying includes any amount paid to any Commission issued Order No. 668, a Adjusted Income figure on the Total line of person for influencing or attempting to influence an officer or employee of any Final Rule amending the Commission’s Column C represents the amount claimed as regulations to update the accounting total reimbursement; it may of course be agency, a Member of Congress, an officer or employee of Congress, or an employee of a and reporting requirements for public adjusted as the result of Department review. utilities and licensees, including All Adjusted Income figures do not reflect Member of Congress. taxes due in the current period, as a Mitigating expenses include the utilization independent system operators and consequence, reimbursements will be pre-tax of property, the provision of services and the RTOs. Because the Commission has and income taxes may be due on reimbursed sale of goods that were undertaken to updated the submission software used funds. mitigate losses arising from the Federal to file FERC Form Nos. 1 and 1–F, the The difference between column A and B is government’s closure of airports attendant to Commission is issuing a notice the September 11, 2001 attack. These could the basis for column C. This constitutes the extending the filing deadline for the total amount of your claim for include expenses incurred for the provision of services and sale of goods moved from filing of 2006 FERC Form Nos. 1 and 1– reimbursement. As the eligibility periods, for F. the most part, begin and end on days other restricted airports to unrestricted airports or than the first or last days of the month, compensation for non-aviation oriented DATES: The filing deadline for 2006 quarter or year, data from already existing goods and services provided at restricted FERC Form Nos. 1 and 1–F is extended financial statements must be adjusted, on a airports. Mitigating expenses may also to May 18, 2007. pro rata basis, to reflect the eligibility include operating expenses for aviation- periods. For example, the period of eligibility related fixed assets or capital utilized outside FOR FURTHER INFORMATION CONTACT: for all applicants begins on September 11, of the restricted airport. Brenda D. Devine, Division of Financial 2001 and therefore, the only time period Special expenses include, but are not Regulation, Federal Energy Regulatory during the month of September that is limited to, moving expenses, additional Commission, 888 First Street, NE., eligible for reimbursement is September 11 security equipment and facilities, and loss on Washington, DC 20426, (202) 502–8522. through September 30, a period of 20 days. sales of assets that arose from the direct Applicants should be prepared to show both imposition of restrictions during the period SUPPLEMENTARY INFORMATION: how they apportioned such financial data September 11, 2001 through the applicable Notice Granting Extension of Time for into the reimbursement periods, and why eligible date. Any item reported under they chose the apportionment approach used. Special Expenses shall not also be expensed Filing FERC Form Nos. 1 and 1–F Applicants can then use these estimates for in other expense categories that are reflected On December 16, 2005, the the specified periods at the beginning and in the calculation of the reimbursement Commission issued Order No. 668, a claim. Details regarding special expenses end of the eligible period to add to the Final Rule amending the Commission’s financial amounts for 2002, 2003, and 2004 should be noted in footnotes. to calculate the total amounts sought in Extraordinary adjustments are events or regulations to update the accounting Appendix A. transactions that are material to your and reporting requirements for public 12. Has the applicant or any of its business and unusual in nature and utilities and licensees, including subsidiaries or affiliates received grants, infrequent in occurrence. independent system operators and

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17394 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

regional transmission organizations.1 FOR FURTHER INFORMATION CONTACT: (3) must specify with particularity the Order No. 668 amended FERC Form Andrew J. Zajac, Center for Food Safety provision of the regulation or proposed Nos. 1 and 1–F by adding new and Applied Nutrition (HFS–265), Food order objected to; (4) must specifically schedules and revising existing and Drug Administration, 5100 Paint state each objection on which a hearing schedules in the forms. The Branch Pkwy., College Park, MD 20740– is requested; failure to request a hearing Commission updated the submission 3835, 301–436–1267. on an objection constitutes a waiver of software used to file FERC Form Nos. 1 SUPPLEMENTARY INFORMATION: the right to a hearing on that objection; and 1–F to reflect the new financial and (5) must include a detailed reporting requirements of Order No. I. Introduction description and analysis of the factual 668. FDA published a notice in the Federal information to be presented in support The annual filing date for FERC Form Register of March 13, 2003 (68 FR of the objection if a hearing is requested; Nos. 1 and 1–F is April 18. However, in 12087), announcing the filing of food failure to include a description and light of the software changes made to additive petition, FAP 3M4745, by Ion analysis for an objection constitutes a implement Order No. 668, the filing Beam Applications to amend the food waiver of the right to a hearing on that deadline for the 2006 FERC Form Nos. additive regulations in § 179.26 Ionizing objection. 1 and 1–F is extended until May 18, radiation for the treatment of food (21 Following publication of the 7.5 MeV 2007. CFR 179.26) by increasing the maximum x-ray final rule, FDA received about 100 permitted energy level of x-rays for objections within the 30-day objection Philis J. Posey, treating food from 5 to 7.5 MeV. The period. All but one of these submissions Acting Secretary. rights to this petition were subsequently expressed general opposition to [FR Doc. E7–6511 Filed 4–6–07; 8:45 am] transferred to Sterigenics International, increasing the maximum permitted BILLING CODE 6717–01–P Inc. In response to this petition, FDA energy level of x-rays used to irradiate issued a final rule in the Federal food and to food irradiation. Most of Register of December 23, 2004 (69 FR these objections were form letters, DEPARTMENT OF HEALTH AND 76844) permitting the safe use of 7.5 identically worded, urging FDA to HUMAN SERVICES MeV x-rays for treating food provided conduct additional studies on the effects that the x-rays are generated from of 7.5 MeV x-rays on food and objecting Food and Drug Administration machine sources that use tantalum or ‘‘to the agency’s decision knowing that gold as the target material, with no some amount of radioactivity could be 21 CFR Part 179 change in the maximum permitted dose created in food treated with 7.5 MeV.’’ [Docket No. 2003F–0088 (formerly 03F– levels or uses currently permitted by While most of these objections 0088)] FDA’s food additive regulations (the 7.5 requested a hearing, no evidence was MeV x-ray final rule). The preamble to submitted in support of these objections Irradiation in the Production, the final rule advised that objections to that could be considered in an Processing and Handling of Food the final rule and requests for a hearing evidentiary hearing. These submissions were due within 30 days of the expressing general opposition raise no AGENCY: Food and Drug Administration, publication date (i.e., by January 24, factual issue for resolution and, HHS. 2005). therefore, do not justify a hearing.1 The ACTION: Final rule; response to one submission raising specific II. Objections and Requests for a objections and denial of requests for a objections was a letter from Public Hearing hearing. Citizen with six objections to the 7.5 Section 409(f) of the Federal Food, MeV x-ray final rule. The letter SUMMARY: The Food and Drug Drug, and Cosmetic Act (the act) (21 requested a hearing on issues raised by Administration (FDA) is responding to U.S.C. 348(f)) provides that, within 30 each objection. These objections are objections and is denying requests that days after publication of an order addressed in section IV of this it has received for a hearing on the final relating to a food additive regulation, document. rule that amended the food additive any person adversely affected by such regulations by establishing a new order may file objections, specifying III. Standards for Granting a Hearing maximum permitted energy level of x- with particularity the provisions of the Specific criteria for deciding whether rays for treating food of 7.5 million order ‘‘deemed objectionable, stating to grant or deny a request for a hearing electron volts (MeV) provided that the reasonable grounds therefore, and are set out in § 12.24(b). Under that x-rays are generated from machine requesting a public hearing upon such regulation, a hearing will be granted if sources that use tantalum or gold as the objections.’’ FDA may deny a hearing the material submitted by the requester target material, with no change in the request if the objections to the shows, among other things, the maximum permitted dose levels or uses regulation do not raise genuine and following: (1) There is a genuine and currently permitted by FDA’s food substantial issues of fact that can be substantial factual issue for resolution at additive regulations. After reviewing the resolved at a hearing (Community a hearing; a hearing will not be granted objections to the final rule and the Nutrition Institute v. Young, 773 F.2d on issues of policy or law; (2) the factual requests for a hearing, the agency has 1356, 1364 (D.C. Cir. 1985), cert. denied, issue can be resolved by available and concluded that the objections do not 475 U.S. 1123 (1986)). specifically identified reliable evidence; raise issues of material fact that justify Under the food additive regulations at a hearing will not be granted on the a hearing or otherwise provide a basis 21 CFR 171.110, objections and requests basis of mere allegations or denials or for removing the amendment to the for a hearing are governed by part 12 (21 general descriptions of positions and regulation. CFR part 12) of FDA’s regulations. Under § 12.22(a), each objection must 1A large number of these form letters were 1 Accounting and Financial Reporting for Public meet the following conditions: (1) Must submitted after the close of the objection period. Utilities Including RTOs, Order No. 668, FERC Tardy objections fail to satisfy the requirements of Stats. & Regs. ¶ 31,199 (2005), reh’g denied, Order be submitted on or before the 30th day 21 U.S.C. 348(f)(1) and need not be considered by No. 668–A, FERC Stats. & Regs. ¶ 31,215 (2006), after the date of publication of the final the agency (ICMAD v. HEW, 574 F.2d 553, 558 n.8 reh’g denied, 117 FERC ¶ 61,066 (2006). rule; (2) must be separately numbered; (D.C. Cir), cert. denied, 439 U.S. 893 (1978)).

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17395

contentions; (3) the data and Mines & Smelting Co., 455 F.2d 432 (9th resulting in higher neutron production information submitted, if established at Cir. 1971)). In other words, a hearing is in the food and more activity. Public a hearing, would be adequate to justify justified only if the objections are made Citizen cites a published paper in the resolution of the factual issue in the way in good faith and if they ‘‘draw in petition in which the authors note that sought by the requestor; a hearing will question in a material way the measurements and calculations of a 7.5 be denied if the data and information underpinnings of the regulation at MeV setting actually correspond to 8.1 submitted are insufficient to justify the issue’’ (Pactra Industries v. CPSC, 555 MeV 0.8 MeV. factual determination urged, even if F.2d 677 (9th Cir. 1977)). Finally, courts The objection does not raise a genuine accurate; (4) resolution of the factual have uniformly recognized that a and substantial issue of fact for issue in the way sought by the person hearing need not be held to resolve resolution at a hearing. Contrary to the is adequate to justify the action questions of law or policy (see Citizens objection, the final rule does not set a requested; a hearing will not be granted for Allegan County, Inc. v. FPC, 414 ‘‘nominal energy’’ limit. The final rule on factual issues that are not F.2d 1125 (D.C. Cir. 1969); Sun Oil Co. sets out 7.5 MeV as the maximum determinative with respect to the action v. FPC, 256 F.2d 233, 240 (5th Cir.), cert. energy permitted. X-rays from machine requested (e.g., if the action would be denied, 358 U.S. 872 (1958)). sources at energies exceeding 7.5 MeV the same even if the factual issue were Even if the objections raise material are not permitted by the final rule. resolved in the way sought); (5) the issues of fact, FDA need not grant a Further, the objection provides no action requested is not inconsistent with hearing if those same issues were evidence to support the contention that any provision in the act or any FDA adequately raised and considered in an safety concerns regarding inherent regulation; and (6) the requirements in earlier proceeding. Once an issue has limitations on the precision of setting other applicable regulations, e.g., 21 been so raised and considered, a party and measuring voltage were not CFR 10.20, §§ 12.21, and 12.22, and in is estopped from raising that same issue considered. The paper referred to in the the notice issuing the final regulation or in a later proceeding without new objection, Gregoire, O., Cleland, M.L., the notice of opportunity for hearing are evidence. The various judicial doctrines Wakeford, Mittendorfer, et al., met. dealing with finality can be validly ‘‘Radiological Safety of Food Irradiation A party seeking a hearing is required applied to the administrative process. In With High Energy X-Rays: Theoretical to meet a ‘‘threshold burden of explaining why these principles ‘‘self Expectations and Experimental tendering evidence suggesting the need evidently’’ ought to apply to an agency Evidence,’’ 2002, was included as a for a hearing’’ (Costle v. Pacific Legal proceeding, the U.S. Court of Appeals reference in the final rule and counters Foundation, 445 U.S. 198, 214–215 for the District of Columbia Circuit the objection. The paper discusses the (1980), reh. denied, 446 U.S. 947 (1980), wrote: ‘‘The underlying concept is as radiological implications of irradiating citing Weinberger v. Hynson, Westcott & simple as this: Justice requires that a meat with 7.5 MeV x-rays to an x-ray Dunning, Inc., 412 U.S. 609, 620–621 party have a fair chance to present his dose of 15 kGy, which is more than (1973)). An allegation that a hearing is position. But overall interests of twice the maximum dose allowed for necessary to ‘‘sharpen the issues’’ or to administration do not require or meat irradiation (4.5 kGy maximum for ‘‘fully develop the facts’’ does not meet generally contemplate that he will be refrigerated meat and 7.0 kGy maximum this test (Georgia Pacific Corp. v. EPA, given more than a fair opportunity.’’ for frozen meat) (see § 179.26(b)). 671 F.2d 1235, 1241 (9th Cir. 1982)). If Retail Clerks Union, Local 1401 v. Experiments were performed with x-ray a hearing request fails to identify any NLRB, 463 F.2d 316, 322 (D.C. Cir. machines that use two different types of factual evidence that would be the 1972). (See Costle v. Pacific Legal electron accelerators, one delivering subject of a hearing, there is no point in Foundation, supra at 215–220. See also electrons with a narrow electron energy holding one. In judicial proceedings, a Pacific Seafarers, Inc. v. Pacific Far East spread, the other delivering a broad court is authorized to issue summary Line, Inc., 404 F.2d 804 (D.C. Cir. 1968), energy spread. The Gregoire paper judgment without an evidentiary cert. denied, 393 U.S. 1093 (1969).)) concluded that risk to individuals from hearing whenever it finds that there are In summary, a hearing request must intake of food irradiated with x-rays no genuine issues of material fact in present sufficient credible evidence to from 7.5 MeV electrons, even with a dispute and a party is entitled to raise a material issue of fact and the broad energy spread, would be trivial. judgment as a matter of law (see Rule evidence must be adequate to resolve In the experiments discussed in the 56, Federal Rules of Civil Procedure). the issue as requested and to justify the Gregoire paper, the equipment was set The same principle applies in action requested. to achieve a voltage of 7.5 MeV. administrative proceedings (see § 12.28). Measurements (including calculations) A hearing request must not only IV. Analysis of Objections and to verify the precision of the settings contain evidence, but that evidence Response to Hearing Requests estimated that the machine produced should raise a material issue of fact The letter from Public Citizen raises electrons at an energy of approximately concerning which a meaningful hearing six issues that they believe to be factual 8.1 MeV, with an uncertainty margin of might be held (Pineapple Growers Ass’n and requests a hearing based on these 0.8 MeV. In other words, within the v. FDA, 673 F.2d 1083, 1085 (9th objections. FDA addresses each of the limits of precision of the measurements, Cir.1982)). Where the issues raised in objections in the following paragraphs, the energy of the electrons used to the objection are, even if true, legally as well as the evidence and information produce the x-rays was shown to be insufficient to alter the decision, the filed in support of each, comparing each greater than 7.3 MeV but less than 8.9 agency need not grant a hearing (see objection and the information submitted MeV. FDA notes that even though the Dyestuffs and Chemicals, Inc. v. in support of it to the standards for equipment in this experiment produced Flemming, 271 F.2d 281 (8th Cir. 1959), granting a hearing in § 12.24. a higher energy level than permitted by cert. denied, 362 U.S. 911 (1960)). FDA (1) Public Citizen contends that FDA the regulation, the results show that any need not grant a hearing in each case did not adequately account for the fact radioactivity that might be induced at where an objector submits additional that an electron beam on an x-ray target that higher energy level is trivially information or posits a novel is not monoenergetic, and that a small. interpretation of existing information significant portion of the beam may be Public Citizen has not raised a (see United States v. Consolidated higher than the nominal energy, genuine and substantial issue of fact and

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17396 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

has not provided any information that Public Citizen’s objection presents no additive will not be granted a tolerance contradicts the agency’s safety factual evidence that FDA has that will exceed 1/100th of the determination. Thus, a hearing is not overlooked in reaching the decision that maximum amount demonstrated to be justified based on this objection 7.5 MeV x-rays are safe for treating food without harm to experimental animals (§ 12.24(b)(1) and (2)). under the conditions of use specified in unless evidence is submitted which (2) Public Citizen claims that FDA has the regulation. Thus, Public Citizen has justifies use of a different safety factor. concluded that any induced activity in failed to justify a hearing on this issue Public Citizen expresses the view that food from treating it with 7.5 MeV x- (§ 12.24(b)(2)). this non-compliance includes not only rays is safe without a standard for a (3) Public Citizen objects to the the failure to conduct any animal ‘‘safe’’ level of induced activity in food agency’s approval of 7.5 MeV x-rays for experiments using foods irradiated with and further objects to any additional treating food without assessing the risk 7.5 MeV x-rays, but also the failure to radiation level in treated food. of getting cancer from eating food with calculate a 100-to-1 safety factor or The objection does not cite any added radioactivity. The objection submit evidence that justifies the use of support for its contention that FDA points to a paper by Ari Brynjolfsson, a different safety factor. must establish a general standard for a cited by the petitioner, which estimates The objection does not include any safe level of induced activity in food the lifetime cancer risk from eating evidence or support for the contention beyond the act’s requirements for food foods irradiated with 7.5 MeV x-rays to that animal experiments are required to additive approvals. The use of x-rays to be 0.8 per million.2 be conducted to determine whether a treat food is a food additive under the FDA disagrees with Public Citizen’s proposed use of a food additive is safe. act’s definition of ‘‘food additive,’’ assertion that it did not consider the risk The safety criteria that must be which includes any source of radiation of getting cancer from eating food considered by the agency before a food intended for use in producing, treated with 7.5 MeV x-rays during its additive regulation is issued are listed manufacturing, packing, processing, review of FAP 3M4745. As stated in the in 21 U.S.C. 348(c)(5). The act does not preparing, treating, packaging, preamble of the rule, FDA contracted prescribe what safety tests should be performed to determine whether an transporting, or holding food (section with Oak Ridge National Laboratory additive is safe. Public Citizen’s 201(s) of the act) (21 U.S.C. 321(s)). (ORNL) to perform an independent objection references the regulation in Section 409 of the act requires that a evaluation of the data in the § 170.22 which sets out a safety factor of regulation approving a food additive administrative record, including an 100-to-1 in applying animal must prescribe, with respect to the evaluation of cancer risk. The ORNL experimentation data to man (that is, the proposed uses of the additive, the evaluation was placed in the docket additive will not be approved for use in conditions under which the additive when the rule published. ORNL an amount greater than 1/100th of the may be safely used. Further, section 409 concluded that because the factors used maximum amount demonstrated to be of the act sets out that no such in the data in the administrative record to estimate cancer risk are based on without harm to experimental animals), regulation can issue if a fair evaluation unless evidence is submitted which of the data fails to establish that the much higher doses than permitted in the rule, the data in the administrative justifies use of a difference safety factor. proposed use of the food additive, under That regulation concerns how to apply the conditions of use to be specified in record, including the data in the Brynjolfsson paper, cannot be applied animal experimentation data when it the regulation, will be safe. FDA has exists. It does not, however, require that defined ‘‘safe’’ and ‘‘safety’’ by with any credibility to extrapolate cancer risk to the extremely low animal testing be done in all food regulation to mean that ‘‘there is a additive safety determinations. reasonable certainty in the minds of potential doses that a person might receive from consuming food treated Because of the extremely low levels of competent scientists that the substance induced radioactivity in food from the is not harmful under the intended with 7.5 MeV x-rays. The extrapolations that would be required would yield use of 7.5 MeV x-rays, it would not be conditions of use.’’ (21 CFR 170.3(i)). possible to measure any toxicological In accordance with the requirements estimated risks far too small to reliably measure or verify. FDA agrees with this effects from this induced activity in of section 409 of the act and the food food fed to animals even with the most additive regulations, FDA determined conclusion. The only evidence referenced by sensitive toxicological testing. that food treated with 7.5 MeV x-rays is Public Citizen in support of its assertion Consequently, animal testing is neither safe by comparing the total annual dose is the Brynjolfsson paper, which was necessary nor helpful to demonstrate from eating irradiated foods with the part of the administrative record and the safety of food treated with 7.5 MeV annual dose from naturally occurring was considered in ORNL’s evaluation of x-rays. Rather, safety was demonstrated radionuclides in the food. FDA’s the data and FDA’s safety by showing that calculated estimates of determination was based on its review determination. Therefore, Public Citizen radiation exposure from induced of the data in the record, including the has not identified any evidence to activity in food from the use of 7.5 MeV reports referenced in the final rule from support its assertion that was not x-rays is far below the exposure from the International Atomic Energy already considered by FDA in its safety activity resulting from radionuclides Agency, Gregoire et al., and the determination. A hearing will not be that are present naturally in food. FDA independent evaluation of the data by concluded that such an analysis granted on the basis of mere allegations Oak Ridge National Laboratory. FDA provides information that is far more or denials or general descriptions of concluded based on these analyses that sensitive to potential effects than can be positions and contentions (21 CFR any radioactivity that may be induced in obtained from the use of animal studies. 12.24(b)(2)). any food treated with 7.5 MeV x-rays (4) Public Citizen asserts that FDA did Public Citizen has submitted no will be trivially low and that any not comply with § 170.22 (21 CFR information to establish that the animal potential human exposure due to 170.22), which states that a food and other testing it recommended is consumption of irradiated food will be required to demonstrate safety, or even inconsequential compared to that from 2 Public Citizen incorrectly states in their that such testing would be valid to radionuclides that are present naturally objection that the cancer risk estimated by the assess safety. Because Public Citizen in food. author is 0.08 per million. provided no evidence to consider in

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17397

support of its assertion, FDA is denying V. Summary and Conclusions ensure accuracy and clarity in the the request for a hearing on this point Section 409 of the act requires that a agency’s regulations. because a hearing will not be granted on food additive be shown to be safe prior EFFECTIVE DATE: April 9, 2007. the basis of mere allegations or denials to marketing. Under § 170.3(i), a food FOR FURTHER INFORMATION CONTACT: or general descriptions of positions and additive is ‘‘safe’’ if there is a reasonable Philip Desjardins, Center for Devices contentions (21 CFR 12.24(b)(2)). certainty in the minds of competent and Radiological Health (HFZ–215), (5) Public Citizen asserts that by FDA scientists that the substance is not Food and Drug Administration, 1350 failing to comply with § 170.22, FDA harmful under the intended conditions Piccard Dr., Rockville, MD 20850, 240– did not comply with § 170.20 (21 CFR of use. In the final rule approving the 276–2343. 170.20), which states that ‘‘the use of 7.5 MeV x-rays for treating food, SUPPLEMENTARY INFORMATION: FDA is Commissioner will be guided by the FDA concluded, based on its evaluation amending its regulations in parts 803, principles and procedures for of the data submitted in the petition and 814, 820, 821, 822, 874, 886, 1002, 1005, establishing the safety of food additives other relevant material, that the use of and 1020 to correct typographical errors, stated in current publications of the 7.5 MeV x-rays proposed in the petition and update addresses, telephone National Academy of Sciences National for treating food is safe under the numbers, and wording to ensure Research Council.’’ conditions set forth in the regulation accuracy and clarity in the agencies Section 170.22 pertains to safety codified at § 179.26. The petitioner has medical device regulations. factors to be applied to animal the burden to demonstrate the safety of Publication of this document experimentation data in determining the additive in order to gain FDA constitutes final action on these changes whether a proposed use of a food approval. Once FDA makes a finding of under the Administrative Procedure Act additive is safe. As discussed previously safety, the burden shifts to an objector, (5 U.S.C. 553). FDA has determined that in item 4, no animal studies were who must come forward with evidence notice and public comment are necessary nor were any conducted to that calls into question FDA’s unnecessary because these errors are demonstrate that the use of 7.5 MeV x- conclusion (American Cyanamid Co. v. nonsubstantive. rays is safe for treating food. Because the FDA, 606 F.2d 1307, 1314–1315 (D.C. provisions of § 170.22 do not apply to Cir. 1979)). I. Highlights of the Final Rule the agency’s review of FAP 3M4745, None of the objections received FDA is making changes to correct Public Citizen’s assertion that FDA did contained evidence to support a genuine typographical and other minor errors in not comply with § 170.20 because it did and substantial issue of fact. Nor has certain device regulations in parts 803, not comply with § 170.22 is without any objector established that the agency 814, 820, 821, 822, 874, 886, 1002, 1005, merit. Therefore, this objection is not a overlooked significant information in and 1020 (21 CFR 803, 814, 820, 821, basis for a hearing because there is no reaching its conclusion. Therefore, the 822, 874, 886, 1002, 1005, and 1020). genuine and substantial issue of fact for agency has determined that the 1. FDA is revising § 803.11 and resolution (§ 12.24(b)(1)). objections that requested a hearing do replacing ‘‘301–443–8818’’ with ‘‘240– (6) Public Citizen asserts that FDA did not raise any substantial issue of fact 276–3151.’’ not comply with 21 U.S.C. 348(c)(3)(A), that would justify an evidentiary 2. FDA is revising § 803.11 and which states that ‘‘No such regulation hearing (§ 12.24(b)). Accordingly, FDA replacing ‘‘http://www.fda.gov/cdrh/ shall issue if a fair evaluation of the data is not making any changes in response mdr/mdr-forms.html’’ with ‘‘http:// before the Secretary—(A) fails to to the objections and is denying the www.fda.gov/medwatch/getforms.htm.’’ establish that the proposed use of the requests for a hearing. 3. FDA is revising § 803.21(a) and food additive, under the conditions of Dated: March 27, 2007. replacing ‘‘301–443–8818’’ with ‘‘240– use to be specified in the regulation, Jeffrey Shuren, 276–3151.’’ will be safe: Provided, That no additive 4. FDA is revising § 803.21(a) and shall be deemed to be safe if it is found Assistant Commissioner for Policy. replacing ‘‘http://www.fda.gov/cdrh/ to induce cancer when ingested by [FR Doc. E7–6646 Filed 4–6–07; 8:45 am] mdr/373.html’’ with ‘‘http:// man.’’ Nor has FDA complied with BILLING CODE 4160–01–S www.fda.gov/cdrh/mdr/mdr- § 170.3(i), which defines ‘‘safe’’ as forms.html.’’ ‘‘there is a reasonable certainty in the 5. FDA is revising § 814.20(g) and DEPARTMENT OF HEALTH AND minds of competent scientists that the replacing ‘‘FDA has issued a PMA HUMAN SERVICES substance is not harmful under the guidance document to assist the intended conditions of use.’’ Food and Drug Administration applicant in the arrangement and Public Citizen has not provided any content of a PMA. This guidance evidence to support these allegations or 21 CFR Parts 803, 814, 820, 821, 822, document is available on the Internet at that contradicts or challenges the 874, 886, 1002, 1005, and 1020 http://www.fda.gov/cdrh/dsma/ agency’s safety determination. The pmaman/front.html. This guidance agency finds that this objection is [Docket No. 2007N–0104] document is also available upon request merely a general description of Public from the Center for Devices and Citizen’s position, and that it does not Medical Devices; Technical Radiological Health, Division of Small raise a factual issue for resolution at a Amendment Manufacturers Assistance (HFZ–220), hearing. Therefore, FDA is denying the AGENCY: Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850, requests for a hearing on this point HHS. FAX 301–443–8818’’ with ‘‘Additional because there is no genuine and ACTION: Final rule; technical information on FDA policies and substantial issue of fact for resolution at amendment. procedures, as well as links to PMA a hearing, and a hearing will not be guidance documents, is available on the granted on the basis of mere allegations SUMMARY: The Food and Drug Internet at http://www.fda.gov/cdrh/ or denials or general descriptions of Administration (FDA) is amending devadvice/pma/.’’ positions and contentions (§ 12.24(b)(1) certain medical device regulations to 6. FDA is revising § 820.1(e) and and (b)(2)). correct typographical errors and to replacing ‘‘Division of Small

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17398 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Manufacturers Assistance (HFZ–220), 16. FDA is revising § 1002.10 and options that would minimize any 1350 Piccard Dr., Rockville, MD 20850, replacing ‘‘Center for Devices and significant impact of a rule on small U.S.A., telephone 1–800–638–2041 or Radiological Health, Electronic Product entities. Because this rule corrects only 1–301–443–6597, FAX 301–443–8818’’ Reports, Office of Compliance (HFZ– typographical and nonsubstantive errors with ‘‘Division of Small Manufacturers, 307), 2098 Gaither Rd., Rockville, MD in existing regulations and does not International and Consumer Assistance 20850’’ with ‘‘Center for Devices and change in any way how devices are (HFZ–220), 1350 Piccard Dr., Rockville, Radiological Health, ATTN: Electronic regulated, the agency certifies that the MD 20850, U.S.A., telephone 1–800– Product Reports, Radiological Health final rule will not have a significant 638–2041 or 240–276–3150, FAX 240– Document Control (HFZ–309), Office of economic impact on a substantial 276–3151.’’ Communication, Education, and number of small entities. 7. FDA is revising § 821.2(c) and Radiation Programs, 9200 Corporate Section 202(a) of the Unfunded removing the words ‘‘and Surveillance.’’ Blvd, Rockville, MD 20850.’’ Mandates Reform Act of 1995 requires 8. FDA is revising § 822.7(b) and 17. FDA is revising § 1002.20(b) and that agencies prepare a written replacing ‘‘(www.fda.gov/cdrh/ replacing ‘‘Director, Center for Devices statement, which includes an resolvingdisputes), and from the CDRH and Radiological Health, 5600 Fishers assessment of anticipated costs and Facts-on-Demand system (800–899– Lane, Rockville, MD 20857’’ with benefits, before proposing ‘‘any rule that 0381 or 301–827–0111)’’ with ‘‘(http:// ‘‘Center for Devices and Radiological includes any Federal mandate that may www.fda.gov/cdrh/ombudsman/ Health, ATTN: Accidental Radiation result in the expenditure by State, local, dispute.html).’’ Occurrence Reports (HFZ–240), Office and tribal governments, in the aggregate, 9. FDA is revising § 822.15 and of Communication, Education, and or by the private sector, of $100,000,000 replacing ‘‘You may obtain guidance Radiation Programs, 9200 Corporate or more (adjusted annually for inflation) regarding dispute resolution procedures Boulevard, Rockville, MD 20850.’’ in any one year.’’ The current threshold from the Center for Devices and 18. FDA is revising § 1002.50(c)(3) after adjustment for inflation is $122 Radiological Health’s (CDRH) Web site and replacing ‘‘Office of Compliance million, using the most current (2005) (www.fda.gov/cdrh/resolvingdisputes/ (HFZ–307)’’ with ‘‘Office of Implicit Price Deflator for the Gross ombudsman.html) and from the CDRH Communication, Education, and Domestic Product. FDA does not expect Facts-on-Demand system (800–899– Radiation Programs (HFZ–240).’’ this final rule to result in any 1-year 0381 or 301–827–0111, document 19. FDA is revising § 1005.11 and expenditure that would meet or exceed number 1121)’’ with ‘‘You may obtain replacing ‘‘5600 Fishers Lane, Rockville, this amount. guidance regarding dispute resolution MD 20857’’ with ‘‘(HFZ–204), 9200 procedures from the Center for Devices Corporate Blvd., Rockville, MD 20857.’’ IV. Paperwork Reduction Act of 1995 and Radiological Health’s (CDRH’s) Web 20. FDA is revising § 1005.25(b) and FDA has determined that this final site (www.fda.gov/cdrh/ombudsman/).’’ adding ‘‘(HFZ–240).’’ rule contains no collections of 10. FDA is revising § 822.22(b) and 21. FDA is revising § 1020.30(c) and information. Therefore, clearance by the replacing ‘‘You may obtain guidance replacing ‘‘Office of Compliance and Office of Management and Budget under documents that discuss these Surveillance’’ with ‘‘Office of the Paperwork Reduction Act of 1995 is mechanisms from the CDRH Web site Communication, Education, and not required. and from the CDRH Facts-on-Demand Radiation Programs.’’ System (800–899–0381 or 301–827– V. Federalism II. Environmental Impact 0111)’’ with ‘‘You may obtain guidance FDA has analyzed this final rule in documents that discuss these The agency has determined under 21 accordance with the principles set forth mechanisms from the Center for Devices CFR 25.30(i) that this final rule is of a in Executive Order 13132. FDA has and Radiological Health’s (CDRH’s) Web type that does not individually or determined that the rule does not site.’’ cumulatively have a significant effect on contain policies that have substantial 11. FDA is revising § 874.4420 and the human environment. Therefore, direct effects on the States, on the replacing ‘‘tonsil suction tub’’ with neither an environmental assessment relationship between the National ‘‘tonsil suction tube.’’ nor an environmental impact statement Government and the States, or on the 12. FDA is revising § 874.4420 and was required. distribution of power and replacing ‘‘ear suction tub’’ with ‘‘ear responsibilities among the various III. Analysis of Impacts suction tube.’’ levels of government. Accordingly, the 13. FDA is revising the section title in FDA has examined the impacts of the agency has concluded that the rule does § 886.1090 and replacing ‘‘Haidlinger’’ final rule under Executive Order 12866, not contain policies that have with ‘‘Haidinger.’’ the Regulatory Flexibility Act (5 U.S.C. federalism implications as defined in 14. FDA is revising § 886.1090(a) and 601–612), and the Unfunded Mandates the Executive order and, consequently, replacing ‘‘Haidlinger’’ with Reform Act of 1995 (Public Law 104–4). a federalism summary impact statement ‘‘Haidinger.’’ Executive Order 12866 directs agencies is not required. 15. FDA is revising § 1002.7 and to assess all costs and benefits of replacing ‘‘shall be addressed to the available regulatory alternatives and, VI. The Technical Amendments Center for Devices and Radiological when regulation is necessary, to select This rule updates and corrects Health, Electronic Product Reports, regulatory approaches that maximize existing regulations to ensure accuracy Office of Compliance (HFZ–307), 2098 net benefits (including potential and clarity. This administrative action is Gaither Rd., Rockville, MD 20850’’ with economic, environmental, public health limited to correcting typographical ‘‘shall be addressed to the Center for and safety, and other advantages; errors; updating changes in addresses, Devices and Radiological Health, ATTN: distributive impacts; and equity). The web site locations, and telephone Electronic Product Reports, Radiological agency believes that this final rule is not numbers; and clarifying regulation Health Document Control (HFZ–309), a significant regulatory action under the terminology. It makes no changes in Office of Communication, Education, Executive order. substantive requirements. and Radiation Programs, 9200 Corporate The Regulatory Flexibility Act For the effective date of this final rule Blvd, Rockville, MD 20850. requires agencies to analyze regulatory see EFFECTIVE DATE. Because this final

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17399

rule is an administrative action, FDA Authority: 21 U.S.C. 352, 360, 360i, 360j, to PMA guidance documents, is has determined that it has no 371, 374. available on the Internet at http:// substantive impact on the public. It I 2. Section 803.11 is revised to read as www.fda.gov/cdrh/devadvice/pma/. imposes no costs, and merely makes follows: * * * * * technical administrative changes in the § 803.11 What form should I use to submit Code of Federal Regulations (CFR) for reports of individual adverse events and PART 820—QUALITY SYSTEMS the convenience of the public. FDA, where do I obtain these forms? REGULATION therefore, for good cause, finds under 5 If you are a user facility, importer, or U.S.C. 553(b)(3)(B) and (d)(3) that notice I 6. The authority section for part 820 manufacturer, you must submit all continues to read as follows: and public comment are unnecessary. reports of individual adverse events on List of Subjects FDA MEDWATCH Form 3500A or in an Authority: 21 U.S.C. 351, 352, 360, 360c, electronic equivalent as approved under 360d, 360e, 360h, 360i, 360j, 360l, 371, 374, 381, 383. 21 CFR Part 803 § 803.14. You may obtain this form and I Imports, Medical devices, Reporting all other forms referenced in this section 7. In § 820.1, paragraph (e)(1) is and recordkeeping requirements. from any of the following: revised to read as follows: (a) The Consolidated Forms and § 820.1 Scope. 21 CFR Part 814 Publications Office, Beltsville Service * * * * * Administrative practice and Center, 6351 Ammendale Rd., Landover, (e) Exemptions or variances. (1) Any procedure, Confidential business MD 20705; person who wishes to petition for an information, Medical devices, Medical (b) FDA, MEDWATCH (HF–2), 5600 exemption or variance from any device research, Reporting and recordkeeping Fishers Lane, Rockville, MD 20857, quality system requirement is subject to requirements. 301–827–7240; (c) Division of Small Manufacturers, the requirements of section 520(f)(2) of 21 CFR Part 820 International, and Consumer Assistance, the act. Petitions for an exemption or Medical devices, Reporting and Office of Communication, Education, variance shall be submitted according to recordkeeping requirements. and Radiation Programs, Center for the procedures set forth in § 10.30 of Devices and Radiological Health (CDRH) this chapter, the FDA’s administrative 21 CFR Part 821 (HFZ–220), 1350 Piccard Dr. Rockville, procedures. Guidance is available from Imports, Medical devices, Reporting MD 20850, by e-mail: the Center for Devices and Radiological and recordkeeping requirements. [email protected], or FAX: Health, Division of Small Manufacturers, International and 21 CFR Part 822 240–276–3151; (d) On the Internet at http:// Consumer Assistance (HFZ–220), 1350 Medical devices, Reporting and www.fda.gov/medwatch/getforms.htm. Piccard Dr., Rockville, MD 20850, recordkeeping requirements. I 3. In § 803.21, paragraph (a) is revised U.S.A., telephone 1–800–638–2041 or 240–276–3150, FAX 240–276–3151. 21 CFR Part 874 to read as follows: * * * * * Medical devices. § 803.21 Where can I find the reporting codes for adverse events that I use with PART 821—MEDICAL DEVICE 21 CFR Part 886 medical device reports? TRACKING REQUIREMENTS Medical devices, Ophthalmic goods (a) The MEDWATCH Medical Device and services. Reporting Code Instruction Manual I 8. The authority section for part 821 contains adverse event codes for use continues to read as follows: 21 CFR Part 1002 with FDA Form 3500A. You may obtain Authority: 21 U.S.C. 331, 351, 352, 360, Electronic products, Radiation the coding manual from CDRH’s Web 360e, 360h, 360i, 371, 374. protection, Reporting and recordkeeping site at http://www.fda.gov/cdrh/mdr/ I 9. In § 821.2, paragraph (c) is revised requirements. mdr-forms.html; and from the Division to read as follows: 21 CFR Part 1005 of Small Manufacturers, International, and Consumer Assistance, Center for § 821.2 Exemptions and variances. Administrative practice and Devices and Radiological Health, 1350 * * * * * procedure, Electronic products, Imports, Piccard Dr., Rockville, MD 20850, FAX: (c) An exemption or variance is not Radiation protection, Surety bonds. 240–276–3151, or e-mail to effective until the Director, Office of 21 CFR Part 1020 [email protected]. Compliance, CDRH, approves the * * * * * request under § 10.30(e)(2)(i) of this Electronic products, Medical devices, chapter. Radiation protection, Reporting and PART 814—PREMARKET APPROVAL recordkeeping requirements, Television, OF MEDICAL DEVICES PART 822—POSTMARKET X-rays. SURVEILLANCE I Therefore, under the Federal Food, I 4. The authority section for part 814 I Drug, and Cosmetic Act, and under continues to read as follows: 10. The authority section for part 822 authority delegated to the Commissioner Authority: 21 U.S.C. 351, 352, 353, 360, continues to read as follows: of Food and Drugs, 21 CFR parts 803, 360c–360j, 371, 372, 373, 374, 375, 379, 379e, Authority: 21 U.S.C. 331, 352, 360i, 360l, 814, 820, 821, 822, 874, 886, 1002, 1005, 381. 371, 374. and 1020 are amended as follows: I 5. In § 814.20, paragraph (g) is revised I 11. In § 822.7, paragraph (b) is revised to read as follows: to read as follows: PART 803—MEDICAL DEVICE REPORTING § 814.20 Application. § 822.7 What should I do if I do not agree * * * * * that postmarket surveillance is I 1. The authority section for part 803 (g) Additional information on FDA appropriate? continues to read as follows: policies and procedures, as well as links * * * * *

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17400 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

(b) You may obtain guidance screw; salpingeal curette; tonsillectome; and Radiation Programs, 9200 Corporate documents that discuss these tonsil guillotine; tonsil screw; tonsil Blvd., Rockville, MD 20850. mechanisms from the Center for Devices snare; tonsil suction tube; tonsil * * * * * and Radiological Health’s (CDRH’s) Web suturing hook; antom reforator; ethmoid site (http://www.fda.gov/cdrh/ curette; frontal sinus-rasp; nasal curette; I 20. In § 1002.10, the introductory text ombudsman/dispute.html). nasal rasp; nasal rongeur; nasal saw; is revised to read as follows: I nasal scissors; nasal snare; sinus 12. Section 822.15 is revised to read § 1002.10 Product reports. as follows: irrigator; sinus trephine; ear curette; ear excavator; ear rasp; ear scissor, ear Every manufacturer of a product or § 822.15 How long must I conduct snare; ear spoon; ear suction tube; component requiring a product report as postmarket surveillance of my device? malleous ripper; mastoid gauge; set forth in table 1 of § 1002.1 shall The length of postmarket surveillance microsurgical ear chisel; myringotomy submit a product report to the Center for will depend on the postmarket tube inserter; ossici holding clamp; Devices and Radiological Health, ATTN: surveillance question identified in our sacculotomy tack inserter; vein press; Electronic Product Reports, Radiological order. We may order prospective wire ear loop; microrule; mirror; Health Document Control (HFZ–309), surveillance for a period up to 36 mobilizer; ear, nose, and throat punch; Office of Communication, Education, months; longer periods require your ear, nose and throat knife; and ear, nose, and Radiation Programs, 9200 Corporate agreement. If we believe that a and throat trocar. Blvd., Rockville, MD 20850, prior to the prospective period of greater than 36 * * * * * introduction of such product into months is necessary to address the commerce. The report shall be distinctly surveillance question, and you do not PART 886—OPHTHALMIC DEVICES marked ‘‘Radiation Safety Product agree, we will use the Medical Devices Report of (name of manufacturer)’’ and Dispute Resolution Panel to resolve the I 16. The authority section for part 886 shall: matter. You may obtain guidance continues to read as follows: * * * * * regarding dispute resolution procedures Authority: 21 U.S.C. 351, 360, 360c, 360e, from the Center for Devices and 360j, 371. I 21. In § 1002.20, paragraph (b) is Radiological Health’s (CDRH’) Web site I 17. In § 886.1090, the section title and revised to read as follows: (www.fda.gov/cdrh/ombudsman/). The paragraph (a) are revised to read as 36-month period refers to the § 1002.20 Reporting of accidental radiation follows: surveillance period, not the length of occurrences. time from the issuance of the order. § 886.1090 Haidinger brush. * * * * * I 13. In § 822.22, paragraph (b) is (a) Identification. A Haidinger brush (b) Such reports shall be addressed to revised to read as follows: is an AC-powered device that provides the Center for Devices and Radiological § 822.22 What recourse do I have if I do two conical brushlike images with Health, ATTN: Accidental Radiation not agree with your decision? apexes touching which are viewed by Occurrence Reports (HFZ–240), Office the patient through a Nicol prism and of Communication, Education, and * * * * * intended to evaluate visual function. It (b) You may obtain guidance Radiation Programs, 9200 Corporate may include a component for measuring documents that discuss these Blvd., Rockville, MD 20850, and the macular integrity. mechanisms from the Center for Devices reports and their envelopes shall be and Radiological Health’s (CDRH’s) Web * * * * * distinctly marked ‘‘Report on 1002.20’’ site. and shall contain all of the following PART 1002—RECORDS AND information where known to the PART 874—EAR, NOSE, AND THROAT REPORTS manufacturer: DEVICES I 18. The authority section for part 1002 (1) The nature of the accidental radiation occurrence; I 14. The authority section for part 874 continues to read as follows: continues to read as follows: Authority: 21 U.S.C. 352, 360, 360i, 360j, (2) The location at which the 360hh–360ss, 371, 374. accidental radiation occurrence Authority: 21 U.S.C. 351, 360, 360c, 360e, occurred; 360j, 371. I 19. In § 1002.7, the introductory text I 15. In § 874.4420, paragraph (a) is is revised to read as follows: (3) The manufacturer, type, and revised to read as follows: model number of the electronic product § 1002.7 Submission of data and reports. or products involved; § 874.4420 Ear, nose, and throat manual All submissions such as reports, test (4) The circumstances surrounding surgical instrument. data, product descriptions, and other the accidental radiation occurrence, (a) Identification. An ear, nose, and information required by this part, or including causes; throat manual surgical instrument is one voluntarily submitted to the Director, of a variety of devices intended for use Center for Devices and Radiological (5) The number of persons involved, in surgical procedures to examine or Health, shall be filed with the number adversely affected, or exposed during treat the bronchus, esophagus, trachea, of copies as prescribed by the Director, the accidental radiation occurrence, the larynx, pharynx, nasal and paranasal Center for Devices and Radiological nature and magnitude of their exposure sinus, or ear. This generic type of device Health, and shall be signed by the and/or injuries and, if requested by the includes the esophageal dilator; tracheal person making the submission. The Director, Center for Devices and bistour (a long, narrow surgical knife); submissions required by this part shall Radiological Health, the names of the tracheal dilator; tracheal hook; laryngeal be addressed to the Center for Devices persons involved; injection set; laryngeal knife; laryngeal and Radiological Health, ATTN: (6) The actions, if any, which may saw; laryngeal trocar; laryngectomy Electronic Product Reports, Radiological have been taken by the manufacturer, to tube; adenoid curette; adenotome; metal Health Document Control (HFZ–309), control, correct, or eliminate the causes tongue depressor; mouth gag; oral Office of Communication, Education, and to prevent reoccurrence; and

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17401

(7) Any other pertinent information making of the designation by the compliance of their components with with respect to the accidental radiation manufacturer at the place and time the applicable provisions of §§ 1020.30 occurrence. where it is made, and the persons or through 1020.33. * * * * * person signing the designation shall * * * * * I 22. In § 1002.50, paragraph (c)(3) is certify that it is so made. The designation must disclose the Dated: March 28, 2007. revised to read as follows: manufacturer’s full legal name and the Jeffrey Shuren, § 1002.50 Special exemptions. name(s) under which the manufacturer Assistant Commissioner for Policy. * * * * * conducts the business, if applicable, the [FR Doc. E7–6290 Filed 4–6–07; 8:45 am] (c)*** principal place of business, and mailing BILLING CODE 4160–01–S (3) Such conditions as are deemed address. If any of the products of the necessary to protect the public health manufacturer do not bear his legal and safety. Copies of exemptions shall name, the designation must identify the DEPARTMENT OF JUSTICE be available upon request from the marks, trade names, or other Drug Enforcement Administration Center for Devices and Radiological designations of origin which these Health, Office of Communication, products bear. The designation must 21 CFR Parts 1300 and 1313 Education, and Radiation Programs provide that it will remain in effect until (HFZ–240), 9200 Corporate Blvd., withdrawn or replaced by the [Docket No. DEA–292I] Rockville, MD 20850. manufacturer and shall bear a declaration of acceptance duly signed RIN 1117–AB06 * * * * * by the designated agent. The full legal name and mailing address of the agent Implementation of the Combat PART 1005—IMPORTATION OF Methamphetamine Epidemic Act of ELECTRONIC PRODUCTS must be stated. Until rejected by the Secretary, designations are binding on 2005; Notice of Transfers Following Importation or Exportation I 23. The authority section for part 1005 the manufacturer even when not in continues to read as follows: compliance with all the requirements of AGENCY: Drug Enforcement this section. The designated agent may Administration (DEA), Justice. Authority: 42 U.S.C. 263d, 263h. not assign performance of his function ACTION: Interim Final Rule with Request I 24. Section 1005.11 is revised to read under the designation to another. for Comment. as follows: * * * * * § 1005.11 Payment for samples. SUMMARY: This regulation implements PART 1020—PERFORMANCE The Department of Health and Human section 716 of the Combat STANDARDS FOR IONIZING Methamphetamine Epidemic Act Services will pay for all import samples RADIATION EMITTING PRODUCTS of electronic products rendered (CMEA) of 2005 (21 U.S.C. 971 as amended), which was enacted on March unsalable as a result of testing, or will I 26. The authority section for part 1020 9, 2006. DEA is amending its regulations pay the reasonable costs of repackaging continues to read as follows: such samples for sale, if the samples are to require additional reporting for Authority: 21 U.S.C. 351, 352, 360e–360j, import, export, and international found to be in compliance with the 360gg–360ss, 371, 381. requirements of the Radiation Control transactions involving all List I and List I 27. In § 1020.30, paragraph (c) is II chemicals. This rule implements for Health and Safety Act of 1968. revised to read as follows: Billing for reimbursement shall be made section 716 of the CMEA which extends by the owner or consignee to the Center § 1020.30 Diagnostic x-ray systems and current reporting requirements for for Devices and Radiological Health their major components. importations, exportations, and (HFZ–204), 9200 Corporate Blvd., * * * * * international transactions involving List Rockville, MD 20857. Payment for (c) Manufacturers’ responsibility. I and List II chemicals. samples will not be made if the sample Manufacturers of products subject to DATES: This rule is effective May 9, is found to be in violation of the Act, §§ 1020.30 through 1020.33 shall certify 2007. Written comments must be even though subsequently brought into that each of their products meet all postmarked, and electronic comments compliance pursuant to terms specified applicable requirements when installed must be sent, on or before May 9, 2007. in a notice of permission issued under into a diagnostic x-ray system according ADDRESSES: To ensure proper handling § 1005.22. to instructions. This certification shall of comments, please reference ‘‘Docket I 25. In § 1005.25, paragraph (b) is be made under the format specified in No. DEA–292’’ on all written and revised to read as follows: § 1010.2 of this chapter. Manufacturers electronic correspondence. Written may certify a combination of two or comments being sent via regular mail § 1005.25 Service of process on more components if they obtain prior should be sent to the Deputy Assistant manufacturers. authorization in writing from the Administrator, Office of Diversion * * * * * Director of the Office of Control, Drug Enforcement (b) A manufacturer designating an Communication, Education, and Administration, Washington, DC 20537, agent must address the designation to Radiation Programs of the Center for Attention: DEA Federal Register the Center for Devices and Radiological Devices and Radiological Health. Representative/ODL. Written comments Health (HFZ–240), 9200 Corporate Manufacturers shall not be held sent via express mail should be sent to Blvd., Rockville, MD 20850. It must be responsible for noncompliance of their DEA Headquarters, Attention: DEA in writing and dated; all signatures must products if that noncompliance is due Federal Register Representative/ODL, be in ink. The designation must be made solely to the improper installation or 2401 Jefferson-Davis Highway, in the legal form required to make it assembly of that product by another Alexandria, VA 22301. Comments may valid and binding on the manufacturer person; however, manufacturers are be directly sent to DEA electronically by under the laws, corporate bylaws, or responsible for providing assembly sending an electronic message to other requirements governing the instructions adequate to assure [email protected].

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17402 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Comments may also be sent this rule became effective on March 9, transactions of List I and List II electronically through http:// 2006. An agency may find good cause to chemicals. Importers, exporters, brokers, www.regulations.gov using the exempt a rule from certain provisions of and traders are now required to notify electronic comment form provided on the Administrative Procedure Act (APA) DEA, before the transaction is to take that site. An electronic copy of this (5 U.S.C. 553), including Notice of place, of certain information regarding document is also available at the http:// Proposed Rulemaking and the their downstream customers. If the www.regulations.gov Web site. DEA will opportunity for public comment, if it is person to whom the chemical is being accept attachments to electronic determined to be unnecessary, transferred is not a regular customer, the comments in Microsoft Word, impracticable, or contrary to the public importer, exporter, broker, or trader WordPerfect, Adobe PDF, or Excel file interest. The requirements of the CMEA must notify DEA no later than 15 days formats only. DEA will not accept any of 2005 included in this rulemaking before the transaction is to take place; file formats other than those specifically were set out in such detail as to be self- upon receipt, DEA will have 15 days to listed here. implementing. Therefore the changes in review the notification. Specifically, the FOR FURTHER INFORMATION CONTACT: this rulemaking provide conforming United States importer or exporter must Mark W. Caverly, Chief, Liaison and amendments to make the language of provide the name and address of each Policy Section, Office of Diversion the regulations consistent with that of person to whom the listed chemicals Control, Drug Enforcement the law. DEA has no authority to revise will be transferred, and the name and Administration, Washington, DC 20537 the changes and is simply quantity of the listed chemicals to be at (202) 307–7297. implementing, and making its transferred, including package regulations conform to, the statute. information. This person is referred to SUPPLEMENTARY INFORMATION: as the ‘‘transferee’’ of the United States Combat Methamphetamine Epidemic importer or exporter. The spot market DEA’s Legal Authority Act of 2005 DEA implements the Comprehensive reporting requirements also apply, to a The portion of the CMEA being limited extent, to United States brokers Drug Abuse Prevention and Control Act implemented in this rulemaking and traders that arrange international of 1970, often referred to as the addresses the importation, exportation, transactions (i.e., transactions between Controlled Substances Act (CSA) and and international transactions of all List customers in two foreign countries). Controlled Substances Import and I and List II chemicals. Section 716 of For a United States exporter, the Export Act (21 U.S.C. 801 et seq.), as the CMEA (21 U.S.C. 971 as amended) transferee is the foreign importer. Thus, amended. DEA publishes the closes a loophole in the current this aspect of the new requirement does implementing regulations for this regulatory system for imports, exports, not represent a change for United States statute in Title 21 of the Code of Federal and international transactions of listed exporters, who have previously notified Regulations (CFR), Parts 1300 to end. chemicals used in the illicit DEA of information on their purchasers. These regulations are designed to ensure manufacture of controlled substances. For a United States broker or trader, the that there is a sufficient supply of Prior to enactment of the CMEA, a transferee is the foreign customer controlled substances for legitimate company that wanted to import or purchasing the listed chemicals. Again, medical purposes and to deter the export any List I or List II chemical was this requirement is not a change for diversion of controlled substances to required to either: (1) Notify the brokers and traders, who have illegal purposes. The CSA mandates that Department of Justice 15 days in previously notified DEA of information DEA establish a closed system of control advance of the import or export; or (2) on their purchasers. for manufacturing, distributing, and be a company that previously imported The requirement is, however, a dispensing controlled substances. Any or exported a listed chemical and that change for United States importers. For person who manufactures, distributes, was proposing to import from or export a United States importer, the dispenses, imports, exports, or conducts the chemicals to a customer with whom ‘‘transferee’’ is the person to whom the research or chemical analysis with the company had previously dealt. (See importer transfers the listed chemicals— controlled substances must register with 21 U.S.C. 971(a), (b)) the downstream customer. Until the DEA (unless exempt) and comply with A problem can arise, however, when CMEA, importers were required to the applicable requirements for the the sale that the importer or exporter provide information regarding their activity. The CSA as amended also originally planned falls through. When suppliers, but not regarding the parties requires DEA to regulate the this happens, the importer or exporter purchasing the chemicals in the United manufacture and distribution of must quickly find a new buyer for the States. Under the CMEA, importers will chemicals that may be used to chemicals on what is called the ‘‘spot have to list both the foreign supplier manufacture controlled substances. market’’—a wholesale market. Sellers and each United States customer for the Listed chemicals that are classified as are often under presure to find a buyer imported chemical. List I chemicals are important to the in a short amount of time, meaning that The provision of customer manufacture of controlled substances. they may be tempted to entertain bids information by the importer provides Those classified as List II chemicals may from companies without a strong record DEA with an opportunity to evaluate the be used to manufacture controlled of preventing diversion. More transaction. DEA will have 15 days from substances. importantly, DEA is not made aware of, the time the customer information is On March 9, 2006, the President and has no opportunity to review, such submitted to review the transaction and signed the CMEA of 2005, which is Title transactions in advance in order to determine whether it may be diverted to VII of the USA PATRIOT Improvement suspend them if there is a danger of the clandestine manufacture of a and Reauthorization Act of 2005 (Pub. diversion to the clandestine controlled substance. If DEA determines L. 109–177). DEA is promulgating this manufacture of a controlled substance. that the transaction does not pose an rule as an interim final rule rather than Section 716 of the CMEA extends the unacceptable risk of diversion, DEA will a proposed rule because the changes current reporting requirements—as well take no action. The importer will thus being made merely codify statutory as the current exemption for regular be granted regular importer status for provisions. Much of the statute is self- importers and regular customers—to transactions involving the specific implementing; the changes discussed in post-import and post-export chemical to be imported to the specific

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17403

customer. The transferee—the addition, even if an importer or exporter controlled substance, DEA may downstream customer—will be granted did not have to file an initial disqualify the regular customer status of regular customer status for imports of notification—either because he is a the transferee and suspend the the specified chemical by the specified regular importer selling to a regular shipment. See 21 CFR 1313.26(d). importer. DEA must review each import customer, or an exporter selling to a Finally, within 30 days after the transaction based not only on the regular customer—if the newly arranged importation, exportation, or chemical to be imported, but also on the spot market sale is to a new customer international transaction is completed, transferee to whom the chemical will be (i.e., not a ‘‘regular customer’’), the the importer, exporter, broker, or trader transferred. importer or exporter must file an must send DEA a return declaration If, after submission of the initial DEA advance notice 15 days prior to containing information regarding the Form 486, Import/Export Declaration, transferring the chemical to the new transaction, including the name of the the importer, exporter, broker, or trader customer. As is the case under existing transferee, date the import or export and will not be transferring the listed law, a suspension can be appealed any subsequent transfer occurred, the chemical to the person initially named through an administrative hearing. (See name of the chemical transferred, the on the DEA Form 486, or if the importer 21 U.S.C. 971(c)(2)) actual quantity transferred, the or exporter will be transferring a greater If, however, the new proposed container, and any other information quantity than originally indicated on the purchaser qualifies as a ‘‘regular that DEA may specify. This is a new DEA Form 486, then the importer, customer’’ under existing law, the requirement for United States importers, exporter, broker, or trader must file an importer or exporter is not required to exporters, brokers, and traders. For amended DEA Form 486 reporting the file a second advance notice 15 days importers, a single return declaration change. This is a new requirement for prior to the transfer of the listed may include the information for both both United States importers and chemical. Rather, notice must be filed the importation and distribution. If the exporters, as well as brokers and traders. on or before the date of the transfer. importer has not distributed all This amendment must provide the name Note that the second notice may occur chemicals imported by the end of the of the new prospective customer and/or after importation or exportation. initial 30-day period, the importer must the greater quantity of the listed (Brokers and traders are required to file supplemental return declarations no chemical to be transferred. The report all regulated international later than 30 days from the date of any requirement to notify DEA of a change transactions.) further distribution, until the in the transferee or an increase in the If DEA determines that a listed distribution or other disposition of all quantity of the chemical to be chemical shipment handled by a regular chemicals imported under the import transferred applies to amended DEA importer or a regular customer notification or any update are accounted Forms 486 in the same manner that it (including a regular customer who is for. In addition, if an importer, exporter, applies to original submissions. substituted for the original customer broker, or trader files a DEA Form 486, Thus, if an importer, exporter, broker, listed on the original advance but the transfer covered fails to take or trader is required to file an initial notification) may be diverted to the place (e.g., the import or export is advance notice with DEA 15 days before clandestine manufacture of a controlled canceled prior to shipment), the person the transaction is to take place, and the substance, DEA may disqualify the must file an amended DEA Form 486 to originally planned sale falls through, the regular importer or regular customer notify DEA of the cancellation. These importer, exporter, broker, or trader is status of such importer or customer and additional filings will ensure that DEA required to file a second advance notice may suspend the shipment. If the has an accurate record of importations, with DEA, identifying the new proposed importer or customer (including a new exportations, and international purchaser. DEA will again have 15 days proposed customer) is not a regular transactions. to review the new transaction and importer or customer, then DEA may determine whether it may be diverted to suspend the shipment, since there Summary of Changes Made by This the clandestine manufacture of a would be no regular importer or regular Interim Final Rule controlled substance. In the case of a customer status to disqualify. The The table below provides a transaction reported by a broker or procedures are set forth in the new comparison of the previous trader, DEA cannot suspend the regulatory text at 21 CFR 1313.16(d). requirements regarding imports, transaction, but could alert authorities Similarly, in the case of an export of a exports, and international transactions in the foreign country involved in the listed chemical that may be diverted to with the new requirements of the transaction of the risk of diversion. In the clandestine manufacture of a CMEA:

TABLE 1.—COMPARISON OF PREVIOUS AND NEW REQUIREMENTS

Requirement Previous rule New rule

Notify DEA prior to import/export/international transactions ...... Yes ...... Yes. Identify source of imports/international transactions ...... Yes ...... Yes. Identify transferees of exports/international transactions ...... Yes ...... Yes. Identify transferees (downstream customers) of imports ...... No ...... Yes. Notify DEA of change in transferees of exports and international transactions prior to transaction ...... No ...... Yes. Notify DEA of change in transferees (downstream customers) of imports prior to transaction ...... No ...... Yes. Notify DEA of increase in chemical quantity transferred for exports and international transactions prior to trans- No ...... Yes. action. Notify DEA of increase in chemical quantity transferred for import transactions prior to transaction ...... No ...... Yes. File return declaration when imports/exports and international transactions are distributed ...... No ...... Yes. File subsequent return declaration if entire quantity of import not distributed within 30 days of importation ...... No ...... Yes.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17404 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Specific Changes Made by This Interim Section 1313.13, contents of import has not been revised or amended since Final Rule declaration, is amended by requiring the its inception in 1989. Thus, this form In this interim final rule, DEA is importer to provide information has not kept pace with subsequent incorporating the provisions of section regarding the person or persons to legislation including the Domestic 716 of the CMEA into Title 21 of the whom the importer intends to transfer Chemical Diversion Control Act of 1993, Code of Federal Regulations. Specific the chemical. the Comprehensive Methamphetamine Section 1313.16 is added to specify changes are discussed below. Control Act of 1996, and the requirements regarding transfers after Certain definitions relating to listed Methamphetamine Anti-Proliferation importation, Section 1313.26 is added to chemicals in section 1300.02 are being Act of 2000. Therefore, some of the specify requirements regarding transfers revised or amended. The definition of changes DEA is making to this form are after exportation, and Section 1313.32 is ‘‘established business relationship’’ is not directly related to the CMEA. amended to specify requirements for being revised to remove language However, these changes are necessary brokers and traders regarding regarding foreign customers; this for ease of use and clarity of the form. international transactions. These definition is now a general definition Changes being made include the requirements specify what the U.S. relating to any business relationship, following: importer, the U.S. exporter, or the U.S. • either import or export. Further, parts of Changing the title of the form to: broker or trader must do if an originally ‘‘Import/Export Declaration for List I this definition are moved to new planned sale falls through and the Section 1313.05, requirements of an and List II Chemicals’’ to more importer or exporter arranges a accurately characterize the use of the established business relationship. The subsequent spot market sale, as definition of ‘‘established record as an form. explained earlier in the preamble. For • Adding a check box for importer’’ is being revised by moving brokers and traders, the situation is ‘‘international transaction’’ in addition certain information into new Section somewhat more complicated because to existing fields for ‘‘import’’ and 1313.08. Finally, the definition of the broker or trader does not control the ‘‘export.’’ ‘‘regular customer’’ is being revised to sale. If a transaction is not completed, • Adding fields for DEA registration update the cross reference. the broker or trader could be asked to number and company identifier, if As noted previously, Section 1313.05 find another buyer for the chemical or applicable. is added to specify requirements of an the broker or trader may not be involved • Adding a field for the foreign established business relationship. in arranging the subsequent sale. If the permit number, if applicable. Information in this section was broker or trader arranges a subsequent • Adding check boxes for the type of previously found in the definition of sale to replace the previously arranged submission of the form: ‘‘original,’’ ‘‘established business relationship.’’ transaction, this transaction is a new ‘‘amended,’’ and ‘‘withdrawn.’’ As noted previously, Section 1313.08 transaction and must be reported as • Adding fields for the actual date is added to specify requirements for such; a return declaration must be filed and quantity imported. establishing a record as an importer. when the transaction is completed. • Adding fields for reporting by Information in this section was Sections 1313.17(a), 1313.27(a), and importers of the person to whom the previously found in the definition of 1313.35(a) are added to specify the listed chemical will be transferred, the ‘‘established record as an importer.’’ requirement that within 30 days of the downstream customer, per requirements Section 1313.15(a) is being amended to completion of a transaction, the of the CMEA. update the cross reference accordingly. importer, exporter, broker, or trader • Adding fields regarding return Section 1313.12, requirement of must send DEA a return declaration declaration by importers and exporters. authorization to import, is amended by containing information regarding the • Removing the certification by the revising paragraph (c) to add the transaction, including the name of the Customs District Director; this requirement that, to qualify for a waiver transferee, date the import, export, or certification is now the responsibility of of the 15 day advance notice, not only international transaction and any the importer or exporter as part of the does the importer have to be known to subsequent transfer occurred, the name return declaration. DEA as a regular importer, but also that of the chemical transferred, the actual • Eliminating a number of fields, the customer must meet the quantity transferred, the container, and including: gross weight of chemicals requirements in Section 1313.05 to be any other information that DEA may imported/exported; intermediate regarded as a regular customer. The specify. carriers; address of intermediate effect of this new requirement is that, Sections 1313.17(b), 1313.27(b), and consignees. effective May 9, 2007, all persons 1313.35(b) are added to specify the • Reorganizing layout for clarity. previously granted regular importer requirement that if an importation, Implementation of This Rule status will be required to provide exportation, or international transaction advance notification of imports with reported on a DEA Form 486 fails to be Effective May 9, 2007, all United information regarding transferees, even completed, the importer, exporter, States importers and exporters of List I for customers that they did business broker, or trader must file an and List II chemicals must use the with in the past. This advance amendment to the Form 486 to notify revised DEA Form 486 to notify DEA of notification will provide DEA the DEA. their imports and exports. This revised opportunity to review and approve the form will be available on the Diversion customer as a regular customer (see the Revision of DEA Form 486: Import/ Control Program Web site, http:// new definition in Section 1300.02 and Export Declaration for Precursor and www.deadiversion.usdoj.gov. the requirements in new Section Essential Chemicals Effective May 9, 2007, all persons 1313.05). If the 15-day notification To comply with the changes made to previously granted regular importer period elapses without DEA taking the Controlled Substances Act by the status will no longer hold that status. action, then that importer is granted Combat Methamphetamine Epidemic Every import of a List I and List II regular importer status for all imports of Act of 2005, DEA is revising the existing chemical must be reported to DEA not that particular chemical intended for the DEA Form 486, Import/Export later than 15 days prior to the proposed specified customer. Declaration. DEA notes that this form importation. This report must include

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17405

the name of the person to whom the rules. The APA also provides, however, statutory change imposes minimal costs chemical is proposed to be transferred that agencies can be excepted from these on United States importers, exporters, and the amount of the chemical requirements when ‘‘the agency for good brokers, and traders; they simply have proposed to be transferred. DEA will cause finds (and incorporates the to file a form with DEA in advance of evaluate each proposed importation finding and a brief statement of reasons spot market transactions. They must based not only on the chemical to be therefor in the rules issued) that notice also provide a return declaration after imported but on the transferee and public procedure thereon are the import or export has occurred. information supplied by the importer as impracticable, unnecessary, or contrary Paperwork Reduction Act well. This process will allow for the to the public interest.’’ (5 U.S.C. establishment of regular customer status 553(b)(B). As discussed previously, the DEA is by transferees of United States DEA has concluded that ‘‘good cause’’ revising an information collection by importers, and for establishment of exists to promulgate this rule as an revising the information collected on regular importer status by importers interim final rule rather than a proposed DEA Form 486: Import/Export importing a specific listed chemical rule because the mandates of the CMEA Declaration for List I and List II intended for sale to a specific customer. were set forth in such detail as to be Chemicals [OMB information collection Effective May 9, 2007, all persons self-implementing. The changes 1117–0023]. Those changes have been importing and exporting List I and List announced in this interim final rule discussed above, and are necessary for II chemicals must provide the above render DEA’s regulations consistent DEA to implement the provisions of the discussed return declarations to DEA. with the new provisions of the CMEA. CMEA of 2005. Since DEA is without authority to revise The Department of Justice, DEA, has Note Regarding Importation of the this rule based on public comments, submitted the following information List I Chemicals Ephedrine, DEA finds that notice and opportunity collection request to the OMB for review Pseudoephedrine, and for comment are unnecessary and and clearance in accordance with Phenylpropanolamine impracticable under the APA (5 U.S.C. review procedures of the Paperwork This rulemaking addresses all List I 553(b)(B)). Reduction Act of 1995. The information and List II chemicals. While ephedrine, DEA is cognizant of the fact that collection is published to obtain pseudoephedrine, and exceptions to the APA’s notice and comments from the public and affected phenylpropanolamine are List I comment procedures are to be agencies. chemicals and are covered by these ‘‘narrowly construed and only All comments and suggestions, or regulations, other provisions of section reluctantly countenanced.’’ American questions regarding additional 721 of the CMEA require the reporting Federation of Government Employees v. information, to include obtaining a copy of certain information regarding the Block, 655 F2d 1153, 1156 (D.C. Cir. of the information collection instrument foreign chain of distribution of these 1981) (quoting New Jersey Department with instructions, should be directed to three List I chemicals. Other provisions of Environmental Protection v. EPA, 626 Mark W. Caverly, Chief, Liaison and of the CMEA require that these three F2d 1038, 1045 (D.C. Cir. 1980)). Based Policy Section, Office of Diversion List I chemicals be imported only if on the detailed requirements set forth in Control, Drug Enforcement there is a medical, scientific, or other the CMEA which give no discretion in Administration, Washington, DC 20537. legitimate purpose for these chemicals. their implementation, however, DEA Written comments and suggestions DEA is addressing these provisions in a finds that the invocation of the ‘‘good from the public and affected agencies separate rulemaking. Persons importing cause’’ exception, and the issuance of concerning the collection of information ephedrine, pseudoephedrine, and this rule as an interim final rule, is are encouraged. Your comments on the phenylpropanolamine are required to justified. information collection-related aspects of this rule should address one or more of comply with the provisions of this rule Regulatory Flexibility Act until such time as the rulemaking the following four points: regarding provision of information The Deputy Administrator hereby (1) Evaluate whether the proposed about the foreign chain of distribution is certifies that this rulemaking has been collection of information is necessary promulgated. At that time, persons drafted in accordance with the for the proper performance of the importing these three List I chemicals Regulatory Flexibility Act (RFA) (5 functions of the agency, including will then be subject to those additional U.S.C. 605(b)). The RFA applies to rules whether the information will have requirements. that are subject to notice and comment. practical utility; Further, since the CMEA requires that Because this rule is simply codifying (2) Evaluate the accuracy of the these three List I chemicals be imported statutory provisions, DEA has agency’s estimate of the burden of the only if there is a medical, scientific, or determined, as explained above, that proposed collection of information, other legitimate purpose for these public notice and comment are not including the validity of the chemicals, DEA must establish import necessary. Consequently, the RFA does methodology and assumptions used; (3) Enhance the quality, utility, and quotas for ephedrine, pseudoephedrine, not apply. clarity of the information to be and phenylpropanolamine. DEA is Executive Order 12866 collected; and addressing these provisions in separate The Deputy Administrator further (4) Minimize the burden of the rulemakings. certifies that this rulemaking has been collection of information on those who Regulatory Certifications drafted in accordance with the are to respond, including through the principles in Executive Order 12866 use of appropriate automated, Administrative Procedure Act (5 U.S.C. § 1(b). It has been determined that this electronic, mechanical, or other 553) is ‘‘a significant regulatory action.’’ technological collection techniques or The Administrative Procedure Act Therefore, this action has been reviewed other forms of information technology, (APA) generally requires agencies to by the Office of Management and e.g., permitting electronic submission of publish a notice of proposed rulemaking Budget (OMB). As discussed above, this responses. and allow for a period of public action is codifying statutory provisions Overview of this information comment prior to implementing new and involves no agency discretion. This collection:

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17406 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

(1) Type of Information Collection: (4) Affected public who will be asked quantity to be transferred. For revision of an existing collection. or required to respond, as well as a brief importations, persons must also provide (2) Title of the Form/Collection: abstract: return declarations, confirming the date Import/Export Declaration for List I and Primary: business or other for-profit. of the importation and transfer, and the List II Chemicals. Other: none. amounts of the chemical transferred. (3) Agency form number, if any, and Abstract: Persons importing, This information is used to prevent the applicable component of the exporting, and conducting international shipments not intended for legitimate Department of Justice sponsoring the transactions with List I and List II purposes. collection: chemicals must notify DEA of those (5) An estimate of the total number of Form Number: DEA Form 486. transactions in advance of their respondents and the amount of time Office of Diversion Control, Drug occurrence, including information Enforcement Administration, U.S. regarding the person(s) to whom the estimated for an average respondent to Department of Justice. chemical will be transferred and the respond:

Number of Number of Average time respondents responses per response Total hours

Form 486 (export) ...... 225 7,917 0.2 hour 1,583.4 hours. (12 minutes) Form 486 (export return declaration) ...... 225 7,917 0.08 hour 659.75 hours. (5 minutes) Form 486 (import) ...... 216 2,278 0.25 hour 569.5 hours. (15 minutes) Form 486 (import return declaration)* ...... 216 2,506 0.08 hour 208.8 hours. (5 minutes) Form 486 (international transaction) ...... 9 111 0.2 hour 22.2 hours. (12 minutes) Form 486 (international transaction return declaration) ...... 9 111 0.08 hour 9.25 hours. (5 minutes) Quarterly reports for imports of acetone, 2-butanone, and toluene ...... 110 440 0.5 hour 220 hours. (30 minutes)

Total ...... 225 ...... 3,272.9 hours. * DEA assumes 10% of all imports will not be transferred in the first thirty days and will necessitate submission of a subsequent return declaration.

(6) An estimate of the total public governments, in the aggregate, or by the Imports, Reporting and recordkeeping burden (in hours) associated with the private sector, of $118,000,000 or more requirements. collection: DEA estimates that this in any one year, and will not I For the reasons set out above, 21 CFR collection will take 3,272.9 hours significantly or uniquely affect small parts 1300 and 1313 are amended as annually. governments. Therefore, no actions were follows: If additional information is required, deemed necessary under the provisions contact: Lynn Bryant, Department of the Unfunded Mandates Reform Act PART 1300—DEFINITIONS Clearance Officer, Information of 1995. Management and Security Staff, Justice I 1. The authority citation for part 1300 Congressional Review Act Management Division, Department of continues to read as follows: Justice, Patrick Henry Building, Suite This rule is not a major rule as 1600, 601 D Street, NW., Washington, Authority: 21 U.S.C. 802, 871(b), 951, defined by § 804 of the Small Business 958(f). DC 20530. Regulatory Enforcement Fairness Act of Executive Order 12988 1996 (Congressional Review Act). This I 2. Section 1300.02 is amended by revising paragraphs (b)(12), (b)(13), and This regulation meets the applicable rule will not result in an annual effect (b)(25) to read as follows: standards set forth in sections 3(a) and on the economy of $100,000,000 or 3(b)(2) of Executive Order 12988, Civil more; a major increase in costs or prices; § 1300.02 Definitions related to listed Justice Reform. or significant adverse effects on chemicals. competition, employment, investment, * * * * * Executive Order 13132 productivity, innovation, or on the This rulemaking does not preempt or ability of United States-based (b) * * * modify any provision of State law; nor companies to compete with foreign- (12) The term established business does it impose enforcement based companies in domestic and relationship means the regulated person responsibilities on any State; nor does it export markets. has imported or exported a listed chemical at least once within the past diminish the power of any State to List of Subjects enforce its own laws. Accordingly, this six months, or twice within the past rulemaking does not have federalism 21 CFR Part 1300 twelve months from or to a foreign implications warranting the application manufacturer, distributor, or end user of of Executive Order 13132. Chemicals, Drug traffic control. the chemical that has an established 21 CFR Part 1313 business with a fixed street address. A Unfunded Mandates Reform Act of 1995 person or business that functions as a This rule will not result in the Administrative practice and broker or intermediary is not a customer expenditure by State, local, and tribal procedure, Drug traffic control, Exports, for purposes of this definition.

VerDate Aug<31>2005 18:55 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17407

(13) The term established record as an relevant for determining whether a § 1313.15 Waiver of 15-day advance notice importer means that the regulated customer is a regular customer. for regular importers. person has imported a listed chemical at I 6. Section 1313.08 is added to read as (a) Each regulated person seeking least once within the past six months, follows: designation as a ‘‘regular importer’’ or twice within the past twelve months shall provide, by certified mail return from a foreign supplier. § 1313.08 Requirements for establishing a receipt requested, to the Administration record as an importer. * * * * * such information as is required under (25) The term regular customer means To establish a record as an importer, § 1313.08 documenting their status as a a person with whom the regulated the regulated person must provide the regular importer. person has an established business Administrator with the following * * * * * information in accordance with the relationship for a specified listed I waiver of the 15-day advance notice 10. Section 1313.16 is added to read chemical or chemicals that has been as follows: reported to the Administration subject requirements of § 1313.15: to the criteria established in part 1313 (a) The name, DEA registration § 1313.16 Transfers following importation. number (where applicable), street of this chapter. (a) In the case of a notice under address, telephone number, and, where § 1313.12(a) submitted by a regulated * * * * * available, the facsimile number of the person, if the transferee identified in the regulated person and of each foreign PART 1313—IMPORTATION AND notice is not a regular customer, the EXPORTATION OF LIST I AND LIST II supplier; and (b) The frequency and number of importer may not transfer the listed CHEMICALS transactions occurring during the chemical until after the expiration of the 15-day period beginning on the date on I 3. The authority citation for part 1313 preceding 12 month period. I which the notice is submitted to the continues to read as follows: 7. Section 1313.12 is amended by Administration. revising paragraph (c) to read as follows: Authority: 21 U.S.C. 802, 830, 871(b), 971. (b) After a notice under § 1313.12(a) or (d) is submitted to the I 4. The heading of part 1313 is revised § 1313.12 Requirement of authorization to import. Administration, if circumstances change to read as set forth above. * * * * * and the importer will not be transferring I 5. Section 1313.05 is added to read as (c) The 15-day advance notification the listed chemical to the transferee follows: requirement for listed chemical imports identified in the notice, or will be may be waived for the following: transferring a greater quantity of the § 1313.05 Requirements for an established chemical than specified in the notice, business relationship. (1) Any importation that meets both of the following requirements: the importer must update the notice to To document that an importer or (i) The regulated person has satisfied identify the most recent prospective exporter has an established business the requirements for reporting to the transferee or the most recent quantity or relationship with a customer, the Administration as a regular importer of both (as the case may be) and may not importer or exporter must provide the the listed chemicals. transfer the listed chemical until after Administrator with the following (ii) The importer intends to transfer the expiration of the 15-day period information in accordance with the the listed chemicals to a person who is beginning on the date on which the waiver of 15-day advance notice a regular customer for the chemical, as update is submitted to the requirements of § 1313.15 or § 1313.24: defined in § 1300.02 of this chapter. Administration, except that the 15-day (a) The name and street address of the (2) A specific listed chemical, as set restriction does not apply if the chemical importer or exporter and of forth in paragraph (f) of this section, for prospective transferee identified in the each regular customer; which the Administrator determines (b) The telephone number, contact update is a regular customer. The that advance notification is not person, and where available, the preceding sentence applies with respect necessary for effective chemical facsimile number for the chemical to changing circumstances regarding a diversion control. importer or exporter and for each transferee or quantity identified in an regular customer; * * * * * update to the same extent and in the (c) The nature of the regular I 8. Section 1313.13 is amended by same manner as the sentence applies customer’s business (i.e., importer, revising paragraph (c)(4) and adding with respect to changing circumstances exporter, distributor, manufacturer, paragraph (c)(5) to read as follows: regarding a transferee or quantity etc.), and if known, the use to which the identified in the original notice under § 1313.13 Contents of import declaration. listed chemical or chemicals will be § 1313.12(a) or (d). applied; * * * * * (c) In the case of a transfer of a listed (d) The duration of the business (c) * * * chemical that is subject to a 15-day relationship; (4) The name, address, telephone restriction, the transferee involved shall, (e) The frequency and number of number, telex number, and, where upon the expiration of the 15-day transactions occurring during the available, the facsimile number of the period, be considered to qualify as a preceding 12-month period; consigner in the foreign country of regular customer, unless the (f) The amounts and the listed exportation; and Administration otherwise notifies the chemical or chemicals involved in (5) The name, address, telephone importer involved in writing. regulated transactions between the number, and where available, the (d) With respect to a transfer of a chemical importer or exporter and facsimile number of the person or listed chemical with which a notice or regular customer; persons to whom the importer intends update referred to in § 1313.12(a) or (d) (g) The method of delivery (direct to transfer the listed chemical and the is concerned: shipment or through a broker or quantity to be transferred to each (1) The Administration— forwarding agent); and transferee. (i) May, in accordance with the same (h) Other information that the I 9. Section 1313.15 is amended by procedures as apply under §§ 1313.51 chemical importer or exporter considers revising paragraph (a) to read as follows: through 1313.57, order the suspension

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17408 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

of the transfer of the listed chemical by person, if the transferee identified in the (ii) May, for purposes of this the importer involved, except for a notice, i.e., the foreign importer, is not paragraph (d), disqualify a regular transfer to a regular customer, on the a regular customer, the regulated person customer on that ground. ground that the chemical may be may not transfer the listed chemical (2) From and after the time when the diverted to the clandestine manufacture until after the expiration of the 15-day Administration provides written notice of a controlled substance (without period beginning on the date on which of the order under paragraph (d)(1)(i) of regard to the form of the chemical that the notice is submitted to the this section (including a statement of may be diverted, including the Administration. the legal and factual basis for the order) diversion of a finished drug product to (b) After a notice under § 1313.21(a) is to the exporter, the exporter may not be manufactured from bulk chemicals to submitted to the Administration, if carry out the transfer. be transferred), subject to the circumstances change and the exporter (e) For purposes of this section: Administration ordering the suspension will not be transferring the listed (1) The term transfer, with respect to before the expiration of the 15-day chemical to the transferee identified in a listed chemical, includes the sale of period with respect to the importation the notice, or will be transferring a the chemical. (in any case in which such a period greater quantity of the chemical than (2) The term transferee means a applies); and specified in the notice, the exporter person to whom an exporter transfers a (ii) May, for purposes of this must update the notice to identify the listed chemical. paragraph (d), disqualify a regular most recent prospective transferee or the I 13. Section 1313.27 is added to read customer on that ground. most recent quantity or both (as the case as follows: (2) From and after the time when the may be) and may not transfer the listed Administration provides written notice chemical until after the expiration of the § 1313.27 Return declaration or of the order under paragraph (d)(1)(i) of 15-day period beginning on the date on amendment to Form 486 for exports. this section (including a statement of which the update is submitted to the (a) Within 30 days after a transaction the legal and factual basis for the order) Administration, except that the 15-day is completed, the exporter must send to to the importer, the importer may not restriction does not apply if the the Administration a return declaration carry out the transfer. prospective transferee identified in the containing particulars of the transaction, (e) For purposes of this section: update is a regular customer. The including the date, quantity, chemical, (1) The term transfer, with respect to preceding sentence applies with respect container, name of transferees, and any a listed chemical, includes the sale of to changing circumstances regarding a other information as the Administration the chemical. transferee or quantity identified in an may specify. (2) The term transferee means a update to the same extent and in the (b) If an exportation for which a Form person to whom an importer transfers a same manner as the sentence applies 486 has been filed fails to take place, the listed chemical. with respect to changing circumstances exporter must file an amended Form I 11. Section 1313.17 is added to read regarding a transferee or quantity 486 notifying the Administration that as follows: identified in the original notice under the exportation did not occur. § 1313.17 Return declaration or paragraph (a) of this section. I 14. Section 1313.32 is amended by amendment to Form 486 for imports. (c) In the case of a transfer of a listed adding paragraphs (d) and (e) to read as (a) Within 30 days after a transaction chemical that is subject to a 15-day follows: is completed, the importer must send to restriction, the transferee involved shall, the Administration a return declaration upon the expiration of the 15-day § 1313.32 Requirement of authorization for international transactions. containing particulars of the transaction, period, be considered to qualify as a including the date, quantity, chemical, regular customer, unless the * * * * * container, name of transferees, and any Administration otherwise notifies the (d) After a notice under paragraph (a) other information as the Administration exporter involved in writing. of this section is submitted to the may specify. A single return declaration (d) With respect to a transfer of a Administration, if circumstances change may include the particulars of both the listed chemical with which a notice or and the broker or trader will not be importation and distribution. If the update referred to in § 1313.21(a) is transferring the listed chemical to the importer has not distributed all concerned: transferee identified in the notice, or chemicals imported by the end of the (1) The Administration— will be transferring a greater quantity of initial 30-day period, the importer must (i) May, in accordance with the same the chemical than specified in the file supplemental return declarations no procedures as apply under §§ 1313.51 notice, the broker or trader must update later than 30 days from the date of any through 1313.57, order the suspension the notice to identify the most recent further distribution, until the of the transfer of the listed chemical by prospective transferee or the most recent distribution or other disposition of all the exporter involved, except for a quantity or both (as the case may be). chemicals imported under the import transfer to a regular customer, on the The preceding sentence applies with notification or any update are accounted ground that the chemical may be respect to changing circumstances for. diverted to the clandestine manufacture regarding a transferee or quantity (b) If an importation for which a Form of a controlled substance (without identified in an update to the same 486 has been filed fails to take place, the regard to the form of the chemical that extent and in the same manner as the importer must file an amended Form may be diverted, including the sentence applies with respect to 486 notifying the Administration that diversion of a finished drug product to changing circumstances regarding a the importation did not occur. be manufactured from bulk chemicals to transferee or quantity identified in the I 12. Section 1313.26 is added to read be transferred), subject to the original notice under paragraph (a) of as follows: Administration ordering the suspension this section. before the expiration of the 15-day (e) For purposes of this section: § 1313.26 Transfers following exportation. period with respect to the exportation (1) The term transfer, with respect to (a) In the case of a notice under (in any case in which such a period a listed chemical, includes the sale of § 1313.21(a) submitted by a regulated applies); and the chemical.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17409

(2) The term transferee means a Federal holidays. You may also find this contain complete supporting person to whom an exporter transfers a docket on the Internet at http:// documentation and evidence which the listed chemical. dms.dot.gov. appellant wishes to have considered. I 15. Section 1313.35 is added to read FOR FURTHER INFORMATION CONTACT: If Upon receipt of the appeal, the Area as follows: you have questions on this rule, call Commander may direct a representative to gather and submit documentation or § 1313.35 Return declaration or Commander Michael Cunningham, amendment to Form 486 for international Coast Guard, telephone 202–372–1129. other evidence which would be transactions. If you have questions on viewing the necessary or helpful to a resolution of the appeal. A copy of this (a) Within 30 days after a transaction docket, call Ms. Renee V. Wright, is completed, the broker or trader must Program Manager, Docket Operations, documentation and evidence is made send to the Administration a return telephone 202–493–0402. available to the appellant. The appellant declaration containing particulars of the SUPPLEMENTARY INFORMATION: Each year is afforded five working days from the transaction, including the date, Title 33 of the Code of Federal date of receipt to submit rebuttal quantity, chemical, container, name of Regulations is updated on July 1. On materials. Following submission of all transferees, and any other information July 12, 2006, the Coast Guard materials, the Area Commander issues a as the Administration may specify. published a final rule (USCG–2006– ruling, in writing, on the appeal. Prior (b) If a transaction for which a Form 25150) to make technical, to issuing the ruling, the Area 486 has been filed fails to take place, the organizational, conforming amendments Commander may, as a matter of broker or trader must file an amended and other editorial corrections discretion, allow oral presentation on Form 486 notifying the Administration throughout Title 33. (71 FR 39206) Due the issues. to a drafting error in the July 12th final that the transaction did not occur. (d) Any person who receives an rule the appeals process in § 160.7 is Dated: March 30, 2007. unfavorable ruling on an appeal taken now deficient. The July 12th final rule Michele M. Leonhart, ascribes authorities not within the realm under paragraph (c) of this section, may Deputy Administrator. of the Area Commander and does not appeal through the Area Commander to [FR Doc. 07–1718 Filed 4–6–07; 8:45 am] clearly allow for an appeal of Area the Assistant Commandant for BILLING CODE 4410–09–P Commander decisions to Coast Guard Prevention (formerly known as the Headquarters. This correction document Assistant Commandant for Marine makes corrections to the revisions in Safety, Security and Environmental DEPARTMENT OF HOMELAND § 160.7 found in the July 12th final rule. Protection), U.S. Coast Guard, SECURITY Washington, DC 20593. The appeal List of Subjects in 33 CFR Part 160 must be in writing, except as allowed Coast Guard Administrative practice and under paragraph (e) of this section. The procedure, Harbors, Hazardous Area Commander forwards the appeal, 33 CFR Part 160 materials transportation, Marine safety, all the documents and evidence which [USCG–2006–25150; Correction] Navigation (water), Reporting and formed the record upon which the order recordkeeping requirements, Vessels, or direction was issued or the ruling RIN 1625–ZA08 Waterways. under paragraph (c) of this section was I Accordingly, 33 CFR part 160 is made, and any comments which might Navigation and Navigable Waters; corrected by making the following Technical, Organizational, and be relevant, to the Assistant correcting amendments: Conforming Amendments Commandant for Prevention. A copy of this documentation and evidence is PART 160—PORTS AND WATERWAYS AGENCY: Coast Guard, DHS. made available to the appellant. The SAFETY—GENERAL ACTION: Final rule; correcting appellant is afforded five working days amendments. I 1. The authority citation for part 160 from the date of receipt to submit continues to read as follows: rebuttal materials to the Assistant SUMMARY: This document contains a Commandant for Prevention. The correction to the section addressing Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701; Department of Homeland decision of the Assistant Commandant appeals for orders issued pursuant to Security Delegation No. 0170.1. Subpart C is for Prevention is based upon the the Coast Guard’s regulations also issued under the authority of 33 U.S.C. materials submitted, without oral implementing the Ports and Waterways 1225 and 46 U.S.C. 3715. argument or presentation. The decision Safety Act (USCG–2006–25150) I of the Assistant Commandant for published on July 12, 2006, in the 2. Amend § 160.7 to revise paragraphs Prevention is issued in writing and Federal Register (71 FR 39206). (c) and (d) to read as follows: constitutes final agency action. DATES: This correction is effective April § 160.7 Appeals. * * * * * 9, 2007. * * * * * ADDRESSES: Comments and material (c) Any person directly affected by the Dated: March 27, 2007. received from the public, as well as establishment of a safety zone or by an Stefan G. Venckus, documents mentioned in this preamble order or direction issued by, or on Chief, Office of Regulations and as being available in the docket, are part behalf of, a District Commander, or who Administrative Law, United States Coast of docket USCG–2006–25150 and are receives an unfavorable ruling on an Guard. available for inspection or copying at appeal taken under paragraph (b) of this [FR Doc. E7–6099 Filed 4–6–07; 8:45 am] the Docket Management Facility, U.S. section may appeal to the Area BILLING CODE 4910–15–P Department of Transportation, room PL– Commander through the District 401, 400 Seventh Street SW., Commander. The appeal must be in Washington, DC, between 9 a.m. and 5 writing, except as allowed under p.m., Monday through Friday, except paragraph (e) of this section, and shall

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17410 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

GENERAL SERVICES A. Background not impose recordkeeping or ADMINISTRATION Section 5724b of Title 5, United States information collection requirements, or Code, provides for reimbursement of the collection of information from 41 CFR Part 302–17 substantially all Federal, State, and local offerors, contractors, or members of the [FTR Amendment 2007–02; FTR Case 2007– income taxes incurred by a transferred public that require the approval of the 302; Docket 2007–0002, Sequence 2] Federal employee on taxable moving Office of Management and Budget under 44 U.S.C. 3501 et seq. RIN 3090–AI35 expense reimbursements. Policies and procedures for the calculation and E. Small Business Regulatory Federal Travel Regulation; Relocation payment of the RIT allowance are Enforcement Fairness Act Income Tax (RIT) Allowance Tax contained in the Federal Travel Tables—2007 Update Regulation (41 CFR part 302–17). GSA This final rule is also exempt from updates Federal, State, and Puerto Rico Congressional review prescribed under AGENCY: Office of Governmentwide tax tables for calculating RIT allowance 5 U.S.C. 801 since it relates solely to Policy, GSA. payments yearly to reflect changes in agency management and personnel. ACTION: Final rule. Federal, State, and Puerto Rico income List of Subjects in 41 CFR Part 302–17 SUMMARY: This rule updates the Federal, tax brackets and rates. State, and Puerto Rico tax tables for This amendment also provides a tax Government employees, Income taxes, calculating the relocation income tax table necessary to compute the RIT Relocation allowances and entitlements, (RIT) allowance, to reflect changes in allowance for employees who received Transfers, Travel and transportation Federal, State, and Puerto Rico income reimbursement for relocation expenses expenses. in 2006. tax brackets and rates. The Federal, Dated: March 23, 2007. State, and Puerto Rico tax tables B. Executive Order 12866 Lurita Doan, contained in this rule are for use in This regulation is excepted from the Administrator of General Services. calculating the 2007 RIT allowance to be definition of ‘‘regulation’’ or ‘‘rule’’ paid to relocating Federal employees. I under Section 3(d)(3) of Executive Order For the reasons set forth in the DATES: Effective Date: This final rule is 12866, Regulatory Planning and Review, preamble, under 5 U.S.C. 5738, GSA effective April 9, 2007. dated September 30, 1993 and, amends 41 CFR part 302–17 as set forth Applicability date: This final rule therefore, was not subject to review below: provides tax information for filing 2006 under Section 6(b) of that Executive Federal and State income taxes. PART 302–17—RELOCATION INCOME Order. FOR FURTHER INFORMATION CONTACT: The TAX (RIT) ALLOWANCE Regulatory Secretariat (VIR), Room C. Regulatory Flexibility Act I 1. The authority citation for 41 CFR 4035, GSA Building, Washington, DC This final rule is not required to be part 302–17 continues to read as 20405, telephone (202) 501–4755, for published in the Federal Register for follows: information pertaining to status or notice and comment as per the publication schedules. For clarification exemption specified in 5 U.S.C. Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); of content, contact Ed Davis, Office of 553(a)(2); therefore, the Regulatory E.O. 11609, 36 FR 13747, 3 CFR, 1971–1975 Governmentwide Policy, Travel Flexibility Act, 5 U.S.C. 601, et seq., Comp., p. 586. Management Policy (MTT), Washington, does not apply. I DC 20405, telephone (202) 208–7638. 2. Revise Appendices A, B, C, and D Please cite FTR Amendment 2007–02, D. Paperwork Reduction Act to part 302–17 to read as follows: FTR case 2007–302. The Paperwork Reduction Act does Appendix A to Part 302–17—Federal SUPPLEMENTARY INFORMATION: not apply because this final rule does Tax Tables for RIT Allowance

FEDERAL MARGINAL TAX RATES BY EARNED INCOME LEVEL AND FILING STATUS—TAX YEAR 2006 [Use the following table to compute the RIT allowance for Federal taxes, as prescribed in § 302–17.8(e)(1), on Year 1 marginal taxable reimbursements received during calendar year 2006]

Marginal tax rate Single taxpayer Head of household Married filing jointly/ Married filing sepa- qualifying widows & rately widowers But not But not Percent Over over Over over But not Over But not Over over over

10 ...... $8,739 $16,560 $16,538 $27,374 $24,163 $38,534 $12,036 $19,194 15 ...... 16,560 41,041 27,374 59,526 38,534 86,182 19,194 43,330 25 ...... 41,041 88,541 59,526 128,605 86,182 154,786 43,330 79,441 28 ...... 88,541 175,222 128,605 203,511 154,786 224,818 79,441 114,716 33 ...... 175,222 360,212 203,511 375,305 224,818 374,173 114,716 188,184 35 ...... 360,212 ...... 375,305 ...... 374,173 ...... 188,184 ......

Appendix B to Part 302–17—State Tax Tables for RIT Allowance

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17411

STATE MARGINAL TAX RATES BY EARNED INCOME LEVEL—TAX YEAR 2006 [Use the following table to compute the RIT allowance for State taxes, as prescribed in § 302–17.8(e)(2), on taxable reimbursements received during calendar year 2006. The rates on the first line for each State are for employees who are married and file jointly; if there is a second line for a State, it displays the rates for employees who file as single. For more additional information, such as State rates for other filing statuses, please see the 2007 State Tax Handbook, pp. 255–270, available from CCH Inc., http://tax.cchgroup.com/Books/default.]

Marginal tax rates (stated in percents) for the earned income amounts specified in each column.123

State (or District) $20,000– $25,000– $50,000– $75,000 & $24,999 $49,999 $74,999 over 4

Alabama ...... 5.00 5 .00 5.00 5 .00 Alaska ...... 0.00 0 .00 0.00 0 .00 Arizona ...... 3.04 3.04 3 .55 3.55 If single status, married filing separately 5 ...... 3 .04 3.55 4 .48 4.48 Arkansas ...... 6.00 7 .00 7.00 7.00 California ...... 2.00 6 .00 9.30 9.30 If single status, married filing separately 5 ...... 6 .00 8.00 9 .30 9.30 Colorado ...... 4 .63 4.63 4 .63 4.63 Connecticut ...... 5.00 5.00 5 .00 5.00 Delaware ...... 5.20 5 .55 5.95 5.95 District of Columbia ...... 7.00 7 .00 8.70 8.70 Florida ...... 0.00 0 .00 0.00 0 .00 Georgia ...... 6 .00 6.00 6 .00 6.00 Hawaii ...... 6.40 7.60 7 .90 8.25 If single status, married filing separately 5 ...... 7 .60 7.90 8 .25 8.25 Idaho ...... 7 .40 7.80 7 .80 7.80 If single status, married filing separately 5 ...... 7 .80 7.80 7 .80 7.80 Illinois ...... 3.00 3 .00 3.00 3.00 Indiana ...... 3.40 3.40 3 .40 3.40 Iowa ...... 6 .48 7.92 8 .98 8.98 Kansas ...... 6.25 6.45 6 .45 6.45 Kentucky ...... 5.80 5 .80 5.80 6.00 Louisiana ...... 2.00 4.00 6 .00 6.00 If single status, married filing separately 5 ...... 4 .00 6.00 6 .00 6.00 Maine ...... 7.00 8 .50 8.50 8.50 If single status, married filing separately 5 ...... 8 .50 8.50 8 .50 8.50 Maryland ...... 4 .75 4.75 4 .75 4.75 Massachusetts ...... 5 .30 5.30 5.30 5 .30 Michigan ...... 3.90 3 .90 3.90 3 .90 Minnesota ...... 5.35 7 .05 7.05 7.05 If single status, married filing separately 5 ...... 7 .05 7.05 7 .85 7.85 Mississippi ...... 5.00 5 .00 5.00 5.00 Missouri ...... 6 .00 6.00 6 .00 6.00 Montana ...... 6.90 6 .90 6.90 6 .90 Nebraska ...... 3 .57 6.84 6.84 6 .84 If single status, married filing separately 5 ...... 5 .12 6.84 6 .84 6.84 Nevada ...... 0.00 0 .00 0.00 0 .00 New Hampshire ...... 0 .00 0.00 0 .00 0.00 New Jersey ...... 1.75 1 .75 3.50 5.525 If single status, married filing separately 5 ...... 1 .75 5.525 5.525 6 .370 New Mexico ...... 5.30 5.30 5 .30 5.30 New York ...... 5 .25 6.85 6.85 6 .85 If single status, married filing separately 5 ...... 6 .85 6.85 6 .85 6.85 North Carolina ...... 7.00 7 .00 7.00 7 .00 If single status, married filing separately 5 ...... 7 .00 7.00 7 .75 7.75 North Dakota ...... 2.10 2 .10 3.92 3 .92 If single status, married filing separately 5 ...... 2 .10 3.92 4 .34 4.34 Ohio ...... 4 .083 4 .083 4.764 5.444 Oklahoma ...... 6 .25 6.25 6 .25 6.25 Oregon ...... 9.00 9.00 9 .00 9.00 Pennsylvania ...... 3 .07 3.07 3 .07 3.07 Rhode Island 6 ...... 3 .75 7.00 7 .00 7.00 If single status, married filing separately 5 ...... 3 .75 7.00 7 .00 7.75 South Carolina ...... 7 .00 7.00 7.00 7 .00 South Dakota ...... 0 .00 0.00 0.00 0 .00 Tennessee ...... 0 .00 0.00 0 .00 0.00 Texas ...... 0.00 0 .00 0.00 0.00 Utah ...... 6 .98 6.98 6 .98 6.98 Vermont ...... 3 .60 3.60 7.20 7 .20 If single status, married filing separately 5 ...... 3 .60 7.20 8 .50 8.50 Virginia ...... 5 .75 5.75 5.75 5 .75 Washington ...... 0.00 0.00 0 .00 0.00 West Virginia ...... 4.00 6.00 6 .50 6.50 Wisconsin ...... 6.50 6 .50 6.50 6 .50

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17412 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

STATE MARGINAL TAX RATES BY EARNED INCOME LEVEL—TAX YEAR 2006—Continued [Use the following table to compute the RIT allowance for State taxes, as prescribed in § 302–17.8(e)(2), on taxable reimbursements received during calendar year 2006. The rates on the first line for each State are for employees who are married and file jointly; if there is a second line for a State, it displays the rates for employees who file as single. For more additional information, such as State rates for other filing statuses, please see the 2007 State Tax Handbook, pp. 255–270, available from CCH Inc., http://tax.cchgroup.com/Books/default.]

Marginal tax rates (stated in percents) for the earned income amounts specified in each column.123

State (or District) $20,000– $25,000– $50,000– $75,000 & $24,999 $49,999 $74,999 over 4

Wyoming ...... 0 .00 0.00 0 .00 0.00 [The above table/column headings established by IRS.] 1 Earned income amounts that fall between the income brackets shown in this table (e.g., $24,999.45, $49,999.75) should be rounded to the nearest dollar to determine the marginal tax rate to be used in calculating the RIT allowance. 2 If the earned income amount is less than the lowest income bracket shown in this table, the employing agency shall establish an appropriate marginal tax rate as provided in § 302–17.8(e)(2)(ii). 3 If two or more marginal tax rates of a State overlap an income bracket shown in this table, then the highest of the two or more State marginal tax rates is shown for that entire income bracket. For more specific information, see the 2007 State Tax Handbook, pp. 255–270, CCH, Inc., http://tax.cchgroup.com/Books/default. 4 This is an estimate. For earnings over $100,000, and for filing statuses other than those above, please consult actual tax tables. See 2007 State Tax Handbook, pp. 255–270, CCH, Inc., http://tax.cchgroup.com/Books/default. 5 This rate applies only to those individuals certifying that they will file under a single or married filing separately status within the states where they will pay income taxes. 6 The income tax rate for Rhode Island is 25 percent of Federal income tax rates, including capital gains rates and any another other special rates for other types of income. Rates shown as a percent of Federal income tax liability must be converted to a percent of income as provided in § 302–17.8(e)(2)(iii). Effective for the 2006 tax year, tax payers may elect to compute income tax liability based on a graduated rate schedule or an alternative flat tax equal to 8%.

Appendix C to Part 302–17—Federal Tax Tables for RIT Allowance—Year 2

ESTIMATED RANGES OF WAGE AND SALARY INCOME CORRESPONDING TO FEDERAL STATUTORY MARGINAL INCOME TAX RATES BY FILING STATUS IN 2007 [The following table is to be used to determine the Federal marginal tax rate for Year 2 for computation of the RIT allowance as prescribed in § 302–17.8(e)(1). This table is to be used for employees whose Year 1 occurred during calendar years 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, or 2006]

Marginal tax rate Single taxpayer Head of household Married filing jointly/ Married filing sepa- qualifying widows & rately widowers But not But not Percent Over over Over over But not Over But not Over over over

10 ...... $9,287 $17,545 $18,060 $29,399 $26,173 $41,393 $14,049 $21,441 15 ...... 17,545 43,394 29,399 62,576 41,393 91,201 21,441 45,388 25 ...... 43,394 93,101 62,576 138,856 91,201 162,117 45,388 81,616 28 ...... 93,101 183,867 138,856 216,022 162,117 233,656 81,616 119,660 33 ...... 183,867 376,616 216,022 389,045 233,656 387,765 119,660 197,483 35 ...... 376,616 ...... 389,045 ...... 387,765 ...... 197,483 ......

Appendix D to Part 302–17—Puerto Rico Tax Tables for RIT Allowance

PUERTO RICO MARGINAL TAX RATES BY EARNED INCOME LEVEL—TAX YEAR 2006 [Use the following table to compute the RIT allowance for Puerto Rico taxes, as prescribed in § 302–17.8(e)(4)(i), on taxable reimbursements received during calendar year 2006.]

For married person living with For married person living with spouse and filing jointly, married spouse and filing separately person not living with spouse, Marginal tax rate single person, or head of household Over But not over Over But not over

10 ...... $2,000 $17,000 $1,000 $8,500 15 ...... 17,000 30,000 8,500 15,000 28 ...... 30,000 50,000 15,000 25,000 33 ...... 50,000 ...... 25,000 ...... Source: Individual Income Tax Return 2006—Long Form; Commonwealth of Puerto Rico, Department of the Treasury, P.O. Box 9022501, San Juan, PR 00902–2501; http://www.hacienda.gobierno.pr/planillas_y_formularios/formularios.html.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17413

[FR Doc. E7–6729 Filed 4–6–07; 8:45 am] respective addresses are listed in the Regulatory Flexibility Act. As flood BILLING CODE 6820–14–P table below. elevation determinations are not within FOR FURTHER INFORMATION CONTACT: the scope of the Regulatory Flexibility William R. Blanton, Jr., Engineering Act, 5 U.S.C. 601–612, a regulatory DEPARTMENT OF HOMELAND Management Section, Mitigation flexibility analysis is not required. SECURITY Division, Federal Emergency Regulatory Classification. This final Management Agency, 500 C Street, SW., rule is not a significant regulatory action Federal Emergency Management Washington, DC 20472, (202) 646–3151. under the criteria of section 3(f) of Agency SUPPLEMENTARY INFORMATION: The Executive Order 12866 of September 30, Federal Emergency Management Agency 1993, Regulatory Planning and Review, 44 CFR Part 67 (FEMA) makes the final determinations 58 FR 51735. listed below for the modified BFEs for Final Flood Elevation Determinations Executive Order 13132, Federalism. each community listed. These modified This final rule involves no policies that AGENCY: Federal Emergency elevations have been published in have federalism implications under Management Agency, DHS. newspapers of local circulation and Executive Order 13132. ACTION: Final rule. ninety (90) days have elapsed since that Executive Order 12988, Civil Justice publication. The Mitigation Division Reform. This final rule meets the SUMMARY: Base (1% annual chance) Director of FEMA has resolved any applicable standards of Executive Order Flood Elevations (BFEs) and modified appeals resulting from this notification. 12988. BFEs are made final for the This final rule is issued in accordance communities listed below. The BFEs with section 110 of the Flood Disaster List of Subjects in 44 CFR Part 67 Protection Act of 1973, 42 U.S.C. 4104, and modified BFEs are the basis for the Administrative practice and floodplain management measures that and 44 CFR part 67. FEMA has developed criteria for floodplain procedure, Flood insurance, Reporting each community is required either to and recordkeeping requirements. adopt or to show evidence of being management in floodprone areas in already in effect in order to qualify or accordance with 44 CFR part 60. I Accordingly, 44 CFR part 67 is remain qualified for participation in the Interested lessees and owners of real amended as follows: National Flood Insurance Program property are encouraged to review the PART 67—[AMENDED] (NFIP). proof Flood Insurance Study and FIRM available at the address cited below for DATES: The date of issuance of the Flood each community. The BFEs and I 1. The authority citation for part 67 Insurance Rate Map (FIRM) showing modified BFEs are made final in the continues to read as follows: BFEs and modified BFEs for each communities listed below. Elevations at Authority: 42 U.S.C. 4001 et seq.; community. This date may be obtained selected locations in each community Reorganization Plan No. 3 of 1978, 3 CFR, by contacting the office where the maps are shown. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, are available for inspection as indicated National Environmental Policy Act. 3 CFR, 1979 Comp., p. 376. on the table below. This final rule is categorically excluded § 67.11 [Amended] ADDRESSES: The final BFEs for each from the requirements of 44 CFR part community are available for inspection 10, Environmental Consideration. An I 2. The tables published under the at the office of the Chief Executive environmental impact assessment has authority of § 67.11 are amended as Officer of each community. The not been prepared. follows:

#Depth in feet above ground * Elevation in State City/town/county Source of flooding Location feet (NGVD) +Elevation in feet (NAVD) Modified

City of New York, New York Docket No.: FEMA–D–7678

New York ...... New York (City) ...... Amboy Road Wetland Entire shoreline within the community ...... * 50 (Staten Island). Arbutus Creek (Staten Is- Approximately 530 feet upstream of * 16 land). Hylan Boulevard. Approximately 980 feet upstream of * 57 Amboy Road. Blue Heron Main Branch Approximately 100 feet upstream of * 17 (Staten Island). Hylan Boulevard. Approximately 1,700 feet upstream of * 70 Tallman Street. Blue Heron Tributary At the confluence with Blue Heron Main * 36 (Staten Island). Branch. Approximately 35 feet upstream of * 70 Holbridge Avenue. Bronx River (Bronx)...... Approximately 600 feet upstream of * 15 Tremont Street. Approximately 1,650 feet upstream of * 74 East 24th Street.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17414 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

#Depth in feet above ground * Elevation in State City/town/county Source of flooding Location feet (NGVD) +Elevation in feet (NAVD) Modified

Butler Manor (Staten Is- Approximately 75 feet upstream of the * 10 land). confluence with Raritan Bay. Approximately 0.6 mile upstream of the * 33 confluence with Raritan Bay. Cleveland Avenue Wet- Entire shoreline within the community ...... * 58 land (Staten Island). Colon Tributary (Staten Is- At the confluence with Sweet Brook ...... * 15 land). Approximately 145 feet upstream of Pem- * 41 berton Avenue. D Street Brook (Staten Is- At D Street ...... * 97 land). Approximately 1,530 feet upstream of D * 155 Street. Denise Tributary (Staten Approximately 260 feet upstream of the * 18 Island). confluence of Arbutus Creek. Approximately 1,205 feet upstream of * 49 Jansen Street. Eibs Pond (Staten Island) Entire shoreline within the community ...... * 87 Eltingville Tributary (Staten At the confluence with Sweet Brook ...... * 38 Island). Approximately 406 feet upstream of * 45 Katan Avenue. Foresthill Road Brook Approximately 1,450 feet downstream of *5 (Staten Island). Foresthill Road. Approximately 3,070 feet upstream of * 74 Alaska Place. Hillside Avenue Wetland Entire shoreline within the community ...... * 56 (Staten Island). Jacks Pond (Staten Is- Entire shoreline within the community ...... * 52 land). Jansen Tributary (Staten Approximately 330 feet upstream of con- * 25 Island). fluence with Arbutus Creek. Approximately 1,340 feet upstream of * 41 confluence with Arbutus Creek. Lemon Creek (Staten Is- Approximately 40 feet upstream of Staten * 17 land). Island Rapid Transit Bridge. Approximately 350 feet upstream of * 101 Rossville Avenue. Mill Creek (Staten Island) Approximately 80 feet downstream of * 11 Richmond Valley Road. Approximately 1,320 feet upstream of * 77 West Veterans Road. Mill Creek Tributary 1 At the confluence with Mill Creek ...... * 41 (Staten Island). Approximately 230 feet from the down- * 60 stream side of the West Shore Ex- pressway. Mill Creek Tributary 2 At the confluence with Mill Creek ...... * 10 (Staten Island). At the confluence of Mill Creek Tributary * 13 3. Mill Creek Tributary 3 At the confluence with Mill Creek Tribu- * 13 (Staten Island). tary 2. Approximately 860 feet upstream of con- * 22 fluence with Mill Creek Tributary 2. Richmond Creek (Staten Approximately 510 feet downstream of *6 Island). Richmond Hill Road. Approximately 0.86 mile upstream of * 254 Rockland Avenue. Sandy Brook (Staten Is- Approximately 190 feet upstream of Rich- * 39 land). mond Parkway (Drumgoole Avenue). Approximately 1,100 feet upstream of * 84 Bloomingdale Road. Stump Pond (Staten Is- Entire shoreline within the community ...... * 271 land). Sweet Brook (Staten Is- Approximately 3,200 feet downstream of * 12 land). Genesee Avenue.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17415

#Depth in feet above ground * Elevation in State City/town/county Source of flooding Location feet (NGVD) +Elevation in feet (NAVD) Modified

Approximately 1,050 feet upstream of * 99 Richmond Avenue/Drumgoogle Avenue. Wolfes Pond (Staten Is- Approximately 1,175 feet upstream of * 10 land). Seguine Avenue. Approximately 175 feet upstream of * 21 Hylan Boulevard. Wood Duck Pond (Staten Entire shoreline within the community ...... * 54 Island).

# Depth in feet above ground. * National Geodetic Vertical Datum. +North American Vertical Datum. ADDRESSES Maps are available for inspection at the New York City Planning Department, Waterfront and Open Space Division, 22 Reade Street, Room 6E, New York, New York.

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Burke County, North Carolina and Incorporated Areas Docket Nos.: FEMA–D–7676 and FEMA–D–7680

Back Creek ...... At the confluence with Irish Creek ...... +1,116 Burke County (Unincor- porated Areas). Approximately 0.5 mile upstream of the confluence with +1,135 Irish Creek. Bailey Fork ...... Approximately 0.8 mile upstream of I–40 ...... +1,036 Burke County (Unincor- porated Areas), City of Morganton. Approximately 100 feet downstream of U.S. 64 ...... +1,047 Bristol Creek ...... At the confluence with Lower Creek ...... +1,019 Burke County (Unincor- porated Areas). Approximately 200 feet downstream of Burke/Caldwell +1,144 County boundary. Tributary 1 ...... At the confluence with Bristol Creek ...... +1,019 Burke County (Unincor- porated Areas). Approximately 0.4 mile upstream of the confluence with +1,019 Bristol Creek. Camp Creek ...... At Burke/Catawba County boundary ...... +1,020 Burke County (Unincor- porated Areas). Approximately 800 feet upstream of Burke/Catawba +1,023 County boundary. Canoe Creek ...... At the confluence with Catawba River ...... +1,024 Burke County (Unincor- porated Areas), City of Morganton. Approximately 0.4 mile upstream of SR 1254 ...... +1,289 Carroll Creek ...... At the confluence with Parks Creek ...... +1,047 Burke County (Unincor- porated Areas). Approximately 1,700 feet upstream of the confluence with +1,055 Parks Creek. Catawba River ...... At the Burke/Catawba County boundary ...... +936 Burke County (Unincor- porated Areas), City of Hickory, City of Mor- ganton, Town of Glen Al- pine, Town of Rhodhiss, Town of Rutherford Col- lege, Town of Valdese. Approximately 2.7 miles upstream of Burke/McDowell +1,206 County boundary. Tributary 1 ...... At the confluence with Catawba River ...... +1,069 Burke County (Unincor- porated Areas). Approximately 0.5 mile upstream of SR 1223 ...... +1,094

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17416 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Tributary 2 ...... At the confluence with Catawba River ...... +1,206 Burke County (Unincor- porated Areas). Approximately 2.8 miles upstream of the confluence with +1,236 Catawba River. Clear Creek ...... Approximately 100 feet upstream of the confluence with +1,046 Burke County (Unincor- Silver Creek. porated Areas). Approximately 400 feet upstream of U.S. 64 ...... +1,111 Cub Creek ...... At the confluence with Henry Fork ...... +996 Burke County (Unincor- porated Areas). Approximately 1.0 mile upstream of SR 1001 ...... +1,230 Double Branch ...... At the confluence with McGalliard Creek ...... +1,097 Burke County (Unincor- porated Areas), Town of Valdese. Approximately 1,100 feet upstream of SR 1737 ...... +1,231 Tributary 1 ...... At the confluence with Double Branch ...... +1,110 Burke County (Unincor- porated Areas). Approximately 2,000 feet upstream of SR 1722 ...... +1,197 Douglas Creek ...... Approximately 100 feet downstream of Burke/Catawba +1,046 Burke County (Unincor- County boundary. porated Areas). Approximately 1,400 feet upstream of Burke/Catawba +1,064 County boundary. Drowning Creek ...... At the confluence with Catawba River ...... +938 Burke County (Unincor- porated Areas). Approximately 1.7 miles upstream of SR 1758 ...... +1,527 Tributary 1 ...... Approximately 800 feet upstream of Wilson Road ...... +1,025 Town of Hildebran. Approximately 1,750 feet upstream of Cline Park Drive .... +1,103 Tributary 2 ...... Approximately 0.4 mile downstream of SR 1680 ...... +1,045 Burke County (Unincor- porated Areas). Approximately 200 feet downstream of Railroad ...... +1,079 Tributary 2B ...... At the confluence with Drowning Creek Tributary 2 ...... +1,046 Burke County (Unincor- porated Areas). Approximately 150 feet downstream of Railroad ...... +1,077 Dye Branch ...... At the confluence with McGalliard Creek ...... +1,078 Burke County (Unincor- porated Areas), Town of Valdese. Approximately 655 feet upstream of Praley Street ...... +1,193 Hall Creek ...... At the confluence with Silver Creek ...... +1,119 Burke County (Unincor- porated Areas). Approximately 2,000 feet upstream of U.S. 64 ...... +1,203 Henry Fork ...... Approximately 200 feet downstream of the Burke/Catawba +930 Burke County (Unincor- County boundary. porated Areas). Approximately 0.9 mile upstream of SR 1918 ...... +1,422 Howard Creek ...... At the confluence with Catawba River ...... +1,005 Burke County (Unincor- porated Areas), Town of Drexel. Approximately 750 feet downstream of SR 1536 ...... +1,009 Tributary 1 ...... Approximately 200 feet upstream of the confluence with +1,085 Burke County (Unincor- Howard Creek. porated Areas), Town of Drexel. Approximately 700 feet upstream of Railroad ...... +1,192 Hoyle Creek ...... At the confluence with Catawba River ...... +1,005 Burke County (Unincor- porated Areas), Town of Rutherford College, Town of Valdese. Approximately 1,600 feet upstream of the confluence of +1,081 Micol Creek. Tributary 1 ...... At the confluence with Hoyle Creek ...... +1,005 Burke County (Unincor- porated Areas), Town of Rutherford College, Town of Valdese. Approximately 0.9 mile upstream of the confluence with +1,164 Hoyle Creek. Tributary 2 ...... At the confluence with Hoyle Creek ...... +1,005 Burke County (Unincor- porated Areas), Town of Rutherford College, Town of Valdese. Approximately 0.7 mile upstream of the confluence with +1,106 Hoyle Creek.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17417

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Hunting Creek ...... At the confluence with Catawba River ...... +1,014 Burke County (Unincor- porated Areas), City of Morganton. Approximately 1,050 feet upstream of SR 2002 ...... +1,149 Tributary 2 ...... Approximately 650 feet upstream of the confluence with +1,080 Burke County (Unincor- Hunting Creek. porated Areas), City of Morganton. Approximately 0.7 mile upstream of Walker Road ...... +1,151 Tributary 3 ...... At the confluence with Hunting Creek ...... +1,105 Burke County (Unincor- porated Areas), City of Morganton. Approximately 0.4 mile upstream of the confluence with +1,115 Hunting Creek. Irish Creek ...... At the confluence with Warrior Fork and Upper Creek ...... +1,030 Burke County (Unincor- porated Areas). Approximately 900 feet upstream of the confluence of +1,146 Reedys Fork Creek. Tributary 1 ...... At the confluence with Irish Creek ...... +1,108 Burke County (Unincor- porated Areas). Approximately 50 feet downstream of SR 1240 ...... +1,127 Island Creek ...... Approximately 1.0 mile upstream of the confluence with +1,005 Burke County (Unincor- Catawba River. porated Areas), Town of Connelly Springs, Town of Rutherford College. Approximately 0.9 mile upstream of I–40 ...... +1,331 Jacob Fork ...... At Burke/Catawba County boundary ...... +1,047 Burke County (Unincor- porated Areas). Approximately 400 feet upstream of SR 1904 ...... +1,194 Johns River ...... At the confluence with Catawba River ...... +1,013 Burke County (Unincor- porated Areas), City of Morganton. At Burke/Caldwell County boundary ...... +1,053 Laurel Creek ...... At the confluence with Henry Fork ...... +1,015 Burke County (Unincor- porated Areas). Approximately 1.2 miles upstream of Shouppe Way ...... +1,302 Linville River ...... At the confluence with Catawba River ...... +1,206 Burke County (Unincor- porated Areas). At Avery/Burke County boundary ...... +3,215 Little Silver Creek ...... Approximately 0.6 mile upstream of Causby Road (SR +1,115 Burke County (Unincor- 1147). porated Areas), City of Morganton, Town of Glen Alpine. Approximately 1.1 miles upstream of Ceramic Tile Drive .. +1,226 Lower Creek ...... At the confluence with Catawba River ...... +1,011 Burke County (Unincor- porated Areas). At Burke/Caldwell County boundary ...... +1,028 McGalliard Creek ...... At the confluence with Catawba River ...... +1,005 Burke County (Unincor- porated Areas), Town of Valdese. Approximately 450 feet upstream of SR 1722 ...... +1,212 Tributary 1 ...... Approximately 300 feet upstream of the confluence with +1,062 Burke County (Unincor- McGalliard Creek. porated Areas), Town of Valdese. Approximately 1,900 feet upstream of Louise Avenue +1,232 Northeast. Tributary 2 ...... Approximately 100 feet upstream of the confluence with +1,089 Burke County (Unincor- McGalliard Creek. porated Areas), Town of Drexel. Approximately 650 feet downstream of I–40 ...... +1,250 Tributary 2A ...... At the confluence with McGalliard Creek Tributary 2 ...... +1,110 Burke County (Unincor- porated Areas), Town of Drexel. Approximately 800 feet upstream of Drexel. Road ...... +1,164 Tributary 2B ...... At the confluence with McGalliard Creek Tributary 2 ...... +1,149 Burke County (Unincor- porated Areas), Town of Drexel. Approximately 200 feet downstream of SR 1721 ...... +1,205

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17418 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Micol Creek ...... At the confluence with Hoyle Creek ...... +1,068 Burke County (Unincor- porated Areas), Town of Valdese. Approximately 300 feet downstream of I–40 ...... +1,252 Tributary 1 ...... At the confluence with Micol Creek ...... +1,117 Burke County (Unincor- porated Areas), Town of Rutherford College, Town of Valdese. Approximately 0.5 mile upstream of Montanya View Drive +1,526 Tributary 1A ...... At the confluence with Micol Creek Tributary 1A ...... +1,165 Burke County (Unincor- porated Areas), Town of Rutherford College, Town of Valdese. Approximately 100 feet downstream of SR 1001 ...... +1,229 Tributary 1A1 ...... At the confluence with Micol Creek Tributary 1A ...... +1,169 Burke County (Unincor- porated Areas), Town of Rutherford College. Approximately 1,800 feet upstream of Rutherford College +1,229 Road. Muddy Creek ...... At the confluence with Old Catawba River ...... +1,083 Burke County (Unincor- porated Areas). Approximately 0.4 mile upstream of Burke/McDowell +1,089 County boundary. Nolden Creek ...... Approximately 1.0 mile upstream of the confluence with +1,004 Burke County (Unincor- Catawba River. porated Areas), Town of Connelly Springs. Approximately 0.9 mile upstream of SR 1614 ...... +1,201 Old Catawba River ...... At the confluence with Catawba River ...... +1,066 Burke County (Unincor- porated Areas). At Catawba Dam ...... +1,098 Paddy Creek ...... At the confluence with Catawba River ...... +1,206 Burke County (Unincor- porated Areas). Approximately 2.9 miles upstream of SR 1237 ...... +1,815 Parks Creek ...... At the confluence with Johns River ...... +1,044 Burke County (Unincor- porated Areas). Approximately 100 feet downstream of SR 1405 ...... +1,050 Pearcy Creek ...... At the confluence with Parks Creek ...... +1,046 Burke County (Unincor- porated Areas). Approximately 1.1 miles upstream of SR 1405 ...... +1,154 Tributary 1 ...... At the confluence with Pearcy Creek ...... +1,077 Burke County (Unincor- porated Areas). Approximately 50 feet downstream of SR 1405 ...... +1,116 Reedys Fork Creek ...... At the confluence with Irish Creek ...... +1,141 Burke County (Unincor- porated Areas). Approximately 0.5 mile upstream of the confluence with +1,159 Irish Creek. Roses Creek ...... At the confluence with Irish Creek ...... +1,057 Burke County (Unincor- porated Areas). Approximately 0.6 mile upstream of the confluence of +1,345 Roses Creek Tributary 1. Tributary 1 ...... At the confluence with Roses Creek ...... +1,297 Burke County (Unincor- porated Areas). Approximately 0.6 mile upstream of the confluence with +1,382 Roses Creek. Russell Creek ...... At the confluence with Irish Creek ...... +1,115 Burke County (Unincor- porated Areas). Approximately 1,550 feet upstream of SR 1241 ...... +1,209 Sandy Run ...... Approximately 1.7 miles upstream of the confluence with +1,113 Burke County (Unincor- Hunting Creek. porated Areas). Approximately 2.4 miles upstream of the confluence with +1,156 Hunting Creek. Secrets Creek ...... Approximately 150 feet upstream of the confluence with +1,011 Burke County (Unincor- Howard Creek. porated Areas), Town of Drexel. Approximately 0.7 mile upstream of South Main Street ..... +1,213 Silver Creek ...... At the confluence with Catawba River ...... +1,023 Burke County (Unincor- porated Areas), City of Morganton.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17419

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Approximately 1,900 feet upstream of U.S. 64 ...... +1,226 Tributary 1 ...... At the confluence with Silver Creek ...... +1,023 City of Morganton. Approximately 1,050 feet upstream of Golf Course Road .. +1,025 Simpson Creek ...... At the confluence with Roses Creek ...... +1,089 Burke County (Unincor- porated Areas). Approximately 1.5 miles upstream of the confluence with +1,185 Roses Creek. Smokey Creek ...... At the confluence with Catawba River ...... +1,006 Burke County (Unincor- porated Areas). At Burke/Caldwell County boundary ...... +1,100 Tributary 1 ...... At the confluence with Smokey Creek ...... +1,043 Burke County (Unincor- porated Areas). Approximately 0.4 mile upstream of the confluence with +1,079 Smokey Creek. South Muddy Creek ...... Approximately 1,200 feet downstream of Burke/McDowell +1,092 Burke County (Unincor- County boundary. porated Areas). At Burke/McDowell County boundary ...... +1,098 Tributary 1 ...... At Burke/McDowell County boundary ...... +1,121 Burke County (Unincor- porated Areas). Approximately 1,000 feet upstream of Burke/McDowell +1,144 County boundary. Tims Creek ...... At the confluence with Henry Fork ...... +977 Burke County (Unincor- porated Areas). Approximately 1.6 miles upstream of SR 1786 ...... +1,234 Upper Creek ...... At the confluence with Warrior Fork and Irish Creek ...... +1,030 Burke County (Unincor- porated Areas). Approximately 0.5 mile upstream of SR 1405 ...... +1,093 Warrior Fork ...... At the confluence with Catawba River ...... +1,018 Burke County (Unincor- porated Areas), City of Morganton. At the confluence of Upper Creek and Irish Creek ...... +1,030 Wilson Creek ...... At the confluence with Warrior Fork ...... +1,018 Burke County (Unincor- porated Areas), City of Morganton. Approximately 0.7 mile upstream of the confluence with +1,018 Warrior Fork.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Hickory Maps are available for inspection at the Hickory City Hall, 76 North Center Street, Hickory, North Carolina. City of Morganton Maps are available for inspection at the Morganton. Town Hall, Community Development Department, 305 East Union Street, Morganton, North Carolina. Town of Connelly Springs Maps are available for inspection at the Connelly Springs Town Hall, 1030 U.S. Highway 70, Connelly Springs, North Carolina. Town of Drexel Maps are available for inspection at the Drexel Town Hall, 202 Church Street, Drexel, North Carolina. Town of Glen Alpine Maps are available for inspection at the Glen Alpine Town Hall, 103 Pitts Street, Glen Alpine, North Carolina. Town of Hildebran Maps are available for inspection at the Hildebran Town Hall, 202 South Center Street, Hildebran, North Carolina. Town of Rhodhiss Maps are available for inspection at the Rhodhiss Town Hall, 200 Burke Street, Rhodhiss, North Carolina. Town of Rutherford College Maps are available for inspection at the Rutherford College Town Hall, 950 Malcolm Boulevard, Rutherford College, North Carolina. Town of Valdese Maps are available for inspection at the Valdese Town Hall, 121 Faet Street, Valdese, North Carolina. Unincorporated Areas of Burke County Maps are available for inspection at the Burke County Planning and Development Department, 110 North Green Street, Morganton, North Caro- lina.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17420 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Catawba County, North Carolina and Incorporated Areas Docket Nos.: FEMA–D–7668 and FEMA–D–7680

Bakers Creek Tributary ...... Approximately 400 feet upstream of the confluence with +891 Catawba County (Unincor- Bakers Creek. porated Areas). Approximately 1.4 miles upstream of Swinging Bridge +980 Road. Tributary 1 ...... Approximately 300 feet upstream of the confluence with +891 Catawba County (Unincor- Bakers Creek. porated Areas). Approximately 0.7 mile upstream of Stratford Drive ...... +1,040 Balls Creek ...... Approximately 600 feet downstream of Kale Road (State +762 Catawba County (Unincor- Route 1832). porated Areas). Approximately 970 feet upstream of Little Mountain Road +1,034 Barger Branch ...... At the confluence with Henry Fork ...... +861 Catawba County (Unincor- porated Areas), City of Hickory, Town of Brookford. Approximately 200 feet upstream of 8th Avenue South- +1,064 east. Tributary 1 ...... At the confluence with Barger Branch ...... +987 City of Hickory. Approximately 800 feet upstream of 8th Avenue South- +1,083 east. Tributary 2 ...... At the confluence with Barger Branch Tributary 1 ...... +991 City of Hickory. Approximately 1,040 feet upstream of the confluence with +1,033 Barger Branch Tributary 1. Tributary 3 ...... At the confluence with Barger Branch ...... +1,005 City of Hickory. Approximately 130 feet upstream of 8th Avenue South- +1,082 east. Betts Branch ...... At the confluence with Clarks Creek ...... +812 Catawba County (Unincor- porated Areas). Approximately 1,900 feet upstream of the confluence with +812 Clarks Creek. Bills Branch ...... At the confluence with Clarks Creek ...... +813 Catawba County (Unincor- porated Areas), City of Newton. Approximately 0.5 mile upstream of U.S. 321 South ...... +844 Camp Creek ...... Approximately 0.5 mile upstream of the confluence with +915 Catawba County (Unincor- Jacob Fork. porated Areas). At the Burke/Catawba County boundary ...... +1,020 Catawba River ...... Approximately 0.4 mile above the confluence of Balls +762 Catawba County (Unincor- Creek. porated Areas), City of Hickory. At the Burke/Caldwell/Catawba County boundary ...... +936 Tributary 1 ...... At the confluence with the Catawba River ...... +936 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 1,100 feet upstream of 31st Avenue North- +1,026 west. Clarks Creek ...... Approximately 850 feet downstream of U.S. 321 ...... +790 Catawba County (Unincor- porated Areas), City of Hickory, City of Newton, Town of Maiden. Approximately 2.5 miles upstream of I–40 ...... +1,049 Cline Creek ...... At the confluence with Clarks Creek ...... +864 Catawba County (Unincor- porated Areas), City of Conover, City of Newton. Approximately 150 feet downstream of I–40 ...... +908 Cline Creek North ...... At the confluence with Lyle Creek ...... +869 Catawba County (Unincor- porated Areas). Approximately 2.0 miles upstream of the confluence with +1,047 Cline Creek North Tributary 1. Tributary 1 ...... At the confluence with Cline Creek North ...... +896 Catawba County (Unincor- porated Areas). Approximately 0.5 mile upstream of Rifle Range Road ..... +1,105 Cline Creek Tributary 1 ...... At the confluence with Cline Creek ...... +886 City of Conover. Approximately 450 feet upstream of I–40 ...... +903

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17421

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Tributary 2 ...... At the confluence with Cline Creek ...... +898 City of Conover, Catawba County (Unincorporated Areas). Approximately 1,300 feet upstream of I–40 ...... +911 Conover Creek ...... At the confluence with Lyle Creek ...... +868 Catawba County (Unincor- porated Areas), City of Conover. Approximately 30 feet upstream of 5th Street Place North- +953 east. Cow Branch ...... At the confluence with Pott Creek ...... +861 Catawba County (Unincor- porated Areas). Approximately 0.8 mile upstream of Grace Church Road +910 (State Route 2030). Cripple Creek ...... At the confluence with Frye Creek and Horseford Creek ... +995 City of Hickory. Approximately 1,070 feet upstream of 4th Street Drive +1,067 Northwest. Tributary 1 ...... At the confluence with Cripple Creek ...... +1,029 City of Hickory. Approximately 1,900 feet upstream of the confluence with +1,055 Cripple Creek. Douglas Creek ...... At the confluence with Jacob Fork ...... +1,011 Catawba County (Unincor- porated Areas). Approximately 200 feet upstream of the Burke/Catawba +1,048 County boundary. Falling Creek ...... At the confluence with Lake Hickory ...... +936 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 50 feet downstream of 14th Avenue North- +1,093 east. Dellinger Creek ...... At the confluence with Elk Shoal Creek ...... +851 Catawba County (Unincor- porated Areas). Approximately 725 feet upstream of Rest Home Road ...... +960 East Tributary McLin Creek ...... At the confluence with McLin Creek ...... +943 Catawba County (Unincor- porated Areas), City of Conover. Approximately 1,000 feet upstream of Keisler Road +982 Southeast. Falling Creek Tributary 1 ...... Approximately 400 feet upstream of the confluence with +1,015 City of Hickory. Falling Creek. Approximately 275 feet upstream of 12th Avenue North- +1,088 east. Tributary 2 ...... At the confluence with Falling Creek ...... +1,052 City of Hickory. Approximately 380 feet upstream of 12th Avenue North- +1,095 east. Fitz Creek ...... At the confluence with Cripple Creek ...... +1,013 City of Hickory. Approximately 30 feet upstream of the confluence with +1,013 Cripple Creek. Frye Creek ...... At the confluence with Horseford Creek and Cripple Creek +995 City of Hickory, Town of Long View. Approximately 50 feet downstream of 34th Street North- +1,119 west. Geitner Branch ...... At the confluence with Henry Fork ...... +890 City of Hickory, Catawba County (Unincorporated Areas). Approximately 1,900 feet upstream of 7th Avenue South- +1,080 west. Tributary 1 ...... At the confluence with Geitner Branch ...... +1,019 City of Hickory. Approximately 1,250 feet upstream of the confluence with +1,043 Geitner Branch. Elk Shoal Creek ...... Approximately 2,750 feet upstream of the confluence with +849 Catawba County (Unincor- Catawba River. porated Areas). Approximately 2,000 feet upstream of Rest Home Road ... +943 Geitner Branch Tributary 2 ...... At the confluence with Geitner Branch ...... +983 City of Hickory. Approximately 1,700 feet upstream of 7th Avenue South- +1,074 west. Haas Creek ...... At the confluence with Pott Creek ...... +814 Catawba County (Unincor- porated Areas). Approximately 0.3 mile upstream of Bill and Beulah Lane +910

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17422 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Henry Fork ...... Approximately 1,250 feet upstream of the confluence with +821 Catawba County (Unincor- Jacob Fork and South Fork Catawba River. porated Areas), City of Hickory, City of Newton, Town of Brookford. At the Catawba/Burke County boundary ...... +930 Tributary 1 ...... At the confluence with Henry Fork ...... +846 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 0.5 mile upstream of Catawba Valley Bou- +974 levard SE. Tributary 2 ...... At the confluence with Henry Fork ...... +889 Town of Brookford, City of Hickory. Approximately 1,830 feet upstream of Brookford Boule- +921 vard. Tributary 3 ...... At the confluence with Henry Fork ...... +821 Catawba County (Unincor- porated Areas). Approximately 0.4 mile upstream of Robinson Road ...... +855 Herman Branch Creek ...... At the confluence with Lyle Creek ...... +913 Catawba County (Unincor- porated Areas), City of Conover. Approximately 175 feet upstream of the confluence with +914 Lyle Creek. Hildenbran Creek ...... At the confluence with Clarks Creek ...... +838 City of Newton. Approximately 150 feet upstream of A.C. Little Drive ...... +953 Holdsclaw Creek ...... At the upstream side of Railroad ...... +798 Catawba County (Unincor- porated Areas). Approximately 1,500 feet upstream of the confluence of +798 Holdsclaw Creek Tributary 1. Tributary 1 ...... At the confluence with Holdsclaw Creek ...... +798 Catawba County (Unincor- porated Areas). Approximately 1,450 feet upstream of the confluence with +803 Holdsclaw Creek. Holly Branch ...... Approximately 220 feet downstream of the confluence of +821 Catawba County (Unincor- Holly Branch Tributary 1 and Shady Branch. porated Areas), Town of Maiden. At the confluence of Holly Branch Tributary 1 and Shady +824 Branch. Tributary 1 ...... At the confluence with Holly Branch ...... +824 Catawba County (Unincor- porated Areas), Town of Maiden. Approximately 200 feet upstream of South Main Avenue .. +870 Hop Creek ...... At the confluence with Jacob Fork ...... +835 Catawba County (Unincor- porated Areas). Approximately 2.7 miles upstream of the confluence with +917 Jacob Fork. Horseford Creek ...... At the confluence with the Catawba River ...... +936 City of Hickory. At the confluence with Frye Creek and Cripple Creek ...... +995 Howards Creek ...... At the Catawba/Lincoln County boundary ...... +972 Catawba County (Unincor- porated Areas). Approximately 500 feet upstream of the Catawba/Lincoln +977 County boundary. Indian Creek ...... At the Catawba/Lincoln County boundary ...... +1,011 Catawba County (Unincor- porated Areas). Approximately 550 feet upstream of the Catawba/Lincoln +1,014 County boundary. Jacob Fork ...... Approximately 175 feet upstream of Providence Church +915 Catawba County (Unincor- Road (State Route 1116). porated Areas). At the Catawba/Burke County boundary ...... +1,057 Tributary 1 ...... At the confluence with Jacob Fork ...... +1,022 Catawba County (Unincor- porated Areas). Approximately 1.3 miles upstream of Cooksville Road ...... +1,078 Lippard Creek ...... At the Lincoln/Catawba County boundary ...... +869 Catawba County (Unincor- porated Areas). Approximately 1,870 feet upstream of the Lincoln/Ca- +876 tawba County boundary.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17423

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Long Creek ...... At the confluence with McLin Creek ...... +860 City of Conover, City of Claremont, Catawba County (Unincorporated Areas). Approximately 1,400 feet upstream of Railroad ...... +988 Long Shoal Creek ...... Approximately 0.5 mile downstream of Sulphur Springs +935 Catawba County (Unincor- Road (State Route 1529). porated Areas), City of Hickory. Approximately 0.4 mile upstream of Pinecrest Drive North- +1,037 east. Long View Creek ...... At the confluence with Henry Fork ...... +891 Catawba County (Unincor- porated Areas), City of Hickory, Town of Long View. Approximately 1,500 feet upstream of U.S. 70 Southwest +1,081 Tributary 1 ...... At the confluence with Long View Creek ...... +990 City of Hickory. Approximately 80 feet downstream of U.S. 70 ...... +1,061 Tributary 2 ...... Approximately 140 feet upstream of the confluence with +1,038 Town of Long View. Long View Creek. Approximately 1,460 feet upstream of the confluence with +1,053 Long View Creek. Lyle Creek ...... At the confluence with the Catawba River ...... +773 Catawba County (Unincor- porated Areas), City of Hickory, Town of Catawba. Approximately 550 feet upstream of 18th Avenue North- +1,116 east. Lyle Creek Tributary ...... At the downstream side of Shock Road (State Route +831 Catawba County (Unincor- 1711). porated Areas). Approximately 2,000 feet upstream of Community Road ... +892 Tributary 1 ...... Approximately 1,600 feet upstream of the confluence with +820 Catawba County (Unincor- Lyle Creek. porated Areas). Approximately 1.0 mile upstream of Crossing Creek Drive +931 Maiden Creek ...... Approximately 1.3 miles upstream of Providence Mill +864 Catawba County (Unincor- Road. porated Areas). Approximately 80 feet downstream of North Olivers Cross +905 Road. McLin Creek ...... Approximately 500 feet upstream of East 20th Street ...... +940 City of Conover. Approximately 0.6 mile upstream of the confluence of +970 East Tributary McLin Creek. Tributary 1 ...... Approximately 750 feet upstream of the confluence with +857 Catawba County (Unincor- McLin Creek. porated Areas), City of Claremont. Approximately 1,250 feet upstream of Frazier Drive ...... +936 Miller Branch ...... At the downstream side of 12th Avenue Southeast ...... +894 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 1.9 miles upstream of the confluence with +982 Clarks Creek. Mountain Creek ...... At the upstream side of Slanting Bridge Road ...... +760 Catawba County (Unincor- porated Areas). Approximately 1.6 miles upstream of the confluence of +776 Mountain Creek Tributary 3. Tributary 2 ...... At the confluence with Mountain Creek ...... +760 Catawba County (Unincor- porated Areas). Approximately 1.6 miles upstream of the confluence with +803 Mountain Creek. Tributary 2A ...... At the confluence with Mountain Creek Tributary 2 ...... +760 Catawba County (Unincor- porated Areas). Approximately 1.4 miles upstream of the confluence with +763 Mountain Creek Tributary 2. Tributary 3 ...... At the confluence with Mountain Creek ...... +760 Catawba County (Unincor- porated Areas). Approximately 1.0 mile upstream of the confluence with +778 Mountain Creek. Tributary 3A ...... At the confluence with Mountain Creek Tributary 3 ...... +767 Catawba County (Unincor- porated Areas). Approximately 0.5 mile upstream of the confluence with +804 Mountain Creek Tributary 3.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17424 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Muddy Creek ...... Approximately 1,900 feet upstream of the confluence with +835 Catawba County (Unincor- Henry Fork. porated Areas). At the confluence of Muddy Creek Tributaries 2 and 3 ...... +838 Tributary 1 ...... At the confluence with Muddy Creek ...... +837 Catawba County (Unincor- porated Areas). Approximately 0.7 mile upstream of Robinwood Road ...... +873 Tributary 2 ...... At the confluence with Muddy Creek ...... +838 Catawba County (Unincor- porated Areas). Approximately 0.6 mile upstream of Robinwood Road ...... +863 Tributary 3 ...... At the confluence with Muddy Creek ...... +838 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 1.3 miles upstream of the confluence with +872 Muddy Creek. Mull Creek ...... Approximately 1,000 feet upstream of the confluence with +819 Catawba County (Unincor- Lyle Creek. porated Areas), City of Conover, City of Clare- mont. Approximately 500 feet upstream of 9th Avenue Northeast +1,002 Mundy Creek ...... At the confluence with Reed Creek ...... +760 Catawba County (Unincor- porated Areas). Approximately 500 feet upstream of Lineberger Road ...... +776 Tributary 1 ...... At the confluence with Mundy Creek ...... +760 Catawba County (Unincor- porated Areas). Approximately 1,400 feet upstream of Grassy Creek Road +781 Naked Creek ...... Approximately 2,000 feet downstream of the St. Peters +936 Catawba County (Unincor- Church Road (State Route 1453). porated Areas). Approximately 0.5 mile upstream of Timber Ridge Road ... +1,015 Pinch Gut Creek ...... Approximately 120 feet upstream of St. James Church +851 Catawba County (Unincor- Road. porated Areas), Town of Maiden. Approximately 0.9 mile upstream of St. James Church +883 Road. Tributary 1 ...... At the confluence with Pinch Gut Creek ...... +852 Catawba County (Unincor- porated Areas). Approximately 0.5 mile upstream of the confluence with +886 Pinch Gut Creek. Pott Creek ...... Approximately 1,200 feet downstream of the confluence of +801 Catawba County (Unincor- Rhodes Mill Creek. porated Areas). Approximately 1.9 miles upstream of Plateau Road (State +928 Route 2036). Propst Creek ...... Approximately 0.4 mile downstream of Sipe Road (State +988 Catawba County (Unincor- Route 1492). porated Areas), City of Hickory. Approximately 75 feet downstream of Sipe Road (State +1,005 Route 1492). Reed Creek ...... At the confluence with Mountain Creek ...... +760 Catawba County (Unincor- porated Areas). Approximately 1.1 miles upstream of Mount Pleasant +790 Road. Rhodes Mill Creek ...... At the confluence with Pott Creek ...... +802 Catawba County (Unincor- porated Areas). Approximately 1,100 feet upstream of Leatherman Road +855 (State Route 2025). Tributary 1 ...... At the confluence with Rhodes Mill Creek ...... +815 Catawba County (Unincor- porated Areas). Approximately 0.4 mile upstream of the confluence with +825 Rhodes Mill Creek. Shady Branch ...... At the confluence with Holly Branch and Holly Branch +824 Catawba County (Unincor- Tributary 1. porated Areas), Town of Maiden. Approximately 500 feet upstream of South 11th Avenue ... +959 Tributary 1 ...... At the confluence with Sandy Branch ...... +872 Catawba County (Unincor- porated Areas), Town of Maiden. Approximately 1,800 feet upstream of South 8th Avenue .. +927

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17425

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

Smyre Creek ...... At the confluence with Clarks Creek ...... +831 Catawba County (Unincor- porated Areas), City of Newton. Approximately 50 feet downstream of NC–16 ...... +875 Tributary 1 ...... At the confluence with Smyre Creek ...... +868 Catawba County (Unincor- porated Areas), City of Newton. Approximately 1,500 feet upstream of the confluence with +877 Smyre Creek. Snow Creek ...... At the confluence with the Catawba River ...... +935 Catawba County (Unincor- porated Areas), City of Hickory. Approximately 1,040 feet upstream of 15th Avenue North- +1,097 east. Snow Hill Branch ...... At the downstream side of State Route 16/East D Street .. +868 City of Newton. Approximately 1,100 feet upstream of East 11th Street ..... +944 South Fork Catawba River ...... At the Catawba/Lincoln County boundary ...... +793 Catawba County (Unincor- porated Areas), City of Newton. Approximately 125 feet downstream of NC–10 ...... +816 Tributary 6 ...... At the confluence with South Fork Catawba River ...... +794 Catawba County (Unincor- porated Areas). Approximately 530 feet upstream of Herter Road (State +800 Route 2022). Tributary 7 ...... At the confluence with South Fork Catawba River ...... +800 Catawba County (Unincor- porated Areas). Approximately 0.9 mile upstream of the confluence with +811 South Fork Catawba River. Tributary 8 ...... At the confluence with South Fork Catawba River ...... +802 Catawba County (Unincor- porated Areas). Approximately 0.7 mile upstream of Wilfong Road ...... +829 Tributary 9 ...... At the confluence with South Fork Catawba River ...... +806 Catawba County (Unincor- porated Areas). Approximately 1.1 miles upstream of US–321 ...... +822 Tributary 9A ...... At the confluence with South Fork Catawba River Tribu- +806 Catawba County (Unincor- tary 9. porated Areas). Approximately 1,500 feet upstream of the confluence with +806 South Fork Catawba River Tributary 9. Terrapin Creek...... Approximately 500 feet upstream of Mollys Backbone +762 Catawba County (Unincor- Road. porated Areas). Approximately 1.2 miles upstream of the confluence of +792 Terrapin Creek Tributary 1. Tributary 1 ...... At the confluence with Terrapin Creek ...... +766 Catawba County (Unincor- porated Areas). Approximately 1.0 mile upstream of the confluence with +790 Terrapin Creek. Town Branch ...... At the confluence with the Catawba River ...... +773 Catawba County (Unincor- porated Areas), Town of Catawba. Approximately 0.5 mile upstream of 2nd Street Southwest +894 Town Creek ...... Approximately 1,400 feet upstream of St. James Church +871 Catawba County (Unincor- Road. porated Areas), City of Newton. Approximately 0.8 mile upstream of State Route 10 ...... +943 Tributary to Lyle Creek At the confluence with Lyle Creek Tributary ...... +875 Catawba County (Unincor- Tributary. porated Areas). Approximately 0.7 mile upstream of the confluence with +921 Lyle Creek Tributary.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Claremont Maps available for inspection at the City of Claremont Planning Department, 3288 East Main Street, Claremont, North Carolina. City of Conover Maps available for inspection at the Conover City Hall, 101 First Street East, Conover, North Carolina.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17426 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

* Elevation in feet (NGVD) + Elevation in Flooding source(s) Location of referenced elevation feet (NAVD) Communities # Depth in feet affected above ground Modified

City of Hickory Maps available for inspection at the Hickory City Hall, 76 North Center Street, Hickory, North Carolina. City of Newton Maps available for inspection at the City of Newton Planning Department, 401 North Main Avenue, Newton, North Carolina. Town of Brookford Maps available for inspection at the Brookford Town Hall, 1700 South Center Street, Brookford, North Carolina. Town of Catawba Maps available for inspection at the Catawba Town Hall, 102 1st Street Northwest, Catawba, North Carolina. Town of Long View Maps available for inspection at the Long View Town Hall, 2404 1st Avenue Southwest, Hickory, North Carolina. Town of Maiden Maps are available for inspection at the Maiden Town Hall, 113 West Main Street, Maiden, North Carolina. Catawba County (Unincorporated Areas) Maps available for inspection at the Catawba County Planning and Zoning Department, 100 A Southwest Boulevard, Newton, North Carolina.

(Catalog of Federal Domestic Assistance No. ADDRESSES: The final BFEs for each environmental impact assessment has 83.100, ‘‘Flood Insurance.’’) community are available for inspection not been prepared. Dated: March 20, 2007. at the office of the Chief Executive Regulatory Flexibility Act. As flood David I. Maurstad, Officer of each community. The elevation determinations are not within Director, Mitigation Division, Federal respective addresses are listed in the the scope of the Regulatory Flexibility Emergency Management Agency, Department table below. Act, 5 U.S.C. 601–612, a regulatory of Homeland Security. FOR FURTHER INFORMATION CONTACT: flexibility analysis is not required. [FR Doc. E7–6557 Filed 4–6–07; 8:45 am] William R. Blanton, Jr., Engineering Regulatory Classification. This final BILLING CODE 9110–12–P Management Section, Mitigation rule is not a significant regulatory action Division, Federal Emergency under the criteria of section 3(f) of Management Agency, 500 C Street, SW., Executive Order 12866 of September 30, DEPARTMENT OF HOMELAND Washington, DC 20472, (202) 646–3151. 1993, Regulatory Planning and Review, SECURITY SUPPLEMENTARY INFORMATION: The 58 FR 51735. Federal Emergency Management Agency Federal Emergency Management Executive Order 13132, Federalism. (FEMA) makes the final determinations Agency This final rule involves no policies that listed below for the modified BFEs for have federalism implications under each community listed. These modified 44 CFR Part 67 Executive Order 13132. elevations have been published in Executive Order 12988, Civil Justice newspapers of local circulation and Final Flood Elevation Determinations Reform. This final rule meets the ninety (90) days have elapsed since that applicable standards of Executive Order AGENCY: Federal Emergency publication. The Mitigation Division 12988. Management Agency, DHS. Director of FEMA has resolved any ACTION: Final rule. appeals resulting from this notification. List of Subjects in 44 CFR Part 67 This final rule is issued in accordance SUMMARY: Base (1% annual chance) with section 110 of the Flood Disaster Administrative practice and Flood Elevations (BFEs) and modified Protection Act of 1973, 42 U.S.C. 4104, procedure, Flood insurance, Reporting BFEs are made final for the and 44 CFR part 67. FEMA has and recordkeeping requirements. communities listed below. The BFEs developed criteria for floodplain I Accordingly, 44 CFR part 67 is and modified BFEs are the basis for the management in floodprone areas in amended as follows: floodplain management measures that accordance with 44 CFR part 60. each community is required either to Interested lessees and owners of real PART 67—[AMENDED] adopt or to show evidence of being property are encouraged to review the already in effect in order to qualify or proof Flood Insurance Study and FIRM I 1. The authority citation for part 67 remain qualified for participation in the available at the address cited below for continues to read as follows: National Flood Insurance Program each community. The BFEs and Authority: 42 U.S.C. 4001 et seq.; (NFIP). modified BFEs are made final in the Reorganization Plan No. 3 of 1978, 3 CFR, DATES: The date of issuance of the Flood communities listed below. Elevations at 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Insurance Rate Map (FIRM) showing selected locations in each community 3 CFR, 1979 Comp., p. 376. BFEs and modified BFEs for each are shown. § 67.11 [Amended] community. This date may be obtained National Environmental Policy Act. by contacting the office where the maps This final rule is categorically excluded I 2. The tables published under the are available for inspection as indicated from the requirements of 44 CFR part authority of § 67.11 are amended as on the table below. 10, Environmental Consideration. An follows:

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17427

#Depth in feet above ground. *Elevation in feet State City/town/county Source of flooding Location (NGVD) +Elevation in feet (NAVD) Modified

Town of Whitehall, Montana Docket No.: FEMA–B–7472

Montana ...... Town of Whitehall ...... Whitetail Creek ...... Approximately 1.98 miles downstream of +4,333 Highway 55. Approximately 1.1 miles upstream of +4,386 Interstate 90 West Bound.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Maps are available for inspection at: Town Hall, 2 North Whitehall, Whitehall, MT.

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

Marengo County, Alabama, and Incorporated Areas Docket No.: FEMA–B–7472

Falling Creek ...... Approximately 3250 feet downstream of Whitfield Canal ... +150 City of Demopolis. Approximately 500 feet downstream of Whitfield Canal ..... +154 Tombigbee River ...... Demopolis Lock and Dam ...... +94 City of Demopolis. Confluence with Short Creek ...... +94

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Demopolis Maps are available for inspection at 211 N. Walnut Avenue, Demopolis, AL 36732.

Fremont County, Colorado and Incorporated Areas Docket No.: FEMA–B–7464

Arkansas River ...... Approximately 0.19 miles downstream of State Rt. 115 .... +5,096 City of Florence, Fremont County (Unincorporated Areas), City of Canon City. Approximately 0.53 miles upstream of confluence of Sand +5,364 Creek. Chandler Creek ...... Confluence with Arkansas River ...... +5,174 Fremont County (Unincor- porated Areas), Town of Williamsburg. Approximately 0.30 miles upstream of County Rd. 11A ..... +5,387 Coal Creek ...... Approximately 0.22 miles upstream of confluence with Ar- +5,153 City of Florence, Fremont kansas River. County (Unincorporated Areas). Approximately 1.19 miles upstream of Railroad Street ...... +5,231 Coal Creek East Overflow ...... Approximately 0.44 miles above confluence with Arkansas +5,134 City of Florence, Fremont River. County (Unincorporated Areas). Approximately 600 feet upstream of Robinson Avenue at +5,180 divergence from Coal Creek Main Channel. Coal Creek West Overflow ...... Approximately 0.34 miles above confluence with Arkansas +5,153 City of Florence, (Fremont River. County Unincorporated Areas). Divergence from Coal Creek Main Channel ...... +5,188 Forked Gulch ...... At confluence with Arkansas River ...... +5,336 City of Canon City. Confluence with West Forked Gulch ...... +5,451 Minnequa Canal ...... Approximately 760 feet above Lock Avenue ...... +5,199 City of Florence, Fremont County (Unincorporated Areas). Confluence of Oak Creek ...... +5,209

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17428 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

Northeast Canon Drainage East At Confluence with Arkansas River ...... +5,301 City of Canon City, Fremont Branch. County (Unincorporated Areas). Approximately 0.85 miles upstream of Tennessee Avenue +5,548 Northeast Canon Drainage Confluence with East Branch ...... +5,320 City of Canon City, Fremont West Branch. County (Unincorporated Areas). Approximately 0.62 miles upstream of Washington Street +5,501 Oak Creek ...... Approximately 325 feet above confluence with Arkansas +5,156 City of Florence, Fremont River. County (Unincorporated Areas), Town of Williams- burg, City of Canon City. Approximately 550 feet upstream of Quincy Street ...... +5,341 Oak Creek Right Over Bank..... Approximately 600 feet downstream of West Seventh +5,154 City of Florence. Street. Approximately 150 feet upstream of Second Street ...... +5,190 Sand Creek ...... At confluence with Arkansas River ...... +5,356 City of Canon City. Approximately 0.92 miles upstream of confluence with Ar- +5,431 kansas River. Southeast Canon Drainage ...... At confluence with Arkansas River ...... +5,312 City of Canon City. Approximately 0.60 miles upstream of confluence with Ar- +5,368 kansas River. West Forked Gulch ...... Confluence with Forked Gulch ...... +5,452 City of Canon City. Approximately 500 Feet upstream of confluence with +5,474 Forked Gulch. West Forked Gulch ...... Approximately 0.59 miles upstream of the confluence with +5,529 City of Canon City. Forked Gulch. Approximately 0.973 miles upstream of confluence with +5,573 Forked Gulch.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Fremont County (Unincorporated Areas) Maps are available for inspection at: The Administration Building, 615 Macon Avenue, Room 105, Canon City, Colorado. City of Canon City Maps are available for inspection at: City Hall, 128 Main Street, Canon City, Colorado. City of Florence Maps are available for inspection at: The Municipal Building, 300 West Main St, Florence, Colorado. City of Williamsburg Maps are available for inspection at: City Hall, 1 John Street, Williamsburg, Colorado.

Carroll County, Georgia and Incorporated Areas Docket No.: FEMA–B–7701

Beulah Creek ...... At the confluence with Little Tallapoosa River ...... +988 City of Carrollton. At Columbia Drive ...... +988 Buffalo Creek Tributary 1 ...... At Strickland Road ...... +1043 City of Carrollton. Approximately 900 feet upstream of Strickland Road ...... +1043 Chandler’s Spring Creek ...... At the confluence with Little Tallapoosa River ...... +992 City of Carrollton. Just upstream of William Street ...... +992 Curtis Creek ...... At the confluence with Little Tallapoosa River ...... +994 City of Carrollton. At Lake Carroll Dam ...... +994 Little Tallapoosa River ...... Approximately 2,275 feet upstream of confluence of Buck +978 City of Carrollton. Creek. Approximately 2,800 feet upstream of Northside Drive ...... +995 Little Tallapoosa River Tributary At the confluence with Little Tallapoosa River ...... +993 City of Carrollton. Approximately 2,870 feet upstream of confluence with Lit- +993 tle Tallapoosa River. Sweetwater Creek ...... At Carroll/Douglas County boundary ...... +979 Carroll County (Unincor- porated Areas). Approximately 1,510 feet upstream of the Carroll/Douglas +982 county boundary. Tanyard Branch ...... At confluence with Little Tallapoosa River ...... +992 City of Carrollton. Approximately 135 feet upstream of River Drive ...... +992

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17429

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Carroll County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, Carroll County Engineering Department, 315 Bradley Street, Carrollton, Georgia 30117. City of Carrollton Maps are available for inspection at the Community Map Repository, Carroll County Engineering Department, 315 Bradley Street, Carrollton, Georgia 30117.

Columbia County, Georgia, and Incorporated Areas Docket No.: FEMA–B–7472

Bonaire Heights Tributary ...... At the confluence with Wynngate Tributary ...... +272 Columbia County (Unincor- porated Areas). Approximately 375 feet upstream of the confluence with +272 Wynngate Tributary. Furys Ferry Road Tributary At the confluence with Reed Creek ...... +210 Columbia County (Unincor- East. porated Areas). Approximately 100 feet upstream of the confluence with +210 Reed Creek. Gibbs Road Tributary ...... At the confluence with Bettys Branch ...... +291 Columbia County (Unincor- porated Areas). Approximately 130 feet upstream of the confluence with +291 Bettys Branch. Holiday Park Tributary ...... At the confluence with Reed Creek ...... +301 Columbia County (Unincor- porated Areas). Approximately 1,450 feet upstream of the confluence with +301 Reed Creek. Jones Creek ...... At the confluence with Savannah River ...... +193 Columbia County (Unincor- porated Areas). Approximately 3,290 feet upstream of the confluence with +193 Savannah River. Tributary No. 2 ...... At the confluence with Jones Creek ...... +259 Columbia County (Unincor- porated Areas). Approximately 70 feet upstream of the confluence with +259 Jones Creek. Tributary No. 3 ...... At the confluence with Jones Creek ...... +269 Columbia County (Unincor- porated Areas). Approximately 20 feet upstream of the confluence with +269 Jones Creek. Owens Road Tributary ...... At the confluence with Holiday Park Tributary ...... +322 Columbia County (Unincor- porated Areas). Approximately 210 feet upstream of the confluence with +322 Holiday Park Tributary. Seaboard Railroad Tributary .... At the confluence with Jones Creek ...... +225 Columbia County (Unincor- porated Areas). Approximately 300 feet upstream of the confluence with +227 Jones Creek. Watery Branch Tributary ...... At the confluence with Watery Branch ...... +197 Columbia County (Unincor- porated Areas). Approximately 10 feet upstream of the confluence with +197 Watery Branch. Westhampton Tributary No. 1 .. At the confluence with Bowen Pond Tributary ...... +249 Columbia County (Unincor- porated Areas). Approximately 75 feet upstream of the confluence with +249 Bowen Pond Tributary. Westhampton Tributary No. 2 .. At the confluence with Bowen Pond Tributary ...... +258 Columbia County (Unincor- porated Areas). Approximately 20 feet upstream of the confluence with +258 Bowen Pond Tributary. Westhampton Tributary No. 3 .. At the confluence with Bowen Pond Tributary ...... +269 Columbia County (Unincor- porated Areas). Approximately 70 feet upstream of the confluence with +269 Bowen Pond Tributary.

* National Geodetic Vertical Datum.

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17430 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

# Depth in feet above ground. + North American Vertical Datum. ADDRESSES Columbia County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, Engineering & Environmental Services Division, P.O. Box 498, 630 Ronald Reagan Drive, Building A, Evans, GA 30809.

Forsyth County, Georgia and Incorporated Areas Docket No.: FEMA–B–7701

Hurricane Creek ...... At the confluence with Settingdown Creek ...... +970 Forsyth County (Unincor- porated Areas). Approximately 1,010 feet upstream of the confluence with +970 Settingdown Creek. James Creek ...... At the confluence with Chattahoochee River ...... +918 Forsyth County (Unincor- porated Areas). Approximately 2,400 feet upstream of the confluence with +918 Chattahoochee River. Tributary G ...... At the confluence with Settingdown Creek ...... +1,140 Forsyth County (Unincor- porated Areas). Approximately 100 feet upstream of the confluence with +1,140 Settingdown Creek. Tributary J ...... At the confluence with Settingdown Creek ...... +1,156 Forsyth County (Unincor- porated Areas). Approximately 60 feet upstream of the confluence with +1,156 Settingdown Creek.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Forsyth County (Unincorporated Areas) Maps are available for inspection at 110 East Main Street, Suite 100, Cumming, Georgia 30040.

Whitfield County, Georgia and Incorporated Areas Docket No.: FEMA–B–7701

Poplar Springs Creek ...... Approximately 660 feet downstream of Poplar Springs +747 Whitfield County (Unincor- Road. porated Areas). Approximately 1,270 feet upstream of Reed Pond Road +771 Northwest.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Whitfield County (Unincorporated Areas) Maps are available for inspection at 1407 Burleyson Drive, Dalton, Georgia 30720.

Frederick County, Maryland and Incorporated Areas Docket No.: FEMA–B–7456

Ballenger Creek ...... Confluence with Monocacy River ...... +249 Frederick County (Unincor- porated Areas). Approximately 0.2 mile downstream of Mt. Phillip Road .... +422 Bush Creek ...... Confluence with Monocacy River ...... +255 Frederick County (Unincor- porated Areas). Approximately 0.2 mile upstream of Green Valley Road ... +413 Butterfly Branch (Tributary No. Confluence with Ballenger Creek ...... +307 Frederick County (Unincor- 116). porated Areas). Approximately 0.3 mile upstream of Jefferson Pike ...... +388 Carroll Creek ...... Confluence with Monocacy River ...... +266 Frederick County (Unincor- porated Areas). Approximately 2.0 miles upstream of the confluence of +702 Silver Spring Branch (Tributary No. 95). Claggett Run (Tributary No. Confluence with Rocky Fountain Run ...... +243 Frederick County (Unincor- 129). porated Areas). Approximately 0.4 mile upstream of Fingerboard Road ..... +297

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17431

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

Clifford Branch (Tributary No. Confluence with Tuscarora Creek ...... +367 Frederick County (Unincor- 87). porated Areas). Approximately 0.3 mile upstream of Hamburg Road ...... +644 Clifford Branch (Tributary No. Confluence with Rock Creek ...... +354 Frederick County (Unincor- 98). porated Areas). Approximately 0.4 mile upstream of Mt. Phillip Road ...... +433 Detrick Branch (Tributary No. 9) Confluence with Monocacy River ...... +268 Frederick County (Unincor- porated Areas). Approximately 0.1 mile upstream of N. Market Street ...... +286 Dublin Branch ...... Confluence with Glade Creek ...... +279 Frederick County (Unincor- porated Areas). Approximately 1.4 miles upstream of confluence with +331 Glade Creek. Edison Branch ...... Confluence with Carroll Creek ...... +328 Frederick County (Unincor- porated Areas). Downstream side of Christophers Crossing ...... +375 Glade Creek ...... Approximately 0.2 mile downstream of Devilbliss Bridge +279 Frederick County (Unincor- Road. porated Areas). Approximately 0.8 mile upstream of Glade Road ...... +359 Horsehead Run ...... Confluence with Rocky Fountain Run ...... +247 Frederick County (Unincor- porated Areas). Approximately 1.2 miles upstream of confluence with +265 Rocky Fountain Run. Israel Creek ...... Confluence with Monocacy River ...... +273 Frederick County (Unincor- porated Areas). Just downstream of Water Street ...... +298 King Branch (Tributary No. 118) Confluence with Ballenger Creek ...... +271 Frederick County (Unincor- porated Areas). Just downstream of Arbor Road ...... +291 Linganore Creek ...... Confluence with Monocacy River ...... +264 Frederick County (Unincor- porated Areas). Just downstream of Gashouse Pike ...... +327 Little Tuscarora Creek ...... Confluence with Tuscarora Creek ...... +296 Frederick County (Unincor- porated Areas). 0.1 mile upstream of Yellow Springs Road ...... +509 Monocacy River ...... Confluence with Potomac River ...... +210 Frederick County (Unincor- porated Areas). 0.6 mile upstream of Devilbliss Bridge Road ...... +288 Park Branch (Tributary No. 8/ Confluence with Monocacy River ...... +267 Frederick County (Unincor- 99). porated Areas). Downstream side of East Street ...... +286 Pike Branch (Tributary No. 117) Confluence with Ballenger Creek ...... +277 Frederick County (Unincor- porated Areas). Just upstream of Ballenger Creek Road ...... +314 Rock Creek ...... Confluence with Carroll Creek ...... +310 Frederick County (Unincor- porated Areas). Just Downstream of Baltimore National Parkway (US 40) +432 Rocky Fountain Run ...... Confluence with Monocacy River ...... +243 Frederick County (Unincor- porated Areas). 0.2 mile downstream of New Design Road ...... +310 Shookstown Creek (Tributary Confluence of Carroll Creek ...... +316 Frederick County (Unincor- No. 96). porated Areas). Approximately 0.4 mile upstream of Oakmont Drive ...... +774 Silver Spring Branch (Tributary Confluence with Carroll Creek ...... +347 Frederick County (Unincor- No. 95). porated Areas). Approximately 400 feet downstream of Edgewood Church +716 Road. Tributary No. 122 to Horsehead Confluence with Horsehead Run ...... +265 Frederick County (Unincor- Run. porated Areas). Approximately 1.1 miles upstream of confluence with +298 Horsehead Run. Tributary No. 123 to Horsehead Confluence with Horsehead Run ...... +265 Frederick County (Unincor- Run. porated Areas). Approximately 1.0 mile upstream of confluence with +310 Horsehead Run. Tributary No. 124 to Horsehead Confluence with Horsehead Run ...... +264 Frederick County (Unincor- Run. porated Areas). Approximately 0.1 mile upstream of Manor Woods Road .. +284

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17432 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

Tributary No. 125 to Horsehead Confluence with Horsehead Run ...... +253 Frederick County (Unincor- Run. porated Areas). Approximately 0.4 mile upstream of confluence with +274 Horsehead Run. Tributary No. 126 to Tributary 0.4 mile upstream of outlet to Horsehead Run ...... +274 Frederick County (Unincor- No. 125 to Horsehead Run. porated Areas). Just downstream of New Design Road ...... +287 Tributary No. 127 to Rocky Confluence with Rocky Fountain Run ...... +246 Frederick County (Unincor- Fountain Run. porated Areas). Approximately 1.1 miles upstream of confluence with +291 Rocky Fountain Run. Tributary No. 128 to Rocky Confluence with Rocky Fountain Run ...... +243 Frederick County (Unincor- Fountain Run. porated Areas). Just downstream of Baltimore and Ohio Railroad ...... +279 Tributary No. 5 to Rock Creek Confluence with Rock Creek ...... +328 Frederick County (Unincor- porated Areas). Approximately 0.1 mile upstream of West Patrick Street ... +395 Tributary No. 6 to Carroll Creek Confluence with Carroll Creek ...... +293 Frederick County (Unincor- porated Areas). Just downstream of Butterfly Lane ...... +410 Tributary No. 89 to Little Tusca- Confluence with Little Tuscarora Creek ...... +314 Frederick County (Unincor- rora Creek. porated Areas). Just downstream of Springhill Drive ...... +359 Tributary to Glade Creek ...... Confluence with Glade Creek ...... +292 Frederick County (Unincor- porated Areas). Just downstream of Devilbliss Bridge Road ...... +334 Tributary to Tributary No. 89 to Confluence with Tributary No. 89 to Little Tuscarora +355 Frederick County (Unincor- Little Tuscarora Creek. Creek. porated Areas). Just upstream of Christophers Crossing ...... +402 Tuscarora Creek ...... Confluence with Monocacy River ...... +274 Frederick County (Unincor- porated Areas). Confluence of Clifford Branch ...... +367 Two Mile Run (Tributary No. Just downstream of Worman’s Mill Court ...... +269 Frederick County (Unincor- 10/93). porated Areas). Confluence with Monocacy River ...... +269 Worman’s Run (Tributary No. Confluence with Monocacy River ...... +269 Frederick County (Unincor- 11). porated Areas). Just Upstream of North Market Street ...... +269

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Frederick County (Unincorporated Areas) Maps are available for inspection at the Planning and Zoning Department, Winchester Hall, 12 East Church Street, Frederick, Maryland 21701. City of Frederick Maps are available for inspection at the Engineering Department, City Hall, 101 North Court Street, Frederick, Maryland 21701. Town of Walkersville Maps are available for inspection at the Town Hall, 21 West Frederick Street, Walkersville, Maryland 21793.

Blount County, Tennessee and Incorporated Areas Docket No.: FEMA–B–7700

Brown Creek ...... At confluence with Pistol Creek ...... +880 City of Maryville. At Grandview Dr ...... +961 Cross Creek ...... At confluence with Pistol Creek ...... +956 City of Maryville. At Oxford Hills Dr ...... +1002 Culton Creek ...... At confluence with Pistol Creek ...... +848 City of Alcoa, Blount County (Unincorporated Areas), City of Maryville. At Middlesettlements Rd ...... +858 Duncan Branch ...... At U.S. 129 bypass ...... +906 City of Maryville. At confluence with Brown Creek ...... +929 Laurel Bank Branch ...... At Middlesettlements Rd ...... +856 Blount County (Unincor- porated Areas), City of Maryville. At Big Springs Rd ...... +871

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17433

*Elevation in feet (NGVD) +Elevation in feet Flooding source(s) Location of referenced elevation (NAVD) Communities # Depth in feet affected above ground Modified

Little River ...... At Wildwood Bridge ...... +859 Blount County (Unincor- porated Areas), City of Townsend. At Webb Road ...... +1045 Pistol Creek ...... At Carpenter’s Grade Rd ...... +957 City of Alcoa. At Campground Bridge/Davey Crockett Drive ...... +1112 Russell Branch ...... At Confluence with Little River ...... +826 City of Rockford. At Wright Rd ...... +911 Springfield Branch ...... At Eagleton Rd ...... +846 City of Maryville. At Old Knoxville Pike ...... +869 Unnamed Tributary to Brown At confluence with Brown Creek ...... +919 City of Maryville. Creek. At Amerine Rd ...... +1002 Unnamed Tributary to Laurel At confluence with Laurel Bank Branch ...... +871 Blount County (Unincor- Bank Branch. porated Areas), City of Maryville. At U.S. Hwy 129 ...... +1008 Unnamed Tributary to Spring- At confluence with Springfield Branch ...... +842 City of Maryville. field Branch. At Harding St ...... +859

*National Geodetic Vertical Datum. #Depth in feet above ground. +North American Vertical Datum. ADDRESSES Blount County (Unincorporated Areas) Maps are available for inspection at: Blount County Zoning Department, 1006 East Lamar Alexander Parkway, Maryville, Tennessee 37804. City of Alcoa Maps are available for inspection at: City of Alcoa Planning And Codes Department, 223 Associate Blvd., Alcoa, Tennessee 37701. City of Maryville Maps are available for inspection at: City of Maryville Engineering Department, 416 West Broadway Avenue, Maryville, Tennessee 37801. City of Rockford Maps are available for inspection at: Rockford Town Hall, 3719 Little River Road, Rockford, Tennessee 37853. City of Townsend Maps are available for inspection at: Townsend City Hall, 133 Tiger Drive, Townsend, Tennessee 37882.

(Catalog of Federal Domestic Assistance No. DEPARTMENT OF TRANSPORTATION and emergency waiver procedures is to 83.100, ‘‘Flood Insurance.’’) provide an expedited process for FRA to Dated: March 26, 2007. Federal Railroad Administration address the needs of the public and the railroad industry during emergency David I. Maurstad, 49 CFR Part 211 situations or events. Director, Mitigation Division, Federal Emergency Management Agency, Department [Docket No. FRA–2006–24838] DATES: This final rule is effective April of Homeland Security. 9, 2007; petitions for reconsideration [FR Doc. E7–6556 Filed 4–6–07; 8:45 am] RIN 2130–AB79 must be received on or before June 8, 2007. Petitions received after that date BILLING CODE 9110–12–P Establishment of Emergency Relief will be considered to the extent possible Dockets and Procedures for Handling without incurring additional expense or Petitions for Emergency Waiver of delay. Safety Regulations ADDRESSES: Petitions for AGENCY: Federal Railroad reconsideration: Any petitions for Administration (FRA), Department of reconsideration related to Docket No. Transportation (DOT). FRA–2006–24838, may be submitted by ACTION: Final rule. any of the following methods: • Web Site: http://dms.dot.gov. SUMMARY: FRA is issuing procedures Follow the instructions for submitting governing the creation of Emergency comments on the DOT electronic docket Relief Dockets (ERD) as well as site. procedures for obtaining waivers from a • Fax: 1–202–493–2251. safety rule, regulation, or standard • Mail: Docket Management Facility; during an emergency situation or event. U.S. Department of Transportation, 400 FRA’s purpose for establishing the ERD Seventh Street, SW., Nassif Building,

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00081 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17434 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Room PL–401, Washington, DC 20590– Due to the catastrophic and When faced with a sudden emergency 001. devastating damage inflicted on the event or situation the Administrator • Hand Delivery: Room PL–401 on southern portion of the United States in may activate the emergency waiver the plaza level of the Nassif Building, the aftermath of Hurricane Katrina, FRA procedures contained in this final rule. 400 Seventh Street, SW., Washington, published a notice in the Federal FRA will consider local, state and DC between 9 a.m. and 5 p.m. Monday Register establishing a temporary means federal declarations of emergency when through Friday, except Federal for handling petitions for waiver from determining whether circumstances Holidays. the Federal rail safety regulations that qualify as an emergency event. To • Federal eRulemaking Portal: Go to were directly related to the effects of the declare that the emergency waiver http://www.regulations.gov. Follow the hurricane or were necessary to procedures are in effect, the online instructions for submitting effectively address the relief efforts Administrator will issue a statement in comments. being undertaken in the area. See 70 FR the Document Management System Instructions: All petitions for 53413 (September 8, 2005). FRA (DMS) at http://dms.dot.gov. The DMS reconsideration must include the agency recognized that these types of petitions will automatically notify parties that name and docket number or Regulatory had to be afforded special consideration have signed up for the Emergency Identification Number (RIN) for this and had to be handled expeditiously in Waiver Listserv. (Instructions on how to rulemaking. Note that all comments order to ensure that the emergency sign up for automatic notification of received will be posted without change operational needs of the railroads were additions to a docket are found at to http://dms.dot.gov including any addressed while at the same time http://dms.dot.gov.) In addition, FRA personal information. Please see the ensuring the safety of the public, will make every effort to post the General Information heading in the including railroad employees. Such statement on its Web site ‘‘Supplementary Information’’ section of emergency waivers would help ensure (http://www.fra.dot.gov/). FRA will also this document for Privacy Act that routine safety regulations would publish a notice in the Federal Register information related to any submitted not stand in the way of railroad efforts alerting interested parties that the petitions. to cope with the emergency and to emergency waiver procedures will be Docket: For access to the docket to provide timely relief and recovery utilized. FRA anticipates that the read background documents or efforts. FRA’s procedures prior to the circumstances that constitute the comments received, go to http:// August 30, 2006 IFR related to the occurrence of, or imminent threat of an dms.dot.gov at any time or to PL–401 on handling of petitions for waiver from emergency event will occur the plaza level of the Nassif Building, the Federal rail safety regulations infrequently. 400 Seventh Street, SW., Washington, contained in 49 CFR part 211, did not The types of emergency events DC between 9 a.m. and 5 p.m. Monday lend themselves to quick and immediate intended to be covered by this final rule through Friday, except Federal decisions by the agency, nor were they could be local, regional, national or Holidays. intended to. The previous procedures international in scope and could contained in 49 CFR part 211, include natural and manmade disasters, FOR FURTHER INFORMATION CONTACT: established a process whereby FRA such as hurricanes, floods, earthquakes, Grady C. Cothen, Jr., Deputy Associate publishes a notice of any petition for mudslides, forest fires, snowstorms, Administrator for Safety Standards and waiver in the Federal Register. This terrorist acts, increased threat levels, Program Development, FRA, 1120 notice then allows interested parties a chemical or biological attacks, Vermont Avenue, NW., RRS–2, Mail period of time in which to comment on pandemic outbreaks, releases of Stop 25, Washington, DC 20590 any such petition, generally thirty (30) dangerous radiological, chemical, or (Telephone 202–493–6302), or Michael days, and provides for a public hearing biological material, or war-related Masci, Trial Attorney, Office of Chief should one be requested. This process activities. Not only will our Nation’s Counsel, FRA, 1120 Vermont Avenue, generally takes several months to railroads be directly affected by many NW., Mail Stop 10, Washington, DC accomplish. Accordingly, FRA emergency events, they will also play a 20590 (Telephone 202–493–6037). instituted a temporary set of expedited key role in the aftermath of those events, SUPPLEMENTARY INFORMATION: procedures for handling petitions for by providing necessary supplies and by waivers that were directly related to the moving displaced families and relief Background effects and aftermath of Hurricane personnel and supplies to and from an On August 30, 2006, FRA published Katrina. The subsequent IFR was based affected areas. Although the type of an interim final rule (IFR) establishing on those procedures. relief that might be granted under these emergency waiver procedures that To prepare for future emergencies, provisions would vary greatly based on further the agency’s ability to quickly FRA is issuing procedures for handling the type of emergency event involved, it address waiver requests in emergency petitions for waivers in emergency is expected that the relief would situations while providing an situations. These procedures are based generally involve such things as: opportunity for public input in the on the temporary procedures that were Temporary postponement of required process. See 71 FR 51517. Based on instituted in response to Hurricane maintenance, repair, or inspection comments received in response to the Katrina. FRA believes that the related to railroad equipment, track, and IFR and lessons learned from Hurricane emergency procedures contained in this signals; temporary relief from certain Katrina, FRA is establishing procedures final rule provide the agency with the record keeping or reporting that allow the agency to expeditiously ability to promptly and effectively requirements; or short-term relief from handle waiver requests that are directly address waiver requests directly related various operational requirements. Relief related to an emergency situation or to an emergency while ensuring that the granted will not extend for more than event. This will permit FRA to provide public and all interested parties are nine months. For matters that may railroads necessary operational relief in afforded proper notice of any such significantly impact the missions of the a more timely manner during request, and are provided a sufficient Department of Homeland Security emergencies while at the same time opportunity to comment on any such (DHS), FRA will consult and coordinate maintaining public safety. request. with DHS as soon as practicable.

VerDate Aug<31>2005 18:47 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17435

FRA will establish a new ERD each Section-by-Section Analysis Administrator has a unique familiarity with the rail-industry through oversight calendar year. FRA will publish a notice Processing of Emergency Waivers of the following: Managing in the Federal Register identifying the § 211.45 new docket number by January 31st of comprehensive safety programs and each year. When the Administrator Section 211.45(a). This paragraph regulatory initiatives; enforcement of determines the occurrence of, or makes clear that the emergency waiver FRA safety regulations; development procedures are intended to go into effect imminent threat of, an emergency event, and implementation of national freight when there is an occurrence of, or FRA will accept emergency waiver and passenger rail policy; and oversight imminent threat of, an emergency event of diverse research and development petitions for review. If FRA determines and public safety would benefit from that a petition is directly related to an activities in support of improved providing the railroad industry with railroad safety. During significant emergency situation, the petition will be operational relief. The types of placed in the ERD for that year. FRA emergencies the Administrator has emergency events intended to be extensive interaction with the DHS, will receive comments on a petition for covered by this final rule could be local, Director of National Intelligence, the 72 hours from the close of business on regional, national or international in Federal Bureau of Investigation, the the day that the petition is posted on the scope and could include natural and Surface Transportation Board and other ERD. During that time, FRA will arrange manmade disasters, such as hurricanes, Federal agencies responsible for a telephone conference for any party floods, earthquakes, mudslides, forest addressing public safety, health, that requests a public hearing. If, after fires, snowstorms, terrorist acts, security and welfare. In addition, the the telephone conference, a public increased threat levels, chemical or Administrator maintains hearing is still desired, then FRA will biological attacks, pandemic releases of contemporaneous communication with arrange for such a hearing pursuant to dangerous radiological, chemical, or relevant rail transportation entities, 49 CFR part 211 as soon as practicable. biological material, or war-related including passenger and freight FRA may grant a petition for waiver activities. railroads. This experience and Section 211.45(b). This paragraph prior to conducting a public hearing if interaction provides a basis from which contains information regarding FRA’s such petition is in the public interest the Administrator can assess whether a creation of ERDs. Establishing a new and consistent with safety. These situation or set of circumstances rises to ERD each year allows FRA to receive the level of an emergency event that procedures are intended to balance the petitions for emergency waivers as soon would necessitate activation of the need for expedited waiver procedures as the occurrence of, or imminent threat emergency waiver procedures. FRA’s during an emergency event to ensure of an emergency event is determined to statement declaring that emergency public safety, and the need for adequate have occurred. A yearly ERD is also a time to allow full public participation. convenient way to organize the procedures are in effect will be issued The ERD and emergency waiver emergency waiver petitions and related in the appropriate ERD. The DMS procedures contained in this final rule documents. For reference purposes any Internet site that is identified in the rule do not waive any regulatory petition can be located by the year in text allows any subscribing interested requirements. They only reduce the which the emergency event or situation party to subscribe, without fee, to the length of the notice and comment occurred. The docket system will also Emergency Waiver Listserv application period to permit FRA to act on the provide notice to interested parties. The which automatically notifies the party via e-mail when documents are added to request as quickly as possible. DMS Internet site that is identified in the appropriate ERD. The FRA solicited written comments from this final rule allows any interested party to subscribe, without fee, to the Administrator’s determination that the public based on the IFR in Emergency Waiver Listserv which will emergency waiver procedures are in accordance with the Administrative automatically notify the party via e-mail effect, would be one of those documents Procedures Act (APA) 5 U.S.C. 553. when documents are added to the automatically transmitted to interested Consideration of public comment allows designated ERD. This paragraph also parties via e-mail. In determining FRA to access additional viewpoints makes clear that FRA will publish by whether an emergency exists the from interested parties and include January 31st of each year, a Federal Administrator may consider states of them when appropriate. By the close of Register notice identifying the ERD for emergency issued by a local, State, or the comment period on October 30, that year. This will inform interested Federal official, and determinations by 2006, one set of comments was received. parties where to find petitions for the Federal government that a credible The comments were received on emergency waiver during an emergency threat of a terrorist attack exists. A September 6, 2006 from the and will allow such parties to subscribe determination made by one of these Brotherhood of Locomotive Engineers to the DMS Emergency Waiver Listserv. officials that a state of emergency exists, and Trainmen (BLET). The comments Publishing a notice in the previous indicates that special attention is raise questions regarding two IFR year’s ERD will allow the parties needed to address the situation, and sections: 49 CFR 211.45(i) providing a interested in the prior year to railroad operations may be implicated. 72-hour period from when the petition automatically receive the new docket The Administrator will consider whether such emergencies significantly is filed for interested parties to request number. affect railroad operations, and whether a hearing; and, 49 CFR 211.45(g) Section 211.45(c). This paragraph identifies the Administrator as the it would be beneficial to activate the describing the treatment of petitions for emergency waiver procedures. emergency waiver that do not meet the individual responsible for determining threshold requirements for when the emergency waiver procedures Section 211.45(d). This paragraph will be utilized. The Administrator is identifies other methods by which consideration under 49 CFR 211.45. The the appropriate person to determine interested parties may be notified of BLET’s comments are addressed in the whether a situation or set of FRA’s determination to utilize the relevant regulatory paragraphs of the circumstances constitutes an emergency emergency waiver procedures. If section-by-section analysis below. for purposes of FRA’s use of the conditions permit, FRA will issue the emergency waiver procedures. The Administrator’s determination on FRA’s

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17436 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Web site to quickly notify the public. information requirements under 49 CFR submitting comments to accommodate FRA will also publish a notice in the 211.9(c) remain unchanged. The interested parties with limited Federal Register as soon as possible requirements will apply equally to capability to comment. after the Administrator’s determination petitions that are submitted initially This paragraph describes how FRA to ensure full notification to all under 49 CFR 211.45, as it will for will handle requests for hearing. FRA interested parties. petitions submitted directly under 49 believes that a telephone conference Section 211.45(e). This paragraph CFR 211.9. will provide interested parties with an identifies the required content of a Section 211.45(h). This paragraph opportunity to present evidence petition for emergency waiver. To be explains the comment process. FRA regarding a particular petition to a considered under the emergency waiver believes that 72 hours is a reasonable neutral decision maker. If a party procedures, FRA must first determine length of time to consider comments in requests a public hearing after the that the petition is directly related to the an emergency situation. During telephone conference, FRA will provide occurrence of, or imminent threat of an Hurricane Katrina, public safety was one as soon as practicable. During an emergency event. FRA will base its well served by FRA’s expedited emergency the public interest requires determination on the information emergency waiver procedures. that an expedited waiver process be provided in the petition. Thus, the Similarly, during future emergency utilized. petition should contain information that situations the public interest will Section 211.45(j). This paragraph sufficiently demonstrates the require an expedited review process to identifies the process by which FRA relationship between the emergency ensure public safety. FRA believes that will make decisions on emergency event and the waiver relief being sought. the emergency waiver procedures and waivers including: FRA’s consideration Section 211.45(f). This paragraph the need to quickly address these types of the petition; notification to the public instructs the public how to submit a of waiver petitions fall within the good of FRA’s decision; and the limits of any petition under the emergency waiver cause exemption under section 553 of relief granted under the procedures. The procedures. FRA is permitting the APA relating to providing prior ability to grant or deny a petition submission by e-mail, fax, or mail. notice and comment. Nonetheless, FRA without delay is essential to ensuring Permitting a variety of methods for is providing notice to interested parties public safety during an emergency. The submitting petitions for emergency and is permitting a short comment opportunity to reconsider a petition waiver is intended to enhance the period prior to taking any agency action. after the initial decision is made will convenience and effectiveness of the Moreover, FRA is providing an ensure a robust deliberation. Under process during the occurrence of, or opportunity for a public hearing as soon circumstances where reconsideration is imminent threat of an emergency event. as practicable after initial consideration appropriate, FRA will utilize additional Section 211.45(g). This paragraph of an emergency waiver petition. time to consider the parties’ input. contains information regarding FRA’s Section 211.45(i). FRA is clarifying FRA’s understanding of an emergency handling of waiver petitions under the the calculation of the 72-hour period as may change as the emergency event emergency waiver procedures. After the intended in this paragraph. A comment develops. Accordingly, the public will FRA declares that the emergency to the IFR noted that it would be benefit from FRA’s ability to reconsider procedures are in effect, it will accept difficult to ascertain the proper deadline decisions, and make appropriate petitions for emergency waivers. for comments, because the DMS Web adjustments based on further Petitions that are determined to be site indicates the date a filing is information. This will also ensure that directly related to an emergency will be published, and not the time. FRA has the opportunity to address all placed in the ERD for that year. The Recognizing this limitation, FRA relevant arguments made by interested DMS numbers each document that is intends to receive comments on a parties anytime after its initial added to a docket. Thus, each petition petition for 72 hours from the close of consideration of a petition. During an submitted to the ERD will have a unique business (5 p.m. eastern time) on the emergency it is a priority to address document number. For reference day that the petition is posted on the petitions for emergency waiver and purposes, this document number should ERD. Consequently, the comment period make a decision without delay. Relevant be identified on all communications will end at 5 p.m. on the third day of comments may be submitted after the related to that particular waiver the comment period. Weekends and 72-hour comment period, and the public petition. holidays will be included in the will benefit from ensuring that FRA has One comment asserts that FRA’s calculation. the opportunity to address those handling of petitions that do not qualify FRA continues to believe that a 72- comments as soon as practicable. for emergency procedures under this hour period is a sufficient amount of Posting the decision letters in the paragraph will be different than the time to allow for public comment on appropriate ERD will provide notice to current requirements for non-emergency petitions for emergency waiver. interested parties. The DMS Internet site petitions under 49 CFR 211.9. Allowing additional time would that is identified in the rule text allows Specifically, the commenter is jeopardize the safety of the general any interested party to subscribe, concerned that 49 CFR 211.9(c) will not public affected by the emergency. Some without fee, to its list serve application apply to the these petitions, because potential commenters may be unable to which will automatically notify the compliance with that provision is not comment because of exposure to the party via e-mail when documents are required as part of a petition for emergency. FRA understands that this is added, including the Administrator’s emergency waiver under 49 CFR a concern, but anticipates that other determination that emergency waiver 211.45(e). FRA believes that the IFR rule safeguards and options, as well as other procedures are in effect, to the text explaining that non-emergency parties with similar interests would designated ERD. petitions will be processed ‘‘under likely be available during an emergency. This paragraph also makes clear that normal waiver procedures of this These various available resources would any relief granted under these subpart’’ addresses the commenter’s be utilized to help determine procedures will be limited to no more concern. The IFR did not intend to appropriate relief from Federal than 9 months. If relief is needed for a change the content required for regulations. The interim rule also period of time beyond 9 months, a petitions under 49 CFR 211.9. The provided multiple methods for petition can be submitted through the

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17437

traditional waiver process. Where issues Regulatory Impact distribution of power and of safety and security overlap it may be responsibilities among the various Executive Order 12866 and DOT levels of government. This final rule necessary for FRA to coordinate with Regulatory Policies and Procedures DHS. will not have federalism implications This final rule has been evaluated in that impose any direct compliance costs General Information accordance with Executive Order 12866 on State and local governments. and DOT policies and procedures. The This rule finalizes the interim rule modifications contained in this final Unfunded Mandates Reform Act of 1995 that expedited the already-existing rule are not considered significant Pursuant to Section 201 of the waiver process during an emergency because they are intended to merely Unfunded Mandates Reform Act of 1995 with one minor clarification to the rule institute an emergency relief docket, (Pub. L. 104–4, 2 U.S.C. 1531), each text in 49 CFR 211.45(i). Considering and establish internal FRA procedures federal agency ‘‘shall, unless otherwise that the ERD and procedures for for handling waivers directly related to prohibited by law, assess the effects of emergency waiver petitions were an emergency. This final rule will not Federal regulatory actions on State, procedural modifications that did not change any regulatory requirements. local, and tribal governments, and the change any regulatory requirements, The economic impact of the procedures private sector (other than to the extent together with the need to issue the and establishment of the docket that such regulations incorporate procedural changes as soon as possible contained in this final rule will not requirements specifically set forth in since we had entered the official affect the cost of compliance with the law).’’ Section 202 of the Act (2 U.S.C. hurricane season, FRA issued the IFR existing regulations. 1532) further requires that ‘‘before promulgating any general notice of with a request for comments on August Regulatory Flexibility Act 30, 2006. Congress authored a good proposed rulemaking that is likely to cause exemption to the informal The Regulatory Flexibility Act of 1980 result in the promulgation of any rule that includes any Federal mandate that rulemaking procedures to address (5 U.S.C. 601 et seq.) requires a review may result in expenditure by State, emergencies (such as a response to a of rules to assess their impact on small entities. FRA certifies that this final rule local, and tribal governments, in the natural disaster) that might arise does not have a significant impact on a aggregate, or by the private sector, of justifying issuance of a rule without substantial number of small entities. $128,100,000 or more in any 1 year, and prior public participation. As hurricane Because the procedures and the before promulgating any final rule for season began again, unfortunately, establishment of an emergency docket which a general notice of proposed another emergency event could have contained in this rule does not change rulemaking was published, the agency occurred immediately. The public regulatory requirements, FRA has shall prepare a written statement’’ benefits from having the emergency concluded that there are no substantial detailing the effect on State, local, and waiver procedures in place before economic impacts on small units of tribal governments and the private another emergency exists. Delay in the government, businesses, or other sector. Because the ERD and procedures adoption of these procedures for organizations. for emergency waiver petitions will not expediting waivers could have caused change any regulatory requirements, serious harm to the public and the rail Paperwork Reduction Act this document will not result in the industry. In contrast to the potential This final rule does not change any of expenditure, in the aggregate, of harm that could be caused by delay, the the information collection requirements. $128,100,000 or more in any one year, and thus preparation of such a impact of the procedural modifications Environmental Impact on the public were minimal. statement is not required. FRA has evaluated this final rule in Consequently, pursuant to 5 U.S.C. Energy Impact accordance with its ‘‘Procedures for 553(b)(3)(B), FRA asserted its belief that Considering Environmental Impacts’’ Executive Order 13211 requires good cause existed for finding that prior (FRA’s Procedures) (64 FR 28545, May Federal agencies to prepare a Statement public notice of this action is both 26, 1999) as required by the National of Energy Effects for any ‘‘significant impracticable and unnecessary. Environmental Policy Act (42 U.S.C. energy action.’’ 66 FR 28355 ( May 22, However, FRA did request written 4321 et seq.), other environmental 2001). Under the Executive Order, a comments on the content of the IFR and statutes, Executive Orders, and related ‘‘significant energy action’’ is defined as addressed the comment in the section- regulatory requirements. FRA has any action by an agency (normally by-section portion of this document. determined that this document is not a published in the Federal Register) that promulgates or is expected to lead to the Privacy major FRA action (requiring the preparation of an environmental impact promulgation of a final rule or All potential petitioners for statement or environmental assessment) regulation, including notices of inquiry, reconsideration should be aware that because it is categorically excluded from advance notices of proposed anyone is able to search the electronic detailed environmental review pursuant rulemaking, and notices of proposed form of all comments received into any to section 4(c) of FRA’s Procedures. rulemaking: (1)(i) That is a significant regulatory action under Executive Order agency docket by the name of the Federalism Implications individual submitting the comment (or 12866 or any successor order, and (ii) is signing the comment, if submitted on FRA believes it is in compliance with likely to have a significant adverse effect Executive Order 13132. Because the on the supply, distribution, or use of behalf of an association, business, labor emergency docket and procedures for energy; or (2) that is designated by the union, etc.). You may review DOT’s emergency waiver petitions will not Administrator of the Office of complete Privacy Act Statement in the change any regulatory requirements, Information and Regulatory Affairs as a Federal Register published on April 11, this document will not have a significant energy action. FRA has 2000 (Volume 65, Number 70; Pages substantial effect on the States, on the evaluated the final rule in accordance 19477–78) or you may visit http:// relationship between the national with Executive Order 13211. Because dms.dot.gov. government and the States, or on the the emergency docket and procedures

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00085 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17438 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

for emergency waiver petitions will not be published in the previous year’s ERD a docket. (For example, the first change any regulatory requirements, identifying the new docket number. document submitted to the docket in FRA has determined that this document (c) Determining the existence of an 2006 will be identified as FRA–2006– will not have a significant adverse effect emergency event. If the Administrator XXX–1.) Thus, each petition submitted on the supply, distribution, or use of determines that an emergency event to the ERD will have a unique document energy. Consequently, FRA has identified in paragraph (a) of this number which should be identified on determined that this regulatory action is section has occurred, or that an all communications related to petitions not a ‘‘significant energy action’’ within imminent threat of it occurring exists, contained in this docket. If FRA the meaning of Executive Order 13211. and determines that public safety or determines that the petition does not recovery efforts require that the meet the criteria for use of these List of Subjects in 49 CFR Part 211 provisions of this section be emergency procedures, FRA will notify Administrative practice and implemented, the Administrator will the petitioner and will process the procedure, Railroad safety. activate the Emergency Relief Docket petition under normal waiver identified in paragraph (d) of this procedures of this subpart. Adoption of the Amendment section. In determining whether an (h) Comments. Comments should be I In consideration of the foregoing, the emergency exists, the Administrator submitted within 72 hours from the interim rule amending part 211 of may consider declarations of emergency close of business on the day that the Chapter II of Title 49 of the Code of made by local, State, or Federal officials, petition is entered into and available on Federal Regulations published at 71 FR and determinations by the Federal the DMS. Any comment received after 51521 on August 30, 2006 is adopted as government that a credible threat of a that period will be considered to the a final rule with the following change: terrorist attack exists. extent practicable. All comments should (d) Additional notification. When identify the appropriate ERD and should PART 211—RULES OF PRACTICE possible, FRA will post the FRA identify the specific document number Administrator’s determination of the petition designated by the DMS I 1. The authority citation for part 211 described in paragraph (b)(1) of this in the ERD. Interested parties continues to read as follows: section on its website at http:// commenting on a petition under this Authority: 49 U.S.C. 20103, 20107, 20114, www.fra.dot.gov. FRA will also publish section should also include in their 20306, 20502–20504, and 49 CFR 1.49. a notice in the Federal Register alerting comments to the ERD telephone interested parties of the FRA numbers at which their representatives I 2. Section 211.45 is revised to read as Administrator’s determination as soon may be reached. Interested parties may follows: as practicable. submit their comments using any of the § 211.45 Petitions for emergency waiver of (e) Content of petitions for emergency following methods: safety rules. waivers. Petitions submitted to FRA (1) Direct e-mail to FRA at: pursuant to this section should [email protected]. (a) General. This section applies only specifically address how the petition is (2) Direct fax to FRA at: 202–493– to petitions for waiver of a safety rule, related to the emergency, and to the 6309. regulation, or standard that FRA extent practicable, contain the (3) Submission of comments to the determines are directly related to the information required under § 211.9(a) Docket Clerk, DOT Docket Management occurrence of, or imminent threat of, an and (b). The petition should at a Facility, Room PL–401 (Plaza Level), emergency event. For purposes of this minimum describe the following: how 400 7th Street, SW., Washington, DC section an emergency event could be the petitioner or public is affected by 20590 or electronically via the internet local, regional, or national in scope and the emergency (including the impact on at http://dms.dot.gov. Any comments or includes a natural or manmade disaster, railroad operations); what FRA information sent directly to FRA will be such as a hurricane, flood, earthquake, regulations are implicated by the immediately provided to the DOT DMS mudslide, forest fire, significant emergency (e.g. movement of defective for inclusion in the ERD. snowstorm, terrorist act, biological equipment); how waiver of the (i) Request for hearing. Parties outbreak, release of a dangerous implicated regulations would benefit desiring a public hearing on any radiological, chemical, or biological petitioner during the emergency; and petition being processed under this material, war-related activity, or other how long the petitioner expects to be section must notify FRA through the similar event. affected by the emergency. comment process identified in (b) Emergency Relief Docket. Each (f) Filing requirements. Petitions filed paragraph (h) of this section within 72 calendar year FRA creates an Emergency under this section, shall be submitted hours from the close of business on the Relief Docket (ERD) in the publicly using any of the following methods: day that the petition is entered into and accessible DOT Document Management (1) Direct e-mail to FRA at: available on the DMS. In response to a System (DMS). The DMS can be [email protected]; request for a public hearing, FRA will accessed 24 hours a day, seven days a (2) Direct fax to FRA at: 202–493– arrange a telephone conference between week, via the Internet at the docket 6309; or all interested parties to provide an facility’s Web site at http://dms.dot.gov. (3) To FRA Docket Clerk, Office of opportunity for oral comment. The All documents in the DMS are available Chief Counsel, RCC–10, Mail Stop 10, conference will be arranged as soon as for inspection and copying on the Web 1120 Vermont Avenue, NW., practicable. After such conference, if a site or are available for examination at Washington, DC 20590, fax no. (202) party stills desires a public hearing on the DOT Docket Management Facility, 493–6068. the petition, then a public hearing will Room PL–401 (Plaza Level), 400 7th (g) FRA Handling and Initial Review. be arranged as soon as practicable Street, SW., Washington, DC 20590 Upon receipt and initial review of a pursuant to the provisions contained in during regular business hours (9 a.m.– petition for waiver, to verify that it 49 CFR part 211. 5 p.m.). By January 31st of each year, meets the criteria for use of these (j) Decisions. FRA may grant a FRA publishes a notice in the Federal emergency procedures, FRA will add petition for waiver prior to conducting Register identifying by docket number the petition to the ERD. The DMS a public hearing if such action is in the the ERD for that year. A notice will also numbers each document that is added to public interest and consistent with

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00086 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17439

safety or in situations where a hearing initiative or based upon information or (4) For matters that may significantly request is received subsequent to the 72- comments received subsequent to the impact the missions of the Department hour comment period. In such an 72-hour comment period or at a later of Homeland Security, FRA consults instance, FRA will notify the party scheduled public hearing. with the Department of Homeland requesting the public hearing of its (2) FRA decision letters, either Security as soon as practicable. decision and will arrange to conduct granting or denying a petition, will be such hearing as soon as practicable. posted in the appropriate ERD and will Joseph H. Boardman, (1) FRA reserves the right to reopen reference the document number of the Federal Railroad Administrator. any docket and reconsider any decision petition to which it relates. [FR Doc. 07–1667 Filed 4–6–07; 8:45 am] made pursuant to these emergency (3) Relief granted shall not extend for BILLING CODE 4910–06–P procedures based upon its own more than nine months.

VerDate Aug<31>2005 16:25 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00087 Fmt 4700 Sfmt 4700 E:\FR\FM\09APR1.SGM 09APR1 rwilkins on PROD1PC63 with RULES 17440

Proposed Rules Federal Register Vol. 72, No. 67

Monday, April 9, 2007

This section of the FEDERAL REGISTER in your submission that you do not want 0001, Telephone: 301–415–7163 or Toll contains notices to the public of the proposed to be publicly disclosed. Free: 800–368–5642. issuance of rules and regulations. The Mail comments to: Secretary, U.S. SUPPLEMENTARY INFORMATION: purpose of these notices is to give interested Nuclear Regulatory Commission, persons an opportunity to participate in the Washington, DC 20555–0001, ATTN: The Petitioner rule making prior to the adoption of the final rules. Rulemakings and Adjudications Staff. The petitioner is the Union of E-mail comments to: [email protected]. If Concerned Scientists. The petitioner you do not receive a reply e-mail states that it is a nonprofit partnership NUCLEAR REGULATORY confirming that we have received your of scientists and citizens that combines COMMISSION comments, contact us directly at (301) scientific analysis, policy development, 415–1966. You may also submit and citizen advocacy to achieve 10 CFR Part 73 comments via the NRC’s rulemaking practical environmental solutions. In Web site at http://ruleforum.llnl.gov. [Docket No. PRM–73–13] 2002, the Union of Concerned Scientists Address questions about our rulemaking had 61,300 members. Union of Concerned Scientists; Web site to Carol Gallagher (301) 415– The petitioner states that the Union of Receipt of Petition for Rulemaking 5905; e-mail [email protected]. Comments Concerned Scientists has been an active can also be submitted via the Federal participant in the past in public AGENCY: U.S. Nuclear Regulatory eRulemaking Portal http:// meetings conducted by NRC regarding Commission. www.regulations.gov. security regulations, and that the ACTION: Petition for rulemaking; notice Hand deliver comments to: 11555 petitioner continues to articulate of receipt. Rockville Pike, Rockville, Maryland potential problems and recommended 20852, between 7:30 a.m. and 4:15 p.m. solutions in various public arenas. SUMMARY: The U.S. Nuclear Regulatory Federal workdays. (Telephone (301) Commission (NRC) is publishing for 415–1966). Background public comment a notice of receipt of a Fax comments to: Secretary, U.S. Current regulations at 10 CFR part 73 petition for rulemaking, dated February Nuclear Regulatory Commission at (301) contain requirements for the physical 21, 2007, which was filed with the 415–1101. protection of nuclear power plants and Commission by David Lochbaum, Publicly available documents related materials. Specifically, §§ 73.55(d), Director, Nuclear Safety Project, on to this petition may be viewed 73.56(b), and 73.57(b) outline behalf of the Union of Concerned electronically on the public computers procedures for granting access to Scientists. The petition was docketed by located at the NRC’s Public Document protected areas of nuclear power plants. the NRC on February 23, 2007, and has Room (PDR), Room O1 F21, One White Section 73.55 (d)(6) states that a person been assigned Docket No. PRM–73–13. Flint North, 11555 Rockville Pike, who has not been granted unescorted The petitioner requests that the NRC Rockville, Maryland. The PDR access to protected areas may be granted amend its regulations to close a reproduction contractor will copy access with an escort. Section 73.56(b) loophole in current regulations that documents for a fee. Selected requires that licensees establish and would enable persons who do not meet documents, including comments, may maintain an access authorization trustworthiness and reliability standards be viewed and downloaded program granting individuals for unescorted access to protected areas electronically via the NRC rulemaking unescorted access to protected and vital of nuclear power plants the permission Web site at http://ruleforum.llnl.gov. areas with the objective of providing to enter protected areas with an Publicly available documents created high assurance that individuals granted unarmed escort. The petitioner believes or received at the NRC after November unescorted access are trustworthy and that current regulations create a security 1, 1999, are available electronically at reliable. Section 73.57 requires the vulnerability that could potentially the NRC’s Electronic Reading Room at fingerprinting of persons who have been compromise public health and safety. http://www.nrc.gov/reading-rm/ granted unescorted access. DATES: Submit comments by June 25, adams.html. From this site, the public The petitioner states that while 2007. Comments received after this date can gain entry into the NRC’s current regulations require access will be considered if it is practical to do Agencywide Document Access and control to protected areas, including so, but the Commission is able to assure Management System (ADAMS), which fingerprinting and background consideration only for comments provides text and image files of NRC’s clearances, § 73.55(d)(6) would allow received on or before this date. public documents. If you do not have access to protected areas by persons ADDRESSES: You may submit comments access to ADAMS or if there are who do not meet trustworthiness and by any one of the following methods. problems in accessing the documents reliability standards for unescorted Please include PRM–73–13 in the located in ADAMS, contact the PDR access to the protected area. The subject line of your comments. Reference staff at 1–800–397–4209, 301– petitioner further states that current Comments on petitions submitted in 415–4737 or by e-mail to [email protected]. regulations enable persons who do not writing or in electronic form will be FOR FURTHER INFORMATION CONTACT: meet trustworthiness and reliability made available for public inspection. Michael T. Lesar, Chief, Rulemaking, standards for unescorted access to the Because your comments will not be Directives and Editing Branch, Division protected area to be escorted through edited to remove any identifying or of Administrative Services, Office of protected areas by unarmed persons that contact information, the NRC cautions Administration, U.S. Nuclear Regulatory may not be members of the security you against including any information Commission, Washington, DC 20555– force. The petitioner believes that this is

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17441

a loophole that creates a security Dated at Rockville, Maryland, this 3rd day FOR FURTHER INFORMATION CONTACT: vulnerability that could potentially of April 2007. Mike Dostert, FAA, Propulsion/ compromise public health and safety. Kenneth R. Hart, Mechanical Systems, ANM–112, Transport Airplane Directorate, Aircraft The Proposed Amendments Acting Secretary of the Commission. [FR Doc. E7–6644 Filed 4–6–07; 8:45 am] Certification Service, 1601 Lind The petitioner requests that 10 CFR BILLING CODE 7590–01–P Avenue, SW., Renton, Washington part 73 be amended to require that 98057–3356; telephone (425) 227–2132; licensees implement procedures to facsimile (425) 227–1320. ensure that: (1) When information DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: becomes known to a licensee about an Comments Invited individual that would prevent that Federal Aviation Administration individual from gaining unescorted The FAA invites interested persons to access to the protected area of a nuclear 14 CFR Part 25 participate in this rulemaking by power plant, the licensee will submitting written comments, data, or implement measures to ensure the [Docket No. NM366 Special Conditions No. views. The most helpful comments individual does not enter the protected 25–07–03–SC] reference a specific portion of the area, whether escorted or not; and (2) Special Conditions: Boeing Model 787– special conditions, explain the reason when sufficient information is not 8 Airplane; Composite Wing and Fuel for any recommended change, and available to a licensee about an Tank Structure—Fire Protection include supporting data. We ask that individual to determine whether the Requirements you send us two copies of written criteria for unescorted access are comments. satisfied, the licensee will implement AGENCY: Federal Aviation We will file in the docket all measures to allow that individual to Administration (FAA), DOT. comments we receive as well as a report enter the protected area only when ACTION: Notice of proposed special summarizing each substantive public escorted at all times by an armed conditions. contact with FAA personnel concerning member of the security force who these proposed special conditions. The remains in periodic communication SUMMARY: This notice proposes special docket is available for public inspection with security supervision. In the case of conditions for the Boeing Model 787–8 before and after the comment closing the first proposal, the petitioner believes airplane. This airplane will have novel date. If you wish to review the docket that when it is known that a person’s or unusual design features when in person, go to the address in the trustworthiness and reliability do not compared to the state of technology ADDRESSES section of this notice meet the prescribed standards identified envisioned in the airworthiness between 7:30 a.m. and 4 p.m., Monday in § 73.56(b), access to protected areas, standards for transport category through Friday, except Federal holidays. either escorted or unescorted, should be airplanes. These novel or unusual We will consider all comments we denied. In the case of the second design features are associated with receive on or before the closing date for proposal, the petitioner recognizes that composite materials chosen for the comments. We will consider comments it is impractical and burdensome to construction of the fuel tank skin and filed late if it is possible to do so conduct background investigations of structure. For these design features, the without incurring expense or delay. We every person requiring access to a applicable airworthiness regulations do may change the proposed special protected area, noting persons may need not contain adequate or appropriate conditions based on comments we one-time access. With that in mind, the safety standards for wing and fuel tank receive. petitioner proposes granting these structure with respect to post-crash fire If you want the FAA to acknowledge persons access to protected areas, but safety. These proposed special receipt of your comments on this only when escorted by an armed conditions contain the additional safety proposal, include with your comments member of the security force and only standards that the Administrator a pre-addressed, stamped postcard on when this armed member is in periodic considers necessary to establish a level which the docket number appears. We communication with security of safety equivalent to that established will stamp the date on the postcard and supervision. by the existing airworthiness standards. mail it back to you. Conclusion Additional special conditions will be Background issued for other novel or unusual design The petitioner believes that current features of the Boeing Model 787–8 On March 28, 2003, Boeing applied regulations create a security airplanes. for an FAA type certificate for its new vulnerability that could potentially Boeing Model 787–8 passenger airplane. compromise public health and safety. DATES: Comments must be received on The Boeing Model 787–8 airplane will The petitioner believes that its proposed or before May 24, 2007. be an all-new, two-engine jet transport amendments to 10 CFR part 73 will ADDRESSES: Comments on this proposal airplane with a two-aisle cabin. The address this vulnerability in current may be mailed in duplicate to: Federal maximum takeoff weight will be regulations that enables persons who do Aviation Administration, Transport 476,000 pounds, with a maximum not meet trustworthiness and reliability Airplane Directorate, Attention: Rules passenger count of 381 passengers. standards for unescorted access to Docket (ANM–113), Docket No. NM366, protected areas of nuclear power plants 1601 Lind Avenue, SW., Renton, Type Certification Basis permission to enter protected areas with Washington 98057–3356; or delivered in Under provisions of 14 CFR 21.17, an unarmed escort. Accordingly, the duplicate to the Transport Airplane Boeing must show that Boeing Model petitioner requests that the NRC amend Directorate at the above address. All 787–8 airplanes (hereafter referred to as its regulations related to the physical comments must be marked Docket No. ‘‘the 787’’) meet the applicable protection of nuclear power plants and NM366. Comments may be inspected in provisions of 14 CFR part 25, as materials as described previously in the the Rules Docket weekdays, except amended by Amendments 25–1 through section titled, ‘‘The Proposed Federal holidays, between 7:30 a.m. and 25–117, except §§ 25.809(a) and 25.812, Amendments.’’ 4 p.m. which will remain at Amendment 25–

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17442 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

115. If the Administrator finds that the additional substantiation by test and are located in proximity to the applicable airworthiness regulations do analysis will be required to show that passengers and near the engines. Past not contain adequate or appropriate the 787 provides an acceptable level of experience indicates post crash safety standards for the 787 because of safety with respect to the performance survivability is greatly influenced by the a novel or unusual design feature, of the wings and fuel tanks during an size and intensity of any fire that occurs. special conditions are prescribed under external fuel-fed fire. The ability of aluminum wing surfaces provisions of 14 CFR 21.16. Although the FAA has previously wetted by fuel on their interior surface In addition to the applicable approved fuel tanks made of composite to withstand post-crash fire conditions airworthiness regulations and special materials that are located in the has been demonstrated by tests conditions, the 787 must comply with horizontal stabilizer of some airplanes, conducted at the FAA Technical Center. the fuel vent and exhaust emission the composite wing structure of the 787 These tests have verified adequate requirements of 14 CFR part 34 and the will introduce a new fuel tank dissipation of heat across wetted noise certification requirements of part construction into service. Advisory aluminum fuel tank surfaces so that 36. In addition, the FAA must issue a Circular (AC) 20–107A, Composite localized hot spots do not occur, thus finding of regulatory adequacy pursuant Aircraft Structure, under the topic of minimizing the threat of explosion. This to section 611 of Pub. L. 92–574, the flammability, states: ‘‘The existing inherent capability of aluminum to ‘‘Noise Control Act of 1972.’’ requirements for flammability and fire dissipate heat also allows the wing Special conditions, as defined in protection of aircraft structure attempt lower surface to retain its load carrying § 11.19, are issued in accordance with to minimize the hazard to the occupants characteristics during a fuel-fed ground § 11.38 and become part of the type in the event ignition of flammable fluids fire. It significantly delays wing collapse certification basis in accordance with or vapors occurs. The use of composite or burn-through for a time interval that § 21.17(a)(2). structure should not decrease this usually exceeds evacuation times. In Special conditions are initially existing level of safety.’’ The relevance addition, as an aluminum fuel tank is applicable to the model for which they to the wing structure is that post-crash heated with significant quantities of fuel are issued. Should the type certificate fire passenger survivability is dependent inside, fuel vapor accumulates in the for that model be amended later to on the time available for passenger ullage space, exceeding the upper include any other model that evacuation prior to fuel tank breach or flammability limit relatively quickly incorporates the same or similar novel structural failure. Structural failure can and thus reducing the threat of a fuel or unusual design feature, the special be a result of degradation in load- tank explosion prior to fuel tank burn- conditions would also apply to the other carrying capability in the upper or lower through. Service history of conventional model under the provisions of § 21.101. wing surface caused by a fuel-fed aluminum airplanes has shown that fuel Novel or Unusual Design Features ground fire. Structural failure can also tank explosions caused by ground fires be a result of over-pressurization caused have been rare on airplanes configured The 787 will incorporate a number of by ignition of fuel vapors in the fuel novel or unusual design features. with flame arrestors in the fuel tank tank. vent lines. Fuel tanks constructed with Because of rapid improvements in The FAA has historically developed composite materials may or may not airplane technology, the applicable rules with the assumption that the have equivalent capability. airworthiness regulations do not contain material of construction for wing and Current regulations were developed adequate or appropriate safety standards fuselage would be aluminum. As a and have evolved under the assumption for these design features. These representative case, § 25.963 was that wing construction would be of proposed special conditions for the 787 developed as a result of a large fuel-fed aluminum materials, which provide contain the additional safety standards fire following the failures of fuel tank inherent properties. Current regulations that the Administrator considers access doors caused by uncontained may not be adequate when applied to necessary to establish a level of safety engine failures. During the subsequent airplanes constructed of different equivalent to that established by the Aviation Rulemaking Advisory materials. Aluminum has the following existing airworthiness standards. Committee (ARAC) harmonization properties with respect to fuel tanks and The 787 will be the first large process with the JAA,1 the structures transport category airplane that will not fuel-fed external fires. group attempted to harmonize the • be fabricated primarily with aluminum requirements of § 25.963 regarding the Aluminum is highly thermally materials for the fuel tank structure. impact and fire resistance of fuel tank conductive. It readily transmits the heat Instead it will use predominantly access panels. Both authorities of a fuel-fed external fire to fuel in the composite materials for the structural recognized that existing aluminum wing tank. This has the benefit of rapidly elements and skin of the wings and fuel structure provided an acceptable level driving the fuel tank ullage to exceed tanks. Conventional airplanes with of safety. Further rulemaking has not yet the upper flammability limit prior to aluminum skin and structure provide a been pursued. burn-through of the fuel tank skin or well understood level of safety during As with previous Boeing airplane heating of the wing upper surface above post-crash fire scenarios with respect to designs with under-wing mounted the auto-ignition temperature. This fuel tanks. This is based on service engines, the wing tanks and center tanks greatly reduces the threat of fuel tank history and extensive full-scale fire explosion. • testing. Composites may or may not 1 The JAA is the Joint Aviation Authority of Aluminum panels at thicknesses have capabilities equivalent to Europe and the JAR is its Joint Aviation previously used in wing lower surfaces aluminum, and current regulations do Requirements, the equivalent of our Federal of large transport category airplanes Aviation Regulations. In 2003, the European have been fire resistant as defined in not provide objective performance Aviation Safety Agency (EASA) was formed, and requirements for wing and fuel tank EASA is now the principal aviation regulatory CFR 14 part 1 and AC 20–135. structure with respect to post-crash fire agency in Europe. We intend to work with EASA • The heat capacity of aluminum and safety. Because the use of composite to ensure that our rules are also harmonized with fuel will prevent burn-through or wing its Certification Specifications (CS). But since these structure is new and novel compared to efforts in developing harmonization of § 25.963 collapse for a time interval that will the designs envisioned when the occurred before EASA was formed, it was the JAA generally exceed the passenger applicable regulations were written, that was involved with them. evacuation time.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17443

The extensive use of composite would apply to that model as well ACTION: Notice of proposed rulemaking materials in the design of the 787 wing under the provisions of § 21.101. (NPRM). and fuel tank structure is considered a Conclusion major change from conventional and SUMMARY: We propose to adopt a new traditional methods of construction. This action affects only certain novel airworthiness directive (AD) for the This will be the first large transport or unusual design features of the 787. It products listed above. This proposed category airplane to be certificated with is not a rule of general applicability, and AD results from mandatory continuing this level of composite material for these it affects only the applicant that applied airworthiness information (MCAI) purposes. The applicable airworthiness to the FAA for approval of these features originated by an aviation authority of regulations do not contain specific on the airplane. another country to identify and correct an unsafe condition on an aviation standards for post-crash fire safety List of Subjects in 14 CFR Part 25 performance of wing and fuel tank skin product. The MCAI describes the unsafe or structure. Aircraft, Aviation safety, Reporting condition as: and recordkeeping requirements. * * * discovery of interferences between Discussion of Proposed Special The authority citation for these the power wire supplying the galley’s coffee- Conditions Special Conditions is as follows: maker and the surrounding structure. These In order to provide the same level of interferences might, by chafing and Authority: 49 U.S.C. 106(g), 40113, 44701, degrading the wire insulation, generate short safety as exists with conventional 44702, 44704. circuits between the wire and the aircraft airplane construction, Boeing must The Proposed Special Conditions ground through the composite cabinet demonstrate that the 787 has sufficient structure, without activation of the Circuit post-crash survivability, in the event Accordingly, the Administrator of the Breaker (C/B). Several hot spots may then be that the wings are exposed to a large Federal Aviation Administration (FAA) created and generate a large amount of thick fuel-fed fire, to enable occupants to proposes the following special smokes just behind the cockpit. safely evacuate. Factors in fuel tank conditions as part of the type The proposed AD would require survivability are the structural integrity certification basis for the Boeing Model actions that are intended to address the of the wing and tank, flammability of 787–8 airplane. unsafe condition described in the MCAI. the tank, burnthrough resistance of the In addition to complying with part 25 DATES: We must receive comments on wing skin, and the presence of auto- regulations governing the fire-safety this proposed AD by May 9, 2007. ignition threats during exposure to a performance of the fuel tanks, wings, and ADDRESSES: You may send comments by fire. The FAA assessed post crash nacelle, the Boeing Model 787–8 must any of the following methods: demonstrate acceptable post-crash survival time during the adoption of • DOT Docket Web site: Go to amendment 25–111 for fuselage survivability in the event the wings are exposed to a large fuel-fed ground fire. http://dms.dot.gov and follow the burnthrough protection. Studies instructions for sending your comments conducted by and on behalf of the FAA Boeing must demonstrate that the wing and fuel tank design can endure an external fuel- electronically. indicated that, following a survivable fed pool fire for at least 5 minutes. This shall • Fax: (202) 493–2251. accident, prevention of fuselage burn- be demonstrated for minimum fuel loads (not • Mail: Docket Management Facility, through for approximately 5 minutes less than reserve fuel levels) and maximum U.S. Department of Transportation, 400 can significantly enhance survivability. fuel loads (maximum range fuel quantities), Seventh Street, SW., Nassif Building, ( See report numbers DOT/FAA/AR–99/ and other identified critical fuel loads. Room PL–401, Washington, DC 20590– 57 and DOT/FAA/AR–02/49.) Beyond Considerations shall include fuel tank 0001. five minutes, there is little benefit, due flammability, burn-through resistance, wing • Hand Delivery: Room PL–401 on structural strength retention properties, and to the effects of the fuel fire itself. That the plaza level of the Nassif Building, assessment was carried out based on auto-ignition threats during a ground fire event for the required time duration. 400 Seventh Street, SW., Washington, accidents involving airplanes with DC, between 9 a.m. and 5 p.m., Monday conventional fuel tanks, and Issued in Renton, Washington, on March through Friday, except Federal holidays. considering the ability of ground 30, 2007. • Federal eRulemaking Portal: http:// personnel to rescue occupants. In Ali Bahrami, www.regulations.gov. Follow the addition, AC20–135 indicates that, Manager, Transport Airplane Directorate, instructions for submitting comments. when aluminum is used for fuel tanks, Aircraft Certification Service. the tank should withstand the effects of [FR Doc. E7–6542 Filed 4–6–07; 8:45 am] Examining the AD Docket fire for 5 minutes without failure. BILLING CODE 4910–13–P You may examine the AD docket on Therefore, to be consistent with existing the Internet at http://dms.dot.gov; or in capability and related requirements, the person at the Docket Management 787 fuel tanks must be capable of DEPARTMENT OF TRANSPORTATION Facility between 9 a.m. and 5 p.m., resisting a post crash fire for at least 5 Monday through Friday, except Federal minutes. In demonstrating compliance, Federal Aviation Administration holidays. The AD docket contains this Boeing must address a range of fuel proposed AD, the regulatory evaluation, loads from minimum to maximum, as 14 CFR Part 39 any comments received, and other well as any other critical fuel load. information. The street address for the [Docket No. FAA–2007–27806; Directorate Docket Office (telephone (800) 647– Applicability Identifier 2006–NM–287–AD] 5227) is in the ADDRESSES section. As discussed above, these proposed Comments will be available in the AD special conditions are applicable to the RIN 2120–AA64 docket shortly after receipt. 787. Should Boeing apply at a later date Airworthiness Directives; Dassault FOR FURTHER INFORMATION CONTACT: Tom for a change to the type certificate to Model Mystere-Falcon 50 Airplanes Rodriguez, Aerospace Engineer, include another model incorporating the International Branch, ANM–116, FAA, same novel or unusual design features, AGENCY: Federal Aviation Transport Airplane Directorate, 1601 these proposed special conditions Administration (FAA), DOT. Lind Avenue, SW., Renton, Washington

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17444 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

98057–3356; telephone (425) 227–1137; the aircraft ground through the composite this proposed AD. The average labor fax (425) 227–1149. cabinet structure, without activation of the rate is $80 per work-hour. Based on Circuit Breaker (C/B). Several hot spots may SUPPLEMENTARY INFORMATION: these figures, we estimate the cost of the then be created and generate a large amount proposed AD on U.S. operators to be Streamlined Issuance of AD of thick smokes just behind the cockpit. This AD aims to prevent this kind of $161,920, or $3,680 per product. The FAA is implementing a new incident, mandating a wire inspection [for Authority for This Rulemaking process for streamlining the issuance of damaged wire sleeves], a check for a proper ADs related to MCAI. This streamlined clearance and if necessary a wire re-routing. Title 49 of the United States Code process will allow us to adopt MCAI The MCAI also requires disabling the specifies the FAA’s authority to issue safety requirements in a more efficient galley’s coffee-maker, and, in addition rules on aviation safety. Subtitle I, manner and will reduce safety risks to to wire re-routing, any required section 106, describes the authority of the public. This process continues to corrective actions. (Corrective actions the FAA Administrator. ‘‘Subtitle VII: follow all FAA AD issuance processes to include replacing worn or defective Aviation Programs,’’ describes in more meet legal, economic, Administrative wire sleeves and shortening wires.) You detail the scope of the Agency’s Procedure Act, and Federal Register may obtain further information by authority. requirements. We also continue to meet examining the MCAI in the AD docket. We are issuing this rulemaking under our technical decision-making the authority described in ‘‘Subtitle VII, responsibilities to identify and correct Relevant Service Information Part A, Subpart III, Section 44701: unsafe conditions on U.S.-certificated Dassault has issued Service Bulletins General requirements.’’ Under that products. F50–471 and F50–456, both dated section, Congress charges the FAA with This proposed AD references the October 25, 2006. The actions described promoting safe flight of civil aircraft in MCAI and related service information in this service information are intended air commerce by prescribing regulations that we considered in forming the to correct the unsafe condition for practices, methods, and procedures engineering basis to correct the unsafe identified in the MCAI. the Administrator finds necessary for condition. The proposed AD contains FAA’s Determination and Requirements safety in air commerce. This regulation text copied from the MCAI and for this of This Proposed AD is within the scope of that authority reason might not follow our plain because it addresses an unsafe condition language principles. This product has been approved by that is likely to exist or develop on the aviation authority of another Comments Invited products identified in this rulemaking country, and is approved for operation action. We invite you to send any written in the United States. Pursuant to our relevant data, views, or arguments about bilateral agreement with the State of Regulatory Findings this proposed AD. Send your comments Design Authority, we have been notified We determined that this proposed AD to an address listed under the of the unsafe condition described in the would not have federalism implications ADDRESSES section. Include ‘‘Docket No. MCAI and service information under Executive Order 13132. This FAA–2007–27806; Directorate Identifier referenced above. We are proposing this proposed AD would not have a 2006–NM–287–AD’’ at the beginning of AD because we evaluated all pertinent substantial direct effect on the States, on your comments. We specifically invite information and determined an unsafe the relationship between the national comments on the overall regulatory, condition exists and is likely to exist or Government and the States, or on the economic, environmental, and energy develop on other products of the same distribution of power and aspects of this proposed AD. We will type design. responsibilities among the various consider all comments received by the Differences Between This AD and the levels of government. closing date and may amend this MCAI or Service Information For the reasons discussed above, I proposed AD based on those comments. certify this proposed regulation: We will post all comments we We have reviewed the MCAI and related service information and, in 1. Is not a ‘‘significant regulatory receive, without change, to http:// action’’ under Executive Order 12866; dms.dot.gov, including any personal general, agree with their substance. But 2. Is not a ‘‘significant rule’’ under the information you provide. We will also we might have found it necessary to use DOT Regulatory Policies and Procedures post a report summarizing each different words from those in the MCAI (44 FR 11034, February 26, 1979); and substantive verbal contact we receive to ensure the AD is clear for U.S. about this proposed AD. operators and is enforceable. In making 3. Will not have a significant these changes, we do not intend to differ economic impact, positive or negative, Discussion substantively from the information on a substantial number of small entities The European Aviation Safety Agency provided in the MCAI and related under the criteria of the Regulatory (EASA), which is the Technical Agent service information. Flexibility Act. for the Member States of the European We might also have proposed We prepared a regulatory evaluation Community, has issued EASA different actions in this AD from those of the estimated costs to comply with Emergency Airworthiness Directive in the MCAI in order to follow FAA this proposed AD and placed it in the 2006–0329–E, dated October 25, 2006 policies. Any such differences are AD docket. (referred to after this as ‘‘the MCAI’’), to highlighted in a NOTE within the List of Subjects in 14 CFR Part 39 correct an unsafe condition for the proposed AD. specified products. The MCAI states: Air transportation, Aircraft, Aviation Costs of Compliance safety, Safety. This Airworthiness Directive (AD) is Based on the service information, we issued following discovery of interferences The Proposed Amendment between the power wire supplying the estimate that this proposed AD would galley’s coffee-maker and the surrounding affect about 44 products of U.S. registry. Accordingly, under the authority structure. These interferences might, by We also estimate that it would take delegated to me by the Administrator, chafing and degrading the wire insulation, about 46 work-hours per product to the FAA proposes to amend 14 CFR part generate short circuits between the wire and comply with the basic requirements of 39 as follows:

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17445

PART 39—AIRWORTHINESS Instructions of Dassault Service Bulletin DEPARTMENT OF TRANSPORTATION DIRECTIVES F50–456, dated October 25, 2006. Doing the actions specified in this paragraph terminates Federal Aviation Administration 1. The authority citation for part 39 the requirements of paragraph (f)(1) of this continues to read as follows: AD, and after the actions have been done, the 14 CFR Part 71 Authority: 49 U.S.C. 106(g), 40113, 44701. circuit breaker collar required by paragraph (f)(1) of this AD may be removed. [Docket No. FAA–2007–27439; Airspace § 39.13 [Amended] Docket No. 07–AAL–04] FAA AD Differences 2. The FAA amends § 39.13 by adding Proposed Revision of Class E the following new AD: Note: This AD differs from the MCAI and/ or service information as follows: The MCAI Airspace; Red Dog, AK Dassault Aviation: Docket No. FAA–2007– does not indicate that doing the actions 27806; Directorate Identifier 2006–NM– AGENCY: Federal Aviation specified in Dassault Service Bulletin F50– Administration (FAA), DOT. 287–AD. 456, dated October 25, 2006, terminates the ACTION: Comments Due Date requirement to disable the coffee-maker. This Notice of proposed rulemaking. AD indicates that doing the actions specified (a) We must receive comments by May 9, SUMMARY: This action proposes to revise 2007. in Dassault Service Bulletin F50–456, terminates the requirements to disable the Class E airspace at Red Dog, AK. A Affected ADs coffee-maker, and after the actions have been review of controlled airspace for two (b) None. done, the circuit breaker collar may be new Area Navigation (RNAV) Required removed. Navigation Performance (RNP) Special Applicability Instrument Approach Procedures (c) This AD applies to Dassault Model Other FAA AD Provisions (SIAPs) and an RNAV RNP Special Mystere-Falcon 50 airplanes; certificated in (g) The following provisions also apply to Departure Procedure (DP), after a recent any category; with serial number 275 through this AD: action (06–AAL–40) revealed that a 293 and 295 through 303 and 305 through (1) Alternative Methods of Compliance small area of controlled airspace is 330 inclusive, with the exception of airplanes (AMOCs): The Manager, International required for the Red Dog Airport. which have already embodied the Dassault Branch, ANM–116, Transport Airplane Service Bulletin F50–456. Adoption of this proposal would result Directorate, FAA, has the authority to in revision of existing Class E airspace Subject approve AMOCs for this AD, if requested upward from 1,200 feet (ft.) above the using the procedures found in 14 CFR 39.19. (d) Electrical Power; Equipment/ surface at Red Dog Airport, AK. Send information to ATTN: Tom Rodriguez, Furnishings. Aerospace Engineer, 1601 Lind Avenue, SW., DATES: Comments must be received on Reason Renton, Washington 98057–3356, telephone or before May 24, 2007. (e) The mandatory continuing (425) 227–1137; fax (425) 227–1149. Before ADDRESSES: Send comments on the airworthiness information (MCAI) states: using any AMOC approved in accordance proposal to the Docket Management This Airworthiness Directive (AD) is with § 39.19 on any airplane to which the System, U.S. Department of issued following discovery of interferences AMOC applies, notify the appropriate Transportation, Room Plaza 401, 400 between the power wire supplying the principal inspector in the FAA Flight Seventh Street, SW., Washington, DC galley’s coffee-maker and the surrounding Standards Certificate Holding District Office. 20590–0001. You must identify the (2) Airworthy Product: For any structure. These interferences might, by docket number FAA–2007–27439/ chafing and degrading the wire insulation, requirement in this AD to obtain corrective generate short circuits between the wire and actions from a manufacturer or other source, Airspace Docket No. 07–AAL–04, at the the aircraft ground through the composite use these actions if they are FAA-approved. beginning of your comments. You may cabinet structure, without activation of the Corrective actions are considered FAA- also submit comments on the Internet at Circuit Breaker (C/B). Several hot spots may approved if they are approved by the State http://dms.dot.gov. You may review the then be created and generate a large amount of Design Authority (or their delegated public docket containing the proposal, of thick smoke just behind the cockpit. agent). You are required to assure the product any comments received, and any final This AD aims to prevent this kind of is airworthy before it is returned to service. disposition in person in the Dockets incident, mandating a wire inspection [for (3) Reporting Requirements: For any Office between 9 a.m. and 5 p.m., damaged wire sleeves], a check for a proper reporting requirement in this AD, under the Monday through Friday, except Federal clearance and if necessary a wire re-routing. provisions of the Paperwork Reduction Act, holidays. The Docket Office (telephone The MCAI also requires disabling the galley’s the Office of Management and Budget (OMB) 1–800–647–5527) is on the plaza level coffee-maker, and, in addition to wire re- has approved the information collection of the Department of Transportation routing, any required corrective actions. requirements and has assigned OMB Control Nassif Building at the above address. (Corrective actions include replacing worn or Number 2120–0056. defective wire sleeves and shortening wires.) An informal docket may also be Related Information examined during normal business hours Actions and Compliance (h) Refer to MCAI European Aviation at the office of the Manager, Safety, (f) Unless already done, do the following Safety Agency Emergency Airworthiness Alaska Flight Service Operations, actions. Directive 2006–0329–E, dated October 25, Federal Aviation Administration, 222 (1) Within 50 flight hours or 1 month after 2006; Dassault Service Bulletin F50–471, West 7th Avenue, Box 14, Anchorage, the effective date of this AD, whichever dated October 25, 2006; and Dassault Service occurs first, disable the galley’s coffee-maker AK 99513–7587. Bulletin F50–456, dated October 25, 2006; for by pulling and locking out the circuit breaker FOR FURTHER INFORMATION CONTACT: Gary related information. 710HG, as instructed in Dassault Service Rolf, Federal Aviation Administration, Bulletin F50–471, dated October 25, 2006. Issued in Renton, Washington, on March 222 West 7th Avenue, Box 14, (2) Within 1,530 flight hours or 24 months 30, 2007. Anchorage, AK 99513–7587; telephone after the effective date of this AD, whichever Ali Bahrami, number (907) 271–5898; fax: (907) 271– occurs first, inspect for damaged wire Manager, Transport Airplane Directorate, 2850; e-mail: [email protected]. sleeves, check their proper clearance, and if Aircraft Certification Service. a discrepancy is found, prior to next flight, Internet address: http:// proceed to all applicable corrective actions as [FR Doc. E7–6590 Filed 4–6–07; 8:45 am] www.alaska.faa.gov/at. indicated in the Accomplishment BILLING CODE 4910–13–P SUPPLEMENTARY INFORMATION:

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17446 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

Comments Invited Distribution System, which describes only affect air traffic procedures and air the application procedure. navigation, it is certified that this rule, Interested parties are invited to when promulgated, will not have a The Proposal participate in this proposed rulemaking significant economic impact on a by submitting such written data, views, The FAA is considering an substantial number of small entities or arguments as they may desire. amendment to the Code of Federal under the criteria of the Regulatory Comments that provide the factual basis Regulations (14 CFR Part 71), which Flexibility Act. supporting the views and suggestions would revise the Class E airspace at Red The FAA’s authority to issue rules presented are particularly helpful in Dog Airport, AK. The intended effect of regarding aviation safety is found in developing reasoned regulatory this proposal is to revise Class E Title 49 of the United States Code. decisions on the proposal. Comments airspace upward from 1,200 ft. above Subtitle 1, Section 106 describes the are specifically invited on the overall the surface to contain Instrument Flight authority of the FAA Administrator. regulatory, aeronautical, economic, Rules (IFR) operations at Red Dog Subtitle VII, Aviation Programs, environmental, and energy-related Airport, AK. describes in more detail the scope of the aspects of the proposal. A recent controlled airspace review agency’s authority. Communications should identify both revealed an additional small area of This rulemaking is promulgated docket numbers and be submitted in controlled airspace is necessary for two under the authority described in triplicate to the address listed above. new Special RNAV RNP instrument Subtitle VII, Part A, Subpart 1, Section Commenters wishing the FAA to approaches and one Special RNAV RNP 40103, Sovereignty and use of airspace. acknowledge receipt of their comments departure procedure for the Red Dog Under that section, the FAA is charged on this notice must submit with those Airport. The discovery was made too with prescribing regulations to ensure comments a self-addressed, stamped late to correct the recent rulemaking the safe and efficient use of the postcard on which the following action associated with Red Dog Airport navigable airspace. This regulation is statement is made: ‘‘Comments to (06–AAL–40). The new approaches are within the scope of that authority Docket No. FAA–2007–27439/Airspace (1) the Area Navigation (RNAV) because it proposes to create Class E Docket No. 07–AAL–04.’’ The postcard Required Navigation Performance (RNP) airspace sufficient in size to contain will be date/time stamped and returned Runway (RWY) 05 and (2) the RNAV aircraft executing instrument to the commenter. RNP RWY 20. The departure procedure procedures at the Red Dog Airport and All communications received on or is the IHOPO ONE RNAV RNP represents the FAA’s continuing effort before the specified closing date for Departure. Class E controlled airspace to safely and efficiently use the comments will be considered before extending upward from 1,200 ft. above navigable airspace. taking action on the proposed rule. The the surface within the Red Dog Airport List of Subjects in 14 CFR Part 71 proposal contained in this notice may area would be revised by this action. be changed in light of comments The proposed airspace is sufficient in Airspace, Incorporation by reference, received. All comments submitted will size to contain aircraft executing the Navigation (air). Special SIAPs at the Red Dog Airport. be available for examination in the The current rulemaking action slated for The Proposed Amendment public docket both before and after the charting (06–AAL–40) will still take closing date for comments. A report In consideration of the foregoing, the place on May 10, 2007. Federal Aviation Administration summarizing each substantive public The area would be depicted on contact with FAA personnel concerned proposes to amend 14 CFR part 71 as aeronautical charts for pilot reference. follows: with this rulemaking will be filed in the The coordinates for this airspace docket docket. are based on North American Datum 83. PART 71— DESIGNATION OF CLASS Availability of Notice of Proposed The Class E airspace areas designated as A, CLASS B, CLASS C, CLASS D, AND Rulemakings (NPRMs) 700/1200 foot transition areas are CLASS E AIRSPACE AREAS; published in paragraph 6005 in FAA AIRWAYS; ROUTES; AND REPORTING An electronic copy of this document Order 7400.9P, Airspace Designations POINTS may be downloaded through the and Reporting Points, dated September 1. The authority citation for 14 CFR Internet at http://dms.dot.gov. Recently 1, 2006, and effective September 15, part 71 continues to read as follows: published rulemaking documents can 2006, which is incorporated by also be accessed through the FAA’s web reference in 14 CFR 71.1. The Class E Authority: 49 U.S.C. 106(g), 40103, 40113, page at http://www.faa.gov or the airspace designations listed in this 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Superintendent of Documents’ Web document would be published 1963 Comp., p. 389. page at http://www.access.gpo.gov/nara. subsequently in the Order. § 71.1 [Amended] Additionally, any person may obtain The FAA has determined that this 2. The incorporation by reference in a copy of this notice by submitting a proposed regulation only involves an 14 CFR 71.1 of Federal Aviation request to the Federal Aviation established body of technical Administration Order 7400.9P, Airspace Administration, Office of Air Traffic regulations for which frequent and Designations and Reporting Points, Airspace Management, ATA–400, 800 routine amendments are necessary to dated September 1, 2006, and effective Independence Avenue, SW., keep them operationally current. It, September 15, 2006, is to be amended Washington, DC 20591 or by calling therefore—(1) Is not a ‘‘significant as follows: (202) 267–8783. Communications must regulatory action’’ under Executive * * * * * identify both docket numbers for this Order 12866; (2) is not a ‘‘significant Paragraph 6005 Class E airspace extending notice. Persons interested in being rule’’ under DOT Regulatory Policies upward from 700 feet or more above the placed on a mailing list for future and Procedures (44 FR 11034; February surface of the earth. NPRMs should contact the FAA’s Office 26, 1979); and (3) does not warrant * * * * * of Rulemaking, (202) 267–9677, to preparation of a regulatory evaluation as request a copy of Advisory Circular No. the anticipated impact is so minimal. AAL AK E5 Red Dog, AK [Revised] 11–2A, Notice of Proposed Rulemaking Since this is a routine matter that will Red Dog Airport, AK

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17447

(Lat. 68°01′53″ N., long. 162°54′11″ W.) (ILAC) Mutual Recognition dms.dot.gov/submit. The DMS is Noatak NDB/DME, AK Arrangement (MRA), an Asia Pacific available 24 hours each day, 365 days ° ′ ″ ° ′ ″ (Lat. 67 34 19 N., long. 162 58 26 W.) Laboratory Accreditation Cooperation each year. Electronic submission and Selawik VOR/DME, AK (APLAC) MRA, or another comparable retrieval help and guidelines are (Lat. 66°36′00″ N., long. 159°59′30″ W.) accreditation body approved by FHWA. available under the help section of the That airspace extending upward from 700 The objective of this proposed rule is to Web site. An electronic copy of this feet above the surface within a 6.3-mile radius of the Red Dog Airport, AK; and that improve the agency’s ability to document may be downloaded from the airspace extending upward from 1,200 ft. determine that crash test laboratories are Federal Register’s home page at: above the surface within a 14-mile radius of qualified to conduct and evaluate tests http://www.archives.gov and the the Red Dog Airport, AK, and within 5 miles intended to determine the Government Printing Office’s database either side of a line from the Selawik VOR/ crashworthiness of roadside safety at: http://www.access.gpo.gov/nara. DME, AK, to lat. 67°38′06″ N., long. features. Laboratory accreditation is Please note that even after the 162°21′42″ W., to lat. 67°54′30″ N., long. widely recognized as a reliable indicator comment closing date, we will continue ° ′ ″ 163 00 00 W., and within 5 miles either side of technical competence. to file relevant information in the of a line from the Noatak NDB/DME, AK, to ° ′ ″ ° ′ ″ DATES: Comments must be received on Docket as it becomes available. Further, lat. 67 50 20 N., long. 163 19 16 W., and some people may submit late comments within 8 miles either side of the 219° bearing or before June 8, 2007. of the Red Dog NDB, AK, extending from the ADDRESSES: Mail or hand deliver and we will consider all late comments 14-mile radius from the Red Dog NDB, AK, comments to the U.S. Department of to the extent practicable. Accordingly, to 30 miles southwest of the Red Dog Airport, Transportation, Dockets Management we recommend that you periodically AK. Facility, Room PL–401, 400 Seventh check the Docket for new material. * * * * * Street, SW., Washington, DC 20590– Background Issued in Anchorage, AK, on March 30, 0001, or submit electronically at Section 109(c) of title 23, United 2007. http://dmses.dot.gov/submit or fax States Code, as amended by section 304 Michael A. Tarr, comments to (202) 493–2251. of the National Highway System Acting Manager, Alaska Flight Services Alternatively, comments may be Designation Act of 1995 (Pub. L. 104– Information Area Group. submitted via the Federal eRulemaking 59; 109 Stat. 188; Nov. 28, 1995), [FR Doc. E7–6539 Filed 4–6–07; 8:45 am] Portal at http://www.regulations.gov. All requires the Secretary, in cooperation comments must include the docket BILLING CODE 4910–13–P with the State transportation number that appears in the heading of departments, to approve design and this document. All comments received construction standards on the NHS, will be available for examination and DEPARTMENT OF TRANSPORTATION regardless of funding source. These copying at the above address from 9 design standards include not only Federal Highway Administration a.m. to 5 p.m., e.t., Monday through elements pertaining to the roadway Friday, except Federal holidays. Those itself, but also to any appurtenances 23 CFR Part 637 desiring notification of receipt of installed along the roadway, such as comments must include a self- traffic barriers (roadside and median [FHWA Docket No. FHWA–2006–26501] addressed, stamped postcard or you barriers, and bridge railings), sign and RIN 2125-AF21 may print the acknowledgment page luminaire supports and crash cushions. that appears after submitting comments Statement of the Problem. The Crash Test Laboratory Requirements electronically. Anyone is able to search roadside safety hardware sector has for FHWA Roadside Safety Hardware the electronic form of all comments evolved since the 1960’s and now Acceptance received into any of our dockets by the includes additional crash test name of the individual submitting the laboratories that are not sponsored by an AGENCY: Federal Highway comment (or signing the comment, if Administration (FHWA), DOT. academic institution. During the same submitted on behalf of an association, period, the FHWA funding of roadside ACTION: Notice of proposed rulemaking; business, labor union, etc.). You may safety hardware testing at crash test request for comments. review DOT’s complete Privacy Act laboratories and direct observation of SUMMARY: The FHWA proposes to revise Statement in the Federal Register crash test laboratories have decreased. its regulation that establishes the published on April 11, 2000 (Volume There are about 10 laboratories within general requirements for quality 65, Number 70, Pages 19477–78) or you the United States that conduct, or have assurance procedures for construction may visit http://dms.dot.gov. conducted, the types of vehicle/ on all Federal-aid highway projects on FOR FURTHER INFORMATION CONTACT: Matt hardware tests needed to establish the National Highway System (NHS).1 Lupes, Office of Safety Design, HSSD, crashworthiness. Additionally, there are Specifically, the FHWA proposes to 202–366–6994, Nicholas Artimovich, more manufacturers and increasing require accreditation of laboratories that Office of Safety Design, HSSD, 202– types of roadside safety hardware conduct crash tests on roadside 366–1331, or Raymond Cuprill, Office of devices available. The FHWA hardware by an accrediting body that is the Chief Counsel, (202) 366–0791, recognized that most State DOT recognized by the National Cooperation Federal Highway Administration, 400 personnel were not experienced in for Laboratory Accreditation (NCLA) or Seventh Street, SW., Washington, DC assessing test laboratory reports to is a signatory to an International 20590–0001. Office hours are from 7:45 determine if the hardware was subjected Laboratory Accreditation Cooperation a.m. to 4:15 p.m., Monday through to all required tests and if all tests met Friday, except Federal holidays. the appropriate evaluation criteria. 1 The National Highway System (NHS) includes SUPPLEMENTARY INFORMATION: Therefore, as a service to the State the Interstate Highway System as well as other transportation departments, and to the roads important to the nation’s economy, defense, Electronic Access highway safety industry in general, the and mobility. See 23 U.S.C. 103(b). The NHS was developed by the Department of Transportation You may submit or retrieve comments FHWA began reviewing test reports, (DOT) in cooperation with the States, local officials, online through the Document upon request, and providing written and metropolitan planning organizations (MPOs). Management System (DMS) at: http:// acknowledgements that specific

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17448 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

appurtenances were crashworthy and personnel, the validity of test methods, Transportation regulatory policies and thus eligible for use on the NHS. These the calibration and maintenance of test procedures. It is anticipated that the ‘‘FHWA Acceptance Letters’’ quickly equipment, and the quality assurance of economic impact of this rulemaking became essential to the manufacturers calibration and test data. would be minimal. Currently, two of the and widely recognized by the States. Laboratory accreditation will be test laboratories in the U.S. are already The FHWA Office of Safety Design assessed according to the current accredited and this proposed regulation reviews such requests for acceptance International Standard ISO/IEC would have no effect on those entities. and currently maintains listings of 17025:2005, General Requirements for The two currently accredited crashworthy barriers, bridge railings, the Competence of Testing and laboratories, E-Tech Testing Services transitions to bridge railings, barrier Calibration of Laboratories. The ISO/IEC Incorporated in Rocklin, California and terminals, crash cushions, truck 17025:2005 standard is divided into Safe Technologies Incorporated in Rio mounted attenuators, breakaway management and technical requirements Vista, California provided an estimate of luminaire support hardware, breakaway that ensure the competence of the direct time and costs incurred to receive sign supports, work zone devices, and laboratory to produce valid data and initial accreditation as 480 to 960 other hardware. Hardware approved results. Many other countries require person-work hours to prepare through acceptance letters are posted on organizations and testing laboratories to documentation and $9,000 in direct the FHWA Safety Web site at http:// be accredited to the ISO/IEC 17025 costs. The initial fee of $9,000 included safety.fhwa.dot.gov/report350hardware. standard for any test results used for a one-time registration fee of $5,000, a Similar to the individual State DOTs, establishing compliance. The FHWA 3-day on-site assessment visit costing the FHWA does not have adequate acknowledges the ISO/IEC 17025: 2005 $3,000, and materials and equipment personnel or resources to continuously standard as the benchmark for assessing costs of $1,000. It is expected that the verify, on-site, the capabilities of the the competence of the testing and amount of person work hours and costs established test laboratories to conduct calibration laboratories associated with document preparation required tests, to calibrate recording This rulemaking proposes to provide will vary depending on the size of the devices used to collect and analyze data, a 2-year phase-in period from the date laboratory and the extent to which its and to determine compliance with of final rule to allow adequate time to operating procedures are already evaluation criteria. Should new prepare documentation and budgeting formalized. We believe the time and laboratories be established in the future, for formal accreditation. Based on the cost to gain accreditation is not a the FHWA would be similarly limited in experience of the two accredited labs burden. Laboratory accreditation its ability to assess their competence to operating in the U.S., we estimate that renewal is required bi-annually and set up, run, and evaluate full-scale adequate preparation for accreditation includes an annual review. The two vehicular tests. The objective of this rule could vary depending on the size of the laboratories mentioned above cite would be to provide increased lab and could take 2 to 6 months. We recurring annual costs of maintaining confidence in roadside hardware safety welcome your comments on what formal accreditation to be 160 person by ensuring that all crash test burdens this proposed accreditation work hours and only $3,000 annually. laboratories are capable of conducting would impose on a laboratory and if the This rulemaking proposes to provide crash tests and analyzing and reporting proposed 2-year phase-in period is a 2-year phase-in period from the date test results. The FHWA believes that sufficient. of final rule to allow adequate time to appropriate stewardship requires that prepare documentation and budgeting Rulemaking Analyses and Notices we establish minimum accreditation for formal accreditation. We believe 2 requirements for these laboratories. All comments received before the years is more than adequate time for close of business on the comment General Discussion of the Proposal laboratories to obtain the necessary closing date indicated above will be accreditation. These proposed changes The FHWA is proposing to amend 23 considered and will be available for would not adversely affect, in a material CFR 637.209 by adding 637.209(a)(5) examination using the docket number way, any sector of the economy. In that would require all laboratories that appearing at the top of this document in addition, these changes would not perform crash testing for acceptance of the docket room at the above address. interfere with any action taken or roadside safety hardware to be The FHWA will file comments received planned by another agency and would accredited by an accreditation body that after the comment closing date and will not materially alter the budgetary is recognized by NACLA or is a consider late comments to the extent impact of any entitlements, grants, user signatory to the APLAC MRA, ILAC practicable. In addition to late fees, or loan programs. Consequently, a MRA, or another comparable comments, the FHWA will also full regulatory evaluation is not accreditation body approved by FHWA. continue to file in the docket relevant required. To FHWA’s knowledge, NACLA and information becoming available after the Regulatory Flexibility Act laboratory accreditation bodies that are comment closing date, and interested members of ILAC and APLAC are the persons should continue to examine the In compliance with the Regulatory only laboratory accreditation bodies that docket for new material. A final rule Flexibility Act (Pub. L. 96–354, 5 U.S.C. exist. Information on accrediting bodies may be published at any time after the 601–612), the FHWA has evaluated the that are signatories to APLAC’s MRA close of the comment period. effects of this proposed action on small and ILAC’s MRA, including estimated entities, including small governments. costs and application procedures for Executive Order 12866 (Regulatory The FHWA certifies that this proposed laboratory accreditation, can be found at Planning and Review) and DOT action would not have a significant their respective Web sites Regulatory Policies and Procedures economic impact on a substantial http:llwww.aplac.org and http:// The FHWA has determined number of small entities. As noted www.ilac.org; similar information on preliminarily that this action would not above, there are about ten (10) agencies NACLA’s accrediting bodies can be be a significant regulatory action within that test roadside hardware for found at http://nacla.net. Formal the meaning of Executive Order 12866 crashworthiness and two of these have accreditation assesses factors such as or would not be significant within the already been certified as proposed the technical competency of laboratory meaning of U.S. Department of herein. Estimated time and cost for an

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17449

initial certification is 3 days on-site and Executive Order 12630, Governmental the Unified Agenda in April and $ 9,000. Re-certification is required bi- Actions and Interference with October of each year. The RIN contained annually at an estimated annual cost of Constitutionally Protected Property in the heading of this document can be $3,000. Rights. used to cross-reference this action with the Unified Agenda. Executive Order 13132 (Federalism) Executive Order 13211 (Energy Effects) The FHWA analyzed this proposed The FHWA has analyzed this List of Subjects in 23 CFR Part 637 amendment in accordance with the proposed action under Executive Order Construction inspection and approval; principles and criteria contained in 13211, Actions Concerning Regulations Highways and roads. Executive Order 13132, dated August 4, That Significantly Affect Energy Supply, Issued on: March 30, 2007. 1999, and the FHWA has determined Distribution, or Use. We have J. Richard Capka, that this proposed action would not determined that this is not a significant have a substantial direct effect or energy action under this order because Federal Highway Administrator. sufficient federalism implications on it is not a significant regulatory action In consideration of the foregoing, the States and local governments that would under Executive Order 12866 and is not FHWA proposes to amend, title 23, limit the policy making discretion of the likely to have a significant adverse effect Code of Federal Regulations, part 637, States and local governments. on the supply, distribution, or use of as set forth below: energy. Therefore, a Statement of Energy Unfunded Mandates Reform Act Effects under Executive Order 13211 is PART 637—QUALITY ASSURANCE This proposed rule would not impose not required. PROCEDURES FOR CONSTRUCTION unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 Executive Order 13175 (Tribal 1. The authority citation for part 637 (Pub. L. 104–4, March 22, 1995; 109 Consultation) continues to read as follows: Stat. 48). This proposed rule will not Since none of the existing test Authority: Sec. 1307, Pub. L. 105–178, 112 result in the expenditure by State, local, laboratories are owned, operated, or in Stat. 107; 23 U.S.C. 109, 114, and 315; 49 and tribal governments, in the aggregate, any way controlled by Indian tribes, the CFR 1.48(b). or by the private sector, of $128.1 FHWA believes that it will not have any 2. In § 637.209, add paragraph (a)(5) to million or more in any one year (2 direct effects on one or more Indian read as follows: U.S.C. 1532). tribes; will not impose substantial direct § 637.209 Laboratory and sampling and compliance costs on Indian tribal Paperwork Reduction Act testing personnel qualifications governments; and will not preempt Under the Paperwork Reduction Act tribal law. Therefore, a tribal summary (a) * * * of 1995 (PRA) (44 U.S.C. 3501, et seq.), impact statement is not required. (5) After [insert date two years after Federal agencies must obtain approval the date of publication of the final rule from the Office of Management and National Environmental Policy Act in the Federal Register], laboratories Budget (OMB) for each collection of The agency has analyzed this that perform crash testing for acceptance information they conduct, sponsor, or proposed action for the purpose of the of roadside hardware by the FHWA require through regulations. The FHWA National Environmental Policy Act of shall be accredited by a laboratory has determined that this proposed 1969 (42 U.S.C. 4321 et seq.) and has accreditation body that is recognized by action does not contain a collection of determined that it would not have any the National Laboratory Accreditation information requirement for the effect on the quality of the environment. Cooperation (NACLA), is a signatory to purposes of the PRA. the Asia Pacific Laboratory Technical Standards Accreditation Cooperation (APLAC) Executive Order 12988 (Civil Justice The National Technology Transfer Mutual Recognition Arrangement Reform) and Advancement Act (NTTAA) (15 (MRA), is a signatory to the This proposed action meets U.S.C. 272 note) directs agencies to use International Laboratory Accreditation applicable standards in Sections 3(a) voluntary consensus standards in their Cooperation (ILAC) Mutual Recognition and 3(b)(2) of Executive Order 12988, regulatory activities unless the agency Arrangement (MRA), or another Civil Justice Reform, to minimize provides Congress, through the Office of accreditation body acceptable to FHWA. litigation, to eliminate ambiguity, and to Management and Budget, with an * * * * * reduce burden. explanation of why using these [FR Doc. E7–6533 Filed 4–6–07; 8:45 am] standards would be inconsistent with BILLING CODE 4910–22–P Executive Order 13045 (Protection of applicable law or otherwise impractical. Children) Voluntary consensus standards are The FHWA has analyzed this technical standards (e.g., specifications proposed action under Executive Order of materials, performance, design, or DEPARTMENT OF THE INTERIOR 13045, Protection of Children from operation; test methods; sampling Environmental Health Risks and Safety procedures; and related management Office of Surface Mining Reclamation Risks. This is not an economically systems practices) that are developed or and Enforcement significant proposed action and does not adopted by voluntary consensus concern an environmental risk to health standards bodies. This proposed rule 30 CFR Part 946 or safety that may disproportionately uses voluntary consensus standards. affect children. Regulation Identification Number [VA–123–FOR] Executive Order 12630 (Taking of A regulation identification number Virginia Regulatory Program Private Property) (RIN) is assigned to each regulatory This proposed action would not affect action listed in the Unified Agenda of AGENCY: Office of Surface Mining a taking of private property or otherwise Federal Regulations. The Regulatory Reclamation and Enforcement (OSM), have taking implications under Information Service Center publishes Interior.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17450 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

ACTION: Proposed rule; public comment Telephone: (276) 523–4303. E-mail: other laws referenced at subsection period and opportunity for public [email protected]. 510(c). Prior to being amended by the hearing on proposed amendment. Mr. Leslie S. Vincent, Virginia Tax Relief and Health Care Act of 2006, Division of Mined Land Reclamation, subsection 510(e) provided as follows: SUMMARY: We are announcing receipt of P. O. Drawer 900, Big Stone Gap, (e) After the date of enactment of this a proposed amendment to the Virginia Virginia 24219, Telephone: (276) 523– regulatory program under the Surface subsection, the prohibition of subsection (c) 8100. E-mail: [email protected]. shall not apply to a permit application due Mining Control and Reclamation Act of FOR FURTHER INFORMATION CONTACT: Mr. to any violation resulting from an 1977 (SMCRA or the Act). Virginia is Tim Dieringer, Director, Knoxville Field unanticipated event or condition at a surface proposing to revise its remining Office; Telephone: (276) 523–4303. E- coal mining operation on lands eligible for regulations to make three provisions remining under a permit held by the person mail: [email protected]. permanent by deleting a termination making such application. As used in this date of September 30, 2004, from the SUPPLEMENTARY INFORMATION: subsection, the term ‘‘violation’’ has the same I. Background on the Virginia Program meaning as such term has under subsection regulations. The amendments are II. Description of the Proposed Amendment intended to render the State’s (c). The authority of this subsection and III. Public Comment Procedures section 515(b)(20)(B) shall terminate on regulations consistent with recent IV. Procedural Determinations September 30, 2004. amendments to SMCRA. I. Background on the Virginia Program The effect of the deletion of the DATES: We will accept written comments on this amendment until 4 Section 503(a) of the Act permits a termination date in the quoted p.m. (local time), on May 9, 2007. If State to assume primacy for the paragraph above (the entire last requested, we will hold a public hearing regulation of surface coal mining and sentence was deleted) is twofold: (1) To on the amendment on May 4, 2007. We reclamation operations on non-Federal make permanent the authority at will accept requests to speak at a and non-Indian lands within its borders subsection 510(e) of SMCRA to approve hearing until 4 p.m. (local time), on by demonstrating that its program a permit application for surface coal April 24, 2007. includes, among other things, ‘‘... a mining and reclamation notwithstanding the existence of a ADDRESSES: You may submit comments, State law which provides for the violation resulting from an identified by VA–123–FOR, by any of regulation of surface coal mining and unanticipated event or condition at the the following methods: reclamation operations in accordance • E-mail: [email protected]. with the requirements of the Act . . .; site, and (2) to make permanent the two- Include VA–123–FOR in the subject line and rules and regulations consistent year revegetation responsibility period of the message. with regulations issued by the Secretary for lands eligible for remining at • Mail/Hand Delivery: Mr. Tim pursuant to the Act.’’ See 30 U.S.C. subsection 515(b)(20)(B) of SMCRA. Dieringer, Director, Knoxville Field 1253(a)(1) and (7). On the basis of these In the proposed program amendments Office, Office of Surface Mining criteria, the Secretary of the Interior identified below, Virginia is deleting the Reclamation and Enforcement, 1941 conditionally approved the Virginia termination date of September 30, 2004, Neeley Road, Suite 201, Compartment program on December 15, 1981. You can from three of its program regulations 116, Big Stone Gap, Virginia 24219. find background information on the concerning remining. • Federal eRulemaking Portal: http:// Virginia program, including the 1. 4 VAC 25–130–785.25. Lands eligible www.regulations.gov. Follow the Secretary’s findings, the disposition of for remining instructions for submitting comments. comments, and conditions of approval This provision is proposed to be Instructions: All submissions received of the Virginia program in the December amended by deleting subsection (c) in must include the agency docket number 15, 1981, Federal Register (46 FR its entirety. Currently, 4 VAC 25–130– for this rulemaking. For detailed 61088). You can also find later actions 785.25 provides as follows: instructions on submitting comments concerning Virginia’s program and and additional information on the program amendments at 30 CFR 946.12, (a) This section contains permitting rulemaking process, see the ‘‘Public 946.13, and 946.15. requirements to implement 4VAC25–130– Comment Procedures’’ heading in the 773.15(b)(4). Any person who submits a permit application to conduct a surface coal SUPPLEMENTARY INFORMATION section of II. Description of the Proposed Amendment mining operation on lands eligible for this document. You may also request to remining must comply with this section. speak at a public hearing by any of the By letter dated February 13, 2007 (b) Any application for a permit under this methods listed above or by contacting (Administrative Record Number VA– section shall be made according to all the individual listed under FOR FURTHER 1058), the Virginia Department of requirements of this subchapter applicable to INFORMATION CONTACT. Mines, Minerals and Energy (DMME) surface coal mining and reclamation Docket: You may review copies of the submitted an amendment to the Virginia operations. In addition, the application shall: Virginia program, this amendment, a program. In its letter, the DMME stated (1) To the extent not otherwise addressed listing of any scheduled public hearings, that the program amendment revises in the permit application, identify potential environmental and safety problems related to and all written comments received in Virginia Coal Surface Mining prior mining activity at the site and that response to this document at the Reclamation Regulations to reflect the could be reasonably anticipated to occur. addresses listed below during normal deletion from SMCRA at section 510(e) This identification shall be based on a due business hours, Monday through Friday, of the termination date of section 510(e) diligence investigation which shall include excluding holidays. You may receive of September 30, 2004. visual observations at the site, a record one free copy of the amendment by Section 510 of SMCRA concerns review of past mining at the site, and contacting OSM’s Big Stone Gap Area permit approval or denial. Subsection environmental sampling tailored to current Office. 510(e) provides an exception to the site conditions. Mr. Tim Dieringer, Director, Knoxville prohibition of subsection (c) , which (2) With regard to potential environmental and safety problems referred in subdivision Field Office, Office of Surface Mining prohibits the issuance of a permit where (b)(1) of this section, describe the mitigative Reclamation and Enforcement, 1941 any surface coal mining operation measures that will be taken to ensure that the Neeley Road, Suite 201, Compartment owned or controlled by an applicant is applicable reclamation requirements of this 116, Big Stone Gap, Virginia 24219, currently in violation of SMCRA or such chapter can be met.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17451

(c) The requirements of this section shall deletion of that same termination date at FOR FURTHER INFORMATION CONTACT by 4 not apply after September 30, 2004. subsection 510(e) of SMCRA. p.m. (local time), on April 24, 2007. If In its submittal letter, the DMME As amended, 4VAC25–130– you are disabled and need special stated that the deletion of subsection (c) 816.116(c)(2)(ii) and 817.116(c)(2)(ii) accommodations to attend a public containing the termination date of provide as follows: hearing, contact the person listed under September 30, 2004, is intended to (ii) Two full years for lands eligible for FOR FURTHER INFORMATION CONTACT. We reflect the deletion of that same remining. To the extent that the success will arrange the location and time of the termination date at subsection 510(e) of standards are established by subdivision hearing with those persons requesting SMCRA. (b)(5) of this section, the lands shall equal or the hearing. If no one requests an exceed the standards during the growing opportunity to speak, we will not hold 2. 4VAC25–130–816.116 and 817.116. season of the last year of the responsibility a hearing. Revegetation; Standards for Success period. To assist the transcriber and ensure an These provisions are proposed to be III. Public Comment Procedures accurate record, we request, if possible, amended by deleting the phrase that each person who speaks at the Under the provisions of 30 CFR public hearing provide us with a written ‘‘included in permits issued before 732.17(h), we are seeking your September 30, 2004, or any renewals copy of his or her comments. The public comments on whether the amendment hearing will continue on the specified thereof’’ at the end of the first sentence satisfies the applicable program in subparts (c)(2)(ii). Currently, 4 VAC date until everyone scheduled to speak approval criteria of 30 CFR 732.15. If we has been given an opportunity to be 25–130–816.116(c) and 817.116(c) approve the amendment, it will become provide as follows: heard. If you are in the audience and part of the Virginia program. have not been scheduled to speak and (c) (1) The period of extended Written Comments wish to do so, you will be allowed to responsibility for successful revegetation speak after those who have been shall begin after the last year of augmented Send your written or electronic scheduled. We will end the hearing after seeding, fertilizing, irrigation, or other work, comments to OSM at the address given everyone scheduled to speak and others excluding husbandry practices that are above. Your written comments should approved by the division in accordance with present in the audience who wish to subdivision (c)(3) of this section. be specific, pertain only to the issues speak, have been heard. proposed in this rulemaking, and (2) The period of responsibility shall Public Meeting continue for a period of not less than: include explanations in support of your (i) Five full years except as provided in recommendations. We may not consider If only one person requests an subdivision (c)(2)(ii) of this section. The or respond to your comments when opportunity to speak, we may hold a vegetation parameters identified in developing the final rule if they are public meeting rather than a public subsection (b) of this section for grazing land received after the close of the comment hearing. If you wish to meet with us to or pastureland and cropland shall equal or period (see DATES). We will make every discuss the amendment, please request exceed the approved success standard during attempt to log all comments into the a meeting by contacting the person the growing seasons of any two years of the listed under FOR FURTHER INFORMATION responsibility period, except the first year. administrative record, but comments Areas approved for the other uses identified delivered to an address other than the CONTACT. All such meetings will be in subsection (b) of this section shall equal Big Stone Gap Area Office may not be open to the public and, if possible, we or exceed the applicable success standard logged in. will post notices of meetings at the during the growing season of the last year of locations listed under ADDRESSES. We the responsibility period. Electronic Comments will make a written summary of each (ii) Two full years for lands eligible for Please submit Internet comments as meeting a part of the Administrative remining included in permits issued before an E-mail or Word file avoiding the use Record. September 30, 2004, or any renewals thereof. of special characters and any form of IV. Procedural Determinations To the extent that the success standards are encryption. Please also include Attn: established by subdivision (b)(5) of this Executive Order 12630—Takings section, the lands shall equal or exceed the SATS NO. VA–123–FOR and your name standards during the growing season of the and return address in your Internet This rule does not have takings last year of the responsibility period. message. If you do not receive a implications. This determination is (3) The division may approve selective confirmation that we have received your based on the analysis performed for the husbandry practices, excluding augmented Internet message, contact the Big Stone counterpart Federal regulation. seeding, fertilization, or irrigation, without Gap Area office at (276) 523–4303. extending the period of responsibility for Executive Order 12866—Regulatory revegetation success and bond liability, if Availability of Comments Planning and Review such practices can be expected to continue as Before including your address, phone This rule is exempt from review by part of the postmining land use or if number, e-mail address, or other discontinuance of the practices after the the Office of Management and Budget liability period expires will not reduce the personal identifying information in your under Executive Order 12866. probability of permanent revegetation comment, you should be aware that your entire comment—including your Executive Order 12988—Civil Justice success. Approved practices shall be normal Reform conservation practices within the region for personal identifying information—may unmined lands having land uses similar to be made publicly available at any time. The Department of the Interior has the approved postmining land use of the While you can ask us in your comment conducted the reviews required by disturbed area, including such practices as to withhold your personal identifying section 3 of Executive Order 12988 and disease, pest, and vermin control; and any information from public review, we has determined that this rule meets the pruning, reseeding and/or transplanting cannot guarantee that we will be able to applicable standards of subsections (a) specifically necessitated by such actions. do so. and (b) of that section. However, these In its submittal letter, the DMME standards are not applicable to the stated that the deletion of the September Public Hearing actual language of State regulatory 30, 2004, termination date at subparts If you wish to speak at the public programs and program amendments (c)(2)(ii) is intended to reflect the hearing, contact the person listed under because each program is drafted and

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17452 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

promulgated by a specific State, not by expected to have a significant adverse tribal governments or the private sector OSM. Under sections 503 and 505 of effect on the supply, distribution, or use of $100 million or more in any given SMCRA (30 U.S.C. 1253 and 1255) and of energy, a Statement of Energy Effects year. This determination is based upon the Federal regulations at 30 CFR is not required. the analysis performed under various 730.11, 732.15, and 732.17(h)(10), laws and executive orders for the National Environmental Policy Act decisions on proposed State regulatory counterpart Federal regulations. programs and program amendments This rule does not require an List of Subjects in 30 CFR Part 948 submitted by the States must be based environmental impact statement solely on a determination of whether the because section 702(d) of SMCRA (30 Intergovernmental relations, Surface submittal is consistent with SMCRA and U.S.C. 1292(d)) provides that agency mining, Underground mining. its implementing Federal regulations decisions on proposed State regulatory Dated: March 2, 2007. and whether the other requirements of program provisions do not constitute H. Vann Weaver, 30 CFR Parts 730, 731, and 732 have major Federal actions within the Acting Regional Director, Appalachian been met. meaning of section 102(2)(C) of the Region. National Environmental Policy Act (42 Executive Order 13132—Federalism [FR Doc. E7–6577 Filed 4–6–07; 8:45 am] U.S.C. 4332(2)(C)). This rule does not have Federalism BILLING CODE 4310–05–P implications. SMCRA delineates the Paperwork Reduction Act roles of the Federal and State This rule does not contain DEPARTMENT OF THE INTERIOR governments with regard to the information collection requirements that regulation of surface coal mining and require approval by OMB under the Office of Surface Mining Reclamation reclamation operations. One of the Paperwork Reduction Act (44 U.S.C. and Enforcement purposes of SMCRA is to ‘‘establish a 3507 et seq.). nationwide program to protect society 30 CFR Part 946 and the environment from the adverse Regulatory Flexibility Act effects of surface coal mining The Department of the Interior [VA–124–FOR] certifies that this rule will not have a operations.’’ Section 503(a)(1) of Virginia Regulatory Program SMCRA requires that State laws significant economic impact on a regulating surface coal mining and substantial number of small entities AGENCY: Office of Surface Mining reclamation operations be ‘‘in under the Regulatory Flexibility Act (5 Reclamation and Enforcement (OSM), accordance with’’ the requirements of U.S.C. 601 et seq.). The State submittal, Interior. SMCRA, and section 503(a)(7) requires which is the subject of this rule, is based ACTION: Proposed rule; public comment that State programs contain rules and upon counterpart Federal regulations for period and opportunity for public regulations ‘‘consistent with’’ which an economic analysis was hearing on proposed amendments. regulations issued by the Secretary prepared and certification made that pursuant to SMCRA. such regulations would not have a SUMMARY: We are announcing receipt of significant economic effect upon a a proposed amendment to the Virginia Executive Order 13175—Consultation substantial number of small entities. In regulatory program under the Surface and Coordination With Indian Tribal making the determination as to whether Mining Control and Reclamation Act of Governments this rule would have a significant 1977 (SMCRA or the Act). The program In accordance with Executive Order economic impact, the Department relied amendment revises the Virginia Coal 13175, we have evaluated the potential upon the data and assumptions for the Surface Mining Reclamation effects of this rule on Federally- counterpart Federal regulations. Regulations concerning the distribution recognized Indian tribes and have of topsoil and subsoil materials, determined that the rule does not have Small Business Regulatory Enforcement revegetation standards for success, and substantial direct effects on one or more Fairness Act to allow approval of natural stream Indian tribes, on the relationship This rule is not a major rule under 5 restoration channel design, as between the Federal Government and U.S.C. 804(2), the Small Business developed in consultation with the Indian tribes, or on the distribution of Regulatory Enforcement Fairness Act. Army Corps of Engineers. power and responsibilities between the This rule: (a) Does not have an annual DATES: We will accept written Federal Government and Indian tribes. effect on the economy of $100 million; comments on this amendment until 4 The basis for this determination is our (b) Will not cause a major increase in p.m. (local time), on May 9, 2007. If decision is on a State regulatory costs or prices for consumers, requested, we will hold a public hearing program and does not involve a Federal individual industries, Federal, State, or on the amendment on May 4, 2007. We regulation involving Indian lands. local government agencies, or will accept requests to speak at a geographic regions; and (c) Does not hearing until 4 p.m. (local time), on Executive Order 13211—Regulations have significant adverse effects on April 24, 2007. That Significantly Affect The Supply, competition, employment, investment, ADDRESSES: You may submit comments, Distribution, Or Use Of Energy productivity, innovation, or the ability identified by VA–124–FOR, by any of On May 18, 2001, the President issued of U.S.-based enterprises to compete the following methods: Executive Order 13211 which requires with foreign-based enterprises. This • E-mail: [email protected]. agencies to prepare a Statement of determination is based upon the Include VA–124–FOR in the subject line Energy Effects for a rule that is (1) analysis performed under various laws of the message. Considered significant under Executive and executive orders for the counterpart • Mail/Hand Delivery: Mr. Tim Order 12866, and (2) likely to have a Federal regulations. Dieringer, Director, Knoxville Field significant adverse effect on the supply, Office, Office of Surface Mining distribution, or use of energy. Because Unfunded Mandates Reclamation and Enforcement, 1941 this rule is exempt from review under This rule will not impose an Neeley Road, Suite 201, Compartment Executive Order 12866 and is not unfunded mandate on State, local, or 116, Big Stone Gap, Virginia 24219.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17453

• Federal eRulemaking Portal: http:// find background information on the section shall be redistributed in a www.regulations.gov. Follow the Virginia program, including the manner that— instructions for submitting comments. Secretary’s findings, the disposition of (i) Achieves an approximately uniform, Instructions: All submissions received comments, and conditions of approval stable thickness when consistent with the approved postmining land use, must include the agency docket number of the Virginia program in the December contours, and surface-water drainage for this rulemaking. For detailed 15, 1981, Federal Register (46 FR systems. Soil thickness may also be instructions on submitting comments 61088). You can also find later actions varied to the extent such variations help and additional information on the concerning Virginia’s program and meet the specific revegetation goals rulemaking process, see the ‘‘Public program amendments at 30 CFR 946.12, identified in the permit; Comment Procedures’’ heading in the 946.13, and 946.15. (ii) Prevents excess compaction of the SUPPLEMENTARY INFORMATION section of materials; and II. Description of the Proposed this document. You may also request to (iii) Protects the materials from wind and Amendment speak at a public hearing by any of the water erosion before and after seeding and planting. methods listed above or by contacting By letter dated February 13, 2007 the individual listed under FOR FURTHER (Administrative Record Number VA– In its submittal letter, the DMME INFORMATION CONTACT. 1059), the Virginia Department of stated that these changes in the Virginia Docket: You may review copies of the Mines, Minerals and Energy (DMME) rules will ensure they are consistent Virginia program, this amendment, a submitted an amendment to the Virginia with the corresponding and applicable listing of any scheduled public hearings, program. In its letter, the DMME stated Federal rules at 30 CFR Parts 816 and and all written comments received in that the program amendment reflects 817; see Federal Register Vol. 71, No. response to this document at the revisions of the Virginia rules to be 168, pages 51684 through 51706, which addresses listed below during normal consistent with the Federal rules to became final on August 30, 2006. In that business hours, Monday through Friday, allow approval of natural stream Federal Register notice, OSM finalized excluding holidays. You may receive restoration channel design, as changes to its regulations to improve the one free copy of the amendment by developed in consultation with the quality and diversity of revegetation in contacting OSM’s Big Stone Gap Area Army Corp of Engineers. the reclamation of coal mined lands. Office. Specifically, the following The revised Federal provisions govern Mr. Tim Dieringer, Director, Knoxville amendments are proposed: topsoil redistribution and revegetation success standards. Field Office, Office of Surface Mining 1. 4VAC 25–130–816.22 and 817.22 Reclamation and Enforcement, 1941 Topsoil and Subsoil 2. 4VAC25–130–816.43 and 817.43 Neeley Road, Suite 201, Compartment Diversions 116, Big Stone Gap, Virginia 24219, Subsections (d), concerning Telephone: (276) 523–4303. E-mail: redistribution of topsoil and subsoil Subsections (a), concerning general [email protected]. materials are proposed to be revised. requirements, are proposed to be Mr. Leslie S. Vincent, Virginia Subsections (d) currently provide as amended by revising subparts (a)(4) and Division of Mined Land Reclamation, follows: deleting subparts (a)(5) in their entirety. P.O. Drawer 900, Big Stone Gap, (d) Redistribution. Currently, subparts (a)(4) and (a)(5) Virginia 24219, Telephone: (276) 523– (1) Topsoil materials removed under provide as follow: 8100. E-mail: [email protected]. Paragraph (a) of this section shall be (a) General requirements. redistributed in a manner that— FOR FURTHER INFORMATION CONTACT: Mr. (i) Achieves an approximately uniform, * * * * * Tim Dieringer, Director, Knoxville Field stable thickness consistent with the (4) Diversions which convey water Office; Telephone: (276) 523–4303. E- approved postmining land use, contours, continuously or frequently shall be lined mail: [email protected]. and surface-water drainage systems; with rock rip rap to at least the normal flow depth, including an allowance for freeboard. SUPPLEMENTARY INFORMATION: (ii) Prevents excess compaction of the materials; and Diversions constructed in competent bedrock I. Background on the Virginia Program (iii) Protects the materials from wind and and portions of channels above normal flow II. Description of the Proposed Amendment water erosion before and after seeding depth shall comply with the velocity III. Public Comment Procedures and planting. limitations of Paragraph (5) below. IV. Procedural Determinations (5) The maximum permissible velocity for Subparts (d)(1) are proposed to be the following methods of stabilization are: I. Background on the Virginia Program amended by inserting the words ‘‘and Vegetated channel constructed in soil: 3.5 Section 503(a) of the Act permits a substitutes’’ between the word feet per second; State to assume primacy for the ‘‘materials’’ and the word ‘‘removed.’’ Vegetated channel with jute netting: 5.0 feet regulation of surface coal mining and Also, the phrase ‘‘and (b)’’ is added per second; reclamation operations on non-Federal immediately after the phrase ‘‘under Rock rip rap lined channel: 16.0 feet per and non-Indian lands within its borders subpart (a).’’ Subparts (d)(1)(i) are second; by demonstrating that its program amended by adding the word ‘‘when’’ Channel constructed in competent bedrock: No limit. includes, among other things, ‘‘*** a between the word ‘‘thickness’’ and the State law which provides for the word ‘‘consistent.’’ Also, the following * * * * * regulation of surface coal mining and sentence is added at the end of subparts Subparts (a)(4) are amended by reclamation operations in accordance (d)(1)(i): ‘‘Soil thickness may also be deleting the second sentence and by with the requirements of the Act* * *; varied to the extent such variations help revising the first sentence. In the first and rules and regulations consistent meet the specific revegetation goals sentence, all the words following the with regulations issued by the Secretary identified in the permit.’’ phrase ‘‘continuously or frequently shall pursuant to the Act.’’ See 30 U.S.C. As amended, 4VAC 25–130–816.22(d) be’’ are deleted and are replaced by the 1253(a)(1) and (7). On the basis of these and 817.22(d) provide as follows: words ‘‘designed by a qualified criteria, the Secretary of the Interior (d) Redistribution. registered professional engineer and conditionally approved the Virginia (1) Topsoil materials and substitutes removed constructed to ensure stability and program on December 15, 1981. You can under Paragraphs (a) and (b) of this compliance with the standards of this

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17454 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

Part and any other criteria set by the stocking and vegetative ground cover. Such forest products, success of vegetation shall be Division.’’ parameters are described as follows: determined on the basis of tree and shrub As amended, 4VAC 25–130– * * * * * stocking and vegetative ground cover. Such 816.43(a)(4) and 817.43(a)(4) provide as (v) Where woody plants are used for parameters are described as follows: follows: wildlife management, recreation, shelter * * * * * belts, or forest uses other than commercial (v) Where woody plants are used for (4) Diversions which convey water forest land: wildlife management, recreation, shelter continuously or frequently shall be designed (A) The stocking of trees, shrubs, half- belts, or forest uses other than commercial by a qualified registered professional shrubs and the ground cover established on forest land: engineer and constructed to ensure stability the revegetated area shall approximate the (A) The stocking of trees, shrubs, half- and compliance with the standards of this stocking and ground cover on the shrubs and the ground cover established on Part and any other criteria set by the surrounding unmined area and shall utilize the revegetated area shall approximate the Division. local and regional recommendations stocking and ground cover on the In its submittal letter, the DMME regarding species composition, spacing and surrounding unmined area and shall utilize planting arrangement; local and regional recommendations stated that these changes to the Virginia (B) Areas planted only in herbaceous rules will allow the approval of natural regarding species composition, spacing and species shall sustain a vegetative ground planting arrangement; stream restoration channel design cover of 90%; (B) Areas planted only in herbaceous approved by the U.S. Army Corps of (C) Areas planted with a mixture of species shall sustain a vegetative ground Engineers and will ensure they are herbaceous and woody species shall sustain cover of 90%; consistent with the corresponding and a herbaceous vegetative ground cover of 90% (C) Areas planted with a mixture of applicable Federal rules at 30 CFR Parts and an average of 400 woody plants per acre. herbaceous and woody species shall sustain 816 and 817; see Federal Register Vol. At least 40 of the woody plants for each acre a herbaceous vegetative ground cover of 70% shall be wildlife food-producing shrubs 71, No. 168, pages 51684 through 51706, and an average of 400 woody plants per acre. located suitably for wildlife enhancement, At least 40 of the woody plants for each acre which became final on August 30, 2006. which may be distributed or clustered on the In that Federal Register notice, OSM shall be wildlife food-producing shrubs area. located suitably for wildlife enhancement, finalized changes to its regulations to * * * * * which may be distributed or clustered on the improve the quality and diversity of Subparts (a)(2) are amended by area. revegetation in the reclamation of coal * * * * * mined lands. The Federal provisions deleting the existing ‘‘90%’’ success govern topsoil redistribution and standard and replacing that standard In its submittal letter, the DMME revegetation success standards. with a ‘‘70%’’ success standard. In stated that these changes in the Virginia addition, the following phrase is added rules will ensure they are consistent 3. 4VAC25–130–816.116 and 817.116 to the end of the first sentence: ‘‘except with the corresponding and applicable Revegetation; Standards for Success as provided by (b) of this section.’’ Also, Federal rules at 30 CFR Parts 816 and Subsections (a), concerning ground the following parenthetical sentence is 817; see Federal Register Vol. 71, No. cover, production, or stocking, are deleted: ‘‘The sampling techniques for 168, pages 51684 through 51706, which proposed to be amended by revising measuring success shall use a 90% became final on August 30, 2006. In that subpart (a)(2). Subsections (b), statistical confidence interval (i.e., one- Federal Register notice, OSM finalized concerning standards for success, are sided test with a 0.10 alpha error.’’ changes to its regulations to improve the proposed to be amended by revising Subparts (b)(3)(v)(C) are amended by quality and diversity of revegetation in subparts (b)(3)(v)(C). Currently, subparts deleting the ‘‘90%’’ success standard the reclamation of coal mined lands. (a)(2) and (b)(3)(v)(C) provide as follows: and replacing that standard with a The revisions govern topsoil ‘‘70%’’ success standard. (a) Success of revegetation shall be judged redistribution and revegetation success As amended, 4VAC 25–130–816/ standards. on the effectiveness of the vegetation for the 817.116(a)(2) and (b)(3)(v)(C) provide as approved postmining land use, the extent of III. Public Comment Procedures cover compared to the cover occurring in follows: natural vegetation of the area, and the general (a) Success of revegetation shall be judged Under the provisions of 30 CFR requirements of 4VAC25–130–816.111. on the effectiveness of the vegetation for the 732.17(h), we are seeking your (1) Statistically valid sampling techniques approved postmining land use, the extent of comments on whether the amendment shall be used for measuring success. cover compared to the cover occurring in satisfies the applicable program (2) Ground cover, production, or stocking natural vegetation of the area, and the general shall be considered equal to the approved requirements of 4VAC25–130–816.111. approval criteria of 30 CFR 732.15. If we success standard when they are not less than (1) Statistically valid sampling techniques approve the amendment, it will become 90% of the success standard. The sampling shall be used for measuring success. part of the Virginia program. techniques for measuring success shall use a (2) Ground cover, production, or stocking Written Comments 90% statistical confidence interval (i.e., one- shall be considered equal to the approved sided test with a 0.10 alpha error). Sampling success standard when they are not less than Send your written or electronic techniques for measuring woody plant 70% of the success standard, except as comments to OSM at the address given stocking, ground cover, and production shall provided by (b) of this section. Sampling above. Your written comments should be in accordance with techniques approved techniques for measuring woody plant by the division. stocking, ground cover, and production shall be specific, pertain only to the issues be in accordance with techniques approved proposed in this rulemaking, and * * * * * include explanations in support of your (b) Standards for success shall be applied by the division. in accordance with the approved postmining * * * * * recommendations. We may not consider land use and, at a minimum, the following (b) Standards for success shall be applied or respond to your comments when conditions: in accordance with the approved postmining developing the final rule if they are * * * * * land use and, at a minimum, the following received after the close of the comment (3) For areas to be developed for fish and conditions: period (see DATES). We will make every wildlife habitat, recreation, shelter belts, or * * * * * attempt to log all comments into the forest products, success of vegetation shall be (3) For areas to be developed for fish and administrative record, but comments determined on the basis of tree and shrub wildlife habitat, recreation, shelter belts, or delivered to an address other than the

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17455

Big Stone Gap Area Office may not be open to the public and, if possible, we Executive Order 13175—Consultation logged in. will post notices of meetings at the and Coordination With Indian Tribal locations listed under ADDRESSES. We Governments Electronic Comments will make a written summary of each In accordance with Executive Order Please submit Internet comments as meeting a part of the Administrative 13175, we have evaluated the potential an E-mail or Word file avoiding the use Record. effects of this rule on Federally- of special characters and any form of IV. Procedural Determinations recognized Indian tribes and have encryption. Please also include Attn: determined that the rule does not have SATS NO. VA–124–FOR and your name Executive Order 12630—Takings substantial direct effects on one or more and return address in your Internet Indian tribes, on the relationship message. If you do not receive a This rule does not have takings implications. This determination is between the Federal Government and confirmation that we have received your Indian tribes, or on the distribution of Internet message, contact the Big Stone based on the analysis performed for the counterpart Federal regulation. power and responsibilities between the Gap Area office at (276) 523–4303. Federal Government and Indian tribes. Availability of Comments Executive Order 12866—Regulatory The basis for this determination is our Planning and Review decision is on a State regulatory Before including your address, phone program and does not involve a Federal number, e-mail address, or other This rule is exempt from review by regulation involving Indian lands. personal identifying information in your the Office of Management and Budget comment, you should be aware that under Executive Order 12866. Executive Order 13211—Regulations your entire comment—including your Executive Order 12988—Civil Justice That Significantly Affect the Supply, personal identifying information—may Reform Distribution, or Use of Energy be made publicly available at any time. On May 18, 2001, the President issued While you can ask us in your comment The Department of the Interior has conducted the reviews required by Executive Order 13211 which requires to withhold your personal identifying agencies to prepare a Statement of information from public review, we section 3 of Executive Order 12988 and has determined that this rule meets the Energy Effects for a rule that is (1) cannot guarantee that we will be able to Considered significant under Executive do so. applicable standards of subsections (a) and (b) of that section. However, these Order 12866, and (2) likely to have a Public Hearing standards are not applicable to the significant adverse effect on the supply, distribution, or use of energy. Because If you wish to speak at the public actual language of State regulatory programs and program amendments this rule is exempt from review under hearing, contact the person listed under Executive Order 12866 and is not FOR FURTHER INFORMATION CONTACT by 4 because each program is drafted and promulgated by a specific State, not by expected to have a significant adverse p.m. (local time), on April 24, 2007. If effect on the supply, distribution, or use OSM. Under sections 503 and 505 of you are disabled and need special of energy, a Statement of Energy Effects SMCRA (30 U.S.C. 1253 and 1255) and accommodations to attend a public is not required. hearing, contact the person listed under the Federal regulations at 30 CFR FOR FURTHER INFORMATION CONTACT. We 730.11, 732.15, and 732.17(h)(10), National Environmental Policy Act will arrange the location and time of the decisions on proposed State regulatory This rule does not require an hearing with those persons requesting programs and program amendments environmental impact statement the hearing. If no one requests an submitted by the States must be based because section 702(d) of SMCRA (30 opportunity to speak, we will not hold solely on a determination of whether the U.S.C. 1292(d)) provides that agency a hearing. submittal is consistent with SMCRA and decisions on proposed State regulatory To assist the transcriber and ensure an its implementing Federal regulations program provisions do not constitute accurate record, we request, if possible, and whether the other requirements of major Federal actions within the that each person who speaks at the 30 CFR Parts 730, 731, and 732 have meaning of section 102(2)(C) of the public hearing provide us with a written been met. National Environmental Policy Act (42 copy of his or her comments. The public Executive Order 13132—Federalism U.S.C. 4332(2)(C)). hearing will continue on the specified date until everyone scheduled to speak This rule does not have Federalism Paperwork Reduction Act has been given an opportunity to be implications. SMCRA delineates the This rule does not contain heard. If you are in the audience and roles of the Federal and State information collection requirements that have not been scheduled to speak and governments with regard to the require approval by OMB under the wish to do so, you will be allowed to regulation of surface coal mining and Paperwork Reduction Act (44 U.S.C. speak after those who have been reclamation operations. One of the 3507 et seq.). scheduled. We will end the hearing after purposes of SMCRA is to ‘‘establish a Regulatory Flexibility Act everyone scheduled to speak and others nationwide program to protect society present in the audience who wish to and the environment from the adverse The Department of the Interior speak, have been heard. effects of surface coal mining certifies that this rule will not have a operations.’’ Section 503(a)(1) of significant economic impact on a Public Meeting SMCRA requires that State laws substantial number of small entities If only one person requests an regulating surface coal mining and under the Regulatory Flexibility Act (5 opportunity to speak, we may hold a reclamation operations be ‘‘in U.S.C. 601 et seq.). The State submittal, public meeting rather than a public accordance with’’ the requirements of which is the subject of this rule, is based hearing. If you wish to meet with us to SMCRA, and section 503(a)(7) requires upon counterpart Federal regulations for discuss the amendment, please request that State programs contain rules and which an economic analysis was a meeting by contacting the person regulations ‘‘consistent with’’ prepared and certification made that listed under FOR FURTHER INFORMATION regulations issued by the Secretary such regulations would not have a CONTACT. All such meetings will be pursuant to SMCRA. significant economic effect upon a

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17456 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

substantial number of small entities. In during the ‘‘Plymouth Drag Boat Race under ADDRESSES explaining why one making the determination as to whether Series’’, a series of power boat races to would be beneficial. If we determine this rule would have a significant be held on the waters of the Roanoke that one would aid this rulemaking, we economic impact, the Department relied River, Plymouth, North Carolina. These will hold one at a time and place upon the data and assumptions for the special local regulations are necessary to announced by a later notice in the counterpart Federal regulations. provide for the safety of life on Federal Register. navigable waters during the event. This Small Business Regulatory Enforcement Background and Purpose action is intended to restrict vessel Fairness Act traffic in portions of the Roanoke River The Outboard Drag Boat Association This rule is not a major rule under 5 adjacent to Plymouth, North Carolina will be sponsoring a series of seven (7) U.S.C. 804(2), the Small Business during the power boat race. power boat racing events titled the ‘‘Plymouth Drag Boat Race’’. The power Regulatory Enforcement Fairness Act. DATES: Comments and related material This rule: (a) Does not have an annual must reach the Coast Guard on or before boat races will be held on the following effect on the economy of $100 million; May 9, 2007. dates: June 24, July 22, August 11, 12, 19, September 30 and October 21, 2007. (b) Will not cause a major increase in ADDRESSES: You may mail comments costs or prices for consumers, The races will be held on the Roanoke and related material to Commander River immediately adjacent to individual industries, Federal, State, or (dpi), Fifth Coast Guard District, 431 local government agencies, or Plymouth, North Carolina. The power Crawford Street, Portsmouth, Virginia, boat races will consist of approximately geographic regions; and (c) Does not 23704–5004, hand deliver them to room have significant adverse effects on (30) vessels conducting high speed 415 at the same address between 9 a.m. straight line runs along the river and competition, employment, investment, and 2 p.m., Monday through Friday, productivity, innovation, or the ability parallel with the shoreline. A fleet of except Federal holidays, fax them to spectator vessels are expected to gather of U.S.-based enterprises to compete (757) 391–8149, or e-mail them to with foreign-based enterprises. This near the event site to view the [email protected]. The competition. To provide for the safety of determination is based upon the Inspections and Investigations Branch, analysis performed under various laws participants, spectators and other Fifth Coast Guard District, maintains the transiting vessels, the Coast Guard will and executive orders for the counterpart public docket for this rulemaking. Federal regulations. temporarily restrict vessel traffic in the Comments and material received from event area during the power boat races. Unfunded Mandates the public, as well as documents indicated in this preamble as being Discussion of Proposed Rule This rule will not impose an available in the docket, will become part unfunded mandate on State, local, or The Coast Guard proposes to establish of this docket and will be available for tribal governments or the private sector special local regulations on specified inspection or copying at the Federal of $100 million or more in any given waters of the Roanoke River, in the Building, Fifth Coast Guard District year. This determination is based upon vicinity of Plymouth, NC. The regulated between 9 a.m. and 2 p.m., Monday the analysis performed under various area includes a section of the Roanoke through Friday, except Federal holidays. laws and executive orders for the River approximately one mile long and counterpart Federal regulations. FOR FURTHER INFORMATION CONTACT: bounded in width by each shoreline, CWO Christopher Humphrey, immediately adjacent to Plymouth, NC. List of Subjects in 30 CFR Part 948 Prevention Department, Sector North The effect of this regulation would be to Intergovernmental relations, Surface Carolina, at (252) 247–4525 or via e-mail restrict general navigation in the mining, Underground mining. to [email protected]. regulated area during the drag boat races. This special local regulation will Dated: March 2, 2007. SUPPLEMENTARY INFORMATION: be enforced from 10 a.m. to 8:30 p.m. on H. Vann Weaver, Request for Comments June 24, July 22, August 11, 12, 19, Acting Regional Director, Appalachian We encourage you to participate in September 30 and October 21, 2007. Region. this rulemaking by submitting Except for persons or vessels authorized [FR Doc. E7–6578 Filed 4–6–07; 8:45 am] comments and related material. If you by the Coast Guard Patrol Commander, BILLING CODE 4310–05–P do so, please include your name and no person or vessel may enter or remain address, identify the docket number for in the regulated area. Non-participating this rulemaking [CCGD05–07–029], vessels will be allowed to transit the DEPARTMENT OF HOMELAND indicate the specific section of this regulated area between races, when the SECURITY document to which each comment Coast Guard Patrol Commander applies, and give the reason for each determines it is safe to do so. This Coast Guard comment. Please submit all comments regulation is needed to control vessel and related material in an unbound traffic during the event to enhance the 33 CFR Part 100 1 format, no larger than 8 ⁄2 by 11 inches, safety of participants, spectators and [CGD05–07–029] suitable for copying. If you would like transiting vessels. to know they reached us, please enclose Regulatory Evaluation RIN 1625–AA08 a stamped, self-addressed postcard or This proposed rule is not a Special Local Regulation for Marine envelope. We will consider all ‘‘significant regulatory action’’ under Events; Roanoke River, Plymouth, comments and material received during section 3(f) of Executive Order 12866, North Carolina the comment period. We may change this proposed rule in view of them. Regulatory Planning and Review, and AGENCY: Coast Guard, DHS. does not require an assessment of Public Meeting ACTION: Notice of proposed rulemaking. potential costs and benefits under We do not now plan to hold a public section 6(a)(3) of that Order. The Office SUMMARY: The Coast Guard proposes to meeting. But you may submit a request of Management and Budget has not establish special local regulations for a meeting by writing to the address reviewed it under that Order.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17457

We expect the economic impact of If you think that your business, Constitutionally Protected Property this proposed rule to be so minimal that organization, or governmental Rights. a full Regulatory Evaluation is jurisdiction qualifies as a small entity Civil Justice Reform unnecessary. Although this regulation and that this rule would have a will prevent traffic from transiting a significant economic impact on it, This proposed rule meets applicable portion of the Roanoke River during the please submit a comment (see standards in sections 3(a) and 3(b)(2) of event, the effect of this regulation will ADDRESSES) explaining why you think it Executive Order 12988, Civil Justice not be significant due to the limited qualifies and how and to what degree Reform, to minimize litigation, duration that the regulated area will be this rule would economically affect it. eliminate ambiguity, and reduce in effect and the extensive advance burden. Assistance for Small Entities notification that will be made to the Protection of Children maritime community via marine Under section 213(a) of the Small information broadcast, local radio Business Regulatory Enforcement We have analyzed this proposed rule stations and area newspapers so Fairness Act of 1996 (Public Law 104– under Executive Order 13045, mariners can adjust their plans 121), we want to assist small entities in Protection of Children from accordingly. Additionally, the regulated understanding this proposed rule so that Environmental Health Risks and Safety area has been narrowly tailored to they can better evaluate its effects on Risks. This rule is not an economically impose the least impact on general them and participate in the rulemaking. significant rule and would not create an navigation yet provide the level of safety If the rule would affect your small environmental risk to health or risk to deemed necessary. Vessel traffic will be business, organization, or governmental safety that might disproportionately able to transit the regulated area jurisdiction and you have questions affect children. between heats, when the Coast Guard concerning its provisions or options for Indian Tribal Governments Patrol Commander deems it is safe to do compliance, please contact U.S. Coast This proposed rule does not have so. Guard Sector North Carolina, listed at the beginning of this rule. The Coast tribal implications under Executive Small Entities Guard will not retaliate against small Order 13175, Consultation and Coordination with Indian Tribal Under the Regulatory Flexibility Act entities that question or complain about Governments, because it would not have (5 U.S.C. 601–612), we have considered this rule or any policy or action of the a substantial direct effect on one or whether this proposed rule would have Coast Guard. more Indian tribes, on the relationship a significant economic impact on a Collection of Information between the Federal Government and substantial number of small entities. Indian tribes, or on the distribution of The term ‘‘small entities’’ comprises This proposed rule would call for no power and responsibilities between the small businesses, not-for-profit new collection of information under the Federal Government and Indian tribes. organizations that are independently Paperwork Reduction Act of 1995 (44 owned and operated and are not U.S.C. 3501–3520). Energy Effects dominant in their fields, and Federalism We have analyzed this proposed rule governmental jurisdictions with A rule has implications for federalism under Executive Order 13211, Actions populations of less than 50,000. under Executive Order 13132, Concerning Regulations That The Coast Guard certifies under 5 Federalism, if it has a substantial direct Significantly Affect Energy Supply, U.S.C. 605(b) that this proposed rule effect on State or local governments and Distribution, or Use. We have would not have a significant economic would either preempt State law or determined that it is not a ‘‘significant impact on a substantial number of small impose a substantial direct cost of energy action’’ under that order because entities: owners or operators of vessels compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ intending to transit this section of the this proposed rule under that Order and under Executive Order 12866 and is not Roanoke River from 10 a.m. to 8:30 p.m. have determined that it does not have likely to have a significant adverse effect on June 24, July 22, August 11, 12, 19, implications for federalism. on the supply, distribution, or use of September 30 and October 21, 2007. energy. The Administrator of the Office This proposed rule would not have Unfunded Mandates Reform Act of Information and Regulatory Affairs significant economic impact on a The Unfunded Mandates Reform Act has not designated it as a significant substantial number of small entities for of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not the following reasons. Although the Federal agencies to assess the effects of require a Statement of Energy Effects regulated area will apply to a one mile their discretionary regulatory actions. In under Executive Order 13211. segment of the Roanoke River, traffic particular, the Act addresses actions Technical Standards may be allowed to pass through the that may result in the expenditure by a regulated area with the permission of State, local, or tribal government, in the The National Technology Transfer the Coast Guard Patrol Commander. In aggregate, or by the private sector of and Advancement Act (NTTAA) (15 the case where the Patrol Commander $100,000,000 or more in any one year. U.S.C. 272 note) directs agencies to use authorizes passage through the Though this proposed rule would not voluntary consensus standards in their regulated area during the event, vessels result in such an expenditure, we do regulatory activities unless the agency shall proceed at the minimum speed discuss the effects of this rule elsewhere provides Congress, through the Office of necessary to maintain a safe course that in this preamble. Management and Budget, with an minimizes wake near the race course. explanation of why using these The Patrol Commander will allow non- Taking of Private Property standards would be inconsistent with participating vessels to transit the area This proposed rule would not effect a applicable law or otherwise impractical. between races. Before the enforcement taking of private property or otherwise Voluntary consensus standards are period, we will issue maritime have taking implications under technical standards (e.g., specifications advisories so mariners can adjust their Executive Order 12630, Governmental of materials, performance, design, or plans accordingly. Actions and Interference with operation; test methods; sampling

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17458 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

procedures; and related management warrant, or petty officer of the Coast DATES: Comments and related material systems practices) that are developed or Guard who has been designated by the must reach the Coast Guard on or before adopted by voluntary consensus Commander, Coast Guard Sector North June 8, 2007. standards bodies. Carolina. ADDRESSES: You may mail comments This proposed rule does not use (2) Official Patrol means any vessel and related material to Commander, technical standards. Therefore, we did assigned or approved by Commander, U.S. Coast Guard Sector Baltimore, 2401 not consider the use of voluntary Coast Guard Sector North Carolina with Hawkins Point Road, Building 70, consensus standards. a commissioned, warrant, or petty Waterways Management Division, officer on board and displaying a Coast Environment Baltimore, Maryland, 21226–1791. Coast Guard ensign. Guard Sector Baltimore, Waterways We have analyzed this proposed rule (c) Special local regulations. (1) Management Division, maintains the under Commandant Instruction Except for persons or vessels authorized public docket for this rulemaking. M16475.lD and Department of by the Coast Guard Patrol Commander, Comments and material received from Homeland Security Management no person or vessel may enter or remain the public, as well as documents Directive 5100.1, which guide the Coast in the regulated area. indicated in this preamble as being Guard in complying with the National (2) The operator of any vessel in the available in the docket, will become part Environmental Policy Act of 1969 regulated area shall: of this docket and will be available for (NEPA)(42 U.S.C. 4321–4370f), and (i) Stop the vessel immediately when inspection or copying at Commander, U. have made a preliminary determination directed to do so by any Official Patrol. S. Coast Guard Sector Baltimore, 2401 that there are no factors in this case that (ii) Proceed as directed by any official Hawkins Point Road, Building 70, would limit the use of a categorical patrol. Waterways Management Division, exclusion under section 2.B.2 of the (d) Enforcement period. This section Baltimore, Maryland, 21226–1791 Instruction. Therefore, we believe that will be enforced from 10 a.m. to 8:30 between 8 a.m. and 3 p.m., Monday this rule should be categorically p.m. on June 24, July 22, August 11, 12, through Friday, except Federal holidays. excluded, under figure 2–1, paragraph 19, September 30 and October 21, 2007. FOR FURTHER INFORMATION CONTACT: (34)(h), of the instruction, an Mr. Dated: March 20, 2007. Ronald Houck, at Coast Guard Sector ‘‘Environmental Analysis Check List’’ is Larry L. Hereth, not required for this rule. Comments on Baltimore, Waterways Management Rear Admiral, U.S. Coast Guard, Commander, Division, at (410) 576–2674 or (410) this section will be considered before Fifth Coast Guard District. we make the final decision on whether 576–2693. [FR Doc. 07–1621 Filed 4–6–07; 8:45 am] this rule should be categorically SUPPLEMENTARY INFORMATION: BILLING CODE 4910–15–P excluded from further environmental Request for Comments review. We encourage you to participate in List of Subjects in 33 CFR Part 100 DEPARTMENT OF HOMELAND this rulemaking by submitting Marine safety, Navigation (water), SECURITY comments and related material. If you do so, please include your name and Reporting and recordkeeping Coast Guard requirements, Waterways. address, identify the docket number for this rulemaking (CGD05–07–010), For the reasons discussed in the 33 CFR Part 165 preamble, the Coast Guard amends 33 indicate the specific section of this CFR Part 100 as follows: [CGD05–07–010] document to which each comment applies, and give the reason for each RIN 1625–AA00 PART 100—SAFETY OF LIFE ON comment. Please submit all comments NAVIGABLE WATERS Safety Zone; Patapsco River, and related material in an unbound format, no larger than 81⁄2 by 11 inches, 1. The authority citation for Part 100 Northwest and Inner Harbors, suitable for copying. If you would like continues to read as follows: Baltimore, MD to know they reached us, please enclose Authority: 33 U.S.C. 1233. AGENCY: Coast Guard, DHS. a stamped, self-addressed postcard or 2. Add temporary § 100.35-T05–029 to ACTION: Notice of proposed rulemaking. envelope. We will consider all read as follows: comments and material received during SUMMARY: The Coast Guard proposes to the comment period. We may change § 100.35–T05–029 Roanoke River, establish a permanent safety zone upon this proposed rule in view of them. Plymouth, North Carolina. certain waters of the Patapsco River, (a) Regulated area. The regulated area Northwest Harbor, and Inner Harbor Public Meeting includes all waters of Roanoke River during the movement of the historic We do not now plan to hold a public commencing at the north river bank at sloop-of-war USS CONSTELLATION, meeting. But you may submit a request latitude 350°52′20″ N, longitude annually, on the Friday following Labor for a meeting by writing to Coast Guard 0760°44′47″ W, thence a line 180 Day. This action is necessary to provide Sector Baltimore, Waterways degrees due south across the river to the for the safety of life on navigable waters Management Division, at the address shoreline thence west along the during the tow of the vessel from its under ADDRESSES explaining why one shoreline to a position located at berth at the Inner Harbor in Baltimore, would be beneficial. If we determine latitude 35°51′43″ N, longitude Maryland, to a point on the Patapsco that one would aid this rulemaking, we 076°43′45″ W, thence 000 degrees due River near the Fort McHenry National will hold one at a time and place north across the river to the shoreline Monument and Historic Shrine in announced by a later notice in the thence east along the shoreline to the Baltimore, Maryland, and return. This Federal Register. point of origin. All coordinates action will restrict vessel traffic in reference Datum NAD 1983. portions of the Patapsco River, Background and Purpose (b) Definitions. (1) Coast Guard Patrol Northwest Harbor, and Inner Harbor Each year, the USS CONSTELLATION Commander means a commissioned, during the event. Museum conducts a ‘‘turn-around’’

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17459

ceremony involving the sloop-of-war tow participants annually, between 2 vessels not constrained by their draft, USS CONSTELLATION in Baltimore, p.m. and 7 p.m., local time, on the which are more likely to be small Maryland on the Friday following Labor Friday following Labor Day, to ensure entities, may transit around the safety Day. The annual turning of the USS the safety of participants and spectators zone. CONSTELLATION aids in the immediately prior to, during, and If you think that your business, maintenance of the historic ship by following the dead ship tow. organization, or governmental ensuring even weathering of her hull. Interference with normal port jurisdiction qualifies as a small entity Planned events include a three-hour, operations will be kept to the minimum and that this rule would have a round-trip tow of the CONSTELLATION considered necessary to ensure the significant economic impact on it, in the Port of Baltimore, with an safety of life on the navigable waters please submit a comment (see onboard salute with navy pattern immediately before, during, and after ADDRESSES) explaining why you think it cannon while the historic vessel is the scheduled event. qualifies and how and to what degree positioned off Fort McHenry National Regulatory Evaluation this rule would economically affect it. Monument and Historic Site. The historic sloop-of-war USS This proposed rule is not a Assistance for Small Entities CONSTELLATION will be towed ‘‘dead ‘‘significant regulatory action’’ under Under section 213(a) of the Small ship,’’ which means that the vessel will section 3(f) of Executive Order 12866, Business Regulatory Enforcement be underway without the benefit of Regulatory Planning and Review, and Fairness Act of 1996 (Pub. L. 104–121), mechanical or sail propulsion. The does not require an assessment of we want to assist small entities in return dead ship tow of the potential costs and benefits under understanding this proposed rule so that CONSTELLATION to its berth in the section 6(a)(3) of that Order. The Office they can better evaluate its effects on Inner Harbor is expected to occur of Management and Budget has not them and participate in the rulemaking. immediately upon execution of a tug- reviewed it under that Order. It is not If the rule would affect your small assisted turn-around of the ‘‘significant’’ under the regulatory business, organization, or governmental CONSTELLATION on the Patapsco policies and procedures of the jurisdiction and you have questions River near Fort McHenry. The Coast Department of Homeland Security concerning its provisions or options for Guard anticipates a large recreational (DHS). compliance, please contact the person boating fleet during this event. We expect the economic impact of listed under FOR FURTHER INFORMATION Operators should expect significant this proposed rule to be so minimal that CONTACT. The Coast Guard will not vessel congestion along the planned a full Regulatory Evaluation under the retaliate against small entities that route. regulatory policies and procedures of question or complain about this rule or The purpose of this rule is to promote DHS is unnecessary. any policy or action of the Coast Guard. maritime safety and protect participants Small Entities and the boating public in the Port of Collection of Information Baltimore immediately prior to, during, Under the Regulatory Flexibility Act This proposed rule would call for no and after the scheduled event. The rule (5 U.S.C. 601–612), we have considered new collection of information under the will provide for a clear transit route for whether this proposed rule would have Paperwork Reduction Act of 1995 (44 the participating vessels, and provide a a significant economic impact on a U.S.C. 3501–3520.). safety buffer around the participating substantial number of small entities. vessels while they are in transit. The The term ‘‘small entities’’ comprises Federalism rule will impact the movement of all small businesses, not-for-profit A rule has implications for federalism vessels operating upon certain waters of organizations that are independently under Executive Order 13132, the Patapsco River, Northwest Harbor owned and operated and are not Federalism, if it has a substantial direct and Inner Harbor. dominant in their fields, and effect on State or local governments and governmental jurisdictions with would either preempt State law or Discussion of Proposed Rule populations of less than 50,000. impose a substantial direct cost of The historic sloop-of-war USS The Coast Guard certifies under 5 compliance on them. We have analyzed CONSTELLATION is towed ‘‘dead U.S.C. 605(b) that this proposed rule this proposed rule under that Order and ship’’ annually on the Friday following would not have a significant economic have determined that it does not have Labor Day, from its berth at Pier 1 in impact on a substantial number of small implications for federalism. Baltimore’s Inner Harbor to a point on entities. This proposed rule would affect the Patapsco River near Fort McHenry the following entities, some of which Unfunded Mandates Reform Act National Monument and Historic might be small entities: The owners or The Unfunded Mandates Reform Act Shrine, Baltimore, Maryland. The operators of vessels intending to of 1995 (2 U.S.C. 1531–1538) requires voyage takes place along a planned operate, remain or anchor within certain Federal agencies to assess the effects of route of approximately four nautical waters of the Patapsco River, Northwest their discretionary regulatory actions. In miles one-way, which includes waters Harbor and Inner Harbor, in Baltimore, particular, the Act addresses actions of the Patapsco River, Northwest Harbor Maryland, from 2 p.m. through 7 p.m., that may result in the expenditure by a and Inner Harbor. After being turned- local time, annually on the Friday State, local, or tribal government, in the around, the USS CONSTELLATION is following Labor Day. Because the zone aggregate, or by the private sector of returned to its original berth at Pier 1, is of limited size and duration, it is $100,000,000 or more in any one year. Inner Harbor, Baltimore, Maryland. expected that there will be minimal Though this proposed rule would not The safety of dead ship tow disruption to the maritime community. result in such an expenditure, we do participants requires that persons and Before the effective period, the Coast discuss the effects of this rule elsewhere vessels be kept at a safe distance from Guard will issue maritime advisories in this preamble. the intended route during this widely available to users of the river evolution. The Coast Guard proposes to and harbors to allow mariners to make Taking of Private Property establish a moving safety zone around alternative plans for transiting the This proposed rule would not effect a the USS CONSTELLATION dead ship affected areas. In addition, smaller taking of private property or otherwise

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17460 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

have taking implications under technical standards (e.g., specifications Guard commissioned, warrant, or petty Executive Order 12630, Governmental of materials, performance, design, or officer who has been authorized by the Actions and Interference with operation; test methods; sampling Captain of the Port, Baltimore, Maryland Constitutionally Protected Property procedures; and related management to act on his or her behalf. Rights. systems practices) that are developed or (2) USS CONSTELLATION ‘‘turn- adopted by voluntary consensus Civil Justice Reform around’’ participants means the USS standards bodies. This proposed rule meets applicable This proposed rule does not use CONSTELLATION, its support craft and standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did the accompanying towing vessels. Executive Order 12988, Civil Justice not consider the use of voluntary (b) Location. The following area is a Reform, to minimize litigation, consensus standards. moving safety zone: all waters, from eliminate ambiguity, and reduce surface to bottom, within 200 yards Environment burden. ahead of or 100 yards outboard or aft of We have analyzed this proposed rule Protection of Children the historic sloop-of-war USS under Commandant Instruction CONSTELLATION, while operating in We have analyzed this proposed rule M16475.lD and Department of the Inner Harbor, the Northwest Harbor under Executive Order 13045, Homeland Security Management or the Patapsco River. Protection of Children from Directive 5100.1, which guide the Coast Environmental Health Risks and Safety Guard in complying with the National (c) Regulations. (1) The general Risks. This rule is not an economically Environmental Policy Act of 1969 regulations governing safety zones, significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and found in § 165.23, apply to the safety environmental risk to health or risk to have made a preliminary determination zone described in paragraph (b) of this safety that might disproportionately that there are no factors in this case that section. affect children. would limit the use of a categorical (2) With the exception of USS Indian Tribal Governments exclusion under section 2.B.2 of the CONSTELLATION ‘‘turn-around’’ Instruction. Therefore, we believe that participants, entry into or remaining in This proposed rule does not have this rule should be categorically this zone is prohibited, unless tribal implications under Executive excluded, under figure 2–1, paragraph Order 13175, Consultation and authorized by the Captain of the Port, (34)(g), of the Instruction, from further Baltimore, Maryland. Coordination with Indian Tribal environmental documentation because Governments, because it would not have the rule establishes a safety zone. (3) Persons or vessels requiring entry a substantial direct effect on one or A preliminary ‘‘Environmental into or passage through the moving more Indian tribes, on the relationship Analysis Check List’’ is available in the safety zone must first request between the Federal Government and docket where indicated under authorization from the Captain of the Indian tribes, or on the distribution of ADDRESSES. Comments on this section Port, Baltimore, Maryland. The Captain power and responsibilities between the will be considered before we make the of the Port, Baltimore, Maryland can be Federal Government and Indian tribes. final decision on whether this rule contacted at telephone number (410) Energy Effects should be categorically excluded from 576–2693. The Coast Guard vessels further environmental review. enforcing this section can be contacted We have analyzed this proposed rule on Marine Band Radio VHF Channel 16 under Executive Order 13211, Actions List of Subjects in 33 CFR Part 165 (156.8 MHz). Upon being hailed by a Concerning Regulations That Harbors, Marine safety, Navigation Significantly Affect Energy Supply, U.S. Coast Guard vessel by siren, radio, (water), Reporting and recordkeeping flashing light, or other means, persons Distribution, or Use. We have requirements, Security measures, determined that it is not a ‘‘significant or vessels shall proceed as directed. If Waterways. permission is granted, all persons or energy action’’ under that order because For the reasons discussed in the vessels must comply with the it is not a ‘‘significant regulatory action’’ preamble, the Coast Guard proposes to instructions of the Captain of the Port, under Executive Order 12866 and is not amend 33 CFR part 165 as follows: likely to have a significant adverse effect Baltimore, Maryland, and proceed at the on the supply, distribution, or use of PART 165—REGULATED NAVIGATION minimum speed necessary to maintain a energy. The Administrator of the Office AREAS AND LIMITED ACCESS AREAS safe course while within the zone. of Information and Regulatory Affairs (d) Enforcement. The U.S. Coast has not designated it as a significant 1. The authority citation for part 165 continues to read as follows: Guard may be assisted in the patrol and energy action. Therefore, it does not enforcement of the zone by Federal, require a Statement of Energy Effects Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. State and local agencies. under Executive Order 13211. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. (e) Enforcement period. This section Technical Standards 107–295, 116 Stat. 2064; Department of will be enforced from 2 p.m. through 7 The National Technology Transfer Homeland Security Delegation No. 0170.1. p.m., local time, annually on the Friday and Advancement Act (NTTAA) (15 2. Add § 165.512 to read as follows: following Labor Day. U.S.C. 272 note) directs agencies to use Dated: March 22, 2007. voluntary consensus standards in their § 165.512 Safety Zone; Patapsco River, Jonathan C. Burton, regulatory activities unless the agency Northwest and Inner Harbors, Baltimore, provides Congress, through the Office of MD. Commander, U.S. Coast Guard, Acting Management and Budget, with an (a) Definitions. For the purposes of Captain of the Port, Baltimore, Maryland. explanation of why using these this section: [FR Doc. E7–6537 Filed 4–6–07; 8:45 am] standards would be inconsistent with (1) Captain of the Port, Baltimore, BILLING CODE 4910–15–P applicable law or otherwise impractical. Maryland means the Commander, Coast Voluntary consensus standards are Guard Sector Baltimore or any Coast

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17461

ENVIRONMENTAL PROTECTION the comment includes information EPA. This supplementary information AGENCY claimed to be Confidential Business section is arranged as follows: Information (CBI) or other information I. What Should I Consider as I Prepare My 40 CFR Part 52 whose disclosure is restricted by statute. Comments for EPA? [EPA–R05–OAR–2006–0772; FRL–8296–2] Do not submit information that you II. What Is EPA Proposing? consider to be CBI or otherwise III. What Is the Background for This Action? Approval and Promulgation of Air protected through www.regulations.gov IV. What Is EPA’s Analysis of the State Quality Implementation Plans; or e-mail. The www.regulations.gov Web Submission? Minnesota site is an ‘‘anonymous access’’ system, V. What Are the Environmental Effects of which means EPA will not know your This Action? AGENCY: Environmental Protection VI. What Action Is EPA Taking? identity or contact information unless VII. Statutory and Executive Order Reviews Agency (EPA). you provide it in the body of your ACTION: Proposed rule. comment. If you send an e-mail I. What Should I Consider as I Prepare comment directly to EPA without going My Comments for EPA? SUMMARY: EPA is proposing to approve through www.regulations.gov your e- When submitting comments, revisions to the Minnesota State mail address will be automatically Implementation Plan (SIP) for sulfur remember to: captured and included as part of the 1. Identify the rulemaking by docket dioxide (SO2). Specifically, the revisions comment that is placed in the public number and other identifying involve Flint Hills Resources, L.P. (Flint docket and made available on the Hills) of Dakota County, Minnesota. In information (subject heading, Federal Internet. If you submit an electronic Register date and page number). these revisions, Flint Hills is expanding comment, EPA recommends that you operations at its petroleum refinery. To 2. Follow directions—The EPA may include your name and other contact ask you to respond to specific questions account for the increased SO2 emissions information in the body of your from the expansion, Flint Hills is or organize comments by referencing a comment and with any disk or CD-ROM Code of Federal Regulations (CFR) part closing its sulfuric acid plant. An you submit. If EPA cannot read your analysis of the revisions shows that the or section number. comment due to technical difficulties 3. Explain why you agree or disagree; area air quality will be protected. and cannot contact you for clarification, Minnesota has also included additional suggest alternatives and substitute EPA may not be able to consider your language for your requested changes. monitoring requirements in the comment. Electronic files should avoid revisions. 4. Describe any assumptions and the use of special characters, any form provide any technical information and/ DATES: Comments must be received on of encryption, and be free of any defects or data that you used. or before May 9, 2007. or viruses. For additional instructions 5. If you estimate potential costs or ADDRESSES: Submit your comments, on submitting comments, go to Section burdens, explain how you arrived at identified by Docket ID No. EPA–R05– I of the SUPPLEMENTARY INFORMATION your estimate in sufficient detail to OAR–2006–0772, by one of the section of this document. allow for it to be reproduced. following methods: Docket: All documents in the docket 6. Provide specific examples to • www.regulations.gov: Follow the are listed in the www.regulations.gov illustrate your concerns, and suggest on-line instructions for submitting index. Although listed in the index, alternatives. comments. some information is not publicly 7. Explain your views as clearly as • E-mail: [email protected]. available, e.g., CBI or other information possible, avoiding the use of profanity • Fax: (312)886–5824. whose disclosure is restricted by statute. or personal threats. • Mail: John M. Mooney, Chief, Certain other material, such as 8. Make sure to submit your Criteria Pollutant Section, Air Programs copyrighted material, will be publicly comments by the comment period Branch, (AR–18J), U.S. Environmental available only in hard copy. Publicly deadline identified. Protection Agency, 77 West Jackson available docket materials are available II. What Is EPA Proposing? Boulevard, Chicago, Illinois 60604. either electronically in • Hand Delivery: John M. Mooney, www.regulations.gov or in hard copy at EPA is proposing approval of Chief, Criteria Pollutant Section, Air the Environmental Protection Agency, revisions to SO2 emission limits at the Programs Branch (AR–18J), U.S. Region 5, Air and Radiation Division, 77 Flint Hills facility. Minnesota submitted Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, its Findings and Order Amendment West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open Eight on July 24, 2006. Flint Hills is Illinois 60604. Such deliveries are only from 8:30 a.m. to 4:30 p.m., Monday expanding operations at its petroleum accepted during the Regional Office through Friday, excluding legal refinery. This expansion includes normal hours of operation, and special holidays. We recommend that you adding a new heater, emissions unit arrangements should be made for telephone Matt Rau, Environmental 25H–4. Modifications to two heaters, deliveries of boxed information. The Engineer, at (312) 886–6524 before 25H–1 and 25H–3, are also allowed. Regional Office official hours of visiting the Region 5 office. Potential SO2 emissions from the new business are Monday through Friday, heater and the two modified heaters are FOR FURTHER INFORMATION CONTACT: Matt 8:30 a.m. to 4:30 p.m. excluding Federal restricted by the 878 tons per year Rau, Environmental Engineer, Criteria holidays. facility-wide limit on fuel gas Pollutant Section, Air Programs Branch Instructions: Direct your comments to combustion units. (AR–18J), Environmental Protection Docket ID No. EPA–R05–OAR–2006– Minnesota is also requiring Flint Hills Agency, Region 5, 77 West Jackson 0772. EPA’s policy is that all comments to install a continuous monitor on either Boulevard, Chicago, Illinois 60604, received will be included in the public the fuel gas from the 45 mix drum or the (312) 886–6524, [email protected]. docket without change and may be heater firing that fuel gas. The monitor made available online at SUPPLEMENTARY INFORMATION: will measure reduced sulfur in the fuel www.regulations.gov, including any Throughout this document whenever gas or SO2 emissions exhausting from personal information provided, unless ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the heater.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17462 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

III. What Is the Background for This monuments. Sulfur dioxide also causes proposed rule will not have a significant Action? the loss of chloroform leading to economic impact on a substantial Flint Hills operates a petroleum vegetation damage. number of small entities under the The expansion of the Flint Hills refinery in the Minneapolis-Saint Paul Regulatory Flexibility Act (5 U.S.C. 601 facility includes an additional source metropolitan area. Flint Hills is et seq.). and revised limits on several sources expanding its crude oil processing that results in higher SO emissions. Unfunded Mandates Reform Act operations. The expansion will increase 2 The projected increase in SO emissions Because this rule proposes to approve the crude oil unit’s gasoline production 2 from this project is 315 tons per year. pre-existing requirements under state capacity from 100,000 to 150,000 barrels However, overall SO2 emissions from law and does not impose any additional per day. Minnesota amended its Flint Hills have been reduced. When enforceable duty beyond that required Findings and Order to allow the considering all sources at the facility by state law, it does not contain any revisions necessary for the expansion. there is no increase in SO2 emissions, in unfunded mandate or significantly or This is the eighth amendment to the fact there is a projected decrease of 99.6 uniquely affect small governments, as Flint Hills Findings and Order. tons per year. Therefore, the ‘‘net described in the Unfunded Mandates Minnesota held a public hearing emissions increase’’ is below the Reform Act of 1995 (Pub. L. 104–4). regarding Findings and Order Prevention of Significant Deterioration Amendment Eight on May 25, 2006. No Executive Order 13132: Federalism (PSD) significant threshold for SO2 of 40 comments on the Flint Hills revisions tons per year. This project is not subject This action also does not have were received at the public meeting or to PSD requirements. Federalism implications because it does during the 30-day public comment The effects of the expansion were not have substantial direct effects on the period. analyzed. Both the projected SO2 states, on the relationship between the IV. What Is EPA’s Analysis of the State emissions from the Flint Hills facility national government and the states, or Submission? and the reductions from other area on the distribution of power and facilities were considered. That analysis responsibilities among the various Minnesota included air dispersion showed that the maximum predicted levels of government, as specified in modeling results in its submission. The ambient SO2 concentrations are below Executive Order 13132 (64 FR 43255, modeling analysis includes all Flint the primary and secondary NAAQS. August 10, 1999). This action merely Hills SO2 emissions sources, including This indicates that public health and proposes to approve a state rule the additional and modified sources. welfare in Dakota County, Minnesota implementing a Federal standard, and Other significant SO2 sources in the area should be protected. The additional does not alter the relationship or the were also included. The modeling monitoring requirements placed on the distribution of power and analysis examined the impact of the heater combusting the fuel gas from the responsibilities established in the Clean revisions on the SO2 air quality 45 mix drum will also help protect the Air Act. standards. The primary SO2 National air quality. Ambient Air Quality Standard (NAAQS) Executive Order 13175: Consultation has both an annual and 24-hour VI. What Action Is EPA Taking? and Coordination With Indian Tribal averaging period. The secondary EPA is proposing to approve revisions Governments NAAQS has a 3-hour averaging period. to SO2 emissions regulations for Flint This proposed rule also does not have Flint Hills used the ISCST3 Hills Resources, L.P. of Dakota County, tribal implications because it will not dispersion model in the regulatory Minnesota. The revisions authorize have a substantial direct effect on one or mode. Five years of surface adding a new heater, modifying two more Indian tribes, on the relationship meteorological data from the heaters, and additional monitoring. between the Federal Government and Minneapolis-Saint Paul International VII. Statutory and Executive Order Indian tribes, or on the distribution of Airport and upper air data from Saint Reviews power and responsibilities between the Cloud were used. Building downwash Federal Government and Indian tribes, effects from the new and existing Executive Order 12866: Regulatory as specified by Executive Order 13175 structures were accounted for in the Planning and Review (65 FR 67249, November 9, 2000). modeling. The analysis found that the Under Executive Order 12866 (58 FR Executive Order 13045: Protection of predicted annual SO2 concentration is 51735, September 30, 1993), this action µ 3 Children From Environmental Health 38.5 g/m compared to the standard of is not a ‘‘significant regulatory action’’ µ 3 and Safety Risks 80 g/m . The modeled 24-hour level of and, therefore, is not subject to review µ 3 µ 3 266.8 g/m is under the 365 g/m by the Office of Management and This proposed rule also is not subject NAAQS. Similarly, the predicted 3-hour Budget. to Executive Order 13045 ‘‘Protection of average is 726.2 µg/m3 which is under Children from Environmental Health the secondary standard of 1300 µg/m3. Paperwork Reduction Act Risks and Safety Risks’’ (62 FR 19885, V. What Are the Environmental Effects This proposed rule does not impose April 23, 1997), because it is not of This Action? an information collection burden under economically significant. the provisions of the Paperwork Executive Order 13211: Actions That Sulfur dioxide causes breathing Reduction Act of 1995 (44 U.S.C. 3501 Significantly Affect Energy Supply, difficulties and aggravation of existing et seq.). cardiovascular disease. It is also a Distribution, or Use precursor of acid rain and fine Regulatory Flexibility Act Because it is not a ‘‘significant particulate matter formation. Sulfate This proposed action merely proposes regulatory action’’ under Executive particles are a major cause of visibility to approve state law as meeting Federal Order 12866 or a ‘‘significant regulatory impairment in America. Acid rain requirements and imposes no additional action,’’ this action is also not subject to damages lakes and streams impairing requirements beyond those imposed by Executive Order 13211, ‘‘Actions aquatic life and causes damage to state law. Accordingly, the Concerning Regulations That buildings, sculptures, statues, and Administrator certifies that this Significantly Affect Energy Supply,

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17463

Distribution, or Use’’ (66 FR 28355, May ACTION: Proposed rule. insurance premium rates for new 22, 2001). buildings built after these elevations are SUMMARY: Technical information or made final, and for the contents in these National Technology Transfer comments are requested on the buildings. Advancement Act proposed Base (1% annual chance) Section 12(d) of the National Flood Elevations (BFEs) and proposed National Environmental Policy Act. Technology Transfer and Advancement BFEs modifications for the communities This proposed rule is categorically Act of 1995 (NTTAA), 15 U.S.C. 272, listed below. The BFEs are the basis for excluded from the requirements of 44 requires Federal agencies to use the floodplain management measures CFR part 10, Environmental technical standards that are developed that the community is required either to Consideration. An environmental or adopted by voluntary consensus to adopt or to show evidence of being impact assessment has not been carry out policy objectives, so long as already in effect in order to qualify or prepared. such standards are not inconsistent with remain qualified for participation in the Regulatory Flexibility Act. As flood applicable law or otherwise impractical. National Flood Insurance Program elevation determinations are not within In reviewing SIP submissions, EPA’s (NFIP). the scope of the Regulatory Flexibility role is to approve state choices, DATES: The comment period is ninety Act, 5 U.S.C. 601–612, a regulatory provided that they meet the criteria of (90) days following the second flexibility analysis is not required. the Clean Air Act. Absent a prior publication of this proposed rule in a Regulatory Classification. This existing requirement for the state to use newspaper of local circulation in each proposed rule is not a significant voluntary consensus standards, EPA has community. no authority to disapprove a SIP regulatory action under the criteria of submission for failure to use such ADDRESSES: The proposed BFEs for each section 3(f) of Executive Order 12866 of standards, and it would thus be community are available for inspection September 30, 1993, Regulatory inconsistent with applicable law for at the office of the Chief Executive Planning and Review, 58 FR 51735. Officer of each community. The EPA to use voluntary consensus Executive Order 13132, Federalism. standards in place of a program respective addresses are listed in the This proposed rule involves no policies submission that otherwise satisfies the table below. that have federalism implications under provisions of the Clean Air Act. FOR FURTHER INFORMATION CONTACT: Therefore, the requirements of section William R. Blanton, Jr., Engineering Executive Order 13132. 12(d) of the NTTA do not apply. Management Section, Mitigation Executive Order 12988, Civil Justice Division, Federal Emergency Reform. This proposed rule meets the List of Subjects in 40 CFR Part 52 Management Agency, 500 C Street SW., applicable standards of Executive Order Environmental protection, Air Washington, DC 20472, (202) 646–3151. 12988. pollution control, Incorporation by SUPPLEMENTARY INFORMATION: The reference, Intergovernmental relations, Federal Emergency Management Agency List of Subjects in 44 CFR Part 67 Reporting and recordkeeping (FEMA) proposes to make requirements, Sulfur oxides. Administrative practice and determinations of BFEs and modified procedure, Flood insurance, Reporting Dated: March 19, 2007. BFEs for each community listed below, and recordkeeping requirements. Bharat Mathur, in accordance with section 110 of the Acting Regional Administrator, Region 5. Flood Disaster Protection Act of 1973, Accordingly, 44 CFR part 67 is [FR Doc. E7–6619 Filed 4–6–07; 8:45 am] 42 U.S.C. 4104, and 44 CFR 67.4(a). proposed to be amended as follows: These proposed BFEs and modified BILLING CODE 6560–50–P BFEs, together with the floodplain PART 67—[AMENDED] management criteria required by 44 CFR 60.3, are the minimum that are required. 1. The authority citation for part 67 DEPARTMENT OF HOMELAND They should not be construed to mean continues to read as follows: SECURITY that the community must change any Authority: 42 U.S.C. 4001 et seq.; Federal Emergency Management existing ordinances that are more Reorganization Plan No. 3 of 1978, 3 CFR, Agency stringent in their floodplain 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, management requirements. The 3 CFR, 1979 Comp., p. 376. 44 CFR Part 67 community may at any time enact stricter requirements of its own, or § 67.4 [Amended] [Docket No. FEMA–B–7713] pursuant to policies established by other 2. The tables published under the Proposed Flood Elevation Federal, State or regional entities. These authority of § 67.4 are proposed to be proposed elevations are used to meet Determinations amended as follows: the floodplain management AGENCY: Federal Emergency requirements of the NFIP and are also Management Agency, DHS. used to calculate the appropriate flood

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17464 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

*Elevation in feet (NGVD) +Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet above Communities affected ground. Effective Modified

Letcher County, Kentucky, and Incorporated Areas

North Fork Kentucky River ... Approximately 0.29 miles downstream of Hazard Road ... None +1124 Letcher County (Unincor- porated Areas). Approximately 0.14 miles downstream of the CSX Rail- None +1137 road (City of Whitesburg Corporate Limits). Approximately 0.16 miles downstream of State Route 15 None +1161 near Piedmont Drive (City of Whitesburg Corporate Limits). Approximately 0.14 miles upstream of State Route 15 None +1176 near the confluence with Pert Creek. *National Geodetic Vertical Datum. #Depth in feet above ground. +North American Vertical Datum. ADDRESSES Letcher County (Unincorporated Areas) Maps are available for inspection at 156 Main Street, Whitesburg, KY 41858 Send comments to The Honorable Jim Ward, Letcher County Judge Executive, 156 Main Street, Suite 107, Whitesburg, KY 41858

Trimble County, Kentucky, and Incorporated Areas

Ohio River ...... Oldham County Line ...... None +457 Trimble County (Unincor- porated Areas) City of Milton Corporate Limits ...... None +463 Trimble County Limits (Downstream) ...... *464 +463 City of Milton Corporate Limits ...... None +464 Carroll County Line ...... None +464 Trimble County Limits (Upstream) ...... *465 +464 *National Geodetic Vertical Datum. #Depth in feet above ground. +North American Vertical Datum. ADDRESSES City of Milton Maps are available for inspection at 10179 U.S. Highway 421 North, Milton, KY 40045 Send comments to The Honorable Donald Oakley, Mayor, City of Milton, 10179 U.S. Highway 421 North, Milton, KY 40045 Trimble County (Unincorporated Areas): Maps are available for inspection at 123 Church Street, Bedford, KY 40006 Send comments to The Honorable Randy Stevens, Trimble County Judge Executive, P.O. Box 251, Bedford, KY 40006

Collin County, Texas, and Incorporated Areas

Cottonwood Creek 1 ...... Approximately 200 feet downstream from Oxbow Creek *552 +550 City of Allen. Lane. City of McKinney. Approximately 600 feet upstream from Ash Lane ...... None +712 City of Parker. City of Plano. Doe Branch ...... Approximately 2070 feet downstream from County Rd 51 None +624 City of Celina. Collin County. County Road 94 ...... None +741 (Unincorporated Areas). East Fork Trinity River ...... Approximately 3500 feet downstream from Union Pacific None +524 City of Mckinney. Railroad. City of Melissa. Approximately 1600 feet upstream from County Road None +570 Collin County (Unincor- 279. porated Areas). Muddy Creek (Upper Reach) Approximately one mile downstream from FM 544 ...... *486 +487 City of Wylie. Collin County. Just upstream from Stinson Road ...... *573 +569 (Unincorporated Areas). Rowlett Creek ...... McDermott Drive (FM 2170) ...... *609 +606 City of Allen. Approximately 3000 feet upstream from Exchange Park- *626 +627 way. Stewart Creek Tributary ...... Approximately 2500 feet downstream from Fossil Ridge *659 +660 City of Frisco. Drive. Approximately 2800 feet upstream from Woodstream None +718 Drive. Watters Branch ...... Approximately 2250 feet downstream from Bethany Drive *586 +585 City of Allen. State Hwy 121 ...... *698 +691 West Rowlett Creek ...... Confluence with Rowlett Creek ...... *611 +609 City of Allen.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17465

*Elevation in feet (NGVD) +Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet above Communities affected ground. Effective Modified

Approximately 1000 feet downstream from State Hwy *638 +633 City of Plano 121. Collin County (Unincor- porated Areas). *National Geodetic Vertical Datum. #Depth in feet above ground. +North American Vertical Datum. ADDRESSES City of Allen Maps are available for inspection at One Butler Circle, Allen, TX 75013 Send comments to The Honorable Stephen Terrell, Mayor, City of Allen, 305 Century Parkway, Allen, TX 75013 City of Celina Maps are available for inspection at City of Celina, 320 West Walnut, Celina, TX 75009 Send comments to The Honorable Corbett Howard, Mayor, City of Celina, 302 West Walnut, Celina, TX 75009 City of Frisco Maps are available for inspection at City of Frisco, 6891 Main Street, Frisco, TX 75034 Send comments to The Honorable Michael Simpson, Mayor, City of Frisco, 6101 Frisco Square Blvd, Frisco, TX 75034 City of Lucas Maps are available for inspection at 151 Country Club Road, Lucas, TX 75002 Send comments to The Honorable Bob Sanders, Mayor, City of Lucas, 151 Country Club Road, Lucas, TX 75002 City of McKinney Maps are available for inspection at City of McKinney, 222 North Tennessee Street, McKinney, TX 75070 Send comments to The Honorable Bill Whitfield, Mayor, City of McKinney, 222 North Tennessee, McKinney, TX 75070 City of Melissa Maps are available for inspection at City of Melissa, 109 U.S. Hwy 121, Melissa, TX 75454 Send comments to The Honorable David Dorman, Mayor, City of Melissa, P.O. Box 409, Melissa, TX 75454 City of Parker Maps are available for inspection at City of Parker, 5700 East Parker Road, Parker, TX 75002 Send comments to The Honorable Jerry Tartaglino, Mayor, City of Parker, 5700 East Parker Road, Parker, TX 75002 City of Plano Maps are available for inspection at City of Plano, 1520 Avenue K, Plano, TX 75086 Send comments to The Honorable Pat Evans, Mayor, City of Plano, P.O. Box 860358, Plano, TX 75086 City of Wylie Maps are available for inspection at City of Wylie, 114 North Ballard Avenue, Wylie, TX 75098 Send comments to The Honorable John Mondy, Mayor, City of Wylie, 2000 Hwy 78 North, Wylie, TX 75098 Collin County (Unincorporated Areas) Maps are available for inspection at Collin County Department of Public Works, 210 South McDonald Street, McKinney, TX 75069 Send comments to The Honorable Ron Harris, Judge, Collin County, 210 South McDonald, McKinney, TX 75069

(Catalog of Federal Domestic Assistance DEPARTMENT OF TRANSPORTATION passenger motor vehicle insurers that No. 83.100, ‘‘Flood Insurance.’’) are required to file reports on their Dated March 26, 2007. National Highway Traffic Safety motor vehicle theft loss experiences. An Administration David I. Maurstad, insurer included in any of these appendices would be required to file Director, Mitigation Division, Federal 49 CFR Part 544 Emergency Management Agency, Department three copies of its report for the 2004 of Homeland Security. [Docket No.: NHTSA–2007–27240] calendar year before October 25, 2007. [FR Doc. E7–6555 Filed 4–6–07; 845 am] RIN 2127–AJ98 If the passenger motor vehicle insurers remain listed, they must submit reports BILLING CODE 9110–12–P Insurer Reporting Requirements; List by each subsequent October 25. We are of Insurers Required To File Reports proposing to add and remove several insurers from relevant appendices. AGENCY: National Highway Traffic Safety Administration (NHTSA), DATES: Comments must be submitted Department of Transportation (DOT). not later than June 8, 2007. Insurers ACTION: Notice of proposed rulemaking. listed in the appendices are required to submit reports on or before October 25, SUMMARY: This document proposes to 2007. amend Appendices A, B, and C of 49 CFR Part 544, insurer reporting ADDRESSES: You may submit comments, requirements. The appendices list those identified by docket number: NHTSA–

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17466 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

2007–27240 and/or RIN number: 2127– passenger motor vehicles if NHTSA insurers of passenger motor vehicles, 49 AJ98, by any of the following methods: finds that such exemptions will not U.S.C. 33112(b)(1) and (f). Under 49 • Federal eRulemaking Portal: http:// significantly affect the validity or U.S.C. 33112(e)(1) and (2), NHTSA may www.regulations.gov. Follow the usefulness of the information in the exempt a self-insurer from reporting, if instructions for submitting comments. reports, either nationally or on a state- the agency determines: • Agency Web Site: http:// by-state basis. The term ‘‘small insurer’’ (1) The cost of preparing and dms.dot.gov. Follow the instructions for is defined, in Section 33112(f)(1)(A) and furnishing such reports is excessive in submitting comments on the Docket (B), as an insurer whose premiums for relation to the size of the business of the Management System. motor vehicle insurance issued directly insurer; and 33112(e)(1) and (2), • Fax: (202) 493–2251. or through an affiliate, including (2) the insurer’s report will not • Mail: Dockets, 400 7th Street, SW., pooling arrangements established under significantly contribute to carrying out Washington, DC 20590. the purposes of Chapter 331. • state law or regulation for the issuance Hand Delivery/Courier: Plaza Level of motor vehicle insurance, account for In a final rule published June 22, 1990 Room 401, (PL #401), of the Nassif less than 1 percent of the total (55 FR 25606), the agency granted a Building, 400 7th Street, SW., premiums for all forms of motor vehicle class exemption to all companies that Washington, DC 20590. Telephone: 1– insurance issued by insurers within the rent or lease fewer than 50,000 vehicles, 800–647–5527. United States. However, that section because it believed that the largest You may visit the Docket from 10 a.m. also stipulates that if an insurance companies’ reports sufficiently to 5 p.m., Monday through Friday. company satisfies this definition of a represent the theft experience of rental FOR FURTHER INFORMATION CONTACT: ‘‘small insurer,’’ but accounts for 10 and leasing companies. NHTSA Rosalind Proctor, Office of International percent or more of the total premiums concluded that smaller rental and Vehicle, Fuel Economy and Consumer for all motor vehicle insurance issued in leasing companies’ reports do not Standards, NHTSA, 400 Seventh Street, a particular state, the insurer must significantly contribute to carrying out SW., Washington, DC 20590, by report about its operations in that state. NHTSA’s statutory obligations and that electronic mail to In the final rule establishing the exempting such companies will relieve [email protected]. Ms. Proctor’s insurer reports requirement (52 FR 59; an unnecessary burden on them. As a telephone number is (202) 366–0846. January 2, 1987), 49 CFR Part 544, result of the June 1990 final rule, the Her fax number is (202) 493–2290. NHTSA exercised its exemption agency added Appendix C, consisting of SUPPLEMENTARY INFORMATION: authority by listing in Appendix A each an annually updated list of the self- insurers subject to Part 544. Following I. Background insurer that must report because it had at least 1 percent of the motor vehicle the same approach as in Appendix A, Pursuant to 49 U.S.C. 33112, Insurer insurance premiums nationally. Listing NHTSA included, in Appendix C, each reports and information, NHTSA the insurers subject to reporting, instead of the self-insurers subject to reporting requires certain passenger motor vehicle of each insurer exempted from reporting instead of the self-insurers which are insurers to file an annual report with the because it had less than 1 percent of the exempted. agency. Each insurer’s report includes premiums nationally, is NHTSA updates Appendix C based information about thefts and recoveries administratively simpler since the primarily on information from of motor vehicles, the rating rules used former group is much smaller than the Automotive Fleet Magazine and Auto 2 by the insurer to establish premiums for latter. In Appendix B, NHTSA lists Rental News. comprehensive coverage, the actions those insurers required to report for C. When a Listed Insurer Must File a taken by the insurer to reduce such particular states because each insurer Report premiums, and the actions taken by the had a 10 percent or greater market share Under Part 544, as long as an insurer insurer to reduce or deter theft. Under of motor vehicle premiums in those is listed, it must file reports on or before the agency’s regulation, 49 CFR Part states. In the January 1987 final rule, the October 25 of each year. Thus, any 544, the following insurers are subject to agency stated that it would update insurer listed in the appendices must the reporting requirements: Appendices A and B annually. NHTSA file a report before October 25, and by (1) Issuers of motor vehicle insurance updates the appendices based on data each succeeding October 25, absent an policies whose total premiums account voluntarily provided by insurance amendment removing the insurer’s for 1 percent or more of the total companies to A.M. Best .1 A.M. Best, name from the appendices. premiums of motor vehicle insurance publishes in its State/Line Report each issued within the United States; spring. The agency uses the data to II. Proposal (2) Issuers of motor vehicle insurance determine the insurers’ market shares policies whose premiums account for 10 1. Insurers of Passenger Motor Vehicles nationally and in each state. percent or more of total premiums Appendix A lists insurers that must written within any one state; and B. Self-Insured Rental and Leasing report because each had 1 percent of the (3) Rental and leasing companies with Companies motor vehicle insurance premiums on a a fleet of 20 or more vehicles not In addition, upon making certain national basis. The list was last covered by theft insurance policies determinations, NHTSA grants amended in a final rule published on issued by insurers of motor vehicles, exemptions to self-insurers, i.e., any September 5, 2006 (71 FR 52291). other than any governmental entity. person who has a fleet of 20 or more Subsequent to publishing the listing, the Pursuant to its statutory exemption motor vehicles (other than any agency was informed that Travelers authority, the agency exempted certain governmental entity) used for rental or Property Casualty Corporation merged passenger motor vehicle insurers from lease whose vehicles are not covered by with St Paul Companies, officially the reporting requirements. theft insurance policies issued by becoming St Paul Travelers Companies A. Small Insurers of Passenger Motor Vehicles 1 A.M. Best Company is a well-recognized source 2 Automotive Fleet Magazine and Auto Rental of insurance company ratings and information. 49 News are publications that provide information on Section 33112(f)(2) provides that the U.S.C. 33112(i) authorizes NHTSA to consult with the size of fleets and market share of rental and agency shall exempt small insurers of public and private organizations as necessary. leasing companies.

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17467

on April 1, 2004. Therefore, the agency implements the agency’s policy of Flexibility Act (RFA) (5 U.S.C. 601 et proposes to remove Travelers PC Group ensuring that all insurance companies seq.). I certify that this proposed rule and add St Paul Travelers Companies to that are statutorily eligible for will not have a significant economic Appendix A. exemption from the insurer reporting impact on a substantial number of small Each of the 18 insurers listed in requirements are in fact exempted from entities. The rationale for the Appendix A are required to file a report those requirements. Only those certification is that none of the before October 25, 2007, setting forth companies that are not statutorily companies proposed for Appendices A, the information required by Part 544 for eligible for an exemption are required to B, or C are construed to be a small entity each State in which it did business in file reports. within the definition of the RFA. ‘‘Small the 2004 calendar year. As long as these NHTSA does not believe that this insurer’’ is defined, in part under 49 18 insurers remain listed, they will be proposed rule, reflecting current data, U.S.C. 33112, as any insurer whose required to submit reports by each affects the impacts described in the final premiums for all forms of motor vehicle subsequent October 25 for the calendar regulatory evaluation prepared for the insurance account for less than 1 year ending slightly less than 3 years final rule establishing Part 544 (52 FR percent of the total premiums for all before. 59; January 2, 1987). Accordingly, a forms of motor vehicle insurance issued Appendix B lists insurers required to separate regulatory evaluation has not by insurers within the United States, or report for particular States for calendar been prepared for this rulemaking any insurer whose premiums within any year 2004, because each insurer had a action. Using the Bureau of Labor State, account for less than 10 percent 10 percent or greater market share of Statistics Consumer Price Index for 2006 of the total premiums for all forms of motor vehicle premiums in those States. (see http://www.bls.gov/cgi-bin/ motor vehicle insurance issued by Based on the 2004 calendar year data for surveymost), the cost estimates in the insurers within the State. This notice market shares from A.M. Best, we 1987 final regulatory evaluation were would exempt all insurers meeting propose to remove Arbella Mutual adjusted for inflation. The agency those criteria. Any insurer too large to Insurance (Massachusetts) and add the estimates that the cost of compliance is meet those criteria is not a small entity. Farm Bureau of Idaho Group (Idaho) to $100,800 for any insurer added to In addition, in this rulemaking, the Appendix B. Appendix A, $40, 320 for any insurer agency proposes to exempt all ‘‘self The nine insurers listed in Appendix added to Appendix B, and $11,632 for insured rental and leasing companies’’ B are required to report on their any insurer added to Appendix C. If this that have fleets of fewer than 50,000 calendar year 2004 activities in every proposed rule is made final, for vehicles. Any self-insured rental and State where they had a 10 percent or Appendix A, the agency would propose leasing company too large to meet that greater market share. These reports must to remove one company and add one criterion is not a small entity. be filed by October 25, 2007, and set company; for Appendix B, the agency 4. Federalism forth the information required by Part would propose to remove one company 544. As long as these nine insurers and add one company; and for This action has been analyzed remain listed, they would be required to Appendix C, the agency would propose according to the principles and criteria submit reports on or before each to add one company. The agency contained in Executive Order 12612, subsequent October 25 for the calendar estimates that the net effect of this and it has been determined that the year ending slightly less than 3 years proposal, if made final, would be a cost proposed rule does not have sufficient before. increase to insurers, as a group of federalism implications to warrant the approximately $11,632. preparation of a Federalism Assessment. 2. Rental and Leasing Companies Interested persons may wish to 5. Environmental Impacts Appendix C lists rental and leasing examine the 1987 final regulatory companies required to file reports. evaluation. Copies of that evaluation In accordance with the National Based on information in Automotive were placed in Docket No. T86–01; Environmental Policy Act, NHTSA has Fleet Magazine and Auto Rental News Notice 2. Any interested person may considered the environmental impacts for 2004, NHTSA proposes to add obtain a copy of this evaluation by of this proposed rule and determined Emkay Inc. Each of the 8 companies writing to NHTSA, Docket Section, that it would not have a significant (including franchisees and licensees) Room 5109, 400 Seventh Street, SW., impact on the quality of the human listed in Appendix C would be required Washington, DC 20590, or by calling environment. (202) 366–4949. to file reports for calendar year 2004 no 6. Regulation Identifier Number (RIN) later than October 25, 2007, and set 2. Paperwork Reduction Act forth the information required by Part The Department of Transportation 544. As long as those 8 companies The information collection assigns a regulation identifier number remain listed, they would be required to requirements in this proposed rule were (RIN) to each regulatory action listed in submit reports before each subsequent submitted and approved by the Office of the Unified Agenda of Federal October 25 for the calendar year ending Management and Budget (OMB) Regulations. The Regulatory Information slightly less than 3 years before. pursuant to the requirements of the Service Center publishes the Unified Paperwork Reduction Act (44 U.S.C. Agenda in April and October of each III. Regulatory Impacts 3501 et seq.). This collection of year. You may use the RIN contained in 1. Costs and Other Impacts information is assigned OMB Control the heading, at the beginning, of this Number 2127–0547 (‘‘Insurer Reporting document to find this action in the This notice has not been reviewed Requirements’’) and approved for use Unified Agenda. under Executive Order 12866. NHTSA through August 31, 2009, and the 7. Plain Language has considered the impact of this agency will seek to extend the approval proposed rule and determined that the afterwards. Executive Order 12866 and the action is not ‘‘significant’’ within the President’s memorandum of June 1, meaning of the Department of 3. Regulatory Flexibility Act 1998, require each agency to write all Transportation’s regulatory policies and The agency also considered the effects rules in plain language. Application of procedures. This proposed rule of this rulemaking under the Regulatory the principles of plain language

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17468 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

includes consideration of the following concisely. You may attach necessary given above under ADDRESSES. The questions: documents to your comments. We have hours of the Docket are indicated above, • Have we organized the material to no limit on the attachments’ length. in the same location. You may also see suit the public’s needs? Please submit two copies of your the comments on the Internet. To read • Are the requirements in the comments, including the attachments, the comments on the Internet, take the proposal clearly stated? to Docket Management at the address following steps: • Does the proposal contain technical given above under ADDRESSES. 1. Go to the Docket Management Comments may also be submitted to language or jargon that is not clear? System (DMS) Web page of the • the docket electronically by logging onto Would a different format (grouping Department of Transportation (http:// the Dockets Management System Web and order of sections, use of headings, dms.dot.gov/). paragraphing) make the rule easier to site at http://dms.dot.gov. Click on understand? ‘‘Help & Information’’ or ‘‘Help/Info’’ to 2. On that page, click on ‘‘search.’’ • Would more (but shorter) sections obtain instructions for filling the 3. On the next page (http:// be better? document electronically. dms.dot.gov/search/), type in the four- • Could we improve clarity by adding 3. How Can I Be Sure That My digit docket number shown at the tables, lists, or diagrams? Comments Were Received? beginning of this document. Example: If • What else could we do to make the the docket number was ‘‘NHTSA 1998– proposal easier to understand? If you wish Docket Management to 1234,’’ you would type ‘‘1234.’’ After If you have any responses to these notify you, upon its receipt of your typing the docket number, click on questions, you can forward them to me comments, enclose a self-addressed, ‘‘search.’’ several ways: stamped postcard in the envelope 4. On the next page, which contains a. Mail: Rosalind Proctor, Office of containing your comments. Upon docket summary information for the International Vehicle, Fuel Economy receiving your comments, Docket docket you selected, click on the desired and Consumer Standards, NHTSA, 400 Management will mail the postcard. comments. The ‘‘pdf’’ versions of the Seventh Street, SW., Washington, DC 4. How Do I Submit Confidential documents are word searchable. 20590; Business Information? b. E-mail: [email protected]; V. Conclusion or If you wish to submit any information c. Fax: (202) 493–2290. under a confidentiality claim, you Based on the foregoing, we are should submit three copies of your proposing to amend Appendices A, B, IV. Comments complete submission, including the and C of 49 CFR 544, Insurer Reporting Submission of Comments information you claim as confidential Requirements. We are also amending business information, to the Chief § 544.5 to revise the example given the 1. How Can I Influence NHTSA’s Counsel, Office of Chief Counsel, recent update to the reporting Thinking on This Proposed Rule? NHTSA, 400 Seventh Street, SW., requirements. In developing our rules, NHTSA tries Washington, DC 20590. In addition, you List of Subjects in 49 CFR Part 544 to address the concerns of all our should submit two copies, from which stakeholders. Your comments will help you have deleted the claimed Crime insurance, insurance, insurance us improve this rule. We invite you to confidential business information, to companies, motor vehicles, reporting provide views on our proposal, new Docket Management at the address and recordkeeping requirements. data, a discussion of the effects of this given above under ADDRESSES. When proposal on you, or other relevant you send a comment containing In consideration of the foregoing, 49 information. We welcome your views on information claimed to be confidential CFR Part 544 is proposed to be amended all aspects of this proposed rule. Your business information, you should as follows: comments will be most effective if you include a cover letter addressing the PART 544—[AMENDED] follow the suggestions below: information specified in our • Explain your views and reasoning confidential business information 1. The authority citation for part 544 clearly. regulation (49 CFR Part 512). continues to read as follows: • Provide solid technical and cost 5. Will the Agency Consider Late data to support your views. Authority: 49 U.S.C. 33112; delegation of • If you estimate potential costs, Comments? authority at 49 CFR 1.50. explain how you derived the estimate. NHTSA will consider all comments 2. Paragraph (a) of § 544.5 is revised • Provide specific examples to that Docket Management receives before to read as follows: illustrate your concerns. the close of business on the comment • Offer specific alternatives. closing date indicated above under § 544.5 General requirements for reports. • Include the name, date, and docket DATES. To the extent possible, we will (a) Each insurer to which this part number with your comments. also consider comments that Docket applies shall submit a report annually Management receives after that date. If 2. How Do I Prepare and Submit before October 25, beginning on October Docket Management receives a comment Comments? 25, 1986. This report shall contain the too late for us to consider, in developing information required by § 544.6 of this Your comments must be written in a final rule (assuming that one is part for the calendar year 3 years English. To ensure that your comments issued), we will consider that comment previous to the year in which the report are correctly filed in the Docket, please as an informal suggestion for future is filed (e.g., the report due by October include the docket number of this rulemaking action. 25, 2007, will contain the required document in your comments. information for the 2004 calendar year). Your comments must not exceed 15 6. How Can I Read the Comments pages long (49 CFR 553.21). We Submitted by Other People? * * * * * established this limit to encourage you You may read the comments received 3. Appendix A to Part 544 is revised to write your primary comments by Docket Management at the address to read as follows:

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17469

Appendix A—Insurers of Motor Vehicle DEPARTMENT OF COMMERCE Region, NMFS, 7600 Sand Point Way Insurance Policies Subject to the N.E., BIN C15700, Bldg. 1, Seattle, WA Reporting Requirements in Each State National Oceanic and Atmospheric 98115–0070. Written comments in Which They Do Business Administration regarding the burden-hour estimates or other aspects of the collection-of- Allstate Insurance Group 50 CFR Part 660 American Family Insurance Group information requirements contained in American International Group [Docket No. 070323069–7069–01;I.D. this proposed rule may be submitted to Auto-Owners Insurance Group 031907A] the Northwest Region (see Addresses) CNA Insurance Companies and by e-mail to RIN 0648–AV46 Erie Insurance Group [email protected], or fax to (202) 395–7285 Send comments on Berkshire Hathaway/GEICO Corporation Pacific Coast Groundfish Fishery Group collection-of-information requirements Hartford Insurance Group AGENCY: National Marine Fisheries to the NMFS address above and to the Liberty Mutual Insurance Companies Service (NMFS), National Oceanic and Office of Information and Regulatory Metropolitan Life Auto & Home Group Atmospheric Administration (NOAA), Affairs (OIRA), Office of Management Mercury General Group Commerce. and Budget (OMB), Washington DC Nationwide Group 20503 (Attn: NOAA Desk Officer). Progressive Group ACTION: Proposed rule; request for FOR FURTHER INFORMATION CONTACT: Safeco Insurance Companies comments. State Farm Group Becky Renko, phone: 206–526–6110, St Paul Travelers Companies 1 SUMMARY: NMFS issues a proposed rule fax: 206–526–6736, or e-mail: USAA Group to establish catch accounting [email protected]. Farmers Insurance Group requirements for persons who receive, Electronic Access: This proposed rule buy, or accept Pacific whiting (whiting) is accessible via the Internet at the 4. Appendix B to Part 544 is revised deliveries of 4,000 pounds (lb) (1.18 mt) Office of the Federal Register’s Web site to read as follows: or more from vessels using mid-water at http://www.access.gpo.gov/suldocs/ Appendix B—Issuers of Motor Vehicle trawl gear during the primary whiting aces/aces140.html. Background Insurance Policies Subject to the season. This action would improve information and documents are Reporting Requirements Only in NMFS’s ability to effectively monitor available at the NMFS Northwest Region Designated States the whiting fishery such that catch of Web site at http://www.nwr.noaa.gov/ whiting and incidentally caught species, Groundfish-Halibut/Groundfish-Fishery- Alfa Insurance Group (Alabama) including overfished groundfish Auto Club (Michigan) Management/index.cfmand at the Commerce Group, Inc. (Massachusetts) species, do not result in a species’ Council’s Web site at http:// Farm Bureau of Idaho Group (Idaho) 1 optimum yield (OY), harvest guideline, www.pcouncil.org. Kentucky Farm Bureau Group (Kentucky) allocations, or bycatch limits being SUPPLEMENTARY INFORMATION: The New Jersey Manufacturers Group (New exceeded. This action would also proposed action is to provide for Jersey) provide for timely reporting of Chinook electronic catch accounting and other Safety Group (Massachusetts) salmon take as specified in the monitoring improvements for the shore- Southern Farm Bureau Group (Arkansas, Endangered Species Act (ESA) Section 7 based sector of the whiting fishery. The Mississippi) Biological Opinion for Chinook salmon Tennessee Farmers Companies (Tennessee) proposed action defines requirements catch in the Pacific groundfish fishery. for recordkeeping, reporting, catch 5. Appendix C to Part 544 is revised This action is consistent with the sorting, and scale use for persons who to read as follows: conservation goals and objectives of the receive, buy, or accept unsorted Pacific Coast Groundfish Fishery deliveries (generally processors or Appendix C—Motor Vehicle Rental and Management Plan (FMP). Leasing Companies (Including transporters) of 4,000 lb (1.8 mt) or more Licensees and Franchisees) Subject to DATES: Comments must be received by of whiting from vessels using midwater the Reporting Requirements of Part 544 April 24, 2007. trawl gear during the primary season for ADDRESSES: You may submit comments, the shore-based sector. This action is Cendant Car Rental identified by I.D. 031907A by any of the intended to address difficulties that Dollar Thrifty Automotive Group following methods: occurred during the 2006 whiting EmKay, Inc. 1 • Enterprise Rent-A-Car E-mail: season that could compromise the Enterprise Fleet Services [email protected]: Include ability to account for the catch of target, Hertz Rent-A-Car Division (subsidiary of The I.D 031907A in the subject line of the incidental and prohibited species, and Hertz Corporation) message. which could compromise the ability to U-Haul International, Inc. (Subsidiary of • Federal eRulemaking Portal: http:// manage groundfish species OYs, trip AMERCO) www.regulations.gov. Follow the limits, bycatch limits, and Chinook Vanguard Car Rental USA instructions for submitting comments. salmon take in relation to Biological • Issued on: March 30, 2007. Fax: 206–526–6736, Attn: Becky Opinion specifications. The shore-based whiting fishery Stephen R. Kratzke, Renko • Mail: D. Robert Lohn, needs to have a catch reporting system Associate Administrator for Rulemaking. Administrator, Northwest Region, in place that: provides timely reporting [FR Doc. E7–6519 Filed 4–6–07; 8:45 am] NMFS, 7600 Sand Point Way NE, of catch data so that whiting, overfished BILLING CODE 4910–59–P Seattle, WA 98115–0070, Attn: Becky species and Chinook salmon can be Renko adequately monitored and accounted for 1 Indicates a newly listed company, which must Copies of the Environmental inseason; and, specifies catch sorting file a report beginning with the report due October Assessment/Regulatory Impact Review/ and weight requirements necessary to 25, 2007. 1 Indicates a newly listed company, which must Initial Regulatory Flexibility Analysis maintain the integrity of fish ticket file a report beginning with the report due October (EA/RIR/IRFA) prepared for this action values used to manage groundfish 25, 2007. may be obtained from the Northwest species OYs, trip limits, and bycatch

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17470 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

limits. This proposed rule is part of an overfished. In addition, ‘‘bycatch limit’’ used to collect information similar to ongoing process to develop a maximized management of overfished species has the information currently required in retention program for the shoreside been used to allow the whiting fishery state fish receiving tickets or landing whiting sector. The rule is intended to full access to the whiting OY. With the receipts (state fish tickets). The daily address shoreside monitoring that will bycatch limit management approach, a reports would be used to track catch be implemented in 2007 in conjunction bycatch limit amount is specified for an allocations, bycatch limits and with the issuance of exempted fishing overfished species and the whiting prohibited species catch. First receivers permits (EFPs) to vessels. At its April fishery is allowed incidental catch of would provide the computer hardware, 2007 meeting, the Council will consider that species up to that amount. If a software (Microsoft Office with Access recommending a rulemaking for 2008 bycatch limit for any one of the species 2003 or later,) and internet access and beyond for a related action titled ‘‘A limits is reached before the whiting necessary to support the electronic fish Maximized Retention and Monitoring allocations are attained, all non-tribal ticket program and daily e-mail Program for the Whiting Shoreside commercial sectors of the whiting transmissions. Electronic fish tickets Fishery.’’ fishery must be closed. must be submitted within 24 hours from Each year since 1992, EFPs have been The Shoreside Whiting Observation the date the catch is received upon issued to vessels in the whiting Program (SHOP), a coordinated landing. Because 2007 will be the first shoreside fishery to allow unsorted monitoring effort by the States of year that the electronic fish ticket catch to be retained and landed at Oregon, Washington, and California, program will be used, the proposed shoreside processing facilities. The EFPs was established to provide catch data action includes waiver provisions and have specified the terms and conditions from vessels fishing under the EFPs. defines alternative means for submitting that participating vessels must follow to Although the program’s structure and fish tickets to meet the daily reporting be included in the EFP program. The priorities have changed over the years, needs of the fishery, should there be EFPs have routinely required vessels to the SHOP has had the primary performance issues with software or deliver EFP catch to state-designated responsibility of monitoring the shore- other system failures beyond a receiver’s processors. Designated processors were based whiting fishery and providing control. identified by each of the states and were catch data to NMFS for management of Federal regulations would not replace processors that had signed written the fishery. In 2006, SHOP experienced any state recordkeeping or reporting agreements that specified the standards ongoing difficulties in obtaining timely requirements. Regulations at 50 CFR and procedures they agreed to follow catch reports from some designated 660.303 would continue to require when receiving EFP catch. processors. Delays in catch reports can vessels to make and/or file, retain, or The whiting fishery is managed under compromise the ability to adequately make available any and all reports (i.e., a ‘‘primary’’ season structure where monitor the catch of whiting, bycatch logbooks, fish tickets, etc.) of groundfish vessels harvest whiting until the sector limits, and in particular the bycatch harvests and landings as required by the allocation is reached and the fishery is limits for the overfished species that are applicable state law. At this time, only closed. This is different from most West most frequently encountered in the the State of Oregon allows printed and Coast groundfish fisheries, which are whiting fishery. Having the ability to signed copies of the electronic fish managed under a ‘‘trip limit’’ structure, closely monitor bycatch limits and close tickets to be submitted as the official where catch limits are specified by gear the whiting fishery if a limit is reached state fish ticket. The States of type and species (or species group) and prevents the whiting fishery from Washington and California could vessels can land catch up to the affecting the other groundfish fisheries continue to require the submission of specified limits. Incidental catch of and reduces the risk of exceeding paper forms as issued by the state. groundfish in the whiting fishery, overfished species OYs. In addition to the sorting however, is managed under a trip limit In 2007, the shore-based whiting requirements specified at structure. Vessels fishing under the fishery will be managed under an EFP, §§ 660.306(a)(7) and 660.370(h)(6)(i), whiting EFPs are allowed to land similar to what was in place in 2006. sorting requirements would be specified unsorted catch at shoreside processing Therefore, NMFS believes that it is for whiting catch received by first facilities, including species in excess of necessary to implement this rule to receivers, since these deliveries may the trip limits and species such as prevent catch accounting difficulties contain groundfish in excess of trip salmon that would otherwise be illegal experienced in 2006. During 2007, limits, unmarketable groundfish, to have on board the vessel. Without an NMFS and the Council will continue to prohibited species, and protected EFP, groundfish regulations at 50 CFR develop the Maximized Retention and species that are not addressed by 660.306(a)(2) and (a)(6) require vessels Monitoring Program for the whiting current groundfish regulations. In to sort their catch at sea and discard as Shoreside Fishery, which is intended to addition, Federal groundfish regulations soon as practicable all prohibited be implemented by regulation before the would be revised to require that species (including salmon and halibut), 2008 fishery. deliveries from vessels participating in protected species, and groundfish This proposed rule would require the whiting shoreside fishery must be species in excess of cumulative limits at persons called ‘‘first receivers’’ who adequately sorted by species or species sea. receive, buy, or accept whiting group and the catch weighed following Overall management of the salmon deliveries of 4,000 lb (1.8 mt) or more offloading from the vessel and prior to and groundfish fisheries has from vessels using mid-water trawl gear transporting the catch. If sorting and significantly changed since the early during the primary whiting season weighing requirements specified in 1990’s, when EFPs were first used in the (generally, these are whiting shoreside Federal regulation are more specific whiting fishery. Since the beginning of processing facilities, but also include than state fish ticket requirements, the the shore-based whiting fishery in 1992, entities that truck whiting to other first receivers would be required to new salmon Evolutionarily Significant facilities) to have and use a NMFS- record the species that are sorted and Unit (ESUs) have been listed under the approved electronic fish ticket program weighed on all electronic fish ticket ESA, and several groundfish species and to send daily catch reports to the submissions. that are incidentally taken in the Pacific States Marine Fish Commission First receivers would be required to whiting fishery have been declared (PSMFC). The electronic fish tickets are report, on electronic fish tickets, actual

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17471

and accurate weights derived from provide more timely reporting and independently owned and operated, not scales. Though there are considerable improved estimates of the catch of dominant in its field of operation, and differences in the requirements between whiting, ESA listed salmon species, and employs 500 or fewer persons on a full- states, each state has requirements for overfished groundfish species. The time, part-time, temporary, or other scale performance and testing whiting shoreside fishery needs to have basis, at all its affiliated operations established by state agencies for weights a catch reporting system in place to: world wide. Finally, a wholesale and measures. How these requirements adequately track the incidental take of business servicing the fishing industry apply to seafood processors varies Chinook salmon as required in the ESA (fish dealer) is a small business if it between states. Section 7 Biological Opinion for employs 100 or few persons on a full Chinook salmon catch in the whiting time, part-time, temporary, or other Classification fishery; and to track the catch of target basis, at all its affiliated operations NMFS has determined that the and overfished groundfish species such worldwide. proposed rule is consistent with the that the fishing industry is not The SBA has established ‘‘principles FMP and has preliminarily determined unnecessarily constrained and that the of affiliation’’ to determine whether a that the rule is consistent with the sector allocation and bycatch limits are business concern is ‘‘independently Magnuson-Stevens Fishery not exceeded. This action is intended to owned and operated.’’ In general, Conservation and Management Act and address catch accounting concerns that business concerns are affiliates of each other applicable laws. occurred during the 2006 season that other when one concern controls or has This proposed rule has been compromised the ability to account for the power to control the other, or a third determined to be not significant for the catch of target, incidental and party controls or has the power to purposes of Executive Order 12866. prohibited species. control both. The SBA considers factors An initial regulatory flexibility In 2006 there were 23 processors that such as ownership, management, analysis (IRFA) was prepared, as purchased whiting from fishermen with previous relationships with or ties to required by section 603 of the RFA ten of these processors purchasing from another concern, and contractual (RFA). The IRFA describes the 4 lb (2 kg) to 8,000 lb (3,629 kg) of relationships, in determining whether economic impact this proposed rule, if whiting. The other thirteen processors affiliation exists. Individuals or firms adopted, would have on small entities. all processed at least 1 million lb (454 that have identical or substantially A description of the action, why it is mt) of whiting each. During 2006 these identical business or economic interests, being considered, and the legal basis for thirteen processors purchased 280 such as family members, persons with this action are contained at the million lb (127,007 mt) of whiting worth common investments, or firms that are beginning of this section in the $17.4 million ex-vessel, and 110 million economically dependent through preamble and in the SUMMARY section lb (49,896 mt) of other fish and shellfish contractual or other relationships, are of the preamble. A copy of the IRFA is worth $78.5 million. Over the 2000– treated as one party with such interests available from NMFS (see ADDRESSES). 2006 period there were seventeen aggregated when measuring the size of A summary of the analysis follows: different facilities that processed at least the concern in question. The SBA The whiting shoreside fishery has 1 million lb (454 mt) in any one year. counts the receipts or employees of the been managed under an EFPs since These processors can be classified into concern whose size is at issue and those 1992. However, an EFP is supposed to ‘‘Main’’ and ‘‘Other’’ plants. Over this of all its domestic and foreign affiliates, be a short-term, temporary and period there were eight ‘‘Main’’ regardless of whether the affiliates are exploratory response to issues that processors that processed 1 million lb organized for profit, in determining the potentially should be addressed by (454 mt) in at least seven of the eight concern’s size. permanent regulations. The proposed years during this period. Because of Based on the SBA criteria and a action (Alternative 2) would be the first entry and exit of the processors, the review of West Coast processor step towards replacing the EFP with composition of the ‘‘Other’’ processor company websites, state employment permanent regulations as it would put group changes significantly in most websites, newspaper articles, personal in place new Federal catch accounting years. In 2005, there were no ‘‘Other’’ communications, and the ‘‘Research requirements. Although EFPs will processors while in 2006, five new Group’’ publications (2006), it appears continue to be issued in 2007, the processors entered, only one of which that the thirteen major whiting proposed regulations are intended to had operated before. Over the 2000– processors can be grouped into nine supplement EFP activities with 2006 period, the ‘‘Main’’ processors businesses under the SBA criteria based regulations that mainly affect the typically harvest 90 to 100 percent of on analysis of affiliates. Three of the processors or other first receivers of the whiting. nine businesses generated at least $500 whiting EFP catch. The proposed The Small Business Administration million in sales in 2003. One of these regulations will require the submission (SBA) has established size criteria for all businesses reported employing 4,000 of electronic fish tickets within 24 hours major industry sectors in the U.S. people, and it is presumed that the other of landing, the sorting of catch at time including fish harvesting entities, for- two companies have employment levels of offload and prior to transporting hire entities, fish processing businesses, much higher than 500 employees. Four catch from the port of fish landing, the and fish dealers. A business involved in of the nine businesses have employment use of state approved scales with fish harvesting is a small business if it estimates that range from 100–250 appropriate accuracy ranges for the is independently owned and operated employees, while the remainder appear amount of fish being weighed, and that and not dominant in the field of to be in the 50–100 range (because of all weights reported on the electronic operation (including its affiliates) and if missing data, one of these relatively fish tickets be from such scales. The it has combined annual receipts not in small businesses may have less than 50 proposed Federal regulations mirror or excess of $3.5 million for all its employees). In terms of the SBA size enhance existing state regulations and affiliated operations worldwide. For- standard of 500 employees, there are six associated paper-based fish ticket hire vessels are considered small ‘‘small’’ businesses that participated in systems or put into Federal regulation entities, if they have annual receipts not the shorebased whiting processing provisions associated with current EFP in excess of $6 million. A seafood sector in 2006. Annual sales information management. This action is expected to processor is a small business if it is for these ‘‘small’’ businesses is

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17472 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

unavailable. Total ex-vessel revenues rebuilding schedules for the overfished NMFS issued Biological Opinions (the value of the fish purchased from species are maintained, thus increasing under the ESA on August 10, 1990, fisherman) is available. In 2006, these the chances that current levels of November 26, 1991, August 28, 1992, six businesses purchased approximately groundfish ex-vessel revenues of $70 September 27, 1993, May 14, 1996, and $40 million in whiting and other fish million can be restored to levels above December 15, 1999 pertaining to the and shellfish from West Coast $100 million which were consistently effects of the Pacific Coast groundfish fishermen. This compares to the $60 seen in the early to mid 1990’s. There FMP fisheries on Chinook salmon million in whiting and other fish and were no other alternatives to the (Puget Sound, Snake River spring/ shellfish purchased by the three large proposed action that would have summer, Snake River fall, upper businesses. accomplish the stated objectives. Under Columbia River spring, lower Columbia In sizing up all the potential impacts, Status Quo, general catch sorting River, upper Willamette River, implementation of these rules will requirements and prohibited actions Sacramento River winter, Central Valley require firms to bear minimal costs in would continue to be specified for spring, California coastal), coho salmon reporting data electronically that they limited entry trawl vessel; each state (Central California coastal, southern already are required to report on paper. would continue to specify requirements Oregon/northern California coastal), In terms of equipment purchases, it is for landing reports. chum salmon (Hood Canal summer, expected that there will be few if any This proposed rule contains Columbia River), sockeye salmon (Snake instances where processors have to collection-of-information requirements River, Ozette Lake), and steelhead purchase computers or software because approved under OMB control number (upper, middle and lower Columbia this is equipment that most business 0648–0203, as well as a new collection- River, Snake River Basin, upper already have. It is also not expected that of-information requirement subject to Willamette River, central California processors will need to purchase scale review and approval under the coast, California Central Valley, south/ equipment as the presumption about Paperwork Reduction Act (PRA). This central California, northern California, this rule is that it enhances existing requirement has been submitted to OMB southern California). These biological state regulations that already require for approval. Public reporting burden opinions have concluded that processors to use scales in conducting for preparing and submitting electronic implementation of the FMP for the their businesses but may not specifically fish tickets is estimated to average ten Pacific Coast groundfish fishery was not require the use of scale weights in minutes per individual response for expected to jeopardize the continued reporting fisheries data to state agencies. whiting shoreside processors/first existence of any endangered or There may be some interest by a few receivers in the states of California and threatened species under the small processors to weigh and count Washington, and two minutes per jurisdiction of NMFS, or result in the fish at locations other than the point of individual response for whiting destruction or adverse modification of first landing, but these instances appear shoreside processors/first receivers in critical habitat. to be few. the State of Oregon, including the time NMFS reinitiated a formal section 7 In light of the recent economic for reviewing instructions, searching consultation under the ESA in 2005 for improvement going on in the whiting existing data sources, gathering and both the whiting midwater trawl fishery fisheries, the proposed regulations are maintaining the data needed, and and the groundfish bottom trawl fishery. reasonable and affordable and do not completing and reviewing the collection The December 19, 1999 Biological appear to place small businesses at a information. Public comment is sought Opinion had defined an 11,000 Chinook competitive disadvantage to large regarding: whether this proposed incidental take threshold for the whiting businesses. The major benefits of this collection of information is necessary fishery. During the 2005 whiting season, program from a conservation and for the proper performance of the the 11,000 fish Chinook incidental take management context is an allowance for functions of the agency, including threshold was exceeded, triggering more liberal management to obtain whether the information shall have reinitiation. Also in 2005, new data better and quicker data for use in quota practical utility; the accuracy of the from the West Coast Groundfish monitoring and a potential reduction in burden estimate; ways to enhance the Observer Program became available, costs of monitoring, and to move quality, utility, and clarity of the allowing NMFS to complete an analysis management measures for monitoring information to be collected; and ways to of salmon take in the bottom trawl whiting from a temporary ‘‘EFP’’ to minimize the burden of the collection of fishery. formal regulations. In the short term, information, including through the use NMFS prepared a Supplemental from an industry and fishing of automated collection techniques or Biological Opinion dated March 11, community perspective, better other forms of information technology. 2006, which addressed salmon take in management of the whiting shoreside Send comments on these or any other both the whiting midwater trawl and fishery minimizes the risk that sector aspects of the collection of information groundfish bottom trawl fisheries. In its quotas and bycatch limits are not to the Northwest Region at the 2006 Supplemental Biological Opinion, exceeded in ways that may lead to ADDRESSES above, and by e-mail to NMFS concluded that catch rates of closure of other fisheries thus affecting [email protected] or fax to salmon in the 2005 whiting fishery were other small businesses. In the medium (202) 395–7285. consistent with expectations considered term, the proposed rule will aid Notwithstanding any other provision during prior consultations. Chinook development of an Individual Fishing of the law, no person is required to bycatch has averaged about 7,300 over Quota (IQ) catch accounting system. IQs respond to, and no person shall be the last 15 years and has only are expected to increase profitability in subject to penalty for failure to comply occasionally exceeded the reinitiation the fishing industry and improve the with, a collection of information subject trigger of 11,000. Since 1999, annual sustainability of fishing communities. In to the requirements of the PRA, unless Chinook bycatch has averaged about the long term, the entire fishing industry that collection of information displays a 8,450. The Chinook ESUs most likely and its communities including currently valid OMB control number. affected by the whiting fishery have associated small businesses will benefit There are no Federal rules that generally improved in status since the by reducing the risk of overfishing and duplicate, overlap, or conflict with this 1999 section 7 consultation. Although increasing the potential that the proposed rule. these species remain at risk, as

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules 17473

indicated by their ESA listing, NMFS Authority: 16 U.S.C. 1801 et seq. manner as required in paragraph concluded that the higher observed 2. In § 660.302, the definitions for (e)(1)(iv) of this section. bycatch in 2005 does not require a ‘‘Electronic Monitoring System,’’ (iii) Required information. All Pacific revision of its prior ‘‘no jeopardy’’ ‘‘Pacific whiting shoreside or shore- whiting shoreside first receivers must conclusion with respect to the fishery. based fishery,’’ ‘‘Pacific whiting provide the following types of For the groundfish bottom trawl fishery, shoreside first receiver,’’ and ‘‘Pacific information: date of landing, delivery NMFS concluded that incidental take in whiting shoreside vessel’’ are added to vessel, gear type used, first receiver, the groundfish fisheries is within the read as follows: round weights of species landed listed overall limits articulated in the by species or species group including § 660.302 Definitions. Incidental Take Statement of the 1999 species catch with no value, number of Biological Opinion. The groundfish * * * * * salmon by species, number of Pacific bottom trawl limit from that opinion Electronic Monitoring System (EMS) halibut, and any other information was 9,000 fish annually. NMFS will means a data collection tool that uses a deemed necessary by the Regional continue to monitor and collect data to software operating system connected to Administrator as specified on the analyze take levels. NMFS also an assortment of electronic components, appropriate electronic fish ticket form. reaffirmed its prior determination that including video recorders, to create a (iv) Electronic fish ticket submissions. implementation of the Groundfish FMP, collection of data on vessel activities. The Pacific whiting shoreside first including this current action, is not * * * * * receiver must: likely to jeopardize the continued Pacific whiting shoreside first (A) Sort catch, prior to first weighing, existence of any of the affected ESUs. receivers means persons who receive, by species or Lower Columbia River coho (70 FR purchase, take custody, control, or species groups as specified at 37160, June 28, 2005) and the Southern possession of Pacific whiting onshore § 660.370 (h)(6)(iii). Distinct Population Segment (DPS) of directly from a Pacific whiting shoreside (B) Include as part of each electronic green sturgeon (71 FR 17757, April 7, vessel. fish ticket submission, the actual scale 2006) were recently listed as threatened Pacific whiting shoreside or shore- weight for each groundfish species as under the ESA. As a consequence, based fishery means Pacific whiting specified by requirements at § 660.373 NMFS has reinitiated its Section 7 shoreside vessels and Pacific whiting (j)(2)(i) and the catcher vessel consultation on the PFMC’s Groundfish shoreside first receivers. identification number. FMP. After reviewing the available Pacific whiting shoreside vessel (C) Use for the purpose of submitting information, NMFS concluded that, in means any vessel that fishes using electronic fish tickets, and maintain in keeping with Section 7(a)(2) of the ESA, midwater trawl gear to take, retain, good working order, computer the proposed action would not result in possess and land 4,000 lb (1,814 kg) or equipment as specified at § 660.373 any irreversible or irretrievable more of Pacific whiting per fishing trip (j)(2)(ii)(A); commitment of resources that would from the Pacific whiting shore-based (D) Install, use, and update as have the effect of foreclosing the sector allocation for delivery to a Pacific necessary, any NMFS-approved formulation or implementation of any whiting shoreside first receiver during software described at § 660.373 reasonable and prudent alternative the primary season. (j)(2)(ii)(B); measures. * * * * * (E) Submit a completed electronic fish Pursuant to Executive Order 13175, 3. In § 660.303, paragraph (a) is ticket for every landing that includes this proposed rule was developed after revised and paragraph (e) is added to 4,000 lb (1,814 kg) or more of Pacific meaningful consultation and read as follows: whiting (round weight equivalent) no later than 24 hours after the date the fish collaboration with tribal officials from § 660.303 Reporting and recordkeeping. the area covered by the FMP. At the are received, unless a waiver of this (a) This subpart recognizes that catch Council=s September and November requirement has been granted under and effort datanecessary for 2006 meetings, NMFS informed the provisions specified at paragraph (e)(1) implementing the PCGFMP are Council, which includes a tribal (vii) of this section. collected by the States of Washington, representative, of the intent to evaluate (v) Revising a submitted electronic Oregon, and California under existing and implement catch accounting fish ticket submission. In the event that state data collection requirements. requirements for whiting shoreside a data error is found, electronic fish processors. This action does not alter * * * * * ticket submissions may be revised by the treaty allocation of whiting, nor does (e) Participants in the Pacific whiting resubmitting the revised form. it affect the prosecution of the tribal shoreside fishery. Reporting Electronic fish tickets are to be used for fishery. requirements defined in the following the submission of final catch data. section are in addition to reporting Preliminary data, including estimates of List of Subjects in 50 CFR Part 660 requirements under applicable state law catch weights or species in the catch, Fisheries, Fishing, Indian fisheries. and requirements described at shall not be submitted on electronic fish § 660.303(b). tickets. Dated: April 3, 2007. (1) Reporting requirements for any (vi) Retention of records. [Reserved] William T. Hogarth, Pacific whiting shoreside first receiver— (vii) Waivers for submission of Assistant Administrator for Fisheries, (i) Responsibility for compliance. The electronic fish tickets. On a case-by-case National Marine Fisheries Service. Pacific whiting shoreside first receiver basis, a temporary waiver of the For the reasons set out in the is responsible for compliance with all requirement to submit electronic fish preamble, 50 CFR part 660 is proposed reporting requirements described in this tickets may be granted by the Assistant to be amended as follows: paragraph. Regional Administrator or designee if PART 660—FISHERIES OFF WEST (ii) General requirements. All records he/she determines that circumstances COAST STATES or reports required by this paragraph beyond the control of a Pacific whiting must: be maintained in English, be shoreside first receiver would result in 1. The authority citation for part 660 accurate, be legible, be based on local inadequate data submissions using the continues to read as follows: time, and be submitted in a timely electronic fish ticket system. The

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17474 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Proposed Rules

duration of the waiver will be to transporting any fish from that Marine Fish Commission for electronic determined on a case-by-case basis. landing away from the point of landing. fish tickets are not subject to any (viii) Reporting requirements when a * * * * * specific hardware or software temporary waiver has been granted. 5. In § 660.370, paragraph (h)(6)(iii) is requirements. Pacific whiting shoreside first receivers added to read as follows: (1) A personal computer with that have been granted a temporary Pentium 75–MHz or higher. Random § 660.370 Specifications and management waiver from the requirement to submit measures. Access Memory (RAM) must have electronic fish tickets must submit on sufficient megabyte (MB) space to run paper the same data as is required on * * * * * the operating system, plus an additional electronic fish tickets within 24 hours of (h) * * * 8 MB for the software application and (6) * * * the date received during the period that (iii) Sorting requirements for the available hard disk space of 217 MB or the waiver is in effect. Paper fish tickets Pacific whiting shoreside fishery. Catch greater. A CD-ROM drive with a Video must be sent by facsimile to NMFS, delivered to Pacific whiting shoreside Graphics Adapter(VGA) or higher Northwest Region, Sustainable Fisheries first receivers (including shoreside resolution monitor (super VGA is Division, 206–526–6736 or by delivering processing facilities and buying stations recommended). it in person to 7600 Sand Point Way NE, that intend to transport catch for (2) Microsoft Windows 2000 (64 MB Seattle, WA 98115. The requirements processing elsewhere) must be sorted, or greater RAM required), Windows XP for submissions of paper tickets in this prior to first weighing after offloading (128 MB or greater RAM required) or paragraph are separate from, and in from the vessel and prior to transport later operating system. addition to existing state requirements away from the point of landing, to the (3) Microsoft Access 2003 or newer for landing receipts or fish receiving species groups specified in paragraph for. tickets. (h)(6)(i)(A) of this section for vessels (B) NMFS Approved Software (2) [Reserved] with limited entry permits. Prohibited Standards and Internet Access. The 4. In § 660.306, paragraphs (b)(4) and species must be sorted according to the Pacific whiting shoreside first receiver (f)(6) are added to read as follows: following species groups: Dungeness is responsible for obtaining, installing crab, Pacific halibut, Chinook salmon, and updating electronic fish tickets § 660.306 Prohibitions. Other salmon. Non-groundfish species software either provided by Pacific * * * * * must be sorted as required by the state States Marine Fish Commission, or (b) * * * of landing. compatible with the standards specified (4) Fail to comply with all * * * * * by Pacific States Marine Fish requirements at § 660.303 (d); or to fail 6. In § 660.373, paragraph (j) is added Commission and for maintaining to submit, submit inaccurate to read as follows: internet access sufficient to transmit information, or intentionally submit data files via email. false information on any report required § 660.373 Pacific whiting (whiting) fishery management. (C) Maintenance. The Pacific whiting at § 660.303 (d) when participating in shoreside first receiver is responsible for the Pacific whiting shoreside fishery. * * * * * ensuring that all hardware and software (j) Additional requirements for * * * * * required under this subsection are fully participants in the Pacific Whiting operational and functional whenever (f) * * * Shoreside fishery—(1) Pacific whiting the Pacific whiting primary season (6) Pacific whiting shoreside first shoreside first receiver responsibilities— deliveries are accepted. receivers. (i) Receive for transport or (i) Weights and measures. All processing catch from a Pacific whiting groundfish weights reported on fish (2) Pacific whiting shoreside first shoreside vessel that does not have a tickets must be recorded from scales receivers and processors that receive properly functioning EMS system as with appropriate weighing capacity that groundfish species other than Pacific required by Federal regulation or by an ensures accuracy for the amount of fish whiting in excess of trip limits from EFP, unless a waiver for EMS coverage being weighed. For example: amounts of Pacific whiting shoreside vessels fishing was granted by NMFS for that trip. fish less than 1,000 lb (454 kg) should under an EFP issued by the Assistant (ii) Fail to sort catch from a Pacific not be weighed on scales that have an Regional Administrator are authorized whiting shoreside vessel prior to first accuracy range of 1,000 lb–7,000 lb (454 to possess the catch. weighing after offloading as specified at - 3,175 kg) and are therefore not capable (3) Vessel owners and operators, or § 660.370 (h)(6)(iii) for the Pacific of accurately weighing amounts less shoreside processor owners, or whiting fishery. than 1,000 lb (454 kg). managers may contact NMFS in writing (iii) Process, sell, or discard (ii) Electronic fish tickets—(A) to request assistance in improving data groundfish catch that has not been Hardware and software requirements. quality and resolving monitoring issues. weighed on a scale that is in compliance First receivers using the electronic fish Requests may be submitted to: Attn: with requirements at § 660.373 (j)(1)(i) ticket software provided by Pacific Frank Lockhart,National Marine and accounted for on an electronic fish States Marine Fish Commission are Fisheries Service, Northwest Region ticket with the identification number for required to meet the hardware and Sustainable Fisheries Division, 7600 the catcher vessel that delivered the software requirements below. Those Sand Point Way NE, Seattle, WA 98115, catch. whiting first receivers who have NMFS- or via email to [email protected]. (iv) Fail to weigh catch landed from approved software compatible with the [FR Doc. E7–6643 Filed 4–6–07; 8:45 am] a Pacific whiting shoreside vessel prior standards specified by Pacific States BILLING CODE 3510–22–S

VerDate Aug<31>2005 17:56 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1 rwilkins on PROD1PC63 with PROPOSAL 17475

Notices Federal Register Vol. 72, No. 67

Monday, April 9, 2007

This section of the FEDERAL REGISTER Respondents: 800. SUPPLEMENTARY INFORMATION: The OFPA contains documents other than rules or Total annual responses: 2,400. of 1990, as amended (7 U.S.C. 6501 et proposed rules that are applicable to the Total annual hours requested: 1,200 seq.), requires the Secretary to establish public. Notices of hearings and investigations, hours. an organic certification program for committee meetings, agency decisions and producers and handlers of agricultural rulings, delegations of authority, filing of Dated: March 30, 2007. petitions and applications and agency Joanne Paskar, products that have been produced using statements of organization and functions are Chief, Information and Records Division, organic methods. In developing this examples of documents appearing in this Office of Administrative Services, Bureau for program, the Secretary is required to section. Management. establish an NOSB. The purpose of the [FR Doc. 07–1728 Filed 4–6–07; 8:45 am] NOSB is to assist in the development of BILLING CODE 6116–01–M a proposed National List of Allowed and U.S. AGENCY FOR INTERNATIONAL Prohibited Substances and to advise the DEVELOPMENT Secretary on other aspects of the DEPARTMENT OF AGRICULTURE National Organic Program. Notice of Public Information Collection The current NOSB has made Requirements Submitted to OMB for Agricultural Marketing Service recommendations to the Secretary Review [AMS–TM–07–0035; TM–07–07] regarding the establishment of the initial SUMMARY: U.S. Agency for International organic program. It is anticipated that Development (USAID) has submitted Nominations for Member of the the NOSB will continue to make the following information collections to National Organic Standards Board recommendations on various matters, OMB for review and clearance under the including recommendations on AGENCY: Paperwork Reduction Act of 1995, Agricultural Marketing Service, substances it believes should be allowed Public Law 104–13. Comments USDA. or prohibited for use in organic regarding this information collection are ACTION: Notice. production and handling. best assured of having their full effect if SUMMARY: The Organic Foods The NOSB is composed of 15 received within 30 days of this Production Act (OFPA) of 1990, as members; 4 organic producers, 2 organic notification. Comments should be sent amended, requires the establishment of handlers, a retailer, 3 environmentalists, via e-mail to a National Organic Standards Board 3 public/consumer representatives, a _ David [email protected] or fax to (NOSB). The NOSB is a 15-member scientist, and a certifying agent. 202–395–7285. Copies of submission board that is responsible for developing Nominations are being sought to fill an may be obtained by calling (202) 712– and recommending to the Secretary a Environmentalist vacancy. Individuals 1365. proposed National List of Allowed and appointed to this NOSB position must SUPPLEMENTARY INFORMATION: Prohibited Substances. The NOSB also demonstrate expertise in areas of OMB Number: OMB 0412–0012. advises the Secretary on all other environmental protection and resource Form Number: 282. aspects of the National Organic conservation as they relate to organic Title: Supplier’s Certificate Agreement Program. The U.S. Department of agricultural production. with the U.S. Agency for International Agriculture (USDA) is requesting To nominate yourself or someone else Development Invoice-and-Contract nominations to fill one please submit, at a minimum, a cover Abstract. Environmentalist position on the NOSB. letter stating your interest and a copy of Type of Submission: Renewal of The Secretary of Agriculture will the nominee’s resume. You may also Information Collection. submit a list of endorsements or letters Purpose: The U.S. Agency for appoint a person to serve a 5-year term of recommendation, if desired. International Development (USAID) of office that will commence on January finances goods and related services 24, 2008, and run until January 24, Nominees will be supplied with an under its Commodity Import Program 2013. USDA encourages eligible AD–755 background information form which are contracted for by public and minorities, women, and persons with that must be completed and returned to private entities in the countries disabilities to apply for membership on USDA within 10 working days of its receiving the USAID Assistance. Since the NOSB. receipt. Resumes and completed USAID is not a party to these contracts, DATES: Written nominations, with background information forms are USAID needs some means to collect resumes, must be post-marked on or required for a nominee to receive information directly from the suppliers before August 17, 2007. consideration for appointment by the of the goods and related services and to ADDRESSES: Nomination cover letters Secretary. enable USAID to take an appropriate and resumes should be sent to Ms. Equal opportunity practices will be action against them in the event they do Katherine E. Benham, Advisory Board followed in all appointments to the not comply with the applicable Specialist, USDA–AMS–TMP–NOP, NOSB in accordance with USDA regulations. USAID does this by 1400 Independence Avenue, SW., Room policies. To ensure that the members of securing from the suppliers, as a 4008–So., Ag Stop 0268, Washington, the NOSB take into account the needs condition for the disbursement of funds DC 20250. of the diverse groups that are served by a certificate and agreement with USAID FOR FURTHER INFORMATION CONTACT: Ms. the Department, membership on the which contains appropriate Katherine E. Benham, (202) 205–7806; NOSB will include, to the extent representations by the suppliers. E-mail: [email protected]; practicable, individuals who Annual Reporting burden: Fax: (202) 205–7808. demonstrate the ability to represent

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17476 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

minorities, women, and persons with 20737–1238. Please state that your Certificate-Animal Products, is used to disabilities. comment refers to Docket No. APHIS– meet these requirements. The information collection 2007–0040. Regulations pertaining to export requirements concerning the Reading Room: You may read any certification of animals and animal nomination process have been comments that we receive on this products are contained in 9 CFR parts previously cleared by the Office of docket in our reading room. The reading 91 and 156. Management and Budget (OMB) under room is located in room 1141 of the We are asking the Office of OMB Control No. 0505–0001. USDA South Building, 14th Street and Management and Budget (OMB) to Independence Avenue SW., Dated: April 3, 2007 approve our use of this form for an Washington, DC. Normal reading room Lloyd C. Day, additional 3 years. hours are 8 a.m. to 4:30 p.m., Monday Administrator, Agricultural Marketing The purpose of this notice is to solicit Service. through Friday, except holidays. To be comments from the public (as well as [FR Doc. E7–6532 Filed 4–6–07; 8:45 am] sure someone is there to help you, please call (202) 690–2817 before affected agencies) concerning our BILLING CODE 3410–02–P coming. information collection. These comments Other Information: Additional will help us: DEPARTMENT OF AGRICULTURE information about APHIS and its (1) Evaluate whether the collection of programs is available on the Internet at information is necessary for the proper Animal and Plant Health Inspection http://www.aphis.usda.gov. performance of the functions of the Service FOR FURTHER INFORMATION CONTACT: For Agency, including whether the information will have practical utility; [Docket No. APHIS–2007–0040] information on an information collection associated with the export of (2) Evaluate the accuracy of our Notice of Request for Extension of animal products from the United States, estimate of the burden of the Approval of an Information Collection; contact Dr. Joyce Bowling-Heyward, information collection, including the Export Health Certificate for Animal Assistant Director, Technical Trade validity of the methodology and Products Services-Products, National Center for assumptions used; Import and Export, VS, APHIS, 4700 AGENCY: Animal and Plant Health (3) Enhance the quality, utility, and River Road Unit 40, Riverdale, MD Inspection Service, USDA. clarity of the information to be 20737; (301) 734–3278. For copies of collected; and ACTION: Extension of approval of an more detailed information on the (4) Minimize the burden of the information collection; comment information collection, contact Mrs. information collection on those who are request. Celeste Sickles, APHIS’ Information to respond, through use, as appropriate, Collection Coordinator, at (301) 734– SUMMARY: In accordance with the of automated, electronic, mechanical, 7477. Paperwork Reduction Act of 1995, this and other collection technologies, e.g., notice announces the Animal and Plant SUPPLEMENTARY INFORMATION: permitting electronic submission of Health Inspection Service’s intention to Title: Export Health Certificate for responses. request an extension of approval of an Animal Products. Estimate of burden: The public information collection associated with OMB Number: 0579–0256. reporting burden for this collection of the export of animal products from the Type of Request: Extension of information is estimated to average 0.5 United States. approval of a new information hours per response. DATES: We will consider all comments collection. Respondents: U.S. exporters of animal that we receive on or before June 8, Abstract: The export of agricultural products. 2007. commodities, including animals and Estimated annual number of ADDRESSES: You may submit comments animal products, is a major business in respondents: 33,000. by either of the following methods: the United States and contributes to a Federal eRulemaking Portal: Go to favorable balance of trade. To facilitate Estimated annual number of http://www.regulations.gov, select the export of U.S. animals and products, responses per respondent: 4. ‘‘Animal and Plant Health Inspection the Animal and Plant Health Inspection Estimated annual number of Service’’ from the agency drop-down Service (APHIS), U.S. Department of responses: 132,000. menu, then click ‘‘Submit.’’ In the Agriculture (USDA), maintains Estimated total annual burden on Docket ID column, select APHIS–2007– information regarding the import health respondents: 66,000 hours. (Due to 0040 to submit or view public requirements of other countries for averaging, the total annual burden hours comments and to view supporting and animals and animal products exported may not equal the product of the annual related materials available from the United States. number of responses multiplied by the electronically. Information on using Many countries that import animal reporting burden per response.) Regulations.gov, including instructions products from the United States require All responses to this notice will be for accessing documents, submitting a certification from APHIS that the summarized and included in the request comments, and viewing the docket after United States is free of certain diseases. for OMB approval. All comments will the close of the comment period, is These countries may also require that also become a matter of public record. available through the site’s ‘‘User Tips’’ our certification statement contain link. Postal Mail/Commercial Delivery: additional declarations regarding the Done in Washington, DC, this 3rd day of Please send four copies of your U.S. animal products being exported. April 2007. comment (an original and three copies) This certification must carry the USDA Kevin Shea, to Docket No. APHIS–2007–0040, seal and be endorsed by an APHIS Acting Administrator, Animal and Plant Regulatory Analysis and Development, representative (e.g., a Veterinary Health Inspection Service. PPD, APHIS, Station 3A–03.8, 4700 Medical Officer). Veterinary Services [FR Doc. E7–6596 Filed 4–6–07; 8:45 am] River Road Unit 118, Riverdale, MD Form 16–4, Health Certificate-Export BILLING CODE 3410–34–P

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17477

DEPARTMENT OF COMMERCE All meetings are open to the public, Amended Final Determination of Sales with a brief period set aside for public at Less than Fair Value and Bureau of the Census comment. However, individuals with Antidumping Duty Order: Certain extensive questions or statements must Tissue Paper Products from the People’s Census Advisory Committees submit them in writing to Ms. Jeri Green Republic of China, 70 FR 16223 (March AGENCY: Bureau of the Census, at least three days before the meeting. 30, 2005) (Tissue Paper Order). On Department of Commerce. Seating is available to the public on a March 2, 2006, the Department ACTION: Notice of public meeting. first-come, first-served basis. published a Notice of Opportunity to These meetings are physically Request Administrative Review of SUMMARY: The Bureau of the Census accessible to people with disabilities. Antidumping or Countervailing Duty (U.S. Census Bureau) is giving notice of Requests for sign language Order, Finding, or Suspended a joint meeting, followed by separate interpretation or other auxiliary aids Investigation, 71 FR 10642 (March 2, and concurrently held meetings of the should be directed to the Committee 2006). Census Advisory Committees (CACs) on Liaison Officer as soon as possible, On March 30, 2006, Cleo Inc., an the African American Population, the preferably two weeks prior to the importer of subject merchandise, American Indian and Alaska Native meeting. requested, in accordance with 19 CFR 351.213(b), an administrative review of Populations, the Asian Population, the Dated: April 3, 2007. Hispanic Population, and the Native the antidumping duty order on tissue Charles Louis Kincannon, Hawaiian and Other Pacific Islander paper from the PRC for China National Populations. The Committees will Director, Bureau of the Census. Aero–Technology Import & Export address issues related to the 2010 [FR Doc. E7–6615 Filed 4–6–07; 8:45 am] Xiamen Corp. (China National), Putian Decennial Census Program. Last-minute BILLING CODE 3510–07–P City Hong Ye Paper Products Co., Ltd. changes to the schedule are possible, (Hong Ye), and Putian City Chengxiang which could prevent advance Qu Li Feng (Chengxiang) covering the notification. DEPARTMENT OF COMMERCE POR. On March 31, 2006, Seaman Paper Company of Massachusetts, Inc., DATES: The five Census Advisory International Trade Administration Committees on Race and Ethnicity will petitioner, requested, in accordance [A–570–894] meet in plenary and concurrent sessions with 19 CFR 351.213(b), an administrative review of the on May 3–4, 2007. On May 3, the Certain Tissue Paper from the People’s meetings will begin at 9 a.m. and end at antidumping duty order on tissue paper Republic of China: Preliminary Results from the PRC for 16 companies. The 5:15 p.m. On May 4, the meetings will and Preliminary Rescission, In Part, of begin at 8:30 a.m. and end at 3:30 p.m. companies are: AR Printing and Antidumping Duty Administrative Packaging (AR P&P); China National; Location: The meeting will be held at Review the U.S. Census Bureau, 4600 Silver Hill Fujian Naoshan Paper Industry Group Road, Suitland, Maryland 20746. AGENCY: Import Administration, Co., Ltd. (Naoshan); Fuzhou Magicpro Gifts Co., Ltd. (Magicpro); Giftworld FOR FURTHER INFORMATION CONTACT: Ms. International Trade Administration, Enterprise Co., Ltd. (Giftworld); Guilin Jeri Green, Committee Liaison Officer, Department of Commerce. Qifeng Paper Co., Ltd. (Guilin Qifeng); U.S. Census Bureau, Room 8H153, 4600 SUMMARY: In response to requests from Goldwing Co., Ltd. (Goldwing); Kepsco, Silver Hill Road, Suitland, Maryland interested parties, the Department of Inc. (Kepsco); Max Fortune Industrial 20746, telephone (301) 763–2070; TTY Commerce (the Department) is conducting the first administrative Limited; Foshan Sansico Co., Ltd., PT (301) 457–2540. Grafitecindo Ciptaprima, PT Printec SUPPLEMENTARY INFORMATION: The CACs review of the antidumping duty order on certain tissue paper (tissue paper) Perkasa, PT Printec Perkasa II, PT on the African American Population, Sansico Utama, Sansico Asia Pasific the American Indian and Alaska Native from the People’s Republic of China (PRC). The period of review (POR) is Limited (collectively, the Sansico Populations, the Asian Population, the Group); and Vietnam Quijiang Paper Hispanic Population, and the Native September 21, 2004, through February 28, 2006. We have preliminarily Co., Ltd. (Quijiang). Hawaiian and Other Pacific Islander On March 31, 2006, Samsam Populations are comprised of nine determined that two of the three respondents made sales of the subject Productions Ltd. (Samsam) requested, in members each. The Committees provide accordance with 19 CFR 351.213(b), an merchandise at prices below normal an organized and continuing channel of administrative review of the value. communication between the antidumping duty order on tissue paper representative race and ethnic EFFECTIVE DATE: April 9, 2007. from the PRC for itself and its affiliated populations and the Census Bureau. The FOR FURTHER INFORMATION CONTACT: Chinese supplier Guangzhou Baxi Committees represent an outside-user Kristina Horgan or Bobby Wong, AD/ Printing Products Co., Ltd., as did Max perspective about how research and CVD Operations, Office 9, Import Fortune Industrial Limited and Max design plans for the 2010 Decennial Administration, International Trade Fortune (FETDE) Paper Products Co., Census, the American Community Administration, U.S. Department of Ltd. (collectively, Max Fortune). On Survey, and other related programs Commerce, 14th Street and Constitution April 28, 2006, the Department initiated achieve goals and satisfy needs Avenue, NW, Washington, DC 20230; an administrative review of the above– associated with these communities. The telephone: (202) 482–8173 or (202) 482– mentioned 20 companies. See Initiation Committees also recommend to the 0409, respectively. of Antidumping and Countervailing Census Bureau how data can best be SUPPLEMENTARY INFORMATION: Duty Administrative Reviews, 71 FR disseminated to diverse race and ethnic 25145 (April 28, 2006) (Initiation populations and other users. The Background Notice). Committees are established in On March 30, 2005, the Department On May 10, 2006, Naoshan submitted accordance with the Federal Advisory published in the Federal Register an a letter to the Department claiming it Committee Act (Title 5, United States antidumping duty order covering tissue had no shipments of subject Code, Appendix 2, Section 10(a)(b)). paper from the PRC. See Notice of merchandise to the United States during

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17478 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

the POR. On May 10, 2006, the comments. On July 18, 2006, the 2006, the Department extended the time Department issued quantity and value Department outlined, in a memorandum limit for submitting surrogate country questionnaires to 18 companies for to the file, the various steps it took to and surrogate value comments. which the review was initiated, and on attempt to deliver the quantity and On November 6, 2006, the May 11, 2006, the Department issued value questionnaire to Magicpro, and Department, in response to petitioner’s quantity and value questionnaires to the indicated that it had not succeeded in November 3, 2006, request to reopen the remaining two companies, Naoshan and its various attempts. On July 18, 2006, record of the review to submit new Magicpro. On May 15, 2006, the the Department placed letters from factual information, extended the Department sent another quantity and Goldwing and AR P&P on the record, in opportunity to submit new factual value questionnaire to PT Printec which each company stated that it had information. On November 27, 2006, the Perkasa II using an alternate address. On no shipments of subject merchandise Department received a letter from the May 22, 2006, Samsam and Max during the POR. On July 20, 2006, the law firm of Grunfeld, Desiderio, Fortune submitted separate quantity and Department sent a letter to Naoshan Lebowitz, Silverman, and Klestadt LLP, value questionnaires, as requested by stating that our research had indicated notifying the Department that it had the Department, indicating that each that Naoshan had shipments of subject withdrawn its representation of company had sales of subject merchandise during the POR and Samsam. On December 6, 2006, we merchandise during the POR. On May requested that the company respond to received surrogate value comments from 24, 2006, Naoshan stated again that it the research finding. Max Fortune. Petitioner commented on had no shipments of subject On July 24, 2006, petitioner requested surrogate values on December 11, 2006. merchandise during the POR. On May that the Department extend the deadline On January 4, 2007, the Department 30, 2006, petitioner submitted for withdrawing requests for specific received a letter from Grunfeld, comments on Naoshan’s May 10, 2006, producers and exporters in the instant Desiderio, Lebowitz, Silverman, and submission, requesting that the review. On July 26, 2006, in accordance Klestadt LLP notifying the Department Department seek further information with 19 CFR 351.213(d)(1), the that it was again representing Samsam regarding its claims of no shipments of Department granted an extension for in the instant review. On January 23, subject merchandise during the POR. withdrawing requests until August 25, 2007, in accordance with section On June 5, 2006, the Department sent 2006. On July 31, 2006, Guilin Qifeng 751(a)(3)(A) of the Act and 19 CFR a second quantity and value submitted a Section A response to the 351.213(h)(2), the Department further questionnaire to Kepsco, China Department’s questionnaire. On August extended the deadline for the National, Guilin Qifeng, Hong Ye, 15, 2006, Naoshan replied to the preliminary results of review until April Giftworld, MagicPro, and Chengxiang, Department’s July 20, 2006, request for 2, 2006. See Certain Tissue Paper asking them to respond and informing further information. On August 23, Products from the People’s Republic of the companies that, in failing to 2006, Guilin Qifeng submitted Section C China: Extension of Time Limit for respond, the Department might find and D responses to the Department. On Preliminary Results of the First them uncooperative and use facts August 25, 2006, petitioner filed a letter Administrative Review, 72 FR 2859 available with an adverse inference to withdrawing its request for review of (January 23, 2007). determine the appropriate antidumping five companies: Naoshan, Magicpro, On March 22, 2007, petitioner duty margins. On June 23, 2006, the Guilin Qifeng, Goldwing, and AR P&P. submitted comments on Max Fortune’s Department issued a letter to the On September 11, 2006, we invited dye and ink factors of production Chinese Ministry of Commerce interested parties to comment on the allocation. On March 23, 2007, requesting its assistance in finding a Department’s surrogate country petitioner submitted comments on the correct address for MagicPro; however, selection and/or to submit publicly bona fides nature of Samsam’s POR the Department received no response. available information to value the sales. On March 30, 2007, petitioner On July 3, 2006, the Department factors of production. On September 29, also submitted comments on Max stated in a memorandum to the file that 2006, the Department rescinded this Fortune paper making division’s only three companies had replied to its review with respect to Naoshan, financial statements. On April 2, 2007, quantity and value questionnaires Magicpro, Guilin Qifeng, Goldwing, and Samsam replied to petitioner’s March indicating that they had sales of subject AR P&P because the only requesting 23, 2007, comments.2 merchandise during the POR; therefore, party withdrew its request for review in During the course of the the Department issued questionnaires to a timely manner. See Certain Tissue administrative review, the Department these companies: Guilin Qifeng and Paper Products from the People’s also received timely filed original and Quijiang,1 Max Fortune, and Samsam. Republic of China: Notice of Partial supplemental questionnaire responses See Memorandum to The File, through Rescission of Antidumping Duty from Max Fortune and Samsam. Carrie Blozy, Program Manager, AD/ Administrative Review, 71 FR 57471 Quijiang CVD Operations, Office 9, from Bobby (September 29, 2006). On October 10, Wong, Case Analyst, AD/CVD 2006, petitioner submitted comments In response to the Department’s Operations, Office 9, regarding Certain with regard to surrogate country quantity and value questionnaire, on Tissue Paper Products from the People’s selection. On October 24, 2006, in May 25, 2006, Quijiang stated that it had Republic of China: Respondent accordance with section 751(a)(3)(A) of no shipments of subject merchandise Questionnaires (July 3, 2006). On July the Tariff Act of 1930, as amended (the during the POR. After the Department 17, 2006, Naoshan reiterated on the Act), and 19 CFR 351.213(h)(2), the issued a full questionnaire to Guilin record that it had no shipments of Department extended the deadline for Qifeng and Quijiang on July 3, 2006, subject merchandise during the POR the preliminary results of review until Quijiang asked the Department on July and replied to petitioner’s May 30, 2006, February 16, 2007. See Certain Tissue 12, 2006, to clarify how it should reply Paper Products from the People’s 1 We note that Guilin Qifeng and Quijiang are Republic of China: Extension of Time 2 Because these parties submitted these comments affiliated parties. See Section A Questionnaire Limit for Preliminary Results of the First just before the preliminary results, the Department Response from Guilin Qifeng (July 31, 2006) at 9. was not able to consider these comments for the The Department issued one questionnaire Administrative Review, 71 FR 62249 preliminary results. However, the Department will addressed to both companies. (October 24, 2006). On October 27, consider these comments for the final results.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17479

to the antidumping duty questionnaire, supplemental questionnaire. On participation by China National Aero– as it stated it had no shipments of February 8, 2007, the Department Technology Import & Export Xiamen subject merchandise during the POR on received petitioner’s comments on the Corporation (June 28, 2006). May 25, 2006. On July 18, 2006, the Sansico Group’s supplemental response. Scope of the Order Department informed Quijiang, in a On March 23, 2007, petitioner memorandum to the file, that ‘‘to the submitted additional comments on the The tissue paper products subject to extent that it did not sell or resell the Sansico Group and its claims of no this order are cut–to-length sheets of subject merchandise to the United shipments. On April 2, 2007, the tissue paper having a basis weight not States during the POR, {it}is not Sansico Group replied to petitioner’s exceeding 29 grams per square meter. required to submit a response to the March 23, 2007, comments.3 Tissue paper products subject to this Department’s July 3, 2006, antidumping China National, Hong Ye, Chengxiang, order may or may not be bleached, dye– questionnaire.’’ See Memorandum to Kepsco, and Giftworld colored, surface–colored, glazed, surface The File, through Carrie Blozy, Program decorated or printed, sequined, Manager, AD/CVD Operations, Office 9, In its first quantity and value crinkled, embossed, and/or die cut. The from Kristina Boughton, Senior questionnaire, the Department tissue paper subject to this order is in International Trade Compliance established a deadline of May 22, 2006, the form of cut–to-length sheets of tissue Analyst, AD/CVD Operations, Office 9, for submitting such responses; however, paper with a width equal to or greater regarding First Antidumping Duty the Department did not receive than one–half (0.5) inch. Subject tissue Administrative Review of Certain Tissue responses from China National, Hong paper may be flat or folded, and may be Ye, Chengxiang, Kepsco, and Giftworld. Paper Products from the People’s packaged by banding or wrapping with The Department sent follow–up Republic of China: Clarification of paper or film, by placing in plastic or quantity and value questionnaires to Respondent Selection (July 18, 2006). As film bags, and/or by placing in boxes for each of the above–referenced firms on noted above, while Guilin Qifeng distribution and use by the ultimate June 5, 2006, requesting a response submitted responses to the Department’s consumer. Packages of tissue paper within five days of the receipt of the questionnaire before the review was subject to this order may consist solely June 5 letter. The Department also noted rescinded for Guilin Qifeng, it did so of tissue paper of one color and/or style, in this letter that it might resort to facts only on behalf of itself and not on behalf or may contain multiple colors and/or available with an adverse inference if of its affiliate, Quijiang. styles. the companies failed to file a response. The Sansico Group See Letters to China National, Hong Ye, The merchandise subject to this order In response to the Department’s Chengxiang, Kepsco, and Giftworld does not have specific classification quantity and value questionnaire, on from Carrie Blozy, Program Manager, numbers assigned to them under the May 22, 2006, the Sansico Group AD/CVD Operations, Office 9, regarding Harmonized Tariff Schedule of the submitted a letter to the Department Certain Tissue Paper from the People’s United States (HTSUS). Subject claiming each of its affiliated companies Republic of China: Quantity and Value merchandise may be under one or more had no shipments of subject Follow–Up Questionnaire (June 5, 2006). of several different subheadings, merchandise during the POR. On May Although China National, Hong Ye, including: 4802.30; 4802.54; 4802.61; 30, 2006, petitioner submitted Chengxiang, Kepsco, and Giftworld 4802.62; 4802.69; 4804.31.1000; comments on the Sansico Group’s May received the initial questionnaire and 4804.31.2000; 4804.31.4020; 22, 2006, submission, requesting that the follow–up letter, which included the 4804.31.4040; 4804.31.6000; 4804.39; the Department seek further information quantity and value questionnaire, Hong 4805.91.1090; 4805.91.5000; from the Sansico Group regarding its Ye, Chengxiang, Kepsco, and Giftworld 4805.91.7000; 4806.40; 4808.30; claims of no shipments of subject did not reply to the Department. See 4808.90; 4811.90; 4823.90; 4820.50.00; merchandise during the POR. On June 7, Memorandum to the File, from Bobby 4802.90.00; 4805.91.90; 9505.90.40. The 2006, the Sansico Group responded to Wong, International Trade Compliance tariff classifications are provided for the petitioner’s comments on its claim Analyst, AD/CVD Operations, Office 9, convenience and customs purposes; of no shipments during the POR. regarding Antidumping Duty however, the written description of the In response to the Department’s Administrative Review of Certain Tissue scope of this order is dispositive.4 opening of the record to new factual Paper Products from the People’s Excluded from the scope of this order information, as mentioned above, on Republic of China: Proof of Delivery to are the following tissue paper products: November 13, 2006, petitioner China National, Hong Ye, Chengxiang, (1) tissue paper products that are coated submitted comments analyzing the Kepsco, and Giftworld (April 2, 2007). in wax, paraffin, or polymers, of a kind Sansico Group’s production and export On June 28, 2006, the Department used in floral and food service activities. On December 22, 2006, placed a facsimile it received from applications; (2) tissue paper products petitioner resubmitted, at the China National on the record, in which that have been perforated, embossed, or Department’s request, the November 13, the company stated that it would not die–cut to the shape of a toilet seat, i.e., 2006, submission with revised participate in the review. See disposable sanitary covers for toilet bracketing. On January 3, 2007, the Memorandum to the File, from Bobby seats; (3) toilet or facial tissue stock, Sansico Group responded to the Wong, International Trade Compliance towel or napkin stock, paper of a kind petitioner’s comments on its export and Analyst, AD/CVD Operations, Office 9, used for household or sanitary production activities, restating that it regarding Antidumping Duty purposes, cellulose wadding, and webs did not export Chinese–origin tissue Administrative Review of Certain Tissue Paper Products from the People’s paper to the United States. On January 4 On January 30, 2007, at the direction of U.S. 8, 2007, the Department issued a Republic of China: Notice of non– Customs and Border Protection (CBP), the supplemental questionnaire to the Department added the following HTSUS Sansico Group regarding its POR export 3 Because parties submitted these comments just classifications to the AD/CVD module for tissue and production activities. On January before the preliminary results, the Department was paper: 4802.54.3100, 4802.54.6100, and not able to consider these comments for the 4823.90.6700. However, we note that the six-digit 29, 2007, the Sansico Group submitted preliminary results. However, the Department will classifications for these numbers were already listed its response to the Department’s consider these comments for the final results. in the scope.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17480 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

of cellulose fibers (HTSUS Separate Rates cannot be verified, the Department 4803.00.20.00 and 4803.00.40.00). In proceedings involving non–market shall, subject to section 782(d) of the Act, use facts otherwise available in Preliminary Partial Rescission of economy (NME) countries, the Department begins with a rebuttable reaching the applicable determination. Administrative Review By failing to respond to the presumption that all companies within Department’s requests for information Pursuant to 19 CFR 351.213(d)(3), we the country are subject to government (i.e., responding to the quantity and have preliminarily determined that control and, thus, should be assigned a 5 value questionnaire) and by not Quijiang and the Sansico Group made single antidumping duty rate unless an allowing the Department to conduct no shipments of subject merchandise exporter can affirmatively demonstrate verification, China National, Hong Ye, during the POR of this administrative an absence of government control, both Chengxiang, Kepsco, and Giftworld, review. In making this determination, in law (de jure) and in fact (de facto), respectively, have not proven they are the Department examined PRC tissue with respect to its export activities. See paper shipment data maintained by free of government control and are, Notice of Final Determination of Sales therefore, not eligible to receive a CBP. Based on the information obtained at Less Than Fair Value: Sparklers from from CBP, we found no entries of separate rate. In the Initiation Notice, the People’s Republic of China, 56 FR the Department stated that if one of the subject merchandise during the POR 20588 (May 6, 1991) (Sparklers). In this manufactured and/or exported by companies on which we initiated a review Max Fortune and Samsam review does not qualify for a separate Quijiang or the Sansico Group to the submitted information indicating that United States. The Department also rate, all other exporters of tissue paper they are both wholly owned Hong from the PRC who have not qualified for issued no–shipment inquiries to CBP in Kong–registered companies in support March 2007 asking CBP to provide any a separate rate are deemed to be covered of their claims for company–specific by this review as part of the single PRC– information contrary to our findings of rates. See Letter to the Department of no entries of subject merchandise for wide entity of which the named Commerce from Samsam, regarding exporter is a part. See Initiation Notice Quijiang and the Sansico Group during Certain Tissue Paper from the People’s the POR. We received no response from at n.1. For these preliminary results, Republic of China: Samsam Productions China National, Hong Ye, Chengxiang, CBP. See Memorandum to The File, Ltd. Section A Questionnaire Response from Kristina Horgan, Senior Kepsco, and Giftworld will all be (August 2, 2006); see also Letter to the considered part of the PRC–wide entity, International Trade Analyst, AD/CVD Department of Commerce from Max Operations, Office 9, regarding 2004– subject to the PRC–wide rate. Fortune, regarding Certain Tissue Paper According to section 776(b) of the 2006 Administrative Review of Certain from the People’s Republic of China: Tissue Paper Products from the People’s Act, if the Department finds that an Max Fortune’s Section A Questionnaire interested party ‘‘has failed to cooperate Republic of China: CBP No Shipment E- Response (July 31, 2006). mail Inquiries (April 2, 2007). by not acting to the best of its ability to Consequently, because evidence on comply with a request for information,’’ Petitioner has alleged that the Sansico the record indicates an absence of the Department may use information Group is selling Chinese–origin tissue government control, both in law and in that is adverse to the interests of the paper via its Indonesian facilities. The fact, over each respondent’s export party as facts otherwise available. Sansico Group has stated on the record, activities, we preliminarily determine Adverse inferences are appropriate ‘‘to and provided supporting evidence, that that Max Fortune and Samsam have ensure that the party does not obtain a none of its companies exported each met the criteria for the application more favorable result by failing to Chinese–origin subject merchandise to of a separate rate consistent with past cooperate than if it had cooperated the United States during the POR. The practice. See, e.g., Notice of Preliminary fully.’’ See Statement of Administrative Department has analyzed record Determination of Sales at Less Than Action (SAA) accompanying the information and preliminarily finds that Fair Value and Postponement of Final Uruguay Round Agreements Act the Sansico Group did not export Determination: Synthetic Indigo From (URAA), H.R. Rep. No. 103–316, Vol. 1 subject merchandise to the United the People’s Republic of China, 64 FR at 870 (1994). States during the POR. However, the 69723 (December 14, 1999), unchanged As explained above, the PRC–wide Department may solicit additional in Synthetic Indigo From the People’s entity (including China National, Hong information prior to the final results of Republic of China; Notice of Final Ye, Chengxiang, Kepsco, and Giftworld) this review from the Sansico Group to Determination of Sales at Less Than did not respond to the Department’s confirm the veracity of its no shipment Fair Value, 65 FR 25706 (May 3, 2000). requests for information. Therefore, the claims. PRC–wide entity did not cooperate to Therefore, based on the results of our Use of Facts Otherwise Available and the PRC–Wide Rate the best of its ability. Because the PRC– corroborative CBP query, indicating no wide entity did not cooperate to the best shipments of subject merchandise by For the reasons outlined below, we of its ability in the proceeding, the Quijiang or the Sansico Group during have applied total adverse facts Department finds it necessary, pursuant the POR, as well as Quijiang’s and the available to China National, Hong Ye, to sections 776(a)(2)(A),(B) and (C) and Sansico Group’s claim that each had no Chengxiang, Kepsco, and Giftworld. 776(b) of the Act, to use adverse facts subject shipments, we are preliminarily Section 776(a)(2) of the Act provides available (AFA) as the basis for these rescinding the administrative review, in that, if an interested party: (A) preliminary results of review for the accordance with 19 CFR 351.213(d)(3), withholds information that has been PRC–wide entity. with respect to Quijiang and the Sansico requested by the Department; (B) fails to Group. provide such information in a timely Selection of AFA Rate manner or in the form or manner In deciding which facts to use as 5 We note that Quijiang is the respondent in a requested subject to sections 782(c)(1) AFA, section 776(b) of the Act and 19 concurrent anti-circumvention inquiry in tissue and (e) of the Act; (C) significantly CFR 351.308(c)(1) authorize the paper from the PRC. See Certain Tissue Paper Products from the People’s Republic of China: impedes a proceeding under the Department to rely on information Notice of Initiation of Anti-circumvention Inquiry, antidumping statute; or (D) provides derived from (1) the petition, (2) a final 71 FR 53662 (September 12, 2006). such information but the information determination in the investigation, (3)

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17481

any previous review or determination, so, the importer, knowing of the rule, petitioner in the LTFV investigation, or (4) any information placed on the would have produced current together with the most appropriate record. In reviews, the Department information showing the margin to be surrogate value information available to normally selects, as AFA, the highest less.’’ Rhone Poulenc, 899 F.2d at 1190. the Department chosen from rate on the record of any segment of the Consistent with the statute, court submissions by the parties in the LTFV proceeding. See, e.g., Freshwater precedent, and its normal practice, the investigation. Furthermore, the Crawfish Tail Meat from the People’s Department has assigned the rate of calculation of this margin was subject to Republic of China: Notice of Final 112.64 percent, the highest rate on the comment from interested parties in the Results of Antidumping Duty record of any segment of the proceeding, proceeding. As there is no information Administrative Review, 68 FR 19504 to the PRC–wide entity (including China on the record of this review that (April 21, 2003). The Court of National, Hong Ye, Chengxiang, Kepsco, demonstrates that this rate is not International Trade (CIT) and the and Giftworld) as AFA. See, e.g., Tissue appropriate for use as AFA, we Federal Circuit have consistently Paper Order. As discussed further determine that this rate has relevance. upheld the Department’s practice in this below, this rate has been corroborated. As the 112.64 percent rate is both regard. See Rhone Poulenc, Inc. v. reliable and relevant, we determine that Corroboration of Secondary Information it has probative value and is United States, 899 F.2d 1185, 1190 (Fed. Used as AFA Circ. 1990) (Rhone Poulenc); NSK Ltd. v. corroborated to the extent practicable, in United States, 346 F. Supp. 2d 1312, Section 776(c) of the Act requires that accordance with section 776(c) of the 1335 (CIT 2004) (upholding a 73.55 the Department corroborate, to the Act. Therefore, we have assigned this percent total AFA rate, the highest extent practicable, a figure which it AFA rate to exports of the subject available dumping margin from a applies as AFA. To be considered merchandise by the PRC–wide entity. corroborated, information must be different respondent in a LTFV Normal Value Comparisons investigation); see also Kompass Food found to be both reliable and relevant. To determine whether the Trading Int’l v. United States, 24 CIT We are applying as AFA the highest rate respondents’ sales of the subject 678, 689 (2000) (upholding a 51.16 from any segment of this proceeding, merchandise were made at prices below percent total AFA rate, the highest which is the rate currently applicable to normal value, we compared their United available dumping margin from a all exporters subject to the PRC–wide States prices to normal values, as different, fully cooperative respondent); rate. The AFA rate in the current review (i.e., the PRC–wide rate of 112.64 described in the ‘‘U.S. Price’’ and and Shanghai Taoen International percent) represents the highest rate from ‘‘Normal Value’’ sections of this notice. Trading Co., Ltd. v. United States, 360 the petition in the LTFV investigation. F. Supp 2d 1339, 1348 (CIT 2005) U.S. Price See Tissue Paper Order. (upholding a 223.01 percent total AFA For purposes of corroboration, the Export Price rate, the highest available dumping Department will consider whether that For Max Fortune, we based U.S. price margin from a different respondent in a margin is both reliable and relevant. The previous administrative review). on export price (EP) in accordance with AFA rate we are applying for the current section 772(a) of the Act, because the The Department’s practice when review was corroborated in the LTFV first sale to an unaffiliated purchaser selecting an adverse rate from among investigation. See Notice of Final was made prior to importation, and the possible sources of information is to Determination of Sales at Less Than constructed export price (CEP) was not ensure that the margin is sufficiently Fair Value: Certain Tissue Paper otherwise warranted by the facts on the adverse ‘‘as to effectuate the purpose of Products from the People’s Republic of record. We calculated EP based on the the facts available role to induce China, 70 FR 7475 (February 14, 2005). packed price from the exporter to the respondents to provide the Department Moreover, no information has been first unaffiliated customer in the United with complete and accurate information presented in the current review that States. Where applicable, for Max in a timely manner.’’ See Static Random calls into question the reliability of this Fortune, we deducted foreign inland Access Memory Semiconductors from information. freight, insurance, foreign brokerage and Taiwan; Final Determination of Sales at With respect to the relevance aspect handling expenses, ocean freight, and Less than Fair Value, 63 FR 8909, 8932 of corroboration, the Department will marine insurance from the starting price (February 23, 1998). The Department’s consider information reasonably at its (gross unit price), in accordance with practice also ensures ‘‘that the party disposal to determine whether a margin section 772(c) of the Act. does not obtain a more favorable result continues to have relevance. Where by failing to cooperate than if it had circumstances indicate that the selected Constructed Export Price cooperated fully.’’ See SAA at 870; see margin is not appropriate as AFA, the For Samsam, we calculated CEP in also Final Determination of Sales at Department will disregard the margin accordance with section 772(b) of the Less than Fair Value: Certain Frozen and determine an appropriate margin. Act, because sales were made on behalf and Canned Warmwater Shrimp from For example, in Fresh Cut Flowers from of the PRC–based company by its U.S. Brazil, 69 FR 76910 (December 23, Mexico; Final Results of Antidumping affiliate to unaffiliated purchasers. We 2004); D&L Supply Co. v. United States, Administrative Review, 61 FR 6812, based CEP on FOB prices to the first 113 F. 3d 1220, 1223 (Fed. Cir. 1997). 6814 (February 22, 1996), the unaffiliated purchaser in the United In choosing the appropriate balance Department disregarded the highest States. Where appropriate, for Samsam, between providing respondents with an margin in that case as adverse best we made deductions from the starting incentive to respond accurately and information available (the predecessor price (gross unit price) for movement imposing a rate that is reasonably to facts available) because the margin expenses in accordance with section related to the respondent’s prior was based on another company’s 772(c)(2)(A) of the Act, which included commercial activity, selecting the uncharacteristic business expense foreign inland freight, international highest prior margin ‘‘reflects a common resulting in an unusually high margin. freight, U.S. freight from the port to the sense inference that the highest prior The information used in calculating this warehouse, and U.S. duties. margin is the most probative evidence of margin was based on sales and In accordance with section 772(d)(1) current margins, because, if it were not production data submitted by the of the Act, we also deducted for

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17482 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Samsam those selling expenses information placed on the record (e.g., Operations, Office 9, regarding Max associated with economic activities production data), India is a significant Fortune Industrial Limited and Max occurring in the United States, producer of comparable merchandise. Fortune (FETDE) Paper Products Co., including credit expenses, inventory See Memorandum to The File, through Ltd. (collectively, Max Fortune) Analysis carrying costs, and indirect selling James C. Doyle, Director, AD/CVD Memorandum for the Preliminary expenses. We also made an adjustment Operations, Office 9, Import Results of Review (April 2, 2007). for profit in accordance with section Administration, and Christopher D. Max Fortune also reported by– 772(d)(3) of the Act. Riker, Program Manager, AD/CVD product sales. With respect to the For both Max Fortune and Samsam, Operations, Office 9, from Catherine application of the by–product offset to where foreign inland freight, insurance, Bertrand, Senior International Trade normal value, consistent with the or foreign brokerage and handling were Analyst, AD/CVD Operations, Office 9, Department’s determination in Diamond provided by PRC service providers or regarding Antidumping Duty Sawblades from the PRC, because our paid for in renminbi, we valued these Administrative Review of Certain Tissue surrogate financial statements refers to services using Indian surrogate values Paper from the People’s Republic of income from by–product sales and (see ‘‘Factors of Production’’ section China: Selection of a Surrogate Country because Max Fortune reported that it below for further discussion). For those (April 2, 2007). Accordingly, we have sold its by–product, we will deduct the expenses that were provided by a selected India as the surrogate country surrogate value of the by–product from market–economy provider and paid for for purposes of valuing the factors of normal value. This is consistent with in market–economy currency, we used production because it meets the accounting principles based on a the reported expense, pursuant to 19 Department’s criteria for surrogate– reasonable assumption that if a CFR 351.408(c)(1). country selection. See Id. Where Indian company sells a by–product, the by– import statistics were unavailable, i.e., product necessarily incurs expenses for Normal Value paraffin oil, the Department has used overhead, SG&A, and profit. See Final NME Country Indonesian import statistics, as Determination of Sales at Less Than published by the World Trade Atlas Fair Value and Final Partial Affirmative In every case conducted by the (WTA), based on the fact that Indonesia Determination of Critical Department involving the PRC, the PRC is economically comparable and a Circumstances: Diamond Sawblades has been treated as an NME country. producer of comparable merchandise. and Parts Thereof from the People’s See, e.g., Honey from the People’s See Id. Republic of China, 71 FR 29303 (May Republic of China: Final Results and 22, 2006), and accompanying Issues and Final Rescission, in Part, of Factors of Production Decision Memorandum at Comment 9 Antidumping Duty Administrative In accordance with section 773(c) of (unchanged in Notice of Amended Final Review, 71 FR 34893 (June 16. 2006). the Act, we calculated NV based on the Determination of Sales at Less Than Pursuant to section 771(18)(C)(i) of the factors of production which included, Fair Value: Diamond Sawblades and Act, any determination that a foreign but were not limited to: (A) hours of Parts Thereof from the People’s country is an NME country shall remain labor required; (B) quantities of raw Republic of China, 71 FR 35864 (June in effect until revoked by the materials employed; (C) amounts of 22, 2006)). administering authority. See, e.g., energy and other utilities consumed; Normally, the Department prefers to Freshwater Crawfish Tail Meat from the and (D) representative capital costs, use factors of production data that People’s Republic of China: Notice of including depreciation. We used the accurately represent the quantity of Final Results of Antidumping Duty factors of production reported by the inputs consumed on a control number Administrative Review, 71 FR 7013 producer for materials, energy, labor, (CONNUM)-specific basis. In the (February 10, 2006). None of the parties and packing. To calculate NV, we present case, however, Max Fortune has to this proceeding have contested such multiplied the reported unit factor indicated that its records for dye and treatment. Accordingly, we calculated quantities by publicly available Indian ink consumption in the papermaking normal value (NV) in accordance with surrogate values. and paper printing stages of production section 773(c) of the Act, which applies Certain of Max Fortune’s inputs into do not permit it to report the FOP data to NME countries. the production of the merchandise in a manner consistent with the under review were purchased from Surrogate Country Department’s requests. While we prefer market economy suppliers and paid for greater specificity in the reporting of Section 773(c)(4) of the Act requires in market economy currencies. We used these factors of production, for these the Department to value an NME the reported weight–averaged market preliminary results, we have used Max producer’s factors of production, to the economy prices to value the appropriate Fortune’s reported aggregate extent possible, in one or more market– input when the item was paid for in a consumption in the calculation of economy countries that (1) are at a level market economy currency and normal value, subject to verification. of economic development comparable to accounted for a significant portion of In selecting the surrogate values, we that of the NME country, and (2) are the total purchases of that input. For considered the quality, specificity, and significant producers of comparable purposes of the preliminary results, we contemporaneity of the data, in merchandise. India is among the have determined that only two of Max accordance with our normal practice. countries comparable to the PRC in Fortune’s reported market economy See, e.g., Fresh Garlic From the People’s terms of overall economic development. purchases accounted for a significant Republic of China: Final Results of See Letter to All Interested Parties from portion of total purchases of that input Antidumping Duty New Shipper Review, Carrie Blozy, Program Manager, AD/ and, therefore, have used the reported 67 FR 72139 (December 4, 2002), and CVD Operations, Office 9, regarding purchase prices for those two inputs in accompanying Issues and Decision Certain Tissue Paper from the People’s our calculation. See Memorandum to Memorandum at Comment 6; and Final Republic of China: Request for the File, through Christopher D. Riker, Results of First New Shipper Review and Comments on Surrogate Country and Program Manager, AD/CVD Operations, First Antidumping Duty Administrative Surrogate Values (September 11, 2006). Office 9, from Kristina Horgan, Senior Review: Certain Preserved Mushrooms In addition, based on publicly available International Trade Analyst, AD/CVD From the People’s Republic of China, 66

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17483

FR 31204 (June 11, 2001), and International Monetary Fund, for those covers the period April 1, 2005, to accompanying Issues and Decision surrogate values in Indian rupees to be March 31, 2006 and includes data for Memorandum at Comment 5. When we contemporaneous with the POR. We the 2004–2005 fiscal year as well, used publicly available import data also made currency conversions, where covering the entire POR. We determine from the Ministry of Commerce of India necessary, pursuant to 19 CFR 351.415, that Pudumjee’s financial statements are (Indian Import Statistics) for September to U.S. dollars using the daily exchange appropriate for use in these preliminary 2004 through February 2006, as rate corresponding to the reported date results because Pudumjee is a producer published by the WTA, to value inputs of each sale. We relied on the daily of comparable merchandise and its sourced domestically by PRC suppliers, exchanges rates posted on the Import financial data are contemporaneous we added a surrogate cost for freight Administration Web site (http:// with the POR. See Factor Valuation using the shorter of the reported www.trade.gov/ia/). See Factor Memo. distance from the domestic supplier to Valuation Memo. Because of the variability of wage the factory or the distance from the Specifically, the Department used rates in countries with similar levels of closest seaport to the factory. See Sigma Indian Import Statistics to value the raw per capita gross national product, 19 Corp. v. United States, 117 F.3d 1401, material6 and packing material inputs CFR 351.408(c)(3) requires the use of a 1408 (Fed. Cir. 1997). When we used that Max Fortune and Samsam used to regression–based wage rate. Therefore, non–import surrogate values for factors produce the merchandise under review to value the labor input, we used the sourced domestically by PRC suppliers during the POR, except where listed PRC’s regression–based wage rate (e.g., coal, market economy purchased below. For a detailed description of all published by Import Administration on inputs), we based freight for this input surrogate values used for respondents, its Web site, http://www.trade.gov/ia/. on the actual distance from the input see Factor Valuation Memo. We note that this wage rate is calculated supplier to the site at which the input To value paraffin oil, also known as in accordance with the Department’s was consumed. kerosene, we used Indonesian import revised methodology. See Expected Non Additionally, in instances where we statistics, as published by the WTA, Market Economy Wages: Request for relied on Indian import data to value instead of Indian Import Statistics, Comments on 2006 Calculation, 72 FR inputs, in accordance with the because India did not import this input 949 (January 9, 2007) and Antidumping Department’s practice, we excluded during the POR. Methodologies: Market Economy Inputs, imports from both NME countries and To value water, we calculated the Expected Non Market Economy Wages, countries deemed to maintain broadly average water rates from various regions Duty Drawback, and Request for available, non–industry-specific as reported by the Maharashtra Comments, 71 FR 6176 (October 19, subsidies which may benefit all Industrial Development Corporation, 2006). See also Factor Valuation Memo. exporters to all export markets (i.e., http://midcindia.org, dated June 1, To value truck freight, we calculated Indonesia, South Korea, and Thailand) 2003. We inflated the value for water a weighted–average freight cost based from our surrogate value calculations. using the POR average WPI rate. See on publicly available data from See, e.g., Tapered Roller Bearings and Factor Valuation Memo. www.infreight.com, an Indian inland Parts Thereof, Finished and Unfinished, We valued diesel, electricity and coal freight logistics resource Web site. See From the People’s Republic of China; using the rates provided by the OECD’s Factor Valuation Memo. To value brokerage and handling, we Final Results of 1999–2000 International Energy Agency’s used a simple average of the publicly Administrative Review, Partial publication: Key World Energy Statistics summarized version of the average Rescission of Review, and from 2004 and 2005. For diesel, the value for brokerage and handling Determination Not to Revoke Order in prices are based on 2004 and 2005 first expenses reported in the U.S. sales Part, 66 FR 57420 (November 15, 2001) quarter prices of automotive diesel fuel listings in Essar Steel Ltd.’s (Essar) and accompanying Issues and Decision retail prices. For electricity, the prices February 28, 2005, Section C Memorandum at Comment 1; see also are based on 2002 fourth quarter prices; submission in the antidumping duty Memorandum to the File, through James we inflated the value for electricity review of certain hot–rolled carbon steel C. Doyle, Director, Office 9, and using the POR average WPI rate. For Christopher D. Riker, Program Manager, flat products from India, for which the coal, the prices are based on 2004, 2005, POR was December 1, 2003, through AD/CVD Operations, Office 9, from and 2006 first quarter prices. See Factor Bobby Wong, International Trade November 30, 2004; information from Valuation Memo. Agro Dutch Industries Ltd.’s (Agro Analyst, AD/CVD Operations, Office 9, Consistent with the determination in and Kristina Horgan, Senior Dutch) May 25, 2005, Section C the LTFV investigation, to value the submission, taken from the International Trade Analyst, AD/CVD surrogate financial ratios of factory Operations, Office 9, regarding Factors administrative review of preserved overhead, selling, general & mushrooms from India, for which the of Production Valuation Memorandum administrative expenses, and profit, the for the Preliminary Results of POR was February 1, 2004, through Department relied on the publicly Antidumping Administrative Review of January 31, 2005; and information from available information in the financial Certain Tissue Paper from the People’s Kejriwal Paper Ltd.’s (Kejriwal) January statements for Pudumjee Pulp & Paper Republic of China (April 2, 2007) 9, 2006, Section C submission, taken Mills Ltd. (Pudumjee) for fiscal year (Factor Valuation Memo). This from the investigation of certain lined 2005–2006, submitted by petitioner on memorandum is on file in the Central paper from India, for which the POR December 11, 2006. The annual report Records Unit (CRU), room B–099 of the was July 1, 2004, through June 30, 2005. Department building. See Certain Hot–Rolled Carbon Steel 6 Regarding the surrogate value for dyes and inks, Where we could not obtain publicly the Department used an average of three types of Flat Products From India: Preliminary available information contemporaneous dyes and inks as there was not more specific Results of Antidumping Duty with the POR to value factors of information regarding the types of dyes and inks Administrative Review, 71 FR 2018 production, we inflated the surrogate used by respondents’ on the record. The (January 12, 2006); Certain Preserved Department intends to ask respondents for more value using the Indian Wholesale Price specific information on the composition of the dyes Mushrooms From India: Final Results of Index (WPI), as published in the and inks used in the production process after the Antidumping Duty Administrative International Financial Statistics of the preliminary results. Review, 71 FR 10646 (March 2, 2006);

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17484 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

and Notice of Final Determination of final results of these reviews and for identification of the arguments to be Sales at Less Than Fair Value, and future deposits of estimated duties, raised at the hearing. Negative Determination of Critical where applicable. Unless otherwise notified by the Circumstances: Certain Lined Paper Department, interested parties may Cash Deposit Requirements Products from India, 71 FR 45012 submit case briefs within 30 days of the (August 8, 2006). See also Factor The following cash deposit date of publication of this notice in Valuation Memo. requirements will be effective upon accordance with 19 CFR 351.309(c)(ii). In accordance with 19 CFR publication of the final results of this As part of the case brief, parties are 351.301(c)(3)(ii), for the preliminary administrative review for all shipments encouraged to provide a summary of the results of this administrative review, of the subject merchandise entered, or arguments not to exceed five pages and interested parties may submit publicly withdrawn from warehouse, for a table of statutes, regulations, and cases available information to value the consumption on or after the publication cited in accordance with 19 CFR factors of production until 20 days date, as provided for by section 351.309(c)(2)(ii). Rebuttal briefs, which following the date of publication of 751(a)(2)(C) of the Act: (1) for the must be limited to issues raised in the these preliminary results. exporters listed above, the cash deposit case briefs, must be filed within five rate will be established in the final days after the case brief is filed in Preliminary Results of Review results of this review (except, if the rate accordance with 19 CFR 351.309(d). The We preliminarily determine that the is zero or de minimis, i.e., less than 0.5 Department will issue the final results following antidumping duty margins percent, no cash deposit will be of this review, which will include the exist: required for that company); (2) for results of its analysis of issues raised in previously investigated or reviewed PRC the briefs, not later than 120 days after Individually Reviewed Exporters and non–PRC exporters not listed above the date of publication of this notice in that have separate rates, the cash accordance with section 751(a)(2)(B)(iv) Max Fortune Ltd...... 0.15% deposit rate will continue to be the of the Act and 19 CFR 351.213(h)(1). Samsam Productions Ltd...... 115.24% exporter–specific rate published for the most recent period; (3) for all PRC Notification to Importers PRC–Wide Rate exporters of subject merchandise which This notice also serves as a have not been found to be entitled to a preliminary reminder to importers of PRC–Wide Rate (including separate rate, the cash deposit rate will their responsibility under 19 CFR China National, Hong Ye, be the PRC–wide rate of 112.64 percent; 351.402(f) to file a certificate regarding Chengxiang, Kepsco, and and (4) for all non–PRC exporters of the reimbursement of antidumping Giftworld) ...... 112.64% subject merchandise which have not duties prior to liquidation of the received their own rate, the cash deposit relevant entries during these review For details on the calculation of the rate will be the rate applicable to the periods. Failure to comply with this antidumping duty weighted–average PRC exporters that supplied that non– requirement could result in the margin for each company, see the PRC exporter. These deposit Secretary’s presumption that respective company’s analysis requirements, when imposed, shall reimbursement of antidumping duties memorandum for the preliminary remain in effect until publication of the occurred and the subsequent assessment results of the first administrative review final results of the next administrative of double antidumping duties. of the antidumping duty order on tissue review. This administrative review and this paper from the PRC, dated April 2, notice are published in accordance with Schedule for Final Results of Review 2007. Public versions of these sections 751(a)(1) and 777(i)(1) of the memoranda are on file in the CRU. The Department will disclose Act. calculations performed in connection Assessment Rates Dated: April 2, 2007. with the preliminary results of this Pursuant to 19 CFR 351.212(b), the review within five days of the date of Stephen J. Claeys, Department will determine, and CBP publication of this notice in accordance Deputy Assistant Secretary for Import shall assess, antidumping duties on all with 19 CFR 351.224(b). Any interested Administration. appropriate entries. The Department party may request a hearing within 30 [FR Doc. E7–6635 Filed 4–6–07; 8:45 am] intends to issue appropriate assessment days of publication of this notice in BILLING CODE 3510–DS–S instructions directly to CBP 15 days accordance with 19 CFR 351.310(c). after publication of the final results of Any hearing will normally be held 37 DEPARTMENT OF COMMERCE this review. For assessment purposes, days after the publication of this notice, where possible, we calculated importer– or the first workday thereafter, at the International Trade Administration specific assessment rates for tissue U.S. Department of Commerce, 14th paper from the PRC via ad valorem duty Street and Constitution Avenue, NW, [C–570–907] assessment rates based on the ratio of Washington, DC 20230. Individuals who Coated Free Sheet Paper From the the total amount of the dumping wish to request a hearing must submit People’s Republic of China: Amended margins calculated for the examined a written request within 30 days of the Preliminary Affirmative Countervailing sales to the total entered value of those publication of this notice in the Federal Duty Determination same sales. We will instruct CBP to Register to the Assistant Secretary for assess antidumping duties on all Import Administration, U.S. Department AGENCY: Import Administration, appropriate entries covered by this of Commerce, Room 1870, 14th Street International Trade Administration, review if any assessment rate calculated and Constitution Avenue, NW, Department of Commerce. in the final results of this review is Washington, DC 20230. Requests for a SUMMARY: The Department of Commerce above de minimis. The final results of public hearing should contain: (1) the preliminarily determines that this review shall be the basis for the party’s name, address, and telephone countervailable subsidies are being assessment of antidumping duties on number; (2) the number of participants; provided to producers and exporters of entries of merchandise covered by the and (3) to the extent practicable, an coated free sheet paper from the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17485

People’s Republic of China. For 1109 (Preliminary), 71 FR 78464 the companion antidumping duty information on the estimated subsidy (December 29, 2006). investigations in accordance with rates, see the ‘‘Suspension of Also on December 29, 2006, we section 705(a)(1) of the Act. We will Liquidation’’ section of this notice. The published a postponement of the address this request in a separate version released on Friday, March 30, preliminary determination of this Federal Register notice. investigation until March 30, 2007. See 2007, contained a ‘‘Benchmarks’’ Period of Investigation section that was intended to be deleted Coated Free Sheet Paper From from the final version because it was Indonesia, the People’s Republic of The period for which we are duplicative, so this amended China, and the Republic of Korea: measuring subsidies, or the period of preliminary determination corrects that Notice of Postponement of Preliminary investigation (POI), is calendar year error. This error was discovered prior to Determinations in the Countervailing 2005. publication in the Federal Register, Duty Investigations, 71 FR 78403 Scope of the Investigation consequently, this amendment is being (December 29, 2006). published in its place. We received responses from the GOC The merchandise covered by this on December 11, 2006 and January 31, investigation includes coated free sheet EFFECTIVE DATE: April 9, 2007. 2007, Gold East on January 31, 2007, paper and paperboard of a kind used for FOR FURTHER INFORMATION CONTACT: and Chenming on February 2, 2007. On writing, printing or other graphic David Layton or David Neubacher, AD/ February 9, 2007, the petitioner, New purposes. Coated free sheet paper is CVD Operations, Office 1, Import Page Corporation, and the United Steel, produced from not more than 10 percent Administration, International Trade Paper and Forestry, Rubber, by weight mechanical or combined Administration, U.S. Department of Manufacturing, Energy, Allied chemical/mechanical fibers. Coated free Commerce, 14th Street and Constitution Industrial and Service Workers sheet paper is coated with kaolin (China Avenue, NW., Washington, DC 20230; International Union, AFL–CIO–CLC clay) or other inorganic substances, with telephone: (202) 482–0371 or (202) 482– (USW), a domestic interested party, or without a binder, and with no other 5823, respectively. submitted comments regarding these coating. Coated free sheet paper may be SUPPLEMENTARY INFORMATION: questionnaire responses. We issued surface-colored, surface-decorated, Case History supplemental questionnaires to Gold printed (except as described below), East and Chenming on February 15, embossed, or perforated. The subject The following events have occurred 2007, and to the GOC on February 21, merchandise includes single- and since the publication of the Department 2007. We received responses to these double-side-coated free sheet paper; of Commerce’s (the Department) notice supplemental questionnaires from the coated free sheet paper in both sheet or of initiation in the Federal Register. See GOC on March 15, 2007, Chenming on roll form; and is inclusive of all weights, Notice of Initiation of Countervailing March 12, 2007, and Gold East on brightness levels, and finishes. The Duty Investigations: Coated Free Sheet March 9 and 13, 2007. We issued a terms ‘‘wood free’’ or ‘‘art’’ paper may Paper From the People’s Republic of second supplemental questionnaire to also be used to describe the imported China, Indonesia and the Republic of the GOC, Gold East and Chenming on product. Korea, 71 FR 68546 (November 27, February 22, 2007, and received Excluded from the scope are: (1) 2006) (Initiation Notice). responses to these questionnaires from Coated free sheet paper that is imported On December 1, 2006, the Department Chenming on March 12, 2007, and the printed with final content printed text selected the two largest Chinese GOC and Gold East on March 15, 2007. or graphics; (2) base paper to be producers/exporters of coated free sheet On February 20, 2007, the USW sensitized for use in photography; and paper, Gold East Paper (Jiangsu) Co., submitted two new subsidy allegations. (3) paper containing by weight 25 Ltd. (Gold East) and Shandong These allegations were timely as they percent or more cotton fiber. Chenming Paper Holdings Ltd. were filed 40 days prior to the Coated free sheet paper is classifiable (Chenming) as mandatory respondents. scheduled date of the preliminary under subheadings 4810.13.1900, See Memorandum to Stephen J. Claeys, determination, in accordance with 19 4810.13.2010, 4810.13.2090, Deputy Assistant Secretary for Import CFR 351.301(d)(4)(i)(A). We decided to 4810.13.5000, 4810.13.7040, Administration, ‘‘Respondent include both of these newly alleged 4810.14.1900, 4810.14.2010, Selection’’ (December 1, 2006). This programs in our investigation. See 4810.14.2090, 4810.14.5000, memorandum is on file in the Memorandum to Susan Kuhbach, Office 4810.14.7040, 4810.19.1900, Department’s Central Records Unit in Director, ‘‘New Subsidy Allegation’’ 4810.19.2010, and 4810.19.2090 of the Room B–099 of the main Department (March 5, 2007). On March 7, 2007, we Harmonized Tariff Schedule of the building (CRU). On December 4, 2006, issued a questionnaire to each of the United States (HTSUS). While HTSUS we issued the countervailing duty (CVD) respondents with respect to the new subheadings are provided for questionnaire to the Government of the programs. We received responses to convenience and customs purposes, our People’s Republic of China (GOC), Gold these questionnaires from Gold East on written description of the scope of these East and Chenming. March 15, 2007, and from the GOC and investigations is dispositive. On December 29, 2006, the Chenming on March 19, 2007. International Trade Commission (ITC) On March 8, 2007, the petitioner Scope Comments issued its affirmative preliminary submitted comments for consideration In accordance with the preamble to determination that there is a reasonable in the preliminary determination. The the Department’s regulations, in our indication that an industry in the USW filed comments on March 14, Initiation Notice we set aside a period United States is materially injured by 2007. We also received comments from of time for parties to raise issues reason of allegedly subsidized imports Gold East on March 20, 2007, and regarding product coverage, and of coated free sheet paper (CFS) from March 22, 2007. encouraged all parties to submit China, Indonesia, and Korea. See Coated On March 26, 2007, petitioner comments within 20 calendar days of Free Sheet Paper China, Indonesia, and requested that the final determination of publication of the Initiation Notice. See Korea, Investigation Nos. 701–TA–444– this countervailing duty investigation be Antidumping Duties; Countervailing 446 (Preliminary) and 731–TA–1107– aligned with the final determinations in Duties, 62 FR 27296, 27323, (May 19,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17486 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

1997) (Preamble) and Initiation Notice, to the PRC’s present-day economy,’’ Gold East: Gold East has responded to 71 FR at 68546. (March 29, 2007) (‘‘Georgetown Memo’’) the Department’s original and On December 18, 2006, respondents (memorandum is on file in the supplemental questionnaires on behalf in the antidumping duty investigation of Department’s CRU). of itself, its parent company and Gold CFS from Indonesia submitted timely Huasheng Paper Co., Ltd. (GHS). Gold scope comments. On January 12, 2007, Subsidies Valuation Information East reported that GHS produces CFS, the Department requested that the Allocation Period but that GHS did not produce CFS that respondents file these comments on the is subject to investigation during the administrative record of the CFS The average useful life (‘‘AUL’’) POI. Investigations. See Memorandum from period in this proceeding as described Gold East has also acknowledged that Alice Gibbons to The File (January 12, in 19 CFR 351.524(d)(2) is 13 years it and GHS are affiliated with a 2007). On January 12, 2007, the according to the U.S. Internal Revenue domestic pulp supplier that provides respondents re-filed these comments on Service’s 1977 Class Life Asset inputs to both companies. Gold East the administrative record of the CFS Depreciation Range System. No party in asserts, however, that the pulp supplied Investigations. On January 19, 2007, the this proceeding has disputed this by this company cannot be considered petitioner filed a response to these allocation period. an ‘‘input product’’ within the meaning comments. Attribution of Subsidies of 19 CFR 351.525(b)(6)(iv) because the The respondents requested that the pulp provided by this supplier is not Department exclude from its The Department’s regulations at 19 suitable for use in the CFS paper that is investigations cast-coated free sheet CFR 351.525(b)(6)(i) state that the exported to the United States. Instead, paper. The Department analyzed this Department will normally attribute a this pulp was used exclusively in the request, together with the comments subsidy to the products produced by the production of lower-end paper products from the petitioner, and determined that corporation that received the subsidy. that were sold in the PRC and would not it is not appropriate to exclude cast- However, 19 CFR 351.525(b)(6) directs meet the specifications of its U.S. coated free sheet paper from the scope that the Department will attribute customers. Furthermore, Gold East of these investigations. See subsidies received by certain other states that it and GHS strictly segregate Memorandum to Stephen J. Claeys, companies to the combined sales of the pulp provided by the domestic Deputy Assistant Secretary for Import those companies if (1) cross-ownership supplier and the pulp used in export Administration, ‘‘Request to Exclude exists between the companies, and (2) sales. Gold East claims that its situation Cast-Coated Free Sheet Paper from the the cross-owned companies produce the is analogous to that in Cold-Rolled Steel Antidumping Duty and Countervailing subject merchandise, are a holding or Flat Products from Korea,1 where the Duty Investigations on Coated Free parent company of the subject company, Department did not find a subsidy Sheet Paper,’’ (March 22, 2007) produce an input that is primarily because the input allegedly sold for less (memorandum is on file in the dedicated to the production of the than adequate remuneration was not Department’s CRU). downstream product, or transfer a used to produce subject merchandise. Application of the Countervailing Duty subsidy to a cross-owned company. The Therefore, Gold East argues that the Law to Imports from the PRC Court of International Trade (CIT) has pulp provided by the domestic supplier upheld the Department’s authority to is not an input product that is primarily On December 15, 2006, the attribute subsidies based on whether a dedicated to the production of the Department requested public comment company could use or direct the subsidy subject merchandise. on the applicability of the benefits of another company in Based on information currently on the countervailing duty law to imports from essentially the same way it could use its record, we preliminarily determine that the People’s Republic of China (PRC). own subsidy benefits. See Fabrique de because of common ownership, cross- See Application of the Countervailing Fer de Charleroi v. United States, 166 F. ownership exists between Gold East, Duty Law to Imports from the People’s Supp. 2d. 593, 604 (CIT 2001). GHS, the parent company, the affiliated Republic of China: Request for According to 19 CFR pulp supplier and other affiliated Comments, 71 FR 75507 (December 15, companies, in accordance with 19 CFR 2006). The comments we received are 351.525(b)(6)(vi), cross-ownership exists between two or more corporations 351.525(b)(6)(vi). on file in the Department’s CRU, and We further preliminarily determine where one corporation can use or direct can be accessed on the Web at http:// that Gold East and GHS are cross-owned the individual assets of the other ia.ita.doc.gov/ia-highlights-and-news. producers of the subject merchandise, as corporation(s) in essentially the same Informed by those comments and addressed in 19 CFR 351.525(b)(6)(ii). ways it can use its own assets. This based on our assessment of the Although Gold East has claimed that section of the Department’s regulations differences between the PRC’s economy GHS did not produce subject states that this standard will normally today and the Soviet and Soviet-style merchandise during the POI, there is no be met where there is a majority voting economies that were the subject of evidence indicating that GHS could not interest between two corporations or Georgetown Steel Corp. v. United States, produce subject merchandise. through common ownership of two (or 801 F.2d 1308 (Fed. Cir. 1986), we Therefore, the subsidies received by more) corporations. preliminarily determine that the Gold East and GHS have preliminarily countervailing duty law can be applied Chenming: Chenming reported that it been attributed to the combined sales of to imports from the PRC. Our analysis is the only producer of CFS among the the two companies. Although we have is presented in a separate memorandum, companies affiliated with Shandong combined Gold East and GHS in this Memorandum to David M. Spooner, Chenming Paper Holdings, Ltd. Assistant Secretary for Import Chenming further reported that its pulp 1 See Notice of Preliminary Affirmative Administration, ‘‘Countervailing Duty supplier did not receive subsidies from Countervailing Duty Determination and Alignment Investigation of Coated Free Sheet Paper the GOC. Therefore, we are attributing of Final Countervailing Duty Determination with Final Antidumping Duty Determination: Certain from the People’s Republic of China: the subsidies received by Chenming to Cold-Rolled Carbon Steel Flat products From the Whether the analytical elements of the its sales of CFS or total sales, as Republic of Korea, 67 FR 9685, 9683 (March 4, Georgetown Steel holding are applicable appropriate. 2002) (Cold-Rolled Steel Flat Products from Korea).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17487

manner, we have continued to refer the which we require a suitable benchmark. the government in the sector. See ‘‘the respondent as ‘‘Gold East’’ in this Additionally, if respondents received People’s Republic of China (PRC) Status notice. any loans from foreign banks, these as a Non-Market Economy,’’ May 15, Additionally, we preliminarily would be unsuitable for use as 2006 (‘‘May 15 Memorandum’’); and determine that subsidies received by benchmarks because, as explained in ‘‘China’s Status as a Non-Market Gold East’s parent company should be greater detail below, the GOC’s Economy,’’ August 30, 2006 (‘‘August 30 attributed to the consolidated sales of intervention in the banking sector Memorandum’’) (collectively, the the parent company and its subsidiaries. creates significant distortions, even ‘‘memoranda’’). The PRC’s stated goal See 19 CFR 351.525(b)(6)(iii). restricting and influencing foreign banks for banking sector reforms since 1994 Finally, we preliminarily determine within the PRC. has been to develop banks that operate that subsidies received by Gold East’s If the firm did not have any on a commercial basis. See May 15 cross-owned pulp supplier should be comparable commercial loans during Memorandum at 4; and August 30 attributed to the combined sales of the the period, the Department’s regulations Memorandum at 56–58. Despite ongoing input and the downstream products provide that we ‘‘may use a national efforts made by the GOC to move toward produced from those inputs. This is interest rate for comparable commercial this goal, SOCBs in the PRC continue to consistent with the Department’s prior loans.’’ See 19 CFR 351.505(a)(3)(ii). be plagued by functional and determination that pulp is ‘‘primarily However, the Chinese national interest operational problems that have dedicated’’ to the production of paper, rates are not reliable as benchmarks for necessitated repeated, large government as required by 19 CFR 351.525(b)(6)(iv). these loans because of the pervasiveness capital injections and debt write-offs to See Final Affirmative Countervailing of the GOC’s intervention in the banking stave off insolvency. In addition to a Duty Determination and Final Negative sector. Loans provided by Chinese chronic problem of non-performing Determination of Critical banks reflect significant government loans, the Department discussed in its Circumstances: Certain Lined Paper intervention and do not reflect the rates memoranda the aspects of the PRC’s Products from Indonesia, 71 FR 47174 that would be found in a functioning banking sector that led International (August 16, 2006), and accompanying market. The statute directs that the Monetary Fund (IMF) economists to Issues and Decision Memorandum at benefit is normally measured by conclude in 2006 that, despite a decade Comment 3. Moreover, absent a showing comparison to a ‘‘loan that the recipient of reform, ‘‘it is difficult to find solid that the domestic pulp cannot be used could actually obtain on the market.’’ empirical evidence of a strong shift to to produce CFS sold to the United Section 771(5)(E)(ii) of the Act. Thus, commercial orientation by the SOCBs.’’ States, there is no basis to tie subsidies the benchmark should be a market- See August 30 Memorandum at 58, bestowed on these input products based benchmark, yet, there is not a citing ‘‘Progress in China’s Banking exclusively to sales in the domestic functioning market for loans within the Sector Reforms: Has Bank Behaviour Chinese market. PRC. Therefore, because of the special Changed?,’’ Washington, DC: Certain other of Gold East’s affiliated difficulties inherent in using a Chinese International Monetary Fund Working companies are discussed in a separate, benchmark for loans, the Department is Paper, at 4 (March 2006). For example, proprietary memorandum, selecting a market-based benchmark that the Department found that funds Memorandum to Susan Kuhbach, ‘‘Gold is a simple average of the national continue to be allocated in a ‘‘manner East: Cross-owned Companies’’ (March lending rates for countries with consistent with the general policy to 29, 2007) (memorandum is on file in comparable gross national income maintain the state-owned industrial Department’s CRU). (GNI), as explained below. The use of an sector’’ and loan pricing remains Benchmarks external benchmark is consistent with undifferentiated, despite liberalization the Department’s practice. For example, of lending caps. See May 15 Summary: The Department is in Softwood Lumber, the Department Memorandum at 5; and August 30 investigating loans received by used U.S. timber prices to measure the Memorandum at 58. respondents from Chinese banks, benefit for government provided timber As one commentator notes, the PRC’s including state-owned commercial in Canada. See Final Results of the banking sector has ‘‘fallen short in its banks (SOCBs), which are alleged to Countervailing Duty Investigation of task of allocating credit to the most have been granted on a preferential, Certain Softwood Lumber Products from productive players in the economy,’’ non-commercial basis. Section Canada, 67 FR 15545 (April 2, 2002), which is the hallmark of a banking 771(5)(E)(ii) of the Act explains that the and accompanying Issues and Decision system operating on a commercial basis. benefit for loans is the ‘‘difference Memorandum, at ‘‘Provincial Stumpage See August 30 Memorandum at 54, between the amount the recipient of the Programs’’ (‘‘Softwood Lumber’’). In the citing ‘‘Putting China’s Capital to Work: loan pays on the loan and the amount current proceeding, as described in The Value of Financial System Reform,’’ the recipient would pay on a detail, below, the GOC plays a McKinsey & Company, at 25 (May comparable commercial loan that the predominant role in the banking sector 2006). The Department concluded that recipient could actually obtain on the resulting in significant distortions that the PRC’s banks are ‘‘still in the process market.’’ Normally, the Department uses render the lending rates in the PRC of developing the institutional comparable commercial loans reported unsuitable as market benchmarks. underpinnings and human resources by the company for benchmarking Therefore, as in lumber, where domestic necessary to operate on a fully purposes. See 19 CFR 351.505(a)(2)(i). prices are not reliable, we have resorted commercial basis.’’ See August 30 However, the Department does not treat to prices outside the PRC. Memorandum at 52. loans from government banks as Discussion: In its analysis of the PRC In addition, ‘‘the various levels of commercial if they were provided as a non-market economy in the recent government in the PRC, collectively, pursuant to a government program. See lined paper investigation, the have not withdrawn from the role of 19 CFR 351.505(a)(2)(ii). Because the Department found that the PRC’s resource allocator in the financial loans provided to the respondents by banking sector does not operate on a sector, principally the banking sector.’’ SOCBs are under the ‘‘Government commercial basis and is subject to See May 15 Memorandum at 3. The Policy Lending Program,’’ explained significant distortions, primarily arising GOC’s continued ownership of virtually below, these loans are the very loans for out of the continued dominant role of all of the banking sector assets is ‘‘the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17488 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

fundamental gap in banking sector’s with the GOC. Foreign interests have The Department’s conclusion that the reform’’ inhibiting the sector from acquired approximately 10 percent of lending rates offered by foreign banks operating on a commercial basis. Id. at the CCB, ICBC and BOC, and are do not offer a suitable benchmark 3–4. In fact, the PRC has the highest afforded just one place on the board at because of the market-distorting level of state ownership of banks of any each bank. See August 30 Memo at 61, behavior of the GOC is consistent with major economy in the world. The four citing ‘‘What are the Prospects for the Department’s determination in the largest SOCBs, the Bank of China Foreign Banks in China,’’ the Economist countervailing duty investigation in (‘‘BOC’’), the China Construction Bank Intelligence Unit, Viewswire, China Softwood Lumber. That case dealt with (‘‘CCB’’), the Agricultural Bank of China Finance (March 15, 2006). These the provision of goods for less than (‘‘ABC’’) and the Industrial and investments bring market expertise to adequate remuneration. The Department Commercial Bank of China (‘‘ICBC’’), the management and board of the state- explained that, ‘‘if there is no market (collectively, the ‘‘Big Four’’), represent owned banks, but the foreign-owned benchmark price available in the over 50 percent of the formal sector’s shares remain small, thereby limiting country of provision, it is obviously assets and deposits. Small state-owned the degree of influence over bank impossible to determine adequacy of institutions, such as rural credit operations. See August 30 Memo at 61, remuneration except by reference to cooperatives, which are characterized citing Overmyer, Michael, ‘‘WTO: Year sources outside the country.’’ See by extremely poor performance, account Five,’’ the US-China Business Council, Softwood Lumber at ‘‘Provincial for 9–10 percent of banking assets. The China Business Review, at 2 Stumpage Programs.’’ Further, ‘‘a valid Foreign banks account for (January—February 2006). Therefore, benchmark must be independent of the approximately 2 percent of total assets. the constrained degree of foreign government price being tested; Although limited ownership investment that the GOC has permitted otherwise the benchmark may reflect diversification has been introduced in the domestic Chinese banking sector the very market distortion the through minority foreign shareholdings does not alter the Department’s comparison is intended to detect.’’ Id. In in the BOC, CCB and the joint-stock preliminary conclusion that the that proceeding, the Department commercial banks (with the latter domestic PRC banking sector does not determined that the small private category of banks accounting for 13 operate on a commercial basis. market for timber in Canada was not a percent of the sector’s assets), the GOC Because the GOC still dominates the suitable basis for comparison because of continues to control the vast majority of domestic Chinese banking sector and the dominant position of the financial intermediation in the banking prevents banks from operating on a fully government in the marketplace. Id. This sector. A further portion of the PRC’s commercial basis, the Department is quite similar to the fact pattern in the banking sector is accounted for by preliminarily determines that the current proceeding, where a small smaller entities, such as city banks and interest rates of the domestic Chinese private (foreign) sector exists alongside credit cooperatives, which are likewise banking sector do not provide a suitable a vastly larger state-owned sector where government-owned, albeit on a sub- basis for benchmarking the loans a considerable portion of lending is not central level. See August 30 provided to respondents in this conducted on terms and conditions Memorandum at 54–55, citing proceeding. Moreover, while foreign- consistent with commercial ‘‘Economic Survey of China,’’ Paris: owned banks do operate in the PRC, considerations. Just as the prices in the Organization for Economic Cooperation they are subject to the same restrictions private market for timber were found to and Development, at 139 (2005). as the SOCBs, including a government- be distorted by the presence of a largely While foreign banks have recently imposed cap on deposit rates, which state-controlled sector, lending rates by been permitted to purchase minority puts downward pressure on lending foreign banks in the PRC would be stakes in a number of state-owned rates. In addition, foreign banks’ share affected by the non-commercial lending domestic Chinese banks, such of assets and lending is negligible rates of the much larger and dominant investment does not signal a decisive compared with the SOCBs. SOCBs issue state-owned banks. shift towards putting the banks on a most of the credit in the PRC and lend On March 22, 2007, Gold East cited to fully commercial footing. This is at rates close to the Central Bank’s the PRC’s Accession Protocol and because foreign investment in PRC announced base lending rate. See argued that before rejecting benchmarks banks is tightly constrained, and the ‘‘Economic Survey of China,’’ Paris: within the PRC, the Department should GOC has signaled its intentions to Organization for Economic Cooperation ‘‘adjust such prevailing terms and preserve its control over the banking and Development, at 153 (2005) conditions before considering the use of sector indefinitely. See August 30 (‘‘Economic Survey of China’’). terms and conditions prevailing outside Memorandum at 61, citing ‘‘Go Away, Accordingly, foreign banks participating China.’’ However, it is not practical to Crocodiles?,’’ the Economist Intelligence in this system are inevitably influenced adjust internal PRC lending rates for Unit, Business China (March 27, 2006). by this broader environment in the rates benchmarking the loans made by Continued GOC control of the Chinese at which they issue loans. Additionally, respondents. The distortions in the banking sector is possible because, while foreign banks are slowly Chinese banking sector cannot be while foreign banks have recently been increasing their participation in the attributed to a single factor or set of allowed to purchase minority stakes in domestic PRC banking sector, the OECD factors that the Department could certain banks in the PRC, total foreign has observed that foreign banks, in account for by adjusting an internal purchases of shares in existing SOBCs addition to providing only a tiny share lending figure. Rather, this distorted have been limited to 25 percent. See of credit in the PRC, still operate mostly sector is due to the PRC’s history of August 30 Memo at 60, citing ‘‘It’s so in niche markets, rather than compete government domination of the banking Far, so Good for China’s Banking directly with the state-owned system and continuing ownership of the Sector,’’ the Economist Intelligence commercial banks. See August 30 sector. Under these circumstances, for Unit, Business China (March 27, 2006). Memorandum at 60, citing ‘‘Economic the purposes of this preliminary Similarly, some domestic banks in the Survey of China,’’ at 150–151. determination, it is necessary for the PRC are now listed on foreign stock Therefore, foreign bank lending does not Department to disregard all internal exchanges, but majority control remains provide a suitable benchmark. benchmark data for loans.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17489

We now turn to the issue of choosing reported to International Financial LIBOR rates, and the ratio between them an external benchmark. Selecting an Statistics in 2005. This calculation offers an estimate of the market appropriate external interest rate excludes those economies that the consensus premium that borrowers benchmark is particularly important in Department considered to be non- would pay on a long-term loan over a this case because, unlike prices for market economies for antidumping short-term loan. certain commodities and traded goods, purposes in 2005: the PRC, Armenia, Creditworthiness lending rates vary significantly across Azerbaijan, Belarus, Georgia, Moldova, the world. Nevertheless, there is a broad Turkmenistan, and Ukraine. The The examination of creditworthiness inverse relationship between income average necessarily also excludes any is an attempt to determine if the levels and lending rates. In other words, economy that did not report lending company in question could obtain long- countries with lower per capita gross data to International Financial Statistics term financing from conventional national income (GNI) tend to have in 2005. The Department also excluded commercial sources. See 19 CFR higher interest rates than countries with two aberrational countries, Angola, with 351.505(a)(4). According to 19 CFR higher per capita GNI, a fact a rate of 67.72 percent, and Brazil, with 351.505(a)(4)(i), the Department will demonstrated by the lending rates a rate of 55.38 percent. The Department generally consider a firm to be across countries reported in then computed a simple average of uncreditworthy if, based on information International Financial Statistics. There 13.147 percent of the remaining 37 available at the time of the government- are several possible explanations for this lending rates and used this average to provided loan, the firm could not have phenomenon. High-income countries determine whether a benefit existed for obtained long-term loans from generally have stronger market- the loans received by Chenming and conventional commercial sources. In supporting institutions, which reduce Gold East on their short-term loans in making this determination, according to the risk and transaction costs associated 2005. The resulting average provides an 19 CFR 351.505(a)(4)(i)(A)–(D), the with lending. High income countries appropriate benchmark because the loan Department normally examines the may also be more stable, further figures reported to International following four types of information: (1) reducing perceived risk, and have high Financial Statistics represent base short- Receipt by the firm of comparable levels of credit in the economy, which term lending rates in each reporting commercial long-term loans; (2) present helps to achieve economies of scale. For country. and past indicators of the firm’s these reasons, the Department has The lending rates reported in financial health; (3) present and past determined that it is appropriate to use International Financial Statistics indicators of the firm’s ability to meet income level as a criterion for choosing represent short-term lending, and there its costs and fixed financial obligations the external lending rate to use as a is no publicly available long-term with its cash flow; and (4) evidence of benchmark. interest rate data. To identify and the firm’s future financial position. If a Nevertheless, relying on a single firm has taken out long-term loans from country’s figure could introduce measure any benefit from long-term loans, the Department developed a ratio commercial sources, this will normally distortions in the benchmark calculation be dispositive of the firm’s if, for example, the country’s central of short-term and long-term lending for 2005. The Department then applied this creditworthiness. However, if the firm is bank temporarily tightened monetary government-owned, the existence of policy to reduce inflationary pressures. ratio to the benchmark short-term lending figure (using the methodology commercial borrowings is not Because such factors, and their effect on dispositive of the firm’s interest rates vary across countries, the explained above) to impute a long-term lending rate. For example, for loans creditworthiness. This is because, in the Department has preliminarily Department’s view, in the case of a determined that a cross-country average issued in 2000, the Department calculated an average of the 37 lower- government-owned firm, a bank is likely lending rate is the most appropriate to consider that the government will benchmark rate in this proceeding. A middle income countries’ short-term lending rates in 2000. To convert the repay the loan in the event of a default. lending rate averaged across countries See Countervailing Duties; Final Rule, with similar income levels to the PRC resulting short-term interest rate into a 63 FR 65348, 65367 (November 28, captures the broad relationship between long-term rate, the Department 1998). For government-owned firms, we income and interest rates, as well as the calculated a ratio between short-term will make our creditworthiness institutional and macroeconomic factors lending drawn from London Interbank determination by examining this factor that affect interest rates. Moreover, a Offered Rate (LIBOR) data and long-term and the other factors listed in 19 CFR large number of the world’s countries interest rates from in the interest rate 351.505 (a)(4)(i). report comparable lending rates to swap market. The ratio of the two International Financial Statistics, figures provides an indication of the Chenming: The Shouguang State- providing a suitable basis for calculating varying cost of money over different Owned Asset Administration owned a cross-country average. time periods. In this case, the 31.24 percent of Chenming during the The Department has used the country Department computed a ratio of the POI. Therefore, for purposes of the classifications of the World Bank to average short-term LIBOR rate in 2005 creditworthiness determination, we are determine which countries to include in and the prevailing interest rates on long- preliminarily treating Chenming as the benchmark average. The World Bank term (five-year) interest rate swaps government-owned and are not divides the world’s economies into four reported by the Federal Reserve for the considering the existence of commercial categories, based on per capita GNI: Low year in question. That is, if the long- borrowing to be dispositive of the income, lower-middle income, upper- term swap rate were 25 percent higher company’s creditworthiness. middle income, and high income. The than the short-term LIBOR rate, the Chenming’s consolidated financial PRC, with its 2005 per capita GNI of Department would inflate the average statements show that the Group had $1740, falls into the lower-middle short-term lending rate by 25 percent to negative working capital in 2003 income category, a group that includes arrive at a long-term interest rate through 2005, and its cash flow was 58 countries as of July 2006. The benchmark. This methodology is negative in 2005. In addition, the Department then calculated an average appropriate because the interest rate current and quick ratios were less than of the lending rates that these countries swap rates are based on short-term 1 during the same time period and have

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17490 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

consistently declined since 2001.2 Chenming submitted financial ratios the parent company, the respondent in Chenming’s 2005 financial statements based on the unconsolidated parent this case, appears to be even better.4 indicate that the Group has a large company, which is the responding In summary, while certain financial amount of short-term debt, and that company and, according to its response, ratios indicate some degree of financial working capital was applied in the the sole producer within the distress, there are several factors that expansion and construction of consolidated group of the merchandise weigh against finding Chenming production facilities in the Group. under investigation. These ratios show uncreditworthy, such as: Continuing Indeed, its annual reports show that the that the parent company’s current ratios annual sales growth, its positive net Group completed several large projects for 2004 and 2005 are more than 1 and income in 2005, and its ability to meet in 2004 and 2005 (fixed assets increased its quick ratios are nearly 1, which its interest expenses and issue by 83% from the end of 2003 to the end indicate that the parent company is in convertible bonds. Therefore, we of 2005), including new facilities. While a more liquid position. In addition, the preliminarily determine Chenming to be the net profit margin, times interest time interest earned ratios for these creditworthy in 2004 and 2005. earned, return on assets, and return on years are stronger for the parent than for Gold East: On March 8, 2007, the equity have decreased since 2003, they the Group. While Chenming has not petitioner alleged that the APP are comparable to or greater than the submitted the unconsolidated financial companies, including Gold East, should be considered uncreditworthy beginning Group’s 2001 ratios. The ‘‘times interest statements upon which these ratios are earned’’ ratio calculates the extent to in 2001. based, the Department has found On March 20, 2007, Gold East which pre-tax income covers interest publicly available financial statements expense and creditors monitor it to objected to petitioner’s allegation on the for Chenming for the first half 2005, grounds that it was untimely filed. gauge the risk of default. Cash flow to which show the financial information liabilities, which indicates bankruptcy Specifically, Gold East argues that any for the parent and the Group. These new subsidy allegation, including an risk, has been very variable since 2001. statements confirm that the current ratio Debt-to-equity and debt-to-assets, two allegation of uncreditworthiness, is due for the parent company is greater than no later than 40 days before the solvency ratios, have increased since 1 and the quick ratio is substantially 2001, and demonstrate that the Group scheduled date of the preliminary better for the parent than the Group. In determination, citing 19 CFR has become more leveraged. Turnover, addition, the parent had positive however, has increased by at least 20 351.301(d)(4)(i)(A). working capital, although its cash flow We disagree with Gold East that percent each year since 2001. In in the first half 2005 was negative. uncreditworthiness allegations must be addition, despite the negative working filed within the same timeframe capital and negative net cash flow, the We find the ratios for the Chenming established for new subsidy allegations company continued to pay dividends in Group provide varying indications of in 19 CFR 351.301(d)(4)(i)(A). 2004 and 2005. the firm’s financial creditworthiness. In Chenming’s consolidated 2005 While working capital is negative, Uncreditworthiness in and of itself is financial statements, the auditors working capital is only a rough not a countervailable subsidy. Instead, it explained that the Group is exposed to indication of changes in liquidity and is a valuation issue that is properly liquidity risk because a significant supplemental analysis with other ratios addressed in the course of an percentage of the Group’s capital is required. Working capital in this case investigation as long as parties have funding requirements are financed is negative due in large part to the large ample time to submit information and through short-term bank borrowing. The amount of short-term liabilities. The argument on the point. In this case, company acknowledged this risk and liabilities in this case were used to adequate time exists. Therefore, we have intended to convert a significant portion finance Group expansion, which should analyzed petitioner’s allegation. According to 19 CFR 351.505(a)(6), of such short-term debt to long-term provide for future sales increases. While the Department ‘‘will not consider the debt in the near future. A December 2, a company with excellent long-term uncreditworthiness of a firm absent a 2005 article in Euroweek, indicated that prospects could fail to realize them if specific allegation by petitioner that is Sumitomo Mitsui Banking Corporation forced into bankruptcy because it could supported by information establishing a (a foreign bank) was arranging an $80 not pay its short-term liabilities, there is reasonable basis to believe or suspect million three-year term-loan for no indication that this is the case for the that the firm is uncreditworthy.’’ The Chenming. The article explains that the Chenming Group. petitioner has submitted financial ratios deal is the company’s debut Indeed, Chenming acknowledges this for the companies and has pointed to international loan, although the risk and states its intention to mitigate other evidence on the record. (Because company was in the market in 2005 as it through the acquisition of long-term this allegation is based almost a sponsor of an affiliated company debt. The December 2005 article cited exclusively on proprietary information, project.3 The group also had a five-year above demonstrates that the company it is described in a separate convertible bond issue in September was likely to be successful in carrying memorandum, Memorandum to Susan 2004. out this intention. Moreover, there is no Kuhbach, ‘‘Uncreditworthiness We note that the financial statements, information on the record that upon which the above ratios have been Allegation for APP Companies’’ (March Chenming has defaulted on any of its 29, 2007) (‘‘APP Creditworthiness calculated, are for the consolidated debt or failed to meet any of its financial Chenming Group. In its response, Allegation Memo’’) (memorandum is on obligations. To the contrary, it has even file in the Department’s CRU). continued to pay dividends. Also, the Based on our review of the allegation, 2 See Memorandum to File, ‘‘Creditworthiness record shows that Chenming has Determination for Chenming,’’ (March 29, 2007) we find that the petitioner has provided (‘‘Chenming Creditworthy Memo’’) (providing the continued to borrow from private a reasonable basis to believe or suspect calculation of the financial ratios for 2001 through parties, as evidenced by the 2004 that the APP companies were 2005). It is the Department’s standard practice to convertible bond issue. We note that uncreditworthy in 2001–2005. See APP examine ratios for the years in which a while we have performed this analysis creditworthiness determination is to be made and Creditworthiness Allegation Memo. the three preceding years. for the Chenming Group, the 3 See Chenming Creditworthy Memo. unconsolidated financial situation for 4 See Chenming Creditworthiness Memo.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17491

Therefore, we intend to investigate the under the regulatory guidelines agency, the State Economic and Trade creditworthiness of the APP companies provided in Circular No. 886, including Commission, was dissolved and the for those years between 2001 and 2005 ‘‘Measures for the Administration of program was not taken over by another in which the companies received National Debt Special Fund for National agency. subsidies under investigation in this Key Technological Renovation Project’’ We preliminarily determine that the case. We intend to make a preliminary (‘‘Special Fund Measures’’), Key Technology Program provides finding on the companies’ GUOJINGMAOTOUZI (1999) No. 122, countervailable subsidies to Chenming creditworthiness prior to our final GUOJINGMAOTOUZI (1999) No. 1038 within the meaning of section 771(5) of determination and will provide the and state circular GUOJINGMAOTOUZI the Act. We find that these grants are a parties with an opportunity to comment (2000) No. 822. The purpose of this direct transfer of funds within the on that finding. program is to promote: (1) meaning of section 771(5)(D)(i) of the Technological renovation in key Act, providing a benefit in the amount Denominator industries, key enterprises, and key of the grant. See 19 CFR 351.504(a). We In its March 20, 2007 filing, Gold East products; (2) facilitation of technology further preliminarily determine that the asks the Department to adjust its upgrade; (3) improvement of product grants provided under this program are subsidy rate to reflect the fact that the structure; (4) improvement of quality; limited as a matter of law to certain company’s exports to the United States (5) increase of supply; (6) expansion of enterprises, i.e., large-sized state-owned are invoiced by an affiliate. Gold East domestic demand; and (7) continuous enterprises and large-sized state holding claims that the Department previously and healthy development of the state enterprises among the 512 key made such an adjustment in Ball economy. enterprises, 120 pilot enterprise groups Bearings and Parts Thereof from Under the Key Technology Program, and the leading enterprises in Thailand; Final Results of companies can apply for funds to cover industries, and, hence, are specific Countervailing Duty Administrative the cost of financing specific under section 771(5A)(D)(i) of the Act. Review, 57 FR 26646 (June 15, 1992) technological renovation projects. According to the GOC, the program is (‘‘Ball Bearings from Thailand’’). Under Article 9 of the Special Fund intended to provide one-time assistance Based upon our review of Ball Measures, Key Technology Program and each project funded by the a grant Bearings from Thailand and the grants are disbursed in the form of requires a separate application and information submitted by Gold East in ‘‘project investment facility’’ grants approval. Therefore, consistent with 19 support of its claim, it appears that the covering two years’ worth of interest CFR 351.524(c)(1), we are treating the pattern of transactions differ in the two payable on loans to fund the project, or grant received under this program as situations, and it is not clear that the up to three years for enterprises located ‘‘non-recurring.’’ We do not have the adjustment is appropriate for Gold in certain regions. Under Article 11 of information needed to perform the East’s situation. However, we intend to the Special Fund Measures, Key ‘‘expensing’’ test described in 19 CFR seek further information and analyze Technology Program funds may also be 351.524(b)(2), and for purposes of this this claim further for our final disbursed as ‘‘loan interest grants,’’ preliminary determination have determination. which are calculated with reference to allocated the benefit over the AUL. Analysis of Programs the amount of the project loans and To calculate the countervailable prevailing interest rates during a period subsidy, we used our standard grant Based upon our analysis of the of one to two years. methodology. Because the approved petition and the responses to our Pursuant to Article 4 of Circular No. project was for CFS, we divided the questionnaires, we determine the 886, the recipients of these funds will benefits attributable to the POI by the following: mainly be selected from large-sized total value of Chenming’s sales of CFS I. Programs Preliminarily Determined state-owned enterprises and large-sized during that period. On this basis, we To Be Countervailable state holding enterprises among the 512 preliminarily determine the key enterprises, 120 pilot enterprise countervailable subsidy to be 1.28 A. Grant Programs groups and the leading enterprises in percent ad valorem for Chenming. The petitioner alleged that the GOC, industries. To be considered for As noted above, the grants provided including local and provincial funding, the enterprise files an under this program are to cover interest authorities, provide grants to CFS application that is reviewed at various owed on loans. Our regulations provide producers and their cross-owned levels of government, with final differing allocation methodologies for companies, pursuant to five-year plans approval given by the State Council. interest assumptions, depending on for the pulp and paper industry. Once approved, the local finance whether the recipient knew of the The GOC has identified two grant bureaus appropriate the funds into the assumption before taking out the loan. programs that relate to this allegation: enterprise’s account. See 19 CFR 351.508(c)(2). We intend to The State Key Technology Renovation The GOC has reported that Chenming seek further information on this issue Fund, and the Clean Production was among the 512 key enterprises or for our final determination. Technology Fund. The former is 120 pilot enterprise groups, and that B. Government Policy Lending Program discussed below, and the latter is Gold East was not included in these addressed under ‘‘Programs groups. Also, the GOC reported Petitioner has alleged a GOC lending Preliminarily Determined to be Not approving funding for Chenming under program to provide loans at a discount Used.’’ the Key Technology Program in 2000, to the forestry and paper industry in and that the funds were disbursed in accordance with the GOC’s industrial The State Key Technology Renovation 2001. policy, as set out, inter alia, in ‘‘The Project Fund The GOC has further reported that the PRC Civilian Economy and Social The State Key Technology Renovation Key Technology Program has not Development 10th Five-Year Plan Project Fund program (‘‘Key Technology operated since 2003, although the Outline’’ and ‘‘The Tenth Five-Year and Program’’) was created pursuant to state implementing regulations remain in 2010 Special Plan for the Construction circular GUOJINGMAOTOUZI (1999) effect. This is due to institutional reform of National Forestry and Papermaking No. 886 (Circular No. 886), and operates in the government—the implementing Integration Project.’’ Petitioner further

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17492 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

alleges that discounted loans, interest added). In addition, the government has products which are not market subsidies, and debt forgiveness are established specific production capacity suitable.’’ provided through policy banks and targets in this Plan, stating that ‘‘{w}e On the basis of the record information state-owned banks providing policy plan to construct pulp producing cited above, we preliminarily determine loans. capacity of 1.13 million ton’’ and after that the GOC has a specific and detailed Chenming and Gold East have stated 2010 ‘‘we can build a pulp producing policy to encourage and support the that they did not receive any capacity of more than 2.15 million ton development of the domestic forestry preferential policy loans. In its * * * and a matching paper making and paper industry. The GOC itself has response, the GOC states that the Five- capacity of about 2.3 million ton.’’ stated that Five-Year Plans are a Year plans are a ‘‘projection of the Further, the GOC estimates that the ‘‘projection of the [state-council’s] {state-council’s} economic work in the amount of investment required during economic work in the forthcoming forthcoming years’’ and are ‘‘not the period of the 10th and 11th Five- years.’’ In order to implement the necessarily translated into any specific Year Plans will be RMB 244.3 billion, policies enumerated in the Five-Year action.’’ As such, the GOC asserts that stating that, ‘‘{t}herefore, investment Plan, the GOC’s policy specifically calls it does not normally provide loans to has to be strengthened vigorously and for the provision of discounted loans industries; rather, banks provide loans financing channels are to be widened and other financing in order to support and operate as independent commercial ***’’ As such, this Plan specifically the growth and development of this entities, typically basing their decision contemplates policy measures that are industry. to provide a loan on commercial and necessary to achieve these goals, The GOC has further stated in its risk assessment factors. including the provision of ‘‘appropriate March 15 questionnaire response that To determine whether the program financial support to the construction of ‘‘the administrative system ensures that alleged by petitioner confers forestry and papermaking integration in provincial and local policy goals and countervailable subsidies on the its early phase by way of infusing objectives are in conformity with the producers and exporters of the subject capital in cash or loans with discount.’’ central policy goals and objectives.’’ merchandise, the Department must first In addition to the 10th Five-Year Plan According to the 1979 Law of Local ascertain whether the GOC has a and the 10th Five-Year Plan for the People’s Congresses at Various Levels program in place to support the Forestry and Paper Industry, in August and Local People’s Government at development of the paper industry. 2001, the State Economic and Trade Various Levels of the PRC, as amended, Specifically, the Department must Commission released the ‘‘10th Five- local governments must follow the laws determine whether record evidence Year Plan in the Paper Production and regulations made by the central supports the conclusion that the GOC Industry.’’ The purpose of this Plan is to government. See Chinese Law and Legal carries out industrial policies that outline goals of the paper production Research, Wei Luo, at 31 (2005). encourage and support the growth of the industry over the next 5 years. A key Further, paper sector through the provision of policy recommendation addressed in preferential loans. the plan is increased access to financial the State Council guides the local Petitioner has claimed that the GOC administration in terms of policies and resources, including: (1) Opening assigns tasks to local governments in terms has an explicit policy of supporting the essential financing channels for of plans. In doing so, the central government paper industry with preferential loans. adjustment and development of the confers on the local governments the To support this assertion, petitioner industry; (2) encouraging the opening of necessary authorities to carry out the policies cites to the ‘‘The PRC Civilian Economy multilateral investment and financing of the central government. The central and Social Development 10th Five-Year channels to increase technological government also evaluates the local Plan Outline’’ (10th Five-Year Plan) and restructuring and rapid growth; and (3) governments’ application of policies, laws ‘‘The Tenth Five-Year and 2010 Special providing discounted loans with special and plans made by the central government. See id. (emphasis added.) Plan for the Construction of National terms for environmental conservation Forestry and Papermaking Integration projects. In other words, local governments must Project’’ (10th Five-Year Plan for the Beyond the various Five-Year Plans align their industrial policies with Forestry and Paper Industry), among mentioned above, several additional stated central government policies and other administrative measures. administrative measures released by the carry out those polices to the extent that One of the goals of the 10th Five-Year GOC demonstrate a clear governmental such measures affect their locality. As Plan is to ‘‘accelerate reform and policy or program of support to the such, based on record statements, Five- renovation’’ of certain industries, forestry and paper industry. For Year Plans should be considered a including the ‘‘wood pulp, high quality example, in June 2000, The PRC’s central government policy or program paper and paperboard’’ industry. National Key Economy and Trade that local governments adopt and Subsequent Five-Year Plans have Committee released the National Key implement through SOCBs. reaffirmed this goal. Taking into Technology Renovation ‘‘Shuang Gao Yi Having determined that the record consideration the broad goals set out in You’’ Project. The purpose of this evidence establishes a government the 10th Five-Year Plan, in March 2001 measure was to outline key areas of policy or program to support the the GOC released the 10th Five-Year economic structural adjustment needed forestry and paper industry, the Plan for the Forestry and Paper by enterprises to increase technology Department next turns to whether these Industry. This plan was developed ‘‘in renovation, technical and industrial policies were carried out by the central order to ensure the smooth construction advancement. One of the stated goals and local governments through the of our national forestry and was to ‘‘emphatically select key paper provision of loans extended by GOC papermaking integration project, to enterprises which produce high quality policy banks and SOCBs. Under the make comprehensive plans, to take newspaper, high class culture paper Department’s practice, loans provided actions according to local product (LWC), high class packaging by government policy banks, such as the circumstances, to make decisions on paperboard (carton paperboard), and China Development Bank, are scientific bases, and for the government enterprises that produce paper making considered government loans and, thus, to play the role of macroeconomic machine and other supporting networks; constitute direct financial contributions readjustment and control’’ (emphasis eliminate backward equipment and under the Act. See, e.g., Dynamic

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17493

Random Access Memory ‘‘Benchmark’’ section of this notice, the Organization for Economic Cooperation Semiconductors from the Republic of near-complete state ownership over and Development (OECD) report found Korea: Final Results of Countervailing these banks enables the GOC to utilize that, Duty Administrative Review, 72 FR SOCBs as policy instruments and, thus, The chief executives of the head offices of 7015, February 14, 2007, and to allocate credit in accordance with its the SOCBs are government appointed and the accompanying Issues and Decision policies, as enumerated in the Five-Year party retains significant influence in their Memorandum, at 6. Loans by SOCBs, Plans. Specifically, the Department choice. Moreover, the traditionally close ties however, are not necessarily treated as found that ‘‘{w}hile the Big Four (along between government and bank officials at the government loans because these banks with smaller regional banks and local level have created a culture that has often operate on a commercial basis in cooperatives) now have greater given local government officials substantial many countries. See Preamble, 63 FR at autonomy than in the past, government influence over bank lending decisions. See August 30 Memorandum, at 60, n. 294 and 65363. However, as discussed below, interests at both the central and local 301, citing to Economic Survey of China, the PRC’s banking system presents a levels still exercise a great deal of Paris: Organization for Economic significantly different fact pattern than control over banking operations and Cooperation and Development, at 140–141 those in market economy countries that lending decisions.’’ See May 15 (2005). the Department has previously Memorandum, at 5. As noted by the { } A 2005 IMF Staff Report concurred, encountered and that were IMF, ‘‘ r ooting out the legacy of stating that, {t}he staff acknowledged government directed lending, and contemplated in the Preamble. the progress made in reducing Information on the record indicates that training banks to make lending government involvement in the PRC’s banking system suffers from a decisions based on purely commercial management and business operations of legacy of complete state control, the considerations, with adequate regard to banks. However, more needs to be done, vestiges of which allow for continued viability and riskiness of projects particularly with regard to local government control, especially at the remains a major reform challenge.’’ See governments, to remove this serious local level, resulting in the allocation of August 30 Memorandum, at 52, n. 248, impediment to fully commercializing credit in accordance with government citing Finance and Development, Next banks.’’ See the August 30 policies. Steps for China, Washington, DC: Memorandum at 60, citing People’s As discussed in the Georgetown International Monetary Fund, Republic of China: 2005 Article IV Memo and the Department’s memoranda (September 2005). from the investigation on Certain Lined State-direction of credit as well as Consultation—Staff Report; Staff Paper Products from the PRC regarding protracted lending on a non-commercial Supplement; and Public Information the PRC’s status as a non-market basis has been evidenced by repeated Notice on the Executive Board economy, the PRC’s banking system is cycles of the accumulation of a large Discussion, Washington, DC, more flexible than the Soviet-style number of non-performing loans and International Monetary Fund, at banking sectors, where central banks government bailouts of the banking November 2005), p. 19. directly allocated all credit in sector. See ‘‘Benchmark’’ section above. As the Department found in its May accordance with the wishes of the party For example, wholly- and partially- 15 Memorandum, ‘‘the continued and the central planners. The GOC owned SOEs continue to receive a significant government involvement in abolished the mandatory credit plan in disproportionate share of credit, in line the PRC’s banking sector reflects an 1997, under which the People’s Bank of with industrial policy objectives to assumption that the state, not markets, China (PBOC) directly allocated credit maintain a central role for the state- should determine the growth sectors or to specific sectors, often supporting the owned sector of the economy. See May individual companies that deserve operations of loss-making state-owned 15 Memorandum, at 5; and August 30 access to credit.’’ See May 15 enterprises (SOEs). The credit plan was Memorandum, at 59. Memorandum, at 8. On the basis of the replaced with non-binding targets, Some of the misallocation of evidence cited above, the Department which were to serve as guidance for resources may be attributed to lack of determines for the purposes of this credit allocation. See August 30 experience or inertia. However, as preliminary determination that the GOC Memorandum, at 51. SOCBs were discussed above in the ‘‘Benchmarks’’ continues to use its ownership of and afforded legal autonomy from the state section, the continued government influence over SOCBs to guide and in most matters, which allowed them to intervention in bank operations, direct the allocation of credit in lend, at least in theory, on terms and especially by local governments, acts as accordance with its stated policy conditions consistent with commercial a significant impediment to true objectives, including those contained in considerations. Current law, however, commercialization of the banks. Prior to the 10th Five-Year Plan for the Forestry remains contradictory with regard to the reforms, local governments utilized and Paper Industry. In addition, SOCB’s independence from the state. SOCB branch offices as the main source evidence on the record also indicates Under the 1995 Commercial Banking of capital to fund policy-driven that the above-mentioned Five-Year Law of the People’s Republic of China, investment projects and support local Plans are in fact implemented by paper commercial banks are responsible for SOEs, which in turn provided local companies. For example, Chenming’s their own profits and losses, must employment and government revenue. 2005 Annual Report states that, ‘‘{a}ll of protect the interests of their depositors, Although SOCBs are no longer the sole the projects the Company had launched and are protected from government instrument by which to allocate funds, were those which satisfying the national influence. However, Article 34 of the local governments continue to guide industrial policy and to be replacing the Commercial Bank Law paradoxically and direct the allocation of credit imported products and high in value states that banks are required to adhere through their local bank branches. See adding.’’ In addition, this report states to the PRC’s ‘‘national industrial August 30 Memorandum, at 60. that, ‘‘the Company will keep studying policies.’’ See August 30 Memorandum, Third-party commentators have and following with the national policies at 53. arrived at similar conclusions regarding to grasp the trend of overall planning, to Notwithstanding certain dictates that the state’s continued influence, make sure the Company’s development the SOCBs act independently of the especially at the local level, on SOCB is complying with the national policy government, as discussed in the operations. For example, a 2005 on the industry.’’ As such, the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17494 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Department preliminarily finds that the Machine manufacturing and electronics and, having found specificity as a matter PRC’s SOCBs should be considered industries; (2) energy resource of law, it is not necessary to reach the extensions of the government and are industries (not including exploitation of issue of whether the subsidy is specific the instruments by which the oil and natural gas); (3) metallurgical, in fact. See Statement of Administrative government implemented the chemical and building material Action accompanying the Uruguay preferential lending component of the industries; (4) light industries, and Round Agreements Act, H.R. Doc. No. program described above. textiles and packaging industries; (5) 103–316, at 930 (1994) (‘‘SAA’’). For the reasons stated above, the medical equipment and pharmaceutical To calculate the benefit from this Department preliminarily determines industries; (6) agriculture, forestry, program, we treated the income tax that loans provided by Policy Banks and animal husbandry, fisheries and water exemption enjoyed by Gold East its SOCBs in the PRC constitute conservation; (7) construction cross-owned companies as a recurring government-provided loans pursuant to industries; (8) communications and benefit, consistent with 19 CFR section 771(5)(D)(i) of the Act. We transportation industries (not including 351.524(c)(1). To compute the amount further preliminarily determine that this passenger transport); (9) development of of tax savings, we compared the rate loan program is specific in law because science and technology, geological paid by the Gold East companies (zero the GOC has a policy in place to survey and industrial information percent) to the rate that would be paid encourage and support the growth and consultancy directly for services in by a domestic corporation in the PRC development of the forestry and paper respect of production and services in (30 percent). We attributed the tax industry. See section 771(5A)(D)(i) of respect of repair and maintenance of savings received by Gold East and GHS the Act. Finally, this program provides production equipment and precision to the combined sales of the two a benefit to the recipients, equal to the instruments; (10) other industries as companies. Additional information on difference between what the recipient specified by the tax authorities under this calculation is provided in the paid on the loan and the amount the the State Council. The GOC, in its Calculation Analysis memorandum for recipient would have paid on a response, has stated that if a FIE meets Gold East. On this basis, we comparable commercial loan. See the above conditions, eligibility is preliminarily determine that a section 771(5)(E)(ii) of the Act. automatic and the amount exempted countervailable benefit of 2.88 percent Chenming, Gold East, and certain of appears on the enterprise’s tax return. ad valorem exists for Gold East for this Gold East’s cross-owned companies had Gold East reported that, during the program. POI, Gold East and certain of its cross- outstanding loans under this program Reduced Income Tax Rates for FIEs owned companies filed tax statements during the POI. Based on Location To calculate the benefit, we used the for a ‘‘free’’ year under this program. interest rates described in the Chenming reported that its eligibility for FIEs are encouraged to locate in ‘‘Benchmark’’ section above and the participation in this program ended in designated coastal economic development zones, special economic methodology described in 19 CFR 2001 and that the company did not zones, and economic and technical 351.505(c)(1) and (2). On this basis, we receive any benefits under this program development zones in the PRC through preliminarily determine that a during the POI. preferential income tax rates. This countervailable benefit of 3.15 percent We preliminarily determine that the program was originally created in 1988 ad valorem exists for Chenming and a exemption or reduction in the income under the Provisional Rules on countervailable benefit of 14.02 percent tax paid by ‘‘productive’’ FIEs under Exemption and Reduction of Corporate ad valorem exists for Gold East for this this program confers a countervailable Income Tax and Business Tax of FIE in program. subsidy. The exemption/reduction is a financial contribution in the form of Coastal Economic Zone of the Ministry C. Income Tax Programs revenue forgone by the GOC and it of Finance and is currently provides a benefit to the recipients in administered under the FIE Tax Law, The ‘‘Two Free, Three Half’’ Program the amount of the tax savings. See and Decree 85 of the State Council of The Foreign Invested Enterprise and section 771(5)(D)(ii) of the Act and 19 1991 (Decree 85). Under Article 7 of the Foreign Enterprise Income Tax Law (FIE CFR 351.509(a)(1). We further FIE Tax Law and Article 71 of Decree Tax Law), enacted in 1991, established preliminarily determine that the 85, ‘‘productive’’ FIEs located in the the tax guidelines and regulations for exemption/reduction afforded by this designated economic zones pay FIEs in the PRC. The intent of this law program is limited as a matter of law to corporate income tax at a reduced rate is to attract foreign businesses to the certain enterprises, ‘‘productive’’ FIEs, of either 15 or 24 percent, depending on PRC. and, hence, is specific under section the zone. According to Article 8 of the FIE Tax 771(5A)(D)(i) of the Act. For the income tax return filed during Law, FIEs that are ‘‘productive’’ and The GOC claims that FIEs are a the POI, Chenming paid income tax at scheduled to operate not less than 10 separate type of business operation a reduced rate of 24 percent, based on years are exempt from income tax in under Chinese law, similar to its location in a Economic and their first two profitable years and pay partnerships, proprietorships, domestic Technical Development Zone. Because half of their applicable tax rate for the corporations, for example, and that Gold East and GHS did not pay income following three years. FIEs are deemed differences in tax liabilities for these taxes during the POI (due to their ‘‘productive’’ if they qualify under different types of businesses do not participation in the Two Free, Three Article 72 of the Detailed make the income tax rate applicable to Half program), we are treating this Implementation Rules of the Income FIEs specific. The GOC further claims program as not used by Gold East during Tax Law of the People’s Republic of that the large number of FIEs and the the POI. China of Foreign Investment Enterprises vast number of industries they We preliminarily determine that the and Foreign Enterprises. This provision participate in further indicate that this reduced income tax rate paid by specifies a list of industries in which program is not specific. However, we ‘‘productive’’ FIEs located in certain FIEs must operate in order to qualify for have preliminarily determined that zones confers a countervailable subsidy. benefits under this program. The limiting a program to ‘‘productive’’ FIEs The reduced rate is a financial activities listed in the law are: (1) is a sufficient basis to find specificity contribution in the form of revenue

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17495

forgone by the GOC and it provides a they were exempt from the local income to any domestically produced benefit to the recipients in the amount tax. equipment so long as the equipment is of the tax savings. See section We preliminarily determine that the not listed in the Catalog of Non-Duty- 771(5)(D)(ii) of the Act and 19 CFR local tax exemption and reduction Exemptible Articles of Importation. The 351.509(a)(1). We further preliminarily program confers a countervailable program has been in effect since 1999 determine that the exemption/reduction subsidy. The exemption/reduction is a and its purpose, according to the GOC, afforded by this program is limited to financial contribution in the form of is to attract foreign investment. enterprises located in designated revenue forgone by the local To receive a tax credit under this geographical regions and, hence, is governments and it provides a benefit to program, requesting enterprises must specific under section 771(5A)(D)(iv) of the recipients in the amount of the tax submit an application to the local tax the Act. savings. See section 771(5)(D)(ii) of the authority within two months of To calculate the benefit, we treated Act and 19 CFR 351.509(a)(1). We purchasing the equipment. Once the income tax savings enjoyed by further preliminarily determine that the approved, the credit can be claimed on Chenming as a recurring benefit, exemption afforded to Chenming by this the enterprise’s income tax return. The consistent with 19 CFR 351.524(c)(1), program is limited to enterprises located amount of the credit is limited to the and divided the company’s tax savings in designated geographical regions and, lesser of 40 percent of the purchase received during the POI by Chenming’s hence, is specific under section price of the domestically produced total sales during that period. To 771(5A)(D)(iv) of the Act. In the case of equipment or the incremental increase compute the amount of tax savings, we Gold East, we preliminarily determine in income taxes owed over the previous compared the rate paid by Chenming that the program is limited as a matter year. (24 percent) to the rate that would be of law to certain enterprises, i.e., Chenming reported receiving tax paid by a domestic corporation in the productive FIEs, and is specific under credits under this program during the PRC (30 percent). On this basis, we section 771(5A)(D)(i) of the Act for the POI; Gold East did not. preliminarily determine that a reasons explained above. We preliminarily determine that countervailable benefit of 0.34 percent To calculate the benefit, we treated income tax credits on the purchase of ad valorem exists for Chenming for this the income tax savings enjoyed by the domestically produced equipment by program. companies as a recurring benefit, FIEs are countervailable subsidies. The consistent with 19 CFR 351.524(c)(1). Local Income Tax Exemption and tax credits are a financial contribution To compute the amount of tax savings, in the form of revenue forgone by the Reduction Program for ‘‘Productive’’ we compared the zero percent rate paid FIEs local governments and they provide a by Chenming, Gold East and GHS to the benefit to the recipients in the amount Under Article 9 of the FIE Tax Law, rate that would otherwise be paid by a of the tax savings. See section the governments of the provinces, the domestic corporation in the PRC (3 771(5)(D)(ii) of the Act and 19 CFR autonomous regions, and the centrally percent). For Chenming, we divided the 351.509(a)(1). We further preliminarily governed municipalities have been income tax savings during the POI by determine that these tax credits are delegated the authority to provide Chenming’s total sales. For Gold East, contingent upon use of domestic over exemptions and reductions of local we attributed the tax savings received imported goods and, hence, are specific income tax for industries and projects by Gold East and GHS to the combined under section 771(5A)(C) of the Act. for which foreign investment is sales of the two companies. On this To calculate the benefit, we treated encouraged. As such, the local basis, we preliminarily determine that a the income tax savings enjoyed by governments establish the eligibility countervailable benefit of 0.17 percent Chenming as a recurring benefit, criteria and administer the application ad valorem exists for Chenming and a consistent with 19 CFR 351.524(c)(1), process for any local tax reductions or countervailable benefit of 0.31 percent and divided the benefit received during exemptions. Therefore, the requirements ad valorem exists for Gold East. the POI by Chenming’s sales of CFS and application procedures for this Income Tax Credits on Purchases of during that period. On this basis, we program may vary between Domestically Produced Equipment by preliminarily determine that a jurisdictions. Chenming, Gold East, and GHS FIEs countervailable benefit of 2.98 percent reported receiving local income tax Provisions in GUOSHUIFA (2000) No. ad valorem exists for Chenming for this exemptions under this program. 90, Administrative Measures on program. Chenming’s local tax authority granted Enterprise Income Tax Credits for D. VAT and Duty Exemptions the company an exemption because Purchase of Domestic Equipment by Chenming was an FIE located in a FIEs and Foreign Enterprises, and VAT Rebates on Purchases of coastal economic zone, specifically, in CAISHUI (2000) No. 49, Circular of the Domestically Produced Equipment an Economic and Technical Ministry of Finance and the State As outlined in GUOSHUIFA (1999) Development Zone. Administration of Taxation on No. 171, Trial Administrative Measures Gold East references Article 3 of the Enterprise Income Tax Credits for on Purchase of Domestic Equipment by Regulations for the Local Income Tax Purchase of Domestic Equipment by Projects with Foreign Investment (1999 Exemption and Reduction of Jiangsu Foreign Invested Enterprises and VAT Measures), the GOC refunds the Province for Enterprises with Foreign Foreign Enterprises, permit FIEs to VAT on purchases by FIEs of certain Investment as the basis for its local tax obtain tax credits of up to 40 percent of domestically produced equipment. exemption. Under these provincial the purchase value of domestically Article 3 of the 1999 VAT Measures regulations, productive FIEs in the produced equipment. Specifically, the specifies that this program is limited to Jiangsu Province are exempt from local tax credit is available to FIEs and FIEs including exclusively foreign- income taxes during the period in foreign-owned enterprises whose owned enterprises. Article 4 of the 1999 which they use the ‘‘Two Free, Three projects are classified in either the VAT Measures defines the type of Half’’ program. Because Gold East and Encouraged or Restricted B categories of equipment eligible for the VAT GHS participated in the ‘‘Two Free, the Catalog of Industrial Guidance for exemption, which includes equipment Three Half’’ program during the POI, Foreign Investment. The credit applies falling under the Encouraged and

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17496 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Restricted B categories listed in the the GOC to claim that the VAT under this program as well as FIEs. Notice of the State Council Concerning exemptions/rebates are linked and to Based on the information provided by the Adjustment of Taxation Policies for provide evidence in support of the the GOC, it does not appear that the Imported Equipment (No. 37 (1997)) and claim. That burden has not been met. addition of these domestic enterprises equipment for projects listed in the Moreover, as explained above, we are broadens the reach or variety of users Catalogue of Key Industries, Products preliminarily determining that FIEs sufficiently to render the program non- and Technologies Encouraged for constitute a specific group of specific. For example, to be eligible, the Development by the State. Based on the enterprises. Consequently, even if we domestic enterprise must have been GOC’s and companies’ responses, the were to treat the VAT rebate and involved in an investment project that receipt of the VAT rebates on exemption programs as integrally was ‘‘in line with’’ the Current Catalog domestically produced equipment is linked, we would still find the benefits of Key Industries, Products and granted to FIEs upon presentation of to be specific. Technologies the Development of documents showing their FIE status. Which is Encouraged by the State. VAT and Tariff Exemptions on Imported Chenming, Gold East, and certain of While this Catalog was reportedly Equipment Gold East’s cross-owned companies revoked in 2005, the projects still must reported receiving VAT rebates on their Enacted in 1997, the Circular of the apparently be approved by the State purchases of domestically produced State Council on Adjusting Tax Policies Council, the NDRC, or an agency to equipment during the POI. on Imported Equipment (GUOFA No. which authority has been delegated (see We preliminarily determine that the 37) (Circular No. 37) exempts both FIEs Certificates for State-Encouraged rebate of the VAT paid on purchases of and certain domestic enterprises from Foreign-or Domestically-Invested domestically produced equipment by the VAT and tariffs on imported Projects for Domestically-Invested FIEs confers a countervailable subsidy. equipment used in their production. Enterprises FAGAIGUIHUA (2003) 900). The rebates are a financial contribution The objective of the program is to Therefore, we preliminarily find the in the form of revenue forgone by the encourage foreign investment and to VAT and tariff exemptions to be specific GOC and they provide a benefit to the introduce foreign advanced technology under section 771(5A)(D)(iii)(I). To recipients in the amount of the tax equipment and industry technology calculate the benefit, we treated the savings. See section 771(5)(D)(ii) of the upgrades. VAT and tariff exemptions as a Act and 19 CFR 351.510(a)(1). We Chenming, Gold East and certain of recurring benefit, consistent with 19 further preliminarily determine that the Gold East’s cross-owned companies CFR 351.524(c)(1). For Chenming, we VAT rebates are contingent upon the received VAT and duty exemptions divided the amount of the VAT and use of domestic over imported goods under this program due to their status tariff exemptions enjoyed by Chenming and, hence, specific under section as FIEs. Specifically, the companies are during the POI by the company’s sales 771(5A)(C) of the Act. authorized to receive the exemptions in that period. For Gold East, we To calculate the benefit, we treated based on their FIE status and the list of calculated the benefit in accordance the VAT rebates as a recurring benefit, assets approved by the GOC at the time with the attribution rules described in consistent with 19 CFR 351.524(c)(1). their FIE status was approved. Domestic 19 CFR 351.525(b)(6). On this basis, we For Chenming, we divided the VAT enterprises eligible for the VAT and preliminarily determine that a rebates received during the POI by duty exemptions must have countervailable benefit of 0.10 percent Chenming’s sales of CFS in that period. government-approved projects that are ad valorem exists for Chenming and a For Gold East, we calculated the benefit in line with the current ‘‘Catalog of Key countervailable benefit of 2.60 percent in accordance with the attribution rules Industries, Products, and Technologies ad valorem exists for Gold East for this described in 19 CFR 351.525(b)(6). On the Development of Which is program. this basis, we preliminarily determine Encouraged by the State.’’ Whether an that a countervailable benefit of 1.45 FIE or domestic enterprise, only E. Domestic VAT Refunds for percent ad valorem exists for Chenming equipment that is not listed in the Companies Located in the Hainan and a countervailable benefit of 0.35 Catalog on Non-Duty Exemptible Article Economic Development Zone percent ad valorem exists for Gold East for Importation is eligible for the VAT According to Yangpu local tax for this program. and duty exemptions. (Different regulations, enterprises located in the The GOC has claimed that the goal of Catalogs are prepared for FIEs and Economic Development Zone of Hainan this program is to equalize the tax domestic enterprises.) To receive the may enjoy several tax preferences. burden on the purchase of domestically exemptions, a qualified enterprise only These preferences are described in produced and imported equipment by has to show a certificate provided by the Preferential Policies of Taxation, which FIEs. (As explained below, FIEs are also National Development and Reform includes the eligibility criteria needed exempt from paying the value added tax Commission (‘‘NDRC’’), or its provincial to qualify for the preferences. Under on imported equipment.) Thus, the GOC branch, to the customs officials upon ‘‘Preferential Policies Regarding argues, the Department should not find importation of the equipment. Investment by Manufacturer,’’ high-tech the VAT rebates on domestically We preliminarily determine that VAT or labor intensive enterprises with produced equipment to be an import and tariff exemptions on imported investment over RMB 3 billion and substitution subsidy. equipment confer a countervailable more than 1000 local employees may be Although the VAT rebates are subsidy. The exemptions are a financial refunded 25 percent of the VAT paid on available to FIEs on both domestically contribution in the form of revenue domestic sales (the percentage of the tax produced and imported equipment, the forgone by the GOC and they provide a received by the local government) GOC has not demonstrated that both benefit to the recipients in the amount starting in the first year the company rebates are integrally linked. In of the VAT and tariff savings. See has production and sales. The VAT accordance with 19 CFR 351.502(c), the section 771(5)(D)(ii) of the Act and 19 refund can continue for five years. Department will consider whether two CFR 351.510(a)(1). One of Gold East’s cross-owned programs are integrally linked for With regard to specificity, certain companies was a qualifying purposes of making its specificity domestic enterprises are eligible to manufacturing enterprise in the determination, but the burden lies with receive VAT and tariff exemptions Economic Development Zone of Hainan

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17497

and reported that it received the VAT II. Programs Preliminarily Determined is less than 0.005 percent. Where the refund in the POI. The cross-owned To Be Not Countervailable countervailable subsidy rate for a company further added that becaue the program is less than 0.005 percent, the A. Debt-to-Equity Swap for APP China capital and number of employees are program is not included in the total registered with the local government, In 2001, Asia Pulp & Paper (APP) countervailing duty rate. See, e.g., Final the tax refund is automatically granted. defaulted on nearly $14 billion of debt. Results of Countervailing Duty A portion of the debt was owed by one Administrative Review: Low Enriched We preliminarily determine that the of APP’s subsidiaries, APP China. Uranium from France, 70 FR 39998 domestic VAT refunds confer a According to petitioner, in 2003, APP (July 12, 2005), and the accompanying countervailable subsidy. The refund is a China agreed to a debt-to-equity swap in Issues and Decision Memorandum, at financial contribution in the form of which the Chinese creditors ‘‘Purchases at Prices that Constitute revenue forgone by the local participated. The petitioner alleges that ‘More than Adequate Remuneration’’’ government and it provides a benefit to APP China was unequityworthy at the (citing Final Results of Administrative the recipient in the amount of the time of the equity infusion and that the Review: Certain Softwood Lumber refunded taxes. See section 771(5)(D)(ii) transaction was at the discretion of the Products from Canada, 69 FR 75917 of the Act and 19 CFR 351.510(a). In GOC state-owned banks, as well as (December 20, 2004), and the addition to the investment and being inconsistent with the usual accompanying Issues and Decision employee eligibility criteria described investment practice of private Memorandum, at ‘‘Other Programs above, it appears that recipients must be investments. Determined to Confer Subsidies’’). located in the Economic Development In response to our original and Therefore, we do not plan to pursue this Zone because these enterprises also pay supplemental questionnaires, the GOC alleged subsidy further in this income tax at a regionally-reduced rate. and Gold East have asserted that no investigation. See ‘‘Reduced Income Tax Rates for FIEs GOC banks were involved in a debt-to- We preliminarily determine that the Based on Location,’’ above. Therefore, equity swap with APP or any of its producers/exporters of CFS did not we preliminarily determine that the Chinese subsidiaries, including Gold apply for or receive benefits during the program is limited to enterprises located East. Furthermore, Gold East has POI under the programs listed below. in a designated geographical region and, provided additional proprietary A. Direction Adjustment Tax on Fixed hence, is specific under section information regarding the above Assets 771(5A)(D)(iv) of the Act. allegation. B. Income Tax Exemption Program for Export-oriented FIEs To calculate the benefit, we treated Based on record information, we preliminarily determine that GOC state- C. Corporate Income Tax Refund the VAT refund received by the cross- Program for Reinvestment of FIE Profits owned company as a recurring benefit, owned banks were not involved in a debt-to-equity swap with APP China or in Export-oriented Enterprises consistent with 19 CFR 351.524(c)(1). D. Discounted Loans for Export- We then attributed the benefit to sales any of its subsidiaries. Therefore, we do not find this program countervailable. Oriented Enterprises of the input and the downstream E. Exemption from Payment of Staff Our analysis is presented in a separate products. On this basis, we and Worker Benefits for Export-oriented memorandum because of the proprietary preliminarily determine that a Enterprises nature of the issue. See Memorandum to countervailable benefit of 0.19 percent F. Subsidies to Input Suppliers 5 Susan Kuhbach, ‘‘APP Debt-to-Equity ad valorem exists for Gold East. 1. Preferential tax policies for FIEs Analysis’’ (March 29, 2007) engaged in forestry and established in F. Other Subsidies (Chenming) (memorandum is on file in Department’s remote underdeveloped areas. CRU). 2. Preferential tax policies for Chenming reported four additional enterprises engaged in forestry programs in which it participated. III. Programs Preliminarily Determined To Be Not Used 3. Special fund for projects for the These programs may be connected to protection of natural forestry programs discussed above, but the Clean Production Technology Fund 4. Compensation fund for forestry information on the current record does The purpose of this program is to ecological benefits not allow us to decide that. Chenming provide incentives and rewards For purposes of this preliminary cited municipal government circulars (monetary or non-monetary) to determination, we have relied on the relevant to these programs, but neither encourage enterprises to conduct clean GOC’s and respondent companies’ Chenming nor the GOC provided copies production inspections, with the goal of responses to preliminarily determine of these documents. However, based on protecting the environment. The non-use of the programs listed above. the information submitted by program entered into force in October During the course of verification, the Chenming, we preliminarily determine 2004, and was authorized by Decree No. Department will examine whether these that these programs constitute 16 of the NDRC and the National programs were used by respondent countervailable subsidies within the Administration of Environmental companies during the POI. meaning of section 771(5) of the Act. Protection entitled Provisional Measures Verification Due to Chenming’s request that the on Clean Production Inspection (Decree In accordance with section 782(i)(1) of Department treat information about No. 16). the Act, we will verify the information these four programs as business Any payments under this program are submitted by the respondents prior to proprietary, we discuss these additional made at the local level. Shouguang City, making our final determination. programs in more detail in the the relevant authority for Chenming, Proprietary Analysis Memorandum, at reported that it made no grants under Suspension of Liquidation xx. As calculated in the Proprietary this program during 2004 and 2005. In accordance with section Analysis Memorandum, we determine Gold East reported that it received a 703(d)(1)(A)(i) of the Act, we calculated the combined countervailable subsidy grant under this program. for these programs to be 1.45 percent ad Based on our analysis, any potential 5 For a discussion of these programs, please see valorem for Chenming. benefit to Gold East under this program the ‘‘Input Products’’ section above.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17498 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

an individual rate for each exporter/ submission of case briefs, pursuant to 19 producers and exporters of coated free manufacturer of the subject CFR 351.309(d)(1). A list of authorities sheet paper (CFS) in Indonesia. For merchandise. We preliminarily relied upon, a table of contents, and an information on the subsidy rates, see the determine the total estimated net executive summary of issues should ‘‘Suspension of Liquidation’’ section of countervailable subsidy rates to be: accompany any briefs submitted to the this notice. Department. Executive summaries EFFECTIVE DATE: April 9, 2007. Net subsidy should be limited to five pages total, FOR FURTHER INFORMATION CONTACT: Exporter/manufacturer rate including footnotes. (percent) Sean Carey, Jacqueline Arrowsmith, or Section 774 of the Act provides that Gene Calvert, AD/CVD Operations, Gold East Paper (Jiangsu) the Department will hold a public Office 6, Import Administration, Co., Ltd...... 20.35 hearing to afford interested parties an International Trade Administration, Shandong Chenming Paper opportunity to comment on arguments U.S. Department of Commerce, Room Holdings Ltd...... 10.90 raised in case or rebuttal briefs, 7866, 14th Street and Constitution All Others ...... 18.16 provided that such a hearing is Avenue, NW, Washington, DC 20230; requested by an interested party. If a telephone: (202) 482–3964, (202) 482– In accordance with sections 703(d) request for a hearing is made in this and 705(c)(5)(A) of the Act, for 5255, or (202) 482–3586, respectively. investigation, the hearing will SUPPLEMENTARY INFORMATION: companies not investigated, we have tentatively be held two days after the determined an ‘‘all others’’ rate by deadline for submission of the rebuttal Background weighting the individual company briefs, pursuant to 19 CFR 351.310(d), at subsidy rate of each of the companies On November 20, 2006, the the U.S. Department of Commerce, 14th Department initiated a countervailing investigated by each company’s exports Street and Constitution Avenue, NW., of the subject merchandise to the United duty (CVD) investigation of CFS from Washington, DC 20230. Parties should Indonesia. See Notice of Initiation of States, if available, or CFS exports to the confirm by telephone the time, date, and United States. The all others rate does Countervailing Duty Investigations: place of the hearing 48 hours before the Coated Free Sheet Paper from the not include zero and de minimis rates scheduled time. or any rates based solely on the facts People’s Republic of China, Indonesia, Interested parties who wish to request and the Republic of Korea, 71 FR 68546 available. a hearing, or to participate if one is In accordance with sections (November 27, 2006) (Initiation Notice) requested, must submit a written (CFS Investigations). In the Initiation 703(d)(1)(B) and (2) of the Act, we are request to the Assistant Secretary for directing CBP to suspend liquidation of Notice, the Department set aside a Import Administration, U.S. Department period for all interested parties to raise all entries of CFS from the PRC that are of Commerce, Room 1870, within 30 entered, or withdrawn from warehouse, issues regarding product coverage. The days of the publication of this notice, comments we received are discussed in for consumption on or after the date of pursuant to 19 CFR 351.310(c). Requests the publication of this notice in the the ‘‘Scope Comments’’ section below. should contain: (1) The party’s name, On November 30, 2006, the Department Federal Register, and to require a cash address, and telephone; (2) the number deposit or bond for such entries of issued a CVD questionnaire to the of participants; and (3) a list of the Government of Indonesia (GOI). The merchandise in the amounts indicated issues to be discussed. Oral above. questionnaire informed the GOI that it presentations will be limited to issues was responsible for forwarding the ITC Notification raised in the briefs. questionnaire to producers/exporters of In accordance with section 703(f) of This determination is published CFS. The Department also provided the Act, we will notify the ITC of our pursuant to sections 703(f) and 777(i) of courtesy copies of the questionnaire to determination. In addition, we are the Act. PT. Pabrik Kertas Tjiwi Kimia Tbk. (TK) making available to the ITC all non- Dated: April 2, 2007. and to PT. Pindo Deli Pulp and Paper privileged and non-proprietary Stephen J. Claeys, Mills (PD), who the GOI identified as information relating to this Deputy Assistant Secretary for Import the sole producers/exporters of CFS investigation. We will allow the ITC Administration. from Indonesia. access to all privileged and business [FR Doc. E7–6498 Filed 4–6–07; 8:45 am] On December 29, 2006, the proprietary information in our files, BILLING CODE 3510–DS–P Department postponed the preliminary provided the ITC confirms that it will determination until March 30, 2007. See not disclose such information, either Coated Free Sheet Paper from publicly or under an administrative DEPARTMENT OF COMMERCE Indonesia, the People’s Republic of protective order, without the written China and the Republic of Korea: Notice consent of the Assistant Secretary for International Trade Administration of Postponement of Preliminary Determinations in the Countervailing Import Administration. C–560–821 In accordance with section 705(b)(2) Duty Investigations, 71 FR 78403 of the Act, if our final determination is Coated Free Sheet Paper from (December 29, 2006). On January 25, affirmative, the ITC will make its final Indonesia: Notice of Preliminary 2007, TK and PD (collectively, determination within 45 days after the Affirmative Countervailing Duty respondents), and the GOI submitted Department makes its final Determination their questionnaire responses. On determination. February 2 and February 12, 2007, the AGENCY: Import Administration, Department received comments from Public Comment International Trade Administration, the petitioner regarding these Case briefs for this investigation must Department of Commerce. questionnaire responses. On February be submitted no later than one week SUMMARY: The Department of Commerce 16, 2007, the Department issued after the issuance of the last verification (the Department) preliminarily supplemental questionnaires to the GOI report. Rebuttal briefs must be filed determines that countervailable and to the respondents. The GOI and the within five days after the deadline for subsidies are being provided to respondents submitted their

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17499

supplemental responses on March 6, CFS.1 In the submission, the USW Valuation’’ and ‘‘Analysis of Programs’’ 2007. acknowledges that the allegation is sections below. Respondents also filed On December 15, 2006, New Page untimely in accordance with section rebuttal comments to petitioner’s Corporation, the petitioner, submitted 351.301(d)(4)(i)(A) of the Department’s additional pre–preliminary two new subsidy allegations. The GOI regulations. However, the USW cites determination comments on March 27 and the respondents filed comments section 351.311 of the Department’s and 28, 2007. In addition, on March 28, regulations, which addresses instances 2007, the USW submitted additional concerning these new allegations on in which the Department discovers a comments concerning its March 9, 2007 December 26, 2006. On January 30, practice that appears to provide a new subsidy allegation and 2007, the petitioner submitted countervailable subsidy during a respondents’ March 21, 2007 comments additional information regarding the countervailing duty investigation. As on its new subsidy allegation. We did December 15, 2006 new subsidy noted by the USW, under section not have sufficient time to review these allegations. On February 7, 2007, the 351.311(b) of the Department’s submissions for purposes of this Department received additional regulations, the Department may preliminary determination. comments from the respondents include such a subsidy program in its Scope of the Investigation regarding the petitioner’s January 30, investigation as long as sufficient time 2007 submission. remains before the scheduled final The merchandise covered by this On March 15, 2007, the Department determination. On March 21, 2007, investigation includes coated free sheet determined that the requirements of respondents submitted comments paper and paperboard of a kind used for section 702 of the Tariff Act of 1930, as regarding the USW allegation, arguing writing, printing or other graphic amended (the Act) were met, and that it should be rejected as untimely purposes. Coated free sheet paper is initiated an investigation of the filed. produced from not–more-than 10 following new subsidy allegations: (1) With respect to the USW allegation, percent by weight mechanical or debt forgiveness through the GOI’s although it is untimely, we note that we combined chemical/mechanical fibers. acceptance of allegedly worthless shares are already investigating the provision Coated free sheet paper is coated with in the Sinar Mas Group/Asia Pulp & of standing timber for less than adequate kaolin (China clay) or other inorganic Paper Company’s (SMG/APP) affiliated remuneration. If, during the course of substances, with or without a binder, bank as debt repayment; and, (2) debt our investigation, we find that cross– and with no other coating. Coated free forgiveness through the GOI allowing owned companies in the CFS sheet paper may be surface–coated, SMG/APP to repurchase its own debt at production chain harvested pulp logs surface–decorated, printed (except as described below), embossed, or a steep discount through an affiliated for which no stumpage or reforestation perforated. The subject merchandise company. For a complete discussion on fees were paid, or less than the required includes single- and double–side-coated the Department’s decision to initiate on fees were paid, we would include any free sheet paper; coated free sheet paper these programs, see the Memorandum to such subsidy benefits in the calculation of any subsidy rate for these pulp logs in both sheet or roll form; and is Barbara E. Tillman, Director, Office of in accordance with our stumpage inclusive of all weights, brightness AD/CVD Enforcement VI, subsidy calculation methodologies. levels, and finishes. The terms ‘‘wood Countervailing Duty Investigation: On March 19, 2007, the petitioner free’’ or ‘‘art’’ paper may also be used to Coated Free Sheet Paper from submitted comments for the Department describe the imported product. Indonesia; New Subsidy Allegations, to consider for purposes of the Excluded from the scope are: (1) dated March 15, 2007, which is on file preliminary determination. On March Coated free sheet paper that is imported in the Import Administration Central 23, 2007, petitioner filed a few printed with final content printed text Records Unit (CRU), Room B–099 of the additional pre–preliminary or graphics; (2) base paper to be Commerce Department Building. determination comments. At the request sensitized for use in photography; and The Department has not had sufficient of the Department, the petitioner refiled (3) paper containing by weight 25 time to gather the information necessary this submission on March 26, 2007. On percent or more cotton fiber. to analyze the countervailability of these March 26, 2007, petitioner requested Coated free sheet paper is classifiable two programs for purposes of this that the final determination of this under subheadings 4810.13.1900, preliminary determination. However, countervailing duty investigation be 4810.13.2010, 4810.13.2090, after the Department has gathered and aligned with the final determination in 4810.13.5000, 4810.13.7040, analyzed information from the GOI and the companion antidumping duty 4810.14.1900, 4810.14.2010, respondents, we intend to issue an investigations in accordance with 4810.14.2090, 4810.14.5000, interim analysis describing our section 705(a)(1) of the Act. We will 4810.14.7040, 4810.19.1900, preliminary findings with respect to address this request in a separate 4810.19.2010, and 4810.19.2090 of the these programs before the final Federal Register notice. Harmonized Tariff Schedule of the determination so that parties may have On March 26, 2007, respondents filed United States (HTSUS). While HTSUS the opportunity to comment on our pre–preliminary determination subheadings are provided for findings before the final determination. comments. With respect to these convenience and customs purposes, our comments, they were filed too late to be written description of the scope of this On March 9, 2007, the United Steel, fully considered for purposes of this investigation is dispositive. Paper and Forestry, Rubber preliminary determination, but we note Manufacturing, Energy, Allied and that they identify a number of issues we Scope Comments Industrial Service Workers International are already addressing in the ‘‘Subsidies In accordance with the preamble to Union, AFL–CIO-CLC (‘‘USW’’) and the the Department’s regulations (see Sierra Club filed an additional new 1 The Sierra Club does not have standing to file Antidumping Duties; Countervailing subsidy allegation, contending that a subsidy allegation in accordance with sections Duties, 62 FR 27296, 27323 (May 19, illegal logging in Indonesia results in 702(b) and 771(9) of the Act; however the USW is 1997) (Preamble)), in our Initiation additional countervailable subsidies to an interested party in this proceeding pursuant to section 771(9)(D) of the Act and may submit Notice we set aside a period of time for Indonesian producers/exporters of subsidy allegations. parties to raise issues regarding product

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17500 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

coverage, and encouraged all parties to January 1, 2005 through December 31, share’’ may also result in cross– submit comments within 20 calendar 2005, which corresponds to the most ownership. See CVD Preamble at 63 FR days of publication of the Initiation recently completed fiscal year for the 65401. Notice. respondents. See section 351.204(b)(2) As such, the Department’s regulations On December 18, 2006, the of the Department’s regulations. make it clear that we must examine the respondents submitted timely scope facts presented in each case in order to Subsidies Valuation comments in the antidumping duty determine whether cross–ownership investigation of CFS from Indonesia. On Cross–Ownership exists. If we find that cross–ownership January 12, 2007, the Department Information on the record indicates exists between TK and PD, the requested that the respondents file these the name SMG/APP is commonly used producers/exporters under comments on the administrative record to refer to a group of forestry/logging investigation, and among and across the of the CFS Investigations. See companies, pulp producers, and paper companies within the input supply Memorandum from Alice Gibbons to producers linked by varying degrees of chain, we will treat all companies as The File, dated January 12, 2007. On common ownership involving the one company, and calculate a single rate January 12, 2007, the respondents re– Widjaja family. The respondents in this for any countervailable subsidies that filed these comments on the we identify and measure, in accordance administrative record of the CFS investigation, TK and PD, have reported affiliations with each other through a with section 351.525(b)(6) of the Investigations. On January 19, 2007, the Department’s regulations. petitioner filed a response to these parent holding company Purinusa Ekapersada (Purinusa); with two pulp Further, in accordance with section comments. 351.525(b)(6)(iv) of the Department’s The respondents requested that the producers (PT. Lontar Papyrus Pulp and Paper Industry (Lontar) and PT. Indah regulations, if the Department Department exclude from its determines that the suppliers of inputs investigations cast–coated free sheet Kiat Pulp and Paper Tbk. (IK)); and with primarily dedicated to the production of paper. The Department analyzed this five forestry/logging companies (Arara paper products are cross–owned with request, together with the comments Abadi (AA), Wira Karya Sakti (WKS), the producers/exporters under from the petitioner, and determined that PT. Satria Perkasa Agung (SPA), PT. investigation, then the Department it is not appropriate to exclude cast– Riau Abadi Lestrari (RAL), and PT. treats subsidies provided to the input coated free sheet paper from the scope Finnantara Intiga (FI)). producers as subsidies conferred on the of these investigations. See the The Department’s regulations at production of the finished product. Memorandum to Stephen J. Claeys, section 351.525(b)(6)(vi) state that In this investigation, we are Deputy Assistant Secretary for Import cross–ownership exists between two or examining whether the two producers/ Administration, Request to Exclude more corporations where one exporters of the subject merchandise, Cast–Coated Free Sheet Paper from the corporation can use or direct the TK and PD, are cross–owned with one Antidumping Duty and Countervailing individual assets of the other another, and with their input suppliers Duty Investigations on Coated Free corporation(s) in essentially the same as outlined in section 351.352(b)(6)(iv) Sheet Paper, dated March 22, 2007, on ways it can use its own assets. This of the Department’s regulations. The file in the CRU. section of the Department’s regulations states that this standard will normally alleged subsidies we are investigating Injury Test be met where there is a majority voting are conferred on the forestry/logging Because Indonesia is a ‘‘Subsidies ownership interest between two companies which harvest and sell pulp Agreement Country’’ within the corporations or through common logs, which in turn are sold to the pulp meaning of section 701(b) of the Act, the ownership of two (or more) producers that supply the paper International Trade Commission (ITC) is corporations. The Preamble to the producers/exporters. Therefore, we required to determine whether imports Department’s regulations further must examine whether cross–ownership of the subject merchandise from clarifies the Department’s cross– exists among and across the suppliers of Indonesia materially injure, or threaten ownership standard. See Countervailing pulp logs, the pulp producers, and the material injury to a United States Duties 63 FR 65347, 65401 (CVD CFS producers/exporters. industry. On December 15, 2006, the Preamble). Based on information on the record, ITC transmitted its preliminary According to the CVD Preamble, we preliminarily determine that cross– determination to the Department. See relationships captured by the cross– ownership exists, in accordance with Coated Free Sheet Paper from China, ownership definition include those section 351.525(b)(6)(vi) of the Indonesia, and Korea: Investigation Nos. where the interests of two corporations Department’s regulations, among and 701–TA–444–446 (Preliminary) and have merged to such a degree that one across the following companies 731–TA–1107–1109 (Preliminary), corporation can use or direct the involved in the production and sale of USITC Publication 3900 (December individual assets (including subsidy the subject merchandise: the respondent 2006). On December 29, 2006, the ITC benefits) of the other corporation in paper producers/exporters, TK and PD; published its preliminary determination essentially the same way it can use its pulp producers, Lontar and IK; and the that there is a reasonable indication that own assets (including subsidy benefits). forestry and logging companies, AA, an industry in the United States is The cross–ownership standard does not WKS, RAL, SPA, and FI. Since much of materially injured by reason of allegedly require one corporation to own 100 our analysis supporting this conclusion subsidized imports from China, percent of the other corporation. involves business proprietary Indonesia, and Korea of subject Normally, cross–ownership will exist information, a full discussion of the merchandise. See Coated Free Sheet where there is a majority voting bases for our preliminary determination Paper China, Indonesia, and Korea, 71 ownership interest between two is set forth in the Memorandum to FR 78464. corporations or through common Barbara E. Tillman, Director, AD/CVD ownership of two (or more) Operations, Office 6, Cross–Ownership, Period of Investigation corporations. In certain circumstances, a dated March 29, 2007 (Cross–Ownership The period of investigation (POI) for large minority voting interest (for Memo), a public version of which is on which we are measuring subsidies is example, 40 percent) or a ‘‘golden file in the CRU.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17501

In addition to the five cross–owned whole, and that its analysis should lined paper products, the subject forestry/logging companies identified determine whether facts on the record merchandise in that case. above, we are also preliminarily finding support the conclusion that timber and In the instant case, pulp logs that certain additional timber suppliers other resources under the Forestry harvested by the cross–owned forestry/ from which pulp logs were purchased Program are primarily dedicated to the logging companies are processed into during the POI are cross–owned. In the production of CFS. Additionally, the pulp by pulp producers Lontar and IK. questionnaire responses, respondents respondents state that the Department This pulp is consumed by the reported that some of the five cross– should give ‘‘proper weight and respondents, TK and PD, to make paper owned forestry/logging companies consideration to the word primarily,’’ and paper products including the identified above also purchased pulp arguing that the word is defined as subject merchandise, CFS. Because the logs from unaffiliated timber suppliers. ‘‘chiefly’’ or ‘‘in the first place.’’ See pulp logs are primarily dedicated to the The Department examined the respondents’ March 6, 2007 response at production of pulp and, ultimately, to information provided in the page 28. the production of paper products, it is questionnaire responses about these The respondents claim that they, and reasonable to conclude that a subsidy to reportedly unaffiliated timber suppliers, their affiliated companies, produce a pulp logs also benefits pulp and paper and conducted additional independent variety of products such as pulp, production where all of the companies research concerning these timber photocopier paper, and tissue, as well as involved are cross–owned. suppliers. See Cross–Ownership Memo CFS, and that timber accounts for Based on the information on the for a full discussion of the Department’s roughly 25 percent of all Indonesian record, we preliminarily determine that analysis and research. In addition, the industry groupings, ranging from paper the production of pulp logs are an input Department examined information to furniture to chemical products. product that is primarily dedicated to about these reportedly unaffiliated Therefore, the respondents conclude, the production of pulp and paper timber suppliers, and supporting the primarily dedicated test would not products, including CFS. See Cross– documentation, provided by petitioner. be met even if the Department were to Ownership Memo. In accordance with section 351.525(b)(6)(iv) of the After analyzing all of this information perform its analysis specifically for the Department’s regulations, any subsidies and documentation, we find that the group of companies to which the found will be attributed to the information and documentation respondents belong. Id. supports a preliminary finding that appropriate combined sales of the The Department has previously products produced by the cross–owned certain of these timber suppliers are addressed the issue regarding pulp logs cross–owned with the SMG/APP Group. companies, excluding any inter– as input products in the production of company sales. Since the names of these suppliers are pulp and paper products in the Notice business proprietary, a complete of Preliminary Affirmative Loan Benchmarks discussion of the bases for our Countervailing Duty Determination: preliminary finding that these In measuring the benefit from loan Certain Lined Paper Products from additional timber suppliers are also programs, section 351.505(a)(1) of the Indonesia, 71 FR 7524, 7527–28 cross–owned with the other companies Department’s regulations provides that a (February 13, 2006) (Lined Paper in the production chain is provided in ‘‘benefit exists to the extent that the Prelim). In Lined Paper Prelim, the the Cross–Ownership Memo. amount the firm pays on the Department determined that harvested government–provided loan is less than Attribution of Subsidies Provided to pulp logs, and the pulp they are used to the amount the firm would pay on a Cross–Owned Input Suppliers produce, are input products primarily comparable commercial loan(s) that the As discussed above, the Department’s dedicated to the downstream product firm could actually obtain on the regulations at section 351.525(b)(6)(iv) within the meaning of section market.’’ In section 351.505(a)(2)(ii), the state that if there is cross–ownership 351.525(b)(6)(iv) of the Department’s Department’s regulations address the between an input supplier and a regulations. In Lined Paper Prelim, the selection of a commercial loan as the downstream producer, and production Department determined that ‘‘the issue appropriate basis for comparison, of the input product is primarily is not whether the potentially stating ‘‘the Secretary normally will use dedicated to production of the subsidized inputs are used exclusively a loan taken out by the firm from a downstream product, the Secretary will or nearly exclusively for the production commercial lending institution or a debt attribute subsidies received by the input of the subject merchandise. Rather, it is instrument issued by the firm in a producer to the combined sales of the a question of whether the inputs are commercial market.’’ TK and PD have input and downstream products primarily dedicated to the production of not provided sufficient information produced by both corporations the downstream product.’’ regarding actual financing they (or the (excluding the sales between the two In Final Affirmative Countervailing other cross–owned companies) obtained corporations). Duty Determination and Final Negative at the same time that the loans under The respondents, TK and PD, have Critical Circumstances Determination: examination were obtained and thus we argued that they do not have to respond Certain Lined Paper Products from are unable to rely on the companies’ for AA, WKS, RAL, SPA, and FI because Indonesia, 71 FR 47174 (August 16, own financing experience as the basis the input products in question, logs, are 2006) (Lined Paper Final), and for our loan interest rate benchmark. not ‘‘primarily dedicated to the accompanying Issues and Decision Therefore, we are guided by section production of CFS’’ and therefore, do Memorandum at Comment 3, the 351.505(a)(3)(ii) of the Department’s not meet the standard in accordance Department remained consistent with regulations, which states, ‘‘{i}f the firm with section 351.525(b)(6)(iv) of the its preliminary determination, and did not take out any comparable Department’s regulations. See determined that the logs harvested by commercial loans during the period . . respondents’ March 2, 2007 response at the logging companies and sold to the . the Secretary may use a national page 3. The respondents state that they pulp producers are primarily dedicated average interest rate for comparable believe the Department should conduct to the production of pulp and, thus, to commercial loans.’’ Accordingly, to its ‘‘primarily dedicated analysis’’ with the production of the downstream measure the loan benefits, we have used respect to the Indonesian economy as a product, paper, which included certain as our benchmark the rate charged by

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17502 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

private national banks for ‘‘Investment’’ companies from whom AA and WKS above, all five of the forestry/logging (long–term loans) as shown in the Bank purchased pulp logs during the POI to companies reported in the questionnaire of Indonesia Interest Rates Table 39 be cross–owned with the companies in response as being affiliated with ‘‘Commerical Bank Credits In Ruppiah the production chain. As such, the respondents, harvested from their own by Group of Commercial Banks,’’ in Department is including all of these plantations. They harvested acacia, Exhibit 19 of the GOI’s January 24, 2007 cross–owned forestry/logging mixed tropical hardwood (MTH) response and in Exhibit 8 of the companies in our analysis of whether chipwood, and smaller volumes of MTH respondents’ January 24, 2007 response, the GOI has provided standing timber pulp logs. for the years in which the loans were for less than adequate remuneration. The GOI initially reported that approved. The GOI provided the laws that numerous products, both timber and The petitioner alleged that the outline the types of fees and royalties non–timber, are harvested from public Indonesian companies were assessed for the harvest of standing land owned by the GOI. See GOI’s uncreditworthy beginning in 2001 and public timber in Indonesia. Id. at January 25, 2007 response at page 4; thereafter. The Department initiated on Exhibit 7. Specifically, the GOI stated however, the GOI did not report the this allegation. See Initiation Checklist: that HTI license holders pay an initial number of industries that had rights to Coated Free Sheet Paper from license fee at the granting of each harvest standing timber. In our Indonesia, dated November 20, 2006 concession. In addition, these HTI supplemental questionnaire, we (Initiation Checklist), a public version of license holders pay ‘‘cash stumpage requested that the GOI identify for the which is on file in the CRU. Because the fees’’ known as PSDH royalty fees years 2002 through 2005, every loans under investigation were all which are paid per unit of timber company, and the industry in which it approved prior to 2001 (the earliest year harvested (usually a per ton or per cubic was classified, that applied for and was for which the Department initiated an meter unit of measure). The PSDH rate approved or rejected for either an HPH uncreditworthiness investigation), we in effect during the POI for acacia or HTI license. See the Department’s have not analyzed the creditworthiness harvested from plantations was five February 16, 2007 Supplemental of the respondents and their cross– percent in accordance with Regulation Questionnaire at 2. The GOI did provide owned suppliers and, consequently, we 59/1998. Id. at Exhibit 7. Regulation 74/ a list of company names but did not have not added a risk premium to the 1999 increased the PSDH rate for all identify the company’s industry benchmark for long–term loans as timber harvested from the natural forest classification. We also requested that provided for in section 351.505(a)(3)(iii) from six percent to ten percent, the rate the GOI identify the Indonesian of the Department’s regulations. in effect during the POI. Id.; see also industrial classifications for companies GOI’s March 6, 2007 response at page 5. that harvest timber and consume timber Analysis of Programs These percentage rates are multiplied by as a primary input. Id. at 2. In response, I. Programs Preliminarily Determined the reference prices set by the GOI for the GOI stated that the following five To Be Countervailable each type of wood harvested to industries used standing timber either determine the PSDH fee a company through consumption of timber as a A. GOI Provision of Standing Timber for should pay per unit of timber harvested. primary input or through products that Less than Adequate Remuneration See the GOI’s January 25, 2007 response are produced with timber: the wood and According to the GOI, it controls and at page 15. There were two sets of wood products, paper and paper administers over 57 million hectares of reference prices in effect during the POI. products, publishing and printing, public harvestable forest land, which The first was in effect until February 3, chemical, and furniture industries. See accounts for virtually all the harvestable 2005; the second published set of GOI’s March 6, 2006 response at page 6 forest land in Indonesia. See GOI’s reference prices was put into effect on and Exhibit Supp–5. January 25, 2007 response at pages 4 February 4, 2005. Id. at Exhibit 7 under Although we are concerned that in its and 13. Record information shows that Regulations 436/MPP/Kep/7/2004 and supplemental questionnaire response timber can be harvested from the GOI 18/M/Kep/2005, respectively. the GOI broadened the scope of our land under two main types of licenses: According to the GOI, the reference question by adding in industries that do licenses to harvest timber in the natural prices reflect the market prices for each not harvest timber or consume timber as forest, known as ‘‘HPH’’ licenses, and type of log sold in Indonesia. Id. at page a primary input, we are relying on the licenses to establish, and harvest from, 15. GOI’s statement that five industries are plantations, which are known as ‘‘HTI’’ In addition to the PSDH fee, a per unit provided standing timber by the GOI for licenses. See the GOI’s January 25, 2007 Rehabilitation Fee (dana reboisasi or purposes of this preliminary response at page 5. Respondents and the DR) is paid for timber harvested from determination. We also asked the GOI to GOI reported that AA, WKS, SPA, RAL the natural forest and remained the identify the total number of industries and FI are affiliated forestry/logging same throughout the POI. Id. at page 13; in Indonesia at the same level of companies which harvested pulp logs see also the GOI’s January 25, 2007 industrial classification in which the during the POI from plantations under response at Exhibit 7 for the fee paid GOI placed the industries that harvest or HTI licenses. Id. at page 11; see also during the POI under Regulation 92/ consume timber. See the Department’s respondents’ January 25, 2007 response 1999. The GOI stated that HTI license February 16, 2007 Supplemental at pages 19–20. As discussed above in holders are not subject to the DR when Questionnaire at 2. In response, the the ‘‘Cross–Ownership’’ section, the ‘‘the wood harvested comes from their information provided by the GOI Department has preliminarily own plantation assets.’’ Id. at page 6. identifies a total of 23 industries at the determined that these forestry/logging However, respondents reported that for level of large and medium companies are cross–owned with pulp pre–existing timber that is cleared manufacturing activities. See the GOI’s producers IK and Lontar, and with CFS within the plantation boundaries to March 6, 2006, response at page 6 and producers/exporters TK and PD. In allow new planting on the plantations, Exhibit Supp–5. Therefore, even relying addition, as discussed above in the they ‘‘pay PSDH and DR fees on timber on the GOI’s statement that five ‘‘Cross–Ownership’’ section, we have that is harvested during clearing industries use this program, these five found, for purposes of this preliminary exercises.’’ See respondents’ March 6, industries constitute a limited group of determination, certain forestry/logging 2007 response at page 14. As stated industries within the universe of 23

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17503

industries identified by the GOI. reported that there were only 233,811 Paper. Respondents have provided Accordingly, we preliminarily hectares of private forest land and that information regarding stumpage rates in determine that provision of standing it does not maintain information on the the United States and have argued that timber by the GOI is de facto specific in value of any private sales of standing the Department should use U.S. accordance with section 771(5A)(D)(iii) timber in Indonesia. See the GOI’s stumpage rates as a benchmark, of the Act. March 6, 2007 response at page 3. We consistent with our determination in We also preliminarily determine that preliminarily determine that there are Notice of Final Affirmative the provision of standing timber no market–determined stumpage fees in Countervailing Duty Determination and provides a financial contribution as Indonesia upon which to base a ‘‘first Final Negative Critical Circumstances described in section 771(5)(D)(iii) of the tier’’ benchmark. This is consistent with Determination: Certain Softwood Act (provision of goods or services other our finding in Lined Paper Final at Lumber Products From Canada, 67 FR than general infrastructure). Pursuant to ‘‘Benchmark for Stumpage’’ section. As 15545 (April 2, 2002) (‘‘Lumber’’) and section 771(5)(E)(iv) of the Act, a benefit noted above, the GOI has not provided accompanying Issues and Decision is conferred when the government any information on the sale of either Memorandum at section ‘‘C.I.B.’’ provides a good or service for less than privately–owned standing timber in However, respondents have not adequate remuneration. Section Indonesia, or the stumpage fees charged demonstrated that the types of U.S. 771(5)(E) of the Act further states that by private timber companies. See the timber they are suggesting for ‘‘the adequacy of remuneration shall be GOI’s March 6, 2007 response at page 3. comparison purposes are grown in determined in relation to prevailing Nor has the Department been able to similar conditions as those in Indonesia market conditions for the good or identify such information from any and are similar to the species harvested service being provided . . . in the other available source. Accordingly, the in Indonesia as pulpwood. These were country which is subject to the Department has no private stumpage all important factors which supported investigation or review. Prevailing data in Indonesia that could even be the Department’s decision to use U.S. market conditions include price, evaluated for purposes of a ‘‘first tier’’ stumpage prices in Lumber. Id. Based on quality, availability, marketability, benchmark. the record in this investigation, we transportation, and other conditions of . The ‘‘second tier’’ benchmark, preliminarily determine that U.S. . . sale.’’ according to the regulations, relies on stumpage prices do not satisfy the Section 351.511(a)(2) of the world market prices that would be ‘‘second tier’’ benchmark requirements. Department’s regulations sets forth the available to the purchasers in the In the alternative, respondents have basis for identifying comparative country in question, though not also provided information on Malaysian benchmarks for determining whether a necessarily reflecting prices of actual stumpage rates for acacia, one of the government good or service is provided transactions involving that particular species used to produce pulp and paper for less than adequate remuneration. producer. In selecting a world market products in Indonesia. However, the These potential benchmarks are listed in price under this second approach, the information respondents provided is a hierarchical order by preference: (1) Department will examine the facts on study commissioned by them for market prices from actual transactions the record regarding the nature and purposes of this investigation and within the country under investigation; scope of the market for that good to consists of a statement of opinion that (2) world market prices that would be determine if that market price would be includes no supporting documentation available to purchasers in the country available to an in–country purchaser. As to establish the authenticity of the under investigation; or (3) an discussed in the CVD Preamble, the figures used to calculate this benchmark assessment of whether the government Department will consider whether the rate. Even if this study were price is consistent with market market conditions in the country are independent and the data in it principles. This hierarchy reflects a such that it is reasonable to conclude supported, the respondents have not logical preference for achieving the that a purchaser in the country could addressed how these Malaysian objectives of the statute. obtain the good or service on the world stumpage rates are representative of The most direct means of determining market. For example, a European price rates that would be available to a whether the government required for electricity normally would not be an purchaser in Indonesia. Consequently, adequate remuneration is by acceptable comparison price for these data do not provide an appropriate comparison with private transactions for electricity provided by a Latin American basis for a ‘‘second tier’’ benchmark. a comparable good or service in the government, because electricity from Since we are not able to conduct our country. Thus, the preferred benchmark Europe in all likelihood would not be analysis under the ‘‘second tier’’ of the in the hierarchy is an observed market available to consumers in Latin regulations, consistent with the price for the good, in the country under America. However, as another example, hierarchy, we are preliminarily investigation, from a private supplier the world market price for commodity measuring the adequacy of (or, in some cases, from a competitive products, such as certain metals and remuneration by assessing whether the government auction) located either ores, or for certain industrial and government price is consistent with within the country, or outside the electronic goods commonly traded market principles. This approach is set country (the latter transaction would be across borders, could be an acceptable forth in section 351.511(a)(2)(iii) of the in the form of an import). This is comparison price for a government– Department’s regulations and is because such prices generally would be provided good, provided that it is explained further in the CVD Preamble expected to reflect most closely the reasonable to conclude from record at 65378: ‘‘Where the government is the commercial environment of the evidence that the purchaser would have sole provider of a good or service, and purchaser under investigation. access to such internationally traded there are no world market prices Thus, in accordance with the first goods. See CVD Preamble at 63 FR available or accessible to the purchaser, preference in the hierarchy, to 65377. we will assess whether the government determine the existence and extent of We have insufficient evidence of price was set in accordance with market the benefit, we would need to identify world market prices for standing timber principles through an analysis of such an observed market stumpage price from on the record of this investigation. This factors as the government’s price–setting a private supplier in Indonesia. The GOI finding is also consistent with Lined philosophy, costs (including rates of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17504 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

return sufficient to ensure future Administrative Review and Rescission For MTH, respondents suggested that operations), or possible price of Certain Company–Specific Reviews: we rely on export data for three discrimination.’’ The regulations do not Certain Softwood Lumber Products categories of pulpwood, one of which is specify how the Department is to From Canada, 69 FR 75917 (December identified as light hardwood pulpwood conduct such a market principle 20, 2004), and accompanying Issues and and the other two as light hardwood analysis. By its nature the analysis Decision Memorandum at pages 16–18. pulpwood of the species batai and depends upon available information As a result of the geographic meransi. Petitioner has suggested that concerning the market sector at issue proximity and the similarities of forest we use the same benchmark for MTH and, therefore, must be developed on a conditions, climate, and tree species that we used in Lined Paper Final, case–by-case basis. between Indonesia and Malaysia, we which was based on the value of exports The GOI has not provided information have selected Malaysian pulp log export of sawlogs, veneer logs, and other wood or documentation which demonstrates prices as the most appropriate basis for of the species kapur, keruin, ramin, and that the stumpage fees it charges are evaluating whether Indonesian other tropical woods. We do not find it established in accordance with market stumpage is priced consistent with appropriate to use the export values of principles. Although the PSDH rates are market principles. See section the types of logs used in the Lined Paper established as a percentage of the 351.511(a)(2)(iii) of the Department’s Final, as suggested by petitioner, reference price of logs, we cannot regulations; see also Preliminary because those log types included saw conclude that the log reference price is Affirmative Countervailing Duty logs and veneer logs, as adverse facts reflective of market principles or is a Determination on Coated Free Sheet available in that case. In addition, we market–determined price. The GOI Paper from Indonesia: Analysis have preliminarily determined not to reported that the reference price is Memorandum on Calculations for PT. include the batai and meransi categories normally determined by a weighted– Pabrik Kertas Tjiwi Kimia Tbk and PT. of pulp logs suggested by respondents average of both the Indonesian domestic Pindo Deli Pulp and Paper Mills because they have not demonstrated and export prices for logs. However, (Preliminary Analysis Memo), dated that these particular types of wood are since a log export ban is in place, the March 29, 2007. This is consistent with harvested as pulpwood in Indonesia. If reference price is currently determined our finding in Lined Paper Final. the GOI can demonstrate that these solely from domestic prices. See GOI’s Furthermore, neither party has argued other types of wood are harvested as January 25, 2007 response at page 15. that Malaysian pulpwood is not suitable pulpwood in Indonesia, we will Through its ownership of virtually all of for comparison purposes. These export consider including them in any Indonesia’s harvestable forests, the GOI transactions reflect prices resulting from calculation of the Malaysian export has complete control over access to the private transactions between Malaysian values in the final determination. timber supply. In addition, the ban on pulp log sellers and pulp log buyers in Therefore, for purposes of this the export of logs affects the price for the international market; thus, they preliminary determination, we have logs. Id. at Exhibit 7 under Regulations represent market–determined prices. decided to use Malaysian exports of 1132/Kpts–II/2001 and 292/MPP/Kep/ Accordingly, we are using the value of light hardwood pulpwood, of a type not 10/2001; see also GOI’s March 6, 2007 pulp log exports from Malaysia during elsewhere specified (HTS 4403.99.195) response at Exhibit Supp–12 and the the POI, as reported in the ‘‘World as the starting point for determining paper by the Centre for Strategic and Trade Atlas,’’ as the starting point for whether the GOI is providing MTH pulp International Studies on determining whether the GOI is logs and chipwood for less than ‘‘Competitiveness and Efficiency of the providing standing timber for less than adequate remuneration. Forest Product Industry in Indonesia’’ adequate remuneration. Using the Malaysian export data for (noting a study on page 6 that the To determine which Malaysian export acacia and light hardwood pulpwood, ‘‘stumpage value was reduced by 33% statistics to include in the benchmark, we calculated two unit values: one to under the log export ban policy.’’). As we evaluated the suggestions submitted use for acacia pulp logs and one to use such, the reference prices for logs by the parties regarding Malaysian log for MTH chipwood and pulp logs. See cannot be considered market–based. export prices for several types and Preliminary Analysis Memo. To derive a Thus, we preliminarily determine that species of logs. The respondents have market–based benchmark price for the stumpage fees charged by the GOI reported that acacia and MTH are the Indonesian stumpage, we then adjusted which are charged as a percentage of a types of timber that were harvested from the Malaysian export log prices to non–market determined reference price HTI plantations for pulp and paper remove the Indonesian costs of are not based on market principles. production in Indonesia and that AA, extraction (harvesting) of the standing Since the government price was not WKS, SPA, RAL, and FI harvested either timber. To determine the Indonesian set in accordance with market one or both of these types of pulpwood harvesting costs (including a reasonable principles, we looked for an appropriate from plantations. See respondents’ amount for profit associated with proxy to determine a market–based March 6, 2007 questionnaire response at extraction), we used information stumpage benchmark. It is generally Exhibit Supp–10; see also Cross– contained in ‘‘Addicted to Rent: accepted that the market value of timber Ownership Memo on timber purchased Corporate and Spatial Distribution of is derivative of the value of the by AA and WKS from the suppliers that Forest Resources in Indonesia; downstream products. The species, we have preliminarily determined are Implications of Forest Sustainability dimension and growing condition of a also cross–owned. For acacia, none of and Government Policy.’’ This study, tree largely determine the downstream the parties suggested using anything which was submitted as Exhibit V–8 of products that can be produced from a other than the value of acacia pulp log the October 31, 2006 petition, provided tree; the value of a standing tree is exports from Malaysia. No record the only independent source that derived from the demand for logs information suggests that exports of specifies extraction costs and profit in produced from that tree and the demand acacia pulp logs are not the appropriate Indonesia. The amounts in this report for logs is in turn derived from the basis to use as the starting point for are $17 for extraction costs and $5 for demand for the products produced from determining whether the GOI is profit in connection with extraction. these logs. See e.g., Notice of Final providing acacia pulpwood for less than Both the petitioner and the Results of Countervailing Duty adequate remuneration. respondents have argued (albeit for

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17505

different reasons and for different these logs which are harvested from the charged by the GOI during the POI. We adjustments) that the Department could plantation. Id. at page 16. compared the resulting calculated use the forestry/logging companies’ To determine the existence and extent stumpage and DR fees paid by pulp log reported actual costs for harvesting to of the benefit for acacia and MTH on a type, to the appropriate benchmark. We adjust the Malaysian log export prices. per–unit basis, we compared the actual multiplied the resulting difference by However, for purposes of this payment of PSDH fees by AA, WKS, the volume of pulp logs sold to AA and preliminary determination, we have SPA, RAL and FI on accacia to the WKS by these cross–owned pulp log decided not to use these actual costs. benchmark stumpage fee derived from suppliers to determine the benefit. We may consider using these actual the Malaysian export prices for accacia Since we have preliminarily costs for the final determination if the pulp logs. We then compared, where determined that the forestry/logging GOI can demonstrate that it has a possible, the actual PSDH fees and DR companies are cross- owned with the system in place to evaluate exactly fees paid by AA, WKS, SPA, RAL and pulp and paper producers and that the which costs are legitimately considered FI on MTH chipwood and pulp logs, to pulp logs produced by these cross– to be harvesting and extraction costs, the corresponding derived stumpage owned forestry/logging companies are and that it has evaluated how to benchmark for MTH pulpwood. primarily dedicated to the production of distinguish the types of costs relevant to Respondents claimed that the the downstream products (see ‘‘Cross– harvesting on plantations versus the Department should make adjustments to Ownership’’ section above), we natural forest, and that it has a system these actual stumpage payments to the preliminarily find that the GOI’s in place to distinguish the costs of GOI for a number of harvesting costs, provision of timber for less than extraction on plantations versus other taxes and annual license fees that the adequate remuneration provides a plantation development and companies incur. We have already countervailable subsidy to TK/PD. To maintenance costs. factored in, as a deduction from the determine the subsidy rate, we first Malaysian export prices, an amount for summed all of the benefit amounts Based on our analysis of the total harvesting costs. The GOI has calculated for the cross–owned forestry/ information on the record, as well as our provided no basis for making an logging companies. We then divided the own research which shows that acacia adjustment for taxes. While an aggregate benefit by the sum of the is grown on plantations in Malaysia just adjustment for an annual licensing fee external sales values of TK, PD, IK, and as it is in Indonesia, we preliminarily may be warranted, the GOI did not Lontar (i.e., total FOB sales values determine that no other adjustments provide any information on what those minus any cross–owned inter–company (other than the extraction costs and the annual licensing fees are and the sales), adjusted, where possible, for profit associated with extraction) are companies did not report what they sales returns, claims, and discounts. We necessary to the Malaysian export prices paid in annual licensing fees during the have not included in the denominator to derive a market–based stumpage POI. any external sales of the cross–owned price in Indonesia. See Preliminary Based on the comparison of the per– forestry/logging companies because, as Analysis Memo. unit stumpage fees actually paid on discussed above, we are capturing in the We then compared this derived each type of wood with the market– benefit calculation only pulp logs that market–based stumpage price to the derived stumpage benchmark, we were harvested/produced by the cross– stumpage fees paid by respondents’ determine that the GOI provided owned forestry/logging companies that cross–owned forestry/logging standing timber for less than adequate were sold to IK and Lontar. This companies.2 Where possible, we used remuneration. We then multiplied the calculation yields a countervailable the reported PSDH royalty fees and the difference between the actual fee paid subsidy rate of 21.23 percent ad valorem relevant DR reforestation fees that the on a per–unit basis and the benchmark for the combined entity TK/PD. respondents’ cross–owned forestry/ stumpage rate, by multiplying this per– Although the Department initiated an logging companies reported paying unit stumpage benefit for each type of investigation of whether the GOI ban on during the POI for each of the types of wood by the reported volume of each log exports provides a countervailable Indonesian pulp logs (acacia and MTH) type of wood that was harvested and subsidy to the respondents, we harvested during the POI. See sold to IK and Lontar during the POI for determine that the issue of the respondents’ March 6, 2007 response at these five forestry/logging companies. countervailability of the log export ban Exhibit Supp–10. For MTH chipwood For the pulp logs purchased by AA need not be reached for purposes of this and pulp logs (the GOI defines and WKS from the additional suppliers preliminary determination. First, the chipwood as timber of any length whose that we have preliminarily determined only source of pulp logs for IK and diameter is less than 29 centimeters), are cross–owned (see ‘‘Cross– Lontar, the cross–owned pulp producers respondents reported payments of both Ownership’’ section above), we did not which supplied pulp to TK and PD PSDH and DR; for acacia, respondents have information about the actual during the POI, was from the cross– stumpage and DR fees paid. We only reported payments of PSDH owned forestry/logging companies. calculated the amount of the stumpage because DR fees are not required on Respondents stated that ‘‘IK and Lontar paid for acacia by multiplying the did not purchase timber from any volume of acacia pulp logs produced by supplier other than AA and WKS during 2 Because the Malaysian export values are reported in ringgits and the Indonesian stumpage these suppliers which was purchased by the POI.’’ See respondents’ March 6, fees are in rupiahs, and because the sales values AA and WKS, by the PSDH that would 2007 response at page 10. Second, we reported by IK, Lontar, TK and PD were in U.S. have been charged by the GOI during have preliminarily found that IK’s and dollars, we have converted all values into U.S. the POI. The MTH stumpage payments Lontar’s total supply of pulp logs is dollars using the annual average exchange rate for the POI reported in the International Monetary were calculated by multiplying the roughly equivalent to the total quantity Fund Statistics. In addition, where it was necessary volume of MTH pulp logs produced by of pulp logs harvested by AA and WKS, to convert between tons and cubic meters, we used these suppliers which was purchased by plus the quantity of pulp logs purchased a conversion factor reported in the Food and AA and WKS, by the PSDH that would by AA and WKS from cross–owned Agriculture Organization of the United Nations’ ‘‘Forest Products Yearbook 2003’’ which we have have been charged by the GOI during forestry/logging companies in the CFS placed on the record in the Preliminary Analysis the POI, plus the DR fee charged on production chain. As such, we find it Memo. MTH pulp logs that would have been reasonable to conclude for purposes of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17506 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

this preliminary determination that IK’s funding joint ventures through the DR B. Subsidized Funding for Reforestation and Lontar’s supply of pulp logs was Fund loan programs, although existing (Hutan Tanaman Industria or HTI exclusively sourced from the production joint ventures which had previously Program): Government Capital Infusions of these cross–owned companies. obtained loans through the DR Fund into Joint Venture Forest Plantation Because we would not attribute to the would receive loan disbursements and The respondents reported that RAL downstream cross–owned pulp and would be required to make loan and FI, both HTI joint ventures, received paper producers a benefit that payments as required by loan captial infusions in the 1990s under this encompasses a quantity of pulp logs that agreements finalized before 2000. program. However, petitioner’s is greater than the quantity of pulp logs unequityworthiness allegation, and the actually produced and sold by the The respondents reported that of the Department’s subsequent initiation, cross–owned forestry/logging cross–owned forestry/logging addressed the companies’ companies to the downstream companies (see ‘‘Cross–Ownership’’ producers, we need not evaluate section above), only RAL (a compelled unequityworthiness from 2001 through whether the remaining purchases by AA joint venture) and FI (a voluntary joint the POI (see Initiation Checklist). and WKS of pulp logs from unaffiliated venture) received ‘‘zero interest’’ loans Because the capital infusions were provided prior to 2001, we have not suppliers are benefitting from a subsidy prior to 2000 that remained outstanding examined whether the GOI provision of through the log export ban. during the POI. These loans provide a capital to joint venture forest Furthermore, because we have used financial contribution as described in export prices of pulp logs from Malaysia plantations provides a countervailable section 771(5)(D)(i) of the Act, as a subsidy. Therefore, we preliminarily as the starting point for deriving a direct transfer of funds in the form of market–based stumpage benchmark, the determine that this program was not loans. The loans give rise to a benefit in used. amount of any benefit to the combined the amount of the difference between entity TK/PD that might be found in an the amount of interest the borrowers Verification evaluation of the log export ban is actually paid and the amount of interest As provided in section 782(i)(1) of the included in the calculation for the the borrowers would have paid on a Act, we intend to conduct verification of provision of standing timber for less than adequate remuneration. Thus, comparable commercial loan under the GOI’s and respondents’ because the total quantity of pulp logs section 771(5)(E)(ii) of the Act. The loan questionnaire responses following the produced by the cross–owned forestry program is specific within the meaning issuance of the preliminary logging companies in the production of section 771(5A)(D)(i) of the Act, determination. chain captures the total quantity of pulp because participation in the program is Suspension of Liquidation logs sold by the cross–owned forestry/ limited to HTI joint venture plantations. In accordance with section logging companies to IK and Lontar, the Therefore, we preliminarily determine 703(d)(1)(A)(i) of the Act, we have entire amount of any countervailable that these loans confer countervailable calculated a single subsidy rate for the subsidy is subsumed under the subsidies. two cross–owned producers/exporters ‘‘Provision of Standing Timber for Less To calculate the benefit (the amount of the subject merchandise. We than Adequate Remuneration’’ program, of the interest savings), we applied the preliminarily determine the total noted above. benchmark interest rate described in the countervailable subsidy rate to be: B. Subsidized Funding for Reforestation ‘‘Loan Benchmarks’’ section above to (Hutan Tanaman Industria or HTI the average loan balance outstanding Producer/exporter Rate Program): ‘‘Zero Interest’’ Rate Loans during the POI for both RAL and FI. We then divided the amount of interest PT. Pabrik Kertas Tjiwi Kimia The GOI reported that ‘‘zero interest’’ Tbk/ PT. Pindo Deli Pulp and rate loans were available to some savings by the total external sales values Paper Mills ...... 21.24 % holders of HTI licenses; such licenses of all the cross–owned companies in the All Others ...... 21.24 % are issued for harvesting timber from production chain (i.e., total FOB sales plantations. The GOI has reported that values minus any cross–owned inter– In accordance with sections 703(d) there are three types of plantations in company sales), adjusted, where and 705(c)(5)(A) of the Act, we have set Indonesia: (1) Privately owned, (2) possible, for sales returns, claims, and the ‘‘all others’’ rate as the rate for TK/ voluntary HTI joint ventures, and (3) discounts. Thus, we preliminarily PD because it is the only producer/ compelled HTI joint ventures for the determine the countervailable subsidy exporter investigated. purpose of implementing transmigration from the HTI zero–interest rate loan In accordance with sections policy. Of these three types of program to be 0.01 percent ad valorem 703(d)(1)(B) and (2) of the Act, we are plantations, only HTI joint ventures for the combined entity TK/PD. directing U.S. Customs and Border could apply for zero–interest rate loans. Protection (CBP) to suspend liquidation The GOI reported that the loaned II. Programs Preliminarily Determined of all entries of the subject merchandise amounts came from the DR Fund. The To Be Not Used from Indonesia, which are entered or HTI joint venture could apply for zero– withdrawn from warehouse, for A. Subsidized Funding for Reforestation interest loans from the DR Fund for the consumption on or after the date of the (Hutan Tanaman Industria or HTI establishment phase of the plantation. publication of this notice in the Federal According to the GOI, loan amounts Program): Commercial Rate Loans Register, and to require a cash deposit were payable to the joint venture in Neither TK, PD, nor any of their or the posting of a bond for such entries increments based on the amount of cross–owned suppliers reported of the merchandise in the amounts harvesting done each year and the total receiving loans under this program. indicated above. This suspension will amount of the loan could not exceed Therefore, we preliminarily determine remain in effect until further notice. 32.5 percent of the calculated plantation that this program was not used. costs. The GOI required that the private ITC Notification party guarantee the loan repayment in In accordance with section 703(f) of full. In 2000, the GOI discontinued the Act, we will notify the ITC of our

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17507

determination. In addition, we are number; (2) the number of participants; petitioner timely requested a 65-day making available to the ITC all non– and, (3) to the extent practicable, an postponement of the preliminary privileged and non–proprietary identification of the arguments to be determination for this investigation. On information relating to this raised at the hearing. December 22, 2006, the Department investigation. We will allow the ITC This determination is issued and postponed the deadline for the access to all privileged and business published pursuant to sections 703(f) preliminary determination by 65 days to proprietary information in our files, and 777(i) of the Act. no later than March 30, 2007, in provided the ITC confirms that it will Dated: March 29, 2007. accordance with section 703(c)(1)(A) of not disclose such information, either David M. Spooner, the Tariff Act of 1930, as amended (‘‘the publicly or under an administrative Act’’). See Coated Free Sheet Paper from protective order, without the written Assistant Secretary for Import Administration. Indonesia, the People’s Republic of consent of the Assistant Secretary for China and the Republic of Korea: Notice [FR Doc. E7–6499 Filed 4–6–07; 8:45 am] Import Administration. of Postponement of Preliminary In accordance with section 705(b)(2) BILLING CODE 3510–DS–S Determinations in the Countervailing of the Act, if our final determination is Duty Investigations, 71 FR 78403 affirmative, the ITC will make its final DEPARTMENT OF COMMERCE (December 29, 2006). determination within 45 days after the Due to the large number of producers Department makes its final International Trade Administration and exporters of CFS paper in Korea, we determination. determined that it is not possible to [C–580–857] Notification of Parties investigate each producer or exporter individually and selected four Coated Free Sheet Paper From the In accordance with section 351.224(b) producers/exporters of CFS paper to be Republic of Korea: Preliminary of the Department’s regulations, we will mandatory respondents: EN Paper Mfg. Affirmative Countervailing Duty disclose to the parties the calculations Co., Ltd. (‘‘EN Paper’’) (formerly Shinho Determination for this preliminary determination Paper Co., Ltd. (‘‘Shinho Paper’’)), within five days of its announcement. AGENCY: Kyesung Paper Co., Ltd. (‘‘Kyesung’’), Unless otherwise notified by the Import Administration, International Trade Administration, Moorim Paper Co. Ltd. (‘‘Moorim’’) Department, interested parties may (formerly Shinmoorim Paper Mfg. Co., submit case briefs within 50 days of the Department of Commerce. SUMMARY: Ltd.), and Hansol Paper Co., Ltd. date of publication of the preliminary The Department of Commerce (‘‘Hansol’’) (collectively, determination in accordance with (‘‘the Department’’) preliminarily ‘‘respondents’’). See Memorandum from section 351.309(c)(i) of the Department’s determines that countervailable the Team, through Office Director regulations. As part of the case brief, subsidies are being provided to Melissa Skinner, to Deputy Assistant parties are encouraged to provide a producers and exporters of coated free Secretary Stephen J. Claeys: Regarding summary of the arguments not to exceed sheet paper (‘‘CFS paper’’) from the Respondent Selection (December 4, five pages and a table of statutes, Republic of Korea (‘‘Korea’’). For 2006) (‘‘Respondent Selection Memo’’).2 regulations, and cases cited pursuant to information on the estimated subsidy On December 6 and 8, 2006, section 351.309(c)(2) of the rates, see the ‘‘Suspension of respondents submitted comments on Department’s regulations. Rebuttal Liquidation’’ section of this notice. our Respondent Selection Memo, in briefs, which must be limited to issues EFFECTIVE DATE: April 9, 2007. which they argued that the Department raised in the case briefs, must be filed FOR FURTHER INFORMATION CONTACT: should select an additional mandatory within five days after the case briefs are Maura Jeffords or Kristen Johnson, AD/ respondent. On December 20, 2006, we filed in accordance with section CVD Operations, Office 3, Import responded to respondents’ comments, 351.309(d) of the Department’s Administration, U.S. Department of stating that we would not deviate from regulations. Commerce, Room 4014, 14th Street and In accordance with section 351.310 of our original decision to investigate four Constitution Avenue, NW., Washington, mandatory respondents in the instant the Department’s regulations, we will DC 20230; telephone: (202) 482–3146 hold a public hearing, if requested, to investigation. See Memorandum from and (202) 482–4793, respectively. Program Manager Eric B. Greynolds, afford interested parties an opportunity SUPPLEMENTARY INFORMATION: to comment on this preliminary through Office Director Melissa Skinner, determination. Individuals who wish to Background to Deputy Assistant Secretary Stephen J. request a hearing of the Department’s Claeys: Regarding Response to On October 31, 2006, the Department Comments from Interested Parties regulations must submit a written received the petition filed in proper request pursuant to section 351.310(c) Regarding Respondent Selection form by NewPage Corporation (December 20, 2006) (‘‘Second within 30 days of the publication of this (‘‘petitioner’’). This investigation was notice in the Federal Register to the Respondent Selection Memorandum’’). initiated on November 20, 2006. See On December 14, 2006, we issued our Assistant Secretary for Import Notice of Initiation of Countervailing Administration, U.S. Department of initial questionnaire to the Government Duty Investigations: Coated Free Sheet of Korea (‘‘the GOK’’) and requested that Commerce, Room 1870, 14th Street and Paper from the People’s Republic of Constitution Avenue, NW, Washington, the GOK forward the relevant sections China, Indonesia, and the Republic of of the initial questionnaire to the DC 20230. Pursuant to section Korea, 71 FR 68546 (November 27, 351.310(c) of the Department’s mandatory respondents. 2006) (‘‘Initiation Notice’’), and On December 14, 2006, petitioner regulations, parties will be notified of accompanying Initiation Checklist for submitted a new subsidy allegation. On the schedule for the hearing and parties CVD Petition on CFS paper from Korea January 3, 2007, we declined to initiate should confirm by telephone the time, (November 20, 2007) (‘‘Initiation date, and place of hearing 48 hours 1 Checklist’’). On December 19, 2006, Records Unit (‘‘CRU’’), room B–099 in the main before the scheduled time. Requests for building of the Commerce Department. a public hearing should contain: (1) 1 A public version of this and all public 2 A public version of this memorandum is party’s name, address, and telephone Department memoranda is on file in the Central available in the CRU.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17508 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

on petitioner’s new subsidy allegation. 20, 2007. Respondents state that they sensitized for use in photography; and See Memorandum from the Team did not report short-term loan data (3) paper containing by weight 25 through Program Manager Eric B. because petitioner did not make an percent or more cotton fiber. Greynolds, to Office Director Melissa allegation concerning short-term Coated free sheet paper is classifiable Skinner: Regarding New Subsidy lending and the Department neither under subheadings 4810.13.1900, Allegation (January 3, 2007). initiated on nor asked about short-term 4810.13.2010, 4810.13.2090, On January 26, 2007, the GOK and loans in the initial questionnaire. They 4810.13.5000, 4810.13.7040, respondents submitted their responses claim that the Department’s Initiation 4810.14.1900, 4810.14.2010, to our initial questionnaire. Also on Checklist makes clear that the 4810.14.2090, 4810.14.5000, January 26, 2007, Hankuk Paper Mfg. investigation on loans from the KDB and 4810.14.7040, 4810.19.1900, Co., Ltd. (‘‘Hankuk’’) submitted a other GOK-owned entities and the 4810.19.2010, and 4810.19.2090 of the voluntary response to the Department’s GOK’s direction of credit to the pulp Harmonized Tariff Schedule of the December 14, 2006, initial and paper industry is limited to the United States (‘‘HTSUS’’). While questionnaire. Because Hankuk was not allegation of subsidized long-term loans. HTSUS subheadings are provided for selected as a mandatory respondent, we See Initiation Checklist at 7–9, 16–18. convenience and customs purposes, our have not considered the company’s We agree with respondents that the written description of the scope of this questionnaire response in reaching this Department’s examination of KDB investigation is dispositive. preliminary determination and have not lending and the GOK’s direction of calculated a company-specific CVD rate credit, in Korea CVD proceedings, has Scope Comments for Hankuk. focused on long-term lending. However, In accordance with the preamble to On February 2, 2007, EN Paper, we find that additional information the Department’s regulations (see Kyesung,3 and the GOK submitted their regarding the respondents’ short-term Antidumping Duties; Countervailing responses to the company-specific lending is required to fully analyze the Duties, 62 FR 27296, 27323 (May 19, allegations. Between February 23 and GOK’s provision of these loans. For 1997) (‘‘Preamble’’)), in our Initiation March 12, 2007, we issued more discussion of the short-term loan Notice we set aside a period of time for supplemental questionnaires to the GOK program, see the section ‘‘Program For parties to raise issues regarding product and respondents. Between March 5 and Which More Information Is Required,’’ coverage, and encouraged all parties to 16, 2007, the GOK and respondents below. submit comments within 20 calendar submitted responses to our On March 23, 2007, petitioner days of publication of the Initiation supplemental questionnaires. submitted additional pre-preliminary Notice. On March 8, 2007, petitioner comments. Respondents submitted a On December 18, 2006, respondents submitted pre-preliminary comments on response to petitioner’s additional in the antidumping duty investigation of a number of issues, which we have comments on March 27, 2007. On CFS from Indonesia submitted timely considered in reaching this preliminary March 26, 2007, petitioner submitted a scope comments on the administrative determination. In particular, petitioner request, pursuant to section 705(a)(1) of record of that investigation. On January argues that, despite instructions from the Act to align the final determination 12, 2007, the Department requested that the Department to report all loan data, in this investigation with the the respondents file these comments on respondents failed to report any of their companion antidumping investigations. the administrative records of all the CFS short-term loans. Petitioner discusses We will address this request in a investigations. See Memorandum from that in the initial questionnaire, separate Federal Register notice. Alice Gibbons to the File (January 12, referring to petitioner’s allegations that Scope of the Investigation 2007). On January 12, 2007, respondents members of the pulp and paper industry re-filed these comments on the received a disproportionate share of The merchandise covered by this administrative record of all the CFS loans from the Korea Development Bank investigation includes coated free sheet investigations. On January 19, 2007, (‘‘KDB’’) and other GOK-owned entities paper and paperboard of a kind used for petitioner filed a response to these and that the GOK directed credit to the writing, printing or other graphic comments. pulp and paper industry through its purposes. Coated free sheet paper is The respondents requested that the control of lending practices in Korea, produced from not-more-than 10 Department exclude from its the Department specifically requested percent by weight mechanical or investigations cast-coated free sheet the respondents to answer the items in combined chemical/mechanical fibers. paper. The Department analyzed this the Standard Questions and Loan Coated free sheet paper is coated with request, together with the comments Benchmark and Loan Guarantee kaolin (China clay) or other inorganic from petitioner, and determined that it Appendices. Petitioner further claims substances, with or without a binder, is not appropriate to exclude cast-coated that the unreported short-term loans and with no other coating. Coated free free sheet paper from the scope of these were provided by the GOK for financing sheet paper may be surface-colored, investigations. See Memorandum to the importation of raw materials as well surface-decorated, printed (except as Stephen J. Claeys, Deputy Assistant as the export of finished goods. described below), embossed, or Secretary for Import Administration: Petitioner further claims that the Bank perforated. The subject merchandise Regarding Request to Exclude Cast- of Korea (‘‘BOK’’) administers the trade includes single- and double-side-coated Coated Free Sheet Paper from the financing under the Aggregate Credit free sheet paper; coated free sheet paper Antidumping Duty and Countervailing Ceiling Loan program. in both sheet or roll form; and is Duty Investigations on Coated Free Respondents submitted rebuttal inclusive of all weights, brightness Sheet Paper (March 22, 2007).4 comments to petitioner’s pre- levels, and finishes. The terms ‘‘wood preliminary comments on March 13 and free’’ or ‘‘art’’ paper may also be used to Injury Test describe the imported product. Because Korea is a ‘‘Subsidies 3 Kyesung’s affiliated company, Namhan Paper Excluded from the scope are: (1) Agreement Country’’ within the Co., Ltd., submitted the company’s response on Coated free sheet paper that is imported February 2, 2007. See ‘‘Cross-Ownership’’ section, below, for more information on Namhan Paper Co., printed with final content printed text 4 A copy of this memorandum is available in the Ltd. or graphics; (2) base paper to be CRU.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17509

meaning of section 701(b) of the Act, the identified Moorim SP as its affiliate that interest rates on the companies’ International Trade Commission (‘‘ITC’’) produces and sells subject merchandise. comparable commercial, foreign is required to determine whether Moorim SP submitted a questionnaire currency loans. Where no such imports of the subject merchandise from response to the Department. benchmark instruments were available, Korea materially injure, or threaten For the countervailable subsidy consistent with 19 CFR 351.505(a)(3)(ii) material injury to, a U.S. industry. On benefits enjoyed by Kyesung and as well as our methodology in prior December 29, 2006, the ITC published Namhan/Poongman and Moorim and Korea CVD cases, we relied on the its preliminary determination that there Moorim SP, we attributed those benefits prime lending rates as reported by the is a reasonable indication that an in accordance with 19 CFR IMF’s International Financial Statistics industry in the United States is 351.525(b)(6)(ii), which states that if two Yearbook (‘‘IMF Yearbook’’). See Final materially injured by reason of imports (or more) corporations with cross- Affirmative Countervailing Duty from China, Indonesia, or Korea of ownership produce the subject Determination: Dynamic Random subject merchandise. See Coated Free merchandise, the Department will Access Memory Semiconductors from Sheet Paper from China, Indonesia, and attribute the subsidies received by either the Republic of Korea, 68 FR 37122 Korea, Investigation Nos. 701–TA–444– or both companies to the products (June 23, 2003) (‘‘DRAMS 446 (Preliminary) and 731–TA–1107– produced by both companies. Therefore, Investigation’’), and accompanying 1109 (Preliminary), 71 FR 78464 we have preliminarily calculated a Issues and Decision Memorandum at (December 29, 2006). single CVD ad valorem rate for Kyesung ‘‘Discount Rates and Benchmark Loans’’ and Moorim, respectively, by dividing (‘‘DRAMS Investigation Period of Investigation the combined subsidy benefits for the Memorandum’’). The period of investigation (‘‘the cross-owned companies by the (2) For countervailable, won- POI’’) for which we are measuring companies’ consolidated total sales, or denominated long-term loans, we used, subsidies is January 1, 2005, through consolidated total export sales, as where available, the company-specific December 31, 2005, which corresponds appropriate. interest rates on the companies’ to the most recently completed fiscal comparable commercial, won- Subsidies Valuation Information year for all of the respondents. See 19 denominated loans. If such loans were CFR 351.204(b)(2). Benchmarks for Loans and Discount not available, we used the company- Cross-Ownership Rate specific corporate bond rate (for commercial debt preliminarily found A. Benchmark for Long-Term Loans In the instant investigation, we are not to be countervailable) on the Issued Through 2005 examining cross-owned companies companies’ won-denominated public within the meaning of section 771(33) of Pursuant to 19 CFR 351.524(d)(3)(i), and private bonds. See 19 CFR the Act, whose relationship may be the Department will use, when 351.505(a)(3)(iii). Where company- sufficient to warrant treatment as a available, the company-specific cost of specific rates were not available, we single company with a single, combined long-term, fixed rate loans (excluding used the national average of the yields CVD rate. In the CVD questionnaire, loans deemed to be countervailable on three-year, won-denominated consistent with our past practice, the subsidies) as a discount rate for corporate bonds, as reported by the Department defined companies as allocating non-recurring benefits over Bank of Korea (‘‘BOK’’). This approach sufficiently related where one company time. Similarly, pursuant to 19 CFR is consistent with the Department’s past owns five percent or more of the other 351.505(a), the Department will use the practice. See DRAMS Investigation company, or where companies prepare actual cost of comparable borrowing by Memorandum, at ‘‘Discount Rates and consolidated financial statements. The a company as a loan benchmark, when Benchmark Loans.’’ Department has also stated that available. According to 19 CFR (3) For countervailable, won- companies may be considered 351.505(a)(2), a comparable commercial denominated commercial debt issued by sufficiently related where there are loan is defined as one that, when the KDB, we used, where available, the common directors or one company compared to the loan being examined, company-specific corporate bond rate performs services for the other has similarities in the structure of the on the companies’ won-denominated company. According to the loan (e.g., fixed interest rate vs. variable public and private bonds. See 19 CFR questionnaire, where such companies interest rate), the maturity of the loan 351.505(a)(3)(iii). Where company- produce the subject merchandise or (e.g., short-term vs. long-term), and the specific rates were not available, we where such companies have engaged in currency in which the loan is used the national average of the yields certain financial transactions with the denominated. on three-year, won-denominated company producing the subject During the POI, EN Paper (formerly corporate bonds, as reported by the merchandise, the affiliated parties are known as Shinho Paper), Hansol, BOK. required to respond to the Department’s Kyesung, and Moorim had outstanding Further, in accordance with 19 CFR questionnaire. long-term won-denominated and 351.505(a)(2), our benchmarks take into In its questionnaire response, foreign-currency denominated loans consideration the structure of the Kyesung identified Namhan Paper Co., from the KDB and other government- government-provided loans. For fixed- Ltd. (‘‘Namhan’’) and Poongman Paper owned financial institutions. For this rate loans, pursuant to 19 CFR Co., Ltd. (‘‘Poongman’’) as its affiliated preliminary determination, we are using 351.505(a)(2)(iii), we used benchmark companies that produce and sell subject the following benchmarks to calculate rates issued in the same year that the merchandise. Namhan and Poongman the subsidies attributable to government loans were issued. For merged during the POI. Therefore, respondents’ countervailable long-term variable-rate loans outstanding during Namhan submitted a questionnaire loans obtained in the years 1993 the POI, pursuant to 19 CFR response covering the POI that through 2005: 351.505(a)(5)(i), our preference is to use contained data for Namhan and (1) For countervailable, foreign- the interest rates of variable-rate lending Poongman before and after the merger currency denominated loans for instruments issued during the year in (as one company). Similarly, in its creditworthy companies, we used, which the government loans were questionnaire response, Moorim where available, the company-specific issued. Where such benchmark

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17510 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

instruments were unavailable, we used the application of a won-denominated, E. Creditworthiness interest rates from loans issued during short-term interest rate benchmark. The examination of creditworthiness the POI as our benchmark, as such rates Absent a company-specific interest rate, is an attempt to determine if the better reflect a variable interest rate that we used as our benchmark the lending company in question could obtain long- would be in effect during the POI. This rate for won-denominated loans for the term financing from conventional approach is in accordance with the POI, as reported in the IMF Yearbook. commercial sources. See 19 CFR Department’s practice in cases with This approach is in accordance with 19 351.505(a)(4). According to 19 CFR similar facts. See, e.g., Final Results and CFR 351.505(a)(3)(ii) and the 351.505(a)(4)(i), the Department will Partial Rescission of Countervailing Department’s practice. See, e.g., generally consider a firm to be Duty Administrative Review: Stainless Preliminary Results of Countervailing uncreditworthy if, based on information Steel Sheet and Strip From the Republic Duty Administrative Review: Corrosion- available at the time of the government- of Korea, 68 FR 13267 (March 19, 2003), Resistant Carbon Steel Flat Products provided loan, the firm could not have and accompanying Issues and Decision from the Republic of Korea, 71 FR obtained long-term loans from Memorandum, at Comment 8; see also 53413, 53419 (September 11, 2006) conventional commercial sources. In 19 CFR 351.505(a)(5)(ii). (unchanged at the final results, see Final making this determination, according to In addition, because we preliminarily Results of Countervailing Duty 19 CFR 351.505(a)(4)(i), the Department determined that Poongman was Administrative Review: Corrosion- normally examines the following four uncreditworthy in 2004, in accordance Resistant Carbon Steel Flat Products types of information: (1) The receipt by with 19 CFR 351.524(d)(3)(ii) (see from the Republic of Korea, 72 FR 119 the firm of comparable commercial ‘‘Creditworthiness’’ section, below), we (January 3, 2007)). have calculated for Poongman a long- long-term loans; (2) present and past term uncreditworthy benchmark and D. Allocation Period indicators of the firm’s financial health; discount rate for 2004. According to 19 Under 19 CFR 351.524(d)(2)(i), we (3) present and past indicators of the CFR 351.505(a)(3)(iii), in order to will presume the allocation period for firm’s ability to meet its costs and fixed calculate these rates, the Department non-recurring subsidies to be the financial obligations with its cash flow; must specify values for four variables: average useful life (‘‘AUL’’) of and (4) evidence of the firm’s future (1) The probability of default by an renewable physical assets for the financial position. uncreditworthy company; (2) the industry concerned, as listed in the With respect to item number one probability of default by a creditworthy Internal Revenue Service’s (‘‘IRS’’) 1977 above, pursuant to 19 CFR company; (3) the long-term interest rate Class Life Asset Depreciation Range 351.505(a)(4)(ii), in the case of firms not for creditworthy borrowers; and (4) the System (‘‘IRS tables’’), as updated by the owned by the government, the receipt term of the debt. For the probability of U.S. Department of the Treasury. The by the firm of comparable long-term default by an uncreditworthy company, presumption will apply unless a party commercial loans, unaccompanied by a we have used the average cumulative claims and establishes that these tables government-provided guarantee (either default rates reported for the Caa- to C- do not reasonably reflect the AUL of the explicit or implicit), will normally rated category of companies as renewable physical assets for the constitute dispositive evidence that the published in Moody’s Investors Service, company or industry under firm is not uncreditworthy. However, ‘‘Historical Default Rates of Corporate investigation, and the party can according to the preamble to the Bond Issuers, 1920–1997’’ (February establish that the difference between the Department’s CVD regulations, in 1998). company-specific or country-wide AUL situations, for instance, where a for the industry under investigation is company has taken out a single B. Benchmark Discount Rates significant, pursuant to 19 CFR commercial bank loan for a relatively Certain programs examined in this 351.524(d)(2)(ii). For assets used to small amount, where a loan has unusual investigation require the allocation of manufacture products such as CFS aspects, or where we consider a benefits over time. Thus, we have paper, the IRS tables prescribe an AUL commercial loan to be covered by an employed the allocation methodology of 13 years. implicit government guarantee, we may described under 19 CFR 351.524(d). In their questionnaire responses, each not view the commercial loan(s) in Pursuant to 19 CFR 351.524(d)(3)(i), we respondent company stated that it question to be dispositive of a firm’s based our discount rate upon data for would not attempt to rebut the creditworthiness. See Preamble, at the year in which the government regulatory presumption by meeting the 65367. agreed to provide the subsidy. Under 19 criteria set forth in 19 CFR In the Initiation Notice, we indicated CFR 351.524(d)(3)(i)(A), our preference 351.524(d)(2)(iii). Thus, for respondents, that we would investigate Shinho is to use the cost of long-term, fixed-rate we will use the IRS AUL of 13 years to Paper’s creditworthiness for the period loans of the firm in question. Thus, allocate any non-recurring subsidies for 1998 through 2005, and Poongman’s where available, we used company- purposes of this preliminary creditworthiness for 2004. As discussed specific long-term loan benchmark of determination. in the March 29, 2007, memorandum corporate bond rates on public and Further, for non-recurring subsidies, entitled ‘‘Shinho Paper’s private bonds. Where those benchmarks we have applied the ‘‘0.5 percent Equityworthiness and are unavailable, pursuant to 19 CFR expense test’’ described in 19 CFR Creditworthiness,’’ we preliminarily 351.524(d)(3)(i)(B), we used the national 351.524(b)(2). Under this test, we determined Shinho Paper to be average of the yields on three-year compare the amount of subsidies creditworthy each year from 1998 corporate bonds, as reported by the approved under a given program in a through 2005 (a copy of this BOK. particular year to sales (total sales or memorandum is available in the CRU). total export sales, as appropriate) for the Regarding Poongman, we preliminarily C. Benchmarks for Short-Term same year. If the amount of subsidies is determine Poongman to be Financing less than 0.5 percent of the relevant uncreditworthy in 2004. See The benefit calculation for the Export sales, then the benefits are allocated to Memorandum to the File Regarding and Import Credit Financing from the the year of receipt rather than allocated Poongman’s Creditworthiness (March Export-Import Bank of Korea requires over the AUL period. 29, 2007), which is available in the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17511

CRU. Therefore, pursuant to 19 CFR typically examined by potential private As explained above, the Department 351.505(a)(3)(iii), we derived an investors considering an equity preliminarily agrees that KDB and other ‘‘uncreditworthy’’ benchmark interest investment, the Department will GOK lending institutions provide a rate and used it to calculate the benefit normally determine that the equity financial contribution to the Korea that Poongman received from debt that infusion provides a countervailable paper sector under section 771(5)(D)(i) was forgiven in 2004. For information benefit. This is because, before making of the Act. We also preliminarily on Poongman, see the ‘‘Poongman’s a significant equity infusion, it is the determine that KDB lending to the paper Restructuring’’ section below. usual investment practice of private sector was specific in accordance with section 771(5A)(D)(iii)(III) of the Act F. Equityworthiness investors to evaluate the potential risk versus the expected return, using the because the paper sector received a Section 771(5)(E)(i) of the Act and 19 most objective criteria and information disproportionate share of KDB loans CFR 351.507 state that, in the case of a available to the investor. between 1999 and 2005 when compared government-provided equity infusion, a In the Initiation Notice, we indicated to that sector’s contribution to the benefit is conferred if an equity overall Korean Gross Domestic Product that we would investigate Shinho investment decision is inconsistent with (‘‘GDP’’).5 See Memorandum to the File Paper’s equityworthiness for the period the usual investment practice of private Regarding Analysis of Korea Paper 1998 through 2005, and Poongman’s investors. According to 19 CFR 351.507, Sector’s share of KDB Lending (March equityworthiness for 2004. As discussed the first step in determining whether an 29, 2007) (‘‘KDB Memorandum’’). While in the March 29, 2007, memorandum equity investment decision is the record is not adequately developed entitled ‘‘Shinho Paper’s inconsistent with the usual investment regarding loans provided to the paper Equityworthiness and practice of private investors is sector by other GOK lending Creditworthiness’’ (which is on file in examining whether, at the time of the institutions, there is no reason to believe the CRU), we preliminarily determine infusion, there was a market price for that the lending patterns of these other that Shinho Paper was equityworthy similar, newly issued equity. If so, the government lending institutions would Department will consider an equity each year from 1998 through 2005. For be different than the lending pattern of infusion to be inconsistent with the information on Poongman, see the the KDB, the country’s leading supplier usual investment practice of private ‘‘Poongman’s Restructuring’’ section, of long-term funds to domestic investors if the price paid by the below. corporations over the period. government for newly issued shares is I. Programs Preliminarily Determined With regard to KDB’s lending to the greater than the price paid by private To Be Countervailable paper sector in the years 1993 through investors for the same, or similar, newly 1998, we do not have on the record issued shares. See 19 CFR A. Long-Term Lending Provided by the KDB-specific lending data for these 351.507(a)(2)(i). KDB and Other GOK-Owned Institutions years. The GOK reported that the KDB If actual private investor prices are no loner maintains lending data for not available, then, pursuant to 19 CFR Petitioner alleges that lending by the newly issued loans for this period either 351.507(a)(3)(i), the Department will KDB to the Korean paper sector was a in electronic or paper form. See GOK’s determine whether the firm funded by financial contribution, which provided questionnaire response at 26 (January the government-provided infusion was a benefit and was specific to the paper 26, 2007) and at 16 (March 6, 2007). equityworthy or unequityworthy at the sector. Petitioner also argues that in However, for the years 1993 through time of the equity infusion. In making addition to the KDB, the Industrial Bank 1998, we have on the record data on the the equityworthiness determination, of Korea, National Agricultural total lending to the paper sector, pursuant to 19 CFR 351.507(a)(4), the Cooperative Federation, the National encompassing loans from the KDB, Department will normally determine Federation of Fisheries, and the Export- other GOK financial institutions, and that a firm is equityworthy if, from the Import Bank be treated as governmental commercial banks. See GOK’s perspective of a reasonable private authorities, consistent with our questionnaire response at page 20 and investor examining the firm at the time approach in DRAMS Investigation. See Exhibits 6 and 7 (January 26, 2007). We, the government-provided equity Petition for the Imposition of therefore, examined the paper sector’s infusion was made, the firm showed an Countervailing Duties from Petitioners share of total lending to the paper ability to generate a reasonable rate of to the Department at 15 (October 31, sector’s share of GDP in each of those return within a reasonable time. To do 2006) (‘‘Petition’’). Petitioner alleges years. We find that the record indicates so, the Department normally examines that GOK lending by these various that the paper sector received a the following factors: (1) Objective government entities was specific to the disproportionate share of total lending analyses of the future financial paper industry. In its allegation, in each year 1993 through 1998 when prospects of the recipient firm; (2) petitioner suggests that the Department compared to the sector’s contribution to current and past indicators of the firm’s adopt a methodology under which the the overall Korean GDP, and that this financial health; (3) rates of return on amount of the paper sector’s share of can serve as a reasonable proxy for the equity in the three years prior to the KDB loans is compared to the paper KDB-specific lending data. Given the government equity infusion; and (4) sector’s contribution to the total finding that the paper sector received a equity investment in the firm by private manufacturing output in Korea. investors. According to petitioner, where this 5 In reporting economic activity that contributes Section 351.507(a)(4)(ii) of the analysis shows that the amount of the to the Korean GDP, the BOK does not report a Department’s regulations further paper sector’s loans from the KDB category particular just to the paper sector. The paper sector’s contribution to GDP is contained stipulates that the Department will exceeds that sector’s share of Korean within the category ‘‘wood, paper, publishing, and ‘‘normally require from the respondents manufacturing output, the Department printing.’’ Therefore, to conduct our GDP analysis, the information and analysis completed should find that the paper sector we are using this broad category. To the extent that prior to the infusion, upon which the received a disproportionate share of we could, we combined the lending data for ‘‘wood, paper, publishing, and printing’’ to achieve an government based its decision to KDB loans, i.e., which is therefore ‘‘apples-to-apples’’ comparison between share of provide the equity infusion.’’ Absent an specific under section 771(5A)(D)(iii) of GDP and share of loans for this sector. See KDB analysis containing information the Act. See Petition, at 17–18. Memorandum, for more discussion.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17512 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

disproportionate share of KDB loans in owned/controlled by the GOK, was the provided a report based on commercial each year 1999 through 2005, and the main participant in the debt-for-equity considerations which served as the basis lending trend identified for the paper swap. Petitioner further alleges that for the restructuring of Poongman and sector 1993 through 1998, we also Poongman was unequityworthy and its merger with Namhan. See Namhan’s preliminarily determine that the paper uncreditworthy in 2004. They base their questionnaire response at Exhibit L–20 sector received a disproportionate share allegation of Poongman’s (February 2, 2007) and Exhibit L–44 of KDB loans between 1993 and 1998, unequityworthiness and (March 13, 2007). and that this lending was specific in uncreditworthiness on its financial In June 2004, Poongman’s accordance with section statements and its creditors’ restructuring package was agreed to by 771(5A)(D)(iii)(III) of the Act. assessments. Therefore, petitioner Poongman’s creditors and Namhan. This The comparison between KDB argues that the GOK conferred a benefit package included an agreement that lending received by the paper sector and upon Poongman, within the meaning of Poongman would merge with Namhan, the paper sector’s contribution to the sections 771(5)(E)(i) and (ii) of the Act, Poongman’s creditors would swap GDP of Korea is consistent with the in the form of a government equity Poongman’s debt in exchange for shares Department’s approach in Plate in Coils. infusion and a loan. Petitioner further in Namhan, and Poongman’s creditors See Final Negative Countervailing Duty alleges that the debt-for-equity swap and would extend Poongman’s remaining Determination: Stainless Steel Plate in the extensions of debt maturities debt maturities. Subsequently, Coils From the Republic of Korea, 64 FR constitute government financial Poongman’s board of directors approved 15530 (March 31, 1999) (‘‘Plate in contributions within the meaning of the restructuring package on June 8, Coils’’); see also Memorandum from section 771(5)(D)(i) of the Act. In 2004, and the debt-for-equity swap was David Mueller to Holly A. Kuga: addition, petitioner alleges that this made. Due to volatile market conditions, Regarding Analysis Concerning program is specific under section and not due to any changes to the terms Direction of Credit, Subject: 771(5A)(D)(iii) of the Act, as this of the merger, the merger did not take Countervailing Duty Investigation transaction was limited to Poongman. effect until July 31, 2005, when (March 4, 1998).6 Pursuant to the Corporate Restructuring Poongman’s stocks were swapped for In accordance with 19 CFR Promotion Act (‘‘CRPA’’), Korea’s Namhan’s stocks. 351.505(c)(2) and (4), for each statutory framework for debt In a past review involving a Korean respondent, we calculated the benefit restructurings, Poongman’s creditors corporate restructuring, the Department for each fixed- and variable-rate loan performed a biannual credit assessment found that in a debt-for-equity swap that received from the KDB and other GOK of the company in 2001.7 As a result of was conditioned on a merger of a non- lending institutions, as well as this assessment, Poongman received a equityworthy company (Kangwon) with commercial debt issued by KDB where ‘B’ rating, which allowed it to go an equityworthy company (Inchon), the relevant, to be the difference between through self-restructuring, rather than creditors of the non-equityworthy the actual amount of interest paid on the through the formal CRPA process. See company were effectively exchanging government loan during the POI and the GOK’s questionnaire response at pages 2 their debt for equity in the equityworthy amount of interest that would have been and 19 (February 2, 2007). Pursuant to company. In that case, Kangwon merged paid during the POI at the benchmark the self-restructuring, in 2002, into Inchon, with Inchon being the post- interest rate. We conducted our benefit Poongman was granted an extension on merger company. See Final Results of calculations using the benchmark the debt maturities for some of its KDB Countervailing Duty Administrative interest rates described in the loans that were coming due. No other Review: Stainless Steel Sheet and Strip ‘‘Subsidies Valuation Information’’ creditors besides the KDB granted the in Coils from the Republic of Korea, 69 section, above. For foreign currency- extensions during this period. As FR 2113 (January 14, 2004) (‘‘Stainless denominated loans, we converted the discussed further below, the interest Steel’’), and accompanying Issues and benefits into Korean won using the owed as a result of this extension was Decision Memorandum at Comment 3. appropriate exchange rate. For each forgiven and resulted in the provision of In Stainless Steel, the Department found company, we then summed the benefits a countervailable subsidy. that the terms of the merger and the from the long-term fixed-rate and Following another credit assessment debt-for-equity swap were part of the variable-rate won-denominated loans, in 2002, the KDB classified Poongman same agreement and that the legal and commercial debt issued by KDB as a credit risk company and demanded requirements for the agreement had where relevant, and divided that it perform self-restructuring in been fulfilled before the debt-for-equity amount by each company’s total sales accordance with Article 10.3 of the swap took place. Id. Moreover, there values for the POI. We preliminarily CRPA. See id. at Exhibit K–1; see also was no allegation that Inchon was not determine the net countervailable GOK’s questionnaire response at page equityworthy, and the Department subsidy rates to be, for: Hansol 1.01 16 (March 16, 2007). As a result, found that the record evidence percent ad valorem, Kyesung 0.01 Poongman engaged the services of a regarding Inchon’s financial status percent ad valorem, and Moorim 0.02 management consulting company to provided no reason to question its percent ad valorem. provide a financial analysis. The record equityworthiness. Id. Consequently, the facts further indicate that the Department concluded that the B. Poongman’s Restructuring management consulting company equityworthiness of Kangwon, the non- Petitioner alleges that Poongman, a equityworthy company, was not CFS-producing affiliate of Kyesung, 7 The CRPA was enacted in September 2001, to relevant to the determination of whether received countervailable benefits from help stabilize the financial and corporate sectors a benefit was conferred. Id. recovering from the 1997 financial crisis by In this case, we find that the debt-to- the GOK through extensions of debt allowing for corporate restructurings with more maturities in 2002 and 2004, and a debt- transparency and promptness. Its intent is to give equity swap was agreed to by for-equity swap in 2004. See Petition, at greater responsibility to the creditors in resolving Poongman’s creditors on the condition 67–69. Petitioner states that the KDB, the fate of non-performing debt in the market by that the merger with Namhan would implementing a corporate risk rating system and occur, and that the share issuance price conducting regular credit risk assessments on 6 A copy of this public document has been placed companies receiving 50 billion won or more in would be the market price. Moreover, on the record of this review. credit. we find that the terms of the merger and

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17513

the swap were part of the same Determination: Certain Cut-to-Length shares of DP have been listed on the agreement that was approved by Carbon-Quality Steel Plate From the Korea Stock Exchange. In April 1998, Poongman’s board of directors. Based on Republic of Korea, 64 FR 73176, 73180 DP declared bankruptcy and applied to record evidence, and consistent with (December 29, 1999). No new the court for company reorganization. Stainless Steel, we preliminarily find information from interested parties has Soon thereafter, DP began operating that, because the swap and the been presented in this investigation to under court receivership.9 In September extension of debt maturities took place warrant a reconsideration of the 1999, as part of the reorganization, the on the condition of Poongman’s merger countervailability of this program. shares of some companies were retired into Namhan, Poongman’s creditors Therefore, we preliminarily find that without compensation.10 In November were effectively exchanging their debt this program is countervailable. 1999, the shares of the remaining for equity in Namhan, an equityworthy We preliminarily determine that the shareholders were consolidated and the company. program is specific, pursuant to section creditors swapped their debt for equity In looking to the post-merger entity as 771(5A)(B) of the Act, because receipt of shares in DP. As a result of this debt-to- the reference for analyzing the financing is contingent upon equity conversion, KDB became DP’s equityworthiness and creditworthiness, exporting. In addition, we preliminarily largest shareholder. Officials from the the Department takes due consideration determine that the export financing KDB are directors on DP’s board of of the specific facts of the case. In the constitutes a financial contribution in directors. instant investigation, the record the form of a loan within the meaning Respondents argue that, since DP is in evidence shows Namhan to be a larger, of section 771(5)(D)(i) of the Act and court receivership, the GOK does not financially more stable company confers a benefit within the meaning of control DP or direct it to sell chemical relative to Poongman. In addition, section 771(5)(E)(ii) of the Act. During pulp to Korean CFS producers for less petitioner has not alleged that Namhan the POI, Hansol was the only than adequate remuneration. In support was an unequityworthy or respondent that received export of their argument, respondents discuss uncreditworthy company during the financing from the KEXIM. that in an earlier Korean CVD relevant time period. Thus, in Pursuant to 19 CFR 351.505(a)(1), to administrative review, the Department accordance with section 771(5)(E)(i) of calculate the benefit under this program, found that because Sammi Steel Co., the Act, we find that the decision by we compared the amount of interest Ltd. (‘‘Sammi’’) was in court Poongman’s creditors to swap debt for paid under the program to the amount receivership, Inchon Iron & Steel Co., equity in Namhan was not inconsistent of interest that would have been paid on Ltd., although a major shareholder, was with the usual practice of private a comparable commercial loan. As our not able to control Sammi’s assets. See investors and did not confer a benefit to benchmark, we used the short-term Final Results and Partial Rescission of Poongman. Therefore, we preliminarily interest rates discussed above in the Countervailing Duty Administrative find that the debt-for-equity swap and ‘‘Subsidies Valuation Information’’ Review: Stainless Steel Sheet and Strip the debt maturity extensions that section. To calculate the net subsidy from the Republic of Korea, 68 FR 13267 occurred in 2004, on condition of the rate, we divided the benefit by the f.o.b. (March 19, 2003), and accompanying merger with Namhan are not value of Hansol’s total exports for 2005. Issues and Decision Memorandum at countervailable. On this basis, we preliminarily Comment 3 (‘‘Sheet and Strip 2003’’). However, with regard to the determine the net countervailable However, contrary to respondents’’ forgiveness of interest owed as subsidy rate for Hansol to be 0.13 argument concerning Sheet and Strip discussed earlier, we preliminarily find percent ad valorem. 2003, the facts of this instant that this forgiveness of debt constitutes investigation in which we are the provision of a financial contribution. D. Sale of Pulp for Less Than Adequate examining DP are distinct from the facts In addition, we preliminarily find that Remuneration that we examined with regard to it was specific to Poongman within the Donghae Pulp Company (‘‘DP’’) is the Sammi’s court receivership. meaning of section 771(5A)(D)(iii) of the sole domestic producer/supplier of Specifically, in Sheet and Strip 2003, Act, in that it was limited to one chemical pulp to the Korean pulp and we examined Sammi’s court company. As such, we preliminarily paper industry. DP sells one type of receivership in the context of cross- determine the net countervailable chemical pulp to CFS producers, ownership and the attribution of subsidy to be 0.49 percent ad valorem. specifically bleached woodcraft pulp benefits, whereas, in this instant investigation, we are examining whether C. Export and Import Credit Financing from the broadleaf trees. The key input DP should be considered a GOK entity From the Export-Import Bank of Korea into the production of CFS paper is for purposes of examining whether a (‘‘KEXIM’’) chemical pulp, which respondents either import or purchase domestically countervailable benefit is being The Department has previously from DP. During the POI, all provided. Id. determined that the GOK’s short-term respondents purchased chemical pulp In order to assess whether an entity export financing program is directly from DP.8 such as DP should be regarded as the countervailable. See e.g., Preliminary DP was originally Daehan Chemical government for purposes of a CVD Results of Countervailing Duty Pulp (‘‘DCP’’), established in January proceeding, the Department considers Administrative Review: Corrosion- 1974, under the laws of the Republic of the following factors to be relevant: (1) Resistant Carbon Steel Flat Products Korea, as a government-funded The government’s ownership; (2) the from the Republic of Korea, 71 FR enterprise to manufacture and sell government’s presence on the entity’s 53413, 53419 (September 11, 2006), chemical pulp. DCP changed its name to board of directors; (3) the government’s (unchanged at the final results, see Final DP in June 1977, and in 1987, the GOK control over the entity’s activities; (4) Results of Countervailing Duty sold its interest in DP to several Administrative Review: Corrosion- companies that were end users of 9 During the POI, DP remained in court Resistant Carbon Steel Flat Products receivership. chemical pulp. Since June 1989, the 10 Specifically, as part of DP’s reorganization, the from the Republic of Korea, 72 FR 119 shares of Kyesung, Namhan, Poongman, Moorim, (January 3, 2007)); see also Final 8 DP sells chemical pulp directly to end-users. Moorim SP, and Hankuk Paper Co., Ltd. were Affirmative Countervailing Duty There are no distributors of chemical pulp in Korea. retired without any compensation.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17514 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

the entity’s pursuit of governmental conditions of purchase or sale. Section and that in certain circumstances could policies or interests; and (5) whether the 351.511 of the Department’s regulations be released for a price lower than the entity is created by statute. See, e.g., sets forth, in order of preference, the purchase price. The PPS publically Final Affirmative Countervailing Duty benchmarks that we will examine in announces the stockpile release sales Determinations: Pure Magnesium and determining the adequacy of via its website and sells directly to end Alloy Magnesium from Canada, 57 FR remuneration. As discussed under users. During the POI, PPS sold 30946, 30954 (July 13, 1992); Final 351.511(a)(2)(i), the first preference is to chemical pulp, some of which was Affirmative Countervailing Duty compare the government price to a purchased by Moorim SP. Determination: Certain Fresh Cut market-determined price resulting from We preliminarily find that PPS’s Flowers from the Netherlands, 52 FR actual transactions within the country, provision of chemical pulp constitutes a 3301, 3302, 3310 (February 3, 1987); including imports. In this case, as DP is financial contribution because it is the and Final Affirmative Countervailing the only domestic supplier of chemical provision of a good as defined in section Duty Determination: Stainless Steel pulp, there is no domestic price that can 771(5)(D)(iii) of the Act. We also Sheet and Strip in Coils from the serve as a benchmark price. However, preliminarily find this provision of Republic of Korea, 64 FR 30636, 30642– the respondents imported chemical chemical pulp to be specific in 30643 (June 8, 1999) (‘‘Sheet and Strip pulp comparable, in terms of quality accordance with section 1999’’). and quantity, to that purchased from DP 771(5A)(D)(iii)(I) of the Act because it is We preliminarily find DP to be a during the POI. limited to end users of pulp or entities government authority under section To calculate the benefit under this associated with end users of pulp. 771(5)(B)(i) of the Act. DP was program, for each respondent, we To determine whether there is a established by the GOK in 1974 to compared the monthly delivered benefit from the provision of a good, the address the government’s interest in weighted-average price, after all Act specifies that the Department must establishing a domestic manufacturer discounts, paid to DP for chemical pulp examine whether the good was provided and supplier of chemical pulp to the to the calculated monthly delivered for less than adequate remuneration. paper industry. DP is majority-owned by weighted-average import price paid to According to section 771(5)(E) of the the KDB, a government-owned financial foreign suppliers of chemical pulp. We Act, the adequacy of remuneration with institution that also has presence on determined the monthly price difference respect to a government’s provision of a DP’s board of directors. We do not and then multiplied the difference by good shall be determined in relation to believe that DP’s court receivership the quantity of chemical pulp purchased prevailing market conditions for the status overrides the factors considered from DP in each respective month of the good being provided or the goods being by the Department, which are outlined POI. We next summed the price savings purchased in the country which is above. realized by each company and divided subject to the investigation or review. Further, this finding that DP is a that amount by each company’s total government authority is consistent with Prevailing market conditions include sales value for the POI. On this basis, we price, quality, availability, prior determinations by the Department. preliminarily determine the net For example, the Department marketability, transportation, and other countervailable subsidy from this conditions of purchase or sale. Section determined that the actions of Pohang program for the respondents to be: 0.08 Iron and Steel Company, Ltd. 351.511 of the Department’s regulations percent ad valorem for EN Paper, 0.62 sets forth, in order of preference, the (‘‘POSCO’’) should be considered as percent ad valorem for Hansol, 0.09 actions of the GOK because POSCO was benchmarks that we will examine in percent ad valorem for Kyesung, and determining the adequacy of a government-owned company. At that 0.02 percent ad valorem for Moorim. time, the GOK was POSCO’s largest remuneration. As discussed under 19 shareholder. See id., at 30642–30643. E. Sales of Pulp From Raw Material CFR 351.511(a)(2)(i), the first preference Further, we preliminarily find that Reserve for Less Than Adequate is to compare the government price to DP’s provision of chemical pulp Remuneration a market-determined price resulting constitutes a financial contribution The Korean Public Procurement from actual transactions within the because it is the provision of a good as Service (‘‘PPS’’),11 established in country, including imports. As defined in section 771(5)(D)(iii) of the January 1949, is a government discussed above under ‘‘Sale of Pulp for Act. We also preliminarily find that the procurement agency that stockpiles Less Than Adequate Remuneration,’’ provision of chemical pulp is specific in certain raw materials (e.g., aluminum, DP, a government-owned entity, is the accordance with section copper, and nickel), basic necessities only domestic producer of pulp. As 771(5A)(D)(iii)(I) of the Act because it is (e.g., salt), and industrial use materials such, there are no market-determined limited to the pulp and paper industry. (e.g., chemical pulp and natural rubber) domestic prices for chemical pulp To determine whether there is a using government funds. PPS facilitates available to serve as a benchmark. benefit from the provision of a good, the the short- and long-term supply of goods Moorim SP, however, did have imports Act specifies that the Department must and seeks to stabilize consumer prices, of chemical pulp during the POI. examine whether the good was provided pursuant to the Government To calculate the benefit under this for less than adequate remuneration. Procurement Act. program, we compared the price that According to section 771(5)(E) of the Each year the PPS formulates a Moorim SP paid to PPS for chemical Act, the adequacy of remuneration with storage plan in accordance with the pulp and the import price that Moorim respect to a government’s provision of a economic policies of the GOK. The paid to a foreign supplier for good shall be determined in relation to release of stored items is carried out in comparable chemical pulp. We prevailing market conditions for the accordance with the yearly plan. The determined the price differential and good being provided or the goods being GOK reported that prices for released then multiplied that differential by the purchased in the country which is items are determined based on the cost quantity of pulp purchased from PPS. subject to the investigation or review. and market price at home and abroad We next divided the price savings by Prevailing market conditions include the company’s total sales value for the price, quality, availability, 11 The PPS is a subsidiary agency of the Ministry POI. On this basis, we preliminarily marketability, transportation, and other of Finance and Economy. determine the net countervailable

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17515

subsidy for Moorim to be less than 0.005 being limited to an enterprise or Under section 351.519(a)(1)(i) of the percent ad valorem. industry located within a designated Department’s regulations, in the case of geographical region. We preliminarily drawback of import charges, a benefit F. Reduction in Taxes for Operating in determine that a financial contribution exists to the extent that the amount of Regional and National Industrial is provided under section 771(5)(D)(ii) the remission or drawback exceeds the Complexes of the Act, in the form of revenue amount of import charges on imported Under Article 46 of the Industrial foregone. A benefit is conferred in the inputs that are consumed in the Cluster Development and Factory form of a tax exemption. production of the exported product, Establishment Act (‘‘ICDFE Act’’), a To calculate the benefit, we divided making normal allowance for waste. state or local government may provide Namhan’s property tax exemption by Section 351.519(a)(4)(i) states that the tax exemptions as prescribed by the the company’s total sales value for 2005. entire amount of such remission or Restriction of Special Taxation Act. In drawback will confer a benefit, unless accordance with this authority, Article On this basis, we preliminarily determine the net countervailable the Department determines that the 276 of the Local Tax Act provides that government in question has in place and entities that acquire real estate in a subsidy under this program to be less than 0.005 percent ad valorem. applies a system or procedure to designated industrial complex for the confirm which inputs are consumed in purpose of constructing new buildings II. Programs Preliminarily Determined the production of the exported products or enlarging existing facilities are To Not Provide Countervailable and in what amounts, and the system or eligible for acquisition, registration, and Benefits During the POI procedure is reasonable, effective for the property tax exemptions. Property taxes purposes intended, and is based on A. Duty Drawback on Non-Physically are reduced by either 50 or 100 percent generally accepted commercial practices Incorporated Items and Excess Loss for five years from the date the tax in the country of export. liability becomes effective. The 100 Rates The GOK submitted information on percent property tax exemption applies The Korean duty drawback system is the system that Korean Customs has in to land, buildings, or facilities located in administered by the Customs Policy place to monitor which inputs are industrial complexes outside of the Division of the Ministry of Finance and consumed in the production of the Seoul metropolitan area. The GOK Economy (‘‘MOFE’’). The Act on Special exported products and in what amounts. established the tax exemption program Cases Concerning the Refundment of As noted, there are two duty drawback under Article 276 in December 1994, to Customs Duties, Etc., Levied on Raw methods used in Korea: (i) The provide incentives for companies to Materials for Export (‘‘Act on Customs company-specific method, and (ii) the relocate from populated areas in the Duties’’) governs the duty drawback fixed amount refund method. Under the Seoul metropolitan region to industrial program. Under the Korean duty company-specific method, a company’s sites in less populated parts of the drawback system, for a company to duty drawback is based upon its country. During the POI, Namhan receive duty drawback the imported ‘‘statement of accounts for the required received a property tax exemption material must be physically amount.’’ This statement, which under Article 276 for the enlargement of incorporated into merchandise that is contains a formula specific to each its manufacturing facility located in the exported within two years from the time company, demonstrates the amounts of Chongup Industrial Complex, which is the input material is imported. There is import duty paid on imports and the designated under the ICDFE Act. no import duty on chemical pulp, the amount of imports used to produce the In prior Korea cases, the Department 12 most important raw material used to exported product. has determined that local tax The Customs Services’ Examination produce CFS paper. Therefore, CFS exemptions provide countervailable Department, which is located in the five producers are not eligible to claim duty subsidies. See, e.g., Final Results and local Customs offices, examines the drawback on imports of chemical pulp. Partial Rescission of Countervailing reasonableness and accuracy of the CFS producers, however, can seek duty Duty Administrative Review: Stainless required quantity reported in the drawback for import duties paid on Steel Sheet and Strip in Coils from the company’s statement. The GOK reported other materials used in the production Republic of Korea, 68 FR 13267 (March that this process is an examination of of CFS paper, e.g., clay, latex, starch, 19, 2003), and accompanying Issues and the documents submitted because there pigment, and talcum. Each material has Decision Memorandum at ‘‘Inchon’s is no issue regarding the usage rate for its own single import duty rate. Local Tax Exemption;’’ and Final the imported raw materials. The GOK Affirmative Countervailing Duty The GOK states that under the duty explained that all of the imported inputs Determination: Certain Cold-Rolled drawback system only import duties can for which the respondents claimed and Carbon Steel Flat Products from the be refunded; no other import fees (e.g., received duty drawback are consumed Republic of Korea, 67 FR 62102 (October value added tax, customs brokerage, in the production process (i.e., clay, 3, 2002), and accompanying Issues and unloading charges, etc.) are eligible for latex, starch, pigment, and talcum) and, Decision Memorandum at ‘‘Local Tax drawback. To seek a drawback of import therefore, there is no loss rate regarding Exemption on Land Outside of duties, the company must file with its the usage of these inputs in the claims Metropolitan Area.’’ No new local Customs office an application, information from interested parties has import permits, export permits, and a 12 Specifically, the duty drawback amount is been presented in this investigation to statement of accounts for the required calculated according to the following two-step warrant a reconsideration of the amount (see below for a discussion of formula: countervailability of this program. this statement). A company can seek a (1) Required Quantity = Export Quantity * Required Per Unit Quantity. The ‘‘required per unit Consistent with those prior refund of duties through either a quantity’’ is determined by each company’s determinations, in the instant company-specific method or fixed production experience. This usage rate is investigation, the Department amount refund method (see below for a determined based on the company’s prior fiscal preliminarily determines that the discussion of the two duty drawback year experience. The GOK reported that if the usage rate changes from one year to the next, the company property tax exemption that Namhan methods). If the documentation is in must repot its revised usage rate. received is regionally specific under order, the Customs office refunds the (2) Duty Drawback Amount = Total Import Duty section 771(5A)(D)(iv) of the Act, as applicable duty amount. Paid * Required Quantity/Total Import Quantity.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17516 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

for duty drawback. The GOK also during the POI. Based on that collaboration of companies and research reported that the company-specific information, there is no evidence, at this institutions or a project being conducted formula is subject to verification by the time, to suggest that the duty drawback by a single entity. The GOK states that local Customs authority if, for example, program provided to the respondent the purpose of this collaboration is to the ratio calculated by the company is companies a refund of import duties on allow for the sharing of the results of the higher than the ratio calculated by other materials that were not physically R&D project. companies in the same industry for the incorporated into exported products or The GOK reported that a diverse same product. During the POI, EN excessive refund amounts. Therefore, grouping of industries has participated Paper, Hansol, Moorim Paper, Moorim we preliminarily determine that in the CPDP and received R&D funds SP, and Namhan used the company- respondents did not receive, under the from the GOK, including paper specific method. duty drawback program, countervailable companies. Specifically, Namhan Under the fixed amount refund benefits during the POI. However, at participated with another company and method, the Korea Customs Service sets verification we will further examine a research institution in a project. a fixed amount refund rate by each company’s duty drawback Namhan reported that the GOK harmonized schedule (‘‘HS’’) code applications and refunded amounts to approved the R&D funding for the number of items for export.13 This fixed ensure that a countervailable benefit project prior to the POI. refund amount is calculated on the basis was not conferred under the program. In of the average refund amount of duties addition, we will further examine the We preliminarily determine that this or the average paid tax amount on the system at verification to determine funding is a non-recurring grant under raw materials for export, in accordance whether it adequately meets the 19 CFR 351.524(c)(2)(ii) because receipt with Article 16 (simplified fixed amount standards for non-countervailability set of the assistance is not automatic, refund) of the Act on Customs Duties. forth in 19 CFR 351.519(a)(4). requiring the express approval of the The GOK reported that Korean Customs GOK. Therefore, in accordance with 19 reviews the fixed amount of refund B. Cleaner Production Development CFR 351.524(b)(2), we have applied the annually based on the prior year’s Project 15 ‘‘0.5 percent expense test.’’ 16 The experience. Specifically, Korean The Cleaner Production Development calculation demonstrates that the total Customs calculates and determines the Project (‘‘CPDP’’) of the Korea National funding amount approved (i.e., GOK’s fixed duty refund rates each year based Cleaner Production Center (‘‘KNCPC’’) total contribution to the project) is less on its company-specific duty drawback is a research and development (‘‘R&D’’) than 0.5 percent of Namham’s 2003 total application database. To that end, program. The GOK reported that the sales. As such, we have expensed the Korean Customs collects all duty government and companies make cash benefit in the year of receipt, 2003. drawback applications for the prior 12 and in-kind contributions to a research Therefore, because the CPDP did not months and calculates the per-unit duty institution and then share the results of confer a benefit to Namhan during the drawback amount by each HS code. the project. The CPDP was established POI, we preliminarily find that we need Korean Customs then selects the duty in 1995, under the Act on the Promotion not conduct a specificity analysis of this drawback applications for which the of the Conversion into Environment- program. per-unit duty drawback amount is less Friendly Industrial Structure and its than the average calculated in order to III. Programs Preliminarily Determined Enforcement Decree. The KNCPC, with To Not Be Countervailable prevent the fixed amount refund from the support of the Ministry of exceeding the company-specific Commerce, Industry and Energy A. Direction of Credit to the Pulp and methods. Korean Customs recalculates (‘‘MOCIE’’), finances and manages the Paper Sector an average duty drawback amount based cleaner production technology Petitioner alleges that the GOK on these below-average applications. development projects that seek to directed credit to the pulp and paper Korean Customs then determines and prevent or reduce the generation of sector using various means. See announces the per-unit fixed amount waste during product designing, Initiation Notice. Petitioner cites prior refund after rounding upwards. The manufacture, delivery, use, and countervailing duty cases where the GOK provided the calculation disposal. Specifically, MOCIE decides Department has found direction of performed to set the fixed amount of which projects will be approved and the credit to the steel 17 and duty refund for the subject level of the GOK’s contribution to the merchandise.14 See GOK’s questionnaire project, according to criteria specified in response at Exhibit E–7 (March 16, 16 the Guidelines for the CPDP Operation. for more information, see ‘‘Allocation Period,’’ 2007). During the POI, Kyesung and above. The GOK’s monetary contribution 17 Poongman used the fixed amount See Final Affirmative Countervailing Duty depends on the type of project (general refund method. Determination: Structural Steel Beams From the or common), the entity in charge Republic of Korea, 65 FR 41051, (July 3, 2000) (’’S- Each respondent submitted to the (company, research institution, or Beams’’) (from 1985 through 1991); Final Negative Department documentation Countervailing Duty Determination: Stainless Steel university), and whether the project is a demonstrating a sample calculation of Plate in Coils From the Republic of Korea, 64 FR duty drawback, which was applied for 15530 (March 31, 1999) (’’Steel Plate in Coils’’) 15 In its allegation concerning the ‘‘Funding for (from 1992 through 1997); Final Results and Partial Technology Development and Recycling Program,’’ Rescission of Countervailing Duty Administrative 13 The Korean Customs Service calculates a fixed petitioner alleged that the GOK provides support to Review: Stainless Steel Sheet and Strip in Coils refund rate when it is necessary to simplify the the pulp and paper industry for clean technology From the Republic of Korea, 67 FR 1964, (January refund procedure for customs duties on certain development and enhancement of used-paper 15, 2002) (’’Sheet and Strip’’) (for 1999); Notice of export items having an extraordinary production recycling systems. See Initiation Checklist at Final Affirmative Countervailing Duty process (e.g., when two or more products are ‘‘Funding for Technology Development and Determination: Certain Cold-Rolled Carbon Steel produced simultaneously using one raw material or Recycling Program.’’ Also, in its allegation, Flat Products From the Republic of Korea, 67 FR export or when the exported goods are produced by petitioner alleged a connection between the IBF and 62102, (October 3, 2002) (‘‘Cold Rolled’’) (for 2000); a small and medium enterprise). the CPDP. The GOK reported, however, that the IBF Final Results of Countervailing Duty Administrative 14 The fixed amount of duty refunded per 10,000 is a loan program and the CPDP is an R&D support Review: Stainless Steel Sheet and Strip in Coils KRW of FOB export value is 70 (which is the per- program. We preliminarily find no relationship from the Republic of Korea, 69 FR 2113, (January unit duty refund) for subject merchandise. The HS between the IBF and CPDP and, therefore, are 14, 2004) (’’Sheet and Strip 2001 Review’’) (for code is 4810.19–1000. treating them as two separate programs. 2001).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17517

semiconductor 18 industries as well as to following the Korean financial crisis led limited in number; (2) a recipient, on an an individual semiconductor to the liberalization of the Korean enterprise or industry level, is a producer 19 to support its allegation that financial sector, resulting in the GOK predominant user of the subsidy; (3) a the GOK similarly directed credit to the not directing credit provided by recipient, on an enterprise of industry paper sector because, petitioner argues, domestic and government-owned banks level, receives a disproportionately large the paper sector was a strategic sector since 1998. The GOK placed new amount of the subsidy; or (4) the like steel and semiconductors. See information on the record during the manner in which the authority provides Initiation Notice, at 40. DRAMS Investigation to support its the subsidy involves discretion which In prior determinations, the claim that the GOK did not direct credit indicates that the recipient industry or Department found that the GOK between 1999 and June 30, 2002. In enterprise is favored over others. continued to control, directly and DRAMS Investigation, the Department Petitioner cites to various news indirectly, the long-term lending distinguished between banks that are articles, GOK/KDB publications and practices of most sources of credit in themselves government authorities KDB’s status as a government lender to Korea through 1998. See Plate in Coils within the meaning of section 771(5)(B) support its direction of credit allegation. and Final Affirmative Countervailing of the Act and commercial banks that See Petition, at 39–43. In S-Beams, the Duty Determination: Certain Cut-to- are not considered to be government Department found that direction of Length Carbon-Quality Steel Plate From authorities. In CTL Plate and S-Beams, credit was specific to the steel industry the Republic of Korea, 64 FR 73176 we found that, although changes had because the Korea steel sector received (December 29, 1999) (’’CTL Plate’’) for been made to the legislation regulating a disproportionate amount of directed our findings. Although we determined government-controlled specialized credit. See Final Affirmative that the GOK directed the provision of banks, such as the KDB, in the aftermath Countervailing Duty Determination: loans by Korean banks in Plate in Coils of the financial crisis, the respondents Structural Steel Beams from the and Sheet and Strip, we concluded that did not provide any evidence to Republic of Korea, 65 FR 41051 (July 3, loans from Korean branches of foreign demonstrate that the KDB has 2000), and accompanying Issues and banks (i.e., branches of U.S. and foreign- discontinued its practice of selectively Decision Memorandum, at ‘‘Direction of owned banks operating in Korea) did making loans to the steel sector. Record Credit,’’ section (POI 1998). In the not confer countervailable subsidies. evidence from those investigations DRAMS Investigation, the Department This determination was based upon our indicate that the KDB and other found direction of credit specific to finding that credit from branches of specialized banks, such as the Industrial Hynix and the Hyundai Group foreign banks was not subject to the Bank of Korea, continue to be companies from 1999 through mid- government’s control and direction. government authorities within the 2002. See DRAMS Investigation Additionally, because these loans were meaning of section 771(5)(B) of the Act. Memorandum, at ‘‘Comment 2: not directed or controlled by the GOK, Hence, the financial contributions they Specificity Relating to Direction of we used them as benchmarks to made fall within section 771(5)(B)(i) of Credit.’’ In the first administrative establish whether loans from domestic the Act. As for the commercial banks in review of DRAMS, the Department banks conferred a benefit upon which the GOK owned a majority or continued to find direction of credit respondents. In S-Beams and CTL Plate, minority stake, the Department specific to Hynix through 2003. See the Department found that the GOK determined that these entities are not DRAMS First Review Memorandum. In the second administrative review of directed credit to ‘‘strategic’’ industries, GOK authorities within the meaning of DRAMS, based on record facts such as steel, automobiles, and section 771(5)(B) of the Act. These particular to Hynix, the Department consumer electronics, throughout the banks act as commercial banks, and found that the GOK no longer directed 1970s, 1980s, and 1990s. In S-Beams, temporary GOK ownership of the banks credit to Hynix in 2004. See Dynamic we found that, after the removal of the due to the financial crisis is not, by Random Access Memory de jure preferences for ‘‘strategic’’ itself, indicative that these banks are Semiconductors from the Republic of industries in 1985, the GOK continued GOK authorities. Korea: Final Results of Countervailing to direct a disproportionate amount of Direction of Credit Specific to the Pulp Duty Administrative Review, 72 FR 7015 lending to steel sector by examining the and Paper Sector (February 14, 2007), and accompanying percentage of loans received by the steel A significant amount of evidence has Issues and Decision Memorandum at sector in proportion to the steel sector’s been placed on the record by petitioner ‘‘GOK Entrustment or Direction of Debt contribution to GDP. In DRAMS to support its allegation. In addition to Reductions,’’ section. Investigation, we determined that the the evidence contained in the petition In this investigation, the Department GOK continued to direct credit through filed on October 31, 2006, the is analyzing whether the GOK directed 1998 to the semiconductor sector Department sought and received credit to the paper sector during the because it was a strategic sector. additional information on direction of relevant time periods as it had done The Department has also addressed credit from petitioner. See Submissions earlier to the steel and semiconductor GOK direction of credit in the years on behalf of NewPage on November 6 sectors. We preliminarily determine that subsequent to 1998. The GOK argued in and 9, 2006. Petitioner alleges that there was no GOK direction of credit the DRAMS Investigation that the post- ‘‘directed lending to the Korean coated specific to the paper industry that 1997 financial reforms instituted free sheet producers was specific would provide a benefit during the POI. because the GOK targeted the Korean As noted above, the Department has 18 See DRAMS Investigation Memorandum paper industry as an industry selected found that the GOK exerted broad (through 1998). 19 See DRAMS Investigation Memorandum, at 14– for export growth and competitiveness control of lending in Korea through 15 (through June 30, 2002); and Issues and Decision * * * within the meaning of section 1998 and that this resulted in credit Memorandum for the Final Results in the First 771(5A)(D)(iii)(I–IV).’’ See Petition, at being directed specifically to such Administrative Review of the Countervailing Duty 43. Under section 771 (5A)(D)(iii)(I–IV) ‘‘strategic’’ sectors as the steel and Order on Dynamic Random Access Memory Semiconductors from the Republic of Korea, 71 FR of the Act, a subsidy is de facto specific semiconductor industries. However, 14174 (March 21, 2006) (‘‘DRAMS First Review where (1) the actual recipients, either on although the paper industry was an Memorandum’’) (through 2003). an enterprise or industry basis are important part of the Korean economy,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17518 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

we find that the record evidence in the Shinho Group began experiencing the Creditors Council decided to sell the instant investigation is not sufficient to financial difficulties and applied for shares of Shinho Paper and appointed support a conclusion that the paper emergency loans from its creditor banks. KDB-Lone Star as the financial advisor industry was likewise a ‘‘strategic’’ On February 23, 1998, the Shinho to evaluate the value of the company sector to which, consequently, credit Group and Korea First Bank (‘‘KFB’’), and conduct the sale. was specifically directed by the GOK the main creditor bank of the Shinho In April 2004, Aram Financial Service through its wide control of lending. Group, entered into an agreement, Inc. was selected as the winner of the For the period subsequent to 1998, we undertaking to reduce the Shinho’s bidding process, and on November 15, examined the paper sector using the Group’s debt-to-equity ratios by mergers 2004, a Stock Purchase Agreement for two-part test articulated in the DRAMS or disposition/liquidation of member Shinho Paper was signed. Thereafter, Investigation, i.e., whether the GOK had companies or other assets. On July 9, Shinho Paper secured a new large a governmental policy favoring that 1998, the Shinho Group applied to the syndicated loan and a new credit ceiling sector and, whether record evidence KFB for a ‘‘corporate workout’’ program for letters of credit. EN Paper reported establishes a pattern of practices by the pursuant to the Corporate Restructuring that the funds from this new syndicated GOK to act upon that policy to entrust Agreement (‘‘CRA’’). On July 14, 1998, loan were used to repay outstanding or direct creditors to provide financial a Creditors Council was formed for the loans in full, and that, with the takeover contributions to the paper sector. In purpose of overseeing the restructuring by Aram Financial Service Inc. and the evaluating the record in this of the Shinho Group. On July 16, 1998, repayment of its outstanding loans, investigation, we do not find that the the Creditors Council held its first Shinho Paper graduated from the evidence supports a finding that a GOK meeting and composed three Creditors restructuring plan in December 2004. policy existed favoring the paper sector Councils—one for Shinho Paper, one for Financial Contribution during the relevant period. There are no Shinho Petrochemical Co., Ltd., and one government statements stating that the for Dongyang Steel Pipe Ltd. On July 17, As discussed above, we preliminarily paper sector is a critical or strategic 1998, Samil Accounting Corporation determine there was not direction of economic sector of the Korean economy. and PricewaterhouseCoopers were credit to the paper industry during these There are also no statements by Korean appointed to conduct separate periods. See the Direction of Credit to officials claiming any paper company ‘‘workout’’ plans for these three core the Pulp and Paper Industry section, was ‘‘too big to fail.’’ Nor do we find companies. above. We also preliminarily determine sufficient evidence to support a finding On September 17, 1998, Samil that information on the record does not that the GOK acted on any policy to Accounting Corporation and support a finding that the GOK entrust or direct the paper sector’s PricewaterhouseCoopers submitted the entrusted or directed other creditor creditors to make financial ‘‘workout’’ plan for Shinho Paper. On banks to participate in financial contributions to the paper sector. October 24, 1998, the Creditors Council restructuring plans, which involved Consequently, we preliminarily approved a restructuring plan that was providing credit and other financial determine that there was no government based on that evaluation. On December assistance to Shinho Paper, in order to entrustment or direction of private 11, 1998, the KFB and the Shinho Group assist Shinho Paper through its financial creditors, and no direction of credit, entered into an Agreement of Corporate difficulties. We reach this preliminary specific to the paper sector that is Restructuring to implement the plan. determination on the basis of a two-part comparable to the earlier direction of The KFB proposed a second test. credit to the steel and semiconductor restructuring plan for Shinho Paper to First, we examined whether the GOK sectors. the Creditors Council on November 2, had in place a governmental policy to 1999. Santong Accounting Corporation support Shinho Paper’s financial B. Restructuring of Shinho Paper was hired to conduct an evaluation of restructuring and to prevent the As outlined in the Initiation Notice the company, and on January 14, 2000, company’s failure. Among the evidence and the Initiation Checklist, the a second ‘‘workout’’ plan was submitted cited by petitioners was an article from Department is examining the various to the Creditors Council. After some the Korea Herald indicating that the forms of financial assistance provided to revisions, the committee approved the GOK promoted mergers and acquisitions Shinho Paper through restructuring of plan on March 4, 2000. in seven ‘‘overcrowded’’ industries, Shinho Paper from 1998 to 2005. This On September 15, 2001, Korea’s including petrochemicals and steel. See financial assistance included debt-to- Corporate Restructuring Promotion Act Petitioner’s submission of pre- equity swaps, conversions of convertible came into effect. Younghwa Accounting preliminary comments, at 91 (March 8, bonds to equity, the extension of debt Corporation was then appointed to 2007) (‘‘Pre-Prelim Comments), and maturities, reductions of interest evaluate the financial condition of Petitioner’s submission at Exhibit B–12 obligations, and new loans. Because Shinho Paper and the progress it was (November 6, 2007). Although these two Shinho Paper received assistance making under its ‘‘workout’’ plan. On industries are two of the ‘‘core directly from GOK-owned public January 3, 2002, the accounting firm businesses’’ of the Shinho Group for lending institutions, we preliminarily submitted its review to the Creditors which ‘‘workout’’ plans were determine that these institutions Council. The Creditors Council undertaken, there is no indication from provided Shinho Paper financial approved the plan in early 2002. the articles provided by petitioner that contributions. EN Paper reported that, as of restructuring the Shinho Group or EN Paper reported that its predecessor December 21, 2002, Shinho Paper faced Shinho Paper was a policy goal. company, Shinho Paper, was a member de-listing from the Korea Stock Additionally, petitioners argued that of the Shinho Group, a conglomerate of Exchange because its stock price had KFB, one of Shinho’s lead creditors, was 28 companies that were engaged in the fallen below the required minimum instructed to keep Shinho Bank from manufacture of paper, steel pipes, level. As a result, on June 11, 2003, liquidation. Although the article petrochemicals, electronics, and Shinho Paper conducted a reverse stock provided by petitioners in support of machinery, as well as financing, conversion to reduce the number of this argument states that Shinho Paper transportation, and construction. In late shares and increase the price per is in the process of normalization 1997, during Korea’s financial crisis, the remaining share. On November 3, 2002, through debt restructuring, it does not

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17519

provide evidence of the entrustment or equity. Under the third ‘‘workout’’ plan, outstanding loans and bonds, and direction. See Pre-Prelim Comments, at the Creditors Council again authorized evidence on the record indicates that 91 and Exhibit 25. At this point in the debt-for-equity swaps. EN Paper Shinho Paper also received such investigation, the record does not reported the total amount of debt, extensions of debt maturities. However, support a finding that the GOK had a convertible bonds, and unpaid interest most of Shinho Paper’s debt and bond governmental policy in place with bonds that was swapped for equity. obligations was either forgiven through respect to either the Shinho Group or To determine whether these the equity conversions described above Shinho Paper. conversions of debt and convertible or paid off prior to the POI with funds We next examined whether the GOK bonds to equity conferred a benefit on from the syndicated loan that Shinho engaged in a pattern of practices to Shinho Paper, we followed the Paper received in late 2004. entrust or direct Shinho Paper’s methodology described in 19 CFR EN Paper reported GOK lending creditors to provide financial 351.507. According to 19 CFR 351.507, institution long-term capital leases contributions to Shinho Paper. In the first step in determining whether an outstanding during the POI which had undertaking this examination, as we did equity investment decision is been restructured as a result of decrees in DRAMs Investigation, we considered inconsistent with the usual investment by the Creditors Council. For these long- whether there was evidence that the practice of private investors is term leases, we followed the GOK influenced financial dealings examining whether, at the time of the methodology described at 19 CFR through entrustment or direction of infusion, there was a market price paid 351.505 to determine whether the Shinho Paper’s creditors. One of the by private investors for similar newly amount a firm pays on a government- many factors we considered in making issued equity. Because private banks provided loan is less than the amount this decision in DRAMs Investigation that participated in the restructuring the firm would pay on a comparable was whether the Creditors Council converted debt to equity at the same commercial loan that the firm could established to oversee and administer time and terms as the GOK lending actually obtain on the market. As the bailouts was dominated by GOK- institutions, we preliminarily determine indicated in the Initiation Checklist, owned or -controlled lending that there is evidence on the record that petitioners alleged that Shinho was institutions. We preliminarily do not the price paid by the GOK lending uncreditworthy from 1998 to 2005. To find the same dominance here that we institutions was a market price paid by determine whether use of an did in DRAMs Investigation. Therefore, private investors. See 19 CFR uncreditworthy benchmark interest rate we preliminarily determine that the 351.507(a)(2). Consequently, we was necessary, we examined whether record does not support a conclusion preliminary determine that the debt-to- there was evidence on the record that the Creditors Councils established equity swaps by the GOK lending indicating that Shinho Paper could not to oversee and administer the bailouts of institutions were conducted consistent have obtained comparable long-term Shinho Paper were dominated by GOK- with usual investment practice of loans from conventional commercial owned or -controlled lending private investors and thus do not sources. We preliminarily determine institutions. provide a benefit to Shinho Paper. See that, because the terms and rate Additionally, we preliminarily 19 CFR 351.507(a). structure decreed by the Creditors determine that the GOK did not engage We note that, as outlined in the Council applied to long-term capital in the various types of actions that we Initiation Checklist, petitioner alleged leases held by all of the lenders that Shinho Paper received additional debt found indicative of entrustment or participated in the restructuring, forgiveness from reductions or direction in DRAMs Investigation. For including lenders that are not GOK eliminations of interest obligations and example, there is insufficient evidence lending institutions, Shinho Paper was debt writeoffs which respondents that GOK officials attended meetings of creditworthy during the year that the explain are accounting adjustments Shinho’s creditors, that the GOK new loan structure was applied. See 19 pertaining to the numerous debt-for- coerced or threatened Shinho’s creditors CFR 351.505(a)(4)(ii). equity swaps and conversions of The record evidence indicates that, to participate in the restructurings, or convertible bonds to equity. As noted upon the decree of the Creditors that the GOK used Shinho’s lead bank above, EN Paper reported that, in Council, both the government and to effectuate a policy of bailing out additional to unpaid principal, unpaid commercial creditors received the same Shinho, among other things. See interest was also converted to equity. interest rate and structure for their long- DRAMS Investigation Memorandum, at However, EN Paper also reported that term capital leases. Further, the record Comment 1. Thus, the evidence on the the total amount of debt, convertible evidence does not indicate that the record is insufficient to demonstrate the bonds, and unpaid interest that was lending provided by the commercial existence of a GOK policy or pattern of converted to equity was less than the creditors was accompanied by a practices to entrust or direct creditors to total amount approved for conversion government guarantee. Therefore, provide financial assistance to Shinho by the Creditors Council. At pursuant to 9 CFR 351.505(a), we Paper. verification, we will examine whether preliminarily determine that the GOK Benefit any unpaid interest was forgiven as a lending institution capital leases a. Debt-to-Equity Swaps and Conversion result of Shinho Paper’s restructuring outstanding during the POI do not of Convertible Bonds to Equity process and whether EN Paper provided provide a benefit to Shinho Paper. a complete reporting of its debt and Accordingly, it is unnecessary to reach Under the first Shinho Paper bond conversions. Accordingly, it is findings with regard to financial ‘‘workout’’ plan, the Creditors Council unnecessary to reach findings with contribution or specificity. authorized for Shinho Paper debt-to- regard to financial contribution or c. New Loans equity swaps and conversion of debt to specificity. convertible bonds. Under the second For the large syndicated loan received ‘‘workout’’ plan, the Creditors Council b. Extension of Debt Maturities by Shinho Paper during 2004, which authorized for Shinho Paper additional As tenets of the ‘‘workout’’ plans, the was used to repay Shinho’s creditors, debt-to-equity swaps and approved Creditors Council approved reductions including GOK lending institutions, we conversion of convertible bonds to in interest rates for Shinho Paper’s followed the methodology described at

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17520 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

19 CFR 351.505 to determine whether Industrial Parts and Material, provided note that the burden is on the the amount Shinho paid on the loans to Namhan. No other respondent respondents to demonstrate that government-provided loans was less received loans from the IBF. The GOK approval to receive benefits was made than the amount Shinho would reported that the goal of the Promotion solely under non-export-related criteria. otherwise have to pay on a comparable of Industrial Parts and Material is to Therefore, the application materials commercial loan that Shinho could provide long-term loans to companies in themselves may be dispositive, although actually obtain on the market. The order to support the enhancement of the we will seek further information before record evidence indicates that all capacity of the facility, productivity, making such a determination. See lenders, i.e., both the government and factory automation, and product Preamble, 63 FR 65381. commercial creditors, participated in development. Namhan received loans B. Short-Term Financing Under the the syndicated loan on the same terms, for the purchase of equipment Aggregate Credit Ceiling Loan such as the interest rate and structure of applicable to both subject and non- the loan. Further, the record evidence subject merchandise. As discussed in the ‘‘Background’’ does not indicate that the lending The GOK reported that, to apply for section, petitioner, in its pre- provided by the commercial creditors a loan, a company must submit a preliminary comments, claims that was accompanied by a government business plan application, which respondents have received a significant guarantee. Consequently, we requests information on the company amount of short-term lending, which preliminarily find that the participation and the investment project. The GOK was provided by the GOK for financing of commercial creditors in the provided a copy of a blank application the importation of raw materials as well syndicated loan provides sufficient with some English translation. See GOK as the export of finished goods. indication that Shinho received the loan questionnaire response at Exhibit I–4 Petitioner further claims that the BOK on commercial terms. Therefore, we (January 26, 2007). Petitioner submitted administers the trade financing under preliminarily determine that the to the Department their translation of the Aggregate Credit Ceiling Loan contributions provided by the GOK the ‘‘effects of investment’’ section of (‘‘ACCL’’) program. Because the lending institutions in the syndicated the business plan application. See Pre- Department did not initiate on the loan do not provide a benefit to Shinho Prelim Comments, at Exhibit 128. ACCL program, there is limited Paper. Accordingly, it is unnecessary to Petitioner states that the complete information on the record of this reach findings with regard to financial translation of the ‘‘effects of investigation concerning respondents’ contribution or specificity. investment’’ section of the application use of the program and short-term loans includes a request for information on outstanding during the POI. Therefore, IV. Programs for Which More the project’s ‘‘export effects’’ and we find that additional information Information Is Required ‘‘saleable effect of import substitution.’’ regarding the respondents’ short-term A. Industrial Base Fund 20 See id. at page 81 and Exhibit 128. lending is required to fully analyzed the Petitioner, therefore, argues that the IBF GOK’s provision of these loans. The Industrial Base Fund (‘‘IBF’’), program is an export subsidy under established in 1986,21 provides policy Therefore, we will issue soon after this section 771(5A)(B) of the Act. We note preliminary determination a loans pursuant to the: (1) Promotion of that the IBF program could also be Small and Medium Enterprises and supplemental questionnaire to considered an import substitution respondent companies and the GOK Encouragement of Purchase of their subsidy under section 771(5A)(C) of the Products Act, (2) Industrial concerning the ACCL and short-term Act. lending during the POI. Development Act, and (3) Guidelines for The Department was able to verify IBF Operation. The purpose of the IBF independently that the respondent did V. Programs Preliminarily Determined is to contribute to strengthening the not provide a complete translation of To Be Not Used competitiveness and productivity of this section of the application and that We preliminarily determine that the national industries through the petitioner’s translation is accurate with producers/exporters of CFS paper did development of a strong industrial base respect to the request for information on not apply for or receive benefits during in Korea. IBF funding is provided to exports and import substitution in the the POI under the programs listed companies that expand their facilities ‘‘effects of investment’’ section of the below: and make investments in projects as application. See Memorandum to the 24 provided in the IBF Plan. MOCIE File Regarding the IBF (March 29, A. Export Industry Facility Loans manages and supervises the operation of 2007).23 B. Tax Programs under Restriction of the IBF. While the application form may Special Taxation Act (‘‘RSTA’’) The IBF consists of eight separate request such information, we find that 1. RSTA Article 71. parts,22 one of which, the Promotion of the record is not adequately developed 2. RSTA Article 60. with information on how the GOK uses 3. RSTA Article 63–2. 20 In its allegation concerning the ‘‘Funding for that information in its decision-making For purposes of this preliminary Technology Development and Recycling Program,’’ and whether the GOK, either in whole determination, we have relied on the petitioner alleged that the GOK provides support to pulp and paper producers through the Industrial or in part, approves IBF loans based on GOK and respondents’ responses to Base Fund. See Initiation Checklist at ‘‘Funding for a project’s ‘‘export effects’’ and preliminarily determine non-use of Technology Development and Recycling Program.’’ ‘‘saleable effect of import substitution.’’ these programs. During the course of 21 The IBF was originally named the Therefore, we will be seeking more verification, the Department will ‘‘Manufacturing Industry Development Fund.’’ The information about the IBF program from name of the fund was changed in 1999, because the examine whether these programs were, Manufacturing Industry Development Act was the GOK and Namhan. However, we amended to become the Industrial Development 24 In the Final Affirmation Countervailing Duty Act. Activation of Industrial Complex; (6) Development Determination: Stainless Steel Sheet and Strip in 22 IBF program consists of the following eight of Regional Industry; (7) Cooperation among Large, Coils from the Republic of Korea, the Department parts: (1) Promotion of Industrial Parts and Medium, and Small Enterprises; and (8) found that the GOk terminated the Export Industry Material; (2) Rationalization of Logistics; (3) Establishment of Information System. Facility Loan program in 1994 (64 FR 30636,, 30662 Establishment of Environment-Friendly Industrial 23 A copy of this memorandum is available in (June 8, 1999), at Comment 19). However, this long- Base; (4) Development of Intellectual Industry; (5) CRU. term loan program can provide residual benefits.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17521

in fact, used by respondents during the Notification of Parties Reagan Building, Trade Information POI. In accordance with 19 CFR Center, 1300 Pennsylvania Avenue, NW, Washington, DC, 20004, Training Room Verification 351.224(b), the Department will disclose to the parties the calculations for this A. In accordance with section 782(i) of preliminary determination within five Addition to the Agenda the Act, we will verify the information days of its announcement. Unless submitted prior to making our final otherwise notified by the Department, There has been a change to the determination. interested parties may submit case briefs agenda. Mr. Dan Tannebaum, OFAC, U.S. Treasury will be briefing the ETAC Suspension of Liquidation within 50 days of the date of publication of the preliminary determination in Committee on Textile and Apparel In accordance with section accordance with 19 CFR 351.309(c)(i). Exporter Responsibilities in Complying 703(d)(1)(A)(i) of the Act, we have As part of the case brief, parties are with the Office of Foreign Asset Control determined individual rates for EN encouraged to provide a summary of the (OFAC) Requirements Relating to Paper, Hansol, Kyesung, and Moorim. arguments not to exceed five pages and Specially Designated Nationals: What The ‘‘All Others’’ rate is Hansol’s CVD a table of statutes, regulations, and cases Exporters Need to Know About their subsidy rate, because all other company cited. Rebuttal briefs, which must be Customers and Suppliers. rates are below de minimis. Pursuant to limited to issues raised in the case The ETAC is a national advisory 705(c)(5)(A)(i) of the Act, we do not briefs, must be filed within five days committee that advises Department of include de minimis subsidy rates in the after the case brief is filed. See 19 CFR Commerce officials on the identification ‘‘All Others’’ calculation. The rates are 351.309(d). of export barriers, and on market summarized below: In accordance with 19 CFR expansion activities. With the 351.310(c), we will hold a public elimination of textile quotas under the Producer/Exporter Subsidy rate hearing, if requested, to afford interested WTO agreement on textiles and parties an opportunity to comment on clothing, the Administration is EN Paper ...... 0.08 ad valorem. this preliminary determination. committed to encouraging U.S. textile Hansol ...... 1.76 ad valorem. and apparel firms to export and remain Kyesung (and its affiliate 0.59 ad valorem. Individuals who wish to request a Namhan). hearing must submit a written request competitive in the global market. Moorim (and its affiliate 0.04 ad valorem. within 30 days of the publication of this The meeting will be open to the Moorim SP). notice in the Federal Register to the public with a limited number of seats All Others Rate ...... 1.76 ad valorem. Assistant Secretary for Import available. For further information or Administration, U.S. Department of copies of the minutes, contact Rachel In accordance with section Commerce, Room 1870, 14th Street and Alarid at (202) 482-5154. 703(d)(1)(B) of the Act, we are directing Constitution Avenue, NW., Washington, Dated: April 4, 2007. U.S. Customs and Border Protection DC 20230. Parties will be notified of the R. Matthew Priest, schedule for the hearing and parties (‘‘CBP’’) to suspend liquidation of all Deputy Assistant Secretary for Textiles and entries of the subject merchandise from should confirm by telephone the time, Apparel. date, and place of the hearing 48 hours Korea, which are entered or withdrawn [FR Doc. E7–6637 Filed 4–6–07; 8:45 am] from warehouse, for consumption on or before the scheduled time. Requests for BILLING CODE 3510–DS–S after the date of the publication of this a public hearing should contain: (1) notice in the Federal Register, and to Party’s name, address, and telephone require a cash deposit or the posting of number; (2) the number of participants; a bond for such entries of the and, (3) to the extent practicable, an DEPARTMENT OF DEFENSE merchandise in the amounts indicated identification of the arguments to be above. This suspension will remain in raised at the hearing. Office of the Secretary effect until further notice. This determination is issued and published pursuant to sections 703(f) Transformation Advisory Group ITC Notification and 777(i) of the Act. Meeting of the U.S. Joint Forces Command In accordance with section 703(f) of Dated: March 29, 2007. the Act, we will notify the ITC of our David M. Spooner, AGENCY: Department of Defense. determination. In addition, we are Assistant Secretary for Import ACTION: Notice of closed meeting. making available to the ITC all non- Administration. privileged and non-proprietary [FR Doc. E7–6500 Filed 4–6–07; 8:45 am] SUMMARY: The Transformation Advisory information relating to this BILLING CODE 3510–DS–P Group (TAG) will meet in closed session investigation. We will allow the ITC on 6–8 June 2007. The establishment access to all privileged and business date was already published in the proprietary information in our files, DEPARTMENT OF COMMERCE Federal Register on 28 May 2003, in provided the ITC confirms that it will accordance with 41 CFR 102–3.150. not disclose such information, either International Trade Administration The mission of the TAG is to provide publicly or under an administrative Exporters’ Textile Advisory Committee timely advice on scientific, technical protective order, without the written and policy-related issues to the consent of the Assistant Secretary for (ETAC); Notice of Open Meeting; Addition to the Agenda Commander, U.S. Joint Forces Import Administration. Command as he develops and executes In accordance with section 705(b)(2) As stated in the notice published in the DOD transformation strategy. Full of the Act, if our final determination is the Federal Register on March 9, 2007 development of the topics will require affirmative, the ITC will make its final (72 FR 10709), a meeting of the discussion of information classified in determination within 45 days after the Exporters’ Textile Advisory Committee accordance with Executive Order 12958, Department makes its final will be held on Thursday, April 12, dated 17 April 1995, as amended March determination. 2007 from 1:00-4:00 at the Ronald 2003.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17522 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Access to the information must be administrative matters that are critical Appendix, as amended, the Sunshine in strictly limited to personnel having the to the full accreditation and successful the Government Act of 1976 (5 U.S.C. requisite clearances and specific need- operation of the University. Specific 552b, as amended) and other to-know. Unauthorized disclosure of the DoD expectations are outlined in DoD appropriate Federal regulations. information to be discussed at the TAG Instruction 5105.45 and in bylaws and Board of Regents subcommittees and meetings could cause serious damage to policies developed by the Board of workgroups shall not work our national defense. The meeting will Regents. independently of the Board of Regents be closed for security reasons, pursuant Pursuant to 10 U.S.C. 2113(a), the and shall report all their to 5 U.S.C. 552, Exemption(b)1, Board of Regents is composed of: (a) recommendations and advice to the Protection of National Security, and Nine persons in the fields of health and Board of Regents for full deliberation Exemption(b)3 regarding information health education who shall be and discussion. Board of Regents protected under the Homeland Security appointed from civilian life by the subcommittees and workgroups have no Act of 2002. President, by and with the advice and authority to make decisions on behalf of In accordance with Section 10(d) of consent of the Senate; (b) the Secretary the Board of Regents and may not report the Federal Advisory Committee Act of Defense, or his designee, who shall be directly to the Department of Defense or and 41 CFR 102–3.155 this meeting will an ex officio member; (c) the surgeons any Federal officers or employees who be closed. general of the uniformed services, who are not Board of regents members. DATES: 6–8 June 2007. shall be ex officio members; and (d) the Pursuant to 41 CFR 102–3.105(j) and Location: United States Joint Forces Dean of the University, who shall be a 102–3.140, the public or interested Command, 1562 Mitscher Avenue Suite nonvoting ex officio member. organizations may submit written 200, Norfolk, VA 23551–2488. The terms of the office for those statements to the Board of Regents about members appointed by the President FOR FURTHER INFORMATION CONTACT: Ms. its mission and functions. Written Tammy R. Van Dame, Designated pursuant to 10 U.S.C. 2113(b) shall be statements should be submitted to the six years except that: (a) any member Federal Officer, (757) 836–5365. advisory committee’s Designated appointed to fill a vacancy occurring SUPPLEMENTARY INFORMATION: Federal Officer for consideration by the Mr. Floyd before the expiration of the term for March, Joint Staff, (703) 697–0610. membership of the Board of Regents. which his predecessor was appointed The advisory committee’s Designated Dated: April 3, 2007. shall be appointed for the remainder of Federal Officer contact information can L.M. Bynum, such term; (b) the terms of office of the be obtained from the GSA’s FACA Alternate OSD Federal Register Liaison members first taking office shall expire, Database—https://www.fido.gov/ Officer, DoD. as designated by the President at the facadatabase/public.asp. [FR Doc. 07–1729 Filed 4–6–07; 8:45 am] time of the appointment; and (c) any FOR FURTHER INFORMATION CONTACT: BILLING CODE 5001–06–M member whose term of office has Frank Wilson, DoD Committee expired shall continue to serve until his Management Officer, 703–601–2554. successor is appointed. DEPARTMENT OF DEFENSE The President shall designate one Dated: April 4, 2007. appointed member of the Board of L.M. Bynum, Office of the Secretary of Defense Regents to serve as Chair. Members of Alternate OSD Federal Register Liaison the Board of Regents who are not full- Officer, Department of Defense. Renewal of Federal Advisory time or permanent part-time Federal [FR Doc. 07–1753 Filed 4–5–07; 11:51 am] Committee; Sunshine Act Meeting employees shall serve as Special BILLING CODE 5001–06–M AGENCY: DoD. Government Employees under the ACTION: Notice. authority of 5 U.S.C. 3109, and, pursuant to 10 U.S.C. 2113(e), shall DEPARTMENT OF DEFENSE SUMMARY: Under the provisions of the receive compensation of no more than Federal Advisory Committee Act of $100 per day, as determined by the Department of the Army 1972, (5 U.S.C. Appendix, as amended), Secretary of Defense, in addition to Board of Visitors, United States the Sunshine in the Government Act of travel expenses and per diem while Military Academy (USMA) 1976 (5 U.S.C. 552b, as amended), and serving away from their place of 41 CFR 102–3.65, the Department of residence. AGENCY: Department of the Army, DoD. Defense gives notice that it is renewing The Board of Regents shall meet at the ACTION: Notice; correction. the charter for the Board of Regents of call of the Designated Federal Officer, in the Uniformed Services University of consultation with the Chair and the SUMMARY: The notice of an open meeting the Health Sciences (hereafter referred President of the University. The scheduled for April 25, 2007 published to as the Board of Regents). Designated Federal Officer shall be a in the Federal Register on March 13, The Board of Regents, pursuant to 10 full-time or permanent part-time DoD 2007 (72 FR 11337) has a new meeting U.S.C. 2113, is a non-discretionary employee, and shall be appointed in location. The meeting will now be held Federal advisory committee established accordance with established DoD in Room B318, Rayburn House Office to assist the Secretary of Defense in an policies and procedures. The Designated Building, Washington, DC. advisory capacity in carrying out the Federal Officer or Alternate Designated FOR FURTHER INFORMATION CONTACT: Secretary’s responsibility to conduct the Federal Officer shall attend all Board of Lieutenant Colonel Shaun T. Wurzbach, business of the Uniformed Services Regents’ meetings and subcommittee United States Military Academy, West University of the Health Sciences. meetings. Point, NY 10996–5000, (845) 938–4200. While 10 U.S.C. 2113(a) does not The Board of Regents is authorized to SUPPLEMENTARY INFORMATION: None. provide precise objectives and scope for establish subcommittees and the Board of Regents’ assistance to the workgroups, as necessary and consistent Brenda S. Bowen, Secretary of Defense, past practice has with its mission. Board of Regents Army Federal Register Liaison Officer. been for the Board of Regents to assist subcommittees and workgroups shall [FR Doc. 07–1740 Filed 4–6–07; 8:45 am] in the areas of advice on academic and operate under the provisions of 5 U.S.C., BILLING CODE 3710–08–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17523

DEPARTMENT OF DEFENSE located in the City of Los Angeles, in the pits within the watershed, including the San Fernando Valley portion of Los Sheldon Pit, the Boulevard Pit, and the Department of the Army Angeles County, CA. The study area is Strathern Pit. The primary purpose, comprised of 4.4 square miles of urban/ working in conjunction with the Local Intent To Grant an Exclusive License industrial areas. sponsor, Los Angeles County of a U.S. Government-Owned Patent The proposed Study will be Department of Public Works, would be AGENCY: Department of the Army, DoD. conducted under the Authority for the to facilitate ecosystem restoration Los Angeles County Drainage area ACTION: Notice. through re-establishment of native (LACDA), Flood Control Project, Los riparian, upland vegetation, creating SUMMARY: In accordance with 35 U.S.C. Angeles County, CA. Which was constructed wetlands where feasible. 209(e) and 37 CFR 404.7(a)(I)(i), initially authorized by Senate Implementation of the proposed project announcement is made of the intent to Resolution, approved June 25, 1969, would increase habitat quality of several grant an exclusive, royalty-bearing, reading in part: degraded sites, and provide opportunity revocable license to U.S. provisional ‘‘Resolved by the Committee on Public for wildlife species use and promote patent application filed January 15, Works of the United States Senate, that the recreational opportunity. In addition, 2007 entitled ‘‘Identification of Small Board of Engineers for Rivers and Harbors, the proposed project includes water Molecule Inhibitors of Filovirus created under Section 3 of the Rivers and conservation, construction infiltration Replication,’’ to Functional Genetics, Harbors Act, approved June 13, 1902, be, and basins, and storm drains. is hereby requested to review the report to with its principal place of business at the Chief of Engineers on the Los Angeles Scoping Process. to initiate 708 Quince Orchard Rd., Gaithersburg, and San Gabriel Rivers and Ballona Creek, preparation of the EIS/EIR, the Corps MD 20878. California, Published a House Document will conduct a public scoping meeting. ADDRESSES: Commander, U.S. Army Numbered 838, Seventy-sixth Congress, and The public meeting would be conducted Medical Research and Materiel other pertinent reports, with a view to during the month of April 2007. Date, Command, ATTN: Command Judge determining whether any modifications time and location of the public scoping contained therein are advisable at the present Advocate, MCMR–ZA–J, 504 Scott time, in the resources in the Los Angeles meeting will be announced by means of Street, Fort Detrick, Frederick, MD County Drainage Area.’’ letter, public announcements, news 21702–5012. release or announced in the local news FOR FURTHER INFORMATION CONTACT: For DATES: Submit comments on or before paper in the Sun Valley area. This licensing issues, Dr. Paul Mele, Office of May 9, 2007. scoping meeting will be held to solicit Research & Technology Assessment, ADDRESSES: Mail comments to Mr. public input on significant (301) 619–6664. For patent issues, Ms. Ronald Lockmann, U.S. Army Corps of environmental issues associated with Elizabeth Arwine, Patent Attorney, (301) Engineers, Los Angeles District, restoring and expanding the native 619–7808, both at telefax (301) 619– Environmental Resources Branch, Army habitat and provide technical water 5034. Corps of Engineers, Los Angeles District, conservation and recreational CESPL–PD–RN, 915 Wilshire Blvd., Los opportunities. SUPPLEMENTARY INFORMATION: Anyone Angeles, CA 90017. wishing to object to the grant of this The EIS/EIR will address potential FOR FURTHER INFORMATION CONTACT: Mr. license can file written objections along impacts associated with the proposed Ronald Lockmann, Phone (213) 452– with supporting evidence, if any, 15 action. Resource categories that will be 3847; Fax (213) 452–4204 or E-mail: days from the date of this publication. analyzed are: land use, physical [email protected]. Written objections are to be filed with environment, geology, biological, the Command Judge Advocate (see SUPPLEMENTARY INFORMATION: This NOI agricultural, air quality, water quality, ADDRESSES.) is published to announce the Corps’ groundwater, recreational usage, intent to prepare an Environmental esthetics, cultural, transportation/ Brenda S. Bowen, Impact Statement/Environmental communications, hazardous waste Army Federal Register Liaison Officer. Impact Report (EIS/EIR0 for the material, socioeconomic and safety. the [FR Doc. 07–1743 Filed 4–6–07; 8:45 am] proposed environmental restoration public, as well as Federal, State and BILLING CODE 3710–08–M project on a sub basin of the LACDA local agencies are encouraged to system and vicinity, City of Los participate in the scoping process by Angeles, Los Angeles County, CA. This attending the scoping meeting and/or DEPARTMENT OF DEFENSE plan attempts to reclaim sustainable submitting data, information, and native ecosystems on this site. The comments identifying relevant Department of the Army; Corps of Tujunga Wash Reconnaissance Study (of environmental and socioeconomic Engineers which the Sun Valley Watershed was a issues to be addressed in the part), dated September 2003, concluded environmental analysis. Intent To Prepare an Environmental ‘‘although a detailed feasibility-level Impact Statement/Report for the Sun Individuals and agencies may offer study of the complexity of the Valley Environmental Restoration information pertinent or data relevant to watershed would be an important first Project, Los Angeles County, CA the proposed study and provide step, there do exist * * * opportunities comments by mailing the information AGENCY: Department of the Army; U.S. for future environmental restoration within thirty (30) days to Mr. Ronald Army Corps of Engineers, DOD studies. Essentially, conceptual Lockmann. Requests to be placed on the ACTION: Notice of intent. alternatives would consist of a number mailing list for announcements and the of potential combinations of restoration draft EIS also should be sent to Mr. SUMMARY: The U.S. Corps of Engineers sites operating in conjunction with one Lockmann. (Corps) intends to prepare an another * * * Total land area of Environmental Impact Statement/ alternative sites combined would be Brenda S. Bowen Environmental impact Report (EIS/EIR) several hundred acres.’’ Army Federal Register Liaison Officer. for the Sun Valley Environmental Sites would likely include one or [FR Doc. 07–1744 Filed 4–6–07; 8:45 am] Restoration Plan. The study area is more of the three major gravel extraction BILLING CODE 3710–KF–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17524 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

DEPARTMENT OF DEFENSE comments can also be faxed to (415) extra storage capacity is needed for 503–6692. current demands and would not result Department of the Army; Corps of SUPPLEMENTARY INFORMATION: Coyote in an excess storage of water, which Engineers Dam is located on the East Fork of the would unnecessarily flood recreational Intent To Prepare a Joint Russian River, Ukiah, CA, and is part of areas and access roads situated at Environmental Impact Statement/ a system that provides water to elevation 750. Environmental Impact Report for the Mendocino, Sonoma, and Marin c. Dredging. Of the original 122,400 Coyote Dam Study counties. The Congressional ac-ft storage capacity, 4,400 ac-ft was authorization for construction of Coyote allocated for sedimentation, but the AGENCY: Department of the Army, U.S. Dam included provisions for increase in capacity of Lake Mendocino has since Army Corps of Engineers, DoD. water storage capacity by raising the decreased to 116,470 ac-ft. The rate of ACTION: Notice of intent. dam an additional 36 feet, thereby sedimentation is higher than the increasing the total storage capacity SUMMARY: In accordance with Section from 122,500 ac-ft to 199,000 ac-ft. The estimate provided by the original 204 of the 1950 Flood Control Act (Pub. dam was designed to be built in two sediment study. This alternative would L. 516, 81st Congress, 2nd Session), as stages: the initial stage was completed increase storage capacity by dredging recommended by the Chief of Engineers in 1959, and the second stage would be sediment from the reservoir. Dredging is in House Document Number 585, 81st built when water storage capacity not expected to affect current reservoir Congress, 2nd Session, the Coyote Dam became inadequate. The growth of operations. (also known as the ‘‘Lake Mendocino Mendocino County has contributed to 3. Scoping Process. The Corps is Project’’), Ukiah, CA, is authorized to be an expanded need for water in order to seeking participation of all interested raised 36 feet to a total storage capacity meet future demands. In addition, the federal, state, and local agencies, Native of 199,000 acre-feet (ac-ft) when the accelerated rate of sedimentation in American groups, and other concerned need for additional water supply arises. Lake Mendocino further impacts the Since construction of Coyote Dam, private organizations or individuals storage capacity of the dam by through this public notice. The public increased development of Mendocino encroaching on the water supply pool. County and the accelerated rate of scoping meeting will be held in Ukiah, The goal of the project is to provide CA (see DATES). Any changes to the date, sedimentation in Lake Mendocino have increased water storage capacity and resulted in the need for additional water time, or location will be published in increased flood damage reduction the newspaper or provided by mail to supply. The additional storage capacity benefits to the area. the local sponsor for those requesting information. The achieved by raising the dam would the project is the Mendocino County purpose of the meeting is to solicit address future demands on water Inland Water and Power Commission supply and also increase flood damage (IWPC), a Joint Powers Authority comments and questions regarding the reduction functions. This is a notice of representing the County of Mendocino, potential impacts, environmental issues, intent to prepare a joint environmental the City of Ukiah, Mendocino County and alternatives associated with the Impact Statement/Environmental Russian River Flood Control and Water proposed action. Public participation Impact Report (EIS/EIR), and to consider Conservation Improvement District, will help to define the scope of the all reasonable alternatives, evaluate Redwood Valley County Water District, environmental analysis in the EIS/EIR; potential impacts of the proposed and the Potter Valley Irrigation District. identify other significant issues; provide action, and identify appropriate 1. Proposed Action. Based on the need other relevant information; and mitigation measures. The U.S. Army for additional water supply and flood recommend mitigation measures. The Corps of Engineers (Corps) is the lead damage reduction benefits, it is public comment period closes on May agency for this project under the determined that increased water storage 10, 2007. National Environmental Policy Act capacity at Coyote Dam should be (NEPA), and the Mendocino County 4. Availability of EIS. The public will evaluated. have an additional opportunity to Inland Water and Power Commission 2. Project Alternatives. The following (IWPC) is the lead agency and local comment on project alternatives once are some of the alternatives that will be the draft EIS/EIR is released. sponsor under the California evaluated in the EIS/EIR: environmental quality Act (CEQA). a. Raise the dam. Following the Brenda S. Bowen, DATES: A public scoping meeting will be original plans of the authorized project, Army Federal Register Liaison Officer. held on April 26, 2007 from 7 p.m. to the dam would be raised 36 feet to an [FR Doc. 07–1742 Filed 4–6–07; 8:45 am] 9 p.m. elevation of 820 feet, increasing the BILLING CODE 3710–19–M ADDRESSES: The scoping meeting will be storage capacity from 122,400 ac-ft to held at the Ukiah Valley Conference 199,000 ac-ft. Some provisions were Center, Cabernet Room 1, 200 South made on various features of the existing School Street, Ukiah, CA 95482. dam to accommodate the future height FOR FURTHER INFORMATION CONTACT: increase. Questions about the proposed action b. Increase seasonal water supply can be answered by Karen Mason at storage elevation. Utilizing the existing (415) 503–6851, dam and reservoir area, the water [email protected]; Susan surface elevation of the flood control Ma at (415) 503–6838, pool would be raised from 748.0 to [email protected]; or by Chris 761.8 for seasonal use between April 1 Eng at (415) 503–6868, and October 15. This would provide an [email protected], U.S. additional 25,700 ac-ft of storage. Army Corps of Engineers, San Francisco Although the Corps has authority over District, 1455 Market Street, 15th Floor, the flood control pool, the Mendocino San Francisco, CA 94103. Questions and County IWPC must demonstrate that the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17525

DEPARTMENT OF DEFENSE Wicker, Regulatory Division, telephone: Holly Springs to remove the Town’s (910) 251–4930. wastewater discharge from Utley Creek Department of the Army; Corps of SUPPLEMENTARY INFORMATION: The due to nutrient enrichment issues in Engineers proposed project consists of regional Utley Creek and downstream in Harris Lake. In addition, NCDENR has Intent To Prepare a Draft wastewater pumping, conveyance, treatment, and discharge facilities to encouraged Holly Springs to participate Environmental Impact Statement with Apex, Cary and Morrisville on a (DEIS) for the Construction of Western serve the Towns of Apex, Cary, Holly Springs and Morrisville, as well as the regional wastewater management Wake Regional Wastewater program that will allow Holly Springs to Management Facilities, Regional Wake County portion of Research Triangle Park (service area), NC. The remove the Town’s discharge from Utley Wastewater Pumping, Conveyance, Creek by January 1, 2011. Thus, Holly Treatment, and Discharge Facilities To purpose of the project is to provide wastewater service for planned growth Springs is participating with Apex, Cary Serve the Towns of Apex, Cary, Holly and Morrisville in the planning, Springs and Morrisville, as well as the and development in the project service area and to comply with two regulatory permitting, design and construction of Wake County Portion of Research regional effluent disposal facilities in Triangle Park (Service Area), NC mandates. One regulatory mandate has been issued by the North Carolina order to comply with the mandate AGENCY: Department of the Army, U.S. Environmental Management issued by NCDENR to remove its Army Corps of the Engineers, DoD. Commission (EMC), and the second discharge from Utley Creek. The ACTION: Notice of intent. regulatory mandate has been issued by regional effluent disposal facilities that the North Carolina Department of will be described and evaluated in the SUMMARY: The U.S. Army Corps of Environment and Natural Resources (NC DEIS are needed to comply with the Engineers (COE), Wilmington District, DENR). In accordance with the two NCDENR mandate. Wilmington Regulatory Division has regulatory mandates, the proposed The proposed project will need to be received a request for Department of the Project must be operational and reviewed to address a number of issues Army authorization, pursuant to Section discharging effluent to the Cape January which includes an alternative analyses, 404 of the Clean Water Act, from 1, 2011. direct environmental impacts, Western Wake Partners to construct Regulatory Mandate No. 1—Interbasin secondary and cumulative Western Wake Regional Wastewater Transfer: The Towns of Apex, Cary, and environmental impacts, environmental Management Facilities. This project will Morrisville, as well as Research Triangle justice concerns, endangered species, be a regional wastewater pumping, Park (RTP) South, obtain their drinking and potential project costs. conveyance, treatment, and discharge water from Jordan Lake in the Cape Fear Alternative Analysis: The purpose of project to serve the Towns of Apex, River Basis and discharge treated the alternative analyses is to present a Cary, Holly Springs and Morrisville, as effluent to locations in the Neuse River discussion of the environmental impacts well as the Wake County portion of Basin. Obtaining water from one basin associated with a reasonable number of Research Triangle Park (service area), and discharging it to another river basin alternatives. The proposed Project and a NC. is referred to as an interbasin transfer reasonable number of alternatives will The project is being proposed by the (IBT), which requires a permit from the be evaluated and compared in the DEIS. Western Wake Partners to provide EMC. In July 2001, the EMC granted the The factors to be considered will be wastewater service for planned growth Towns of Apex, Cary, and Morrisville, similar for each of the alternatives. and development in the project service as well as Wake County (on behalf of Impacts are expected to differ primarily area and to comply with two regulatory RTP South), an IBT certificate to in the degree to which specific factors mandates. One regulatory mandate has withdraw water from the Cape Fear may be affected. been issued by the North Carolina River Basin and discharge the water to The alternative analysis will evaluate Environmental Management the Neuse River Basin. However, as a alternative wastewater management Commission (EMC), and the second condition of approval, the IBT options. Presently eight wastewater regulatory mandate has been issued by certificate issued by the EMC requires management options have been the North Carolina Department of the local governments to return identified to be evaluated in the DEIS. Environment and Natural Resources (NC reclaimed water to the Cape Fear River These eight wastewater management DENR). In accordance with the two Basin by January 1, 2011. As a result, alternatives include the following: (1) No Action; regulatory mandates, the proposed the local governments have initiated (2) Regional System with Cape Fear Project must be operational and activities to plan, permit, design, and River Discharge; discharging effluent to the Cape Fear construct wastewater transmission, River Basin by January 1, 2011. (3) Regional System with Jordan Lake treatment, and disposal facilities in Discharge; DATES: A public scoping meeting for the order to comply with the terms and DEIS will be held at 6 p.m. at the Town (4) Independent Systems; conditions of the IBT certificate issued (5) Purchasing Capacity from Other of Apex Town Hall, April 19, 2007. by the EMC. The facilities that will be Systems; Written comments will be received until described and evaluated in the (6) Optimum Operation of Existing April 30, 2007. environmental impact statement (DEIS) Facilities; ADDRESSES: Copies of comments and are needed to comply with the IBT (7) Regional Land Application questions regarding scoping of the Draft certificate terms and conditions. System; EIS may be addressed to: U.S. Army Regulatory Mandate No. 2—Nutrient (8) Water Reuse System. Corps of Engineers, Wilmington District, Enrichment for Harris Lake: The Town Alternative Discharge Locations: Four Regulatory Division. ATTN: File of Holly Springs currently has a alternative discharge locations have Number SAW–200520159–1, P.O. Box wastewater treatment plant (WWTP) been identified to be evaluated in the 1890, Wilmington, NC 28402–1890. that discharges to Utley Creek, which is DEIS. These four alternative discharge FOR FURTHER INFORMATION CONTACT: a tributary to Harris Lake in the Cape locations include the following: Questions about the proposed action Fear River Basin. Representatives from (1) Cape Fear River below Buckhorn and DEIS can be directed to Mr. Henry NCDENR have directed the Town of Dam;

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17526 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

(2) New Hope Arm of Jordan Lake data and mapping will be used to appropriate scope and preparation of (above Jordan Lake Dam and below US evaluate and quantify secondary and the DEIS. Participation in the public 64); cumulative impacts of the proposed meeting by federal, state, and local (3) Cape Fear River/Haw River above Project to stream and wetland resources. agencies and other interested Buckhorn Dam; Environmental Justice: In accordance organizations and persons is (4) Harris Lake/Utley Creek. with Executive Order 12898, the DEIS encouraged. The Corps will also be Alternative Water Reclamation will include an evaluation of the consulting with the U.S. Fish and Facility Sites: Preliminary investigations proposed Project’s impact on minority Wildlife Service under the Endangered identified 30 potential locations for the and low-income populations. US Species Act and the Fish and Wildlife Water Reclamation Facility (WRF). The Census Bureau data and GIS mapping coordination Act. Additionally, the DEIS will analyze all 30 potential will be used to determine the existence DEIS will assess the potential water locations to identify the impacts and use of all minority and low-income quality impacts pursuant to Section 401 the information to make an appropriate populations in the Projects service area of the Clean Water Act. The corps will site selection. and in the affected area for the preferred work closely with the NC DENR to Alternative Raw Wastewater Pumping WRF site. ensure the process complies with all and Conveyance; Alternative raw Endangered Species: A biological State Environmental Policy Act (SEPA) wastewater pump station sites and force assessment will be included as an requirements. It is the Corps and main routes will be evaluated in the appendix to the document for the NCDENR’s intentions to consolidate DEIS for the preferred WRF site and preferred alternative in accordance with both NEPA and SEPA processes to discharge location. the Endangered Species Act. eliminate duplications. Alternative Effluent Pumping and Project Costs: Project costs will be Availability of the DEIS: The DEIS is Conveyance: The effluent pump station evaluated based on a 20 year present- expected to be published and circulated will be located at the WRF site; worth costs and Phase 1 capital costs. sometime in early 2008, and a public therefore, selection of an effluent pump 20-year present-worth costs allow for a hearing will be held after the station site is inherent in the WRF site direct comparison of long-term cost- publication of the DEIS. selection process. Alternative effluent effectiveness, and Phase 1 capital costs force main routes will be evaluated in allow for a direct comparison of short- Patrick E. Tilque, the DEIS for the preferred WRF site and term capital requirements which have LTC U.S. Army, Deputy District Commander. discharge location. an immediate impact on sewer rates, [FR Doc. 07–1741 Filed 4–6–07; 8:45 am] Alternative Outfall Configurations at fees, and charges. Mitigation costs for BILLING CODE 3710–GN–M Cape Fear River: The DEIS will include direct impacts to streams and wetlands evaluation of two configuration for the will be estimated based on the outfall structure. The alternatives to be Ecosystem Enhancement Program’s DEPARTMENT OF EDUCATION evaluated include (a) bank discharge schedule of fees. structure, and (b) instream diffuser. NEPA/SEPA Preparation and Notice of Proposed Information Direct Environmental Impacts: The Permitting: Because the proposed Collection Requests DEIS will identify and discuss the direct Western Wake Regional Wastewater AGENCY: Department of Education. impacts of the proposed Project and Management Facilities Project requires feasible alternatives on topography, approvals from federal and state SUMMARY: The IC Clearance Official, floodplains, soils, land use, wetlands, agencies under both the National Regulatory Information Management prime farmlands, public lands, historic Environmental Policy Act (NEPA) and Services, Office of Management, invites and archaeological resources, air the State Environmental Policy Act comments on the proposed information quality, noise, water resources, forest (SEPA), a joint Federal and State collection requests as required by the resources, shellfish and fish, wildlife Environmental Document will be Paperwork Reduction Act of 1995. and natural vegetation, the introduction prepared. The US Army Corps of DATES: Interested persons are invited to of toxic substances, shore erosion and Engineers will serve as the lead agency submit comments on or before June 8, accretion, energy needs, safety, food and for the Federal process. 2007. fiber production, mineral needs, and Based on the size and complexity of SUPPLEMENTARY INFORMATION: Section property ownership. Geographic the proposed Project, the applicant has 3506 of the Paperwork Reduction Act of Information System (GIS) data and been encouraged by US Army Corps of 1995 (44 U.S.C. Chapter 35) requires mapping will be used to evaluate direct Engineers and NCDENR staff to identify that the Office of Management and environmental impacts of the proposed and address the environmental impacts Budget (OMB) provide interested Project and alternatives. of the proposed Project through the Federal agencies and the public an early Secondary and Cumulative DEIS process. Within the DEIS, the opportunity to comment on information Environmental Impacts: The Western applicant will conduct a thorough collection requests. OMB may amend or Wake Partners have developed environmental review, including an waive the requirement for public Secondary and Cumulative Impacts evaluation of reasonable, feasible, and consultation to the extent that public Master Mitigation Plans to address financially responsible alternatives. participation in the approval process secondary and cumulative impacts that After review of the DEIS and final EIS, would defeat the purpose of the are expected to result from the Western a Record of Decision (ROD) will be information collection, violate State or Wake Regional Wastewater Management issued for the EIS document. The ROD Federal law, or substantially interfere Facilities project as well as other will document the completion of the EIS with any agency’s ability to perform its infrastructure projects that will be and serve as a basis for further statutory obligations. The IC Clearance implemented in the Partners’ permitting decisions by federal and state Official, Regulatory Information jurisdictions in the future. Additional agencies. Management Services, Office of secondary and cumulative impacts will Scoping Process: A public scoping Management, publishes that notice be addressed in the DEIS as meeting (see DATES) will be held to containing proposed information recommended by the United States receive public comment and assess collection requests prior to submission Army Corps of Engineers (USACE). GIS public concerns regarding the of these requests to OMB. Each

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17527

proposed information collection, Potomac Center, 9th Floor, Washington, Official, Regulatory Information grouped by office, contains the DC 20202–4700. Requests may also be Management Services, Office of following: (1) Type of review requested, electronically mailed to Management, publishes that notice e.g. new, revision, extension, existing or [email protected] or faxed to 202– containing proposed information reinstatement; (2) Title; (3) Summary of 245–6623. Please specify the complete collection requests prior to submission the collection; (4) Description of the title of the information collection when of these requests to OMB. Each need for, and proposed use of, the making your request. proposed information collection, information; (5) Respondents and Comments regarding burden and/or grouped by office, contains the frequency of collection; and (6) the collection activity requirements following: (1) Type of review requested, Reporting and/or Recordkeeping should be electronically mailed to e.g. new, revision, extension, existing or burden. OMB invites public comment. [email protected]. Individuals who reinstatement; (2) Title; (3) Summary of The Department of Education is use a telecommunications device for the the collection; (4) Description of the especially interested in public comment deaf (TDD) may call the Federal need for, and proposed use of, the addressing the following issues: (1) Is Information Relay Service (FIRS) at 1– information; (5) Respondents and this collection necessary to the proper 800–877–8339. frequency of collection; and (6) functions of the Department; (2) will [FR Doc. E7–6617 Filed 4–6–07; 8:45 am] Reporting and/or Recordkeeping burden. OMB invites public comment. this information be processed and used BILLING CODE 4000–01–P in a timely manner; (3) is the estimate Dated: April 3, 2007. of burden accurate; (4) how might the Angela C. Arrington, Department enhance the quality, utility, DEPARTMENT OF EDUCATION IC Clearance Official, Regulatory Information and clarity of the information to be Management Services, Office of Management. collected; and (5) how might the Submission for OMB Review; Department minimize the burden of this Comment Request Office of the Chief Information Officer collection on the respondents, including Type of Review: Extension. AGENCY: Department of Education. through the use of information Title: Education Resource technology. SUMMARY: The IC Clearance Official, Organizations Directory (EROD). Regulatory Information Management Frequency: On Occasion; Annually. Dated: April 3, 2007. Services, Office of Management invites Affected Public: State, Local, or Tribal Angela C. Arrington, comments on the submission for OMB Gov’t, SEAs or LEAs; Businesses or IC Clearance Official Regulatory Information review as required by the Paperwork other for-profit; Not-for-profit Management Services Office of Management. Reduction Act of 1995. institutions. Institute of Education Sciences DATES: Interested persons are invited to Reporting and Recordkeeping Hour submit comments on or before May 9, Burden: Type of Review: New. 2007. Responses: 3,088. Title: An Investigation of the Impact Burden Hours: 677. of a Traits-Based Writing Model on ADDRESSES: Written comments should Abstract: The Education Resource Student Achievement. be addressed to the Office of Organizations Directory (EROD) is an Frequency: Semi-Annually; three Information and Regulatory Affairs, electronic directory of educational times per year. Attention: Education Desk Officer, resource organizations and services Affected Public: State, Local, or Tribal Office of Management and Budget, 725 available at the State, regional, and Gov’t, SEAs or LEAs; Individuals or 17th Street, NW., Room 10222, national level. The goal of this directory household. Washington, DC 20503. Commenters are is to help individuals and organizations Reporting and Recordkeeping Hour encouraged to submit responses identify and contact organizational Burden: electronically by e-mail to sources of information and assistance on _ Responses: 3,392. oira [email protected] or via fax a broad range of education-related Burden Hours: 7,072. to (202) 395–6974. Commenters should topics. Users of the directory include Abstract: This study is designed to include the following subject line in diverse groups such as teachers, test the effectiveness of an analytical their response ‘‘Comment: [insert OMB librarians, students, researchers, and trait-based model for teaching and number], [insert abbreviated collection parents. assessing student writing, called 6+1 name, e.g., ‘‘Upward Bound Requests for copies of the information Trait(r) Writing, by examining its impact Evaluation’’]. Persons submitting collection submission for OMB review on the writing achievement of 5th comments electronically should not may be accessed from http:// graders. The model is designed to submit paper copies. edicsweb.ed.gov, by selecting the improve student writing through an SUPPLEMENTARY INFORMATION: Section ‘‘Browse Pending Collections’’ link and integrated approach to teaching and 3506 of the Paperwork Reduction Act of by clicking on link number 3274. When assessing writing skills, and it 1995 (44 U.S.C. Chapter 35) requires you access the information collection, incorporates ten instructional strategies that the Office of Management and click on ‘‘Download Attachments ‘‘ to to develop the specific traits of writing. Budget (OMB) provide interested view. Written requests for information Requests for copies of the proposed Federal agencies and the public an early should be addressed to U.S. Department information collection request may be opportunity to comment on information of Education, 400 Maryland Avenue, accessed from http://edicsweb.ed.gov, collection requests. OMB may amend or SW., Potomac Center, 9th Floor, by selecting the ‘‘Browse Pending waive the requirement for public Washington, DC 20202–4700. Requests Collections’’ link and by clicking on consultation to the extent that public may also be electronically mailed to link number 3299. When you access the participation in the approval process [email protected] or faxed to 202– information collection, click on would defeat the purpose of the 245–6623. Please specify the complete ‘‘Download Attachments’’ to view. information collection, violate State or title of the information collection when Written requests for information should Federal law, or substantially interfere making your request. be addressed to U.S. Department of with any agency’s ability to perform its Comments regarding burden and/or Education, 400 Maryland Avenue, SW., statutory obligations. The IC Clearance the collection activity requirements

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17528 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

should be electronically mailed to 9507; E-mail: reports from manufacturers. With [email protected]. Individuals who [email protected]. respect to test procedures, both parts use a telecommunications device for the SUPPLEMENTARY INFORMATION: In generally authorize the Secretary of deaf (TDD) may call the Federal accordance with Title 10, Code of Energy to prescribe test procedures that Information Relay Service (FIRS) at Federal Regulations Parts 430.27(l) and are reasonably designed to produce 1–800–877–8339. 431.401(f)(4), notice is hereby given of results which reflect energy efficiency, energy use and estimated operating [FR Doc. E7–6618 Filed 4–6–07; 8:45 am] the issuance of a Decision and Order costs, and that are not unduly BILLING CODE 4000–01–P granting MEUS a Waiver from the applicable Department of Energy burdensome to conduct. (42 U.S.C. residential and commercial package air 6293(b)(3), 6314(a)(2)) The test procedure for residential conditioner and heat pump test DEPARTMENT OF ENERGY central air conditioning and heat pump procedures for its R410A CITY MULTI products is contained in 10 CFR Part Variable Refrigerant Flow Zoning Office of Energy Efficiency and 430, Subpart B, Appendix M. For Renewable Energy (‘‘VRFZ’’) products, subject to a commercial package air conditioning condition requiring MEUS to test and and heating equipment, EPCA provides [Docket No. EERE–2006–WAV–0147] rate its R410A CITY MULTI products that the test procedures shall be those pursuant to the alternate test procedure generally accepted industry testing or Energy Conservation Program for described in this notice. Today’s rating procedures developed or Consumer Products: Decision and decision requires that any recognized by the Air-Conditioning and Order Granting a Waiver From the representations concerning the energy Refrigeration Institute (‘‘ARI’’) or by the Department of Energy (DOE) efficiency of these products are made American Society of Heating, Residential and Commercial Package consistent with the provisions and Refrigerating and Air Conditioning Air Conditioner and Heat Pump Test restrictions in the alternate test Engineers (‘‘ASHRAE’’), as referenced in Procedures to Mitsubishi Electric, and procedure. ASHRAE/IES Standard 90.1 and in Modification of a 2004 Waiver Granted The waiver granted for MEUS’s R22 effect on June 30, 1992. (42 U.S.C. to Mitsubishi Electric From the Same CITY MULTI VRFZ products on August 6314(a)(4)(A)) This section also provides DOE Test Procedures (Case No. CAC– 27, 2004, is hereby amended to prohibit for the Secretary of Energy to amend the 012) MEUS from making energy efficiency test procedure for a product if the representations regarding its R22 CITY AGENCY: Office of Energy Efficiency and industry test procedure is amended, MULTI products unless such unless the Secretary determines that Renewable Energy, Department of representations are made consistent Energy. such a modified test procedure does not with the provisions set forth in the meet the statutory criteria. (42 U.S.C. ACTION: Decision and Order. alternate test procedure described in 6314(a)(4)(B)) this notice. SUMMARY: Today’s notice publishes a On December 8, 2006, DOE published Decision and Order (Case No. CAC–012) Issued in Washington, DC, on April 2, a final rule adopting test procedures for granting a Waiver to Mitsubishi Electric 2007. commercial package air conditioning and Electronics USA, Inc. (‘‘MEUS’’) Alexander A. Karsner, and heating equipment, effective from the existing Department of Energy Assistant Secretary, Energy Efficiency and January 8, 2007. 71 FR 71340. DOE (DOE) residential and commercial Renewable Energy. adopted ARI Standard 210/240–2003 for commercial package air conditioning package air conditioner and heat pump Decision and Order test procedures for specified R410A and heating equipment with capacities CITY MULTI products. MEUS shall be In the Matter of: Mitsubishi Electric <65,000 Btu/h and ARI Standard 340/ required to test and rate the R410A and Electronics USA, Inc. (‘‘MEUS’’) 360–2004 for commercial package air CITY MULTI VRFZ products according (Case No. CAC–012). conditioning and heating equipment with capacities ≥65,000 Btu/h and to the alternate test procedure set forth Background in this notice. DOE is also amending the <240,000 Btu/h. Id. at 71371. The[MR1] Title III of the Energy Policy and waiver granted to MEUS for its R22 capacities of MEUS’s CITY MULTI Conservation Act (‘‘EPCA’’) sets forth a CITY MULTI products in August 2004 VRFZ products fall in the ranges variety of provisions concerning energy to explicitly prohibit MEUS from covered by ARI Standard 340/360–2004 efficiency. Part B of Title III (42 U.S.C. making energy efficiency and the DOE test procedure for 6291–6309) provides for the ‘‘Energy representations regarding these products residential products referred to above. Conservation Program for Consumer DOE’s regulations contain provisions unless such representations are Products other than Automobiles.’’ Part allowing a person to seek a waiver from consistent with the alternate test C of Title III (42 U.S.C. 6311–6317) the test procedure requirements for procedure. provides for an energy efficiency covered consumer products. These FOR FURTHER INFORMATION CONTACT: Dr. program entitled ‘‘Certain Industrial provisions are set forth in 10 CFR Michael G. Raymond, U.S. Department Equipment,’’ which is similar to the 430.27. The waiver provisions for of Energy, Building Technologies program in Part B, and which includes commercial equipment are substantively Program, Mailstop EE–2J, Forrestal commercial air conditioning equipment, identical to those for covered consumer Building, 1000 Independence Avenue, packaged boilers, water heaters, and products and are found at 10 CFR SW., Washington, DC 20585–0121. other types of commercial equipment. 431.401. Telephone: (202) 586–9611, E-mail: Today’s notice involves residential The waiver provisions allow the [email protected]; or products under Part B, and commercial Assistant Secretary for Energy Efficiency Francine Pinto, Esq., U.S. Department of equipment under Part C. Both parts and Renewable Energy (‘‘Assistant Energy, Office of General Counsel, Mail specifically provide for definitions, test Secretary’’) to temporarily waive test Stop GC–72, Forrestal Building, 1000 procedures, labeling provisions, energy procedures for a particular basic model Independence Avenue, SW., conservation standards, and the when a petitioner shows that the basic Washington, DC 20585–0103, (202) 586– authority to require information and model contains one or more design

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17529

characteristics that prevent testing the Application for Interim Waiver.2 the new R410A refrigerant, MEUS according to the prescribed test DOE also published for comment an requested a waiver from the test procedures, or when the prescribed test alternate test procedure for MEUS. DOE procedures for its new CITY MULTI procedures may evaluate the basic stated that if it specified an alternate test models. The MEUS petition requested model in a manner so unrepresentative procedure for MEUS in the subsequent that DOE grant a waiver from existing of its true energy consumption as to Decision and Order, DOE would test procedures until such time as a provide materially inaccurate consider applying the procedure to representative test procedure is comparative data. 10 CFR 430.27(a)(1), similar waivers for residential and developed and adopted for this class of 10 CFR 431.401(a)(1). commercial central air conditioners and products. MEUS did not include an The Assistant Secretary may grant the heat pumps, including such waivers alternate test procedure in its petition waiver subject to conditions, including that previously have been granted.3 DOE and noted that it knows of no test adherence to alternate test procedures. solicited comments, data, and procedure that could evaluate its 10 CFR 430.27 (l), 10 CFR 431.401 (f)(4). information respecting the petition and products in a representative manner. Petitioners are to include in their the proposed alternate test procedure. However, MEUS is actively working petition any alternate test procedures DOE received written comments from with ARI to develop test procedures that known to evaluate the basic model in a seven companies—Rheem Heating and accurately reflect the operation and manner representative of its energy Cooling, Lennox International Inc., energy consumption of these types of consumption. 10 CFR 430.27(b)(1)(iii), Daikin AC (Americas), Inc, Samsung units. 10 CFR 431.401(b)(1)(iii). Waivers and Quietside, Sanyo Fisher Company, MEUS’s petition presented several generally remain in effect until final test United Mechanical and MEUS—in arguments in support of its claim. procedure amendments resolving the response to the March 24th Notice. Only MEUS stated that the design problem that is the subject of the waiver one commenter expressed opposition to characteristics of the R410A CITY become effective. the MEUS petition.4 Additionally, most MULTI VRFZ systems prevent testing The waiver process also allows the of the commenters responded favorably according to the currently prescribed Assistant Secretary to grant an Interim to DOE’s proposed alternate test test procedures for the same reasons that Waiver from test procedure procedure.5 Commenters generally its R22 models were previously granted requirements to manufacturers that have agreed that an alternate test procedure is a waiver. The R410A CITY MULTI petitioned DOE for a waiver of such necessary while a final test procedure systems, like the R22 models, can prescribed test procedures. 10 CFR for these types of products is being connect more indoor units than the test 430.27(a)(2), 10 CFR 431.401(a)(2). An developed.6 laboratories can physically test at one time. Because of the inability to test Interim Waiver remains in effect for a Assertions and Determinations period of 180 days or until DOE issues products with so many indoor units, its determination on the Petition for MEUS’s Petition for Waiver testing laboratories will not be able to Waiver, whichever is sooner, and may DOE previously granted MEUS a test many of the R410A system be extended for an additional 180 days, waiver from test procedures in 2004 for combinations. Furthermore, MEUS if necessary. 10 CFR 430.27(h), 10 CFR similar CITY MULTI VRFZ models asserted that the current DOE test 431.401(e)(4). which use R22 as a refrigerant.7 Given procedures do not provide direction for On November 7, 2005, MEUS filed an product adjustments to accommodate determining what combinations of Application for Interim Waiver and outdoor and indoor units should be Petition for Waiver from the test 2 Energy Conservation Program for Consumer tested in the circumstance where a procedures applicable to the R410A Products: Publication of the Petition for Waiver and multitude of different combinations are models of its CITY MULTI VRFZ line of Granting of the Application for Interim Waiver of possible. Also, the test procedures Mitsubishi Electric From the DOE Residential and provide no mechanism for sampling residential and commercial package air Commercial Package Air Conditioner and Heat conditioning and heating equipment. Pump Test Procedures (Case No. CAC–012), 71 FR component combinations. In addition, MEUS’s petition requested a waiver 14858 (March 24, 2006) (hereinafter, March 24th MEUS asserted that it is not practical to from both the residential and Notice). On April 11, 2006, MEUS submitted a test all of the potentially available Corrected Petition for Waiver of Test Procedure and combinations of indoor and outdoor commercial test procedures. In Application for Interim Waiver (‘‘Corrected particular, MEUS requested a waiver Petition’’) to DOE. The Corrected Petition noted five units, which could number in the from the residential test procedures minor errors in the list of model numbers for which billions. contained in 10 CFR Part 430, subpart the waiver and the interim waiver had been MEUS stated that the R410A CITY requested. MEUS requested that the interim waiver MULTI system is designed to be B, Appendix M, and a waiver from the granted apply to the corrected list of model commercial test procedures contained numbers, and that DOE use the corrected list of flexible, with numerous combinations in ARI Standard 210/240–2003 and in model numbers in any future actions regarding the possible. According to MEUS, each of ARI Standard 340/360–2000.1 MEUS Petition for Test Procedure Waiver. In a letter dated the 108,000 Btu/h rated outdoor units is June 1, 2006, DOE granted MEUS’s request. designed to be connected with up to 18 seeks a waiver from the applicable test 3 March 24th Notice, 71 FR 14861. indoor units, while each of the 234,000 procedures because the design 4 The only commenter that objected to MEUS’s Btu/h rated outdoor units can be characteristics of the R410A systems Petition was Lennox International Inc. prevent testing according to the 5 See Comments submitted by Sanyo Fisher configured with up to 32 indoor units. currently prescribed test procedures. Company, Samsung and Quietside, United MEUS offers 58 different indoor models On March 24, 2006, DOE published Mechanical, Daikin AC (Americas), Inc., and Rheem that can be used in the different Heating and Cooling. combinations. Given the above, MEUS MEUS’s Petition for Waiver and granted 6 See Comments submitted by MEUS, Sanyo asserts the current test procedures Fisher Company, Samsung and Quietside, Daikin 1 In its petition, MEUS also requested a waiver AC (Americas), Inc., and Rheem Heating and cannot practically be applied to the from ARI Standard 210/240–2003. Based on a Cooling. CITY MULTI VRFZ systems. review of the products listed by MEUS in its 7 Energy Conservation Program for Consumer MEUS claims that many of the petition, DOE has determined that none of the Products: Decision and Order Granting a Waiver benefits of its systems’ characteristics, products have the combined features (i.e., 3-phase From the DOE Commercial Package Air Conditioner power and rated capacity less than 65,000 Btu/h) and Heat Pump Test Procedure to Mitsubishi including variable refrigerant control that would require a waiver from ARI Standard 210/ Electric (Case No. CAC–008), 69 FR 52660, at 52662 and distribution, zoning diversity, part- 240–2003. (Aug. 27, 2004) (hereinafter, ‘‘2004 Waiver’’). load operation and simultaneous

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17530 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

heating and cooling, are not credited covered by EPCA. (42 U.S.C. 6293(c), 42 which disadvantages these products under the current test procedures. For U.S.C. 6314(d)). The ability of a because they are optimized for best residential systems, there are some manufacturer to make representations efficiency when operating with less than deficiencies in the current DOE test about the energy efficiency of its full loads. In fact, these products methods and calculation algorithms products is important, for instance, to normally operate at part-load when applied to multi-split systems. determine compliance with state and conditions. Therefore, as explained in With regard to commercial systems, local energy codes and regulatory the March 24th Notice, the alternate test MEUS asserts that the current test requirements. Energy efficiency procedure will provide a conservative procedure for the energy efficiency ratio representations also provide valuable basis for assessing the energy efficiency (‘‘EER’’) does not capture the energy consumer purchasing information. for such products.10 savings of VRFZ products. The same Therefore, to provide a basis from which The alternate test procedure applies to issue was raised by MEUS in its petition manufacturers covered by a test both residential and commercial multi- for waiver for its R22 CITY MULTI procedure waiver for VRFZ products split products. However, some products. As DOE stated in the waiver can make valid energy efficiency provisions are specific to residential or granted in August 2004, ‘‘while this representations, DOE proposed an commercial products. Section (A) of the assertion is true, it is irrelevant because alternate test procedure for MEUS in the alternate test procedure has different the full load EER energy efficiency March 24th Notice. provisions for residential and descriptor is one mandated by EPCA for The alternate test procedure has two commercial products. Section (B), these products (42 U.S.C. 6313(a)(1)(c)), basic components. First, it permits which defines the combinations of indoor and outdoor units to test, and and the relevant energy performance is MEUS to designate a ‘‘tested section (C), which sets forth the the peak load efficiency, not the combination’’ for each model of outdoor 8 requirements for making seasonal energy savings.’’ A waiver can unit. The indoor units designated as representations, are the same for both only be granted if a test procedure does part of the tested combination must residential and commercial products. not fairly represent the peak load energy meet specific requirements. For consumption characteristics which EER Section (A) distinguishes between example, the tested combination must residential and commercial products for measures. Therefore, the basis for this have from two to five indoor units so waiver, as was the case for the 2004 two reasons. First, 10 CFR part 430.24, that it can be tested in available test Waiver, is the problem of being used for residential products, already facilities. The tested combination must physically unable to test most of the has requirements for selecting split- be tested according to the applicable complete systems in a laboratory, the system combinations based on the DOE test procedure. Second, it permits regulatory requirement to test the highest sales volume. Part 431 of 10 MEUS to represent the energy efficiency highest-sales-volume combination, and CFR, which applies to commercial for a non-tested combination in two the lack of a method for predicting the products, has no comparable ways. MEUS may represent the energy performance of untested combinations. requirements. Section (A) modifies the Lennox International Inc. argued that efficiency of a non-tested combination: residential and commercial CFR waivers for VRFZ systems should not be (1) At an energy efficiency level requirements so that both residential granted because the existing DOE test determined under a DOE-approved and commercial products can use the procedures are available to rate these alternative rating method; or, if method same definition of a ‘‘tested systems. DOE agrees that the existing (1) Is not available, (2) at the efficiency combination,’’ which definition is set test procedures can be used, but only level of the tested combination utilizing forth in section (B). Second, section (A) after clarifications are made and the same outdoor unit. Until an requires several test procedure revisions deficiencies are addressed. alternative rating method is developed, to determine the SEER and HSPF for the In August 2004, DOE granted a all combinations with a particular tested combination of residential Petition for Waiver to MEUS relating to outdoor unit may use the rating of the products. No test procedure revisions its R22 CITY MULTI VRFZ products, combination tested with that outdoor are introduced for commercial products. finding that ‘‘the basic model contains unit. DOE believes that allowing MEUS [P3] The changes for residential one or more design characteristics to make energy efficiency products relate to: (1) The requirement which * * * prevent testing of the basic representations for non-tested that all indoor units operate during all model according to the prescribed test combinations as described above is tests, (2) the restriction on using only procedures.’’ 9 MEUS’s November 2005 reasonable because the outdoor unit is one indoor test room, (3) the selection Petition for Waiver for its R410A CITY the principal efficiency driver. The of the modulation levels (maximum, MULTI VRFZ products presents current test procedure tends to rate minimum, and a specified intermediate virtually the same issues, and thus we these products conservatively. This is speed) used when testing, and (4) the find that waiver of the test procedures because the current test procedure does algorithm for estimating performance is appropriate. To enable MEUS to make not account for the product’s over the intermediate speed operating energy efficiency representations for the simultaneous heating and cooling range. These changes are proposed in a specified CITY MULTI products, DOE capability, which is more efficient than July 20, 2006, DOE notice of proposed adopts the alternate test procedure requiring all zones to be either heated or rulemaking. 71 FR 41320. For today’s described below. cooled. Further, the multi-zoning Decision and Order, the July 20, 2006, feature of these products, which enables proposed changes to test procedure DOE’s Alternate Test Procedure them to cool only those portions of the sections 2.1, 2.2.3, 2.4.1, 3.2.4 As explained in DOE’s March 24th building that require cooling, can use (including Table 6), 3.6.4 (including Notice, manufacturers face restrictions less energy than if the unit is operated Table 12), 4.1.4.2, and 4.2.4.2 constitute with respect to making representations to cool the entire home or a mandatory elements of the alternate test about the energy consumption and comparatively larger area of a procedure. These changes allow indoor energy consumption costs of products commercial building in response to a units to cycle off, allow the single thermostat. Additionally, the manufacturer to specify the compressor 8 69 FR 52662 (Aug. 27, 2004). current test procedure for commercial 9 Ibid. equipment requires full load testing, 10 71 FR 14862 (March 24, 2006).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17531

speed used during certain tests, and alternate test procedure. As explained in B, Appendix M, and[P9] ARI Standard introduce a new algorithm for the March 24th Notice, the alternate test 340/360–2000. After reviewing and estimating power consumption. procedure adopts a conservative considering all of the comments With regard to the laboratory testing approach for rating VRFZ products submitted regarding the proposed of both residential and commercial based on the tested results of a simple alternate test procedure, DOE believes products, some of the difficulties are system configuration. In the proposed that the proposed alternate test avoided by the requirements for alternate test procedure, DOE would procedure, with the clarifications choosing the indoor units to be used in allow manufacturers to make efficiency discussed above, should be adopted. the manufacturer-specified tested representations for non-tested DOE will also consider applying the combination. For example, in addition combinations at the DOE-prescribed same alternate test procedure to similar to limiting the number of indoor units, minimum efficiency level for the waivers for residential and commercial another requirement is that all of the product class only if the tested central air conditioners and heat pumps. indoor units must be subject to meeting combination with the same outdoor unit the same minimum external static met or exceeded the minimum MEUS Waiver for R22 Products pressure. This requirement allows the efficiency level. 71 FR 14862, March 24, In the previous paragraph, DOE stated test lab to manifold the outlets from 2006. DOE is eliminating this option its intention to consider applying the each indoor unit into a common plenum because, as explained below, there is no alternate test procedure to similar that supplies air to a single airflow need for it. waivers. Such a similar waiver was measuring apparatus. This requirement Rheem suggested that third party granted to MEUS for its R22 CITY eliminates situations in which some of testing, or on-site witness testing, is the MULTI VRFZ products on August 27, the indoor units are ducted and some preferred method to verify system 2004 (the ‘‘2004 Waiver’’, see footnote are non-ducted. Without this performance.13 Additionally, Rheem 7). As discussed previously, the R22 requirement, the laboratory must requested that, in order to provide fair products are quite similar to the R410A evaluate the capacity of a subgroup of and equitable test methods and ratings products that are the subject of this indoor coils separately, and then sum to the consumer, the heating test points waiver. Therefore, today’s notice the separate capacities to obtain the and laboratory operating conditions amends the 2004 Waiver to prohibit 14 overall system capacity. This would remain consistent. DOE’s alternate test MEUS from making energy efficiency require that the test lab must be procedure would specify certain representations regarding its R22 CITY equipped with multiple airflow parameters for the testing of VRFZ MULTI products unless such measuring apparatuses (which is products, but would otherwise retain representations are made consistent unlikely), or that the test lab connect its the existing test procedure protocols on with the provisions of the alternate test one airflow measuring apparatus to one issues such as where products are procedure. or more common indoor units until the tested, test points, and laboratory DOE consulted with the Federal Trade contribution of each indoor unit has operating conditions. Thus, in these Commission (‘‘FTC’’) concerning the respects, VRFZ systems would be tested been measured. MEUS petition. The FTC did not have as other products are tested under the DOE stated that if it specified an any objections to the issuance of the alternate test procedure for MEUS, it existing test procedures. Lennox suggested that DOE bar sales waiver to MEUS. Thus, DOE is granting would consider applying the procedure MEUS’s petition. to waivers for similar residential and of non-tested combinations with an commercial central air conditioners and evaporator capacity of less than 95% of Conclusion the nominal outdoor unit capacity heat pumps produced by other After careful consideration of all the manufacturers. Most of the comments unless an approved ARM (alternative rating method) simulation is available to material that was submitted by MEUS, received by DOE favored the proposed the comments received, the review by alternate test procedure. Commenters demonstrate conformance to the minimum efficiency requirement.15 No NIST, and consultation with the FTC, it generally agreed that an alternate test is ordered that: procedure is appropriate for an interim data was provided to justify this (1) The ‘‘Petition for Waiver’’ filed by period while a final test procedure for proposed indoor-to-outdoor sizing Mitsubishi Electric and Electronics these products is being developed.11 limitation and so DOE is inclined not to USA, Inc. (MEUS) (Case No. CAC–012) Sanyo and Daikin raised concerns impose such a regulatory limitation on is hereby granted as set forth in the regarding DOE’s proposal to allow VRFZ configurations at this time. paragraphs below. manufacturers to represent the energy Moreover, DOE expects the efficiency of non-tested combinations at development of an alternative rating (2) MEUS shall not be required to test the DOE-prescribed minimum efficiency method that is applicable to multi-split or rate its R410A CITY MULTI Variable level for the product class. They systems like the MEUS CITY MULTI Refrigerant Flow Zoning (‘‘VRFZ’’) suggested that allowing such ratings products will follow, and not precede, products listed below on the basis of the without testing the product may allow the work by ARI members to develop a currently applicable test procedures, but low efficiency products to be installed multi-split test procedure. shall be required to test and rate such even though equipment that meets or Based on the discussion above, DOE products according to the alternate test exceeds the minimum requirements is believes that the testing problems procedure as set forth in Paragraph 16 available.12 DOE believes these described above do prevent testing of (3): commenters misread the proposed the R410A CITY MULTI basic model CITY MULTI Variable Refrigerant according to the test procedures Flow Zoning System R–2 Series Outdoor 11 See Comments submitted by Sanyo Fisher prescribed in 10 CFR Part 430, Subpart Equipment: Company (Sanyo, No. 7), Samsung and Quietside • PURY–P72TGMU–*, 72,000 Btu/h (Samsung, No. 8), Daikin AC (Americas), Inc. 13 See Comments submitted by Rheem Heating 208/230–3–60 split-system variable- (Daikin, No. 3), and Rheem Heating and Cooling and Cooling, (Rheem, No. 5 at page 2). speed heat pump. (Rheem, No. 5). 14 See Comments submitted by Rheem Heating 12 See Comments submitted by Sanyo Fisher and Cooling, (Rheem, No. 5 at page 2). Company, (Sanyo, No.7 at page 1) and Daikin AC 15 See Comments submitted by Lennox 16 The * denotes engineering differences in the (Americas), Inc., (Daikin, No. 3 at pages 1–2). International Inc., (Lennox, No. 6 at page 2). models.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17532 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

• PURY–P96TGMU–*, 96,000 Btu/h system variable-capacity air conditioner that are listed in the July 20, 2006 208/230–3–60 split–system variable- or heat pump. Federal Register Notice. 71 FR 41320, speed heat pump. • PCFY Series—Ceiling Suspended— July 20, 2006. These designated changes • PURY–P108TGMU–*, 108,000 Btu/ PCFY–P12/18/24/30/36***–*. are with respect to the following test h 208/230–3–60 split-system variable- • PDFY Series—Ceiling Concealed procedure sections: 2.1, 2.2.3, 2.4.1, speed heat pump. Ducted—PDFY–P06/08/12/15/18/24/30/ 3.2.4 (including Table 6), 3.6.4 • PURY–P126TGMU–*, 126,000 Btu/ 36/48***–*. (including Table 12), 4.1.4.2, and h, 208/230–3–60 split-system variable- • PEFY Series—Ceiling Concealed 4.2.4.2. speed heat pump. Ducted (Low Profile)—PEFY–P06/08/ (iii) For products covered by 10 CFR • PURY–P144TGMU–*, 144,000 Btu/ 12***–*. Part 431 (commercial products), MEUS • h, 208/230–3–60 split-system variable- PEFY Series—Ceiling Concealed shall test a ‘‘tested combination’’ speed heat pump. Ducted (Alternate High Static Option)— • selected in accordance with the PURY–P168TGMU–*, 168,000 Btu/ PEFY–P15/18/24/27/30/36/48/54/72/ provisions of subparagraph (B) of this h, 208/230–3–60 split-system variable- 96***–*. paragraph. For every other system speed heat pump. • PEFY–F Series—Ceiling Concealed • combination using the same outdoor PURY–P192TGMU–*, 192,000 Btu/ Ducted (100% OA Option)—PEFY–P unit as the tested combination, MEUS h, 208/230–3–60 split-system variable- 30/54/72/96***––*. • shall make representations concerning speed heat pump. PFFY Series—Floor Standing the R410A CITY MULTI products • PURY–P204TGMU–*, 204,000 Btu/ (Concealed)—PFFY–P06/08/12/15/18/ covered in this waiver according to the h, 208/230–3–60 split-system variable- 24***–*. provisions of subparagraph (C) below. speed heat pump. • PFFY Series—Floor Standing (B) Tested combination. The term • PURY–P216TGMU–*, 216,000 Btu/ (Exposed)—PFFY–P06/08/12/15/18/ ‘‘tested combination’’ means a sample h, 208/230–3–60 split-system variable- 24***–*. basic model comprised of units that are speed heat pump. • PKFY Series—Wall-Mounted— production units, or are representative • PURY–P234TGMU–*, 234,000 Btu/ PKFY–P06/08/12/18/24/30***–*. h, 208/230–3–60 split-system variable- • PLFY Series—4-Way Airflow of production units, of the basic model speed heat pump. Ceiling Cassette—PLFY–P12/18/24/30/ being tested. For the purposes of this CITY MULTI Variable Refrigerant 36***–*. waiver, the tested combination shall Flow Zoning System Y-Series Outdoor • PMFY Series—1-Way Airflow have the following features: Equipment: Ceiling Cassette—PMFY–P06/08/12/ (i) The basic model of a variable • PUHY–P72TGMU–*, 72,000 Btu/h 15[MR12]***–*. refrigerant flow system used as a tested 208/230–3–60 split-system variable- (3) Alternate test procedure. combination shall consist of an outdoor speed heat pump. (A) MEUS shall be required to test the unit that is matched with between 2 and • PUHY–P96TGMU–*, 96,000 Btu/h products listed in Paragraph (2) above 5 indoor units. 208/230–3–60 split-system variable- according to those test procedures for (ii) The indoor units shall— speed heat pump. central air conditioners and heat pumps (a) Represent the highest sales volume • PUHY–P108TGMU–*, 108,000 Btu/ prescribed by DOE at 10 CFR Parts 430 type models; h 208/230–3–60 split-system variable- and 431, except that: (b) Together, have a capacity between speed heat pump. (i) For products covered by 10 CFR 95% and 105% of the capacity of the • PUHY–P126TGMU–*, 126,000 Btu/ Part 430 (consumer products), MEUS outdoor unit; h, 208/230–3–60 split-system variable- shall not be required to comply with: (1) (c) Not, individually, have a capacity speed heat pump. greater than 50% of the capacity of the • The first sentence in 10 CFR PUHY–P144TGMU–*, 144,000 Btu/ 430.24(m)(2), which refers to ‘‘that outdoor unit; h, 208/230–3–60 split-system variable- combination manufactured by the (d) Have a fan speed that is consistent speed heat pump. • condensing unit manufacturer likely to with the manufacturer’s specifications; PUHY–P168TGMU–*, 168,000 Btu/ have the highest volume of retail sales;’’ and h, 208/230–3–60 split-system variable- and (2) the third sentence in 10 CFR (e) All have the same external static speed heat pump. 430(m)(2) and the provisions of 10 CFR pressure[MR15]. • PUHY–P192TGMU–*, 192,000 Btu/ 430(m)(2)(i) and (ii). Instead of testing (C) Representations. MEUS may make h, 208/230–3–60 split-system variable- the combinations likely to have the representations about the energy speed heat pump. efficiency of CITY MULTI VRFZ • PUHY–P204TGMU–*, 204,000 Btu/ highest volume of retail sales, MEUS products, for compliance, marketing, or h, 208/230–3–60 split-system variable- may test a ‘‘tested combination’’ other purposes, only to the extent that speed heat pump selected in accordance with the • PUHY–P216TGMU–*, 216,000 Btu/ provisions of subparagraph (B) of this such representations are made h, 208/230–3–60 split–system variable- paragraph. Additionally, instead of consistent with the provisions outlined speed heat pump. following the provisions of 10 CFR below: • PUHY–P234TGMU–*, 234,000 Btu/ 430(m)(2)(i) and (ii) for every other (i) For CITY MULTI VRFZ h, 208/230–3–60 split-system variable- system combination using the same combinations tested in accordance with speed heat pump. outdoor unit as the tested combination, this alternate test procedure, MEUS may CITY MULTI Variable Refrigerant MEUS shall make representations make representations based on these test Flow Zoning System S-Series Outdoor concerning the R410A CITY MULTI results. Equipment: products covered in this waiver (ii) For CITY MULTI VRFZ • PUMY–P48NHMU–*, 48,000 Btu/h, according to the provisions of combinations that are not tested, MEUS 208/230–1–60 split-system variable- subparagraph (C) below. may make representations which are speed heat pump (ii) For products covered by 10 CFR based on the testing results for the CITY MULTI Variable Refrigerant Part 430 (consumer products), MEUS tested combination and which are Flow Zoning System Indoor Equipment: shall be required to comply with 10 CFR consistent with either of the two • P*FY models, ranging from 6,000 to 430 Appendix M as amended in following methods, except that only 96,000 Btu/h, 208/230–1–60 split- accordance with designated changes method (a) may be used, if available:

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17533

(a) Representation of non-tested Electric and Electronics USA, Inc. According to 10 CFR 1004.11, any combinations according to an (MEUS). This Petition for Waiver person submitting information that he Alternative Rating Method (‘‘ARM’’) (hereafter ‘‘MEUS Petition’’) requests a or she believes to be confidential and approved by DOE. waiver of the Department of Energy exempt by law from public disclosure (b) Representation of non-tested (‘‘DOE’’) test procedures applicable to should submit two copies: one copy of combinations at the same energy commercial package water source heat the document including all the efficiency level as the tested pumps. DOE is soliciting comments, information believed to be confidential, combination with the same outdoor data, and information with respect to and one copy of the document with the unit. the MEUS Petition. Today’s notice also information believed to be confidential (4) The waiver granted for MEUS’s grants an Interim Waiver to MEUS, with deleted. DOE will make its own R22 CITY MULTI VRFZ products on an alternate test procedure, from the determination about the confidential August 27, 2004 17 is hereby amended to existing DOE test procedure applicable status of the information and treat it prohibit MEUS from making energy to commercial package water source according to its determination. efficiency representations regarding its heat pumps. Docket: For access to the docket to R22 CITY MULTI products unless such DATES: DOE will accept comments, data, read the background documents representations are made consistent and information regarding this Petition relevant to this matter, go to the U.S. with the provisions set forth in for Waiver until, but no later than May Department of Energy, Forrestal Paragraph (3) above. 9, 2007. Building, Room 1J–018 (Resource Room (5) This waiver shall remain in effect of the Building Technologies Program), ADDRESSES: Please submit comments, from the date of issuance of this Order 1000 Independence Avenue, SW., identified by case number [CAC–015], Washington, DC, (202) 586–2945, until DOE prescribes final test by any of the following methods: procedures appropriate to the model • between 9 a.m. and 4 p.m., Monday Mail: Ms. Brenda Edwards-Jones, through Friday, except Federal holidays. series manufactured by MEUS and U.S. Department of Energy, Building listed above. Available documents include the Technologies Program, Mailstop EE–2J, following items: this notice; public (6) This waiver is conditioned upon Forrestal Building, 1000 Independence the presumed validity of statements, comments received; the Petition for Avenue, SW., Washington, DC 20585– Waiver and Application for Interim representations, and documentary 0121. Telephone: (202) 586–2945. materials provided by the petitioner. Waiver; prior Department rulemakings Please submit one signed original paper regarding commercial central air This waiver may be revoked or modified copy. at any time upon a determination that • conditioners and heat pumps; the prior Hand Delivery/Courier: Ms. Brenda MEUS Petition for Waiver, DOE’s notice the factual basis underlying the petition Edwards-Jones, U.S. Department of is incorrect, or DOE determines that the of the prior MEUS Petition for Waiver Energy, Building Technologies Program, and the DOE Decision and Order (D&O) results from the alternate test procedure Room 1J–018, Forrestal Building, 1000 are unrepresentative of the basic regarding the prior MEUS Petition, Independence Avenue, SW., which is being published today. Please models’ true energy consumption Washington, DC 20585–0121. characteristics. • call Ms. Brenda Edwards-Jones at the E-mail: above telephone number for additional Issued in Washington, DC, on April 2, [email protected]. Include information regarding visiting the 2007. either the case number [CAC–015], and/ Resource Room. Please note: DOE’s Alexander A. Karsner, or ‘‘MEUS Petition’’ in the subject line Freedom of Information Reading Room Assistant Secretary, Energy Efficiency and of the message. • (formerly Room 1E–190 at the Forrestal Renewable Energy. Federal eRulemaking Portal: http:// Building) is no longer housing [FR Doc. E7–6608 Filed 4–6–07; 8:45 am] www.regulations.gov. Follow the rulemaking materials. instructions for submitting comments. BILLING CODE 6450–01–P FOR FURTHER INFORMATION CONTACT: Dr. Instructions: All submissions received Michael G. Raymond, U.S. Department must include the agency name and case of Energy, Office of Energy Efficiency DEPARTMENT OF ENERGY number for this proceeding. Submit and Renewable Energy, Building electronic comments in WordPerfect, Technologies Program, Mail Stop EE–2J, Office of Energy Efficiency and Microsoft Word, PDF, or text (ASCII) file Forrestal Building, 1000 Independence Renewable Energy format and avoid the use of special Avenue, SW., Washington, DC 20585– characters or any form of encryption. 0121, (202) 586–9611; e-mail: Energy Conservation Program for Wherever possible, include the Michael.Raymond.ee.doe.gov; or Consumer Products: Publication of the electronic signature of the author. Francine Pinto, Esq., U.S. Department of Petition for Waiver and Granting of the Absent an electronic signature, Energy, Office of General Counsel, Mail Application for Interim Waiver of comments submitted electronically Stop GC–72, Forrestal Building, 1000 Mitsubishi Electric From the DOE must be followed and authenticated by Independence Avenue, SW., Commercial Water Source Heat Pump submitting the signed original paper Washington, DC 20585–0103, (202) 586– Test Procedure [Case No. CAC–015] document. DOE does not accept 9507; e-mail: telefacsimiles (faxes). Any person AGENCY: Office of Energy Efficiency and [email protected]. Renewable Energy, Department of submitting written comments must also Energy. send a copy of such comments to the SUPPLEMENTARY INFORMATION: I. Background and Authority ACTION: Notice of petition for waiver, petitioner. 10 CFR 431.401(d)(2). The name and address of the petitioner of II. Petition for Waiver granting of application for interim III. Application for Interim Waiver waiver, and request for comments. today’s notice is: William Rau, Senior IV. Alternate Test Procedure Vice President and General Manager, V. Summary and Request for Comments SUMMARY: Today’s notice publishes a HVAC Advanced Products Division, Petition for Waiver from Mitsubishi Mitsubishi Electric & Electronics USA, I. Background and Authority Inc., 4300 Lawrenceville-Suwanee Road, Title III of the Energy Policy and 17 71 FR 14858 (March 24, 2006). Suwanee, GA 30024. Conservation Act (EPCA) sets forth a

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17534 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

variety of provisions concerning energy fall in the range from 65,000 to 135,000 of MEUS’s CITY MULTI products. On efficiency. Part B of Title III (42 U.S.C. Btu/hr, which is the range covered by August 27, 2004, DOE granted a waiver 6291–6309) provides for the ’’Energy the DOE test procedure, and ISO from the commercial air conditioner and Conservation Program for Consumer Standard 13256–1. heat pump test procedures for MEUS’s Products other than Automobiles.’’ Part DOE’s regulations contain provisions R22 CITY MULTI products, i.e., air- C of Title III (42 U.S.C. 6311–6317) allowing a person to seek a waiver from source CITY MULTI products using R22 provides for an energy efficiency the test procedure requirements for as the refrigerant.1 In March 2006, DOE program entitled ’’Certain Industrial covered commercial equipment. The granted MEUS’s application for interim Equipment,’’ which is similar to the waiver provisions for commercial waiver and published MEUS’s petition program in Part B, and which includes equipment are found at 10 CFR 431.401, for waiver for its R410A CITY MULTI commercial air conditioning equipment, and are substantively identical to those models, i.e., air-source CITY MULTI packaged boilers, water heaters, and for covered consumer products. products using R410A as the other types of commercial equipment. The waiver provisions allow the refrigerant.2 Today’s notice involves commercial Assistant Secretary for Energy Efficiency equipment under Part C. Part C provides and Renewable Energy (hereafter The products covered by this petition for definitions, test procedures, labeling ‘‘Assistant Secretary’’) to temporarily represent the models of the CITY provisions, energy conservation waive test procedures for a particular MULTI product line that use water, as standards, and the authority to require basic model when a petitioner shows opposed to air, as a heat source and heat information and reports from that the basic model contains one or sink.3 MEUS claims that its water manufacturers. With respect to test more design characteristics that prevent source models cannot be tested procedures, it generally authorizes the testing according to the prescribed test pursuant to the existing test procedure Secretary of Energy to prescribe test procedures, or when the prescribed test for the same reasons that its R22 models procedures that are reasonably designed procedures may evaluate the basic were previously granted a waiver by to produce results which reflect energy model in a manner so unrepresentative DOE. The only difference between the efficiency, energy use and estimated of its true energy consumption as to WR2 and WY products and the air operating costs, and that are not unduly provide materially inaccurate source R22 and R410A products is the burdensome to conduct. (42 U.S.C. comparative data. 10 CFR 431.401(a)(1). method of heat rejection. The WR2 and 6314(a)(2)) The Assistant Secretary may grant the WY products have a heat source unit MEUS’s petition requests a waiver waiver subject to conditions, including that uses water, instead of air, to reject from the commercial test procedures for adherence to alternate test procedures. heat. The indoor models, CITY MULTI water source models of its CITY MULTI 10 CFR 431.401(e)(4) and (f)(4). Control Network, and system Variable Refrigerant Flow Zoning Petitioners are to include in their technology of the R22 and R410A (VRFZ) heat pump product line, which petition any alternate test procedures products and the WR2 and WY models are sold for commercial use. known to evaluate the basic model in a are identical. As a result, these products For commercial package air manner representative of its energy will face the same testing problems as conditioning and heating equipment, consumption. 10 CFR 431.401(b)(1)(iii). MEUS’s R22 and R410A CITY MULTI EPCA provides that the test procedures Waivers generally remain in effect until products. shall be those generally accepted final test procedure amendments MEUS’s line of CITY MULTI VRFZ industry testing procedures or rating become effective, thereby resolving the system products are complete, procedures developed or recognized by problem that is the subject of the commercial zoning systems that use the Air-Conditioning and Refrigeration waiver. variable refrigerant control and Institute (ARI) or by the American The waiver process also allows the distribution, zoning diversity, and Society of Heating, Refrigerating and Air Assistant Secretary to grant an Interim system intelligence. The WR2 and WY Conditioning Engineers (ASHRAE), as Waiver from test procedure systems have the capability of referenced in ASHRAE/IES Standard requirements to manufacturers that have connecting a single heat source unit to 90.1 and in effect on June 30, 1992. (42 petitioned DOE for a waiver of such up to 19 indoor units. This capability U.S.C. 6314(a)(4)(A)) This section also prescribed test procedures. 10 CFR provides for the Secretary of Energy to 431.401(a)(2). An Interim Waiver amend the test procedure for a product 1 Energy Conservation Program for Consumer remains in effect for a period of 180 Products: Decision and Order Granting a Waiver if the industry test procedure is days or until DOE issues its From the DOE Commercial Package Air Conditioner amended, unless the Secretary determination on the Petition for and Heat Pump Test Procedure to Mitsubishi determines that such a modified test Waiver, whichever is sooner, and may Electric (Case No. CAC–008), 69 FR 52660 (Aug. 27, procedure does not meet the statutory 2004). be extended for an additional 180 days, 2 criteria. (42 U.S.C. 6314(a)(4)(B)) Energy Conservation Program for Consumer if necessary. 10 CFR 431.401(e)(4). Products: Publication of the Petition for Waiver and On October 21, 2004, DOE published II. Petition for Waiver Granting of the Application for Interim Waiver of a direct final rule adopting test Mitsubishi Electric From the DOE Residential and procedures for commercial package air On October 30, 2006, MEUS filed an Commercial Package Air Conditioner and Heat conditioning and heating equipment, Application for Interim Waiver and a Pump Test Procedures (Case No. CAC–012), 71 FR 14858 (Mar. 24, 2006). On August 8, 2006, DOE effective December 20, 2004. 69 FR Petition for Waiver from the test published a notice correcting five of the model 61962, October 21, 2004. DOE adopted procedures applicable to commercial numbers in the interim waiver granted to MEUS ISO Standard 13256–1, ‘‘Water-source package water source heat pumps. In and listed in MEUS’s petition for waiver. Energy heat pumps—Testing and rating for particular, MEUS requested a waiver Conservation Program for Consumer Products: Notice of Correction of Petition for Waiver and performance—Part 1: Water-to-air and from ISO Standard 13256–1, the Interim Waiver of Mitsubishi Electric From the DOE brine-to-air heat pumps’’ for small commercial test procedure incorporated Residential and Commercial Package Air commercial package water source heat by reference that is the DOE test Conditioner and Heat Pump Test Procedures, and pumps with capacities < 135,000 Btu/ procedure. DOE has previously granted Modification of Interim Waiver, 71 FR 45047 (Aug. 8, 2006). hr. 69 FR 61971. The capacities of a waiver and an interim waiver from the 3 Like the current line of air source CITY MULTI MEUS’s water source CITY MULTI applicable air conditioner and heat products, the water-source WR2 and WY model VRFZ products sold for commercial use pump test procedures for other models lines use R410A as the refrigerant.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17535

gives these systems millions of potential information to evaluate what, if any, • PQRY–P72TGMU–*, 72,000 Btu/h system combinations.4 economic hardship MEUS will likely 208/230–3–60 split-system variable- The operating characteristics of a experience if its Application for Interim speed heat pump VRFZ system allow each indoor unit to Waiver is denied. However, in those • PQRY–P96TGMU–*, 96,000 Btu/h have a different mode of operation (i.e., instances where the likely success of the 208/230–3–60 split-system variable- on/off/heat/cool/dry/auto/fan) and a Petition for Waiver has been speed heat pump different set temperature. In the WR2 demonstrated, based upon DOE having CITY MULTI Variable Refrigerant and WY models, the variable speed granted a waiver for a similar product Flow Zoning System WY-Series Heat compressor and the system controls design, it is in the public interest to Source Units: direct refrigerant flow throughout the have similar products tested and rated • PQHY–P72TGMU–*, 72,000 Btu/h system to match the performance of the for energy consumption on a 208/230–3–60 split-system variable- system to the load of the conditioned comparable basis. MEUS’s water source speed heat pump areas. The compressor is capable of CITY MULTI VRFZ products are similar • PQHY–P96TGMU–*, 96,000 Btu/h reducing its operating capacity to as to the MEUS products previously 208/230–3–60 split-system variable- little as 16 percent of its rated capacity. granted a waiver, MEUS’s R22 CITY speed heat pump Zone diversity enables these VRFZ MULTI VRFZ products (the indoor units systems to have a total connected indoor CITY MULTI Variable Refrigerant are the same in both lines). 69 FR 52660. Flow Zoning System Indoor Equipment: unit capacity of up to 150 percent of the The previous MEUS waiver was granted • P*FY models, ranging from 6,000 to capacity of the heat source unit. because MEUS’s R22 products cannot be 96,000 Btu/h, 208/230–1–60 split- The CITY MULTI VRFZ systems have tested according to the prescribed test system variable-capacity heat variable frequency inverter driven scroll procedures, for two reasons: (1) Test pump. compressors, and, therefore, have nearly laboratories cannot test products with so infinite steps of capacity. While other • PCFY Series—Ceiling Suspended— many indoor units (the WR2 and WY PCFY–P12/18/24/30/36***–* system compressors run at full load as CITY MULTI VRFZ systems can connect their normal state, the CITY MULTI • PDFY Series—Ceiling Concealed an outdoor unit with up to 19 indoor Ducted—PDFY–P06/08/12/15/18/ VRFZ systems run at part-load[MR7] as units); and (2) there are too many their normal state. The WR2 Series CITY 24/30/36/48***–* possible combinations of indoor and • MULTI products also offer consumers PEFY Series—Ceiling Concealed outdoor units (MEUS offers 58 indoor Ducted (Low Profile)—PEFY–P06/ the option of simultaneous heating and unit models, allowing for well over cooling. These simultaneous heating 08/12***–* 1,000,000 combinations for each • and cooling systems achieve energy PEFY Series—Ceiling Concealed outdoor unit), and it is impractical to Ducted (Alternate High Static benefits by transferring heat recovered test so many combinations. The same from one zone into another zone Option)—PEFY–P15/18/24/27/30/ argument, with the same two reasons, needing heat. 36/48/54/72/96***–* applies equally to show that MEUS’ The MEUS petition requests that DOE • PEFY–F Series—Ceiling Concealed grant a waiver from existing test water source CITY MULTI VRFZ Ducted (100% Outside Air procedures until such time as a products cannot be tested according to Ventilation Option)—PEFY–P 30/ representative test procedure is the prescribed test procedures. These 54/72/96***–*–* developed and adopted for this class of identical testing problems make it likely • PFFY Series—Floor Standing products. MEUS requested that DOE that MEUS’ Petition for Waiver will be (Concealed)—PFFY–P06/08/12/15/ apply an alternate test procedure based granted. Therefore, MEUS’s Application 18/24***–* on the DOE alternate test procedure for an Interim Waiver from DOE test • PFFY Series—Floor Standing specified in the Decision & Order procedure for its new WR2 and WY (Exposed)—PFFY–P06/08/12/15/ concerning MEUS’ R410A CITY MULTI water source CITY MULTI VRFZ 18/24***–* • VRFZ products. systems is granted. The letter to MEUS PKFY Series—Wall-Mounted— granting the Interim Waiver specifies PKFY–P06/08/12/18/24/30***–* III. Application for Interim Waiver that MEUS must use the alternate test • PLFY Series—4-Way Airflow MEUS also requested an Interim procedure proposed in today’s Notice. Ceiling Cassette—PLFY–P12/18/24/ Waiver to allow it to introduce its new Hence, it is ordered that: 30/36***–* water source products in the U.S. The Application for Interim Waiver • PMFY Series—1-Way Airflow market while DOE evaluates the Petition filed by MEUS is hereby granted for Ceiling Cassette—PMFY–P06/08/ for Waiver. An Interim Waiver may be MEUS’s new WR2 and WY water source 12/15***–* granted if it is determined that the CITY MULTI VRFZ central air This Interim Waiver is conditioned applicant will experience economic conditioning heat pumps. For the below upon the presumed validity of hardship if the Application for Interim listed models: statements, representations, and Waiver is denied, if it appears likely (1) MEUS shall not be required to test documentary materials provided by the that the Petition for Waiver will be or rate its water source CITY MULTI petitioner. This Interim Waiver may be granted, and/or the Assistant Secretary VRFZ products on the basis of the revoked or modified at any time upon determines that it would be desirable for currently applicable test procedure, a determination that the factual basis public policy reasons to grant which incorporates by reference ISO underlying the petition is incorrect, or immediate relief pending a 13256–1 (1998). DOE determines that the results from determination on the Petition for (2) MEUS shall be required to test and the alternate test procedure are Waiver. 10 CFR 431.401(e)(3). rate its water source CITY MULTI VFRZ unrepresentative of the basic models’ MEUS’s Application for Interim products according to the alternate test true energy consumption characteristics. Waiver does not provide sufficient procedure as set forth in section IV (3), This Interim Waiver shall remain in ‘‘Alternate test procedure.’’ effect for a period of 180 days or until 4 MEUS offers 58 indoor models in its WR2/WY CITY MULTI Variable Refrigerant DOE acts on the Petition for Waiver, CITY MULTI product line. The number of potential combinations of the 58 models in sets of up to 19 Flow Zoning System WR2-Series Heat whichever is sooner, and may be is an astronomical figure. Source Units: extended for an additional 180-day

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17536 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

period, if necessary. 10 CFR (i) MEUS shall test a ‘‘tested V. Summary and Request for Comments 431.401(e)(4). combination’’ selected in accordance Today’s notice announces a MEUS with the provisions of subparagraph (B) IV. Alternate Test Procedure Petition for Waiver and grants MEUS an of this paragraph. For every other Interim Waiver from the test procedures Consistent representations are system combination using the same applicable to MEUS’s WR2 and WY important for manufacturers to make outdoor unit as the tested [MR11] water source CITY MULTI heat pump claims about the energy efficiency of combination, MEUS shall make units. DOE is publishing the MEUS their products. In response to MEUS’s representations concerning the WR2 and Petition for Waiver in its entirety. The petition for waiver for the R410A WY CITY MULTI products covered in petition contains no confidential products, today, DOE is also publishing this waiver according to the provisions information. Furthermore, today’s an alternate test procedure to provide a of subparagraph (C) below. notice includes an alternate test basis upon which MEUS can test its (B) Tested combination. The term procedure that DOE is considering equipment and make valid energy ‘‘tested combination’’ means a sample including in the final Decision and efficiency representations. DOE[MR9] basic model comprised of units that are Order. In this alternate test procedure, will consider applying a similar production units, or are representative DOE proposes defining a ‘‘tested alternate test procedure for MEUS’s of production units, of the basic model combination’’ which MEUS could test WR2 and WY products in order to allow being tested. For the purposes of this in lieu of testing all retail combinations MEUS to test and make energy waiver, the tested combination shall of its water source VRFZ CITY MULTI efficiency representations regarding have the following features: products. Furthermore, should a these comparable products. (i) The basic model of a variable manufacturer not be able to test all retail As noted above, existing testing refrigerant flow system used as a tested combinations, DOE proposes allowing facilities have a limited ability to test combination shall consist of an outdoor manufacturers to rate waived products multiple indoor units at one time, and unit that is matched with between 2 and according to an alternate rating method the number of possible combination of 5 indoor units. approved by DOE, or to rate waived indoor and outdoor units for some (ii) The indoor units shall— products the same as that for the variable refrigerant zoning systems is (a) Represent the highest sales volume specified tested combination. impractical to test. Subsequent to the type models; waiver that DOE granted for MEUS’s (b) Together, have a capacity between DOE will also consider applying a R22 models, ARI developed a committee 95% and 105% of the capacity of the similar alternate test procedure to other to discuss the issue and work on outdoor unit; comparable petitions for waiver for residential and commercial central air developing an appropriate test protocol (c) Not, individually, have a capacity conditioners and heat pumps. Such for variable refrigerant zoning systems. greater than 50% of the capacity of the cases include Samsung’s petition for its However, to date, no additional test outdoor unit; DVM products (70 FR 9629, February methodologies have been adopted by (d) Have a fan speed that is consistent 28, 2005), and Fujitsu’s petition for its the committee or put forth to DOE. with the manufacturer’s specifications; Airstage variable refrigerant flow (VRF) DOE believes that an alternate test and products (70 FR 5980, February 4, procedure is needed so that (e) All have the same external static 2005). manufacturers can make representations pressure. for their products. DOE specified an (C) Representations. MEUS may make DOE is interested in receiving alternate test procedure in the MEUS representations about the energy comments on all aspects of this notice. waiver for R410A CITY MULTI efficiency of CITY MULTI VRFZ Any person submitting written comments must also send a copy of products, and is proposing to include products[MR15], for compliance, the following similar waiver language in marketing, or other purposes, only to such comments to the petitioner, whose the final Decision and Order for the the extent that such representations are contact information is cited above. 10 water source models: made consistent with the provisions CFR 431.401(d)(2). ‘‘(1) The Petition for Waiver’’ filed by outlined below: Issued in Washington, DC, on April 2, Mitsubishi Electric and Electronics (i) For CITY MULTI VRFZ 2007. USA, Inc. (MEUS) is hereby granted as combinations tested in accordance with Alexander A. Karsner, set forth in the paragraphs below. the alternate test procedure, MEUS may Assistant Secretary, Energy Efficiency and (2) MEUS shall not be required to test make representations based on these test Renewable Energy. or rate the water source WR2 and WY results. October 30, 2006. CITY MULTI Variable Refrigerant Flow (ii) For CITY MULTI VRFZ The Honorable Alexander Karsner, Zoning System (VFRZ) products combinations that are not tested, MEUS Assistant Secretary for Energy Efficiency and covered in this waiver on the basis of may make representations which are Renewable Energy, U.S. Department of the currently applicable test procedure, based on the testing results for the Energy, 1000 Independence Ave, SW., but shall be required to test and rate its tested combination and which are Washington, DC 20585–0121. water source CITY MULTI VFRZ consistent with either of the two Re: Petition for Waiver of Test Procedures products covered in this waiver following methods, except that only and Application for Interim Waiver for according to the alternate test procedure method (a) may be used, if available: CITY MULTI VRFZ Water-Source Heat as set forth in paragraph (3). (a) Representation of non-tested Pumps (3) Alternate test procedure. combinations according to an Dear Assistant Secretary Karsner: (A) MEUS shall be required to test its Alternative Rating Method (‘‘ARM’’) Mitsubishi Electric & Electronics USA, Inc. water source WR2 and WY CITY MULTI approved by DOE. (MEUS) respectfully submits this petition for waiver, and application for interim waiver, of Variable Refrigerant Flow Zoning (b) Representation of non-tested the test procedures applicable to the WR2 System (VFRZ) products according to combinations at the same energy and WY Series models of MEUS’s CITY those test procedures for central air efficiency level as the tested MULTI Variable Refrigerant Flow Zoning conditioners and heat pumps prescribed combination with the same outdoor (VRFZ) product line pursuant to the by DOE at 10 CFR Part 431, except that: unit. provisions of 10 CFR 431.401 (2006). The

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17537

WR2 and WY models are water-source combinations.9 Pursuant to the 2004 CITY heating and cooling. These simultaneous products. MULTI Waiver, MEUS is not required to test heating and cooling systems achieve energy The Department of Energy (DOE or or rate its CITY MULTI Variable Refrigerant benefits by transferring heat recovered from Department) has previously granted a waiver Flow Zoning system products listed on the one zone into another zone needing heat. and an interim waiver from the applicable air basis of the currently applicable test Additionally, when the system switches conditioner and heat pump test procedures procedures.10 In granting MEUS’s request for between the heating and cooling modes, the for other models of MEUS’s CITY MULTI an interim waiver for the R410A CITY direction of the cooling water flow remains products. On August 27, 2004, DOE granted MULTI products, DOE concluded that the the same; therefore, the compressor does not a waiver from the commercial air conditioner R410A ‘‘systems will likely suffer the same need to be shut down when switching and heat pump test procedures for MEUS’s testing problems that prompted the modes. R22 CITY MULTI products, i.e., air-source Department to grant MEUS the waiver for its CITY MULTI products using R22 as the R22 products.’’ 11 MEUS’s CITY MULTI VRFZ systems were refrigerant.5 In March 2006, the Department MEUS’s WR2 and WY products represent designed to take into account the customers’ granted MEUS’s application for interim the models of the CITY MULTI product line specific needs for flexibility, variable waiver and published MEUS’s petition for that are water-source heat pumps. The only conditioning, and operating energy savings. waiver for its R410A CITY MULTI models, difference between the WR2 and WY Since these products were first introduced in i.e., air-source CITY MULTI products using products, on the one hand, and the R410A U.S. markets, the CITY MULTI systems have R410A as the refrigerant.6 products is the method of heat rejection. The become an important part of MEUS sales. The products covered by this petition WR2 and WY products have a heat source These systems have been well received in represent the models of the CITY MULTI unit that uses water, instead of air, to reject Asia, Europe, Latin America, and the United product line that use water, as opposed to air, heat. The indoor models, CITY MULTI States because of their highly effective energy as a heat source and heat sink.7 Like the Control Network, and system technology of saving features. Through the use of highly CITY MULTI products covered by the earlier the R410A products and the WR2 and WY advanced technology, the WR2 and WY CITY waiver, the products covered by this petition models are identical. As a result, these MULTI VRFZ systems offer cost-effective cannot be tested according to the prescribed products will face the same testing problems functionality and significant energy savings. test procedures, and, therefore, should be as those suffered by MEUS’s R22 and R410A The unique design and intelligence provided granted a waiver from the applicable test CITY MULTI products. by the sophisticated direct digital control procedures. MEUS simultaneously requests II. WR2/WY Model Design Characteristics system allow the systems to use less energy an interim waiver covering these WR2 and than conventional systems to condition a WY CITY MULTI products. MEUS’s line of CITY MULTI VRFZ system products combines advanced technologies given area, thus costing the customer less to I. Background and are complete, commercial zoning operate. In the 2004 CITY MULTI Waiver, DOE systems that save energy through the Although these energy saving found that the waiver should be granted effective use of variable refrigerant control characteristics are not credited under current because the CITY MULTI products have ‘‘one and distribution, zoning diversity, and rules, they are precisely the types of or more design characteristics which * * * system intelligence. The WR2 and WY technological innovations and applications prevent testing of the basic model according systems have the capability of connecting a that advance the Congressional intent of to the prescribed test procedures.’’ 8 MEUS’s single heat source unit to up to 19 indoor promoting energy savings. These CITY R22 products cannot be tested according to units. This capability gives these systems MULTI VRFZ systems represent a the prescribed test procedures for two tremendous installation flexibility with revolutionary advance in HVAC technology, reasons: (1) the test laboratories cannot test millions of potential system combinations.12 well positioned to provide new and existing products with so many indoor units; and (2) The operating characteristics of a VRFZ commercial buildings with effective use of there are too many possible combinations of system allow each indoor unit to have a energy and an operationally cost-effective indoor and outdoor units (well over different mode of operation (i.e., on/off/heat/ source of heating and cooling. Additionally, 1,000,000 combinations for each outdoor cool/dry/auto/fan) and a different set with some of the innovative capabilities of unit), and it is impractical to test so many temperature allowing great flexibility of the CITY MULTI Controls Network, the operation. In the WR2 and WY models, the potential for energy management and energy variable speed compressor and the system 5 Energy Conservation Program for Consumer savings are even greater. The CITY MULTI controls direct refrigerant flow throughout Products: Decision and Order Granting a Waiver products’ unique design characteristics are the system to precisely match the From the DOE Commercial Package Air Conditioner clearly consistent with U.S. government’s performance of the system to the load of the and Heat Pump Test Procedure to Mitsubishi efforts to encourage the availability of high Electric (Case No. CAC–008), 69 FR 52660 (Aug. 27, conditioned areas. The compressor is capable 2004) (copy attached) (hereinafter, 2004 CITY of reducing its operating capacity to as little performance products that consume less MULTI Waiver). as 16% of its rated capacity. Zone diversity energy. 6 Energy Conservation Program for Consumer enables these VRFZ systems to have a total III. Test Procedures From Which Waiver Is Products: Publication of the Petition for Waiver and connected indoor unit capacity of up to Requested Granting of the Application for Interim Waiver of 150% of the capacity of the heat source unit. Mitsubishi Electric From the DOE Residential and The CITY MULTI VRFZ systems have MEUS’s petition requests waiver from the Commercial Package Air Conditioner and Heat variable frequency inverter driven scroll applicable test procedures for its WR2 and Pump Test Procedures (Case No. CAC–012), 71 FR WY CITY MULTI products. DOE’s 14858 (Mar. 24, 2006) (hereinafter, R410A Interim compressors, and, therefore, have nearly Waiver). On August 8, 2006, DOE published a infinite steps of capacity. While other system regulations provide the test procedures for notice correcting five of the model numbers in the compressors run at full load as their normal small and large commercial package air interim waiver granted to MEUS and listed in state, the CITY MULTI VRFZ systems run at conditioning and heating equipment.13 MEUS’s petition for waiver. Energy Conservation part load as their normal state. The WR2 Pursuant to 10 CFR 431.96, the test Program for Consumer Products: Notice of Series CITY MULTI products also offer procedures applicable to small commercial Correction of Petition for Waiver and Interim consumers the option of simultaneous packaged air conditioning and heating water- Waiver of Mitsubishi Electric From the DOE Residential and Commercial Package Air source heat pumps, with capacities between Conditioner and Heat Pump Test Procedures, and 9 R410A Interim Waiver at 14860. 65,000 and 135,000 Btu/h, are those included Modification of Interim Waiver, 71 FR 45047 (Aug. 10 2004 CITY MULTI Waiver at 52662. in ISO Standard 13256–1 (1998).14 The 8, 2006). As of the date of this letter, MEUS’s 11 R410A Interim Waiver at 14861. The R410A capacities of MEUS’s WR2 and WY CITY petition for waiver for its R410A CITY MULTI CITY MULTI products are substitutes for the R22 MULTI water-source products covered by models is still pending before DOE. CITY MULTI products that use the R410A this petition fall in that range. Therefore, 7 Like the current line of air source CITY MULTI refrigerant instead of the R22 refrigerant. MEUS requests waiver from ISO Standard products, the water-source WR2 and WY model 12 MEUS offers 58 indoor models in its WR2/WY lines also use R410A as the refrigerant. CITY MULTI product line. The number of potential 8 2004 CITY MULTI Waiver at 52662. See also 10 combinations of the 58 models in sets of up to 19 13 10 CFR 431.96 (see Tables 1 and 2). CFR 431.201(a)(1) (2005). is an astronomical figure. 14 10 CFR 431.96, Table 1.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17538 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

13256–1 (1998), as incorporated by reference V. Need for Waiver of Test Procedures There are therefore two major testing 15 in DOE’s regulations. The Department’s regulations contain problems: (1) Test laboratories cannot test provisions allowing a person to seek a waiver products with so many indoor units; and (2) IV. Basic Models for Which Waiver Is there are too many possible combinations of Requested from the test procedure requirements for commercial equipment. These provisions are indoor and outdoor units—only a small MEUS requests a waiver from the test set forth in 10 CFR 431.401. The waiver fraction of the combinations could be tested. procedures for the basic models consisting of provisions allow DOE to temporarily waive These problems * * * support the * * * combinations of the following products: 16 test procedures for a particular basic model waiver criterion, that ‘‘the basic model CITY MULTI Variable Refrigerant Flow when a petitioner shows that the basic model contains one or more design characteristics Zoning System WR2-Series Heat Source contains one or more design characteristics which * * * prevent testing of the basic Units: that prevent testing according to the model according to the prescribed test procedures. * * *’’20 • PQRY–P72TGMU–*, 72,000 Btu/h 208/ prescribed test procedures, or when the prescribed test procedures may evaluate the In granting an interim waiver for MEUS’s 230–3–60 split-system variable-speed R410A models, DOE stated that the R410A heat pump basic model in a manner so unrepresentative of its true energy consumption as to provide products ‘‘are quite similar to * * * MEUS’s • PQRY–P96TGMU–*, 96,000 Btu/h 208/ 21 materially inaccurate comparative data.17 R22 CITY MULTI VRFZ products,’’ and 230–3–60 split-system variable-speed In the 2004 CITY MULTI Waiver, DOE that the R410A systems ‘‘will likely suffer the heat pump found that MEUS’s CITY MULTI products same testing problems that prompted the CITY MULTI Variable Refrigerant Flow contained ‘‘one or more design Department to grant MEUS the waiver for its 22 Zoning System WY-Series Heat Source Units: characteristics which * * * prevent testing R22 products.’’ • PQHY–P72TGMU–*, 72,000 Btu/h 208/ of the basic model according to the For the same reasons, the WR2 and WY 230–3–60 split-system variable-speed prescribed test procedures.’’18 DOE granted models cannot be tested pursuant to the existing test procedures. Similar to the R22 heat pump MEUS’s request for an interim waiver for the and R410A models, the WR2 and WY • PQHY–P96TGMU–*, 96,000 Btu/h 208/ R410A CITY MULTI products because the systems can connect more indoor units than 230–3–60 split-system variable-speed R410A systems ‘‘will likely suffer the same the test laboratories can physically test at one heat pump testing problems’’ as the R22 products.19 The WR2 and WY models of CITY MULTI time. Each of the WR2 and WY indoor units CITY MULTI Variable Refrigerant Flow products have the same operational is designed to be used with up to 18 other Zoning System Indoor Equipment: characteristics as the R22 CITY MULTI indoor units with each heat source unit. • P*FY models, ranging from 6,000 to 96,000 products, which have already been granted a These connected indoor units need not be the Btu/h, 208/230–1–60 split-system waiver, and the R410A CITY MULTI same models—there are 58 different indoor variable-capacity heat pump. products, which have been granted an models that can be combined in a multitude • PCFY Series—Ceiling Suspended— interim waiver, except that the WR2 and WY of different combinations to address PCFY–P12/18/24/30/36***–* models are water-source heat pumps. customer needs. The testing laboratories will • PDFY Series—Ceiling Concealed Therefore, the same design characteristics not physically be able to test many of the Ducted—PDFY–P06/08/12/15/18/24/30/ that prevent testing of the basic R22 and WR2 and WY system combinations because 36/48***–* R410A CITY MULTI models also prevent of the inability to test products with so many • PEFY Series—Ceiling Concealed Ducted testing of the WR2 and WY CITY MULTI indoor units. (Low Profile)—PEFY–P06/08/12***–* models. Thus, similar to the R22 and R410A In addition, it is not practical to test all of • PEFY Series—Ceiling Concealed Ducted models, the WR2 and WY systems can the potentially available combinations. With the capability of potentially connecting a (Alternate High Static Option)—PEFY– connect more indoor units than the test single heat source unit to up to 19 indoor P15/18/24/27/30/36/48/54/72/96***–* laboratories can physically test at one time. units, the WR2 and WY units are designed • PEFY–F Series—Ceiling Concealed Additionally, it is not practical to test all of the potentially available combinations, of to be combined in literally millions of Ducted (100% Outside Air Ventilation different system configurations.23 The test Option)—PEFY–P 30/54/72/96***–*–* which there are more than one million. • Therefore, the same design characteristics procedures provide no mechanism for PFFY Series—Floor Standing sampling component combinations. Thus, (Concealed)—PFFY–P06/08/12/15/18/ that prevent testing of the basic R22 and R410A CITY MULTI models also prevent the test procedures do not contemplate, and 24***–* cannot practicably be applied to, the CITY • testing of the WR2 and WY CITY MULTI PFFY Series—Floor Standing MULTI VRFZ systems consisting of multiple (Exposed)—PFFY–P06/08/12/15/18/ models. Specifically, in the 2004 CITY MULTI assemblies that are intended to be used in a 24***–* Waiver, DOE found that: very large number of different combinations. • PKFY Series—Wall-Mounted—PKFY– The current test procedures can be used to As shown above, the WR2 and WY P06/08/12/18/24/30***–* products cannot be tested according to the • test all current commercial systems in the PLFY Series—4-Way Airflow Ceiling laboratory, but many VFRZ systems cannot prescribed test procedures. MEUS also Cassette—PLFY–P12/18/24/30/36***–* believes that the requested waiver is • be tested in the laboratory. Each VFRZ PMFY Series—1-Way Airflow Ceiling outdoor unit can be connected with up to supported on the grounds that the test Cassette—PMFY–P06/08/12/15***–* sixteen separate indoor units in a zoned procedures ‘‘may evaluate the basic model in system. Existing test laboratories cannot test a manner so unrepresentative of its true 15 While DOE’s regulations do not provide more than five indoor units at a time, and energy consumption characteristics * * * as specific definitions for water-source heat pumps even that number is difficult. to provide materially inaccurate comparative and water-cooled air conditioners, pursuant to the A second difficulty is that MEUS offers 58 data.’’24 In particular, the benefits of variable definitions provided in ARI Standard 340/360— indoor unit models. Each of these indoor unit refrigerant control and distribution, zoning 2000, Standard for Commercial and Industrial models is designed to be used with up to 15 Unitary Air-Conditioning and Heat Pump 20 Equipment, and in ISO Standard 13256–1 (1998), other indoor units, which need not be the ID. at 52661–61. Water-source heat pumps—testing and rating for same models, in combination with a single 21 R410A Interim Waiver at 14860. performance—Part I: Water-to-air and brine-to-air outdoor unit. For each of the CITY MULTI 22 R410A Interim Waiver at 14861. heat pumps, MEUS believes that ISO Standard VRFZ outdoor coils, there are well over 23 Even for systems with 4 or fewer indoor units, 13256–1 (1998) contains the test procedures 1,000,000 combinations of indoor coils that which can technically be tested in the laboratories, applicable to its WR2 and WY CITY MULTI water- can be matched up in a system configuration, there are far too many possible combinations to source heat pump products. Note, however, that the and it is highly impractical to test so many make testing practicable because there are 58 rationale for granting the requested test procedure combinations. different indoor models that can be used in waiver is identical regardless of whether the combination. For instance, selecting four indoor applicable test procedure is ISO Standard 13256– units from among 40 indoor model choices 1 or ARI Standard 340/360. 17 10 CFR 431.401(a)(1). produces over one hundred thousand possible 16 The * denotes engineering differences in the 18 2004 CITY MULTI Waiver at 52662. combinations. models. 19 R410A Interim Waiver at 14861. 24 10 CFR 431.201(a)(1) (2005).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17539

diversity, part load operation and Additionally, the alternate test procedure shall consist of a heat source unit that is simultaneous heating and cooling, as will permit MEUS to represent the energy matched with between 2 and 5 indoor units. described in Section II above, are not efficiency for a non-tested combination in (ii) The indoor units shall— credited under the current test procedures. three ways. MEUS may represent the energy (a) Represent the highest sales volume type In any case, it should be noted that these efficiency of a non-tested combination: (1) at models; CITY MULTI products employ advanced an energy efficiency level determined under (b) Together, have a capacity between 95% technologies and their marketing will a DOE-approved alternate rating method; (2) and 105% of the capacity of the heat source advance the Energy Policy and Conservation at the efficiency level of the tested unit; Act’s (EPCA) goal of promoting energy combination utilizing the same heat source (c) Not, individually, have a capacity efficiency. Testing procedures should not unit; or (3) at the DOE prescribed minimum greater than 50% of the capacity of the heat inhibit the commercial success of these efficiency level for the product class, source unit; products in the United States. Without a assuming the tested combination meets or (d) Have a fan speed that is consistent with waiver of the test procedures, MEUS will be exceeds this minimum level. the manufacturer’s specifications; and at a competitive disadvantage in the market. Allowing MEUS to make energy efficiency (e) All have the same external static Consumers have come to expect the representations for non-tested combinations pressure. availability of the CITY MULTI products in that are consistent with any of the three (C) Representations. MEUS may make the U.S. marketplace, and a significant methods described above is reasonable representations about the energy efficiency of number of engineers and contractors are because the heat source unit is the principal WR2 and WY CITY MULTI VRFZ products, currently requesting these new WR2 and WY efficiency driver. The alternate test procedure for compliance, marketing, or other purposes, units for their projects because of the great tends to rate these products very only to the extent that such representations advantages they offer. Thus, MEUS conservatively because it does not credit are made consistent with the provisions respectfully requests that DOE grant a waiver significant energy saving characteristics of outlined below: from the applicable test procedures to the these products. The multi-zoning feature of (i) For WR2 and WY CITY MULTI VRFZ products listed in Section IV.25 MEUS plans these products, which enables them to cool combinations tested in accordance with this to introduce these units into the U.S. market only those portions of the building that paragraph, MEUS may make representations early in the first quarter of 2007, and, require cooling, uses less energy than if the based on these test results. therefore, requests that DOE act on this whole building must be cooled when cooling (ii) For WR2 and WY CITY MULTI VRFZ request in a timely fashion. is required. Additionally, the test procedure combinations that are not tested, MEUS may VI. Alternative Test Procedures requires full load testing, which make representations which are based on the disadvantages these products because they testing results for the tested combination and Currently, there are no test procedures are optimized for best efficiency when which are consistent with any of the three known to MEUS that can accurately evaluate operating with less than full loads. In fact, following methods: these products. However, in response to these products normally operate at part-load (a) Representation of non-tested MEUS’s petition for waiver for the R410A conditions. Finally, the test procedure does combinations according to an Alternative products, DOE proposed an alternate test not recognize the benefits of products Rating Method (‘‘ARM’’) approved by DOE. procedure to provide a conservative basis capable of simultaneous heating and cooling, (b) Representation of non-tested from which manufacturers covered by a test which is more efficient than requiring all combinations at the same energy efficiency procedure waiver for VRFZ products can test zones to be either heated or cooled. level as the tested combination with the same and make valid energy efficiency Therefore, since the proposed alternate test representations, for compliance, marketing, heat source unit. procedure does not credit the savings from or other purposes, regarding these (c) Representation of non-tested zoning, part-load operation, or simultaneous products.26 MEUS requests that DOE apply a combinations at the DOE prescribed heating and cooling, it will provide a similar alternate test procedure for MEUS’s minimum efficiency level for the product conservative basis for assessing the energy WR2 and WY products in order to allow class if the tested combination using the efficiency for such products. MEUS to test and make energy efficiency same heat source unit meets or exceeds that MEUS requests that DOE apply the representations regarding these products. level. following proposed alternate test procedure, Manufacturers face restrictions with which is based on the one proposed in April VII. Similar Products respect to making representations about the 2006,29 To the best of our knowledge, water-source energy consumption and energy to MEUS’s CITY MULTI WR2 and consumption costs of products covered by WY products: VRFZ products are also offered in the United States by Daikin U.S. Corporation. This EPCA.27 As DOE acknowledged in the R410A Alternate Test Procedure Interim Waiver, ‘‘consistent representations manufacturer, however, has incorporated a (A) MEUS shall be required to test the are important for manufacturers to make different technology to achieve variable products listed above according to the test claims about the energy efficiency of their refrigerant flow. procedures provided for in 10 CFR 431.96, products.’’28 Manufacturers need the ability except that: VIII. Application for Interim Waiver to make energy efficiency representations to (i) MEUS may test a ‘‘tested combination’’ Pursuant to 10 CFR 431.401(a)(2), MEUS determine compliance with state and local selected in accordance with the provisions of also submits an application for interim energy codes and regulatory requirements, and to provide consumers with valuable subparagraph (B) of this paragraph. For every waiver of the applicable test procedures for purchasing information. Therefore, MEUS other system combination using the same the WR2 and WY CITY MULTI models listed respectfully requests that DOE apply the heat source unit as the tested combination, above. DOE’s regulations contain provisions alternate test procedure described below. MEUS shall make representations concerning allowing DOE to grant an interim waiver The proposed alternate test procedure will the WR2 and WY CITY MULTI products from the test procedure requirements to permit MEUS to designate a ‘‘tested covered in this waiver according to the manufacturers that have petitioned the combination’’ for each model of heat source provisions of subparagraph (C) below. Department for a waiver of such prescribed 30 unit with parameters on the indoor units that (B) Tested combination. The term ‘‘tested test procedures. As DOE has previously can be used in the tested combination. This combination’’ means a sample basic model stated, ‘‘an Interim Waiver will be granted if tested combination must be tested according comprised of units that are production units, it is determined that the applicant will to the applicable DOE test procedures. or are representative of production units, of experience economic hardship if the the basic model being tested. For the Application for Interim Waiver is denied, if purposes of this waiver, the tested it appears likely that the Petition for Waiver 25 Pursuant to EPCA, MEUS will not make representations regarding the energy efficiency of combination shall have the following will be granted, and/or the Assistant the products covered by a waiver except as may be features: Secretary determines that it would be specifically authorized by DOE. (i) The basic model of a variable refrigerant desirable for public policy reasons to grant 26 R410A Interim Waiver at 14861–3. flow system used as a tested combination immediate relief pending a determination for 27 See 42 U.S.C. 6314(d); 42 U.S.C. 6293(c). 28 R410A Interim Waiver at 14861. 29 R410A Interim Waiver at 14861–3. 30 10 CFR 431.401(a)(2).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17540 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

the Petition for Waiver.’’31 MEUS will MEUS’s WR2 and WY CITY MULTI products Dated this 30th day of October 2006. experience economic hardship if the are similar to the R22 and R410A CITY William Rau, application for interim waiver is denied. MULTI products, as well as the products for Senior Vice President and General Manager, Additionally, precedent indicates that DOE which Samsung Air Conditioning and Fujitsu HVAC Advanced Products Division, will likely grant MEUS’s petition for waiver. General Limited were granted interim 35 Mitsubishi Electric & Electronics USA, Inc., Finally, it is in the public interest to grant an waivers, and they will suffer the same 3400 Lawrenceville-Suwanee Road, Suwanee, interim waiver. Therefore, MEUS respectfully testing obstacles as those products. GA 30024. requests DOE to grant the application for Therefore, since it is in the public interest interim waiver. to have similar products tested and rated on [FR Doc. E7–6628 Filed 4–6–07; 8:45 am] MEUS plans to introduce the new WR2 a comparable basis, DOE should grant BILLING CODE 6450–01–P and WY products into the U.S. market early MEUS’s Application for Interim Waiver. in the first quarter of 2007. The procedure for IX. Conclusion granting a petition for waiver is a time- DEPARTMENT OF ENERGY consuming process—DOE must publish the MEUS seeks a waiver of the applicable test petition in the Federal Register, allow time procedures for the products listed in Section Federal Energy Regulatory for public comment, and then consider any IV above. Such a waiver is necessary because Commission comments before it makes a decision. Thus, the basic WR2 and WY CITY MULTI models the process typically takes a number of ‘‘contain[] one or more design characteristics [IC07–580–001, FERC Form 580] months. If an interim waiver is not granted, which * * * prevent testing of the basic MEUS will suffer economic hardship because model according to the prescribed test Commission Information Collection MEUS will be required to delay its procedures.’’ 36 MEUS respectfully asks the Activities, Proposed Collection; introduction of these products to U.S. Department of Energy to grant a waiver from Comment Request; Extension customers. existing test standards until such time as an In addition, DOE will likely grant MEUS’s appropriate test procedure is developed and April 3, 2007. petition for waiver. As described above, the adopted for this class of products. MEUS AGENCY: Federal Energy Regulatory design characteristics which prevented expects to continue working with ARI and Commission, DOE. testing of the basic model of the products DOE to develop appropriate test procedures. ACTION: Notice. listed in the 2004 CITY MULTI Waiver and MEUS further requests DOE to grant its the R410A Interim Waiver are present for the request for an interim waiver while its SUMMARY: In compliance with the new WR2 and WY models as well. The best Petition for Waiver is pending. requirements of section 3507 of the evidence that DOE is likely to grant this If you have any questions or would like to waiver petition is the fact that it granted a discuss this request, please contact Paul Paperwork Reduction Act of 1995, 44 similar petition in the 2004 CITY MULTI Doppel, at (678) 376–2923, or Douglas Smith U.S.C. 3507, the Federal Energy Waiver, and granted an interim waiver for the at (202) 298–1902. We greatly appreciate Regulatory Commission (Commission) R410A products on the basis that ‘‘it appears your attention to this matter. has submitted the information likely that the [R410A] Petition for Waiver Sincerely, collection described below to the Office 32 will be granted.’’ DOE also granted an William Rau, of Management and Budget (OMB) for interim waiver to Samsung Air Conditioning review and extension of this in 2005 stating that Samsung’s petition Senior Vice President and General Manager, HVAC Advanced Products Division, information collection requirement. Any would likely be granted because Samsung’s interested person may file comments products are quite similar to the MEUS’s Mitsubishi Electric & Electronics USA, Inc., CITY MULTI products, for which DOE 4300 Lawrenceville-Suwanee Road, directly with OMB and should address already granted a waiver.33 Suwanee, GA 30024. a copy of those comments to the Finally, DOE’s regulations state that the Mitsubishi Electric Commission as explained below. The Assistant Secretary may grant an interim Mitsubishi Electric & Electronics USA, Inc. Commission received comments from waiver if he determines that it would be HVAC Advanced Products Division 3400 two entities in response to an earlier desirable for public policy reasons to grant Lawrenceville-Suwanee Road, Suwanee, Federal Register notice of December 14, immediate relief pending a determination for GA 30024 2006 (71 FR 75238–75239) and has the Petition for Waiver. In response to CERTIFICATE provided responses to the commenters MEUS’s Application for Interim Waiver for its R410A products, DOE stated that ‘‘in I hereby certify that I have this day served in its submission to OMB. Copies of the those instances where the likely success of the foregoing Petition for Waiver and submission were also submitted to the the Petition for Waiver has been Application for Interim Waiver upon the commenters. demonstrated, based upon DOE having following company known to Mitsubishi DATES: Comments on the collection of granted a waiver for a similar product design, Electric & Electronics USA, Inc. to currently information are due by May 7, 2007. market systems in the United States which it is in the public interest to have similar ADDRESSES: Address comments on the products tested and rated for energy appear to be similar to the WR2 and WY consumption on a comparable basis.’’34 CITY MULTI VRFZ system design. I have collection of information to the Office of notified this manufacturer that the Assistant Management and Budget, Office of 31 Energy Conservation Program for Consumer Secretary for Energy Efficiency and Information and Regulatory Affairs, Products: Publication of the Petition for Waiver and Renewable Energy will receive and consider Attention: Federal Energy Regulatory Granting of the Application for Interim Waiver of timely written comments on the Application Commission Desk Officer. Comments to Samsung Air Conditioning From the DOE for Interim Waiver. OMB should be filed electronically, c/o Residential and Commercial Package Air Daikin AC (Americas), Inc., [email protected] and Conditioner and Heat Pump Test Procedures (Case 1645 Wallace Drive, Suite 110, Carrollton, TX No. CAC–009), 70 FR 9629, at 9630 (Feb. 28, 2005) include the OMB Control No. as a point 75006, Attn: Mike Bregenzer, VP and (Samsung Interim Waiver). See 10 CFR of reference. The Desk Officer may be GM. 431.201(e)(3) (2005). See also R410A Interim reached by telephone at 202–395–4650. Waiver at 14860. 32 R410A Interim Waiver at 14860. rated for energy consumption on a comparable A copy of the comments should also be 33 Samsung Interim Waiver at 9630. basis.’’ 70 FR at 9630. sent to the Federal Energy Regulatory 34 R410A Interim Waiver at 14860. DOE made the 35 Samsung Interim Waiver; Energy Conservation Commission, Office of the Executive same statement in the Samsung Interim Waiver, Program for Consumer Products: Publication of the Director, ED–34, Attention: Michael concluding that ‘‘in those instances where the likely Petition for Waiver of Fujitsu General Limited From Miller, 888 First Street, NE., success of the Petition for Waiver has been the DOE Residential Air Conditioner and Heat demonstrated, based upon DOE having granted a Pump Test Procedures (Case No. CAC–010), 70 FR Washington, DC 20426. Comments may waiver for a similar product design, it is in the 5980 (Feb. 4, 2005). be filed either in paper format or public interest to have similar products tested and 36 10 CFR 431.201(a)(1) (2005). electronically. Those persons filing

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17541

electronically do not need to make a U.S.C. 824d) to require the Commission DEPARTMENT OF ENERGY paper filing. For paper filings an to review ‘‘not less frequently than original and 14 copies, of such every two (2) years * * * of practices Federal Energy Regulatory comments should be submitted to the * * * to ensure efficient use of Commission Secretary of the Commission, Federal resources (including economical Energy Regulatory Commission, 888 purchase and use of fuel and electric [Docket No. RP07–370–000] First Street, NE., Washington, DC 20426 energy) * * *’’ The collection of this and should refer to Docket No. IC07– information is specifically required by Colorado Interstate Gas Company; 580–001. Federal statue (FPA Section 205(f)) and Notice of Tariff Filing Documents filed electronically via the thus the Commission lacks authority to April 3, 2007. Internet must be prepared in allow waivers for the filing of this WordPerfect, MS Word, Portable information. In addition, the Take notice that on March 28, 2007, Document Format, or ASCII format. To Commission entertains requests for Colorado Interstate Gas Company (CIG) file the document, access the confidential treatment pursuant to 18 tendered for filing as part of its FERC Commission’s Web site at http:// Gas Tariff, First Revised Volume No. 1, www.ferc.gov and click on ‘‘Make an E- CFR 388.112 for the coal mine price the tariff sheets listed in Appendix to Filing,’’ and then follow the instructions data and coal rail transportation cost the filing, to become effective May 28, for each screen. First time users will data submitted in response to questions 2007. have to establish a user name and 3(i) and 3(1.2), respectively, only when password. The Commission will send an disclosure would violate the terms of a Any person desiring to intervene or to automatic acknowledgement to the confidentiality clause of a rail protest this filing must file in sender’s e-mail address upon receipt of transportation contract. No other accordance with Rules 211 and 214 of comments. User assistance for electronic requests for confidential treatment are the Commission’s Rules of Practice and filings is available at 202–502–8258 or considered. The information is used to: Procedure (18 CFR 385.211 and by e-mail to [email protected]. Comments (1) Review as mandated by statute, fuel 385.214). Protests will be considered by should not be submitted to this e-mail purchase and cost recovery practices to the Commission in determining the address. ensure efficient use of resources, appropriate action to be taken, but will All comments may be viewed, printed including economical purchase and use not serve to make protestants parties to or downloaded remotely via the Internet of fuel and electric energy, under fuel the proceeding. Any person wishing to through FERC’s homepage using the adjustment clauses on file with the become a party must file a notice of ‘‘eLibrary’’ link. Enter the docket Commission; (2) evaluate fuel costs in intervention or motion to intervene, as number excluding the last three digits in individual rate filings; (3) to supplement appropriate. Such notices, motions, or the docket number field to access the periodic utility audits. The information protests must be filed in accordance document. For user assistance, contact has also been used by the Energy with the provisions of § 154.210 of the [email protected] or toll- Information Administration under a Commission’s regulations (18 CFR free at (866) 208–3676. or for TTY, Congressional mandate to study various 154.210). Anyone filing an intervention contact (202) 502–8659. aspects of coal, oil, and gas or protest must serve a copy of that FOR FURTHER INFORMATION CONTACT: transportation rates. document on the Applicant. Anyone Michael Miller may be reached by filing an intervention or protest on or telephone at (202) 502–8415, by fax at 5. Respondent Description: The before the intervention or protest date (202) 273–0873, and by e-mail at respondent universe currently [email protected]. comprises 114 companies (on average) need not serve motions to intervene or subject to the Commission’s protests on persons other than the SUPPLEMENTARY INFORMATION: jurisdiction. Applicant. Description 6. Estimated Burden: 3,600 total The Commission encourages The information collection submitted hours, 114 respondents (average), 57 electronic submission of protests and for OMB review contains the following: responses per respondent, and 63.16 interventions in lieu of paper using the 1. Collection of Information: FERC hour per response (rounded off and ‘‘eFiling’’ link at http://www.ferc.gov. 580 ‘‘Interrogatory on Fuel and Energy average time) Persons unable to file electronically Purchase Practices, Docket No. IN79–6’’. 7. Estimated Cost Burden to should submit an original and 14 copies 2. Sponsor: Federal Energy Regulatory respondents: 3,600 hours/2080 hours of the protest or intervention to the Commission. per years × $122,137 per year = Federal Energy Regulatory Commission, 3. Control No.: 1902–0137. $211,391. The cost per respondent is 888 First Street, NE., Washington, DC The Commission is now requesting 20426. that OMB approve and extend the equal to $1,854. This filing is accessible on-line at expiration date for an additional three Statutory Authority: Statutory provisions http://www.ferc.gov, using the years with no changes to the existing of sections 205(a) and (e) of the Federal collection. The information filed with Power Act, 16 U.S.C. 824d. ‘‘eLibrary’’ link and is available for the Commission is mandatory. review in the Commission’s Public 4. Necessity of the Collection of Philis J. Posey, Reference Room in Washington, DC. Information: Submission of the Acting Secretary. There is an ‘‘eSubscription’’ link on the information is necessary for the [FR Doc. E7–6561 Filed 4–6–07; 8:45 am] Web site that enables subscribers to Commission to carry out its BILLING CODE 6717–01–P receive e-mail notification when a responsibilities in implementing the document is added to a subscribed statutory provisions of the Federal docket(s). For assistance with any FERC Power Act (FPA). The FPA was Online service, please e-mail amended by the Public Utility [email protected], or call Regulatory Policies Act (49 Stat.851; 16

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17542 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

(866) 208–3676 (toll free). For TTY, call ‘‘eLibrary’’ link and is available for Persons unable to file electronically (202) 502–8659. review in the Commission’s Public should submit an original and 14 copies Reference Room in Washington, DC. of the protest or intervention to the Philis J. Posey, There is an ‘‘eSubscription’’ link on the Federal Energy Regulatory Commission, Acting Secretary. Web site that enables subscribers to 888 First Street, NE., Washington, DC [FR Doc. E7–6566 Filed 4–6–07; 8:45 am] receive e-mail notification when a 20426. BILLING CODE 6717–01–P document is added to a subscribed This filing is accessible on-line at docket(s). For assistance with any FERC http://www.ferc.gov, using the Online service, please e-mail ‘‘eLibrary’’ link and is available for DEPARTMENT OF ENERGY [email protected], or call review in the Commission’s Public Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call Reference Room in Washington, DC. Commission (202) 502–8659. There is an ‘‘eSubscription’’ link on the Web site that enables subscribers to Philis J. Posey, [Docket No. RP07–372–000] receive e-mail notification when a Acting Secretary. document is added to a subscribed Colorado Interstate Gas Company; [FR Doc. E7–6568 Filed 4–6–07; 8:45 am] docket(s). For assistance with any FERC Notice of Proposed Changes in FERC BILLING CODE 6717–01–P Online service, please e-mail Gas Tariff [email protected], or call April 3, 2007. (866) 208–3676 (toll free). For TTY, call DEPARTMENT OF ENERGY Take notice that on March 30, 2007, (202) 502–8659. Colorado Interstate Gas Company (CIG) Federal Energy Regulatory Philis J. Posey, tendered for filing as part of its FERC Commission Gas Tariff, Second Revised Volume No. Acting Secretary. 1, the following tariff sheets, to become [Docket No. RP07–368–000] [FR Doc. E7–6564 Filed 4–6–07; 8:45 am] effective May 1, 2007: BILLING CODE 6717–01–P Dominion Cove Point LNG, LP; Notice Fourth Revised Sheet No. 13C of Tariff Filing Fourth Revised Sheet No. 13D DEPARTMENT OF ENERGY Third Revised Sheet No. 13E April 3, 2007. CIG states that copies of its filing have Take notice that on March 30, 2007, Federal Energy Regulatory been served to all firm customers, Dominion Cove Point LNG, LP (Cove Commission interruptible customers and affected Point) tendered for filing as part of its state commissions. FERC Gas Tariff, Original Volume No. 1, [Docket No. RP07–371–000] Any person desiring to intervene or to First Revised Sheet No. 282, to become protest this filing must file in effective May 1, 2007. East Tennessee Natural Gas Company; accordance with Rules 211 and 214 of Cove Point states that the purpose of Notice of Cashout Report the Commission’s Rules of Practice and this filing is to modify General Terms Procedure (18 CFR 385.211 and and Conditions Section 28 of Cove April 3, 2007. 385.214). Protests will be considered by Point’s tariff to provide for the purchase Take notice that on March 30, 2007, the Commission in determining the of LNG or natural gas for operational East Tennessee Natural Gas, LLC (East appropriate action to be taken, but will purposes. Tennessee) tendered for filing its annual not serve to make protestants parties to Any person desiring to intervene or to cashout report for the November 2005 the proceeding. Any person wishing to protest this filing must file in through October 2006 period in become a party must file a notice of accordance with Rules 211 and 214 of accordance with Rate Schedules LMS– intervention or motion to intervene, as the Commission’s Rules of Practice and MA, LMS–PA, and PAL. appropriate. Such notices, motions, or Procedure (18 CFR 385.211 and East Tennessee states that copies of protests must be filed in accordance 385.214). Protests will be considered by the filing were mailed to all affected with the provisions of Section 154.210 the Commission in determining the customers of East Tennessee and of the Commission’s regulations (18 CFR appropriate action to be taken, but will interested state commissions. 154.210). Anyone filing an intervention not serve to make protestants parties to Any person desiring to intervene or to or protest must serve a copy of that the proceeding. Any person wishing to protest this filing must file in document on the Applicant. Anyone become a party must file a notice of accordance with Rules 211 and 214 of filing an intervention or protest on or intervention or motion to intervene, as the Commission’s Rules of Practice and before the intervention or protest date appropriate. Such notices, motions, or Procedure (18 CFR 385.211 and need not serve motions to intervene or protests must be filed in accordance 385.214). Protests will be considered by protests on persons other than the with the provisions of § 154.210 of the the Commission in determining the Applicant. Commission’s regulations (18 CFR appropriate action to be taken, but will The Commission encourages 154.210). Anyone filing an intervention not serve to make protestants parties to electronic submission of protests and or protest must serve a copy of that the proceeding. Any person wishing to interventions in lieu of paper using the document on the Applicant. Anyone become a party must file a notice of ‘‘eFiling’’ link at http://www.ferc.gov. filing an intervention or protest on or intervention or motion to intervene, as Persons unable to file electronically before the intervention or protest date appropriate. Such notices, motions, or should submit an original and 14 copies need not serve motions to intervene or protests must be filed on or before the of the protest or intervention to the protests on persons other than the date as indicated below. Anyone filing Federal Energy Regulatory Commission, Applicant. an intervention or protest must serve a 888 First Street, NE., Washington, DC The Commission encourages copy of that document on the Applicant. 20426. electronic submission of protests and Anyone filing an intervention or protest This filing is accessible on-line at interventions in lieu of paper using the on or before the intervention or protest http://www.ferc.gov, using the ‘‘eFiling’’ link at http://www.ferc.gov. date need not serve motions to intervene

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17543

or protests on persons other than the or protest must serve a copy of that [email protected] or call Applicant. document on the Applicant. Anyone toll-free, (886) 208–3676 or TTY, (202) The Commission encourages filing an intervention or protest on or 502–8659. electronic submission of protests and before the intervention or protest date Specifically, Equitrans proposes to interventions in lieu of paper using the need not serve motions to intervene or replace approximately 12.65 ‘‘eFiling’’ link at http://www.ferc.gov. protests on persons other than the noncontiguous miles of sixteen-inch Persons unable to file electronically Applicant. diameter bare steel pipe with sixteen- should submit an original and 14 copies The Commission encourages inch diameter coated steel pipe, located of the protest or intervention to the electronic submission of protests and in Allegheny County, Pennsylvania. Federal Energy Regulatory Commission, interventions in lieu of paper using the Equitrans estimates the cost of 888 First Street, NE., Washington, DC ‘‘eFiling’’ link at http://www.ferc.gov. construction to be $24,594,494. 20426. Persons unable to file electronically Equitrans states the replacement project This filing is accessible on-line at should submit an original and 14 copies is necessitated by the age and condition http://www.ferc.gov, using the of the protest or intervention to the of the existing bare steel pipeline. ‘‘eLibrary’’ link and is available for Federal Energy Regulatory Commission, Any questions regarding the review in the Commission’s Public 888 First Street, NE., Washington, DC application should be directed to David Reference Room in Washington, DC. 20426. K. Dewey, Vice President & General There is an ‘‘eSubscription’’ link on the This filing is accessible on-line at Counsel, Equitrans, L.P., 225 North Web site that enables subscribers to http://www.ferc.gov, using the Shore Drive, Pittsburgh, Pennsylvania receive e-mail notification when a ‘‘eLibrary’’ link and is available for 15212 at (412) 395–2566. document is added to a subscribed review in the Commission’s Public Any person or the Commission’s Staff docket(s). For assistance with any FERC Reference Room in Washington, DC. may, within 60 days after the issuance Online service, please e-mail There is an ‘‘eSubscription’’ link on the of the instant notice by the Commission, [email protected], or call Web site that enables subscribers to file pursuant to Rule 214 of the (866) 208–3676 (toll free). For TTY, call receive e-mail notification when a Commission’s Procedural Rules (18 CFR (202) 502–8659. document is added to a subscribed 385.214) a motion to intervene or notice Comment Date: 5 p.m. Eastern Time docket(s). For assistance with any FERC of intervention and, pursuant to April 11, 2007. Online service, please e-mail § 157.205 of the Commission’s [email protected], or call Regulations under the Natural Gas Act Philis J. Posey, (866) 208–3676 (toll free). For TTY, call (NGA) (18 CFR 157.205) a protest to the Acting Secretary. (202) 502–8659. request. If no protest is filed within the [FR Doc. E7–6567 Filed 4–6–07; 8:45 am] time allowed therefore, the proposed Philis J. Posey, BILLING CODE 6717–01–P activity shall be deemed to be Acting Secretary. authorized effective the day after the [FR Doc. E7–6565 Filed 4–6–07; 8:45 am] time allowed for protest. If a protest is DEPARTMENT OF ENERGY BILLING CODE 6717–01–P filed and not withdrawn within 30 days Federal Energy Regulatory after the time allowed for filing a Commission protest, the instant request shall be DEPARTMENT OF ENERGY treated as an application for [Docket No. RP07–369–000] Federal Energy Regulatory authorization pursuant to Section 7 of Commission the NGA. Enbridge Offshore Pipelines (UTOS) The Commission strongly encourages LLC; Notice of Tariff Filing and [Docket No. CP07–85–000] electronic filings of comments, protests, Transportation Service Agreement and interventions via the Internet in lieu Equitrans, L.P.; Notice of Request of paper. See 18 CFR 385.2001(a)(1)(iii) April 3, 2007. Under Blanket Authorization Take notice that on March 30, 2007, and the instructions on the Enbridge Offshore Pipelines (UTOS) April 3, 2007. Commission’s Web site (http:// LLC (UTOS) tendered for filing as part Take notice that on February 16, 2007, www.ferc.gov) under the ‘‘e-Filing’’ link. of its FERC Gas Tariff, Fifth Revised Equitrans, L.P. (Equitrans), 225 North Philis J. Posey, Volume No. 1, First Revised Sheet No. Shore Drive, Pittsburgh, Pennsylvania Acting Secretary. 165, to become effective April 1, 2007. 15212, filed in Docket No. CP07–85– [FR Doc. E7–6559 Filed 4–6–07; 8:45 am] Any person desiring to intervene or to 000, a prior notice request pursuant to BILLING CODE 6717–01–P protest this filing must file in sections 157.205, 157.208, and 157.216 accordance with Rules 211 and 214 of of the Federal Energy Regulatory the Commission’s Rules of Practice and Commission’s regulations under the DEPARTMENT OF ENERGY Procedure (18 CFR 385.211 and Natural Gas Act to replace 385.214). Protests will be considered by approximately 12.65 miles of Line No. Federal Energy Regulatory the Commission in determining the H–152, located in Allegheny County, Commission appropriate action to be taken, but will Pennsylvania, all as more fully set forth [Docket No. RP07–374–000] not serve to make protestants parties to in the application, which is on file with the proceeding. Any person wishing to the Commission and open to public Hardy Storage Company, LLC; Notice become a party must file a notice of inspection. The filing may also be of Tariff Filing and Non-Conforming intervention or motion to intervene, as viewed on the Web at http:// Service Agreements appropriate. Such notices, motions, or www.ferc.gov using the ‘‘eLibrary’’ link. protests must be filed in accordance Enter the docket number excluding the April 3, 2007. with the provisions of § 154.210 of the last three digits in the docket number Take notice that on March 30, 2007 Commission’s regulations (18 CFR field to access the document. For Hardy Storage Company, LLC (Hardy) 154.210). Anyone filing an intervention assistance, contact FERC at tendered for filing as part of its FERC

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17544 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Gas Tariff, Original Volume No. 1, the docket(s). For assistance with any FERC Web site that enables subscribers to following tariff sheets, with a proposed Online service, please e-mail receive e-mail notification when a effective date of April 1, 2007: [email protected], or call document is added to a subscribed First Revised Sheet No. 197. (866) 208–3676 (toll free). For TTY, call docket(s). For assistance with any FERC Original Sheet No. 200. (202) 502–8659. Online service, please e-mail [email protected], or call Philis J. Posey, Hardy also tendered for filing the (866) 208–3676 (toll free). For TTY, call following four non-conforming Service Acting Secretary. (202) 502–8659. Agreements for consideration and [FR Doc. E7–6570 Filed 4–6–07; 8:45 am] approval: BILLING CODE 6717–01–P Philis J. Posey, (1) HSS Service Agreement between Acting Secretary. Hardy Storage Company, LLC and [FR Doc. E7–6573 Filed 4–6–07; 8:45 am] Baltimore Gas & Electric Company DEPARTMENT OF ENERGY BILLING CODE 6717–01–P (Dated February 2, 2006); (2) HSS Service Agreement between Federal Energy Regulatory Hardy Storage Company, LLC and City Commission DEPARTMENT OF ENERGY of Charlottesville (Dated February 2, [Docket No. RP07–377–000] 2006); Federal Energy Regulatory (3) HSS Service Agreement between National Fuel Gas Supply Corporation; Commission Hardy Storage Company, LLC and Notice of Tariff Filing [Docket No. RR07–11–000] Piedmont Natural Gas Company (Dated February 2, 2006); and April 3, 2007. North American Electric Reliability (4) HSS Service Agreement between Take notice that on March 30, 2007, Corporation; Notice of Filing Hardy Storage Company, LLC and National Fuel Gas Supply Corporation Washington Gas Light Company (Dated (National) tendered for filing as part of April 3, 2007. February 2, 2006). its FERC Gas Tariff, Fourth Revised Take notice that on March 26, 2007, Any person desiring to intervene or to Volume No. 1, One Hundredth Revised The North American Electric Reliability protest this filing must file in Sheet No. 9, to become effective March Corporation filed a request for approval accordance with Rules 211 and 214 of 1, 2007. of the eight Regional Reliability the Commission’s Rules of Practice and Any person desiring to intervene or to Standards proposed by the Western Procedure (18 CFR 385.211 and protest this filing must file in Electricity Coordinating Council for the 385.214). Protests will be considered by accordance with Rules 211 and 214 of Western Interconnection, pursuant to the Commission in determining the the Commission’s Rules of Practice and section 215(d)(1) of the Federal Power appropriate action to be taken, but will Procedure (18 CFR 385.211 and Act and section 39.5 of the not serve to make protestants parties to 385.214). Protests will be considered by Commission’s Regulations, 18 CFR 39.5. the proceeding. Any person wishing to the Commission in determining the The Commission is seeking public become a party must file a notice of appropriate action to be taken, but will comment on the proposed regional intervention or motion to intervene, as not serve to make protestants parties to differences. appropriate. Such notices, motions, or the proceeding. Any person wishing to Any person desiring to intervene or to protests must be filed in accordance become a party must file a notice of protest this filing must file in with the provisions of § 154.210 of the intervention or motion to intervene, as accordance with Rules 211 and 214 of Commission’s regulations (18 CFR appropriate. Such notices, motions, or the Commission’s Rules of Practice and 154.210). Anyone filing an intervention protests must be filed in accordance Procedure (18 CFR 385.211, 385.214). or protest must serve a copy of that with the provisions of § 154.210 of the Protests will be considered by the document on the Applicant. Anyone Commission’s regulations (18 CFR Commission in determining the filing an intervention or protest on or 154.210). Anyone filing an intervention appropriate action to be taken, but will before the intervention or protest date or protest must serve a copy of that not serve to make protestants parties to need not serve motions to intervene or document on the Applicant. Anyone the proceeding. Any person wishing to protests on persons other than the filing an intervention or protest on or become a party must file a notice of Applicant. before the intervention or protest date intervention or motion to intervene, as The Commission encourages need not serve motions to intervene or appropriate. Such notices, motions, or electronic submission of protests and protests on persons other than the protests must be filed on or before the interventions in lieu of paper using the Applicant. comment date. On or before the ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages comment date, it is not necessary to Persons unable to file electronically electronic submission of protests and serve motions to intervene or protests should submit an original and 14 copies interventions in lieu of paper using the on persons other than the Applicant. of the protest or intervention to the ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages Federal Energy Regulatory Commission, Persons unable to file electronically electronic submission of comments in 888 First Street, NE., Washington, DC should submit an original and 14 copies lieu of paper using the ‘‘eFiling’’ link at 20426. of the protest or intervention to the http://www.ferc.gov. Persons unable to This filing is accessible on-line at Federal Energy Regulatory Commission, file electronically should submit an http://www.ferc.gov, using the 888 First Street, NE., Washington, DC original and 14 copies of comments to ‘‘eLibrary’’ link and is available for 20426. the Federal Energy Regulatory review in the Commission’s Public This filing is accessible on-line at Commission, 888 First Street, NE., Reference Room in Washington, DC. http://www.ferc.gov, using the Washington, DC 20426. There is an ‘‘eSubscription’’ link on the ‘‘eLibrary’’ link and is available for This filing is accessible on-line at Web site that enables subscribers to review in the Commission’s Public http://www.ferc.gov, using the receive e-mail notification when a Reference Room in Washington, DC. ‘‘eLibrary’’ link and is available for document is added to a subscribed There is an ‘‘eSubscription’’ link on the review in the Commission’s Public

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17545

Reference Room in Washington, DC. need not serve motions to intervene or appropriate. Such notices, motions, or There is an ‘‘eSubscription’’ link on the protests on persons other than the protests must be filed in accordance Web site that enables subscribers to Applicant. with the provisions of § 154.210 of the receive e-mail notification when a The Commission encourages Commission’s regulations (18 CFR document is added to a subscribed electronic submission of protests and 154.210). Anyone filing an intervention docket(s). For assistance with any FERC interventions in lieu of paper using the or protest must serve a copy of that Online service, please e-mail ‘‘eFiling’’ link at http://www.ferc.gov. document on the Applicant. Anyone [email protected], or call Persons unable to file electronically filing an intervention or protest on or (866) 208–3676 (toll free). For TTY, call should submit an original and 14 copies before the intervention or protest date (202) 502–8659. of the protest or intervention to the need not serve motions to intervene or Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Commission, protests on persons other than the on April 17, 2007. 888 First Street, NE., Washington, DC Applicant. 20426. The Commission encourages Philis J. Posey, This filing is accessible on-line at electronic submission of protests and Acting Secretary. http://www.ferc.gov, using the interventions in lieu of paper using the [FR Doc. E7–6576 Filed 4–6–07; 8:45 am] ‘‘eLibrary’’ link and is available for ‘‘eFiling’’ link at http://www.ferc.gov. BILLING CODE 6717–01–P review in the Commission’s Public Persons unable to file electronically Reference Room in Washington, DC. should submit an original and 14 copies There is an ‘‘eSubscription’’ link on the of the protest or intervention to the DEPARTMENT OF ENERGY Web site that enables subscribers to Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC Federal Energy Regulatory receive e-mail notification when a 20426. Commission document is added to a subscribed docket(s). For assistance with any FERC This filing is accessible on-line at [Docket No. RP96–272–064] Online service, please e-mail http://www.ferc.gov, using the [email protected], or call ‘‘eLibrary’’ link and is available for Northern Natural Gas Company; Notice (866) 208–3676 (toll free). For TTY, call review in the Commission’s Public of Negotiated Rates (202) 502–8659. Reference Room in Washington, DC. There is an ‘‘eSubscription’’ link on the April 3, 2007. Philis J. Posey, Web site that enables subscribers to Take notice that on March 30, 2007, Acting Secretary. receive e-mail notification when a Northern Natural Gas Company document is added to a subscribed (Northern) tendered for filing to become [FR Doc. E7–6574 Filed 4–6–07; 8:45 am] docket(s). For assistance with any FERC part of its FERC Gas Tariff, Fifth Revised BILLING CODE 6717–01–P Online service, please e-mail Volume No. 1, the following tariff sheets [email protected], or call proposed to be effective on April 1, DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call 2007: (202) 502–8659. 48 Revised Sheet No. 66 Federal Energy Regulatory 40 Revised Sheet No. 66A Commission Philis J. Posey, Ninth Revised Sheet No. 66B Acting Secretary. [Docket No. RP07–367–000] First Revised Sheet No. 66B.01 [FR Doc. E7–6563 Filed 4–6–07; 8:45 am] Northern also requests to change the Panhandle Eastern Pipe Line BILLING CODE 6717–01–P name of WPS Energy Services, Inc. to Company, LP; Notice of Tariff Filing Integrys Energy Services, Inc. as a result of the company changing its name. April 3, 2007. DEPARTMENT OF ENERGY Northern further states that copies of Take notice that on March 30, 2007, the filing have been mailed to each of Panhandle Eastern Pipe Line Company, Federal Energy Regulatory its customers and interested state LP (Panhandle) tendered for filing as Commission commissions. part of its FERC Gas Tariff, Third [Docket No. RP07–375–000] Any person desiring to intervene or to Revised Volume No. 1, the sheets listed protest this filing must file in in Appendix A attached to the filing, Tennessee Gas Pipeline Company; accordance with Rules 211 and 214 of effective May 1, 2007. Notice of Proposed Changes in FERC the Commission’s Rules of Practice and Panhandle states that this filing is Gas Tariff Procedure (18 CFR 385.211 and made in accordance with Section 25.1 April 3, 2007. 385.214). Protests will be considered by (Flow Through of CashOut Revenues in Take notice that on March 30, 2007 the Commission in determining the Excess of Costs) of the General Terms Tennessee Gas Pipeline Company appropriate action to be taken, but will and Conditions in Panhandle’s FERC (Tennessee) tendered for filing as part of not serve to make protestants parties to Gas Tariff, Third Revised Volume No. 1. its FERC Gas Tariff, Fifth Revised the proceeding. Any person wishing to Any person desiring to intervene or to Volume No. 1, the following tariff become a party must file a notice of protest this filing must file in sheets, to become effective May 1, 2007: intervention or motion to intervene, as accordance with Rules 211 and 214 of appropriate. Such notices, motions, or the Commission’s Rules of Practice and Seventh Revised Sheet No. 203. protests must be filed in accordance Procedure (18 CFR 385.211 and Seventh Revised Sheet No. 211. with the provisions of Section 154.210 385.214). Protests will be considered by Any person desiring to intervene or to of the Commission’s regulations (18 CFR the Commission in determining the protest this filing must file in 154.210). Anyone filing an intervention appropriate action to be taken, but will accordance with Rules 211 and 214 of or protest must serve a copy of that not serve to make protestants parties to the Commission’s Rules of Practice and document on the Applicant. Anyone the proceeding. Any person wishing to Procedure (18 CFR 385.211 and filing an intervention or protest on or become a party must file a notice of 385.214). Protests will be considered by before the intervention or protest date intervention or motion to intervene, as the Commission in determining the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17546 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

appropriate action to be taken, but will Commission grant waiver of Section DEPARTMENT OF ENERGY not serve to make protestants parties to 43.5 of the GT&C in order for Transco the proceeding. Any person wishing to to recognize the appropriate accounting Federal Energy Regulatory become a party must file a notice of from the sale in its gas inventory Commission intervention or motion to intervene, as account. [Docket No. RP96–359–033] appropriate. Such notices, motions, or Any person desiring to intervene or to protests must be filed in accordance Transcontinental Gas Pipe Line protest this filing must file in with the provisions of § 154.210 of the Corporation; Notice of Negotiated Rate Commission’s regulations (18 CFR accordance with Rules 211 and 214 of 154.210). Anyone filing an intervention the Commission’s Rules of Practice and April 3, 2007. or protest must serve a copy of that Procedure (18 CFR 385.211 and Take notice that on March 29, 2007, document on the Applicant. Anyone 385.214). Protests will be considered by Transcontinental Gas Pipe Line filing an intervention or protest on or the Commission in determining the Corporation (Transco) tendered for before the intervention or protest date appropriate action to be taken, but will filing three executed service agreements need not serve motions to intervene or not serve to make protestants parties to between Transco and City of Monroe, protests on persons other than the the proceeding. Any person wishing to North Carolina, Hess Corporation, and Applicant. become a party must file a notice of Greenville Utilities Commission and an The Commission encourages intervention or motion to intervene, as executed amendment to service electronic submission of protests and appropriate. Such notices, motions, or agreement between Transco and interventions in lieu of paper using the protests must be filed on or before the Progress Ventures, Inc. all of which pertain to negotiated rate agreements for ‘‘eFiling’’ link at http://www.ferc.gov. date as indicated below. Anyone filing firm transportation service under Persons unable to file electronically an intervention or protest must serve a should submit an original and 14 copies Transco’s Momentum Expansion copy of that document on the Applicant. Project. The effective date of the of the protest or intervention to the Anyone filing an intervention or protest Federal Energy Regulatory Commission, agreements is April 1, 2007. on or before the intervention or protest Any person desiring to intervene or to 888 First Street, NE., Washington, DC date need not serve motions to intervene protest this filing must file in 20426. or protests on persons other than the accordance with Rules 211 and 214 of This filing is accessible on-line at Applicant. http://www.ferc.gov, using the the Commission’s Rules of Practice and Procedure (18 CFR 385.211 and ‘‘eLibrary’’ link and is available for The Commission encourages 385.214). Protests will be considered by review in the Commission’s Public electronic submission of protests and the Commission in determining the Reference Room in Washington, DC. interventions in lieu of paper using the appropriate action to be taken, but will There is an ‘‘eSubscription’’ link on the ‘‘eFiling’’ link at http://www.ferc.gov. not serve to make protestants parties to Web site that enables subscribers to Persons unable to file electronically the proceeding. Any person wishing to receive e-mail notification when a should submit an original and 14 copies become a party must file a notice of document is added to a subscribed of the protest or intervention to the intervention or motion to intervene, as docket(s). For assistance with any FERC Federal Energy Regulatory Commission, appropriate. Such notices, motions, or Online service, please e-mail 888 First Street, NE., Washington, DC protests must be filed in accordance [email protected], or call 20426. with the provisions of § 154.210 of the (866) 208–3676 (toll free). For TTY, call This filing is accessible on-line at Commission’s regulations (18 CFR (202) 502–8659. http://www.ferc.gov, using the 154.210). Anyone filing an intervention Philis J. Posey, ‘‘eLibrary’’ link and is available for or protest must serve a copy of that Acting Secretary. review in the Commission’s Public document on the Applicant. Anyone [FR Doc. E7–6571 Filed 4–6–07; 8:45 am] Reference Room in Washington, DC. filing an intervention or protest on or BILLING CODE 6717–01–P There is an ‘‘eSubscription’’ link on the before the intervention or protest date Web site that enables subscribers to need not serve motions to intervene or receive e-mail notification when a protests on persons other than the DEPARTMENT OF ENERGY document is added to a subscribed Applicant. docket(s). For assistance with any FERC The Commission encourages Federal Energy Regulatory Online service, please e-mail electronic submission of protests and Commission interventions in lieu of paper using the [email protected], or call ‘‘eFiling’’ link at http://www.ferc.gov. [Docket No. RP07–376–000] (866) 208–3676 (toll free). For TTY, call Persons unable to file electronically (202) 502–8659. Transcontinental Gas Pipe Line should submit an original and 14 copies Corporation; Notice of Authorization Comment Date: 5 p.m. Eastern Time of the protest or intervention to the and Waiver April 11, 2007. Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC Philis J. Posey, April 3, 2007. 20426. Take notice that on March 30, 2007, Acting Secretary. This filing is accessible on-line at Transcontinental Gas Pipe Line [FR Doc. E7–6572 Filed 4–6–07; 8:45 am] http://www.ferc.gov, using the Corporation (Transco) seeks BILLING CODE 6717–01–P ‘‘eLibrary’’ link and is available for authorization from the Commission to review in the Commission’s Public use the posting and bid evaluation Reference Room in Washington, DC. procedures in Section 43 of the General There is an ‘‘eSubscription’’ link on the Terms & Conditions of its FERC Gas Web site that enables subscribers to Tariff (GT&C) to sell certain excess top receive e-mail notification when a gas inventory. In conjunction with such document is added to a subscribed sale, Transco requests that the docket(s). For assistance with any FERC

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17547

Online service, please e-mail [email protected], or call docket(s). For assistance with any FERC [email protected], or call (866) 208–3676 (toll free). For TTY, call Online service, please e-mail (866) 208–3676 (toll free). For TTY, call (202) 502–8659. [email protected], or call (202) 502–8659. (866) 208–3676 (toll free). For TTY, call Philis J. Posey, (202) 502–8659. Philis J. Posey, Acting Secretary. Acting Secretary. [FR Doc. E7–6562 Filed 4–6–07; 8:45 am] Philis J. Posey, [FR Doc. E7–6575 Filed 4–6–07; 8:45 am] BILLING CODE 6717–01–P Acting Secretary. BILLING CODE 6717–01–P [FR Doc. E7–6569 Filed 4–6–07; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Federal Energy Regulatory DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Commission Federal Energy Regulatory [Docket No. RP07–373–000] Commission [Docket No. RP07–366–000] Wyoming Interstate Company, Ltd; [Docket No. EL07–52–000] Vector Pipeline L.P.; Notice of Annual Notice of Tariff Filing Fuel Use Report Louisiana Public Service Commission, April 3, 2007. Complainant, v. Entergy Corporation; April 3, 2007. Take notice that on March 30, 2007, Entergy Services, Inc.; Entergy Take notice that on March 30, 2007, Wyoming Interstate Company, LTD Louisiana, LLC; Entergy Arkansas, Vector Pipeline L.P. (Vector) tendered (WIC) tendered for filing as part of its Inc.; Entergy Mississippi, Inc.; Entergy for filing an annual report of its monthly FERC Gas Tariff, Second Revised New Orleans, Inc.; Entergy Gulf States, fuel use ratios for the period January 1, Volume No. 2, Ninth Revised Sheet No. Inc., Respondents; Notice of Complaint 2006 through December 31, 2006. 64 to become effective May 1, 2007. Any person desiring to intervene or to Any person desiring to intervene or to April 3, 2007. protest this filing must file in protest this filing must file in Take notice that on April 3, 2007, accordance with Rules 211 and 214 of accordance with Rules 211 and 214 of Louisiana Public Service Commission the Commission’s Rules of Practice and the Commission’s Rules of Practice and tendered for filing, pursuant to Rule 206 Procedure (18 CFR 385.211 and Procedure (18 CFR 385.211 and of the Rules of Practice and Procedure 385.214). Protests will be considered by 385.214). Protests will be considered by of the Federal Regulatory Energy the Commission in determining the the Commission in determining the Commission (Commission) and section appropriate action to be taken, but will appropriate action to be taken, but will 206 of the Federal Power Act, 16 U.S.C. not serve to make protestants parties to not serve to make protestants parties to 824e, seeks revisions to the Entergy the proceeding. Any person wishing to the proceeding. Any person wishing to System Agreement Service Schedule become a party must file a notice of become a party must file a notice of MSS–3 because that Service Schedule is intervention or motion to intervene, as intervention or motion to intervene, as unjust, unreasonable, unduly appropriate. Such notices, motions, or appropriate. Such notices, motions, or discriminatory and conflicts with protests must be filed on or before the protests must be filed in accordance principles established in prior decisions date as indicated below. Anyone filing with the provisions of Section 154.210 of the Commission. an intervention or protest must serve a of the Commission’s regulations (18 CFR Any person desiring to intervene or to copy of that document on the Applicant. 154.210). Anyone filing an intervention protest this filing must file in Anyone filing an intervention or protest or protest must serve a copy of that accordance with Rules 211 and 214 of on or before the intervention or protest document on the Applicant. Anyone the Commission’s Rules of Practice and date need not serve motions to intervene filing an intervention or protest on or Procedure (18 CFR 385.211, 385.214). or protests on persons other than the before the intervention or protest date Protests will be considered by the Applicant. need not serve motions to intervene or Commission in determining the The Commission encourages protests on persons other than the appropriate action to be taken, but will electronic submission of protests and Applicant. not serve to make protestants parties to interventions in lieu of paper using the The Commission encourages the proceeding. Any person wishing to ‘‘eFiling’’ link at http://www.ferc.gov. electronic submission of protests and become a party must file a notice of Persons unable to file electronically interventions in lieu of paper using the intervention or motion to intervene, as should submit an original and 14 copies ‘‘eFiling’’ link at http://www.ferc.gov. appropriate. The Respondent’s answer of the protest or intervention to the Persons unable to file electronically and all interventions, or protests must Federal Energy Regulatory Commission, should submit an original and 14 copies be filed on or before the comment date. 888 First Street, NE., Washington, DC of the protest or intervention to the The Respondent’s answer, motions to 20426. Federal Energy Regulatory Commission, intervene, and protests must be served This filing is accessible on-line at 888 First Street, NE., Washington, DC on the Complainants. http://www.ferc.gov, using the 20426. The Commission encourages ‘‘eLibrary’’ link and is available for This filing is accessible on-line at electronic submission of protests and review in the Commission’s Public http://www.ferc.gov, using the interventions in lieu of paper using the Reference Room in Washington, DC. ‘‘eLibrary’’ link and is available for ‘‘eFiling’’ link at http://www.ferc.gov. There is an ‘‘eSubscription’’ link on the review in the Commission’s Public Persons unable to file electronically Web site that enables subscribers to Reference Room in Washington, DC. should submit an original and 14 copies receive e-mail notification when a There is an ‘‘eSubscription’’ link on the of the protest or intervention to the document is added to a subscribed Web site that enables subscribers to Federal Energy Regulatory Commission, docket(s). For assistance with any FERC receive e-mail notification when a 888 First Street, NE., Washington, DC Online service, please e-mail document is added to a subscribed 20426.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17548 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

This filing is accessible on-line at 207 et al to FERC Electric Tariff, Interconnection Service Agreement w/ http://www.ferc.gov, using the Original Volume 6 pursuant to section Industrial Power Generating Company, ‘‘eLibrary’’ link and is available for 205 of the FPA. LLC et al. review in the Commission’s Public Filed Date: 3/30/2007. Filed Date: 3/30/2007. Reference Room in Washington, DC. Accession Number: 20070402–0070. Accession Number: 20070403–0215. There is an ‘‘eSubscription’’ link on the Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Web site that enables subscribers to on Friday, April 20, 2007. on Friday, April 20, 2007. receive e-mail notification when a Docket Numbers: ER07–680–000. Docket Numbers: ER07–690–000. document is added to a subscribed Applicants: ISO New England Inc; Applicants: LG&E Energy Marketing docket(s). For assistance with any FERC New England Power Pool. Inc. Online service, please e-mail Description: ISO New England Inc et Description: LG&E Energy Marketing, [email protected], or call al jointly submit their Market Rule 1 Inc submits limited amendments to its (866) 208–3676 (toll free). For TTY, call and Billing Policy changes relating to Tariff for Cost-Based Sales of Capacity (202) 502–8659. Meter Data Errors. and Energy. Comment Date: 5 p.m. Eastern Time Filed Date: 3/30/2007. Filed Date: 3/30/2007. on April 30, 2007. Accession Number: 20070403–0092. Accession Number: 20070403–0043. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Philis J. Posey, on Friday, April 20, 2007. on Friday, April 20, 2007. Acting Secretary. Docket Numbers: ER07–681–000. Docket Numbers: ER07–692–000. [FR Doc. E7–6560 Filed 4–6–07; 8:45 am] Applicants: Electric Energy, Inc. Applicants: Florida Power BILLING CODE 6717–01–P Description: Electric Energy, Inc Corporation. submits modification 19 to a Power Description: Florida Power Contract dated 9/2/87 with the U.S. Corporation dba Progress Energy DEPARTMENT OF ENERGY Dept of Energy designated as contract Florida, Inc submits a cost-based Power DE–AC05–760R01312 (Schedule FERC Sales Agreement with Seminole Electric Federal Energy Regulatory 10). Cooperative, Inc. Commission Filed Date: 3/30/2007. Filed Date: 3/30/2007. Accession Number: 20070403–0032. Accession Number: 20070403–0216. Combined Notice of Filings #1 Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on Friday, April 20, 2007. April 3, 2007. on Friday, April 20, 2007. Any person desiring to intervene or to Take notice that the Commission Docket Numbers: ER07–682–000. protest in any of the above proceedings received the following electric rate Applicants: Entergy Services, Inc. must file in accordance with Rules 211 filings: Description: Entergy Operating Docket Numbers: ER05–741–001. Companies submits amendments to the and 214 of the Commission’s Rules of Applicants: Public Service Company Entergy System Agreement to make Practice and Procedure (18 CFR 385.211 of New Mexico. adjustments to its compliance filing and 385.214) on or before 5 p.m. Eastern Description: Public Service Company made on 12/18/06. Time on the specified comment date. It of New Mexico submits its second Filed Date: 3/30/2007. is not necessary to separately intervene Revised Sheet 40 et al to implement the Accession Number: 20070403–0089. again in a subdocket related to a Offer of Settlement approved in the Comment Date: 5 p.m. Eastern Time compliance filing if you have previously Settlement Order. on Friday, April 20, 2007. intervened in the same docket. Protests Filed Date: 3/30/2007. Docket Numbers: ER07–683–000. will be considered by the Commission Accession Number: 20070403–0097. Applicants: Entergy Services, Inc. in determining the appropriate action to Comment Date: 5 p.m. Eastern Time Description: Entergy Services Inc, be taken, but will not serve to make on Friday, April 20, 2007. agent and on behalf of the Entergy protestants parties to the proceeding. Docket Numbers: ER06–185–008. Operating Companies submits an Anyone filing a motion to intervene or Applicants: New York Independent amendment to the Entergy System protest must serve a copy of that System Operator, Inc. Agreement. document on the Applicant. In reference Description: New York Independent Filed Date: 3/30/2007. to filings initiating a new proceeding, System Operator submits a Accession Number: 20070403–0091. interventions or protests submitted on supplemental to its 12/29/06 filing Comment Date: 5 p.m. Eastern Time or before the comment deadline need pursuant to FERC’s 4/7/06 Order. on Friday, April 20, 2007. not be served on persons other than the Filed Date: 3/29/2007. Docket Numbers: ER07–684–000. Applicant. Accession Number: 20070402–0090. Applicants: Entergy Services, Inc. The Commission encourages Comment Date: 5 p.m. Eastern Time Description: Entergy Services Inc, electronic submission of protests and on Thursday, April 19, 2007. interventions in lieu of paper, using the Docket Numbers: ER07–274–001. agent on behalf of the Entergy Operating FERC Online links at http:// Applicants: Juice Energy, Inc. Companies submits an amendment to Description: Juice Energy, Inc submits one provision of Service Schedule www.ferc.gov. To facilitate electronic a notice of change in status pursuant to MSS–3, Section 30.12, to the Entergy service, persons with Internet access the requirements of Order 652. System Agreement. who will eFile a document and/or be Filed Date: 3/30/2007. Filed Date: 3/30/2007. listed as a contact for an intervenor Accession Number: 20070403–0093. Accession Number: 20070403–0090. must create and validate an Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time eRegistration account using the on Friday, April 20, 2007. on Friday, April 20, 2007. eRegistration link. Select the eFiling Docket Numbers: ER07–679–000. Docket Numbers: ER07–689–000. link to log on and submit the Applicants: Public Service Company Applicants: PJM Interconnection, intervention or protests. of New Mexico. L.L.C. Persons unable to file electronically Description: Public Service Company Description: PJM Interconnection, should submit an original and 14 copies of New Mexico submits Substitute Sheet LLC submits an executed of the intervention or protest to the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17549

Federal Energy Regulatory Commission, temporarily for project purposes, or who would comprise about 6.7 acres of 888 First St., NE., Washington, DC own homes within distances defined in permanently affected land. A new 20426. the Commission’s regulations of certain 1,485-foot-long access road would be The filings in the above proceedings aboveground facilities. We encourage constructed surrounding the compressor are accessible in the Commission’s government representatives to notify station building, permanently disturbing eLibrary system by clicking on the their constituents of this planned 0.5 acre of land. appropriate link in the above list. They project and encourage them to comment A 75-foot-wide construction right-of- are also available for review in the on their areas of concern. way is proposed for the associated Commission’s Public Reference Room in A fact sheet prepared by the FERC pipeline. Petal would maintain a 50- Washington, DC. There is an entitled ‘‘An Interstate Natural Gas foot-wide permanent right-of-way for eSubscription link on the Web site that Facility on My Land? What Do I Need operation and maintenance of the enables subscribers to receive e-mail to Know?’’ was attached to the project proposed facilities. Permanent notification when a document is added notice provided to landowners. This fact disturbance of the pipeline would total to a subscribed docket(s). For assistance sheet addresses a number of typically about 1.8 acres. All land that would be with any FERC Online service, please e- asked questions, including the use of affected by the proposed compressor mail [email protected]. or eminent domain and how to participate station, pipeline, and access road is call (866) 208–3676 (toll free). For TTY, in the Commission’s proceedings. It is owned by Petal. call (202) 502–8659. available for viewing on the FERC The EA Process Internet Web site (http://www.ferc.gov). Philis J. Posey, We are preparing the EA to comply Acting Secretary. Summary of the Proposed Project with the National Environmental Policy [FR Doc. E7–6584 Filed 4–6–07; 8:45 am] Petal proposes to construct a new Act (NEPA) which requires the BILLING CODE 6717–01–P compressor station consisting of three Commission to take into account the 5,000-horsepower, electric-drive environmental impacts that could result compressor units at its existing Petal from an action whenever it considers DEPARTMENT OF ENERGY Storage Facility in Forrest County, the issuance of a Certificate of Public Mississippi. Petal would construct a Convenience and Necessity. NEPA also Federal Energy Regulatory new 60-foot by 200-foot building to requires us to discover and address Commission house the proposed units and other concerns the public may have about [Docket No. CP07–81–000] appurtenant facilities. In addition, a proposals. This process is referred to as 1,605-foot-long, 20-inch-diameter ‘‘scoping.’’ The main goal of the scoping Petal Gas Storage, L.L.C.; Notice of pipeline would be constructed in order process is to focus the analysis in the Intent To Prepare an Environmental to connect the proposed compressor EA on the important environmental Assessment for the Proposed Petal station to Petal’s existing gas storage issues. By this Notice of Intent, the No. 3 Compressor Station Project and operations.1 Commission staff requests public Request for Comments on Petal currently has an estimated comments on the scope of the issues to Environmental Issues working storage capacity of 18 billion address in the EA. All comments cubic feet of natural gas in four storage received are considered during the April 3, 2007. caverns. The Petal Storage Facility is preparation of the EA. The staff of the Federal Energy capable of delivering natural gas into Our independent analysis of the Regulatory Commission (FERC or five interstate pipeline systems. The issues will be in the EA. Depending on Commission) will prepare an proposed addition of the Petal No. 3 the comments received during the environmental assessment (EA) that will Compressor Station would allow Petal scoping process, the EA may be discuss the environmental impacts of to utilize the full storage capacity of the published and mailed to Federal, State, the Petal No. 3 Compressor Station Petal Storage Facility. and local agencies, public interest Project, involving construction and The general location of Petal’s groups, interested individuals, affected operation of facilities by Petal Gas proposed facilities is shown on the map landowners, newspapers and libraries in Storage, L.L.C. (Petal) in Forrest County, attached as appendix 1.2 the project area, and the Commission’s Mississippi. The EA will be used by the official service list for this proceeding. Commission in its decision-making Land Requirements for Construction A comment period will be allotted for process to determine whether or not to Construction of the proposed Petal review if the EA is published. We will authorize the project. No. 3 Compressor Station Project would consider all comments on the EA before This notice announces the opening of affect a total of about 21.1 acres of land. we make our recommendations to the the scoping period that will be used to Following construction, about 12.1 acres Commission. gather environmental input from the of land would be allowed to revert to its Public Participation public and interested agencies on the previous conditions. Disturbance project. Your input will help the associated with aboveground facilities You can make a difference by Commission staff determine which providing us with your specific issues need to be evaluated in the EA. 1 Petal’s application in Docket No. CP07–81–000 comments or concerns about the project. Please note that the scoping period will was filed with the Commission under Section 7 of By becoming a commenter, your close on May 3, 2007. the Natural Gas Act. concerns will be addressed in the EA An effort is being made to send this 2 The appendices referenced in this notice are not and considered by the Commission. being printed in the Federal Register. Copies of all notice to all individuals, organizations, appendices, other than Appendix 1 (map), are Your comments should focus on the Native American Tribes, and available on the Commission’s Web site at the potential environmental effects of the government entities interested in and/or ‘‘eLibrary’’ link or from the Commission’s Public proposal, reasonable alternatives to the potentially affected by the proposed Reference Room, 888 First Street, NE., Washington, proposal (including alternative locations DC 20426, or call (202) 502–8371. For instructions project. This includes all landowners on connecting to eLibrary refer to the last page of and routes), and measures to avoid or who are potential right-of-way grantors, this notice. Copies of the appendices were sent to lessen environmental impact. The more whose property may be used all those receiving this notice in the mail. specific your comments, the more useful

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17550 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

they will be. Please carefully follow Additional Information DATES: These MVEBs are effective April these instructions to ensure that your Additional information about the 24, 2007. comments are received in time and project is available from the FOR FURTHER INFORMATION CONTACT: properly recorded: Commission’s Office of External Affairs Lynorae Benjamin, Environmental • Send an original and two copies of at 1–866–208 FERC (3372) or on the Engineer, U.S. Environmental Protection your letter to: Philis J. Posey, Acting FERC Internet Web site (http:// Agency, Region 4, Air Planning Branch, Secretary, Federal Energy Regulatory www.ferc.gov). Using the ‘‘eLibrary’’ Air Quality Modeling and Commission, 888 First St., NE., Room link, select ‘‘General Search’’ from the Transportation Section, 61 Forsyth 1A, Washington, DC 20426. Street, SW., Atlanta, Georgia 30303. Ms. • eLibrary menu, enter the selected date Label one copy of the comments for Benjamin can also be reached by the attention of Gas Branch 1; range and ‘‘Docket Number’’ (i.e., CP07– • 81–000), and follow the instructions. telephone at (404) 562–9040, or via Reference Docket No. CP07–81– electronic mail at 000; For assistance with access to eLibrary, • the helpline can be reached at 1–866– [email protected]. The finding Mail your comments so that they is available at EPA’s conformity Web will be received in Washington, DC on 208–3676, TTY (202) 502–8659, or at FERCOnlineSupport@ ferc.gov. The site: http://www.epa.gov/otaq/ or before May 3, 2007. stateresources/transconf/currsips.htm. Please note that the Commission eLibrary link on the FERC Internet Web encourages electronic filing of site also provides access to the texts of SUPPLEMENTARY INFORMATION: comments. See 18 Code of Federal formal documents issued by the Background Commission, such as orders, notices, Regulations (CFR) 385.2001(a)(1)(iii) Today’s notice is simply an and rule makings. and the instructions on the announcement of a finding that EPA has In addition, the Commission now Commission’s Internet Web site at already made. EPA Region 4 sent a letter offers a free service called eSubscription http://www.ferc.gov under the ‘‘eFiling’’ to GA EPD on January 24, 2007, stating which allows you to keep track of all link and the link to the User’s Guide. that the MVEBs in the Atlanta Early formal issuances and submittals in Prepare your submission in the same Progress SIP, submitted on January 16, manner as you would if filing on paper specific dockets. This can reduce the 2007, are adequate. The Atlanta 8-hour and save it to a file on your hard drive. amount of time you spend researching ozone nonattainment area is comprised Before you can file comments you will proceedings by automatically providing of the following twenty counties: need to create an account by clicking on you with notification of these filings, Barrow, Bartow, Carroll, Cherokee, ‘‘Login to File’’ and then ‘‘New User document summaries and direct links to Clayton, Cobb, Coweta, DeKalb, Account.’’ You will be asked to select the documents. Go to http:// Douglas, Fayette, Forsyth, Fulton, the type of filing you are making. This www.ferc.gov/esubscribenow.htm. Gwinnett, Hall, Henry, Newton, filing is considered a ‘‘Comment on Philis J. Posey, Paulding, Rockdale, Spalding and Filing.’’ Acting Secretary. Walton. EPA’s adequacy comment Becoming an Intervenor [FR Doc. E7–6558 Filed 4–6–07; 8:45 am] period ran from October 30, 2006, through November 29, 2006. During In addition to involvement in the EA BILLING CODE 6717–01–P EPA’s adequacy comment period no scoping process, you may want to adverse comments were received. This become an official party to the finding has also been announced on proceeding known as an ‘‘intervenor’’. ENVIRONMENTAL PROTECTION EPA’s conformity Web site: http:// Intervenors play a more formal role in AGENCY www.epa.gov/otaq/stateresources/ the process. Among other things, transconf/pastsips.htm. The adequate intervenors have the right to receive [GA–78–200703; FRL–8296–1] MVEBs are provided in the following copies of case-related Commission table: documents and filings by other Adequacy Status of the Atlanta Early intervenors. Likewise, each intervenor Progress 8-Hour Ozone Motor Vehicle ATLANTA 8-HOUR OZONE MVEBS must send one electronic copy (using Emission Budgets for Transportation [Tons per day] the Commission’s e-Filing system) or 14 Conformity Purposes paper copies of its filings to the 2006 Secretary of the Commission and must AGENCY: Environmental Protection send a copy of its filings to all other Agency (EPA). VOC ...... 306.75 parties on the Commission’s service list ACTION: Notice of adequacy. NOX ...... 172.27 for this proceeding. If you want to become an intervenor you must file a SUMMARY: In this notice, EPA is Transportation conformity is required motion to intervene according to Rule notifying the public that we have found by section 176(c) of the Clean Air Act, 214 of the Commission’s Rules of that the Motor Vehicle Emissions as amended in 1990. EPA’s conformity Practice and Procedure (18 CFR Budgets (MVEBs) in the Atlanta Early rule requires that transportation plans, 385.214). Only intervenors have the Progress State Implementation Plan programs and projects conform to state right to seek rehearing of the (SIP), submitted on January 16, 2007, by air quality implementation plans and Commission’s decision. the Georgia Environmental Protection establishes the criteria and procedures Affected landowners and parties with Division (GA EPD) of the Georgia for determining whether or not they do. environmental concerns may be granted Department of Natural Resources, are Conformity to a SIP means that intervenor status upon showing good adequate for transportation conformity transportation activities will not cause by stating that they have a clear purposes. As a result of EPA’s finding, produce new air quality violations, and direct interest in this proceeding the Atlanta area must use the MVEBs worsen existing violations, or delay which would not be adequately from the January 16, 2007, Atlanta Early timely attainment of the national represented by any other parties. You do Progress SIP for future conformity ambient air quality standards. not need intervenor status to have your determinations for the 8-hour ozone The criteria by which EPA determines environmental comments considered. standard. whether a SIP’s MVEBs are adequate for

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17551

transportation conformity purposes are reimbursement of past response you submit. If EPA cannot read your outlined in 40 Code of Federal concerning the Anaconda/Milgo comment due to technical difficulties Regulations 93.118(e)(4). We have Superfund Site located in Miami, Dade and cannot contact you for clarification, described the process for determining County, Florida. EPA may not be able to consider your the adequacy of submitted SIP budgets DATES: The Agency will consider public comment. Electronic files should avoid in our July 1, 2004, final rulemaking comments on the settlement until May the use of special characters, any form entitled, ‘‘ Transportation Conformity 9, 2007. The Agency will consider all of encryption, and be free of any defects Rule Amendments for the New 8-hour comments received and may modify or or viruses. For additional information Ozone and PM2.5 National Ambient Air withdraw its consent to the settlement about EPA’s public docket visit the EPA Quality Standards and Miscellaneous if comments received disclose facts or Docket Center homepage at http:// Revisions for Existing Areas; considerations which indicate that the www.epa.gov/epahome/dockets.htm. Transportation Conformity Rule settlement is inappropriate, improper, Docket: All documents in the docket Amendments: Response to Court or inadequate. are listed in the www.regulations.gov Decision and Additional Rule Changes’’ ADDRESSES: Copies of the settlement are index. Although listed in the index, (69 FR 40004). Please note that an available from Ms. Paula V. Batchelor. some information is not publicly adequacy review is separate from EPA’s Submit your comments, identified by available, e.g., CBI or other information completeness review, and it also should Docket ID No. EPA–RO4–SFUND–2007– whose disclosure is restricted by statute. not be used to prejudge EPA’s ultimate 0263 or Site name Anaconda/Milgo Certain other material, such as approval of the SIP. Even if EPA finds Superfund Site by one of the following copyrighted material, will be publicly the MVEBs adequate, the Agency may methods: available only in hard copy. Publicly later determine that the SIP itself is not • www.regulations.gov: Follow the available docket materials are available approvable. on-line instructions for submitting either electronically in On December 22, 2006, the U.S. Court comments. www.regulations.gov or in hard copy at of Appeals for the District of Columbia • E-mail: [email protected]. the U.S. EPA Region 4 office located at Circuit issued a decision on EPA’s • Fax: 404/562–8842/Attn Paula V. 61 Forsyth Street, SW., Atlanta, Georgia Phase I rule implementing the 1997 8- Batchelor. 30303. Regional office is open from 7 hour ozone National Ambient Air Mail: Ms. Paula V. Batchelor, U.S. a.m. until 6:30 pm. Monday through Quality Standard (NAAQS) (D.C. Cir. EPA Region 4, WMD–SEIMB, 61 Forsyth Friday, excluding legal holidays. No. 04–1200). EPA is currently Street, S.W., Atlanta, Georgia 30303. ‘‘In Written comments may be submitted analyzing the decision in detail. EPA’s addition, please mail a copy of your to Ms. Batchelor within 30 calendar adequacy finding on the MVEBs in the comments on the information collection days of the date of this publication. Early Progress SIP for the Atlanta 8-hour provisions to the Office of Information FOR FURTHER INFORMATION CONTACT: nonattainment area is not affected by and Regulatory Affairs, Office of Paula V. Batchelor at 404/562–8887. the court’s decision and does not Management and Budget (OMB), Attn: Dated: March 26, 2007. address any other requirements that Desk Officer for EPA, 725 17th St. NW., may be affected by the decision. EPA’s Washington, DC 20503.’’ Rosalind H. Brown, adequacy finding determines only that Instructions: Direct your comments to Chief, Superfund Enforcement & Information the budgets are adequate for the specific Docket ID No. EPA–R04–SFUND–2007– Management Branch, Superfund Division. purpose submitted, and provides no 0263. EPA’s policy is that all comments [FR Doc. E7–6612 Filed 4–6–07; 8:45 am] conclusions on what requirements may received will be included in the public BILLING CODE 6560–50–P ultimately apply in the area as a result docket without change and may be of the court decision. made available online at Authority: 42 U.S.C. 7401 et seq. www.regulations.gov, including any FEDERAL ELECTION COMMISSION Dated: March 29, 2007. personal information provided, unless the comment includes information J.I. Palmer, Jr., Sunshine Act Notices claimed to be Confidential Business Regional Administrator, Region 4. Information (CBI) or other information AGENCY: Federal Election Comission. [FR Doc. E7–6620 Filed 4–6–07; 8:45 am] whose disclosure is restricted by statute. BILLING CODE 6560–50–P Do not submit information that you DATE & TIME: Thursday, April 12, 2007, consider to be CBI or otherwise at 10 a.m. protected through www.regulations.gov PLACE: 999 E Street, NW., Washington, ENVIRONMENTAL PROTECTION or e-mail. The www.regulations.gov Web DC (ninth floor). AGENCY site is an ‘‘anonymous access’’ system, STATUS: This meeting will be open to the [Docket# EPA–RO4–SFUND–2007–0263; which means EPA will not know your public. FRL–8296–5] identity or contact information unless ITEMS TO BE DISCUSSED: you provide it in the body of your Anaconda/Milgo; Miami, Dade County, comment. If you send an e-mail Correction and Approval of Minutes. Florida; Notice of Settlement comment directly to EPA without going Legislative Recommendations 2007. Management and Administrative AGENCY: Environmental Protection through www.regulations.gov your e- Matters. Agency (EPA). mail address will be automatically ACTION: Notice of settlement. captured and included as part of the FOR FURTHER INFORMATION CONTACT: Mr. comment that is placed in the public Robert Biersack, Press Officer, SUMMARY: Under Section 122(h) of the docket and made available on the Telephone: (202) 694–1220. Comprehensive Environmental Internet. If you submit an electronic Response, Compensation and Liability comment, EPA recommends that you Mary W. Dove, Act (CERCLA), the United States include your name and other contact Secretary of the Commission. Environmental Protection Agency has information in the body of your [FR Doc. 07–1773 Filed 4–5–05; 2:28 pm] entered into a settlement for comment and with any disk or CD–ROM BILLING CODE 6715–01–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17552 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

FEDERAL RESERVE SYSTEM FEDERAL TRADE COMMISSION paper or electronic form, will be considered by the Commission, and will [File No. 062 3112] Formations of, Acquisitions by, and be available to the public on the FTC Mergers of Bank Holding Companies Darden Restaurants, Inc., GMRI, Inc., Web site, to the extent practicable, at and Darden GC Corp.; Analysis of http://www.ftc.gov. As a matter of The companies listed in this notice Proposed Consent Order To Aid Public discretion, the FTC makes every effort to have applied to the Board for approval, Comment remove home contact information for pursuant to the Bank Holding Company individuals from the public comments it Act of 1956 (12 U.S.C. 1841 et seq.) AGENCY: Federal Trade Commission. receives before placing those comments (BHC Act), Regulation Y (12 CFR Part ACTION: Proposed Consent Agreement. on the FTC website. More information, 225), and all other applicable statutes including routine uses permitted by the SUMMARY: The consent agreement in this and regulations to become a bank Privacy Act, may be found in the FTC’s matter settles alleged violations of privacy policy, at http://www.ftc.gov/ holding company and/or to acquire the federal law prohibiting unfair or ftc/privacy.htm. assets or the ownership of, control of, or deceptive acts or practices or unfair the power to vote shares of a bank or methods of competition. The attached FOR FURTHER INFORMATION CONTACT: bank holding company and all of the Analysis To Aid Public Comment Lucy Morris or Jonathan Kraden, Bureau banks and nonbanking companies describes both the allegations in the of Consumer Protection, 600 owned by the bank holding company, draft complaint and the terms of the Pennsylvania Avenue, NW., including the companies listed below. consent order—embodied in the consent Washington, DC 20580, (202) 326–3224. SUPPLEMENTARY INFORMATION: The applications listed below, as well agreement—that would settle these Pursuant to section 6(f) of the Federal Trade as other related filings required by the allegations. Commission Act, 38 Stat. 721, 15 U.S.C. Board, are available for immediate DATES: Comments must be received on 46(f), and § 2.34 of the Commission inspection at the Federal Reserve Bank or before May 2, 2007. Rules of Practice, 16 CFR 2.34, notice is ADDRESSES: indicated. The application also will be Interested parties are hereby given that the above-captioned available for inspection at the offices of invited to submit written comments. consent agreement containing a consent the Board of Governors. Interested Comments should refer to ‘‘Darden, Inc., order to cease and desist, having been persons may express their views in File No. 062 3112,’’ to facilitate the filed with and accepted, subject to final writing on the standards enumerated in organization of comments. A comment approval, by the Commission, has been the BHC Act (12 U.S.C. 1842(c)). If the filed in paper form should include this placed on the public record for a period proposal also involves the acquisition of reference both in the text and on the of thirty (30) days. The following a nonbanking company, the review also envelope, and should be mailed or Analysis to Aid Public Comment includes whether the acquisition of the delivered to the following address: describes the terms of the consent nonbanking company complies with the Federal Trade Commission/Office of the agreement, and the allegations in the standards in section 4 of the BHC Act Secretary, Room 159–H, 600 complaint. An electronic copy of the Pennsylvania Avenue, NW., (12 U.S.C. 1843). Unless otherwise full text of the consent agreement Washington, DC 20580. Comments noted, nonbanking activities will be package can be obtained from the FTC containing confidential material must be conducted throughout the United States. Home Page (for April 3, 2007), on the filed in paper form, must be clearly World Wide Web, at http://www.ftc.gov/ Additional information on all bank labeled ‘‘Confidential,’’ and must holding companies may be obtained os/2007/04/index.htm. A paper copy comply with Commission Rule 4.9(c). can be obtained from the FTC Public from the National Information Center 16 CFR 4.9(c) (2005).1 The FTC is website at www.ffiec.gov/nic/. Reference Room, Room 130–H, 600 requesting that any comment filed in Pennsylvania Avenue, NW., Unless otherwise noted, comments paper form be sent by courier or Washington, DC 20580, either in person regarding each of these applications overnight service, if possible, because or by calling (202) 326–2222. must be received at the Reserve Bank U.S. postal mail in the Washington area Public comments are invited, and may indicated or the offices of the Board of and at the Commission is subject to be filed with the Commission in either Governors not later than May 3, 2007. delay due to heightened security paper or electronic form. All comments precautions. Comments that do not A. Federal Reserve Bank of Chicago should be filed as prescribed in the contain any nonpublic information may (Patrick M. Wilder, Assistant Vice ADDRESSES section above, and must be instead be filed in electronic form as received on or before the date specified President) 230 South LaSalle Street, part of or as an attachment to email in the DATES section. Chicago, Illinois 60690-1414: messages directed to the following e- 1. Fox River Financial Corporation, mail box: [email protected]. Analysis of Agreement Containing Burlington, Wisconsin; to become a bank The FTC Act and other laws the Consent Order To Aid Public Comment holding company by acquiring 100 Commission administers permit the The Federal Trade Commission has percent of the voting shares of Fox River collection of public comments to accepted, subject to final approval, an State Bank, Burlington, Wisconsin. consider and use in this proceeding as agreement containing a consent order appropriate. All timely and responsive from Darden Restaurants, Inc., GMRI, Board of Governors of the Federal Reserve public comments, whether filed in System, April 4, 2007. Inc., and Darden GC Corp. (collectively, ‘‘respondents’’ or ‘‘Darden’’). Robert deV. Frierson, 1 The comment must be accompanied by an The proposed consent order has been Deputy Secretary of the Board. explicit request for confidential treatment, including the factual and legal basis for the request, placed on the public record for thirty [FR Doc. E7–6603 Filed 4–6–07; 8:45 am] and must identify the specific portions of the (30) days for receipt of comments by BILLING CODE 6210–01–S comment to be withheld from the public record. interested persons. Comments received The request will be granted or denied by the Commission’s General Counsel, consistent with during this period will become part of applicable law and the public interest. See the public record. After thirty (30) days, Commission Rule 4.9(c), 16 CFR 4.9(c). the Commission will again review the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17553

agreement and the comments received, Part II of the proposed order prohibits The purpose of this analysis is to and will decide whether it should respondents from making any facilitate public comment on the withdraw from the agreement or make misrepresentation about any material proposed order. It is not intended to final the agreement’s proposed order. term or condition associated with the constitute an official interpretation of Respondents, through subsidiaries, Darden Gift Card. the proposed order or to modify in any own and operate several restaurant Part III.A. of the proposed order way its terms. chains, including Olive Garden prohibits respondents from collecting or By direction of the Commission. Restaurant, Red Lobster Restaurant, attempting to collect any dormancy fee Donald S. Clark, Smokey Bones Restaurant, and Bahama on any Darden Gift Card activated prior Secretary. Breeze Restaurant. Respondents to the date of issuance of the proposed advertise, sell, and distribute Darden order. [FR Doc. E7–6610 Filed 4–6–07; 8:45 am] Gift Cards through their restaurants and Part III.B. of the proposed order BILLING CODE 6750–01–P Web sites, and third parties. Darden Gift requires respondents, upon issuance of Cards are plastic, stored-value cards, the order, to cause the amount of any similar in size and shape to credit or fees assessed on a Darden Gift Card DEPARTMENT OF HEALTH AND debit cards, often branded with one or prior to the date of issuance of the order HUMAN SERVICES more of Darden’s restaurant logos. to be restored to the card. Centers for Disease Control and Darden Gift Cards typically can be used Part III.C. of the proposed order Prevention to purchase goods or services at any of requires respondents to provide notice Darden’s restaurant locations. This to consumers of the automatic [30Day–07–06AX] matter concerns the respondents’ restoration of fees required by Section alleged failure to disclose, or failure to III.B. This notice must be clearly and Agency Forms Undergoing Paperwork disclose adequately, material terms and prominently disclosed on respondents’ Reduction Act Review conditions of Darden Gift Cards. websites, including http:// The Commission’s complaint alleges The Centers for Disease Control and www.darden.com, http:// that, in the advertising and sale of Prevention (CDC) publishes a list of www.dardenrestaurants.com, http:// Darden Gift Cards, respondents have information collection requests under www.redlobster.com, http:// represented, expressly or by review by the Office of Management and www.olivegarden.com, http:// implication, that a consumer can Budget (OMB) in compliance with the www.smokeybones.com, and http:// redeem a Darden Gift Card for goods or Paperwork Reduction Act (44 U.S.C. www.bahamabreeze.com. services of an equal value to the Chapter 35). To request a copy of these monetary amount placed on the card. Part IV of the proposed order contains requests, call the CDC Reports Clearance Respondents have failed to disclose, or a document retention requirement, the Officer at (404) 639–5960 or send an e- failed to disclose adequately, that, after purpose of which is to ensure mail to [email protected]. Send written a specified number of consecutive compliance with the proposed order. It comments to CDC Desk Officer, Office of months of non-use (i.e., 15 or 24 requires that respondents maintain Management and Budget, Washington, months), respondents deduct a $1.50 fee accounting and sales records for Darden DC or by fax to (202) 395–6974. Written per month from the value of the Darden Gift Cards, copies of ads and comments should be received within 30 Gift Card until it is used again. The promotional material that contain days of this notice. representations covered by the proposed proposed complaint alleges that the Proposed Project failure to disclose adequately this order, complaints and refund requests material fact is a deceptive practice. relating to the Darden Gift Cards, and Risk Perception, Worry, and Use of The proposed consent order contains other materials that were relied upon by Ovarian Cancer Screening Among provisions designed to prevent respondents in complying with the Women At High, Elevated, and Average respondents from engaging in similar proposed order. Risk of Ovarian Cancer—NEW— acts and practices in the future. Part V of the proposed order requires National Center for Chronic Disease Part I.A. of the proposed order respondents to distribute copies of the Prevention and Health Promotion prohibits respondents from advertising order to various principals, officers, (NCCDPHP), Centers for Disease Control or selling Darden Gift Cards without directors, and managers of respondents and Prevention (CDC). disclosing, clearly and prominently: (a) as well as to the officers, directors, and Background and Brief Description The existence of any expiration date or managers of any third-party vendor who automatic fees, in all advertising, and engages in conduct related to the Accounting for an estimated 22,220 (b) all material terms and conditions of proposed order. cases and 16,210 deaths in 2005, any expiration date or automatic fee, at Part VI of the proposed order requires ovarian cancer is the most frequent the point of sale and prior to purchase. respondents to notify the Commission of cause of death from gynecologic The effect of this provision is to require any changes in corporate structure that malignancy in the United States. In over respondents to alert consumers to might affect compliance with the order. 80 percent of patients, ovarian cancer potential fees and expiration dates Part VII of the proposed order requires presents at a late clinical stage, affording during advertising, and to fully disclose respondents to file with the Commission a five-year survival rate of only 28 all relevant details at the point of sale, one or more reports detailing percent. For cases where ovarian cancer before consumers purchase the gift compliance with the order. is identified in Stage I, however, the cards. Part VIII of the proposed order is a five-year survival rate exceeds 90 Part I.B. of the proposed order ‘‘sunset’’ provision, dictating the percent. prohibits respondents from advertising conditions under which the order will Identifying a woman’s risk of ovarian or selling Darden Gift Cards without terminate twenty years from the date it cancer plays a large role in determining disclosing, clearly and prominently the is issued or twenty years after a the appropriateness of having her existence of any automatic fee or complaint is filed in Federal court, by undergo screening. It is only for women expiration date on the front of the gift either the United States or the FTC, with a strong family history of ovarian card. alleging any violation of the order. and/or breast cancer or women with a

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17554 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

hereditary genetic risk for ovarian about cancer and ultimately screening approximately 2000 women will be cancer that the currently available behavior. asked a series of questions over a 35- screening modalities of CA 125 and To address these issues, the Division minute time period. Questions will transvaginal ultrasound are of Cancer Prevention and Control cover key variables related to ovarian recommended. (DCPC), at the National Center for cancer screening including coping, Statements from the scientific and Chronic Disease Prevention and Health anxiety, perceived risk, worry, personal medical community regarding Promotion, Centers for Disease Control cancer history, family cancer history, recommendations for ovarian cancer and Prevention, is conducting a study to closeness with family or friends who examine the effects of family history of have had cancer, screening behavior, screening play only a partial role in a cancer, knowledge about ovarian cancer, and knowledge of ovarian cancer. woman’s decision to undergo screening worry and/or anxiety, and perceived In Task 2, a follow-up questionnaire exams. Numerous psychological and risk of cancer on the likelihood of a will be administered, also using a CATI sociological factors can affect this woman undergoing screening for program, to approximately 1600 of the decision as well, including a woman’s ovarian cancer. By also examining other women included in the baseline knowledge, attitudes, beliefs, and psycho-social factors such as a woman’s questionnaire. Each of the women will experiences. For instance, a woman’s closeness to a relative or friend with be contacted one year after they experience of cancer within her family cancer, coping style, cancer worry, use complete the baseline survey. The or experience with a friend who has had of other cancer screening tests, social researchers anticipate a 15 percent cancer may influence a woman’s support, and provider’s attrition of the sample between baseline screening decisions. recommendations, the study will and follow-up. In the follow-up, women The literature also notes that women elucidate the causal pathway leading will be asked a series of questions over with a family history of ovarian cancer from actual risk (as measured by family a 15-minute time period. The purpose of report increased worry and high levels history) through perceived risk to intent this data collection effort is to determine of perceived risk. A positive association to undergo screening and actual if risk perception has changed and to has also been shown between screening screening behavior. ask about screening for ovarian cancer, behavior and family history. Recent The proposed study will consist of since the baseline questionnaire was studies indicate, however, that two tasks. In Task 1, a baseline survey administered. screening is not occurring in proportion will be administered through a All data will be collected over a three- to women’s levels of risk. These computer-assisted telephone interview year time period. The total estimated findings underscore the need for a better (CATI) program. Initially, an estimated annualized burden hours are 1,411. understanding of how perceived risk of 32,000 women will be screened to There are no costs to the respondents ovarian cancer may influence worry determine eligibility, and then other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

No. of re- Avg. burden Group Type of respondents No. of re- sponses per per response spondents respondent (in hours)

Eligibility Screener ...... Women 30 and older ...... 10,667 1 5/60 Baseline Survey ...... Women 30 and older (high, elevated or aver- 667 1 35/60 age risk of ovarian cancer). Follow-Up Survey ...... Women who completed the baseline survey 533 1 15/60

Dated: April 3, 2007. DEPARTMENT OF HEALTH AND Status: The meeting will be closed to the Joan F. Karr, HUMAN SERVICES public in accordance with provisions set forth in Section 552b(c) (4) and (6), Title 5 Acting Reports Clearance Officer, Centers for Disease Control and Prevention. Centers for Disease Control and U.S.C., and the Determination of the Director, Prevention Management Analysis and Services Office, [FR Doc. E7–6583 Filed 4–6–07; 8:45 am] CDC, pursuant to Public Law 92–463. BILLING CODE 4163–18–P Disease, Disability, and Injury Matters to be Discussed: The meeting will Prevention and Control Special include the review, discussion, and Emphasis Panel (SEP): Arthritis and evaluation of ‘‘Arthritis and Disability: Disability: Biracial Cohort Study of Biracial Cohort Study of Knee and Hip Knee and Hip Osteoarthritis, Potential Osteoarthritis,’’ Potential Extramural Project Extramural Project (PEP) 2007–R–06 (PEP) 2007–R–06 and ‘‘Evaluating and Evaluating Sustainable Delivery Sustainable Delivery Systems for Arthritis Systems for Arthritis Intervention Intervention Programs,’’ PEP 2007– R–08. Programs, PEP 2007–R–08 For Further Information Contact: Juliana Cyril, M.P.H., Ph.D., CDC, 1600 Clifton Road In accordance with Section 10(a)(2) of NE, Mailstop D–72, Atlanta, GA 30333, the Federal Advisory Committee Act Telephone (404) 639–4639. (Pub. L. 92–463), the Centers for Disease The Director, Management Analysis and Control and Prevention (CDC) Services Office, has been delegated the announces the following meeting of the authority to sign Federal Register notices aforementioned SEP. pertaining to announcements of meetings and Time and Date: 12 p.m.–4 p.m., May 14, other committee management activities, for 2007 (Closed). both CDC and the Agency for Toxic Place: Teleconference. Substances and Disease Registry.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17555

Dated: April 2, 2007. authority to sign Federal Register notices The Director, Management Analysis and Elaine L. Baker, pertaining to announcements of meetings and Services Office, has been delegated the other committee management activities, for authority to sign Federal Register notices Acting Director, Management Analysis and both CDC and the Agency for Toxic pertaining to announcements of meetings and Services Office, Centers for Disease Control Substances and Disease Registry. other committee management activities, for and Prevention. Dated: April 2, 2007. both CDC and the Agency for Toxic [FR Doc. E7–6582 Filed 4–6–07; 8:45 am] Substances and Disease Registry. BILLING CODE 4163–18–P Elaine L. Baker, Acting Director, Management Analysis and Dated: April 2, 2007. Services Office, Centers for Disease Control Elaine L. Baker, DEPARTMENT OF HEALTH AND and Prevention. Acting Director, Management Analysis and HUMAN SERVICES [FR Doc. E7–6588 Filed 4–6–07; 8:45 am] Services Office, Centers for Disease Control BILLING CODE 4163–18–P and Prevention. Centers for Disease Control and [FR Doc. E7–6589 Filed 4–6–07; 8:45 am] Prevention BILLING CODE 4163–18–P DEPARTMENT OF HEALTH AND Disease, Disability, and Injury HUMAN SERVICES Prevention and Control Special DEPARTMENT OF HEALTH AND Emphasis Panel (SEP): Pre-Knowledge Centers for Disease Control and HUMAN SERVICES of Early Hearing Detection and Prevention Intervention Program Process and Its Centers for Disease Control and Effect on Maternal Stress and Disease, Disability, and Injury Prevention Compliance With Follow-Up, Potential Prevention and Control Special Extramural Project (PEP) 2007–R–07 Emphasis Panel (SEP): Disease, Disability, and Injury Epidemiological Studies of Epilepsy, Prevention and Control Special In accordance with Section 10(a)(2) of Potential Extramural Project (PEP) Emphasis Panel: NIOSH Education and the Federal Advisory Committee Act 2007–R–05 Research Center, Program (Pub. L. 92–463), the Centers for Disease Announcement Number (PAR) 06–485 Control and Prevention (CDC) In accordance with Section 10(a)(2) of announces the aforementioned meeting. the Federal Advisory Committee Act In accordance with section 10(a)(2) of (Pub. L. 92–463), the Centers for Disease the Federal Advisory Committee Act Time and Date: 12 p.m.–4 p.m., May 16, Control and Prevention (CDC) 2007 (Closed). (Pub. L. 92–463), the Centers for Disease Place: Teleconference. announces the following meeting of the Control and Prevention (CDC) Status: The meeting will be closed to the aforementioned SEP. announces the following Meeting of the public in accordance with provisions set Time and Date: 12 p.m.–4 p.m., May 10, aforementioned Special Emphasis forth in Section 552b(c) (4) and (6), Title 5 2007 (Closed). Panel: U.S.C., and the Determination of the Director, Place: Teleconference. Time and Date: 10 a.m.–1 p.m., April 24, Management Analysis and Services Office, Status: The meeting will be closed to the 2007 (Closed). CDC, pursuant to Public Law 92–463. public in accordance with provisions set Place: Teleconference. Matters to be Discussed: The meeting will forth in Section 552b(c) (4) and (6), Title 5 Status: The meeting will be closed to the include the review, discussion, and U.S.C., and the Determination of the Director, public in accordance with provisions set evaluation of PEP 2007–R–07, ‘‘Pre- Management Analysis and Services Office, forth in section 552b(c)(4) and (6), Title 5 Knowledge of Early Hearing Detection and CDC, pursuant to Public Law 92–463. U.S.C., and the Determination of the Director, Intervention Program Process and Its Effect Matters To Be Discussed: The meeting will Management Analysis and Services Office, on Maternal Stress and Compliance with include the review, discussion, and CDC, pursuant to Public Law 92–463. Follow-Up.’’ evaluation of scientific merit of applications Purpose: The work groups which were For Further Information Contact: Juliana for ‘‘Epidemiological Studies of Epilepsy,’’ convened at specific sites listed below Cyril, M.P.H., Ph.D., Associate Director for PEP 2007–R–05. advised and made recommendations to the Policy and Peer Review, CDC, 1600 Clinton For Further Information Contact: Juliana Disease, Disability, and Injury Prevention Road, NE., Mailstop D72, Atlanta, GA 30333, Cyril, M.P.H., Ph.D., Associate Director for and Control SEP: NIOSH Education and telephone 404–639–4639. Policy and Peer Review, CDC, 1600 Clifton Research Center, PAR 06–485. Specifically, The Director, Management Analysis and Road, NE., Mailstop D–72, Atlanta, GA the SEP makes recommendations regarding Services Office, has been delegated the 30333, Telephone (404) 639–3098. policies, strategies, and funding.

TIMES, DATES, AND PLACES OF THE WORK GROUP MEETINGS

8 a.m.–5 p.m...... November 13, 2006 (Closed) ...... Women’s Faculty Club on the University of California Berkeley campus 510– 642–4175. 8 a.m.–5 p.m...... November 28, 2006 (Closed) ...... University of Alabama at Birmingham, Administration Building Penthouse, 701 20th Street South, 14th floor, Conference Room 1, 205–934–0771. 8 a.m.–5 p.m...... December 11, 2006 (Closed) ...... Bloomberg School of Public Health, 615 N. Wolfe St, Baltimore, MD 21205. 8 a.m.–5 p.m...... December 14, 2006 (Closed) ...... College of Public Health 13201 Bruce B. Downs Blvd Tampa, FL 33612. 8 a.m.–5 p.m...... January 9, 2007 (Closed) ...... Fitzsimons Campus, Nighthorse Campbell Building. Room 304 Denver, CO. 8 a.m.–5 p.m...... January 16, 2007 (Closed) ...... Coffman Memorial Union 300 Washington Ave. SE Minneapolis, MN 55455. 8 a.m.–5 p.m...... February 13, 2007 (Closed) ...... University Park Marriott 480 Wakara Way Salt Lake City, UT 84108 801–584– 3312.

Matters to be Discussed: The SEP meeting For Further Information Contact: Dr. The Director, Management Analysis and will include the review, discussion, and Charles N. Rafferty, Ph.D., B.S., Scientific Services Office, has been delegated the evaluation of research grant applications in Review Administrator, 1600 Clifton Road NE, authority to sign Federal Register notices response to ‘‘NIOSH Education and Research MS E74, Atlanta, GA, 30333, telephone pertaining to announcements of meetings and Center,’’ PAR 06–485. 404.498.2582. other committee management activities, for

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17556 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

both CDC and the Agency for Toxic mission to protect and promote people’s DEPARTMENT OF HEALTH AND Substances and Disease Registry. health. The board provides advice and HUMAN SERVICES Dated: April 3, 2007. guidance that will assist NCEH/ATSDR Diane Allen, in ensuring scientific quality, Food and Drug Administration Acting Director, Management Analysis and timeliness, utility, and dissemination of [Docket No. 1978N–0224 (formerly Docket Services Office, Centers for Disease Control results. The board also provides No. 78N–0224); DESI 11853] and Prevention. guidance to help NCEH/ATSDR work [FR Doc. E7–6591 Filed 4–6–07; 8:45 am] more efficiently and effectively with its Trimethobenzamide Hydrochloride BILLING CODE 4163–18–P various constituents and to fulfill its Suppositories; Withdrawal of Approval mission in protecting America’s health. AGENCY: Food and Drug Administration, DEPARTMENT OF HEALTH AND Matters To Be Discussed: An update HHS. HUMAN SERVICES on NCEH/ATSDR’s Office of the ACTION: Notice. Director; an update on Science and Centers for Disease Control and Public Health and Reports; an update on SUMMARY: The Food and Drug Prevention the Health Department Subcommittee, Administration (FDA) is announcing the the Community and Tribal resolution of issues concerning trimethobenzamide hydrochloride National Center for Environmental Subcommittee, and the Program Peer Health/Agency for Toxic Substances suppositories. This notice announces Review Subcommittee (PPRS) Reports and Disease Registry; The Board of the withdrawal of approval of the new and Discussion; a presentation on CDC’s Scientific Counselors (BSC), Centers drug application (NDA) for Tigan for Disease Control and Prevention Web site redesign and the NCEH/ (trimethobenzamide hydrochloride) (CDC), National Center for ATSDR Web site; an update on Climate Suppositories. The notice also declares Environmental Health (NCEH)/Agency Change Initiative; a presentation on the that the marketing of unapproved for Toxic Substances and Disease Office of Tribal Affairs’ Expert Panel trimethobenzamide hydrochloride Registry (ATSDR): Meeting Report; an update on issues from the suppository products is unlawful and Board; a discussion on the Office of subject to FDA regulatory action. FDA is In accordance with section 10(a)(2) of the Management and Budget Performance taking these actions because Federal Advisory Committee Act (Pub. L. 92– Assessment and Review Techniques trimethobenzamide hydrochloride 463), CDC and ATSDR announce the goals and objectives; an update on the suppositories lack substantial evidence following meeting of the aforementioned National Exposure Report; an update on of effectiveness. committee: Preparedness and Emergency Response ADDRESSES: Requests for an opinion on Times and Dates: 8 a.m.–4:45 p.m., priorities and portfolio; and a the applicability of this notice to a May 17, 2007. 8 a.m.–12 p.m., May 18, discussion on BSC—PPRS Draft Peer specific trimethobenzamide 2007. Review Report on ATSDR Site-Specific hydrochloride suppository product Place: 1825 Century Boulevard, Activities. should be identified with Docket No. Atlanta, Georgia 30345. Agenda items are tentative and 1978N–0224 and reference number DESI Status: Open to the public, limited subject to change. 11853 and directed to the Office of only by the space available. The meeting Compliance, Division of New Drugs and room accommodates approximately 75 FOR FURTHER INFORMATION CONTACT: Labeling Compliance (HFD–310), New people. Sandra Malcom, Committee Drugs and Labeling Team, Center for Purpose: The Secretary, Department Management Specialist, NCEH/ATSDR, Drug Evaluation and Research, Food of Health and Human Services (HHS), 1600 Clifton Road, Mail Stop E–28, and Drug Administration, 11919 and by delegation, the Director, CDC, Atlanta, Georgia 30303; telephone 404/ Rockville Pike, Rockville, MD 20852. are authorized under Section 301 (42 498–0003, fax 404/498–0622; E-mail: DATE: Effective May 9, 2007. U.S.C. 241) and Section 311 (42 U.S.C. [email protected]. The deadline for FOR FURTHER INFORMATION CONTACT: 243) of the Public Health Service Act, as notification of attendance is May 4, amended, to: (1) Conduct, encourage, Brian L. Pendleton, Center for Drug 2007. cooperate with, and assist other Evaluation and Research (HFD–7), Food appropriate public authorities, scientific The Director, Management Analysis and Drug Administration, 5600 Fishers institutions, and scientists in the and Services Office, has been delegated Lane, Rockville, MD 20857, 301–594– conduct of research, investigations, the authority to sign Federal Register 2041. experiments, demonstrations, and notices pertaining to announcements of SUPPLEMENTARY INFORMATION: studies relating to the causes, diagnosis, meetings and other committee I. Background treatment, control, and prevention of management activities for both CDC and physical and mental diseases and other NCEH/ATSDR. As part of its Drug Efficacy Study impairments; (2) assist states and their Implementation (DESI) program, in a political subdivisions in the prevention Dated: April 2, 2007. notice published in the Federal Register of infectious diseases and other Elaine L. Baker, on February 24, 1971 (36 FR 3435) (the preventable conditions and in the Acting Director, Management Analysis and 1971 notice), FDA announced the promotion of health and well being; and Services Office, Centers for Disease Control following conclusions regarding certain (3) train state and local personnel in and Prevention. drug products that contain health work. The BSC, NCEH/ATSDR [FR Doc. E7–6585 Filed 4–6–07; 8:45 am] trimethobenzamide hydrochloride: (1) provides advice and guidance to the BILLING CODE 4163–18–P The products were probably effective for Secretary, HHS; the Director, CDC, and nausea and vomiting due to radiation Administrator, ATSDR; and the therapy or travel sickness and for emesis Director, NCEH/ATSDR, regarding associated with operative procedures, program goals, objectives, strategies, and labyrinthitis, or Meniere’s syndrome; (2) priorities in fulfillment of the agency’s they were lacking substantial evidence

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17557

of effectiveness for the treatment of not be withdrawn, and an opportunity 2002, we published a notice in the nausea and vomiting due to infections, to raise, for administrative Federal Register announcing our final underlying disease processes, or drug determination, all issues relating to the evaluation of these products (67 FR administration; and (3) they were legal status of a named drug product 78476). possibly effective for all other labeled and all identical, related, or similar drug II. Resolution of Issues Concerning indications. The 1971 notice listed three products (44 FR 2021 at 2022). Tigan Suppositories trimethobenzamide hydrochloride The 1979 suppository notice stated products: Tigan Solution for Injection that the failure of an applicant or any King notified us in a letter dated (NDA 11–853), Tigan Capsules (NDA other person subject to the notice to file March 21, 2005, that it had decided not 11–854), and Tigan Suppositories (NDA a timely written appearance and request to pursue additional studies for Tigan 11–855). Roche Laboratories held the for a hearing, as required by § 314.200, Suppositories. In a letter dated August NDAs for these three products. constituted an election by the person 19, 2005, we asked King, in accordance On January 9, 1979, we published a not to make use of the opportunity for with the Agreement, to request the notice in the Federal Register (44 FR a hearing and a waiver of any withdrawal of NDA 17–529 for Tigan 2021) (the 1979 suppository notice) contentions concerning the legal status Suppositories. In a letter dated announcing that we were reclassifying of any drug product subject to the September 6, 2005, King requested that trimethobenzamide hydrochloride notice. The notice further stated that we withdraw NDA 17–529. suppositories to lacking substantial any such drug product could not As stated in section I of this evidence of effectiveness and proposing thereafter lawfully be marketed, and we document, King has withdrawn its to withdraw approval of the NDAs for would initiate appropriate regulatory request for a hearing on matters related trimethobenzamide hydrochloride action to remove such drug products to NDA 17–529. No party other than suppositories. The 1979 suppository from the market (44 FR 2021 at 2022). Beecham (a previous holder of NDA 17– notice stated that NDA 17–529 for Tigan In a letter dated January 30, 1979, 529) submitted a request for a hearing in Suppositories, held by Beecham Beecham requested a hearing on the response to the 1979 suppository notice. Laboratories (Beecham), had not been proposed withdrawal of NDA 17–529 Therefore, all other parties waived any included in the 1971 notice, but was for Tigan Suppositories. In a letter dated possible contentions regarding the legal affected by the new notice. (In the same March 5, 1979, Beecham submitted data status of their trimethobenzamide issue of the January 9, 1979, Federal in support of its request for a hearing. hydrochloride suppository products. Register (44 FR 2017) (the 1979 Beecham was the only party to request III. Withdrawal of Approval of NDA injection and capsule notice), we a hearing. On April 13, 1979, we 17–529 for Tigan Suppositories published a notice announcing that we published a notice in the Federal were reclassifying trimethobenzamide Register announcing that we were As a result of the events described in hydrochloride injection and capsules to withdrawing the approval of NDA 11– section II of this document, we have effective for certain indications and to 8550 (the only other NDA named in the concluded that Tigan Suppositories lacking substantial evidence of 1979 suppository notice), effective April have not been shown to be effective. effectiveness for their other (previously 23, 1979 (44 FR 22199). Therefore, we are withdrawing approval designated) less-than-effective On November 12, 1999, King of the NDA for this product. indications. On December 24, 2002, we Pharmaceuticals, Inc., 501 Fifth St., Under § 310.6, this notice applies to published the final evaluation for Bristol, TN 37620 (King), purchased any drug product that is identical, trimethobenzamide hydrochloride from Roberts Pharmaceutical Corp. the related, or similar to Tigan injection and capsules (67 FR 78476).) NDAs for the Tigan products previously Suppositories and is not the subject of In the 1979 suppository notice, we held by Beecham: NDA 17–529 an approved NDA. Any person who gave notice of an opportunity for a (suppositories), NDA 17–530 (injection), wishes to determine whether a specific hearing to the holders of the NDAs for and NDA 17–531 (capsules). We product is covered by this notice should trimethobenzamide hydrochloride subsequently initiated discussions with write to the Division of New Drugs and suppositories, and to all other interested King on bringing the Tigan products Labeling Compliance (see ADDRESSES). persons, stating that we proposed to into compliance with the 1979 notices The Director of the Center for Drug issue an order under section 505(e) of on trimethobenzamide hydrochloride Evaluation and Research, under section the Federal Food, Drug, and Cosmetic drugs. 505(e) of the act and under the authority Act (the act) (21 U.S.C. 355(e)) In an agreement that became effective delegated to him, finds that, on the basis withdrawing approval of the NDAs and on August 16, 2001 (the Agreement), of the information in this docket on all amendments and supplements FDA and King agreed to take several Tigan Suppositories (NDA 17–529), thereto (44 FR 2021 at 2021 to 2022). We actions to resolve the matter of the evaluated together with the evidence stated that the notice of an opportunity compliance of Tigan products with the available to FDA when the application for a hearing encompassed all issues 1979 notices. Among other things, King for this product was approved, there is relating to the legal status of the drug agreed to withdraw the request for a a lack of substantial evidence that this products subject to the notice, including hearing (originally submitted by product has the effect it purports or is identical, related, or similar drug Beecham) on matters related to NDAs represented to have under the products as defined in § 310.6 (21 CFR 17–529 (Tigan Suppositories), 17–530 conditions of use prescribed, 310.6) of our regulations. In accordance (Tigan Injection), and 17–531 (Tigan recommended, or suggested in its with section 505 of the act and parts 310 Capsules), and all amendments and labeling. and 314 (21 CFR parts 310 and 314), we supplements thereto, within 10 days of Therefore, based on the foregoing gave the holders of the NDAs and all the effective date of the Agreement. In finding, the approval of NDA 17–529, other persons who manufacture or a letter dated August 24, 2001, King including all amendments and distribute a drug product that is withdrew its request for a hearing on supplements thereto, is withdrawn identical, related, or similar to a drug these matters in accordance with the effective May 9, 2007. Shipment in product named in the notice an Agreement. The issues relating to Tigan interstate commerce of Tigan opportunity for a hearing to show why Capsules and Injection were resolved in Suppositories or any identical, related, approval of the NDAs involved should 2001 and 2002, and on December 24, or similar trimethobenzamide

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17558 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

hydrochloride suppository product that Name of Committee: Blood Products Procedure: Interested persons may is not the subject of an approved NDA Advisory Committee. present data, information, or views, will then be unlawful. General Function of the Committee: orally or in writing, on issues pending We note that under enforcement To provide advice and before the committee. Written policies regarding drugs marketed recommendations to the agency on submissions may be made to the contact without required applications described FDA’s regulatory issues. person on or before April 18, 2007. Oral in the agency’s guidance entitled Date and Time: The meeting will be presentations from the public will be Marketed Unapproved Drugs— held on April 26, 2007, from 2 p.m. to scheduled between approximately 4:30 Compliance Policy Guide, it is a high 6 p.m. and on April 27, 2007, from 8 p.m. and 5 p.m. on April 26, 2007, and priority for the agency to take a.m. to 3:30 p.m. between approximately 10:45 a.m. and enforcement action against those Location: Hilton Hotel, Washington, 11:15 a.m. on April 27, 2007. Those unapproved drug products that lack DC North/Gaithersburg, 620 Perry desiring to make formal oral evidence of effectiveness. Firms should Pkwy., Gaithersburg, MD 20877. presentations should notify the contact be aware that we intend to take Contact Person: Donald W. Jehn or person and submit a brief statement of enforcement action without further Pearline K. Muckelvene, Center for the general nature of the evidence or notice against any firm that Biologics Evaluation and Research arguments they wish to present, the manufactures or ships in interstate (CBER), Food and Drug Administration, names and addresses of proposed commerce any unapproved product 1401 Rockville Pike (HFM–71), participants, and an indication of the covered by this notice after May 9, 2007. Rockville, MD 20852, 301–827–0314, or approximate time requested to make Firms that discontinue or have already FDA Advisory Committee Information their presentation on or before April 10, discontinued manufacturing products Line, 1–800–741–8138 (301–443–0572 2007. Time allotted for each covered by this notice may want to in the Washington, DC area), code presentation may be limited. If the notify us that they are no longer 3014519516. Please call the Information number of registrants requesting to manufacturing those products. A firm Line for up-to-date information on this speak is greater than can be reasonably that wishes to notify us of product meeting. accommodated during the scheduled discontinuation should send a letter, Agenda: On April 26, 2007, the open public hearing session, FDA may signed by the firm’s chief executive committee will hear an update on a conduct a lottery to determine the officer, fully identifying the summary of August 30 and 31, 2006, speakers for the scheduled open public discontinued product, including its meeting of the Department of Health hearing session. The contact person will National Drug Code (NDC) number. The and Human Services Advisory notify interested persons regarding their firm should send the letter to the Committee on Blood Safety and request to speak by April 11, 2007. Division of New Drugs and Labeling Availability. The committee will then Persons attending FDA’s advisory Compliance, New Drugs and Labeling discuss issues related to implementation committee meetings are advised that the Team (see ADDRESSES). Firms should of blood donor screening for infection agency is not responsible for providing also update the listing of their products with Trypanosoma cruzi and issues access to electrical outlets. under section 510(j) of the act (21 U.S.C. related to transmissibility of FDA welcomes the attendance of the 360(j)) to reflect discontinuation of Trypanosoma cruzi in donors of human public at its advisory committee unapproved or otherwise discontinued cells, tissue, and cellular and tissue- meetings and will make every effort to products. We plan to rely on our based products. On April 27, 2007, the accommodate persons with physical existing records, the results of a committee will hear updates on disabilities or special needs. If you subsequent inspection, or other summary of December 15, 2006, meeting require special accommodations due to available information when we evaluate of the Transmissible Spongiform a disability, please contact Donald W. whether to take enforcement action. Encephelopathies Advisory Committee, Jehn or Pearline K. Muckelvene at least Dated: March 14, 2007. FDA’s risk communication on plasma- 7 days in advance of the meeting. Douglas C. Throckmorton, derived Factor VIII and Factor XI, and Notice of this meeting is given under summary of September 25 and 26, 2006, Deputy Director, Center for Drug Evaluation the Federal Advisory Committee Act (5 and Research. FDA Workshop on Molecular Methods U.S.C. app. 2). in Immunohematology. The committee [FR Doc. E7–6593 Filed 4–6–07; 8:45 am] will then discuss transfusion related Dated: April 3, 2007. BILLING CODE 4160–01–S acute lung injury, and discuss issues Randall W. Lutter, related to implementation of blood Associate Commissioner for Policy and Planning. DEPARTMENT OF HEALTH AND donor screening for infection with West [FR Doc. E7–6594 Filed 4–6–07; 8:45 am] HUMAN SERVICES Nile Virus. FDA intends to make background BILLING CODE 4160–01–S Food and Drug Administration material available to the public no later than 1 business day before the meeting. Blood Products Advisory Committee; If FDA is unable to post the background DEPARTMENT OF HEALTH AND Notice of Meeting material on its Web site prior to the HUMAN SERVICES meeting, the background material will Food and Drug Administration AGENCY: Food and Drug Administration, be made publicly available at the HHS. location of the advisory committee General Hospital and Personal Use ACTION: Notice. meeting, and the background material Devices Panel of the Medical Devices will be posted on FDA’s Web site after Advisory Committee; Notice of Meeting This notice announces a forthcoming the meeting. Background material is meeting of a public advisory committee available at http://www.fda.gov/ohrms/ AGENCY: Food and Drug Administration, of the Food and Drug Administration dockets/ac/acmenu.htm, click on the HHS. (FDA). The meeting will be open to the year 2007 and scroll down to the ACTION: Notice. public. appropriate advisory committee link.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17559

This notice announces a forthcoming agency is not responsible for providing Safety Board Boardroom and Conference meeting of a public advisory committee access to electrical outlets. Center, 429 L’Enfant Plaza SW., of the Food and Drug Administration FDA welcomes the attendance of the Washington, DC 20594 (Metro: L’Enfant (FDA). The meeting will be open to the public at its advisory committee Plaza Station on the Green, Yellow, public. meetings and will make every effort to Blue, and Orange Lines). Name of Committee: General Hospital accommodate persons with physical Addresses: Submit written or and Personal Use Devices Panel of the disabilities or special needs. If you electronic notices of participation to the Medical Devices Advisory Committee. require special accommodations due to Division of Dockets Management (HFA– General Function of the Committee: a disability, please contact AnnMarie 305), Food and Drug Administration, To provide advice and Williams, Committee Management Staff, 5630 Fishers Lane, rm. 1061, Rockville, recommendations to the agency on at 301–827–7291 at least 7 days in MD 20852, or on the Internet at http:// FDA’s regulatory issues. advance of the meeting. www.accessdata.fda.gov/scripts/oc/ Date and Time: The meeting will be Notice of this meeting is given under dockets/meetings/meetingdocket.cfm. held on May 4, 2007, from 8 a.m. to 5 the Federal Advisory Committee Act (5 Submit written or electronic comments p.m. U.S.C. app. 2). to http://www.accessdata.fda.gov/ Location: Hilton Washington DC Dated: April 3, 2007. scripts/oc/dockets/commentdocket.cfm North/Gaithersburg, Salons A, B, and C, or to the Division of Dockets 620 Perry Pkwy., Gaithersburg, MD. Randall W. Lutter, Contact Person: Scott Colburn, Center Associate Commissioner for Policy and Management. Transcripts of the hearing for Devices and Radiological Health Planning. will be available for review at the (HFZ–480), Food and Drug [FR Doc. E7–6645 Filed 4–6–07; 8:45 am] Division of Dockets Management and on Administration, 9200 Corporate Blvd., BILLING CODE 4160–01–S the Internet at http://www.fda.gov/ Rockville MD, 20850, 240–276–3707, or ohrms/dockets approximately 21 days FDA Advisory Committee Information after the hearing. Line, 1–800–741–8138 (301–443–0572 DEPARTMENT OF HEALTH AND For Registration to Attend and/or to in the Washington, DC area), code HUMAN SERVICES Participate in the Meeting: Seating at the meeting is limited. People interested in 3014512520. Please call the Information Food and Drug Administration Line for up-to-date information on this attending should register at http:// meeting. [Docket No. 2007N–0121] www.accessdata.fda.gov/scripts/oc/ Agenda: The committee will discuss dockets/meetings/meetingdocket.cfm or and make recommendations on the Use of Medication Guides to Distribute submit a written request for registration scientific and clinical issues raised by Drug Risk Information to Patients; to the Division of Dockets Management the addition of antimicrobial agents to Public Hearing (see Addresses) by 4:30 p.m. on May 12, 2007. Registration is free and will be on personal protective equipment (PPE). AGENCY: Food and Drug Administration, a first-come, first-served basis. The PPE to be discussed are surgical HHS. If you wish to make an oral masks/respirators, medical gloves, and ACTION: Notice of public hearing; request presentation during the open session of surgical/isolation gowns. for comments. Procedure: Interested persons may the meeting, you must state this present data, information, or views, SUMMARY: The Food and Drug intention on your notice of participation orally or in writing, on issues pending Administration (FDA), Center for Drug (see Addresses) and provide an abstract before the committee. Written Evaluation and Research (CDER), is of your presentation by May 12, 2007. submissions may be made to the contact announcing a public hearing to obtain In the notice, submit your name, title, person on or before April 20, 2007. Oral feedback on FDA’s Medication Guide business affiliation, address, telephone presentations from the public will be program, which provides for the and fax numbers, and e-mail address. scheduled for approximately 30 minutes distribution of FDA-approved written FDA has identified questions and during the morning deliberations and patient information for certain drug and subject matter of special interest in for approximately 30 minutes during the biological products that pose serious section II of this document. You should afternoon deliberations. Those desiring and significant public health concerns. also identify the subject matter and to make formal oral presentations FDA is interested in obtaining public question number you wish to address in should notify the contact person and comment on ways to improve your presentation, and the approximate submit a brief statement of the general communication to patients who receive time requested for your presentation. nature of the evidence or arguments Medication Guides. The purpose of the Individuals and organizations with they wish to present, the names and public hearing is to solicit information common interests are urged to addresses of proposed participants, and and views from interested persons on consolidate or coordinate their an indication of the approximate time specific issues associated with the presentations and to request time for a requested to make their presentation on development, distribution, joint presentation. FDA may require or before April 12, 2007. Time allotted comprehensibility, and accessibility of joint presentations by persons with for each presentation may be limited. If Medication Guides, which are required common interests. We will determine the number of registrants requesting to to convey risk information to patients. the amount of time allotted to each speak is greater than can be reasonably Dates and Times: The public hearing presenter and the approximate time that accommodated during the scheduled will be held on June 12 and 13, 2007, each oral presentation is scheduled to open public hearing session, FDA may from 8:30 a.m. to 4:30 p.m. on both begin. You must submit final electronic conduct a lottery to determine the days. Submit written or electronic presentations, if any, to Mary Gross (see speakers for the scheduled open public notices of participation by 4:30 p.m. on Contacts) by no later than June 6, 2007. hearing session. The contact person will May 12, 2007. Written and electronic Contacts: Mary C. Gross, Safety Policy notify interested persons regarding their comments will be accepted until July and Communication Staff (HFD–001), request to speak by April 13, 2007. 12, 2007. Center for Drug Evaluation and Persons attending FDA’s advisory Location: The public hearing will be Research, Food and Drug committee meetings are advised that the held at the National Transportation and Administration, 5600 Fishers Lane,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17560 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Rockville, MD 20857, 301–443–5421, e- (CMI) is another source of prescription medication information distributed at mail: [email protected]. drug information. CMI, which is not the pharmacy? Should the information SUPPLEMENTARY INFORMATION: FDA-approved, is a private sector be combined or simplified into fewer or initiative based on Public Law 104–180. one communication vehicle(s)? I. Background This law sets specific distribution and 2. How do consumers prefer to receive FDA is committed to ensuring that quality goals and timeframes for the Medication Guide information (e.g., prescribers, patients, and their families private sector distribution of written paper, e-mail, Internet)? When should have the information needed to support prescription drug information to they receive Medication Guide the safe and effective use of prescription consumers. The law requires that the information (e.g., when prescribed, medications. In the Federal Register of Secretary of the Department of Health when dispensed, when they download December 1, 1998 (63 FR 66378), FDA and Human Services evaluate the it from a Web site or e-mail message)? published its final rule entitled private sector progress toward meeting 3. Are Medication Guides easy to read ‘‘Prescription Drug Product Labeling; these goals, including that, by 2006, 95 and understand? How can Medication Medication Guide Requirements’’ percent of people receiving new Guides be improved? Do they serve as (effective June 1, 1999). The final rule prescriptions would receive useful useful adjuncts to counseling by included provisions that require the written patient information with their physicians or pharmacists? distribution of FDA-approved written prescriptions. For this public hearing, Pharmacies/Mail Order Pharmacies patient information, Medication Guides, FDA is not soliciting comments on PPIs 1. Currently, how are you informed for certain prescription drug and or the CMI initiative. Comments should that a Medication Guide is required to biological products that pose a serious be limited to the Medication Guide be distributed with a specific and significant public health concern program, including the questions listed medication? (see part 208 (21 CFR part 208)). in section II of this document. 2. How do you receive Medication Medication Guides are intended to A list of drug products with Guides from the manufacturers (e.g., in provide information that FDA has Medication Guides is available on what format)? Should the way you determined is necessary to patients’ safe FDA’s Web site at http://www.fda.gov/ receive these be changed? If so, how? and effective use of drug products. cder/offices/ods/ 3. What are the challenges in Under § 208.24, manufacturers who ship medication_guides.htm. complying with the Medication Guide drug products for which Medication regulation, maintaining an adequate Guides are required are responsible for II. Scope of Hearing supply of Medication Guides, and ensuring that Medication Guides are FDA is interested in obtaining public distributing Medication Guides to provided in sufficient numbers to allow comment on ways to improve consumers? What changes should be distributors, packers, or authorized communication to patients consistent made to the Medication Guide program dispensers to provide the guides to all with the requirement that Medication to address these challenges? patients who receive the drug product. Guides, FDA-approved patient 4. What steps would you need to take Alternatively, manufacturers may information, be distributed for selected to facilitate electronic distribution of provide the means for distributors, prescription drugs that pose a serious Medication Guides (e.g., e-mailed to packers, or authorized dispensers to and significant public health concern. patients)? produce and provide Medication Guides As stated in § 208.1, patient labeling in 5. Do you consider the Medication to patients. the form of a Medication Guide is Guide to be a valuable tool in Section 208.24 also requires each required if one or more of the following counseling patients about drugs with authorized dispenser of a prescription circumstances exist: serious risks? drug for which a Medication Guide is 1. The drug product is one for which 6. Do Medication Guides have a required to provide the guide to the patient labeling could help prevent unique role compared to other patient, or to the patient’s agent, when serious adverse effects. communication vehicles that patients the product is dispensed, unless exempt 2. The drug product is one that has receive at the pharmacy? Should the from this requirement under § 208.26. serious risk(s) (relative to benefits) of information be combined or simplified The failure to provide a Medication which patients should be made aware into fewer communication vehicles? Guide when such a product is because information concerning the 7. What process improvements could dispensed would cause the product to risk(s) could affect the patients’ decision be made to ensure that patients receive be misbranded in violation of the to use, or continue to use, the product. appropriate drug risk information at the Federal Food, Drug, and Cosmetic Act 3. The drug product is important to pharmacy? (the act) (see sections 502(a), 201(n), and health and patient adherence to 8. What are the advantages and 503(b)(2) of the act (21 U.S.C. 352(a), directions for use is crucial to the disadvantages of having Medication 321(n), and 353(b)(2)). effectiveness of the drug. Guides to cover a class of drugs versus Consumers may receive prescription The following questions are organized Medication Guides for each individual drug information through sources other according to consumers, pharmacies/ product in a class? than Medication Guides. For example, mail order pharmacies, manufacturers, Manufacturers patient package inserts (PPIs) are FDA- information vendors/wholesalers, and 1. What steps do you take to ensure approved patient information required academicians/researchers. Specifically, compliance with the Medication Guide to be dispensed with certain drugs such we are seeking input on the following requirements? What challenges do you as estrogens (21 CFR 310.515) and oral issues: encounter in complying with the contraceptives (21 CFR 310.501) to Consumers requirement to distribute Medication ensure the safe and effective use of these 1. What is the best way for consumers Guides with the product to pharmacies products. PPIs are considered part of the to be informed about the serious risks of and others? How do you ensure that product labeling. Products with a drug product or other important pharmacies are receiving a sufficient Medication Guides do not have PPIs; a prescribing information? Do Medication supply of Medication Guides? required Medication Guide would Guides have a unique or important role 2. Have means other than paper, such replace an existing PPI for a product. in educating consumers about these as electronic files, been used to supply Consumer medication information risks compared to other written Medication Guides to pharmacies or

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17561

third-party vendors? If so, please electronic notice of participation with document, conflict with any provisions describe your experience. If not, please the Division of Dockets Management set out in part 15, this document acts as explain why not. (see Addresses). To ensure timely a waiver of these provisions as specified 3. How do you instruct pharmacies handling, any outer envelope should be in § 15.30(h). that Medication Guides must be clearly marked with the docket number IV. Request for Comments dispensed with certain prescription listed in brackets in the heading of this drugs per § 208.24(d)? document along with the statement Interested persons may submit to the 4. Should standardized language and/ ‘‘FDA Public Hearing: Use of Division of Dockets Management (see or a uniform symbol on the container Medication Guides to Distribute Drug Addresses) written or electronic notices label be used for the required Risk Information to Patients.’’ Groups of participation and comments for instruction to dispensers? If so, please should submit two written copies. consideration at the hearing (see Dates propose standardized language and Requests to make a presentation should and Times). To permit time for all suggest a uniform symbol that might be contain the potential presenter’s name, interested persons to submit data, appropriate. address, telephone number, affiliation, information, or views on this subject, 5. What can be done by means of if any, the sponsor of the presentation the administrative record of the hearing packaging, such as ‘‘unit-of-use,’’ to (e.g., the organization paying travel will remain open until July 12, 2007. ensure that a Medication Guide is expenses or fees), if any, a brief Persons who wish to provide additional shipped with the drug product so that summary of the presentation, and the materials for consideration should file it is distributed with each prescription? approximate amount of time requested these materials with the Division of What are the advantages and for the presentation. The agency Dockets Management (see Addresses). disadvantages of using unit-of-use requests that interested persons and You should annotate and organize your packaging for any product that requires groups having similar interests comments to identify the specific a Medication Guide? consolidate their comments and present questions to which they refer (see 6. What are the advantages and them through a single representative. section II of this document). Two copies disadvantages of developing Medication After reviewing the notices of of any mailed comments are to be Guides to cover a class of drugs rather participation and accompanying submitted, except that individuals may than having a separate Medication information, FDA will schedule each submit one paper copy. Comments are Guide for each product in a class? appearance and notify each participant to be identified with the docket number Information Vendors/Wholesalers of the time allotted to the presenter and found in brackets in the heading of this 1. What challenges or issues regarding the approximate time that presenter’s document. Received comments may be distribution of Medication Guides have oral testimony is scheduled to begin. If seen in the Division of Dockets you encountered? What changes should time permits, FDA may allow interested Management between 9 a.m. and 4 p.m., be made to the Medication Guide persons attending the hearing who did Monday through Friday. program to address these challenges? not submit a written or electronic notice 2. What challenges do information of participation in advance to make an V. Transcripts vendors face when offering electronic oral presentation at the conclusion of The hearing will be transcribed as versions of Medication Guides in the the hearing. The hearing schedule will stipulated in § 15.30(b). The transcript FDA-approved format? What ideas do be available at the hearing. After the of the hearing will be available 30 days you have regarding how Medication hearing, the schedule will be placed on after the hearing on the Internet at Guides could be integrated into other file in the Division of Dockets http://www.fda.gov/ohrms/dockets, and consumer information? Management under the docket number orders for copies of the transcript can be Academicians/Researchers listed in brackets in the heading of this placed at the meeting or through the 1. Please describe any research that is document. Freedom of Information Office (HFI–35), available regarding how often patients Under § 15.30(f), the hearing is Food and Drug Administration, 5600 receive, read, and/or understand informal and the rules of evidence do Fishers Lane, rm. 6–30, Rockville, MD Medication Guides. not apply. No participant may interrupt 20857, at a cost of 10 cents per page. 2. What research is available about the presentation of another participant. Dated: April 2, 2007. Medication Guide comprehensibility Only the presiding officer and panel Jeffrey Shuren, and understandability for the diverse members may question any person range of health literacy levels or special during or at the conclusion of each Assistant Commissioner for Policy. populations (e.g., elderly, adolescents, presentation. [FR Doc. E7–6506 Filed 4–6–07; 8:45 am] non-English speaking)? Please describe Public hearings under part 15 are BILLING CODE 4160–01–S your recommendations as to how FDA subject to FDA’s policy and procedures should modify Medication Guides to for electronic media coverage of FDA’s more effectively inform a broader public administrative proceedings (part DEPARTMENT OF HEALTH AND audience about drug risk information. 10 (21 CFR part 10, subpart C)). Under HUMAN SERVICES § 10.205, representatives of the III. Notice of Hearing Under 21 CFR Food and Drug Administration electronic media may be permitted, Part 15 subject to certain limitations, to [Docket No. 2007D–0118] The Commissioner of the FDA is videotape, film, or otherwise record announcing that the public hearing will FDA’s public administrative Draft Guidance for Industry on the be held in accordance with part 15 (21 proceedings, including presentations by Content and Format of the Dosage and CFR part 15). The presiding officer will participants. Administration Section of Labeling for be the Commissioner or his designee. Any handicapped persons requiring Human Prescription Drug and The presiding officer will be special accommodations to attend the Biological Products; Availability accompanied by a panel of FDA hearing should direct those needs to the AGENCY: Food and Drug Administration, employees with relevant expertise. contact person (see Contacts). HHS. Persons who wish to participate in the To the extent that the conditions for ACTION: Notice. part 15 hearing must file a written or the hearing, as described in this

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17562 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

SUMMARY: The Food and Drug SUPPLEMENTARY INFORMATION: subject to review by the Office of Administration (FDA) is announcing the Management and Budget (OMB) under I. Background availability of a draft guidance for the Paperwork Reduction Act of 1995 industry entitled ‘‘Dosage and FDA is announcing the availability of (44 U.S.C. 3501–3520). The collections Administration Section of Labeling for a draft guidance for industry entitled of information in 21 CFR 201.57 have Human Prescription Drug and Biological ‘‘Dosage and Administration Section of been approved under OMB control Products—Content and Format.’’ This Labeling for Human Prescription Drug number 0910–0572. draft guidance is one of a series of and Biological Products—Content and guidance documents intended to assist Format.’’ The draft guidance provides IV. Electronic Access applicants in drafting prescription drug recommendations on how to select Persons with access to the Internet labeling in which prescribing information for inclusion in the ‘‘Dosage may obtain the draft guidance at http:// information is clear and accessible and and Administration’’ section of labeling www.fda.gov/ohrms/dockets/ complying with the new requirements and how to organize information within default.htm, http://www.fda.gov/cder/ in the final rule on the content and the section. This draft guidance is one guidance/index.htm, or http:// format of labeling for prescription drug of a series guidances FDA is developing, www.fda.gov/cber/guidelines.htm. or has developed, to assist applicants and biological products (71 FR 3922, Dated: March 30, 2007. January 24, 2006). This draft guidance is and reviewers with the format and Jeffrey Shuren, intended to help applicants select content of certain sections of the information for inclusion in the ‘‘Dosage labeling for prescription drugs. In the Assistant Commissioner for Policy. and Administration’’ section of labeling Federal Register of January 24, 2006 (71 [FR Doc. E7–6508 Filed 4–6–07; 8:45 am] and to help them organize that FR 3998 and 3999), FDA issued final BILLING CODE 4160–01–S information. guidances on the format and content of the ‘‘Adverse Reactions’’ and ‘‘Clinical DATES: Submit written or electronic Studies’’ sections of labeling and draft DEPARTMENT OF HEALTH AND comments on the draft guidance by July HUMAN SERVICES 9, 2007. General comments on agency guidances on implementing the new labeling requirements for prescription guidance documents are welcome at any Food and Drug Administration time. drugs and the format and content of the ‘‘Warnings and Precautions,’’ ADDRESSES: Submit written requests for ‘‘Contraindications,’’ and ‘‘Boxed [Docket No. 2007D–0106] single copies of the draft guidance to the Warning’’ sections of labeling. The new Division of Drug Information (HFD– labeling requirements (71 FR 3922) and Draft Guidance for Clinical 240), Center for Drug Evaluation and these guidances are intended to make Investigators, Sponsors, and Research, Food and Drug information in prescription drug Investigational Review Boards on Administration, 5600 Fishers Lane, labeling easier for health care Adverse Event Reporting—Improving Rockville, MD 20857; or the Office of practitioners to access, read, and use. Human Subject Protection; Availability Communication, Training, and The draft guidance is being issued Manufacturers Assistance (HFM–40), AGENCY: Food and Drug Administration, consistent with FDA’s good guidance HHS. Center for Biologics Evaluation and practices regulation (21 CFR 10.115). ACTION: Research (CBER), Food and Drug The draft guidance, when finalized, will Notice. Administration, 1401 Rockville Pike, represent FDA’s current thinking on this SUMMARY: The Food and Drug suite 200N, Rockville, MD 20852–1448. topic. It does not create or confer any The draft guidance may also be obtained Administration (FDA) is announcing the rights for or on any person and does not availability of a draft guidance for by mail by calling CBER at 1–800–835– operate to bind FDA or the public. An 4709 or 301–827–1800. Send two self- industry entitled ‘‘Guidance for Clinical alternative approach may be used if Investigators, Sponsors, and IRBs; addressed adhesive labels to assist the such approach satisfies the requirement office in processing your requests. Adverse Event Reporting—Improving of the applicable statutes and Human Subject Protection.’’ This Submit written comments on the draft regulations. guidance to the Division of Dockets guidance is intended to assist the Management (HFA–305), Food and Drug II. Comments research community in interpreting Administration, 5630 Fishers Lane, rm. Interested persons may submit to the requirements for submitting reports of 1061, Rockville, MD 20852. Submit Division of Dockets Management (see unanticipated problems, including certain adverse events reports, to the electronic comments to http:// ADDRESSES) written or electronic www.fda.gov/dockets/ecomments. See comments regarding the draft guidance. Institutional Review Board (IRB). FDA the SUPPLEMENTARY INFORMATION section Submit a single copy of electronic developed this draft guidance in for electronic access to the draft comments or two paper copies of any response to concerns raised by the IRB guidance document. mailed comments, except that community that increasingly large volumes of individual adverse event FOR FURTHER INFORMATION CONTACT: individuals may submit one paper copy. Joseph P. Griffin, Center for Drug Comments are to be identified with the reports are inhibiting rather than Evaluation and Research, Food and docket number found in brackets in the enhancing IRBs’ ability to adequately Drug Administration, 10903 New heading of this document. Received protect human subjects. The guidance Hampshire Ave., Bldg. 22, rm. 4204, comments may be seen in the Division provides recommendations to IRBs, Silver Spring, MD 20993–0002, of Dockets Management between 9 a.m. sponsors, and investigators on 301–796–1077; or and 4 p.m., Monday through Friday. improving the usefulness of the adverse Stephen Ripley, Center for Biologics event information submitted to IRBs. Evaluation and Research (HFM–17), III. Paperwork Reduction Act of 1995 DATES: Submit written or electronic Food and Drug Administration, This draft guidance refers to comments on the draft guidance by June 1401 Rockville Pike, suite 200N, previously approved collections of 8, 2007. General comments on agency Rockville, MD 20852–1448, 301– information found in FDA regulations. guidance documents are welcome at any 827–6210. These collections of information are time.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17563

ADDRESSES: Submit written requests for 10.115). The draft guidance, when DEPARTMENT OF HEALTH AND single copies of the draft guidance to the finalized, will represent the agency’s HUMAN SERVICES Office of Critical Path Programs (HF– current thinking on adverse event 18), Office of the Commissioner, Food reporting for the purpose of improving Food and Drug Administration and Drug Administration, 5600 Fishers human subject protection. It does not [Docket No. 2007D–0117] Lane, Rockville, MD 20857. Send one create or confer any rights for or on any self-addressed adhesive label to assist person and does not operate to bind Draft Guidance for Industry on Orally that office in processing your requests. FDA or the public. An alternative Disintegrating Tablets; Availability Submit telephone requests to 800–835– approach may be used if such approach 4709 or 301–827–1800. Submit written AGENCY: Food and Drug Administration, satisfies the requirements of the HHS. comments on the draft guidance to the applicable statutes and regulations. Division of Dockets Management (HFA– ACTION: Notice. 305), Food and Drug Administration, II. The Paperwork Reduction Act of SUMMARY: 5630 Fishers Lane, rm. 1061, Rockville, 1995 The Food and Drug MD 20852. Submit electronic comments Administration (FDA) is announcing the to http://www.fda.gov/dockets/ This draft guidance refers to availability of a draft guidance for ecomments. See the SUPPLEMENTARY previously approved collections of industry entitled ‘‘Orally Disintegrating INFORMATION section for electronic information found in FDA regulations. Tablets.’’ The draft guidance provides access to the draft guidance document. These collections of information are pharmaceutical manufacturers of new and generic drug products with an FOR FURTHER INFORMATION CONTACT: subject to review by the Office of Management and Budget (OMB) under agency perspective on the definition of Terrie L. Crescenzi, Office of Critical an orally disintegrating tablet (ODT) and Path Programs (HF–18), Food and Drug the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections also provides recommendations to Administration, 5600 Fishers Lane, applicants who would like to designate of information in part 56 have been Rockville, MD 20857, 301–827–7864. a proposed product as an ODT. SUPPLEMENTARY INFORMATION: approved under OMB Control No. 0910– 0130; the collections of information in DATES: Submit written or electronic I. Background part 312 have been approved under comments on the draft guidance by June FDA is announcing the availability of OMB Control No. 0910–0014; and the 8, 2007. General comments on agency guidance documents are welcome at any a draft guidance for clinical collections of information in part 812 time. investigators, sponsors, and IRBs have been approved under OMB Control entitled ‘‘Guidance for Clinical No. 0910–0078. ADDRESSES: Submit written requests for Investigators, Sponsors, and IRBs; single copies of the draft guidance to the Adverse Event Reporting—Improving III. Comments Division of Drug Information (HFD– 240), Center for Drug Evaluation and Human Subject Protection.’’ Under the Interested persons may submit to the regulations in 21 CFR part 50 Research, Food and Drug Division of Dockets Management (see (Protection of Human Subjects), part 56 Administration, 5600 Fishers Lane, ADDRESSES) written or electronic (21 CFR part 56) (Institutional Review Rockville, MD 20857. Send one self- Boards), part 312 (21 CFR part 312) comments regarding this document. addressed adhesive label to assist that (Investigational New Drug Application), Submit a single copy of electronic office in processing your requests. and part 812 (21 CFR part 812) comments or two paper copies of any Submit written comments on the draft (Investigational Device Exemptions), an mailed comments, except that guidance to the Division of Dockets IRB must review and approve a clinical individuals may submit one paper copy. Management (HFA–305), Food and Drug study before the study is initiated. Comments are to be identified with the Administration, 5630 Fishers Lane, rm. Additionally, after an IRB’s initial docket number found in brackets in the 1061, Rockville, MD 20852. Submit review and approval, an IRB must heading of this document. Received electronic comments to http:// conduct continuing review of the study comments may be seen in the Division www.fda.gov/dockets/ecomments. See at intervals appropriate to the degree of of Dockets Management between 9 a.m. the SUPPLEMENTARY INFORMATION section risk presented by the study, at least and 4 p.m., Monday through Friday. for electronic access to the draft annually. The primary purpose of both guidance document. IV. Electronic Access the initial review of a study and the FOR FURTHER INFORMATION CONTACT: periodic review of the conduct of the Persons with access to the Internet Frank O. Holcombe, Jr., Center for Drug study is to assure the protection of the may obtain the document at either Evaluation and Research (HFD–600), rights and welfare of human subjects. To http://www.fda.gov/cder/guidance/ Food and Drug Administration, 7500 assure the protection of the rights and index.htm or http://www.fda.gov/ Standish Pl., Rockville, MD 20855, 240– 276–9310. welfare of human subjects during the ohrms/dockets/default.htm. conduct of a clinical study, an IRB must SUPPLEMENTARY INFORMATION: have information concerning Dated: April 2, 2007. unanticipated problems in the study Jeffrey Shuren, I. Background and changes in the research activity. Assistant Commissioner for Policy. FDA is announcing the availability of Such information may be important to [FR Doc. E7–6595 Filed 4–6–07; 8:45 am] a draft guidance for industry entitled the IRB’s review. This draft guidance ‘‘Orally Disintegrating Tablets.’’ The BILLING CODE 4160–01–S discusses adverse event reporting to draft guidance provides pharmaceutical IRBs by sponsors, and investigators, and manufacturers of new and generic drug emphasizes the greater value of well- products with an agency perspective on analyzed adverse event data to an IRBs the definition of an ODT and also review. This draft guidance is being provides recommendations to issued consistent with FDA’s good applicants who would like to designate guidance practices regulation (21 CFR proposed products as ODTs.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17564 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

In an effort to develop drug products Dated: March 30, 2007. DEPARTMENT OF HEALTH AND that are more convenient to use and to Jeffrey Shuren, HUMAN SERVICES address potential issues of patient Assistant Commissioner for Policy. compliance for certain product [FR Doc. E7–6509 Filed 4–6–07; 8:45 am] Health Resources and Services Administration indications and patient populations, BILLING CODE 4160–01–S pharmaceutical manufacturers have Reimbursement of Travel and developed products that can be ingested Subsistence Expenses Toward Living simply by placing them on the tongue. DEPARTMENT OF HEALTH AND HUMAN SERVICES Organ Donation Proposed Eligibility The products are designed to Guidelines disintegrate or dissolve rapidly on Health Resources and Services contact with saliva, thus eliminating the AGENCY: Health Resources and Services Administration need for chewing the tablet, swallowing Administration (HRSA), HHS. an intact tablet, or taking the tablet with Council on Graduate Medical ACTION: Request for Public Comment. water. This mode of administration was Education; Notice of Meeting SUMMARY: initially expected to be beneficial to HRSA is soliciting comments on the proposed eligibility criteria for pediatric and geriatric patients, to In accordance with section 10(a)(2) of the Reimbursement of Travel and people with conditions related to the Federal Advisory Committee Act Subsistence Expenses toward Living impaired swallowing, and for treatment (Pub. L. 92–463), notice is hereby given of the following meeting: Organ Donations Program. Eligibility of patients when compliance may be criteria were proposed by the program difficult (e.g., for psychiatric disorders). Name: Council on Graduate Medical grantee, the Regents of the University of As firms started developing additional Education (COGME). Michigan, to HRSA. HRSA has products using different technology and Dates and Times: April 30, 2007, 8:30 determined that the proposed eligibility a.m.– 5 p.m.; and May 1, 2007, 8:30 a.m.– formulations, many of these later 2:30 p.m. criteria constitute a proper products exhibited wide variation in Place: Hilton Washington, DC/Rockville interpretation of the authorizing product characteristics from the initial Executive Meeting Center, 1750 Rockville statute’s requirements, including products. Because this shift in product Pike, Rockville, Maryland 20852–1699. determinations as to which individuals characteristics can affect a product’s Status: The meeting will be open to the would otherwise be unable to meet the suitability for particular uses, the public. eligible expenses authorized under this Agenda: The agenda for April 30 in the Program. HRSA is soliciting public agency developed this guidance for morning will include: Welcome and opening industry. comment on the criteria outlined in this comments from the Chair and Executive notice. HRSA will consider the This draft guidance is being issued Secretary of COGME and senior management staff of the Health Resources and Services comments in light of the authorizing consistent with FDA’s good guidance statute and seek feedback from the practices regulation (21 CFR 10.115). Administration. On April 30, following the welcoming Regents of the University of Michigan The draft guidance, when finalized, will remarks from the COGME Chair, the concerning the comments. HRSA will represent the agency’s current thinking Executive Secretary of COGME, and Agency then approve final criteria. The final on orally disintegrating tablets. It does senior management, there will be a review program eligibility criteria will be not create or confer any rights for or on and discussion of the draft paper ‘‘Enhancing posted on the Reimbursement of Travel any person and does not operate to bind GME Flexibility,’’ by Barbara Chang, M.D., and Subsistence Expenses for Living FDA or the public. An alternative and other writing group members. After Organ Donation Web site, http:// approach may be used if such approach lunch there will be a review and discussion of the draft paper ‘‘New Paradigms for www.livingdonorassistance.org. satisfies the requirements of the Physician Training for Improving Access to DATES: Written comments must be applicable statutes and regulations. Healthcare’’ by Earl Reisdorff, M.D. and other submitted to the office in the address writing group members. At 3 p.m. there will II. Comments section below by mail or e-mail on or be a breakout of Council members into the before May 24, 2007. Interested persons may submit to the two draft writing groups for further report revisions. ADDRESSES: Please send all written Division of Dockets Management (see On May 1 there will be reports to the comments to James F. Burdick, M.D., ADDRESSES) written or electronic Council and further discussion on writing Director, Division of Transplantation, comments regarding this document. group activities and reports. The Council will Healthcare Systems Bureau, Health Submit a single copy of electronic conclude with a discussion of the timeframe Resources and Services Administration, comments or two paper copies of any and next steps for producing the Reports. Room 12C–06, Parklawn Building, 5600 mailed comments, except that Agenda items are subject to change as Fishers Lane, Rockville, Maryland priorities dictate. individuals may submit one paper copy. 20857; telephone (301) 443–7577; fax Comments are to be identified with the FOR FURTHER INFORMATION CONTACT: (301) 594–6095; or e-mail: docket number found in brackets in the Jerald M. Katzoff, Executive Secretary, [email protected]. COGME, Division of Medicine and heading of this document. Received FOR FURTHER INFORMATION CONTACT: comments may be seen in the Division Dentistry, Bureau of Health Professions, James F. Burdick, M.D., Director, of Dockets Management between 9 a.m. Parklawn Building, Room 9A–27, 5600 Division of Transplantation, Healthcare and 4 p.m., Monday through Friday. Fishers Lane, Rockville, Maryland Systems Bureau, Health Resources and 20857, Telephone (301) 443–6785. III. Electronic Access Services Administration, Parklawn Dated: April 2, 2007. Building, Room 12C–06, 5600 Fishers Persons with access to the Internet Caroline Lewis, Lane, Rockville, Maryland 20857; may obtain the document at either Acting Associate Administrator for telephone (301) 443–7577; fax (301) http://www.fda.gov/cder/guidance/ Administration and Financial Management. 594–6095; or e-mail: [email protected]. index.htm or http://www.fda.gov/ [FR Doc. E7–6597 Filed 4–6–07; 8:45 am] SUPPLEMENTARY INFORMATION: Congress ohrms/dockets/default.htm. BILLING CODE 4165–15–P has provided specific authority under

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17565

section 377 of the Public Health Service comments are important to assure that All live organ donors are eligible for (PHS) Act, as amended, 42 U.S.C. 274f, the needs and concerns of the general reimbursement of qualifying expenses for providing reimbursement of travel public, including its views as to the provided all the criteria for donor and subsistence expenses for certain optimal means of carrying out the reimbursement are fulfilled. However, living organ donors, with preference for program’s objectives, are addressed. subject to availability of funds, those for whom paying such expenses After considering the comments, HRSA preference will be given to donors who would create a financial hardship. On will approve final criteria, which will be are more likely to be otherwise unable September 25, 2006, HRSA awarded a 4- posted on the Reimbursement of Travel to meet the qualifying expenses, in the year, $8,000,000, Cooperative and Subsistence Expenses for Living following proposed order of priority: Agreement to the Regents of the Organ Donation Web site, http:// Preference Category 1: Donor income University of Michigan to establish this www.livingdonorassistance.org. and recipient anticipated income each is program. Proposed Eligibility Guidelines ≤200% of the HHS Poverty Guidelines The authorizing statute stipulates that in their respective States of primary The program’s authorizing legislation the Secretary, in carrying out this residence. program, shall give preference to those explicitly states that funds ‘‘will not be expended to pay the qualifying Preference Category 2: Donor income individuals that the Secretary ≤ determines are more likely to be expenses of a donating individual to the is 200% of the HHS Poverty Guidelines otherwise unable to meet such extent that payment has been made, or in the State of primary residence. expenses. HRSA asked the grantee to can reasonably be expected to be made, Preference Category 3: Recipient propose eligibility criteria to HRSA to with respect to such expenses: anticipated income is ≤200% of the satisfy this requirement. (1) Under any State compensation HHS Poverty Guidelines in the State of The two main issues raised in program, under an insurance policy, or primary residence. developing the program eligibility under any Federal or State health Preference Category 4: Donors who criteria are: benefits program; can demonstrate that notwithstanding (1) Which criteria should be used to (2) By an entity that provides health their income level, significant financial identify potential living organ donors services on a prepaid basis; or hardship is likely to be encountered for who may be unable to pay for travel and (3) By the recipient of the organ.’’ In implementing this authority, the qualifying non-medical expenses in the subsistence expenses associated with course of the donation process. living organ donation? This issue is proposed threshold of income eligibility important because such donors are to for the recipient of the organ is 200% of Preference Category 5: Any live organ receive priority under this program; and the HHS Poverty Guidelines (described donor, notwithstanding income level or (2) Which criteria should be below). At any income above this financial hardship, who meets the established to assess the potential organ measure, it can reasonably be expected criteria for donor reimbursement. recipient’s ability to pay the living that the recipient of the organ could pay Recipient anticipated income is the donor’s travel and subsistence for the donor’s qualifying expenses. total income from all sources that the expenses? This determination is However, the transplant social worker recipient is expected to receive in the significant because the authorizing or appropriate transplant center year in which live donor organ statute provides that payments are not personnel involved in the potential transplantation will occur for the to be made if a donor’s eligible expenses transplant recipient’s evaluation process patient with previous existing organ have been, or reasonably can be can provide a written justification that failure or the subsequent calendar year expected to be, paid by the organ notwithstanding the potential transplant after the year of onset of end stage organ recipient. recipient’s income level, significant failure for a new patient with end stage This program is intended for financial hardship is likely to be organ failure. The HHS Poverty individuals with end stage organ failure encountered by the potential transplant Guidelines are updated periodically and for whom a transplant from a suitable recipient of the organ for the payment the guidelines in effect at the time of living donor is a viable therapy. The of the donor’s qualifying expenses in the application will be applied. As an purpose of this solicitation of comments course of the donation process. This illustration, the HHS Poverty Guidelines is to obtain feedback from the public on justification will be given consideration for 2006 (71 Fed. Reg. 3848) are shown the proposed eligibility criteria. These by the program’s Review Committee. in the table below.

2006 HHS POVERTY GUIDELINES

48 Contiguous Persons in family or household states and DC Alaska Hawaii

1 ...... $9,800 $12,250 $11,270 2 ...... 13,200 16,500 15,180 3 ...... 16,600 20,750 19,090 4 ...... 20,000 25,000 23,000 5 ...... 23,400 29,250 26,910 6 ...... 26,800 33,500 30,820 7 ...... 30,200 37,750 34,730 8 ...... 33,600 42,000 38,640 For each additional person, add ...... 3,400 4,250 3,910 Source: 71 FR 3848 (Jan. 24, 2006).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17566 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Proposed Criteria for Donor Proposed Qualifying Expenses amount equivalent to the unexpended Reimbursement For the purpose of the Reimbursement payment. In addition to the eligibility and of Travel and Subsistence Expenses Dated: March 30, 2007. priority guidelines discussed above, the toward Living Organ Donation Program, Elizabeth M. Duke, following criteria for donor qualifying expenses presently include Administrator. reimbursement are proposed: only travel, lodging, and meals and [FR Doc. E7–6598 Filed 4–6–07; 8:45 am] 1. Any individual who in good faith incidental expenses incurred by the BILLING CODE 4165–15–P incurs qualifying expenses toward the donor and/or accompanying person(s) intended donation of an organ but with as part of: respect to whom, for such reasons as the (1) Donor evaluation clinic visit or DEPARTMENT OF HEALTH AND Secretary determines to be appropriate, hospitalization; HUMAN SERVICES no donation of the organ occurs (see (2) Hospitalization for the living special provision). This criteria is donor surgical procedure; and/or National Institutes of Health specifically discussed in the authorizing (3) Medical or surgical follow-up statute. clinic visit or hospitalization within 90 Notice of Establishment; Pursuant to 2. Donor and recipient of the organ days after the living donation the Federal Advisory Committee Act, are either U.S. citizens or lawfully procedure. as Amended (5 U.S.C. Appendix 2), the admitted residents of the U.S. The Program will pay for up to five Director, National Institutes of Health 3. Donor and recipient have primary trips per donation or intended donation. (NIH), Announces the Establishment of residence in the U.S. or its territories. Three of these trips may be for the the Council of Councils (Council) 4. Travel is originating from the potential living donor and up to two The Council shall provide advice and donor’s primary residence. trips may be for any accompanying recommendations to the Director, NIH, 5. Donor meets the criteria for person(s). The total Federal or other appropriate delegated officials informed consent for the planned reimbursement for qualified expenses on matters related to the policies and procedure according to applicable State during the donation process for the activities of the Division of Program and Federal laws. donor and accompanying individuals Coordination, Planning, and Strategic 6. Donor and recipient are not shall not exceed $6,000. Initiatives including making participating in a paired exchange The public is invited to submit recommendations with respect to the program or a living donor/deceased comments on these criteria. conduct and support of research that donor exchange for the particular Special Provisions represents important areas of emerging donation procedure for which scientific opportunities, rising public The authorizing statute provides that reimbursement is being sought unless health challenges, or knowledge gaps the Secretary may consider as an the legality of such practices is clarified that deserve special emphasis and eligible donating individual a person by the Federal Government. would benefit from conducting or who in good faith incurs qualifying 7. Donor and recipient attest to full supporting additional research that expenses toward the intended donation compliance with section 301 of the involves collaboration between two or of an organ but with respect to whom, National Organ Transplant Act (NOTA), more national research institutes or for reasons the Secretary determines to as amended (42 U.S.C. 274e) which national centers, or would otherwise be appropriate, no donation of the organ stipulates in part that ‘‘ * * * [i]t shall benefit from strategic coordination and occurs. Many factors may prevent the be unlawful for any person to planning. knowingly acquire, receive, or otherwise intended and willing donor from Duration of this committee is two transfer any human organ for valuable proceeding with the donation. Such years from the date the Charter is filed. consideration for use in human circumstances include present health transplantation if the transfer affects status of the intended donor or recipient Dated: March 29, 2007. interstate commerce.’’ that would prevent the transplant or Elias A. Zerhouni, 8. The transplant center where the donation from proceeding, perceived Director, National Institutes of Health. donation procedure occurs attests to its long-term risks to the intended donor, [FR Doc. 07–1730 Filed 4–6–07; 8:45 am] status of good standing with the Organ circumstances such as acts of God (e.g., BILLING CODE 4140–01–M Procurement and Transplantation major storms or hurricanes), or other Network (i.e., it is not a Member Not in unforeseen events outside of the Good Standing) and assurance that the intended donor’s control. In such cases, DEPARTMENT OF HEALTH AND program follows best practices for the the intended donor and accompanying HUMAN SERVICES health and safety of living donors such persons may receive reimbursement for as the recommendations provided in the the qualified expenses incurred. In the National Institutes of Health Consensus Statement of the Ethics case that a potential donor no longer National Institute on Deafness and Committee of the Vancouver Forum on wishes to donate, he or she may receive Other Communication Disorders; living organ donation (Source: Pruett reimbursement for qualified expenses Notice of Closed Meetings TL, Tibell A, Alabdulkareem A, incurred. However, payments received Bhandari M, Cronin DC, Dew MA, Dib- for expenses that were not incurred by Pursuant to section 10(d) of the Kuri A, Gutmann T, Matas A, McMurdo the intended donor and accompanying Federal Advisory Committee Act, as L, Rahmel A, Rizvi SA, Wright L, persons must be refunded. Otherwise, amended (5 U.S.C. Appendix 2), notice Delmonico FL. The ethics statement of such payment will be treated as income is hereby given of the following the Vancouver Forum on the live lung, to the intended donor, and in meetings. liver, pancreas, and intestine donor. accordance with Internal Revenue The meetings will be closed to the Transplantation 81(10):1386–1387; Service (IRS) regulations, the Regents of public in accordance with the (2006). the University of Michigan shall notify provisions set forth in sections The public is invited to submit the IRS (Form 1099) that a payment has 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., comments on these criteria. been made to the intended donor in the as amended. The grant applications and

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17567

the discussions could disclose (Catalogue of Federal Domestic Assistance Dated: April 2, 2007. confidential trade secrets or commercial Program Nos. 93.173, Biological Research Jennifer Spaeth, property such as patentable material, Related to Deafness and Communicative Disorders, National Institutes of Health, HHS) Director, Office of Federal Advisory and personal information concerning Committee Policy. individuals associated with the grant Dated: April 2, 2007. [FR Doc. 07–1734 Filed 4–6–07; 8:45 am] applications, the disclosure of which Anna Snouffer, BILLING CODE 4140–01–M would constitute a clearly unwarranted Deputy Director, Office of Federal Advisory invasion of personal privacy. Committee Policy. Name of Committee: National Institute on [FR Doc. 07–1732 Filed 4–6–07; 8:45 am] DEPARTMENT OF HEALTH AND Deafness and Other Communication BILLING CODE 4140–01–M HUMAN SERVICES Disorders Special Emphasis Panel, Loan Repayment. National Institutes of Health Date: May 7, 2007. DEPARTMENT OF HEALTH AND Time: 11 a.m. to 12 p.m. HUMAN SERVICES National Institute on Deafness and Agenda: To review and evaluate grant Other Communication Disorders; applications. National Institutes of Health Place: National Institutes of Health, 6120 Notice of Closed Meeting Executive Blvd., Rockville, MD 20852 National Institute of Nursing Research; (Virtual Meeting). Amended Notice of Meeting Pursuant to section 10(d) of the Contact Person: Stanley C. Oaks, PhD, Federal Advisory Committee Act, as Scientific Review Administrator, Division of Notice is hereby given of a change in amended (5 U.S.C. Appendix 2), notice Extramural Activities, NIDCD, NIH, the meeting of the National Institute of is hereby given of the following Executive Plaza South, Room 400C, 6120 Executive Blvd—MSC 7180, Bethesda, MD Nursing Research Special Emphasis meeting. 20892–7180, 301–496–8683, so14s@nih, gov. Panel, April 18, 2007, 8 a.m. to April 19, The meeting will be closed to the Name of Committee: National Institute on 2007, 9 p.m., National Institutes of public in accordance with the Deafness and Other Communication Health, 6701 Rockledge Drive, Bethesda, provisions set forth in sections Disorders Special Emphasis Panel, MD 20892 which was published in the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Translation Research Review. Federal Register on January 30, 2007, as amended. The grant applications and Date: May 8, 2007. FR 07–360. Time: 10 a.m. to 1 p.m. the discussions could disclose The meeting changed from March 14– confidential trade secrets or commercial Agenda: To review and evaluate grant 15, 2007 to April 18–19, 2007. The applications. property such as patentable material, Place: National Institutes of Health, 6120 meeting place changed from Crowne and personal information concerning Executive Blvd., Rockville, MD 20852 Plaza Hotel, Silver Spring to 6701 individuals associated with the grant Democracy, Bethesda. The new time (Telephone Conference Call). applications, the disclosure of which begins at 7:30 p.m. to 9 p.m.on 4/18/07 Contact Person: Shiguang Yang, DVM, would constitute a clearly unwarranted PhD, Scientific Review Administrator, and 7:30 a.m. to 3 p.m. on 4/19/07. The invasion of personal privacy. Division of Extramural Activities, NIDCD, meeting is closed to the public. NIH, 6120 Executive Blvd., MSC 7180, Dated: April 2, 2007. Name of Committee: National Institute on Bethesda, MD 20892, 301–496–8683. Deafness and Other Communication Jennifer Spaeth, Name of Committee: National Institute on Disorders Special Emphasis Panel, R03 Grant Deafness and Other Communication Director, Office of Federal Advisory Application. Committee Policy. Disorders Special Emphasis Panel, Contract Date: April 11, 2007. Proposal Review. [FR Doc. 07–1733 Filed 4–6–07; 8:45 am] Time: 2 p.m. to 3 p.m. Date: May 11, 2007. BILLING CODE 4140–01–M Agenda: To review and evaluate grant Time: 1 p.m. to 2 p.m. applications. Agenda: To review and evaluate contract proposals. Place: National Institutes of Health, 6120 DEPARTMENT OF HEALTH AND Executive Blvd., Rockville, MD 20852 Place: National Institutes of Health, 6120 HUMAN SERVICES Executive Blvd., Rockville, MD 20852 (Telephone Conference Call). Contact Person: Christine A. Livingston, (Telephone Conference Call). National Institutes of Health Contact Person: Stanley C. Oaks, PhD, PhD, Scientific Review Administrator, Scientific Review Administrator, Division of National Institute of Nursing Research; Division of Extramural Activities, National Extramural Activities, NIDCD, NIH, Amended Notice of Meeting Institutes of Health/NIDCD, 6120 Executive Executive Plaza South, Room 400C, 6120 Blvd.—MSC 7180, Bethesda, MD 20892, Executive Blvd—MSC 7180, Bethesda, MD Notice is hereby given of a change in (301) 496–8683, [email protected]. 20892–7180, 301–496–8683, [email protected]. the meeting of the National Institute of This notice is being published less than 15 Name of Committee: National Institute on Nursing Research Special Emphasis days prior to the meeting due to the timing Deafness and Other Communication Disorders Special Emphasis Panel, NIDCD Panel, March 5, 2007, 5:30 p.m. to limitations imposed by the review and Core Centers Review. March 5, 2007, 6 p.m., Crowne Plaza funding cycle. Date: June 12, 2007. Hotel, 8777 Georgia Avenue, Silver (Catalogue of Federal Domestic Assistance Time: 1 p.m. to 4 p.m. Spring, MD 20910 which was published Program Nos. 93.173, Biological Research Agenda: To review and evaluate grant in the Federal Register on January 30, Related to Deafness and Communicative applications. 2007, FR 07–359. Disorders, National Institutes of Health, HHS) Place: National Institutes of Health, 6120 The meeting date was changed from Dated: April 2, 2007. Executive Blvd., Rockville, MD 20852 March 5, 2007 to April 11, 2007. The (Telephone Conference Call). meeting begins at 7:30 a.m. and ends at Anna Snouffer, Contact Person: Melissa Stick, PhD, MPH, Deputy Director, Office of Federal Advisory Chief, Scientific Review Branch, Division of 3 p.m. The meeting location changed Committee Policy. Extramural Activities, NIDCD/NIH, 6120 from Crowne Plaza Hotel, Silver Spring Executive Blvd., Bethesda, MD 20892, 301– to 6701 Democracy Blvd, Bethesda. The [FR Doc. 07–1735 Filed 4–6–07; 8:45am] 496–8683. meeting is closed to the public. BILLING CODE 4140–01–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17568 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

DEPARTMENT OF HEALTH AND Review Special Emphasis Panel, May (Catalogue of Federal Domestic Assistance HUMAN SERVICES 18, 2007, 8 a.m. to May 18, 2007, 5 p.m., Program Nos. 93.306, Comparative Medicine; Holiday Inn Select Bethesda, 8120 93.333, Clinical Research, 93.306, 93.333, National Institutes of Health Wisconsin Avenue, Bethesda, MD 20814 93.337, 93.393–93.396, 93.837–93.844, which was published in the Federal 93.846–93.878, 93.892, 93.893, National National Institute on Alcohol Abuse Register on March 29, 2007, 72 FR Institutes of Health, HHS) and Alcoholism; Notice of Closed 14824. Meeting Dated: April 2, 2007. The meeting will be held at the Anna Snouffer, Pursuant to section 10(d) of the DoubleTree Hotel, 8120 Wisconsin Avenue, Bethesda, MD 20814. The Deputy Director, Office of Federal Advisory Federal Advisory Committee Act, as Committee Policy. amended (5 U.S.C. Appendix 2), notice meeting date and time remain the same. [FR Doc. 07–1736 Filed 4–6–07; 8:45 am] is hereby given of the following The meeting is closed to the public. BILLING CODE 4140–01–M meeting. Dated: April 2, 2007. The meeting will be closed to the Anna Snouffer, public in accordance with the Deputy Director, Office of Federal Advisory DEPARTMENT OF HEALTH AND provisions set forth in sections Committee Policy. 552b(c)(4) and 552b(c)(6), title 5 U.S.C., HUMAN SERVICES [FR Doc. 07–1731 Filed 4–6–07; 8:45 am] as amended. The grant applications and the discussions could disclose BILLING CODE 4140–01–M Substance Abuse and Mental Health confidential trade secrets or commercial Services Administration property such as patentable material, DEPARTMENT OF HEALTH AND Agency Information Collection and personal information concerning HUMAN SERVICES Activities: Submission for OMB individuals associated with the grant Review; Comment Request applications, the disclosure of which National Institutes of Health would constitute a clearly unwarranted Periodically, the Substance Abuse and invasion of personal privacy. Center for Scientific Review; Notice of Closed Meeting Mental Health Services Administration Name of Committee: National Institute on (SAMHSA) will publish a summary of Alcohol Abuse and Alcoholism Special Emphasis Panel, Review of K05 Applications. Pursuant to section 10(d) of the information collection requests under Date: May 7, 2007. Federal Advisory Committee Act, as OMB review, in compliance with the Time: 1:30 p.m. to 3:30 p.m. amended (5 U.S.C. Appendix 2), notice Paperwork Reduction Act (44 U.S.C. Agenda: To review and evaluate grant is hereby given of the following Chapter 35). To request a copy of these applications. meeting. documents, call the SAMHSA Reports Place: National Institutes of Health, 5635 The meeting will be closed to the Clearance Officer on (240) 276–1243. Fishers Lane, Bethesda, MD 20892 public in accordance with the (Telephone Conference Call). provisions set forth in sections Project: Obligated Service for Mental Contact Person: Beata Buzas, PhD, Health Traineeships: Regulations (42 Scientific Review Administrator, National 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Institute on Alcohol Abuse and Alcoholism, as amended. The grant applications and CFR Part 62a) and Forms (OMB No. National Institutes of Health, 5635 Fishers the discussions could disclose 0930–0074)—Revision Lane, Rm 3041, Rockville, MD 20852, 301– confidential trade secrets or commercial 443–0800, [email protected]. property such as patentable material, SAMHSA’s Center for Mental Health Services (CMHS) awards grants to (Catalogue of Federal Domestic Assistance and personal information concerning Program Nos. 93.271, Alcohol Research individuals associated with the grant institutions for training instruction and Career Development Awards for Scientists applications, the disclosure of which traineeships in mental health and and Clinicians; 93.272, Alcohol National would constitute a clearly unwarranted related disciplines. Prior to statutory Research Service Awards for Research invasion of personal privacy. change in 2000, graduate student Training; 93.273, Alcohol Research Programs; recipients of these clinical traineeships 93.891, Alcohol Research Center Grants, Name of Committee: Center for Scientific National Institutes of Health, HHS) Review Special Emphasis Panel, Deferred were required to perform service, as Dated: April 2, 2007. Application UKGD. determined by the Secretary to be Date: April 13, 2007. appropriate in terms of the individual’s Jennifer Spaeth, Time: 3 p.m. to 4 p.m. training and experience, for a length of Director, Office of Federal Advisory Agenda: To review and evaluate grant Committee Policy. time equal to the period of support. The applications. clinical trainees funded prior to [FR Doc. 07–1737 Filed 4–6–07; 8:45am] Place: National Institutes of Health, 6701 implementation of the statutory change BILLING CODE 4140–01–M Rockledge Drive, Bethesda, MD 20892. (Telephone Conference Call). are required to submit the SAMHSA Contact Person: Daniel F. McDonald, PhD, Form SMA 111–2, which is an annual DEPARTMENT OF HEALTH AND Scientific Review Administrator, Chief, Renal report on employment status and any HUMAN SERVICES and Urological Sciences IRG, Center for changes in name and/or address, to Scientific Review, National Institutes of SAMHSA. National Institutes of Health Health, 6701 Rockledge Drive, Room 4214, MSC 7814, Bethesda, MD 20892, (301) 435– The annual burden estimate is Center for Scientific Review; Amended 1215, [email protected]. provided below. Notice of Meeting This notice is being published less than 15 days prior to the meeting due to the timing Notice is hereby given of a change in limitations imposed by the review and the meeting of the Center for Scientific funding cycle.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17569

Average Number of Responses burden Annual burden 42 CFR citation respondents per per response (hrs.) respondent (Hrs.)

64a.105(b)(2): Annual Payback Activities Certification—SMA 111–2 ...... *57 1 .18 10 * The actual number of trainees is now 83, less the estimated number in 3 years of 30 = 53; 53 divided by 2 = 27; 27 + 30 = 57.

Written comments and • Federal e-Rulemaking Portal: Systems (TECS) (66 FR 52984), the recommendations concerning the http://www.regulations.gov. Follow the Image Storage and Retrieval System proposed information collection should instructions for submitting comments. (ISRS) (66 FR 6672), the USCIS Central be sent by May 9, 2007 to: SAMHSA • Fax: 1–866–466–5370. Index System (CIS) (72 FR 1755), and Desk Officer, Human Resources and • Mail: Hugo Teufel III, Chief Privacy the USCIS Computer Linked Housing Branch, Office of Management Officer, Department of Homeland Application Information Management and Budget, New Executive Office Security, Washington, DC 20528. System (CLAIMS 3) (62 FR 11919). Building, Room 10235, Washington, DC FOR FURTHER INFORMATION CONTACT: For This System of Records Notice is 20503; due to potential delays in OMB’s system related questions please contact: replacing the following systems of receipt and processing of mail sent Gerri Ratliff, Verification Division, U.S. records previously published by through the U.S. Postal Service, Citizenship and Immigration Services, Department of Justice’s Immigration and respondents are encouraged to submit Department of Homeland Security, 111 Naturalization Service (DOJ/INS): the comments by fax to: 202–395–6974. Massachusetts Avenue, NW., DOJ/INS 009 Alien Status Verification Washington, DC 20529. For privacy Dated: April 2, 2007. Index system (ASVI) (66 FR 46815) and issues please contact: Hugo Teufel III, the DOJ/INS 035 Verification Elaine Parry, Chief Privacy Officer, Privacy Office, Information System (VIS) (67 FR 64134). Acting Director, Office of Program Services. U.S. Department of Homeland Security, [FR Doc. E7–6474 Filed 4–6–07; 8:45 am] Washington, DC 20528. A. SAVE Program BILLING CODE 4162–20–P SUPPLEMENTARY INFORMATION: The SAVE Program, which is supported by VIS, provides government I. USCIS Verification Information agencies with citizenship and DEPARTMENT OF HOMELAND System immigration status information for use SECURITY In various statutes, Congress in determining an individual’s mandated that USCIS establish a system eligibility for government benefits. Office of the Secretary that can be used to verify citizenship Government agencies input biographic [Docket Number DHS–2007–0010] and immigration status of individuals information into VIS for government seeking government benefits and benefit eligibility determinations and if Privacy Act: Verification Information establish a system for use by employers VIS has a record pertaining to the System Records Notice to determine whether a newly hired individual, the government agency will employee is authorized to work in the receive limited biographic information AGENCY: Privacy Office, Department of United States. USCIS implemented this on the citizenship and immigration Homeland Security. mandate through the Systematic Alien status of the individual applying for a ACTION: Notice to alter a system of Verification for Entitlements (SAVE) benefit. If VIS does not have a record records; request for comments. program for government benefits and pertaining to the individual, VIS the Basic Pilot Program for determining automatically notifies a USCIS SUMMARY: As part of its ongoing effort to whether a newly hired employee is Immigration Status Verifier (ISV). The review and update the legacy system of authorized to work in the United States. ISV then conducts a manual search of records notices, the Department of The Verification Information System other DHS databases to determine Homeland Security is altering (VIS) is the technical infrastructure that whether there is any other information previously established Privacy Act enables USCIS to operate SAVE and pertaining to that individual that would systems of records published by the Basic Pilot. VIS is a nationally provide citizenship and immigration former Immigration and Naturalization accessible database of selected status. If the ISV finds additional Service for the Verification and immigration status information relevant information, citizenship and Information System (VIS) Justice/INS– containing in excess of 100 million immigration status data is provided to 035 published October 17, 2002 (67 FR records. Government agencies use SAVE the requesting government agency user 64134) and Alien Status Verification information to help determine whether through VIS. The ISV will also update Index (ASVI) Justice/INS–009 published a non-citizen is eligible for any public the appropriate record in USCIS’ CIS September 7, 2001 (66 FR 46815). The benefit, license or credential based on database. The REAL ID Act requires that Department of Homeland Security will citizenship and immigration status. beginning May 2008, with a possible consolidate information from different Private employers and government users extension for States until December systems of records notices and is adding use Basic Pilot information to determine 2009, all states routinely utilize the new sources of data to the VIS to update whether a newly hired employee is USCIS SAVE program to verify the legal the routine uses that were previously authorized to work in the United States. immigration status of applicants for published for this system of records. VIS is currently comprised of driver’s licenses and identification DATES: The established systems of citizenship, immigration and cards. records will be effective on May 9, 2007. employment status information from ADDRESSES: You may submit comments, several DHS systems of records, B. Basic Pilot identified by Docket Number DHS– including records contained in the U.S. VIS also supports the Basic Pilot 2007–0010 by one of the following Customs and Border Protection (CBP) Program, a free and voluntary program methods: Treasury Enforcement Communication allowing participating employers to

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17570 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

verify the employment eligibility of C. Updates to VIS assist the individual to more easily find newly hired employees. The program is VIS previously consolidated such files within the agency. a collaboration between the Social information from different DHS Systems In accordance with 5 U.S.C. 552a(r), a Security Administration (SSA) and of Records, with this update VIS will report on this system has been sent to USCIS. now add additional data elements from Congress and to the Office of After an individual is hired by the different DHS Systems of Records in Management and Budget. employer and completes the Form I–9, order to enhance data completeness SYSTEM OF RECORDS: employers input information from within VIS. USCIS is currently DHS/USCIS–004. Sections 1 and 2 of the Form I–9 into enhancing the employment verification the Basic Pilot portion of VIS. This function of VIS to allow an employer to SYSTEM NAME: query is first sent from VIS to SSA to query the system by inputting the new U.S. Citizenship and Immigration verify social security information. If hire’s USCIS receipt number, which is Services Verification Information SSA cannot verify the employee’s social located on the secure Form I–551 System (VIS). security information, SSA will send a (Permanent Resident Card) or the secure SYSTEM LOCATION: response to VIS which in turn will Form I–766 (Employment Authorization notify the employer of SSA’s inability to Document). The receipt number is a The Verification Information System verify the information provided by unique number associated with the (VIS) database is housed in a contractor- employee. The employer is then issuance of the card. In addition, USCIS owned facility in Meriden, CT. The required to provide information to the is piloting a new functionality that system is accessible via the Internet, employee about how the employee may allows employers using Basic Pilot to Web services, Secure File Transfer contact SSA to resolve any issues. If compare the photo contained on secure Protocol (SFTP) batch, and through a SSA is able to verify the employee issued USCIS cards against the photo on computer via analog telephone line, and information and verify that the file in ISRS and/or the USCIS Biometric is publicly accessible to participants of individual is a U.S. Citizen, (‘‘USC’’), Storage System (BSS) (when deployed). the Systematic Alien for Verification VIS provides a confirmation to the These enhancements will significantly Entitlements (SAVE) program and the employer. No further action is taken by improve the speed at which USCIS will Basic Pilot Employer Verification VIS. If SSA is able to verify the be able to verify the employment program, including authorized USCIS employee information and the eligibility of many non-citizen new personnel, other authorized government individual is a non-USC, the VIS system hires and reduce the likelihood of users, participating employers, and continues the process in order to verify identity fraud through forged other authorized users. employment authorization. Through documents. CATEGORIES OF INDIVIDUALS COVERED BY THE VIS, USCIS provides the employer with Once deployed, additional data SYSTEM: a case verification number and the elements from the BSS and ICE’s Individuals covered by provisions of disposition of whether an employee is Student and Exchange Visitor the Immigration and Nationality Act of authorized to work. If VIS does not have Information System (SEVIS) will be the United States including but not a record pertaining to the individual, added to the VIS system. In order to limited to individuals who have been VIS automatically notifies an ISV. The support programmatic goals, the system lawfully admitted to the United States, ISV then conducts a manual search of will also have improved audit and individuals who have been granted other DHS databases to determine reporting capability so that USCIS can citizenship and individuals who have whether there is any other information better identify misuse of the system and applied for other immigration benefits pertaining to that individual that would programs supported by the system. pursuant to 8 U.S.C. 1103 et seq. provide employment eligibility status. If the ISV cannot determine the person’s II. The Privacy Act CATEGORIES OF RECORDS IN THE SYSTEM: work eligibility, VIS notifies the The Privacy Act embodies fair A. Data originating from the USCIS employer that the employee must information principles in a statutory Central Index System (CIS), including contact USCIS. If it is determined that framework governing the means by the following information about the an employee is not authorized to work which the United Stated Government Individual who comes before USCIS: after the employee is referred to SSA or collects, maintains, uses and Alien Registration Number (A-Number), USCIS, the employer may terminate the disseminates personally identifiable Name (last, first, middle), Date of birth, individual’s employment. information. The Privacy Act applies to Date entered United States (entry date), Performing a verification query information that is maintained in a Country of birth, Class of Admission through the Basic Pilot system is only ‘‘system of records.’’ A ‘‘system of code, File Control Office code, Social legally permissible after an offer of records’’ is a group of any records under Security Number, Admission Number employment has been extended to an the control of an agency from which (I–94 Number), Provision of Law code employee. The earliest the employer information is retrieved by the name of cited for employment authorization, may initiate a query is after an an individual or by some identifying office code where the authorization was individual accepts an offer of number, symbol, or other particular granted, Date employment authorization employment and after the employee and assigned to an individual. decision issued, Date employment employer complete the Form I–9. The The Privacy Act requires each agency authorization may begin (start date), employer must initiate the query no to publish in the Federal Register a Date employment authorization expires later than the end of three business days description denoting the type and (expiration date), Date employment after the new hire’s actual start date. character of each system of records that authorization denied (denial date). Information from the Basic Pilot cannot the agency maintains, and the routine B. Data originating from the U.S. be used to pre-screen individuals, re- uses that are contained in each system Customs and Border Protection Treasury screen individuals after being employed to make agency recordkeeping practices Enforcement Communications System for longer than three days, or transparent, to notify individuals (TECS), including the following discriminate against individuals legally reading the uses to which personally information about the individual: A- authorized to work in the United States. identifiable information is put, and to Number, Name (last, first, middle), Date

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17571

alien’s status was changed (status I. Information collected from the to Federal, State, and local government change date), Date of birth, Class of benefit-issuing agency about the agencies for immigrants, non- Admission Code, Date admitted until, Individual Agency User including: immigrants, and naturalized U.S. Country of citizenship, Port of entry, Name (last, first, middle), Phone citizens applying for Federal, State, and Date entered United States (entry date), Number, Fax Number, E-mail address, local public benefits. It is also used to Departure date, I–94 Number, Visa User ID for users within the Agency. provide employment authorization Number. J. System-generated response, as a information to employers participating C. Data originating from the USCIS result of the SAVE verification process in the Basic Pilot/Employment Image Storage and Retrieval System including: Case Verification Number, Eligibility Verification Program. This and/or the USCIS Biometric Storage Entire record in VIS database as System of Records Notice is replacing System (when deployed), including: outlined above, including all both the previously published ASVI Receipt Number, Name (last, first, information from CIS, SEVIS, TECS, and SORN and VIS SORN. middle), Date of Birth, Country of Birth, CLAIMS 3 and with the exception of the VIS is the technical infrastructure that Alien number, Form number, for biometric information (photo) from ISRS enables USCIS to operate SAVE and example Form I–551 (Lawful Permanent and/or BSS (once deployed), and Basic Pilot. In instances when an Resident card) or Form I–766 Immigration status (e.g. Lawful electronic verification cannot be (Employment Authorization Document), Permanent Resident). confirmed by the VIS for either the Expiration Date, and Photo. K. Information collected from the SAVE or the Basic Pilot program, an D. Data originating from the USCIS employee by the Employer User to electronic transmission of the Computer Linked Application facilitate employment eligibility verification request is sent through VIS Information Management System verification may include the following to USCIS’s ISVs for secondary (CLAIMS 3), including: Receipt number, about the Individual employee: Receipt processing. For Federal, State, and local Name (last, first, middle), Date of Birth, Number, Visa Number, A-Number, I–94 government agency users of the SAVE Country of Birth, Class of Admission Number, Name (last, first, middle program, there are a variety of instances Code, A-number, I–94 number, Date initial, maiden), Social Security in which either a secondary or third- entered United States (entry date), and Number, Date of birth, Date of hire, step query may need to be completed Valid To Date. Claimed citizenship status, Acceptable manually through submission of the E. Data originating from the U.S. Form I–9 document type, and form G–845 Immigration Status/ Immigration and Customs Enforcement Acceptable Form I–9 Document Document Verification Request. These (ICE) Student and Exchange Visitor expiration date. instances occur due to technical Information System (SEVIS), including: L. Information Collected About the limitations of the interfaces by which SEVIS Identification Number (SEVIS Employer, including: Company name, the agency users access the SAVE ID), Name (last, first, middle), Date of Physical Address, Employer program. In these instances, the VIS Birth, Country of Birth, Class of Identification Number, North American system is not accessed at all, and Admission Code, I–94 number, Date Industry Classification System code, secondary and third-step verifications entered United States (entry date), and Number of employees, Number of sites, are conducted through manual searches Valid To Date. Parent company or Corporate company, F. Data originating from Social of DHS systems by ISVs. For Basic Pilot Name of Contact, Phone Number, Fax Security Administration (SSA), users, in instances when the verification Number, and E-Mail Address. cannot be confirmed by VIS, an including: Confirmation of employment M. Information Collected about the eligibility based on SSA records, electronic transmission is sent by VIS to Employer User (e.g., Identifying users of USCIS for processing by the Los Angeles Tentative non-confirmation of the system at the Employers), including: employment eligibility and the Status Verification Unit. Name, Phone Number, Fax Number, E- Currently, no other DHS component underlying justification for this mail address, and User ID. has access to VIS data except for those decision, and Final non-confirmation of N. System-generated response that have signed MOUs permitting them employment eligibility. information, resulting from the G. Information collected from the to use the SAVE and/or Basic Pilot employment eligibility verification benefit applicant by the benefit-issuing programs. Examples of such use by DHS process, including: Case Verification agency to facilitate immigration status components include TSA, which is Number; VIS generated response: verification that may include the utilizing the system to ascertain the Employment authorized, Tentative non- following about the benefit applicant: immigration status of applicants confirmation, Case in continuance, Receipt Number, A-Number, I–94 applying for hazardous materials Final non-confirmation, Employment Number, Name (last, first, middle), Date driver’s licenses. unauthorized, or DHS No Show; The VIS system includes audit and of birth, User Case Number, DHS Disposition data from the employer reporting functionality, and will be used document type, DHS document includes Resolved Unauthorized/ for monitoring and compliance with expiration date, SEVIS ID andVisa Terminated, Self Terminated, Invalid system and program usage requirements Number. H. Information collected from the Query, Employee not terminated, set forth by USCIS. Audit or use benefit-issuing agency about users Resolved Authorized, and Request reporting data in the system may be accessing the system to facilitate additional verification, which includes used to refer potential occurrences of immigration status verification that may why additional verification is requested fraud and/or egregious violations of include the following about the Agency: by the employer user. SAVE or the Basic Pilot program to ICE. Agency name, Address, Point of AUTHORITY FOR MAINTENANCE OF RECORDS: ROUTINE USES OF RECORDS MAINTAINED IN THE Contact, Contact telephone number, Fax 8 U.S.C. 1255a, 8 U.S.C. 1324a, 8 SYSTEM, INCLUDING CATEGORIES OF USERS AND number, E-mail address, Type of U.S.C. 1360 and 42 U.S.C. 1320b–7. THE PURPOSES OF SUCH USES: benefit(s) the agency issues (i.e. In addition to those disclosures Unemployment Insurance, Educational PURPOSE(S): generally permitted under 5 U.S.C. Assistance, Driver Licensing, Social This system of records is used to 552a(b) of the Privacy Act, all or a Security Enumeration, etc.). provide immigration status information portion of the records or information

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17572 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

contained in this system may be system of records has been RETRIEVABILITY: disclosed outside DHS as a routine use compromised; (2) it is determined that Agency records are retrieved by name pursuant to 5 U.S.C. 552a(b)(3) as as a result of the suspected or confirmed of applicant or other unique identifier to follows: compromise there is a risk of harm to include: verification number, A- A. To a Federal, State, tribal, or local economic or property interests, identity Number, I–94 Number, Visa Number, government agency, or to a contractor theft or fraud, or harm to the security or SEVIS ID , or by the submitting agency acting on its behalf, to the extent that integrity of this system or other systems name. Employer records are retrieved by such disclosure is necessary to enable or programs (whether maintained by verification number, A-Number, I–94 these agencies to make decisions DHS or another agency or entity) that Number, Receipt Number, or Social concerning: (1) Determination of rely upon the compromised Security Number of the employee, or by eligibility for a Federal, State, or local information; and (3) the disclosure is the submitting company name. public benefit; (2) issuance of a license made to such agencies, entities, and SAFEGUARDS: or grant; or (3) government-issued persons when reasonably necessary to credential. assist in connection with efforts to Information in this system is B. To employers participating in the respond to the suspected or confirmed safeguarded in accordance with Basic Pilot Employment Verification compromise and prevent, minimize, or applicable laws and policies, including Program in order to verify the remedy such harm. the DHS information technology security policies and the Federal employment eligibility of all newly J. To the United States Department of Information Security Management Act hired employees in the United States. Justice (including United States C. To other Federal, State, tribal, and (FISMA). All records are protected from Attorney offices) or other federal agency local government agencies seeking to unauthorized access through conducting litigation or in proceedings verify or determine the citizenship or appropriate administrative, physical, before any court, adjudicative or immigration status of any individual and technical safeguards. These administrative body, or to the court or within the jurisdiction of the DHS as safeguards include restricting access to administrative body, when it is authorized or required by law. authorized personnel who have a need- necessary to the litigation and one of the D. To contractors, grantees, experts, to-know, using locks, and password following is a party to the litigation or consultants, and others performing or protection features. The system is also has an interest in such litigation: (1) working on a contract, service, grant, protected through a multi-layer security DHS; (2) any employee of DHS in his or cooperative agreement, or other approach. The protective strategies are her official capacity; (3) any employee assignment for the federal government, physical, technical, administrative and of DHS in his or her individual capacity when necessary to accomplish a DHS environmental in nature, which provide where DOJ or DHS has agreed to mission function related to this system access control to sensitive data, physical represent said employee; or (4) the of records, in compliance with the access control to DHS facilities, United States or any agency thereof; Privacy Act of 1974, as amended. confidentiality of communications, E. To a Congressional office, from the K. To appropriate Federal, State, authentication of sending parties, and record of an individual in response to local, tribal, or foreign governmental personnel screening to ensure that all an inquiry from that Congressional agencies or multilateral governmental personnel with access to data are office made at the request of the organizations responsible for screened through background individual to whom the record pertains. investigating or prosecuting the investigations commensurate with the F. To the National Archives and violations of, or for enforcing or level of access required to perform their Records Administration or other Federal implementing, a statute, rule, duties. government agencies pursuant to regulation, order, license, or treaty Information maintained by DHS records management inspections being where DHS determines that the contractors for this system is also conducted under the authority of 44 information would assist in the safeguarded in accordance with all U.S.C. 2904 and 2906. enforcement of civil or criminal laws; applicable laws and regulations, G. To a former employee of the L. To Federal and foreign government including DHS IT security policies and Department for purposes of: (1) intelligence or counterterrorism FISMA. . Access is controlled through Responding to an official inquiry by a agencies when DHS reasonably believes user identification and discrete Federal, State, or local government there to be a threat or potential threat to password functions to assure that entity or professional licensing national or international security for accessibility is limited. authority, in accordance with applicable which the information may be useful in RETENTION AND DISPOSAL: Department regulations; or (2) countering the threat or potential threat, facilitating communications with a when DHS reasonably believes such use Completed verifications are archived former employee that may be necessary is to assist in anti-terrorism efforts, and to a storage disk monthly and are for personnel-related or other official disclosure is appropriate to the proper archived. The following proposal for purposes where the Department requires performance of the official duties of the retention and disposal is being prepared information and/or consultation person making the disclosure; to be sent to the National Archives and assistance from the former employee Records Administration for approval. regarding a matter within that person’s DISCLOSURE TO CONSUMER REPORTING Records are stored and retained in the former area of responsibility. AGENCIES: VIS Repository for twenty (20) years, from the date of the completion of the H. To the Department of Justice (DOJ), None. Civil Rights Division, for the purpose of verification. VIS will retain data responding to matters within the DOJ’s POLICIES AND PRACTICES FOR STORING, contained within this system to facility jurisdiction to include allegations of RETRIEVING, ACCESSING, RETAINING, AND USCIS’ ability to conduct trend analysis fraud and/or nationality discrimination. DISPOSING OF RECORDS IN THE SYSTEM: that may reflect the commission of fraud I. To appropriate agencies, entities, or other illegal activity related to misuse and persons when: (1) It is suspected or STORAGE: of either the SAVE or Basic Pilot confirmed that the security or Data is stored in computer accessible program and to facilitate the confidentiality of information in the storage media and hardcopy format. reconstruction of an individual’s

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17573

employment eligibility history. Further, Citizenship and Immigration Services, the Morgan City Captain of the Port retaining the data for this period of time National Records Center, FOIA/PA (COTP)/Federal Maritime Security will enable USCIS to fight identity fraud Office, P.O. Box 648010, Lee’s Summit, Coordinator (FMSC). The Morgan City and misappropriation of benefits. MO 64064–8010. COTP/FMSC hereby requests that qualified individuals interested in SYSTEM MANAGER S AND ADDRESS CONTESTING RECORDS PROCEDURES: ( ) : serving on the South Louisiana AMS Director, Verification Division, U.S. Individuals have an opportunity to Committee submit an application for Citizenship and Immigration Services, correct their data by submitting a membership. DDC Building, 4th Floor, 111 redress request directly to the USCIS DATES: Massachusetts Avenue, NW., Privacy Officer who refers the redress Requests for membership should Washington, DC 20529. request to USCIS’s Office of Records. reach the U.S. Coast Guard Captain of When a redress is made, the change is the Port, Marine Safety Unit Morgan NOTIFICATION PROCEDURES: added directly to the existing records City on or before July 1, 2007. Please address your inquiries about stored in the underlying DHS system of ADDRESSES: Requests for membership the VIS system in writing to the system records from which the information was should be submitted to Captain of the manager identified above. To determine obtained. Once the record is updated in Port, USCG Marine Safety Unit Morgan whether this system contains records the underlying DHS system of records, City, 800 David Drive, Morgan City, relating to you, provide a written it is downloaded into VIS. If an Louisiana 70380. request containing the following applicant believes their file is incorrect FOR FURTHER INFORMATION CONTACT: For information: but does not know which information is questions concerning either the 1. Identification of the record system; erroneous, the applicant may file a procedure for submitting an application 2. Identification of the category and Privacy Act request as detailed in the or the South Louisiana Area Maritime types of records sought; and section titled ‘‘Record access Security Committee generally, contact 3. The requesting individual’s procedures’’ above. Mr. Joe Pasqua at 985–380–5313. signature and verification of identity SUPPLEMENTARY INFORMATION: pursuant to 28 U.S.C. 1746, which RECORD SOURCE CATEGORIES: permits statements to be made under Information contained comes from Authority penalty of perjury. Alternatively, a several sources: A. Information derived Section 102 of the Maritime notarized statement may be provided. from the following DHS systems of Transportation Security Act (MTSA) of Address inquiries to the system records, USCIS’s CIS, CLAIMS3, ISRS, 2002 (Pub. L. 107–295) added section manager at: Director, Verification and BSS; CBP’s TECS; and ICE’s SEVIS, 70112 to Title 46 of the U.S. Code, and Division, U.S. Citizenship and B. Information collected from agencies authorized the Secretary of the Immigration Services, 111 and employers about individuals Department in which the Coast Guard is Massachusetts Avenue, NW., 4th Floor, seeking government benefits or operating to establish Area Maritime Washington, DC 20529 or to the employment with an employer using an Security Advisory Committees for any Freedom of Information/Privacy Act employment verification program, C. port area of the United States. (See 33 Office, USCIS, National Records Center, Information collected from system users U.S.C. 1226; 46 U.S.C. 70112; 33 CFR P.O. Box 6481010, Lee Summit, MO at either the agency or the employer 103.205; Department of Homeland 64064–8010. used to provide account access to the Security Delegation No. 0170.1.) The verification program, and D. Information MTSA includes a provision exempting RECORD ACCESS PROCEDURES: developed by VIS to identify possible these AMS Committees from the Federal In order to gain access to one’s issues of misuse or fraud. Advisory Committee Act (FACA), Public information stored in the VIS database, Law 92–436, 86 Stat. 470 (5 U.S.C. EXEMPTIONS CLAIMED FOR THE SYSTEM: a request for access must be made in App.2). writing and addressed to the Freedom of None. The AMS Committee assists the Information Act/Privacy Act (FOIA/PA) Issued in Arlington, Virginia. Captain of the Port (COTP)/Federal officer at USCIS. Individuals who are Hugo Teufel III, Maritime Security Coordinator seeking information pertaining to Chief Privacy Officer. (FMSC)in the review and update of the themselves are directed to clearly mark South Louisiana Area Maritime Security the envelope and letter ‘‘Privacy Act [FR Doc. E7–6611 Filed 4–6–07; 8:45 am] BILLING CODE 4410–10–P Plan for the Marine Safety Unit Morgan Request.’’ Within the text of the request, City area of responsibility. Such matters the subject of the record must provide may include, but are not limited to: his/her account number and/or the full DEPARTMENT OF HOMELAND (1) Identifying critical port name, date and place of birth, and SECURITY infrastructure and operations; notarized signature, and any other (2) Identifying risks (threats, information which may assist in Coast Guard vulnerabilities, and consequences); identifying and locating the record, and (3) Determining mitigation strategies a return address. For convenience, [COTP Morgan City, LA 07–002] and implementation methods; individuals may obtain Form G–639, (4) Developing and describing the South Louisiana Area Maritime FOIA/PA Request, from the nearest DHS process to continually evaluate overall Security Committee office and used to submit a request for port security by considering access. The procedures for making a AGENCY: Coast Guard, DHS. consequences and vulnerabilities, how request for access to one’s records can ACTION: Solicitation for membership. they may change over time, and what also be found on the USCIS Web site, additional mitigation strategies can be located at http://www.uscis.gov. SUMMARY: Under the Maritime applied; and An individual who would like to file Transportation Security Act of 2002, the (5) Providing advice to, and assisting a FOIA/PA request to view their USCIS Secretary of Homeland Security has the COTP/FMSC in reviewing and record may do so by sending the request established an Area Maritime Security updating the South Louisiana Area to the following address: U.S. (AMS) Committee under the direction of Maritime Security Plan.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17574 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

South Louisiana AMS Committee DATES: NAVSAC will meet on Monday, meeting, contact the Executive Director Membership May 07, 2007, from 1 p.m. to 4 p.m.; as soon as possible. Applicants should have at least five Tuesday, May 08, 2007, from 8:30 a.m. Dated: March 30, 2007. years of experience related to maritime to 4 p.m.; and Wednesday, May 09, 2007 Wayne A. Muilenburg, from 8:30 a.m. to 11:30 a.m. The or port security operations. The South Captain, U.S. Coast Guard, Acting Director Louisiana AMS Committee currently meeting may close early if all business of Waterways Management. is finished. Written material and has twenty-four members, which [FR Doc. E7–6536 Filed 4–6–07; 8:45 am] requests to make oral presentations includes maritime industry members in BILLING CODE 4910–15–P addition to government agency should reach the Coast Guard on or members. We are seeking new members before April 15, 2007. Requests to have interested in improving maritime a copy of your material distributed to DEPARTMENT OF HOMELAND security along the Louisiana coast, west each member of the committee should SECURITY of the Mississippi River. Applicants reach the Coast Guard on or before April may be required to pass an appropriate 15, 2007. Coast Guard ADDRESSES: NAVSAC will meet in the security background check prior to [USCG–2006–25843] appointment to the committee. Holiday Inn Mart Plaza Hotel, 350 West Members’ term of office will be for Mart Street, Chicago, IL 60654. Send Use of Reports of Marine Casualty in five years; however, a member is eligible written material and requests to make Claims Process by National Pollution to serve an additional term of office. oral presentations to Mr. John Bobb, Funds Center Members will not receive any salary or Commandant (CG–3PWM–1), U.S. Coast other compensation for their service on Guard Headquarters, 2100 Second Street AGENCY: Coast Guard, DHS. the South Louisiana AMS Committee. In SW., Washington, DC 20593–0001. This ACTION: Notice of interpretation; support of the policy of the Coast Guard notice is available on the Internet at response to comments received. on gender and ethnic diversity, we http://dms.dot.gov. SUMMARY: On October 13, 2006, the encourage qualified women and FOR FURTHER INFORMATION CONTACT: Mr. Coast Guard published a notice of members of minority groups to apply. Mike Sollosi, Executive Director of NAVSAC, or Mr. John Bobb, Assistant to interpretation that the prohibition in 46 Request for Applications the Executive Director, telephone 202– U.S.C. 6308 on the use of any part of a Applicants seeking AMS Committee 372–1532, fax 202–372–1929 or e-mail report of a Coast Guard marine casualty membership are not required to submit at [email protected]. investigation report (MCIR) in certain formal applications to the local COTP/ administrative proceedings does not SUPPLEMENTARY INFORMATION: Notice of prohibit use of such reports in the FMSC. However, because we have an the meeting is given under the Federal obligation to ensure that a specific process used by the Coast Guard’s Advisory Committee Act, 5 U.S.C. App. National Pollution Funds Center (NPFC) number of members have the 2. prerequisite maritime security for determining to pay or deny claims experience, we encourage the Agenda of Meeting under the Oil Pollution Act of 1990. We received two comments in response to submission of resumes highlighting The agenda includes the following: the notice, neither of which effects the experience in the maritime and security (1) Introduction and swearing-in of interpretation. industries. Applications should include new members. the applicant’s name, employer, (2) Automatic Identification System. FOR FURTHER INFORMATION CONTACT: For relationship to maritime industry and (3) Aids to Navigation. questions on this notice, please contact port interests, and general maritime (4) Navigation in reduced visibility. Benjamin White, U.S. Coast Guard’s security-related experience. (5) Inland Rules of the Road. National Pollution Funds Center (NPFC), telephone 202–493–6863. Dated: February 12, 2007. Procedural SUPPLEMENTARY INFORMATION: On T. D. Gilbreath, The meeting is open to the public. October 13, 2006, we published a notice Captain, U.S. Coast Guard, Captain of the Please note that the meeting may close of interpretation entitled ‘‘Use of Port/Federal Maritime Security Coordinator. early if all business is finished. At the Reports of Marine Casualty in Claims [FR Doc. E7–6538 Filed 4–6–07; 8:45 am] Chair’s discretion, members of the Process by National Pollution Funds BILLING CODE 4910–15–P public may make oral presentations Center’’ (71 FR 60553). The notice during the meeting. If you would like to provided for a comment period ending DEPARTMENT OF HOMELAND make an oral presentation at the November 13, 2006. meeting, please notify the Executive SECURITY Background and Purpose Director no later than April 15, 2007. Coast Guard Written material for distribution at the The Coast Guard investigates and meeting should reach the Coast Guard reports on marine casualties pursuant to no later than April 15, 2007. If you 46 U.S.C. Chapter 63. Under 46 U.S.C. [USCG–2007–27672] would like a copy of your material 6308 no part of a report of a marine Navigation Safety Advisory Council distributed to each member of the casualty investigation ‘‘shall be committee in advance of the meeting, admissible as evidence or subject to AGENCY: Coast Guard, DHS. please submit 20 copies to the Executive discovery in any civil or administrative ACTION: Notice of meeting. Director no later than April 15, 2007. proceedings, other than an administrative proceeding initiated by SUMMARY: The Navigation Safety Information on Services for Individuals the United States.’’ Marine casualties Advisory Council (NAVSAC) will meet With Disabilities may result in the discharge or to discuss various issues relating to the For information on facilities or substantial threat of discharge of oil to safety of navigation. The meeting will be services for individuals with disabilities the navigable waters, adjoining open to the public. or to request special assistance at the shorelines or the exclusive economic

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17575

zone. The National Pollution Funds introduced into civil proceedings as part floodplain management ordinances. In Center (NPFC) processes claims against of the administrative record in violation any case homeowners are responsible the Oil Spill Liability Trust Fund for oil of 46 U.S.C. 6308. for the fees involved with these services. removal costs and certain damages that The scope of APA judicial review is Homeowners also provide FEMA Form result from such discharges or threats in 5 U.S.C. 706 and expressly provides 81–8 to the insurance agent to receive under authority of the Oil Pollution Act that the court shall review the whole discounted flood insurance under the of 1990 (OPA) (33 U.S.C. 2701 et seq.). record. While the exclusion under 46 National Flood Insurance Program The circumstances of a marine casualty U.S.C. 6308 refers in general to civil (NFIP). will often bear on the entitlement of a proceedings, Congress did not intend to Affected Public: Business or other for- claimant to payment of its claim, prevent proper judicial review under profit. particularly for vessel owners or the APA and therefore 46 U.S.C. 6308 Number of Respondents: 150. operators who may claim a complete does not trump the APA record Estimated Time per Respondent: 3.25 defense to their own liability for such requirement. hours. costs or damages, or entitlement to limit For the reasons discussed above, these Estimated Total Annual Burden their liability under OPA. comments do not effect our Hours: 487.5. In the past, the NPFC has not interpretation as published in the Frequency of Response: One-time. Comments: Interested persons are considered such reports of marine Federal Register on October 13, 2006 invited to submit written comments on casualty investigations on the grounds (71 FR 60553). that a broad interpretation of 46 U.S.C. the proposed information collection to Dated: April 3, 2007. 6308 might proscribe their use in the the Office of Information and Regulatory NPFC’s claims processes. However, this William D. Baumgartner, Affairs, Office of Management Budget, resulted, in some instances, in the NPFC U.S. Coast Guard Judge Advocate General. Attention: Nathan Lesser, Desk Officer, having to duplicate the investigative [FR Doc. E7–6540 Filed 4–6–07; 8:45 am] Department of Homeland Security/ BILLING CODE 4910–15–P FEMA, and sent via electronic mail to process in order to make findings of fact _ that were included in a Marine Casualty oira [email protected] or faxed Investigation Report (MCIR). to (202) 395–6974. Comments must be As stated in the notice of DEPARTMENT OF HOMELAND submitted on or before May 9, 2007. interpretation, the NPFC may consider SECURITY FOR FURTHER INFORMATION CONTACT: and rely on any part of a report of a Requests for additional information or MCIR in determining whether to pay or Federal Emergency Management copies of the information collection deny a claim. While such reports may Agency should be made to Chief, Records Management, FEMA, 500 C Street, SW., be of use to NPFC in this regard, and Agency Information Collection may also be submitted by claimants to Room 609, Washington, DC 20472, Activities: Submission for OMB facsimile number (202) 646–3347, or e- support their claims, the NPFC is not Review; Comment Request bound by such reports of investigation. mail address FEMA-Information- The NPFC may require additional AGENCY: Federal Emergency [email protected]. information from claimants in order to Management Agency, DHS Dated: March 28, 2007. support their claims and may, ACTION: Notice and request for John A. Sharetts-Sullivan, considering the record as a whole, find comments. Chief, Records Management and Privacy additional facts or different facts from Information Resources Management Branch, those included in such reports of SUMMARY: The Federal Emergency Information Technology Services Division, investigation. Management Agency, as part of its Federal Emergency Management Agency, continuing effort to reduce paperwork Department of Homeland Security. Discussion of Comments and respondent burden, invites the [FR Doc. E7–6587 Filed 4–6–07; 8:45 am] Two commentors submitted general public and other Federal BILLING CODE 9110–11–P comments to the Coast Guard during the agencies to take this opportunity to comment period (71 FR 60553). Both comment on a proposed continuing commentors stated that the MCIRs are information collection. In accordance DEPARTMENT OF HOMELAND essentially field reports compiled under with the Paperwork Reduction Act of SECURITY difficult circumstances by personnel of 1995, this notice seeks comments varying degrees of experience and concerning the certification of flood Federal Emergency Management knowledge. Commentors cautioned that proof residential basements in Special Agency the use of MCIRs should be undertaken Flood Hazard Areas. [FEMA–3274–EM] with appropriate awareness of their Title: Residential Basement possible shortcomings. The Coast Guard Floodproofing Certificate. Indiana; Amendment No. 1 to Notice of has stated that the NPFC is not bound OMB Number: 1660–0033. an Emergency Declaration by reports of investigation. Accordingly, Abstract: FEMA Form 81–78 is only the Director of the NPFC can reach not used in communities that have been AGENCY: Federal Emergency only different facts but also different granted an exception by FEMA to allow Management Agency, DHS. opinions or conclusions than the the construction of flood proof ACTION: Notice. opinions and conclusions in the MCIR. residential basements in Special Flood SUMMARY: A second comment noted that Hazard Areas, (SFHAs). Homeowners This notice amends the notice consideration of MCIRs by the NPFC must have a registered professional of an emergency declaration for the will ultimately lead to their inclusion in engineer or architect complete FEMA State of Indiana (FEMA–3274–EM), the administrative record. The Form 81–78 for development or dated March 12, 2007, and related commentor reasoned that if a claim inspection of a properly designed and determinations. were appealed in a federal district court constructed basement and certify that EFFECTIVE DATE: March 30, 2007. under the Administrative Procedure Act the basement design and methods of FOR FURTHER INFORMATION CONTACT: (APA), those documents would be constructions are in accordance with Magda Ruiz, Recovery Division, Federal

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17576 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Emergency Management Agency, estimated public burden and associated (6) An estimate of the total public Washington, DC 20472, (202) 646–2705. response time should be directed to the burden (in hours) associated with the SUPPLEMENTARY INFORMATION: The notice Department of Homeland Security collection: 27,368 annual burden hours. of an emergency declaration for the (DHS), USCIS, Chief, Regulatory If you have additional comments, State of Indiana is hereby amended to Management Division, Clearance Office, suggestions, or need a copy of the include the following areas among those 111 Massachusetts Avenue, NW., 3rd information collection instrument, areas determined to have been adversely floor, Suite 3008, Washington, DC please contact Richard A. Sloan, Chief, affected by the catastrophe declared an 20529. Comments may also be Regulatory Management Division, U.S. emergency by the President in his submitted to DHS via facsimile to 202– Citizenship and Immigration Services, declaration of March 12, 2007: 272–8352, or via e-mail at 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529; Adams, Allen, DeKalb, Hancock, [email protected]. When submitting Hendricks, Howard Huntington, LaGrange, comments by email please add the OMB Telephone 202–272–8377. LaPorte, Stark, St. Joseph, and Whitley Control Number 1615–0020 in the Dated: April 4, 2007. Counties for emergency protective measures subject box. Stephen Tarragon, (Category B), including snow removal, under Written comments and suggestions the Public Assistance program for any Deputy Chief, Regulatory Management from the public and affected agencies Division, U.S. Citizenship and Immigration continuous 48-hour period during or concerning the collection of information proximate to the incident period. Services, Department of Homeland Security. should address one or more of the [FR Doc. E7–6613 Filed 4–6–07; 8:45 am] (The following Catalog of Federal Domestic following four points: Assistance Numbers (CFDA) are to be used (1) Evaluate whether the proposed BILLING CODE 4410–10–P for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora collection of information is necessary for the proper performance of the Brown Fund Program; 97.032, Crisis DEPARTMENT OF THE INTERIOR Counseling; 97.033, Disaster Legal Services functions of the agency, including Program; 97.034, Disaster Unemployment whether the information will have Fish and Wildlife Service Assistance (DUA); 97.046, Fire Management practical utility; Assistance; 97.048, Individuals and (2) Evaluate the accuracy of the Endangered Species Recovery Permit Households Housing; 97.049, Individuals and agencies estimate of the burden of the Applications Households Disaster Housing Operations; proposed collection of information, 97.050 Individuals and Households Program- AGENCY: Fish and Wildlife Service, Other Needs, 97.036, Public Assistance including the validity of the Grants; 97.039, Hazard Mitigation Grant methodology and assumptions used; Interior. Program.) (3) Enhance the quality, utility, and ACTION: Notice of receipt of permit clarity of the information to be applications; request for comment. R. David Paulison, collected; and Under Secretary for Federal Emergency (4) Minimize the burden of the SUMMARY: We invite the public to Management and Director of FEMA. collection of information on those who comment on the following applications [FR Doc. E7–6579 Filed 4–6–07; 8:45 am] are to respond, including through the to conduct certain activities with BILLING CODE 9110–10–P use of appropriate automated, endangered species. electronic, mechanical, or other DATES: Comments on these permit technological collection techniques or applications must be received on or DEPARTMENT OF HOMELAND other forms of information technology, before May 9, 2007. SECURITY e.g., permitting electronic submission of ADDRESSES: Written data or comments responses. U.S. Citizenship and Immigration should be submitted to the U.S. Fish Overview of this information Services and Wildlife Service, Endangered collection: Species Program Manager, California/ Agency Information Collection (1) Type of Information Collection: Nevada Operations Office (CNO), 2800 Activities: Revision of an Existing Revision of an existing information Cottage Way, Room W–2606, Information Collection; Comment collection. Sacramento, California, 95825 (2) Title of the Form/Collection: Request (telephone: 916–414–6464; fax: 916– Petition for Amerasian, Widow or 414–6486). Please refer to the respective ACTION: 60-Day Notice of Information Special Immigrant. permit number for each application Collection Under Review: Form I–360, (3) Agency form number, if any, and when submitting comments. All Petition for Amerasian, Widow, or the applicable component of the comments received, including names Special Immigrant. OMB Control Department of Homeland Security and addresses, will become part of the Number 1615–0020. sponsoring the collection: Form I–360. official administrative record and may U.S. Citizenship and Immigration be made available to the public. The Department of Homeland Services. Security, U.S. Citizenship and (4) Affected public who will be asked FOR FURTHER INFORMATION CONTACT: Immigration Services has submitted the or required to respond, as well as brief Daniel Marquez, Fish and Wildlife following information collection request abstract: Biologist, at the above CNO address, for review and clearance in accordance Primary: Individuals or households. (telephone: 760–431–9440; fax: 760– with the Paperwork Reduction Act of This information collection is used by 431–9624). 1995. The information collection is several prospective classes of aliens SUPPLEMENTARY INFORMATION: The published to obtain comments from the who intend to establish their eligibility following applicants have applied for public and affected agencies. Comments to immigrate to the United States. scientific research permits to conduct are encouraged and will be accepted for (5) An estimate of the total number of certain activities with endangered sixty days until June 8, 2007. respondents and the amount of time species pursuant to section 10(a)(1)(A) Written comments and suggestions estimated for an average respondent to of the Endangered Species Act (16 regarding items contained in this notice, respond: 13,684 responses at 2 hours U.S.C. 1531 et seq.). The U.S. Fish and and especially with regard to the per response. Wildlife Service (‘‘we’’) solicits review

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17577

and comment from local, State, and scientific studies in Los Angeles and remove from the wild, captive Federal agencies, and the public on the Ventura Counties, California, for the propagate, and release to the wild) the following permit requests. purpose of enhancing their survival. Smith’s blue butterfly (Euphilotes enoptes smithi) in conjunction with Permit No. TE–144960 Permit No. TE–802450 surveys, propagation activities, and Applicant: Terry Strange, Wilseyville, Applicant: Art Davenport, Barstow, other life history studies in Monterey California. California. County, California for the purpose of The applicant requests a permit to The applicant requests an amendment enhancing their survival. take (capture, and collect and kill) the to take (harass by survey) the light Conservancy fairy shrimp (Branchinecta Permit No. TE–148555–0 footed clapper rail (Rallus longirostris conservatio), the longhorn fairy shrimp Applicant: Phillip Brylski, Irvine, levipes) in conjunction with surveys (Branchinecta longiantenna), and the California. throughout the range of the species in vernal pool tadpole shrimp (Lepidurus California for the purpose of enhancing The applicant requests a permit to packardi), and to take (harass by survey, its survival. take (capture and release) the Stephens’ capture, and release) the California tiger kangaroo rat (Dipodomys stephensi), the salamander (Ambystoma californiense) Permit No. TE–146039 San Bernardino kangaroo rat in conjunction with surveys in Amador, Applicant: Hildegarde Spautz, El (Dipodomys merriami parvus), and the Calaveras, Mariposa, Sacramento, San Cerrito, California. Pacific pocket mouse (Perognathus Joaguin, Stanislaus, and Tuolumne The applicant requests a permit to longimembris pacificus) in conjunction Counties, California for the purpose of with surveys throughout the range of the enhancing their survival. take (harass by survey and monitor) the California clapper rail (Rallus species in California for the purpose of Permit No. TE–144965 longirostris obsoletus) in conjunction enhancing their survival. Applicant: Brian Williams, Marysville, with surveys, monitoring and other life Permit No. TE–148556 California. history studies in Contra Costa, Alameda, San Mateo, San Francisco, Applicant: Deborah Van Dooremolen, The permittee requests a permit to Santa Clara, Marin, Sonoma, Solano, Wilseyville, California. take (harass by survey, capture, and and Napa Counties, California for the The applicant requests an amendment release) the California tiger salamander purpose of enhancing their survival. to take (harass by survey) the Yuma (Ambystoma californiense) in clapper rail (Rallus longirostris conjunction with surveys throughout Permit No. TE–146051 yumanensis) in conjunction with the range of the species in California for Applicant: Wendy Renz, Albany, surveys throughout the range of the the purpose of enhancing its survival. California. species in Clark County, Nevada for the purpose of enhancing its survival. Permit No. TE–144966 The applicant requests a permit to Applicant: Christopher Green, take (capture, and collect and kill) the Permit No. TE–148552 Sacramento, California. Conservancy fairy shrimp (Branchinecta Applicant: Holley Sheply, Oakland, The applicant requests a permit to conservatio) in conjunction with genetic California. research in Solano, Marin and Tehama take (capture, and collect and kill) the The applicant requests a permit to Conservancy fairy shrimp (Branchinecta Counties in California for the purpose of enhancing their survival. take (harass by survey, capture, and conservatio), the longhorn fairy shrimp mark) the San Francisco garter snake (Branchinecta longiantenna), the vernal Permit No. TE–147553 (Thamnophis sirtalis tetrataenia) in pool tadpole shrimp (Lepidurus Applicant: Jeffrey Mitchell, San conjunction with surveys and packardi), the Riverside fairy shrimp Francisco, California. monitoring activities throughout the (Streptocephalus wootoni), and the San range of the species in California, for the The permittee requests a permit to Diego fairy shrimp (Branchinecta purpose of enhancing its survival. sandiegonensis) in conjunction with take (harass by survey, capture, and We solicit public review and surveys throughout the range of each release) the California tiger salamander comment on each of these recovery species in California for the purpose of (Ambystoma californiense) in permit applications. Our practice is to enhancing their survival. conjunction with surveys throughout in make comments, including names and Contra Costa County, California for the Permit No. TE–147691 home addresses of respondents, purpose of enhancing its survival. available for public review during Applicant: Arthur C. Gibson, Los Permit No. TE–1476489 regular business hours. Individual Angeles, California. respondents may request that we Applicant: Sara Throne, La Mesa, The permittee requests a permit to withhold their home addresses from the California. remove/reduce to possession Astragalus record, which we will honor to the brauntonii (Braunton’s milk-vetch), The applicant requests a permit to extent allowable by law. There also may Astragalus pycnostachyus var. take (survey by pursuit) the Quino be circumstances in which we would lanosissima (Ventura marsh milk-vetch), checkerspot butterfly (Euphydryas withhold from the record a respondent’s and Astragalus tener var. titi (coastal editha quino) in conjunction with identity, as allowable by law. If you milk-vetch), Cordylanthus maritimus surveys throughout the range of the wish us to withhold your name and/or ssp. Maritimus (salt marsh bird’s beak), species in California for the purpose of address, you must state this Dudleya cymosa var. marcescens enhancing its survival. prominently at the beginning of your (marcescent dudleya), Dudleya cymosa Permit No. TE–147652 comment, but you should be aware that var. ovatifolia (Santa Monica Mountain we may be required to disclose your dudleya), Orcuttia californica Applicant: J. Hall Cushman, Rohnert name and address pursuant to the (California Orcutt grass), and Park, California. Freedom of Information Act. However, Pentachaeta lyonii (Lyon’s pentachaeta) The permittee requests a permit to we will not consider anonymous from Federal lands in conjunction with take (survey by pursuit, capture, handle, comments. We will make all

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17578 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

submissions from organizations or above. BLM has not issued a valid lease require the NPS to add other businesses, and from individuals affecting the lands. alternatives, significantly alter existing identifying themselves as alternatives, or make changes to the Pamela J. Lewis, representatives or officials of impact analysis of the effects of any organizations or businesses, available Chief, Branch of Fluid Minerals Adjudication. alternative. Because of the lack of for public inspection in their entirety. [FR Doc. E7–6543 Filed 4–6–07; 8:45 am] substantive comments, the NPS is Comments and materials received will BILLING CODE 4310–22–P issuing an abbreviated final EIS/GMPA. be available for public inspection, by FOR FURTHER INFORMATION CONTACT: The appointment, during normal business DEPARTMENT OF THE INTERIOR Superintendent, Dayton Aviation hours at the above address. Heritage National Historical Park, P.O. Dated: April 3, 2007. National Park Service Box 9280, Wright Brothers Station, Michael Fris, Dayton, Ohio 45409–7705, telephone Manager, California/Nevada Operations Availability of the Abbreviated Final 937–225–7705. Office, U.S. Fish and Wildlife Service. Environmental Impact Statement and Dated: August 15, 2006. [FR Doc. E7–6592 Filed 4–6–07; 8:45 am] General Management Plan Amendment Ernest Quintana, for Dayton Aviation Heritage National BILLING CODE 4310–55–P Director, Midwest Region. Historical Park, OH Editorial Note: This document was AGENCY: National Park Service, Interior. DEPARTMENT OF THE INTERIOR received at the Office of the Federal Register SUMMARY: Pursuant to section 102(2)(C) on April 3, 2007. of the National Environmental Policy Bureau of Land Management Act of 1969 (42 U.S.C. 4332(c)), the [FR Doc. 07–1711 Filed 4–6–07; 8:45 am] [WY–923–1310–FI; WYW137943] National Park Service (NPS) announces BILLING CODE 4312–88–M the availability for the Abbreviated Wyoming: Notice of Proposed Final Environmental Impact Statement Reinstatement of Terminated Oil and and General Management Plan INTERNATIONAL TRADE Gas Lease Amendment (EIS/GMPA) for Dayton COMMISSION AGENCY: Bureau of Land Management, Aviation Heritage National Historical [Investigation No. AGOA–07] Interior. Park, Ohio. DATES: The Abbreviated Final EIS/ ACTION: Notice of proposed Commercial Availability of Fabric and reinstatement of terminated oil and gas GMPA will remain available for public Yarns in AGOA Countries lease. review for 30 days following the publishing of the notice of its AGENCY: United States International Trade Commission. SUMMARY: Under the provisions of 30 availability in the Federal Register by U.S.C. 188 (d) and (e), and 43 CFR the U.S. Environmental Protection ACTION: Institution of investigation and 3108.2–3(a) and (b)(1), the Bureau of Agency. scheduling of hearing. Land Management (BLM) received a ADDRESSES: Requests for copies should SUMMARY: Following enactment of petition for reinstatement from Ryder be sent to the Superintendent, Dayton legislation that amends the African Oil and Gas LLC for noncompetitive oil Aviation Heritage National Historical Growth and Opportunity Act (AGOA) to and gas lease WYW137943 for land in Park, P.O. Box 9280, Wright Brothers provide for certain determinations by Fremont County, Wyoming. The Station, Dayton, Ohio 45409–7705. You the Commission, the Commission has petition was filed on time and was may also view the document via the instituted investigation No. AGOA–07, accompanied by all the rentals due Internet through the NPS Planning, Commercial Availability of Fabric and since the date the lease terminated Environment, and Public Comment Yarns in AGOA Countries, for the under the law. (PEPC) Web site (http:// purpose of gathering information and FOR FURTHER INFORMATION CONTACT: parkplanning.nps.gov); simply click on making the determinations required Bureau of Land Management, Pamela J. the link to Dayton Aviation Heritage through September 30, 2007, with Lewis, Chief, Branch of Fluid Minerals National Historical Park. respect to the denim articles identified Adjudication, at (307) 775–6176. SUPPLEMENTARY INFORMATION: The NPS in the statute. SUPPLEMENTARY INFORMATION: The lessee prepared a Draft EIS/GMPA for Dayton DATES: April 2, 2007: Institution of has agreed to the amended lease terms Aviation Heritage National Historical investigation. for rentals and royalties at rates of $5.00 Park pursuant to section 102(2)(c) of the May 22, 2007: Deadline for filing per acre or fraction thereof, per year and National Environmental Policy Act of requests to appear at the hearing. 162⁄3 percent, respectively. The lessee 1969. The draft was made available for May 24, 2007: Deadline for filing pre- has paid the required $500 public review for 60 days (January– hearing briefs and statements. administrative fee and $163.00 to March) during which time the NPS June 5, 2007: Public hearing. reimburse the Department for the cost of distributed over 200 copies of the draft. June 19, 2007: Deadline for filing this Federal Register notice. The lessee In addition to the distribution, the draft post-hearing briefs and statements. has met all the requirements for EIS/GMPA was also made available at August 3, 2007: Deadline for filing all reinstatement of the lease as set out in the park, on the Internet, and at area written submissions. Sections 31 (d) and (e) of the Mineral libraries. A total of 10 written comments August 24, 2007: Deadline for filing Lands Leasing Act of 1920 (30 U.S.C. were received, and 20 participants supplemental written submissions. 188), and the Bureau of Land attended 2 open houses. The consensus September 25, 2007: Transmittal of Management is proposing to reinstate from the public comment period was Commission report to the President. lease WYW137943 effective November that the NPS is pursuing the correct ADDRESSES: All Commission offices, 1, 2006, under the original terms and path for the site in Alternatives C, the including the Commission’s hearing conditions of the lease and the preferred alternative. Comments from rooms, are located in the United States increased rental and royalty rates cited individuals and public agencies did not International Trade Commission

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17579

Building, 500 E Street SW., Washington, yarn is available in commercial affirmative, it will make its DC. All written submissions, including quantities for an applicable 1-year determinations with respect to the requests to appear at the hearing, period, section 112(c)(2)(B)(ii) requires quantity available in fiscal 2008 statements, and briefs, should be that the Commission determine, before (October 1, 2007-September 30, 2008) by addressed to the Secretary, United the end of that applicable 1-year period, September 25, 2007. States International Trade Commission, whether the fabric or yarn produced in For docketing and other purposes, the 500 E Street SW., Washington, DC beneficiary sub-Saharan African Commission’s proceedings and actions 20436. The public record for this countries will be available in with respect to denim articles have been investigation may be viewed on the commercial quantities in the succeeding designated as investigation No. AGOA– Commission’s electronic docket (EDIS) applicable 1-year period, and if so, the 07–001. No petitions were filed on or at http://edis.usitc.gov. quantity of the fabric or yarn that will before March 28, 2007. FOR FURTHER INFORMATION CONTACT: be so available in the succeeding 1-year Public Hearing: A public hearing in Information specific to this investigation period, subject to section connection with this investigation will may be obtained from Linda Linkins, 112(c)(2)(B)(iii). After the end of each be held at the U.S. International Trade Project Leader (202–205–3231; applicable 1-year period for which such Commission Building, 500 E Street SW., [email protected]), Office of a determination under section Washington, DC beginning at 9:30 a.m. Operations, United States International 112(c)(2)(B)(i) is in effect, the on June 5, 2007. Requests to appear at Trade Commission, Washington, DC, Commission must make the the public hearing should be filed with the Secretary, no later than 5:15 p.m., 20436 or Jackie Jones, Co-Project Leader determination required by section May 22, 2007, in accordance with the (202–205–3466; [email protected]), 112(c)(2)(B)(iii) with respect to the requirements in the ‘‘Submissions’’ Office of Industries. For information on quantity of fabric or yarn used in the section below. In the event that, as of the legal aspects of this investigation, production of apparel articles receiving the close of business on May 22, 2007, contact William Gearhart of the Office of preferential treatment under section no witnesses are scheduled to appear at the General Counsel (202–205–3091; 112(c)(1) that was entered in the the hearing, the hearing will be [email protected]). General applicable 1-year period and, to the canceled. Any person interested in information concerning the Commission extent that the quantity so determined attending the hearing as an observer or may also be obtained by accessing its was not so used, add to the quantity of that fabric or yarn determined to be non-participant may call the Secretary Internet server (http://www.usitc.gov). (202–205–2000) after May 22, 2007, to Hearing-impaired individuals may available in the next applicable 1-year period the quantity not so used in the determine whether the hearing will be obtain information on this matter by held. contacting the Commission’s TDD preceding 1-year period. Section 112(c)(2)(C) of AGOA states Statements and Briefs: In lieu of or in terminal on (202) 205–1810. Persons that denim articles provided for in addition to participating in the hearing, with mobility impairments who will subheading 5209.42.00 of the parties and non-parties are invited to need special assistance in gaining access Harmonized Tariff Schedule of the submit written statements or briefs to the Commission should contact the United States shall be deemed to be concerning the investigation in Office of the Secretary at 202–205–2000. available in commercial quantities and accordance with the requirements in the BACKGROUND AND SUPPLEMENTARY specifies the quantity available for the 1- ‘‘Submissions’’ section below. Any INFORMATION: On December 20, 2006, the year period beginning October 1, 2006. prehearing briefs or statements should President signed into law amendments Accordingly, pursuant to section be filed not later than 5:15 p.m., May 24, to section 112 of the African Growth 112(c)(2)(B)(ii), the Commission must 2007; the deadline for filing post- and Opportunity Act (19 U.S.C. 3721) determine before September 30, 2007, hearing briefs or statements is 5:15 p.m., (AGOA), included in Public Law 109– whether such denim articles produced June 19, 2007. To be assured of 432, that require the Commission to in beneficiary sub-Saharan African consideration by the Commission, make certain determinations relating to countries will be available in written statements relating to the the commercial availability of regional commercial quantities in the succeeding Commission’s report should be fabric or yarn for use in lesser 1-year period and, if so, the quantity submitted to the Commission at the developed beneficiary sub-Saharan that will be so available in that earliest practical date and must be African countries. Specifically, section succeeding 1-year period, subject to received no later than the close of 112(c)(2)(A) of the AGOA (as amended) clause (iii). business on August 3, 2007. Any parties requires the Commission, upon receipt On February 27, 2007, the and non-parties who filed timely of a petition (properly filed), to Commission published an interim rule submissions may file supplemental determine whether a fabric or yarn in the Federal Register, that became submissions. Such supplemental produced in beneficiary sub-Saharan effective upon publication (72 FR 8624), submissions must be filed no later than African countries is available in describing the procedures it will follow the close of business on August 24, commercial quantities for use by lesser in making determinations in response to 2007, and the information contained developed beneficiary sub-Saharan petitions received and accepted from therein shall be limited to information African countries. If the Commission interested parties under section not available at the time of the August makes an affirmative determination, 112(c)(2)(A) of AGOA. The interim rule 3 submission. section 112(c)(2)(B)(i) requires that the also describes the information that must Submissions: All written submissions Commission determine the quantity of be included in a petition if it is to be including requests to appear at the the fabric or yarn that will be so accepted by the Commission. The hearing, statements, and briefs should available in lesser developed beneficiary Commission indicated that it will make be addressed to the Secretary, United sub-Saharan African countries in the its determinations under section States International Trade Commission, applicable 1-year period (October 1– 112(c)(2)(A) by September 25, 2007, 500 E Street SW., Washington, DC September 30) after the determination is with respect to petitions received on or 20436. All written submissions must made. before March 28, 2007, and accepted on conform with § 201.8 of the Thereafter, in each case in which the or before April 11, 2007, and, for any Commission’s Rules of Practice and Commission determines that a fabric or such determinations that are in the Procedure (19 CFR 201.8). Section 201.8

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17580 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

of the rules requires that a signed INTERNATIONAL TRADE FOR FURTHER INFORMATION CONTACT: original (or copy designated as an COMMISSION Russell Duncan (202–708–4727, original) and fourteen (14) copies of [email protected]), Office of [Investigation Nos. 731–TA–1111–1113 each document be filed. In the event (Preliminary)] Investigations, U.S. International Trade that confidential treatment of the Commission, 500 E Street, SW., Room document is requested, at least four (4) Glycine from India, Japan, and Korea 615–U, Washington, DC 20436. Hearing- additional copies must be filed, in impaired persons can obtain which the confidential business AGENCY: United States International information on this matter by contacting information must be deleted (see the Trade Commission. the Commission’s TDD terminal on 202– following paragraph for further ACTION: Institution of antidumping 205–1810. Persons with mobility information regarding confidential investigations and scheduling of impairments who will need special business information). The preliminary phase investigations. assistance in gaining access to the Commission should contact the Office Commission’s rules do not authorize the SUMMARY: The Commission hereby gives filing of submissions with the Secretary of the Secretary at 202–205–2000. notice of the institution of investigations General information concerning the by facsimile or electronic means, except and commencement of preliminary to the extent permitted by section 201.8 Commission may also be obtained by phase antidumping investigations Nos. accessing its internet server (http:// of the rules (see Handbook for 731–TA–1111–1113 (Preliminary) under www.usitc.gov). The public record for Electronic Filing Procedures, http:// section 733(a) of the Tariff Act of 1930 these investigations may be viewed on www.usitc.gov/secretary/ (19 U.S.C. 1673b(a)) (the Act) to _ _ the Commission’s electronic docket fed reg notices/rules/documents/ determine whether there is a reasonable (EDIS) at http://edis.usitc.gov. handbook_on_electronic_filing.pdf). indication that an industry in the SUPPLEMENTARY INFORMATION: Persons with questions regarding United States is materially injured or Background. These investigations are electronic filing should contact the threatened with material injury, or the being instituted in response to a petition Secretary (202–205–2000 or establishment of an industry in the filed on March 30, 2007, by GEO [email protected]). United States is materially retarded, by Specialty Chemicals, Inc., Lafayette, IN. reason of imports from India, Japan, and Any submissions that contain Participation in the investigations and Korea of glycine,1 confidential business information must provided for in public service list. Persons (other than also conform with the requirements of subheading 2922.49.4020 of the petitioners) wishing to participate in the section 201.6 of the Commission’s Rules Harmonized Tariff Schedule of the investigations as parties must file an of Practice and Procedure (19 CFR United States, that are alleged to be sold entry of appearance with the Secretary 201.6). Section 201.6 of the rules in the United States at less than fair to the Commission, as provided in requires that the cover of the document value. Unless the Department of §§ 201.11 and 207.10 of the and the individual pages be clearly Commerce extends the time for Commission’s rules, not later than seven marked as to whether they are the initiation pursuant to section days after publication of this notice in 732(c)(1)(B) of the Act (19 U.S.C. ‘‘confidential’’ or ‘‘nonconfidential’’ the Federal Register. Industrial users 1673a(c)(1)(B)), the Commission must version, and that the confidential and (if the merchandise under reach a preliminary determination in business information be clearly investigation is sold at the retail level) antidumping investigations in 45 days, identified by means of brackets. All representative consumer organizations or in this case by May 14, 2007. The written submissions, except for have the right to appear as parties in Commission’s views are due at Commission antidumping confidential business information, will Commerce within five business days be made available in the Office of the investigations. The Secretary will thereafter, or by Monday, May 21, 2007. prepare a public service list containing Secretary for inspection by interested For further information concerning parties. the names and addresses of all persons, the conduct of these investigations and or their representatives, who are parties The Commission may include some or rules of general application, consult the to these investigations upon the all of the confidential business Commission’s Rules of Practice and expiration of the period for filing entries information submitted in the course of Procedure, part 201, subparts A through of appearance. this investigation in the report it sends E (19 CFR part 201), and part 207, Limited disclosure of business to the President. After transmitting its subparts A and B (19 CFR part 207). proprietary information (BPI) under an report, the Commission intends to EFFECTIVE DATE: March 30, 2007. administrative protective order (APO) publish a public version of its report, and BPI service list. Pursuant to with any confidential business 1 The imported product covered by these § 207.7(a) of the Commission’s rules, the investigations is glycine, which in its solid (i.e., information deleted. Any confidential Secretary will make BPI gathered in business information received by the crystallized) form is a free-flowing crystalline material, like salt or sugar. These investigations these investigations available to Commission in this investigation and cover glycine in any form and purity level, authorized applicants representing used in preparing the report will not be regardless of additives. Glycine’s chemical interested parties (as defined in 19 published in the public version of the composition is C2H5NO2 and generally is classified under subheading 2922.49.4020 of the Harmonized U.S.C. 1677(9)) who are parties to the report in a manner that would reveal the Tariff Schedule of the United States (‘‘HTSUS’’). investigations under the APO issued in operations of the firm supplying the In addition, precursors of dried crystalline the investigations, provided that the information. glycine, including, but not limited to, glycine slurry application is made not later than seven (i.e., glycine in a non-crystallized form) and sodium Issued: April 3, 2007. glycinate are included in these investigations. days after the publication of this notice By order of the Commission. Glycine slurry is classified under the same HTSUS in the Federal Register. A separate as crystallized glycine (2922.49.4020) and sodium service list will be maintained by the Marilyn R. Abbott, glycinate is classified under HTSUS 2922.49.8000. Secretary for those parties authorized to Secretary to the Commission. While HTSUS subheadings are provided for convenience and Customs purposes, our written receive BPI under the APO. [FR Doc. E7–6600 Filed 4–6–07; 8:45 am] description of the scope of this investigation is Conference. The Commission’s BILLING CODE 7020–02–P dispositive. Director of Operations has scheduled a

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17581

conference in connection with these INTERNATIONAL TRADE Products, LP, St. Louis, MO, and investigations for 9:30 a.m. on Friday, COMMISSION Innophos, Inc., Cranbury, NJ, alleging April 20, 2007, at the U.S. International that an industry in the United States is [Investigation No. 731–TA–1110 Trade Commission Building, 500 E (Preliminary)] materially injured or threatened with Street, SW., Washington, DC. Parties material injury by reason of LTFV wishing to participate in the conference Sodium Hexametaphosphate (SHMP) imports of sodium hexametaphosphate should contact Russell Duncan (202– From China from China. Accordingly, effective 708–4727) not later than April 18, 2007, February 8, 2007, the Commission to arrange for their appearance. Parties Determination instituted antidumping duty in support of the imposition of On the basis of the record 1 developed investigation No. 731–TA–1110 antidumping duties in these in the subject investigation, the United (Preliminary). investigations and parties in opposition States International Trade Commission Notice of the institution of the to the imposition of such duties will (Commission) determines, pursuant to Commission’s investigation and of a each be collectively allocated one hour section 733(a) of the Tariff Act of 1930 public conference to be held in within which to make an oral (19 U.S.C. 1673b(a)) (the Act), that there connection therewith was given by presentation at the conference. A is a reasonable indication that an posting copies of the notice in the Office nonparty who has testimony that may industry in the United States is of the Secretary, U.S. International aid the Commission’s deliberations may materially injured by reason of imports Trade Commission, Washington, DC, request permission to present a short from China of sodium and by publishing the notice in the statement at the conference. hexametaphosphate, provided for in Federal Register of 72 FR 7458, Written submissions. As provided in subheadings 2835.39.50 and 3823.90.39 February 15, 2007. The conference was §§ 201.8 and 207.15 of the of the Harmonized Tariff Schedule of held in Washington, DC, on March 1, Commission’s rules, any person may the United States, that are alleged to be 2007, and all persons who requested the submit to the Commission on or before sold in the United States at less than fair opportunity were permitted to appear in April 25, 2007, a written brief value (LTFV). person or by counsel. containing information and arguments The Commission transmitted its pertinent to the subject matter of the Commencement of Final Phase determination in this investigation to investigations. Parties may file written Investigation the Secretary of Commerce on March 26, testimony in connection with their Pursuant to § 207.18 of the 2007. The views of the Commission are presentation at the conference no later Commission’s rules, the Commission contained in USITC Publication 3912 than three days before the conference. If also gives notice of the commencement (April 2007), entitled Sodium briefs or written testimony contain BPI, of the final phase of its investigation. Hexametaphosphate from China: they must conform with the The Commission will issue a final phase Investigation No. 731–TA–1110 requirements of §§ 201.6, 207.3, and notice of scheduling, which will be (Preliminary). 207.7 of the Commission’s rules. The published in the Federal Register as Issued: April 3, 2007. Commission’s rules do not authorize provided in section 207.21 of the By order of the Commission. filing of submissions with the Secretary Commission’s rules, upon notice from by facsimile or electronic means, except the Department of Commerce Marilyn R. Abbott, to the extent permitted by § 201.8 of the (Commerce) of an affirmative Secretary to the Commission. Commission’s rules, as amended, 67 FR preliminary determination in the [FR Doc. E7–6599 Filed 4–6–07; 8:45 am] 68036 (November 8, 2002). Even where investigation under section 733(b) of the BILLING CODE 7020–02–P electronic filing of a document is Act, or, if the preliminary determination permitted, certain documents must also is negative, upon notice of an be filed in paper form, as specified in affirmative final determination in that DEPARTMENT OF JUSTICE II(C) of the Commission’s Handbook on investigation under section 735(a) of the Electronic Filing Procedures, 67 FR Act. Parties that filed entries of Notice of Lodging of Consent Decree 68168, 68173 (November 8, 2002). appearance in the preliminary phase of Under the Clean Air Act In accordance with §§ 201.16(c) and the investigation need not enter a Notice is hereby given that on March 207.3 of the rules, each document filed separate appearance for the final phase 14, 2007, a proposed Consent Decree in by a party to the investigations must be of the investigation. Industrial users, United States of America v. William served on all other parties to the and, if the merchandise under Montgomery, et al, Civil Action No. investigations (as identified by either investigation is sold at the retail level, 2:05–CV–0131 was lodged with the the public or BPI service list), and a representative consumer organizations United States District Court for the certificate of service must be timely have the right to appear as parties in Western District of Michigan. filed. The Secretary will not accept a Commission antidumping and In this action, pursuant to Sections document for filing without a certificate countervailing duty investigations. The 309(b) and (g), 33 U.S.C. §§ 1319(b) and of service. Secretary will prepare a public service (g) of the Clean Water Act, the United Authority: These investigations are being list containing the names and addresses States sought judicial enforcement of an conducted under authority of title VII of the of all persons, or their representatives, administrative Consent Agreement and Tariff Act of 1930; this notice is published who are parties to the investigation. pursuant to § 207.12 of the Commission’s Final Order (‘‘CAFO’’) that William rules. Background Montgomery (‘‘Montgomery’’) and On February 8, 2007, a petition was CCMS Associates, Inc. (‘‘CCMS’’) Issued: April 2, 2007. entered into on September 17, 2003. The By order of the Commission. filed with the Commission and Commerce by ICL Performance CAFO resolved violations by Marilyn R. Abbott, Montgomery and CCMS of the Clean Secretary to the Commission. 1 The record is defined in § 207.2(f) of the Water Act, requiring them to pay a [FR Doc. E7–6601 Filed 4–6–07; 8:45 am] Commission’s Rules of Practice and Procedure (19 $30,000 civil penalty and restore 18.51 BILLING CODE 7020–02–P CFR 207.2(f)). acres of wetlands. The complaint also

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17582 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

sought relief against Montgomery and of exhibits and defendants’ signatures, DEPARTMENT OF JUSTICE Montgomery Aggregate Products, Inc., please enclose a check in the amount of for failing to comply with permitting $9.25 (25 cents per page reproduction Antitrust Division and notice requirements, in violation of cost) payable to the U.S. Treasury. the Clean Air Act (‘‘CAA’’), 42 U.S.C. Notice Pursuant to the National 7401, et seq., specifically the New Jennifer L. McManus, Cooperative Research and Production Source Performance Standards Assistant United States Attorney, U.S. Act of 1993—Interchangeable Virtual (‘‘NSPS’’), for nonmetallic mineral Attorney’s Office—Western District of Instruments Foundation, Inc. Michigan. processing plants, 40 CFR part 60. A default judgment was entered [FR Doc. 07–1721 Filed 4–6–07; 8:45 am] Notice is hereby given that, on against Defendant CCMS. The proposed BILLING CODE 4410–JH–M February 27, 2007, pursuant to Section Consent Decree would, resolve the 6(a) of the National Cooperative remaining claims against Defendants DEPARTMENT OF JUSTICE Research and Production Act of 1993, Montgomery and Montgomery 15 U.S.C. 4301 et seq. (‘‘the Act’’), Aggregate Products, Inc., by inter alia, Antitrust Division Interchangeable Virtual Instruments (1) requiring them to pay a civil penalty Foundation, Inc. has filed written of $72,000; (2) requiring Montgomery to Notice Pursuant to the National notifications simultaneously with the perform the wetlands mitigation they Cooperative Research and Production Attorney General and the Federal Trade previously agreed to undertake in the Act of 1993—ASTM International— Commission disclosing changes in its CAFO, as modified in the Decree; and Standards (3) requiring them to comply with the membership. The notifications were provisions of the Clean Air Act and Notice is hereby given that, on March filed for the purpose of extending the specifically, the NSPS for nonmetallic 13, 2007, pursuant to Section 6(a) of the Act’s provisions limiting the recovery of mineral processing plants, 40 CFR part National Cooperative Research and antitrust plaintiffs to actual damages 60, or pay stipulated penalties for any Production Act of 1993, 15 U.S.C. 4301 under specified circumstances. infraction thereof. et seq. (‘‘the Act’’), ASTM Specifically, BCO, Inc., Billerica, MA The Department of Justice will receive International—Standards (‘‘ASTM’’) has has withdrawn as a party to this for a period of thirty (30) days from the filed written notifications venture. In addition, Systems & date of this publication comments simultaneously with the Attorney Electronics Inc. has changed its name to relating to the Consent Decree. General and the Federal Trade DRS Sustainment Systems, Inc., St. Comments should be addressed to the Commission disclosing additions or Louis, MO. Assistant Attorney General, changes to its standards development No other changes have been made in Environmental and Natural Resources activities. The notifications were filed either the membership or planned Division, P.O. Box 7611, U.S. for the purpose of extending the Act’s activity of the group research project. Department of Justice, Washington, DC provisions limiting the recovery of 20044–7611, and should refer to United antitrust plaintiffs to actual damages Membership in this group research States v. Montgomery, et al., D.J. Ref. under specified circumstances. project remains open, and 90–5–2–1–08092/1. Comments may also Specifically, ASTM has provided an Interchangeable Virtual Instruments be submitted by e-mail to the following updated list of current, ongoing ASTM Foundation, Inc. intends to file e-mail address: standards activities originating between additional written notifications [email protected]. December 2006 and February 2007, disclosing all changes in membership. The Consent Decree may be examined designated as Work Items. A complete On May 29, 2001, Interchangeable at the Office of the United States listing of ASTM Work Items, along with Virtual Instruments Foundation, Inc. Attorney, Fifth Floor, 330 Ionia NW., a brief description of each, is available filed its original notification pursuant to Grand Rapids, MI 49503, and at the at http://www.astm.org. Section 6(a) of the Act. The Department United States Environmental Protection On September 15, 2004, ASTM filed of Justice published a notice in the Agency, Region V, 77 West Jackson its original notification pursuant to Federal Register pursuant to Section Boulevard, C–14J, Chicago, IL 60604. Section 6(a) of the Act. The Department During the public comment period, the 6(b) of the Act on July 30, 2001 (66 FR of Justice published a notice in the 39336). Consent Decree may also be examined Federal Register pursuant to Section on the following Department of Justice 6(b) of the Act on November 10, 2004 The last notification was filed with Web site, to http://www.usdoj.gov/enrd/ (69 FR 65226). the Department on December 8, 2006. A _ Consent Decrees.html A copy of the The last notification was filed with notice was published in the Federal Consent Decree may also be obtained by the Department on December 14, 2006. Register pursuant to Section 6(b) of the mail from the Consent Decree Library, A notice was published in the Federal Act on December 29, 2006 (71 FR P.O. Box 7611, U.S. Department of Register pursuant to Section 6(b) of the 78468). Justice, Washington, DC 20044–7611, or Act on January 25, 2007 (72 FR 3415). by faxing or e-mailing a request to Tonia For additional information, please Patricia A. Brink, Fleetwood ([email protected]), contact: Thomas B. O’Brien, Jr., General Deputy Director of Operations, Antitrust fax no. (202) 514–0097, phone Counsel, at 100 Barr Harbor Drive, West Division. confirmation number (202) 514–1547. In Conshohocken, PA 19428, telephone [FR Doc. 07–1722 Filed 4–6–07; 8:45 am] requesting a copy from the Consent 610–832–9597 e-mail address BILLING CODE 4410–11–M Decree Library, please enclose a check [email protected]. in the amount of $25.75 (25 cents per page reproduction cost) payable to the Patricia A. Brink, U.S. Treasury or, if by e-mail or fax, Deputy Director of Operations, Antitrust forward a check in that amount to the Division. Consent Decree Library at the stated [FR Doc. 07–1724 Filed 4–6–07; 8:45 am] address. In requesting a copy exclusive BILLING CODE 4410–11–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17583

DEPARTMENT OF JUSTICE develop and implement standards of DEPARTMENT OF JUSTICE compliance to ensure that the industry Antitrust Division is seen by all constituencies as operating Antitrust Division at a high level of professional ethics; Notice Pursuant to the National and (8) conduct such other activities, Notice Pursuant to the National Cooperative Research and Production and adopt such other policies and Cooperative Research and Production Act of 1993—International Serum practices, which are furtherance of the Act of 1993—PXI Systems Alliance, Industry Association general objective of promoting uniform Inc. Notice is hereby given that, on standards and reliability in the serum Notice is hereby given that, on March February 20, 2007, pursuant to Section industry. 8, 2007, pursuant to Section 6(a) of the 6(a) of the National Cooperative Patricia A. Brink, National Cooperative Research and Research and Production Act of 1993, Production Act of 1993, 15 U.S.C. 4310 Deputy Director of Operations, Antitrust et seq. (‘‘the Act’’), PXI Systems 15 U.S.C. 4301 et seq. (‘‘the Act’’), Division. Alliance, Inc. has filed written International Serum Industry [FR Doc. 07–1723 Filed 4–6–07; 8:45 am] Association (‘‘ISIA’’) has filed written notifications simultaneously with the notifications simultaneously with the BILLING CODE 4410–11–M Attorney General and the Federal Trade Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were Commission disclosing (1) the name and DEPARTMENT OF JUSTICE principal place of business of the filed for the purpose of extending the standards development organization Antitrust Division Act’s provisions limiting the recovery of and (2) the nature and scope of its antitrust plaintiffs to actual damages standards development activities. The Notice Pursuant to the National under specified circumstances. notifications were filed for the purpose Cooperative Research and Production Specifically, TEGAM, Inc., Geneva, OH of invoking the Act’s provisions limiting Act of 1993—LiMo Foundation has been added as a party to this the recovery of antitrust plaintiffs to venture. Also, Global Test Solutions for actual damages under specified Notice is hereby given that, on March Tabor Electronics, Yucaipa, CA and circumstances. 1, 2007, pursuant to Section 6(a) of the EADS North American Defense Test & Pursuant to Section 6(b) of the Act, National Cooperative Research and Services, Irvine, CA have withdrawn as the name and principal place of Production Act of 1993, 15 U.S.C. 4301 parties to this venture. In addition, B&B business of the standards development et seq. (the ‘‘Act’’), LiMo Foundation Technologies has changed its name to organization is: International Serum (the ‘‘Foundation’’) has filed written National Technical Systems-TSE, Industry Association, McHenry, MD. notifications simultaneously with the Albuquerque, NM. The nature and scope of ISIA’s Attorney General and the Federal Trade No other changes have been made in standards development activities are: to Commission disclosing (1) the identities either the membership or planned bring together, as members of the of the parties to the venture and (2) the activity of the group research project. corporation, companies worldwide that nature and objectives of the venture. Membership in this group research are involved in the collection, sale, The notifications were filed for the project remains open, and PXI Systems distribution, and processing of serum, purpose of invoking the Act’s provisions Alliance, Inc. intends to file additional and related companies. Serum is used in limiting the recovery of antitrust written notifications disclosing all connection with research, diagnostic plaintiffs to actual damages under changes in membership. testing, and the development, sale and specified circumstances. On November 22, 2000, PXI Systems Alliance, Inc. filed its original distribution of life sciences and Pursuant to Section 6(b) of the Act, biopharmaceutical products. The notification pursuant to Section 6(a) of the identities of the parties to the the Act. The Department of Justice corporation’s purpose is to enhance the venture are: Motorola, Inc., Libertyville, understanding, safety, use and general published a notice in the Federal IL; NEC Corporation, Tokyo, JAPAN; Register pursuant to Section 6(b) of the knowledge of serum and serum related Panasonic Mobile Communications Co., products by adopting, promoting and Act on March 8, 2001 (66 FR 13971). Ltd., Yokohama, JAPAN; Samsung The Last notification was filed with encouraging policies by which its Electronics Co., Ltd., Seoul, REPUBLIC the Department on December 21, 2006. members will: (1) Establish common OF KOREA; and Vodafone Group A notice was published in the Federal nomenclature and testing standards for Services Limited, Newbury, Berkshire, Register pursuant to Section 6(b) of the use within the serum industry; (2) work UNITED KINGDOM. The nature and Act on January 25, 2007 (72 FR 3416). together to address common regulatory purpose of the Foundation is to develop issues (e.g. import/export); (3) address a Linux-based, open mobile Patricia A. Brink, common concerns about health related communication device software Deputy Director of Operations, Antitrust issues; (4) develop industry quality platform (the ‘‘Foundation Platform’’); Division. standards for product and company to advance the creation, evolution, [FR Doc. 07–1726 Filed 4–6–07; 8:45 am] performance; (5) develop a market wide promotion, and support of the BILLING CODE 4410–11–M understanding of sourcing and Foundation Platform; and to cultivate an traceability and policies to standardize ecosystem of complementary products, business practices; (6) develop a capabilities, and services, along with all DEPARTMENT OF JUSTICE proactive industry, regulatory and world other things ancillary to the foregoing Antitrust Division interface to educate, inform and purposes. advocate as appropriate, acting as a Patricia A. Brink, Notice Pursuant to the National spokesperson for the international Cooperative Research and Production Deputy Director of Operations, Antitrust serum industry in North America and Act of 1993—Telemanagement Forum other parts of the world on government Division. and public policy issues, especially [FR Doc. 07–1727 Filed 4–6–07; 8:45 am] Notice is hereby given that, on those impacting worldwide trade; (7) BILLING CODE 4410–11–M February 8, 2007, pursuant to Section

VerDate Aug<31>2005 19:05 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17584 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

6(a) of the National Cooperative Telecom Holding, Cairo, EGYPT; Orga GERMANY; OKB Telecom, Moscow, Research and Production Act of 1993, Systems GmbH, Paderborn, GERMANY; RUSSIA; Olista, Natanya, ISRAEL; 15 U.S.C. 4301 et seq. (‘‘the Act’’), Orishatech, Glen Echo, MD; OSS ORMvision, Lochristi, BELGIUM; Telemanagement Forum (‘‘the Forum’’) Terrace, Cupertino, CA; PT Bandung Pelagic Group, Singapore, SINGAPORE; filed written notifications TalentSource, Jakarta, INDONESIA; PMCL MOBILINK, Islamabad, simultaneously with the Attorney Qosmos, Paris, FRANCE; Reachview PAKISTAN; Pontis Inc., Gill Yam, General and the Federal Trade Technologies Inc., Atlanta, GA; Revenue ISRAEL; Practical Enterprise Commission disclosing changes in its Protect Limited, Hatfield, UNITED Architecture P/L, Bentleigh, Victoria, membership. The notifications were KINGDOM; Selectica, Bracknell, AUSTRALIA; proCaptura as, filed for the purpose of extending the UNITED KINGDOM; SERVA Software Billingstad, NORWAY; RGAE, Act’s provisions limiting the recovery of Inc., Wichita Falls, TX; Servei de Longueuil, Quebec, CANADA; antitrust plaintiffs to actual damages Telecomunicacions d’Andorra, Andorra RosettaNet, Santa Ana, CA; Ryder under specified circumstances. la Vella, ANDORRA; Sheerscape Inc., Systems, Blackburn, UNITED Specifically, 24 Online Oy, Espoo, Austin, TX; Solegy LLC, New York, NY; KINGDOM; Sleepycat Software, Inc., FINLAND; ADVA AG Optical Soluziona Mexico S.A. de C.V., Mexico Lincoln, MA; Spirent Communications, Networking, Munich, GERMANY; City, MEXICO; Switchlab, London, Rockville, MD; Subex Systems Limited, ADVA Optical Networking Inc., UNITED KINGDOM; TelcoSI, Sydney, Bangalore, INDIA; Technology Mahwah, NJ; ArcSight, Cupertino, CA; NSW, AUSTRALIA; Telefonica 02 Optimisation Consultants Ltd., ArtinSoft LLC, Herndon, VA; BH Czech Republic, a.s., Prague 3, CZECH Bishoptown, IRELAND; Ukranian Telecom, Joint Stock Company Sarajevo, REPUBLIC; Teracom AB, Sundbyberg, Mobile Communications UMC, Kiev, Sarajevo, BOSNIA-HERZEGOVINA; SWEDEN; TerreStar Networks, Reston, UKRAINE; Valaran Corporation, BOYRA, Bogota, COLOMBIA; Brennan VA; THUS, Glasgow, UNITED Cranbury, NJ; VokeTel, Concord, Software Development PTY LTD, KINGDOM; TIM Hellas, Athens, Ontario, CANADA; Voyence, Sydney, NSW, AUSTRALIA; Cadence GREECE; Time Warner Cable, Herndon, Richardson, TX; and ZTE Technology LLC, Denver, CO; CASCADE Limited, VA; Tiscali International Network, Center, Shenchen PEOPLE’S REPUBLIC Quarry Bay, PEOPLE’S REPUBLIC OF Utrecht, NETHERLANDS; Vernikov and OF CHINA, have withdrawn as parties CHINA; Catalyst IT Partners Ltd, Partners Group, Moscow, RUSSIA; to this venture. London, UNITED KINGDOM; Chalmers Virgin Mobile, Trowbridge, Wiltshire, The following members have changed Associates, Congleton, UNITED UNITED KINGDOM; Wireless Maingate their names: Advav Optical Networking KINGDOM; China Link Nordic AB, Karlskrona, SWEDEN; to ADVA AG Optical Networking, Communications LTD., Shanghai, Zenulta Limited, Swindon, Wiltshire, Munich, GERMANY; Teleca Sweden PEOPLE’S REPUBLIC OF CHINA; CIMI UNITED KINGDOM; and ZIRA Ltd., South to auSystems Sweden South, Corp., Voorhees, NJ; Citizens Telecom Sarajevo, BOSNIA-HERZEGOVINA, Stockholm, SWEDEN; Bell South to Services Company L.L.C., Stamford, CT; have been added as parties to this BellSouth, Atlanta, GA; Brennan IT to Cogitas, Utrecht, NETHERLANDS; venture. Brennan Software Development PTY Comergent Technologies, Redwood City, Also, Acterna, Atlanta, GA; al-ELM LTD, Sydney, NSW, AUSTRALIA; CA; Cosmote, Athens, GREECE; Cox Information Security, Riyadh, SAUDI Catalyst IT Partners Limited to Catalyst Communications, Atlanta, GA; Dimetis ARABIA; Borland Corporation, Scotts IT Partners Ltd., London, UNITED GmbH, Dietzenbach, GERMANY; Dubai Valley, CA; Cherrytee Solutions KINGDOM; Cominfo to Cominfo World Center, Dubai, UNITED ARAB Limited, TaliNadu, INDIA; Consulting, Moscow, RUSSIA; Cramer EMIRATES; EDEL Consulting, Zurich, ClickSoftware Inc., Burlington, MA; Systems Limited to Cramer Amdocs SWITZERLAND; EITC, Dubai, UNITED Connexion by Boeing, Irvine, CA; OSS Division, Bath, UNITED ARAB EMIRATES; EMBARQ, Overland Digital Fairway Corporation, Toronto, KINGDOM; SI–TECH Information Park, KS; Etisalat UAE, Abu Dhabi, Ontario, CANADA; Distocraft Oy, Technology Ltd. to Digital China (SI– UNITED ARAB EMIRATES; EVSC, Helsinki, FINLAND; Dubai Internet City, TECH) Information Technology Ltd., Seoul, REPUBLIC OF KOREA; Factdelta, Dubai, UNITED ARAB EMIRATES; Beijing, PEOPLE’S REPUBLIC OF Swansea, UNITED KINGDOM; Fluke Emirates, Abu Dhabi, UNITED ARAB CHINA; du/Emirates Integrated Networks, Duluth, GA; Great Bear EMIRATES; ERM, Sao Paulo, BRAZIL; Telecoms Company to EITC, Dubai, International Services (Pvt) Ltd., ExpertEdge Software & Systems UNITED ARAB EMIRATES; Flextronics Islamabad, PAKISTAN; Highdeal, Caen, Limited, Lagos, NIGERIA; FineGrain Software Systems Ltd. to Flextronics FRANCE; Integra Consultores, Caracas, Networks, Ltd., Fairview, TX; Frost & Software Systems, Haryana, INDIA; VENEZUELA; Jose Ricardo Formagio Sullivan, Beijing, PEOPLE’s REPUBLIC Bonus Technology, Inc. to GlobalLogic, Bueno, Sao Paulo, BRAZIL; Kentor IT OF CHINA; Gamma Projects, Magor, Newark, NJ; IONA to IONA AB, Stockholm, SWEDEN; LMU Monmouthshire, UNITED KINGDOM; Technologies, Waltham, MA; MRN Munich, Munich, GERMANY; Grupo Auna, Barcelona, SPAIN; IDS Network Solutions to MTN Network Manconsult Development, Vastra Scheer Japan Co., Ltd., Tokyo, JAPAN; Solutions (PTY) Limited, Randburg, Gotaland, SWEDEN; Metrocom Inc., Information-control LLC, Gaithersburg, SOUTH AFRICA; Wanadoo UK to Miami, FL; Mission Critical, Braine- MD; InfoRoad AB, Uppsala, SWEDEN; Orange Home UK PLC, London, l’Alleud, BELGIUM; MTN Network InterAcct Solutions, Sydney, NSW, UNITED KINGDOM; Patni Computer Solutions (Pty) Limited, Gauteng, AUSTRALIA; IP Value GmbH, Services to Patni Computer Systems, SOUTH AFRICA; NetScout Systems, Dortmund, GERMANY; IPANEMA Fremont, CA; Pantero Corp. to Progress Westford, MA; Networked/Assets TECHNOLOGIES, Fontenay aux Roses, Software, Waltham, MA; Progress to GmbH, Berlin, Germany; FRANCE; Jamcracker, Inc., Santa Clara, Progress Software, Waltham, MA; NetworkMining, Mechelen, Belgium; CA; LG TeleCom, Seoul, REPUBLIC OF Siemens AG to Siemens Networks Newsdesk Media Group, London, KOREA; Mangrove Systems, Inc., GmbH & Co. KG, Milano, ITALY; Azure UNITED KINGDOM; Northrup Wallingford, CT; Martin Dawes Systems, Solutions to Subex Azure Ltd., Grumman, Los Angeles, CA; OKB Fearnhead, UNITED KINGDOM; Bangalore, INDIA; Heerklotz GmbH to Telecom, Moscow, RUSSIA; Orascom Noventum Consulting GmbH, Muenster, teleconvergence GmbH, Olching,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17585

GERMANY; TDS to Telephone and Data DEPARTMENT OF LABOR wrapper or other documentary evidence Systems, Inc, Chicago, IL; TNO Telecom or receipt maintained by that office. to TNO Information & Communication Office of Disability Employment Policy Applications sent by other delivery Technology, Delft, NETHERLANDS; services, such as Federal Express, UPS, SMI Telco Ltd. to TuringSMI, Fareham, [OMB Number 1230–0002] e-mail, etc., will also be accepted; Hampshire, UNITED KINGDOM; however, the applicant bears the Solicitation of Nominations for the responsibility of timely submission. Vodacom South Africa to Vodacom Secretary of Labor’s New Freedom (PTY) Ltd., Gauteng, SOUTH AFRICA; For further information, contact Initiative Award; Extension of Period Margaret Roffee of the Office of and VPI Systems to VPI Systems-NJ, for Submission of Nominations Notice Disability Employment Policy at Holmdel, NJ. 1. Subject: The Secretary of Labor’s telephone (202) 693–7880, (866) ODEP– The following members have changed New Freedom Initiative Award. DOL, TTY (202) 693–7881, prior to the their addresses: Aircom International 2. Purpose: This document extends closing deadline. Ltd. to Leatherhead, UNITED the period for submission of SUPPLEMENTARY INFORMATION: In the KINGDOM; Atreus Systems to Ottawa, nominations for the Secretary of Labor’s Federal Register of February 12, 2007 Ontario, CANADA; Cognizant New Freedom Initiative Award. This (72 FR 6673), the Office of Disability Technology Solutions Corporation to action is taken to permit increased Employment Policy published a Teaneck, NJ; Cominfo Consulting to participation by interested stakeholders. Solicitation of Nominations for the Moscow, RUSSIA; Computer Sciences 3. Originator: Office of Disability Secretary of Labor’s New Freedom Corporation to Wiesbaden, GERMANY; Employment Policy (ODEP). Initiative Award. Nomination packages Fortinet, Inc. to Sunnyvale, CA; INOSS, 4. Dates: Nomination packages must were to be submitted to the Office of Inc. to Spicewood, TX; Leapstone be submitted to Secretary of Labor’s Disability Employment Policy by April Systems to Somerset, NJ; Siemens New Freedom Initiative Award, Office 30, 2007. Because of the continuing Network GmbH & Co. KG to Muenchen, of Disability Employment Policy, Room interest in this solicitation, the agency GERMANY; Soluziona Mexico S.A. de S–1303, 200 Constitution Avenue, NW., believes that it is desirable to extend the C.V. to Mexico City, MEXICO; STC Washington, DC 20210 by May 31, 2007. period for submission of nominations. KOMSET to Moscow, RUSSIA; Subex Any application received after 4:45 p.m. Therefore, the period for submission of Azure Ltd. to Bangalore, INDIA; EDT on May 31, 2007 will not be nominations is extended until May 31, Telchemy Incorporated to Duluth, GA; considered unless it was received before 2007. Teracom AB to Sundbyberg, SWEDEN; the award is made and: Signed at Washington, DC, this 4th day of and VPI Systems-NJ to Holmdel, NJ. 1. It was sent by registered or certified April 2007. mail no later than May 25, 2007; John R. Davey, No other changes have been made in 2. It is determined by the Government Director of Operations. either the membership or planned that the late receipt was due solely to activity of the group research project. [FR Doc. E7–6609 Filed 4–6–07; 8:45 am] mishandling by the Government after BILLING CODE 4510–23–P Membership in this group research receipt at the U.S. Department of Labor project remains open, and the Forum at the address indicated; or intends to file additional written 3. It was sent by U.S. Postal Service DEPARTMENT OF LABOR notifications disclosing all changes in Express Mail Next Day Service—Post membership. Office to Addressee, not later than 5 Employee Benefits Security On October 21, 1988, the Forum filed p.m. EDT at the place of mailing, May Administration its original notification pursuant to 30, 2007. Proposed Extension of Information Section 6(a) of the Act. The Department The only acceptable evidence to establish the date of mailing of a late Collection Request Submitted for of Justice published a notice in the Public Comment; Proposed Extension Federal Register pursuant to Section application sent by registered or certified mail is the U.S. Postal Service of Information Collection; Comment 6(b) of the Act on December 8, 1988 (53 Request; Prohibited Transaction Class FR 49615). postmark on the envelope or wrapper and on the original receipt from the U.S. Exemption 85–68—To Permit The last notification was filed with Postal Service. If the postmark is not Employee Benefit Plans To Invest in the Department on August 11, 2006. A legible, an application received after the Customer Notes of Employers notice was published in the Federal above closing time and date will be AGENCY: Employee Benefits Security Register pursuant to Section 6(b) of the processed as if mailed late. ‘‘Postmark’’ Administration, Department of Labor. Act on October 2, 2006 (71 FR 58006). means a printed, stamped, or otherwise ACTION: Notice. placed impression (not a postage meter Patricia A. Brink, machine impression) that is readily SUMMARY: The Department of Labor (the Deputy Director of Operations, Antitrust identifiable without further action as Department), in accordance with the Division. having been applied and affixed by an Paperwork Reduction Act of 1995 (PRA [FR Doc. 07–1725 Filed 4–6–07; 8:45 am] employee of the U.S. Postal Service on 95) (44 U.S.C. 3506(c)(2)(A)), provides BILLING CODE 4410–11–M the date of mailing. Therefore, the general public and Federal agencies applicants should request that the postal with an opportunity to comment on clerk place a legible hand cancellation proposed and continuing collections of ‘‘bull’s-eye’’ postmark on both the information. This helps the Department receipt and the envelope or wrapper. assess the impact of its information The only acceptable evidence to collection requirements and minimize establish the time of receipt at the U.S. the reporting burden on the public and Department of Labor is the date/time helps the public understand the stamp of the Office of Disability Department’s information collection Employment Policy on the application requirements and provide the requested

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17586 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

data in the desired format. Currently, for extension of OMB approval of the Dated: April 3, 2007. the Employee Benefits Security information collection contained in PTE Bradford P. Campbell, Administration is soliciting comments 85–68. After considering comments Acting Assistant Secretary, Employee Benefits on the proposed extension of the received in response to this notice, the Security Administration. information collection provisions of Department intends to submit an ICR to [FR Doc. E7–6551 Filed 4–6–07; 8:45 am] Prohibited Transaction Class Exemption OMB for continuing approval. No BILLING CODE 4510–29–P 85–68. A copy of the information change to the existing ICR is proposed collection request (ICR) may be obtained or made at this time. An agency may not by contacting the office listed in the conduct or sponsor, and a person is not DEPARTMENT OF LABOR ADDRESSES section of this notice. required to respond to, an information DATES: Written comments must be collection unless it displays a valid Employee Benefits Security submitted to the office shown in the OMB control number. A summary of the Administration ICR and the current burden estimates ADDRESSES section on or before June 8, Proposed Extension of Information follows: 2007. Collection Request Submitted for ADDRESSES: Joseph S. Piacentini, Agency: Employee Benefits Security Public Comment; Prohibited Department of Labor, Employee Benefits Administration, Department of Labor. Transaction Class Exemption 91–55— Security Administration, 200 Title: Prohibited Transaction Class Transactions Between Individual Constitution Avenue, NW., Washington, Exemption 85–68. Retirement Accounts and Authorized DC 20210, (202) 693–8410, FAX (202) Type of Review: Extension of a Purchasers of American Eagle Coins 693–4745 (these are not toll-free currently approved collection of numbers). information. AGENCY: Employee Benefits Security Administration, Department of Labor. SUPPLEMENTARY INFORMATION: OMB Number: 1210–0094. Affected Public: Individuals or ACTION: Notice. I. Background households; Business or other for-profit; SUMMARY: The Department of Labor (the Pursuant to section 408 of ERISA, the Not-for-profit institutions. Department), in accordance with the Department has authority to grant an Respondents: 525. Paperwork Reduction Act of 1995 (PRA exemption from the prohibitions of Frequency: On Occasion. 95) (44 U.S.C. 3506(c)(2)(A)), provides sections 406 and 407(a) if it can Responses: 1900. the general public and Federal agencies determine that the exemption is Average Response time [if applicable]: with an opportunity to comment on administratively feasible, in the interest 1 hour. proposed and continuing collections of of participants and beneficiaries, and Estimated Total Burden Hours: 1900 information. This helps the Department protective of the rights of participants hours. assess the impact of its information and beneficiaries of the plan. Prohibited Estimated Total Burden Cost: $0. collection requirements and minimize Transaction Class Exemption 85–68 the reporting burden on the public and III. Focus of Comments describes the conditions under which a helps the public understand the plan is permitted to acquire customer The Department of Labor Department’s information collection notes accepted by an employer of (Department) is particularly interested requirements and provide the requested employees covered by the plan in the in comments that: data in the desired format. Currently, ordinary course of the employer’s • Evaluate whether the proposed the Employee Benefits Security primary business activity. The collection of information is necessary Administration is soliciting comments exemption covers sales as well as for the proper performance of the on the proposed extension of the contributions of customer notes by an functions of the agency, including information collection provisions of employer to its plan. Specifically, the whether the information will have Prohibited Transaction Class Exemption exemption requires that the employer practical utility; 91–55. A copy of the information provide a written guarantee to • Evaluate the accuracy of the collection request (ICR) may be obtained repurchase a note which becomes more by contacting the office listed in the than 60 days delinquent, that such notes agency’s estimate of the burden of the ADDRESSES section of this notice. be secured by a perfected security proposed collection of information, DATES: interest in the property financed by the including the validity of the Written comments must be note, and that the collateral be insured. methodology and assumptions used; submitted to the office shown in the • The exemption requires records Enhance the quality, utility, and Addresses section on or before June 8, pertaining to the transaction to be clarity of the information to be 2007. maintained for a period of six years for collected; and ADDRESSES: Joseph S. Piacentini, • the purpose of ensuring that the Minimize the burden of the Department of Labor, Employee Benefits transactions are protective of the rights collection of information on those who Security Administration, 200 of participants and beneficiaries. This are to respond, including through the Constitution Avenue, NW., Washington, recordkeeping requirement constitutes use of appropriate automated, DC 20210, (202) 693–8410, FAX (202) an information collection within the electronic, mechanical, or other 693–4745 (these are not toll-free meaning of the PRA, for which the technological collection techniques or numbers). Department has obtained approval from other forms of information technology, SUPPLEMENTARY INFORMATION: the Office of Management and Budget e.g., by permitting electronic I. Background (OMB) under OMB Control No. 1210– submissions of responses. 0094. The OMB approval is currently Comments submitted in response to Prohibited Transaction Exemption scheduled to expire on July 31, 2007. this notice will be summarized and/or 91–55 permits purchases and sales by included in the ICR for OMB approval certain ‘‘individual retirement II. Current Actions of the extension of the information accounts,’’ as defined in Internal This notice requests public comment collection; they will also become a Revenue Code section 408 (IRAs) of pertaining to the Department’s request matter of public record. American Eagle bullion coins (‘‘Coins’’)

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17587

in principal transactions from or to change to the existing ICR is proposed DEPARTMENT OF LABOR broker-dealers in Coins that are or made at this time. An agency may not ‘‘authorized purchasers’’ of Coins in conduct or sponsor, and a person is not Employee Benefits Security bulk quantities from the United States required to respond to, an information Administration Mint and which are also ‘‘disqualified collection unless it displays a valid persons,’’ within the meaning of Code OMB control number. A summary of the Proposed Extension of Information section 4975(e)(2), with respect to IRAs. ICR and the current burden estimates Collection Request Submitted for The exemption also describes the follows: Public Comment; Prohibited Transaction Class Exemption 92–6— circumstances under which an interest- Agency: Employee Benefits Security Sale of Individual Life Insurance or free extension of credit in connection Administration, Department of Labor. Annuity Contracts by a Plan with such sales and purchases is Title: Prohibited Transaction Class permitted. In the absence of an Exemption 91–55. AGENCY: Employee Benefits Security exemption, such purchases and sales Administration, Department of Labor. and extensions of credit would be Type of Review: Extension of a impermissible under the Employee currently approved collection of ACTION: Notice. Retirement Income Security Act of 1974 information. SUMMARY: The Department of Labor (the (ERISA). OMB Number: 1210–0079. Department), in accordance with the Among other conditions, the Affected Public: Individuals or Paperwork Reduction Act of 1995 (PRA exemption requires certain information households; Business or other for-profit; 95) (44 U.S.C. 3506(c)(2)(A)), provides related to covered transactions in Coins Not-for-profit institutions. the general public and Federal agencies must be disclosed by the authorized Respondents: 2. purchaser to persons who direct the with an opportunity to comment on Responses: 12,800. transaction for the IRA. Currently, it is proposed and continuing collections of standard industry practice that most of Frequency: On occasion. information. This helps the Department this information is provided to persons Estimated Total Burden Hours: 554 assess the impact of its information directing investments in an IRA when hours. collection requirements and minimize transactions in Coins occur. The Estimated Total Burden Cost: $0. the reporting burden on the public and exemption also requires that the helps the public understand the III. Focus of Comments disqualified person maintain for a Department’s information collection period of at least six years such records The Department of Labor requirements and provide the requested as are necessary to allow accredited (Department) is particularly interested data in the desired format. Currently, persons, as defined in the exemption, to in comments that: the Employee Benefits Security Administration is soliciting comments determine whether the conditions of the • Evaluate whether the proposed transaction have been met. Finally, an on the proposed extension of the collection of information is necessary information collection provisions of authorized purchaser must provide a for the proper performance of the confirmation statement with respect to Prohibited Transaction Class Exemption functions of the agency, including 92–6. A copy of the information each covered transaction to the person whether the information will have who directs the transaction for the IRA. collection request (ICR) may be obtained practical utility; by contacting the office listed in the The requirements constitute information • collections within the meaning of the Evaluate the accuracy of the ADDRESSES section of this notice. agency’s estimate of the burden of the PRA, for which the Department has DATES: Written comments must be proposed collection of information, obtained approval from the Office of submitted to the office shown in the including the validity of the Management and Budget (OMB) under Addresses section on or before June 8, methodology and assumptions used; OMB Control No. 1210–0079. The OMB 2007. • Enhance the quality, utility, and approval is currently scheduled to ADDRESSES: clarity of the information to be Joseph S. Piacentini, expire on July 31, 2007. Department of Labor, Employee Benefits The recordkeeping requirement collected; and • Security Administration, 200 facilitates the Department’s ability to Minimize the burden of the Constitution Avenue, NW., Washington, make findings under section 408 of collection of information on those who DC 20210, (202) 693–8410, FAX (202) ERISA and section 4975(c) of the Code. are to respond, including through the 693–4745 (these are not toll-free The confirmation and disclosure use of appropriate automated, numbers). requirements protect a participant or electronic, mechanical, or other beneficiary who invests in IRAs and technological collection techniques or SUPPLEMENTARY INFORMATION: transacts in Coins with authorized other forms of information technology, I. Background purchasers by providing the investor or e.g., by permitting electronic the person directing his or her submissions of responses. Prohibited Transaction Class investments with timely information Comments submitted in response to Exemption 92–6 exempts from the about the market in Coins and about the this notice will be summarized and/or prohibited transaction restrictions of the individual’s account in particular. included in the ICR for OMB approval Employee Retirement Security Act of 1974 (ERISA) the sale of individual life II. Current Actions of the extension of the information collection; they will also become a insurance or annuity contracts by a plan This notice requests public comment matter of public record. to participants, relatives of participants, pertaining to the Department’s request employers any of whose employees are for extension of OMB approval of the Dated: April 3, 2007. covered by the plan, other employee information collection contained in PTE Bradford P. Campbell, benefit plans, owner-employees or 91–55. After considering comments Acting Assistant Secretary, Employee Benefits shareholder-employees. In the absence received in response to this notice, the Security Administration. of this exemption, certain aspects of Department intends to submit an ICR to [FR Doc. E7–6552 Filed 4–6–07; 8:45 am] these transactions might be prohibited OMB for continuing approval. No BILLING CODE 4510–29–P by section 406 of ERISA.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17588 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Among other conditions, PTE 92–6 are to respond, including through the 693–4745 (these are not toll-free requires that pension plans inform the use of appropriate automated, numbers). insured participant of a proposed sale of electronic, mechanical, or other SUPPLEMENTARY INFORMATION: a life insurance or annuity policy to the technological collection techniques or employer, a relative, another plan, an other forms of information technology, I. Background owner-employee, or a shareholder- e.g., by permitting electronic The continuation coverage provisions employee. This recordkeeping submissions of responses. of section 601 through 608 of ERISA requirement constitutes an information Comments submitted in response to (and parallel provisions of the Internal this notice will be summarized and/or collection within the meaning of the Revenue Code (Code)) generally require included in the ICR for OMB approval PRA, for which the Department has group health plans to offer qualified of the extension of the information obtained approval from the Office of beneficiaries’ the opportunity to elect collection; they will also become a Management and Budget (OMB) under continuation coverage following certain matter of public record. OMB Control No. 1210–0063. The OMB events that would otherwise result in approval is currently scheduled to Dated: April 3, 2007. the loss of coverage. Continuation expire on July 31, 2007. Bradford P. Campbell, coverage is a temporary extension of the II. Current Actions Acting Assistant Secretary, Employee Benefits qualified beneficiary’s previous group Security Administration. This notice requests public comment health coverage. The right to elect pertaining to the Department’s request [FR Doc. E7–6553 Filed 4–6–07; 8:45 am] continuation coverage allows for extension of OMB approval of the BILLING CODE 4510–29–P individuals to maintain group health information collection contained in PTE coverage under adverse circumstances 92–6. After considering comments and to bridge gaps in health coverage DEPARTMENT OF LABOR received in response to this notice, the that otherwise could limit their access Department intends to submit an ICR to to health care. Employee Benefits Security COBRA provides the Secretary of OMB for continuing approval. No Administration change to the existing ICR is proposed Labor (the Secretary) with authority or made at this time. An agency may not Proposed Extension of Information under section 608 of ERISA to carry out conduct or sponsor, and a person is not Collection Request Submitted for the continuation coverage provisions. required to respond to, an information Public Comment; Final Rule on Health The Conference Report that collection unless it displays a valid Care Continuation Coverage accompanied COBRA divided OMB control number. A summary of the interpretive authority over the COBRA ICR and the current burden estimates AGENCY: Employee Benefits Security provisions between the Secretary and follows: Administration, Department of Labor. the Secretary of the Treasury (the Agency: Employee Benefits Security ACTION: Notice. Treasury) by providing that the Administration, Department of Labor. Secretary has the authority to issue Title: Prohibited Transaction Class SUMMARY: The Department of Labor (the regulations implementing the notice and Exemption 92–6. Department), in accordance with the disclosure requirements of COBRA, Type of Review: Extension of a Paperwork Reduction Act of 1995 (PRA while the Treasury is authorized to currently approved collection of 95) (44 U.S.C. 3506(c)(2)(A)), provides issue regulations defining the required information. the general public and Federal agencies continuation coverage. OMB Number: 1210–0063. with an opportunity to comment on On May 26, 2004, the Department of Affected Public: Individuals or proposed and continuing collections of Labor (the Department) published in the households; Business or other for-profit; information. This helps the Department Federal Register (69 FR 30084) final Not-for-profit institutions. assess the impact of its information regulations governing the timing, Respondents: 8,360. collection requirements and minimize content, and administration of the Responses: 8,360. the reporting burden on the public and notice obligations arising under ERISA. Estimated Total Burden Hours: 1,671. helps the public understand the These final rules implementing the Estimated Total Burden Cost Department’s information collection (Operating and Maintenance): $3,093. notice requirements of the COBRA requirements and provide the requested provisions of ERISA also apply for III. Focus of Comments data in the desired format. Currently, purposes of the parallel Code the Employee Benefits Security provisions. The Department of Labor Administration is soliciting comments (Department) is particularly interested This recordkeeping requirement on the proposed extension of the constitutes an information collection in comments that: information collection provisions of its • Evaluate whether the proposed within the meaning of the PRA, for final rule at 29 CFR Part 2590, Health collection of information is necessary which the Department has obtained Care Continuation Coverage. A copy of for the proper performance of the approval from the Office of Management the information collection request (ICR) functions of the agency, including and Budget (OMB) under OMB Control may be obtained by contacting the office whether the information will have No. 1210–0123. The OMB approval is listed in the ADDRESSES section of this practical utility; currently scheduled to expire on July • Evaluate the accuracy of the notice. 31, 2007. DATES: Written comments must be agency’s estimate of the burden of the II. Current Actions proposed collection of information, submitted to the office shown in the including the validity of the ADDRESSES section on or before June 8, This notice requests public comment methodology and assumptions used; 2007. pertaining to the Department’s request • Enhance the quality, utility, and ADDRESSES: Joseph S. Piacentini, for extension of OMB approval of the clarity of the information to be Department of Labor, Employee Benefits information collection contained in its collected; and Security Administration, 200 final rule at 29 CFR 2590, Health Care • Minimize the burden of the Constitution Avenue, NW., Washington, Continuation Coverage. After collection of information on those who DC 20210, (202) 693–8410, FAX (202) considering comments received in

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17589

response to this notice, the Department Dated: April 3, 2007. coal mines with water, which has the intends to submit an ICR to OMB for Bradford P. Campbell, potential of drowning miners. The coal continuing approval. No change to the Acting Assistant Secretary, Employee Benefits mine operator submits an application existing ICR is proposed or made at this Security Administration. for the permit to the District Manager in time. An agency may not conduct or [FR Doc. E7–6554 Filed 4–6–07; 8:45 am] whose district the mine is located. sponsor, and a person is not required to BILLING CODE 4510–29–P Applications contain the name and respond to, an information collection address of the mine; projected mining unless it displays a valid OMB control and ground support plans; a mine map number. A summary of the ICR and the DEPARTMENT OF LABOR showing the location of the river, current burden estimates follows: stream, lake or other body of water and Mine Safety and Health Administration Agency: Employee Benefits Security its relation to the location of all working places; a profile map showing the type Administration, Department of Labor. Proposed Information Collection Title: Notice Requirements of the Request Submitted for Public of strata and the distance in elevation Health Care Continuation Coverage Comment and Recommendations; between the coal bed and the water Provisions. Operations Under Water involved. Type of Review: Extension of a II. Desired Focus of Comments ACTION: Notice. currently approved collection of Currently, the Mine Safety and Health information. SUMMARY: The Department of Labor, as Administration (MSHA) is soliciting OMB Number: 1210–0123. part of its continuing effort to reduce comments concerning the proposed Affected Public: Individuals or paperwork and respondent burden extension of the information collection households; Business or other for-profit; conducts a preclearance consultation related to Operations Under Water. Not-for-profit institutions. program to provide the general public MSHA is particularly interested in Respondents: 411,000. and Federal agencies with an comments which: opportunity to comment on proposed • Evaluate whether the proposed Frequency of Responses: On occasion. and/or continuing collections of collection of information is necessary Responses: 9,225,900. information in accordance with the for the proper performance of the Estimated Total Burden Hours: None Paperwork Reduction Act of 1995 functions of the agency, including Estimated Total Burden Cost (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This whether the information will have (Operating and Maintenance): program helps to ensure that requested practical utility; $14,723,400. data can be provided in the desired • Evaluate the accuracy of the Estimated Total Annualized Cost: format, reporting burden (time and agency’s estimate of the burden of the $16,379,900. financial resources) is minimized, proposed collection of information, collection instruments are clearly including the validity of the III. Desired Focus of Comments understood, and the impact of collection methodology and assumptions used; requirements on respondents can be • Enhance the quality, utility, and The Department of Labor properly assessed. clarity of the information to be (Department) is particularly interested DATES: collected; and in comments that: Submit comments on or before June 8, 2007. • Minimize the burden of the • Evaluate whether the proposed ADDRESSES: Send comments to, Debbie collection of information on those who collection of information is necessary Ferraro, Management Services Division, are to respond, including through the for the proper performance of the 1100 Wilson Boulevard, Room 2171, use appropriate automated, electronic, functions of the agency, including Arlington, VA 22209–3939. Commenters mechanical, or other technological whether the information will have are encouraged to send their comments collection techniques or other forms of practical utility; information technology, e.g., permitting • on computer disk, or via Internet e-mail Evaluate the accuracy of the to [email protected]. Ms. electronic submissions of responses. agency’s estimate of the burden of the Ferraro can be reached at (202) 693– III. Current Action proposed collection of information, 9821 (voice), or (202) 693–9801 including the validity of the (facsimile). Currently, the Mine Safety and Health methodology and assumptions used; Administration (MSHA) is soliciting FOR FURTHER INFORMATION CONTACT: • Enhance the quality, utility, and comments concerning the proposed Contact the employee listed in the clarity of the information to be extension of the information collection ADDRESSES section of this notice. collected; and related to Operations Under Water. SUPPLEMENTARY INFORMATION: Type of Review: Extension. • Minimize the burden of the Agency: Mine Safety and Health collection of information on those who I. Background Administration. are to respond, including through the Title 30, CFR § 75.1716, 75.1716–1 Title: Operations Under Water. use of appropriate automated, and 75.1716–3 require operators of OMB Number: 1219–0020. electronic, mechanical, or other underground coal mines to notify Affected Public: Business or other for- technological collection techniques or MSHA of proposed mining under bodies profit. other forms of information technology, of water and to obtain a permit to mine Number of Respondents: 30. e.g., by permitting electronic under a body of water if, in the Annual Reponses: 30. submissions of responses. judgment of the Secretary, it is Average Response Time: 5 hours. Comments submitted in response to sufficiently large to constitute a hazard Total Annual Burden Hours: 150. this notice will be summarized and/or to miners. This is a statutory provision Total Burden Cost (operating/ included in the ICR for OMB approval contained in Section 317(r) of the maintaining): $450. of the extension of the information Federal Mine Safety and Health Act of Comments submitted in response to collection; they will also become a 1977. The regulation is necessary to this notice will be summarized and/or matter of public record. prevent the inundation of underground included in the request for Office of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17590 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Management and Budget approval of the FOR FURTHER INFORMATION CONTACT: The implemented to prevent smoking in information collection request; they will employee listed in the ADDRESSES hazardous areas. also become a matter of public record. section of this notice. Type of Review: Extension. Dated at Arlington, Virginia, this 4th day SUPPLEMENTARY INFORMATION: Agency: Mine Safety and Health of April, 2007. Administration. I. Background David L. Meyer, Title: Program to Prevent Smoking in Director, Office of Administration and Under the Mine Act and § 75.1702, Hazardous Areas. Management. coal mine operators are required to OMB Number: 1219–0041. [FR Doc. E7–6604 Filed 4–6–07; 8:45 am] develop programs to prevent persons Frequency: On Occasion. Affected Public: Business or other for- BILLING CODE 4510–43–P from carrying smoking materials, matches, or lighters underground and to profit. prevent smoking in hazardous areas, Respondents: 492. DEPARTMENT OF LABOR such as in or around oil houses, Responses: 101. explosives magazines, etc. The Mine Act Estimated Time Per Respondent: .5 Mine Safety and Health Administration and the standard further require that the hours. mine operator submit the program plan Total Burden Hours: 50.5 hours. Proposed Information Collection to MSHA for approval. The purpose of Total Burden Cost (operating/ Request Submitted for Public the program is to insure that a fire or maintaining): $0. Comment and Recommendations; explosion hazard does not occur. Comments submitted in response to Program to Prevent Smoking in MSHA’s investigation determined that this notice will be summarized and/or Hazardous Areas the most likely source of ignition for included in the request for Office of Management and Budget approval of the ACTION: Notice. several fatal explosions in the past was the open flame of a cigarette lighter or information collection request; they will SUMMARY: The Department of Labor, as match. also become a matter of public record. part of its continuing effort to reduce Dated at Arlington, Virginia, this 4th day paperwork and respondent burden II. Desired Focus of Comments of April, 2007. conducts a pre-clearance consultation MSHA is particularly interested in David L. Meyer, program to provide the general public comments that: Director, Office of Administration and and Federal agencies with an • Evaluate whether the proposed Management. opportunity to comment on proposed collection of information is necessary [FR Doc. E7–6605 Filed 4–6–07; 8:45 am] and/or continuing collections of for the proper performance of the BILLING CODE 4510–43–P information in accordance with the functions of the agency, including Paperwork Reduction Act of 1995 whether the information will have (PRA95) [44 U.S.C. 3506 (c)(2)(A)]. This practical utility; NATIONAL COUNCIL OF DISABILITY program helps to ensure that requested • Evaluate the accuracy of the data can be provided in the desired agency’s estimate of the burden of the Sunshine Act Meetings format, reporting burden (time and proposed collection of information, financial resources) is minimized, including the validity of the TYPE: Quarterly Meeting. collection instruments are clearly methodology and assumptions used; DATES AND TIMES: April 16, 2007, 10 understood, and the impact of collection • Enhance the quality, utility, and a.m.–5 p.m. April 17, 2007, 9 a.m.–4 requirements on respondents can be clarity of the information to be p.m. properly assessed. collected; and LOCATION: Crowne Plaza Hotel Atlanta- Currently, the Mine Safety and Health • Minimize the burden of the Buckhead, 3377 Peachtree Road, NE., Administration (MSHA) is soliciting collection of information on those who Atlanta, Georgia. comments concerning the extension of are to respond, including through the the information collection related to the STATUS: April 16, 2007, 10 a.m.–5 use of appropriate automated, p.m.—Open. April 17, 2007, 9 a.m.–4 Sections 317(c) of the Federal Mine electronic, mechanical, or other Safety and Health Act of 1977 (Mine p.m.—Open. April 17, 2007, 4 p.m.–5 technological collection techniques or p.m.—Closed. Act), 30 U.S.C. 877(c), and 30 CFR other forms of information technology, AGENDA: 75.1702 which prohibits persons from e.g., permitting electronic submissions Public Comments; Livable smoking or carrying smoking materials of responses. Communities/Best Practices Panel underground or in places where there is A copy of the proposed information Presentation; Emergency Preparedness a fire or explosion hazard. Section collection request can be obtained by Panel Presentation; Reports from 75.1702–1 requires that the mine contacting the employee listed in the Council Members and the Acting Co- Executive Directors; Committee and operator submit the program plan to FOR FURTHER INFORMATION CONTACT Team Reports; Unfinished Business; MSHA for approval. section of this notice, or viewed on the New Business; Announcements; DATES: Submit comments on or before internet by accessing the MSHA home Adjournment. June 8, 2007. page (http://www.msha.gov/) and ADDRESSES: Send comments to, Debbie choosing ‘‘Rules and Regs’’, then SUNSHINE ACT MEETING CONTACT: Mark S. Ferraro, Management Services Division, choosing ‘‘Fed Reg Docs.’’ Quigley, Director of Communications, 1100 Wilson Boulevard, Room 2171, NCD, 1331 F Street, NW., Suite 850, Arlington, VA 22209–3939. Commenters III. Current Actions Washington, DC 20004; 202–272–2004 are encouraged to send their comments The mine operator uses the (voice), 202–272–2074 (TTY), 202–272– on computer disk, or via Internet e-mail information to conduct the program. 2022 (fax). to [email protected]. Ms. MSHA uses the information to AGENCY MISSION: NCD is an independent Ferraro can be reached at (202) 693– determine the mine operator’s Federal agency making 9821 (voice), or (202) 693–9801 compliance with the standard and that recommendations to the President and (facsimile). a program is developed and Congress to enhance the quality of life

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17591

for all Americans with disabilities and Exhibits to SBIC License Application Annual Burden: 166. their families. NCD is composed of 15 Management Assessment. Jacqueline White, members appointed by the President No’s: 2181, 2182, 2183. and confirmed by the U.S. Senate. Frequency: On Occasion. Chief, Administrative Information Branch. [FR Doc. E7–6641 Filed 4–6–07; 8:45 am] ACCOMMODATIONS: Those needing Description of Respondents: Small reasonable accommodations should Business Investment Companies. BILLING CODE 8025–01–P notify NCD immediately. Responses: 150. Annual Burden: 4,300. LANGUAGE TRANSLATION: In accordance SMALL BUSINESS ADMINISTRATION with E.O. 13166, Improving Access to Title: Microloan Program Electronic Services for Persons with Limited Reporting System (MPERS). [License No. 09/79–0398] English Proficiency, those people with No: N/A. disabilities who are limited English Frequency: On Occasion. Sorrento Growth Partners I, L.P.; proficient and seek translation services Description of Respondents: Notice Seeking Exemption Under for these meetings should notify NCD Microloan Program Intermediary Section 312 of the Small Business immediately. Lenders. Investment Act, Conflicts of Interest Responses: 2,500. Dated: April 5, 2007. Notice is hereby given that Sorrento Annual Burden: 625. Mark S. Quigley, Growth Partners I, L.P., 4370 La Jolla Acting Co-Executive Director. Jacqueline White, Village Drive, Suite 1040, San Diego, CA [FR Doc. 07–1751 Filed 4–5–07; 10:39 am] Chief, Administrative Information Branch. 92122, a Federal Licensee under the Small Business Investment Act of 1958, BILLING CODE 6820–MA–M [FR Doc. E7–6640 Filed 4–6–07; 8:45 am] as amended (‘‘the Act’’), in connection BILLING CODE 8025–01–P with the financing of a small concern, has sought an exemption under Section SMALL BUSINESS ADMINISTRATION SMALL BUSINESS ADMINISTRATION 312 of the Act and Section 107.730, Reporting and Recordkeeping Financings which Constitute Conflicts Requirements Under OMB Review Data Collection Available for Public of Interest of the Small Business Comments and Recommendations Administration (‘‘SBA’’) Rules and AGENCY: Small Business Administration. Regulations (13 CFR 107.730 (2006)). ACTION: Notice of reporting requirements ACTION: Notice and request for Sorrento Growth Partners I, L.P. submitted for OMB review. comments. provided debt financing to Perlan Therapeutics, Inc., 6310 Nancy Ridge SUMMARY: Under the provisions of the SUMMARY: In accordance with the Drive, Suite 102, San Diego, CA 92121. Paperwork Reduction Act (44 U.S.C. Paperwork Reduction Act of 1995, this The financing is contemplated for Chapter 35), agencies are required to notice announces the Small Business operating expenses and general submit proposed reporting and Administration’s intentions to request corporate purposes. recordkeeping requirements to OMB for approval on a new and/or currently The financing is brought within the review and approval, and to publish a approved information collection. purview of § 107.730(a)(1) of the notice in the Federal Register notifying DATES: Submit comments on or before Regulations because three Associates, the public that the agency has made June 8, 2007. Sorrento Ventures CE, L.P., Sorrento such a submission. ADDRESSES: Send all comments Ventures III, L.P. and Sorrento Ventures DATES: Submit comments on or before regarding whether this information IV, L.P., by way of common May 9, 2007. If you intend to comment collection is necessary for the proper management, collectively own more but cannot prepare comments promptly, performance of the function of the than ten percent of the Company. please advise the OMB Reviewer and agency, whether the burden estimates Therefore, Perlan Therapeutics, Inc. is the Agency Clearance Officer before the are accurate, and if there are ways to also considered an Associate of Sorrento deadline. minimize the estimated burden and Growth Partners I, L.P. as defined at 13 Copies: Request for clearance (OMB enhance the quality of the collection, to CFR 107.50 of the SBIC Regulations. 83–1), supporting statement, and other Michael Pappas, Associate Notice is hereby given that any documents submitted to OMB for Administrator, Office of Field interested person may submit written review may be obtained from the Operation, Small Business comments on the transaction to the Agency Clearance Officer. Administration, 409 3rd Street, SW., 8th Associate Administrator for Investment, ADDRESSES: Address all comments Floor, Washington, DC 20416. U.S. Small Business Administration, concerning this notice to: Agency FOR FURTHER INFORMATION CONTACT: 409 3rd Street, SW., Washington, DC Clearance Officer, Jacqueline White, Michael Pappas, Associate 20416. Small Business Administration, 409 3rd Administrator, Office of Field Jaime Guzmn-Fournier, Street, SW., 5th Floor, Washington, DC Operations 202–619–1727, Associate Administrator for Investment. 20416; and OMB Reviewer, Office of [email protected]; Curtis B. [FR Doc. E7–6638 Filed 4–6–07; 8:45 am] Information and Regulatory Affairs, Rich, Management Analyst, 202–205– BILLING CODE 8025–01–P Office of Management and Budget, New 7030, [email protected]. Executive Office Building, Washington, SUPPLEMENTARY INFORMATION: DC 20503. Title: ‘‘Lender Relationship SMALL BUSINESS ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Management’’. Jacqueline White, Agency Clearance Description of Respondents: Financial [Disaster Declaration #10821 and #10822] Officer, (202) 205–7044. Institutions eligible for the SBA 7(a) Alabama Disaster Number AL–00007 SUPPLEMENTARY INFORMATION: program (existing and potential). Title: SBIC Management Assessment Form No: N/A. AGENCY: U.S. Small Business Questionnaire & License Application Annual Responses: 500. Administration.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17592 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

ACTION: Amendment 2. EIDL Loan Application Deadline Date: Administrator’s disaster declaration, 12/03/2007. applications for disaster loans may be SUMMARY: This is an amendment of the ADDRESSES: Submit completed loan filed at the address listed above or other Presidential declaration of a major applications to: U.S. Small Business locally announced locations. disaster for the State of Alabama Administration, Processing And The following areas have been (FEMA–1687–DR), dated 03/03/2007. Disbursement Center, 14925 Kingsport determined to be adversely affected by Incident: Severe Storms and Road, Fort Worth, TX 76155. the disaster: Tornadoes. Primary Counties: Incident Period: 03/01/2007. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, Traverse EFFECTIVE DATE: 03/26/2007. U.S. Small Business Administration, Contiguous Counties: Minnesota Physical Loan Application Deadline 409 3rd Street, SW., Suite 6050, Big Stone, Grant, Stevens Date: 05/02/2007. Washington, DC 20416. Wilkin EIDL Loan Application Deadline Date: North Dakota 12/03/2007. SUPPLEMENTARY INFORMATION: The notice Richland of the Presidential disaster declaration ADDRESSES: Submit completed loan South Dakota applications to: U.S. Small Business for the State of Georgia, dated 03/03/ Roberts Administration, Processing and 2007 is hereby amended to include the The Interest Rates are: Disbursement Center, 14925 Kingsport following areas as adversely affected by Road, Fort Worth, TX 76155. the disaster: Primary Counties: FOR FURTHER INFORMATION CONTACT: A. Dougherty, Warren, Worth Percent Escobar, Office of Disaster Assistance, Contiguous Counties: Georgia U.S. Small Business Administration, Glascock, Handock, Taliaferro, Tift, Homeowners With Credit Avail- 409 3rd Street, SW., Suite 6050, Turner able Elsewhere ...... 5.750 Washington, DC 20416. Homeowners Without Credit All other information in the original SUPPLEMENTARY INFORMATION: The notice Available Elsewhere ...... 2.875 of the Presidential disaster declaration declaration remains unchanged. Businesses With Credit Available Elsewhere ...... 8.000 for the State of Alabama, dated 03/03/ (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Businesses & Small Agricultural 2007 is hereby amended to include the Cooperatives Without Credit following areas as adversely affected by Herbert L. Mitchell, Available Elsewhere ...... 4.000 the disaster: Associate Administrator for Disaster Other (Including Non-Profit Orga- Primary Counties: Assistance. nizations) With Credit Available Elsewhere ...... 5.250 Jefferson [FR Doc. E7–6629 Filed 4–6–07; 8:45 am] Businesses and Non-Profit Orga- Contiguous Counties: BILLING CODE 8025–01–P Alabama nizations Without Credit Avail- able Elsewhere ...... 4.000 Bibb, Blount, Saint Clair, Shelby, Tuscaloosa, Walker SMALL BUSINESS ADMINISTRATION The number assigned to this disaster All other information in the original [Disaster Declaration #10838 and #10839] for physical damage is 10838 6 and for declaration remains unchanged. economic injury is 10839 0. (Catalog of Federal Domestic Assistance Minnesota Disaster #MN–00007 The States which received an EIDL Numbers 59002 and 59008) Declaration # are: Minnesota, North AGENCY: U.S. Small Business Dakota, South Dakota. Herbert L. Mitchell, Administration. (Catalog of Federal Domestic Assistance Associate Administrator for Disaster ACTION: Notice. Assistance. Numbers 59002 and 59008) [FR Doc. E7–6630 Filed 4–6–07; 8:45 am] SUMMARY: This is a notice of an Dated: April 2, 2007. BILLING CODE 8025–01–P Administrative declaration of a disaster Steven C. Preston, for the State of MINNESOTA dated 04/ Administrator. 02/2007. [FR Doc. E7–6634 Filed 4–6–07; 8:45 am] SMALL BUSINESS ADMINISTRATION Incident: Severe Storms and Flooding. BILLING CODE 8025–01–P [Disaster Declaration #10819 and #10820] Incident Period: 03/14/2007. EFFECTIVE DATE: 04/02/2007. Georgia Disaster Number GA–00008 Physical Loan Application Deadline SMALL BUSINESS ADMINISTRATION Date: 06/01/2007. AGENCY: [Disaster Declaration # 10840 and # 10841] U.S. Small Business Economic Injury (EIDL) Loan Administration. Application Deadline Date: 01/02/2008. New Mexico Disaster # NM–00005 ACTION: Amendment 2. ADDRESSES: Submit completed loan AGENCY: applications to : U.S. Small Business U.S. Small Business SUMMARY: This is an amendment of the Administration. Presidential declaration of a major Administration, Processing and ACTION: Notice. disaster for the State of Georgia (FEMA– Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. 1686–DR), dated 03/03/2007. SUMMARY: This is a Notice of the Incident: Severe Storms and FOR FURTHER INFORMATION CONTACT: A. Presidential declaration of a major Tornadoes. Escobar, Office of Disaster Assistance, disaster for the State of New Mexico Incident Period: 03/01/2007 through U.S. Small Business Administration, ( FEMA–1690–DR), dated 04/02/2007. 03/02/2007. 409 3rd Street, SW., Suite 6050, Incident: Severe Storms and EFFECTIVE DATE: 03/24/2007. Washington, DC 20416. Tornadoes. Physical Loan Application Deadline SUPPLEMENTARY INFORMATION: Notice is Incident Period: 03/23/2007 through Date: 05/02/2007. hereby given that as a result of the 03/24/2007.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17593

EFFECTIVE DATE: 04/02/2007. SMALL BUSINESS ADMINISTRATION Brazil in December. No dates have been Physical Loan Application Deadline set for future meetings, but the views of Date: 06/01/2007. Public Federal Regulatory participating states have been requested. Economic Injury (EIDL) Loan Enforcement Fairness Hearing; Region The Department of State Advisory Application Deadline Date: 01/02/2008. III Regulatory Fairness Board Committee on Private International Law (ACPIL) will hold a public meeting to ADDRESSES: Submit completed loan The U.S. Small Business continue reviewing the results of the applications to: U.S. Small Business Administration (SBA) Region III Porto Alegre meeting and the views on Administration, Processing and Regulatory Fairness Board and the SBA the three proposals with regard to Disbursement Center, 14925 Kingsport Office of the National Ombudsman will consumer protection, that were begun at Road, Fort Worth, TX 76155. hold a National Regulatory Fairness the March 22, 2007 meeting. FOR FURTHER INFORMATION CONTACT: A. Hearing on Tuesday, April 17, 2007, at Time: The public meeting will take Escobar, Office of Disaster Assistance, 10 a.m. The forum will take place at the place at the Federal Trade Commission, U.S. Small Business Administration, U.S. Courthouse, Ceremonial Court 600 Pennsylvania Ave., NW., Room H– 409 3rd Street, SW., Suite 6050, Room, 601 Market Street (Entrance on 481, Washington, DC on April 24, 2007 Washington, DC 20416. 6th Street), Philadelphia, PA 19106– from 10 a.m. EST to 12 p.m. EST. If you 1797. The purpose of the meeting is for are unable to attend the public meeting SUPPLEMENTARY INFORMATION: Notice is Business Organizations, Trade hereby given that as a result of the and you would like to participate by Associations, Chambers of Commerce teleconferencing, please contact Trisha President’s major disaster declaration on and related organizations serving small 04/02/2007, applications for disaster Smeltzer to receive the conference call business concerns to report experiences number and the relevant materials (the loans may be filed at the address listed regarding unfair or excessive Federal above or other locally announced Brazilian proposal for a treaty on choice regulatory enforcement issues affecting of law, the Canadian proposal for a locations. their members. The following areas have been model law on jurisdiction and choice of Anyone wishing to attend or to make law, and the U.S. proposal for a model determined to be adversely affected by a presentation must contact Joe the disaster: law on the availability of consumer McDevitt, in writing or by fax in order dispute resolution and redress). Primary Counties (Physical Damage and to be placed on the agenda. Joe Public Participation: Advisory Economic Injury Loans): McDevitt, Chief Entrepreneurial Committee Study Group meetings are Curry, Quay. Development, SBA, Philadelphia open to the public. Persons wishing to Contiguous Counties (Economic Injury District Office, 900 Market Street, 5th attend should contact Trisha Smeltzer at Loans Only): New Mexico: Floor, Philadelphia, PA 19107, phone [email protected] or at 202–776– De Baca, Guadalupe, Harding, (215) 580–2706 and fax (202) 481–2724, 8423 and provide your name, e-mail Roosevelt, San Miguel, Union. e-mail: [email protected]. address, and affiliation(s). Additional For more information, see our Web Texas: meeting information can also be site at www.sba.gov/ombudsman. Bailey, Deaf Smith, Hartley, Oldham, obtained from Ms. Smeltzer. Persons Parmer. Matthew Teague, who cannot attend but who wish to The Interest Rates are: Committee Management Officer. comment on any of the proposals are [FR Doc. E7–6631 Filed 4–6–07; 8:45 am] welcome to do so by e-mail to Michael Dennis at [email protected]. Percent BILLING CODE 8025–01–P Dated: April 2, 2007. For Physical Damage: Michael Dennis, Homeowners With Credit Avail- able Elsewhere: ...... 5.750 DEPARTMENT OF STATE Attorney-Adviser, Office of the Legal Advisor, Office of Private International Law, Homeowners Without Credit [Public Notice 5749] Available Elsewhere: ...... 2.875 Department of State. Businesses With Credit Available U.S. Department of State Advisory [FR Doc. E7–6625 Filed 4–6–07; 8:45 am] Elsewhere: ...... 8.000 Committee on Private International BILLING CODE 4710–08–P Other (Including Non-Profit Orga- nizations) With Credit Available Law: Study Group on Consumer Protection Elsewhere: ...... 5.250 DEPARTMENT OF TRANSPORTATION Businesses And Non-Profit Orga- One of the goals of the Organization nizations Without Credit Avail- Federal Aviation Administration able Elsewhere: ...... 4.000 of American States is to harmonize private international law through Inter- For Economic Injury: Notice of Availability of Draft Advisory Businesses & Small Agricultural American Specialized Conferences on Cooperatives Without Credit Private International Law (CIDIP). The Circulars, Other Policy Documents and Available Elsewhere: ...... 4.000 OAS has hosted these conferences every Proposed Technical Standard Orders four to six years. Currently states are AGENCY: Federal Aviation The number assigned to this disaster drafting instruments for ‘‘CIDIP–VII,’’ Administration (FAA), DOT. for physical damage is 10840C and for which will focus inter alia on consumer ACTION: This is a recurring Notice of economic injury is 108410. protection. States are currently Availability, and request for comments, (Catalog of Federal Domestic Assistance reviewing a draft Brazilian treaty on on draft advisory circulars (ACs), other Numbers 59002 and 59008) choice of law, a Canadian draft model policy documents, and proposed law on choice of law and jurisdiction, Herbert L. Mitchell, technical standard orders (TSOs) and a U.S. proposal for a model law on currently offered by Aviation Safety. Associate Administrator for Disaster the availability of consumer dispute Assistance. resolution and redress. OAS member SUMMARY: The FAA’s Aviation Safety, [FR Doc. E7–6639 Filed 4–6–07; 8:45 am] states discussed the three proposals at an organization responsible for the BILLING CODE 8025–01–P an initial meeting held in Porto Alegre, certification, production approval, and

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17594 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

continued airworthiness of aircraft, and on documents produced by Aviation improvement options on SE Harmony certification of pilots, mechanics, and Safety will appear again in 30 days. Road and intersections at SE Railroad others in safety related positions, Issued in Washington, DC, on April 2, Avenue/SE Linwood Avenue and SE publishes proposed non-regulatory 2007. Lake Road/SE International Way. In documents that are available for public Frank Paskiewicz, addition, the project study will consider comment on the Internet at http:// alignment options for the extension of _ Manager, Production and Airworthiness www.faa.gov/aircraft/draft docs/. Division, Aircraft Certification Service. SE Sunnybrook Boulevard west of SE DATES: We must received comments on [FR Doc. 07–1719 Filed 4–6–07; 8:45 am] 82nd Avenue and its western terminus. A significant project consideration is or before the due date for each BILLING CODE 4910–13–M document as specified on the Web site. grade separation of the road and the Union Pacific rail line at the Harmony ADDRESSES: Send comments on DEPARTMENT OF TRANSPORTATION Road/Linwood Avenue/Railroad proposed documents to the Federal Avenue intersection. Aviation Administration at the address Federal Highway Administration Improvements to the corridor are specified on the Web site for the considered necessary to enhance safety document being commented on, to the Environmental Impact Statement: and to reduce congestion associated attention of the individual and office Clackamas County, Oregon with existing and projected traffic identified as point of contact for the demand. Levels of service at AGENCY: Federal Highway document. intersections in the area are currently Administration, Oregon Department of failing and are anticipated to worsen FOR FURTHER INFORMATION CONTACT: See Transportation, and Clackamas County, without improvements. By 2030, the the individual or FAA office identified Oregon. on the Web site for the specified number of households in the study area ACTION: Notice of intent. document. is expected to increase by 24 percent and the number of jobs by 43 percent. SUPPLEMENTARY INFORMATION: Final SUMMARY: The Federal Highway Administration (FHWA) is issuing this Growth is anticipated in association advisory circulars, other policy with planned development in and documents, and technical standard notice of intent to advise agencies and the public that an Environmental Impact around the extension of regional light- orders (TSOs) are available on FAA’s rail service to the Clackamas Regional Web site, including final documents Statement (EIS) will be prepared to assess the impacts of a proposed Center, which encompasses the published by the Aircraft Certification Harmony Road corridor and is adopted Service on FAA’s Regulatory and transportation project on Harmony Road in Clackamas County, Oregon. in the Metro 2040 Growth Concept. Guidance Library (RGL) at http:// The at-grade railroad mainline that DATES: A public scoping meeting will be rgl.faa.gov/. crosses on the southwest side of the held on Wednesday, May 9, 2007 at the Harmony Road/Linwood Avenue/ Comments Invited Sunnybrook Service Center Auditorium, Railroad Avenue intersection is part of 9101 SE., Sunnybrook Blvd., Clackamas, When commenting on draft ACs, the future high-speed rail corridor OR 97015. The public scoping meeting other policy documents or proposed between Eugene, OR and Vancouver, will include an open house from 4 p.m. TSOs, you should identify the BC. Operation of high-speed passenger to 7 p.m. and informational document by its number. The Aviation trains along this corridor mandates presentations at 4:30, 5, 5:30, 6, and Safety organizations, will consider all grade separation of the rail line and the 6:30 p.m. The informational comments received on or before the roadway for safety and operational presentation will be followed by a closing date before issuing a final purposes. Currently, there are question and answer period. An agency document. You can obtain a paper copy approximately 6 passenger trains and 24 scoping meeting will be held on May 10, of the draft document or proposed TSO freight trains crossing at this location 2007 at the Oregon Department of by contacting the individual or FAA each day, resulting in an average daily office responsible for the document as Transportation, 123 NW Flanders, Room gate activation time of 150 minutes. identified on the Web site. You will find 344, Portland, OR 97209. The agency These train crossings further burden the the draft ACs, other policy documents scoping meeting will be from 2:30 P.M. Harmony Road corridor with traffic and proposed TSOs on the ‘‘Aviation to 4:30 P.M. delay. Safety Draft Documents Open for FOR FURTHER INFORMATION CONTACT: Jeff The EIS will identify transportation Comment’’ Web site at http:// Graham, P.E., Operations Engineer, needs and deficiencies in the project www.faa.gov/aircraft/draft_docs/. For Federal Highway Administration, 530 study area, including mobility, access, Internet retrieval assistance, contact the Center Street NE., Suite 100, Salem, OR system linkages and continuity, and AIR Internet Content Program Manager 97301, Telephone: (503) 587–4727 or safety. The range of evaluated at 202–267–8361. Ron Weinman, Principal Transportation transportation alternatives in the EIS Planner, Clackamas County, 9101 SE., will be developed to meet the identified Background Sunnybrook Blvd., Clackamas, OR project purpose and need. Potential We do not publish an individual 97015, Telephone: (503) 353–4533. alternatives and combinations thereof Federal Register Notice for each SUPPLEMENTARY INFORMATION: The may include but are not limited to: (1) document we make available for public FHWA, in cooperation with the Oregon Taking no action; (2) adding capacity to comment. On the Web site, you may Department of Transportation (ODOT), existing roadways; (3) extending subscribe to our service for e-mail and Clackamas County Department of Sunnybrook Boulevard to the west of SE notification when new draft documents Transportation and Development, will 82nd Avenue and determining its are made available. Persons wishing to prepare an EIS on a proposal to improve alignment and terminus; (4) redesigning comment on our draft ACs, other policy the transportation system in the SE intersections along Harmony Road at documents and proposed TSOs can find Harmony Road corridor, from SE 82th Linwood Avenue/Railroad Avenue and them by using the FAA’s Internet Avenue to State Highway 224 Lake Road/International Way; (5) grade address listed above. This notice of (approximately 1.5 miles). The project separating the road from the railroad availability and request for comments will consider alignment and crossing at the Harmony Road/Linwood

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17595

Avenue/Railroad Avenue intersection; DEPARTMENT OF TRANSPORTATION Columbia. This information is collected and (6) improving pedestrian and from State departments of transportation bicycle facilities. Design variations of Federal Highway Administration pursuant to 23 CFR 420.105 and is 1 potential alternatives will also be [FHWA Docket No. FHWA–05–22706] published in Highway Statistics. studied, as appropriate. The information in Highway Statistics The EIS will be initiated with a Motor Vehicle Registration and plays a key role in the development of scoping process. The scoping process Licensed Driver Information Federal highway legislation. The will include a program of public AGENCY: information is used in preparing outreach and agency coordination Federal Highway Administration (FHWA), DOT. legislatively required reports to conducted over the next several months Congress, in evaluating highway safety ACTION: Notice. in order to elicit input on project programs, and, in general, as an aid to purpose and need, potential SUMMARY: On January 6, 2006, the highway planning, programming, alternatives, significant and FHWA published a notice in the budgeting, forecasting, and fiscal insignificant issues, and collaborative Federal Register at 71 FR 969 to solicit management. This information is also methods of analyzing transportation public comments on the quality, used extensively in the evaluation of alternatives and environmental impacts. timeliness, comprehensiveness, and Federal, State, and local highway In total, the public outreach program other characteristics of data collected on programs. In recent years, FHWA has will include multiple public meetings motor vehicle registration and licensed implemented several reassessment conducted by Clackamas County as well driver information. Based on public efforts to assure that Highway Statistics as coordination with two stakeholder comments received, the FHWA has data remains up-to-date and relevant for committees—one committee comprised determined to make a change to the current purposes. of community and technical driver’s license data definition for On January 6, 2006, the FHWA representatives and the other committee teenage drivers, to eliminate the published a notice in the Federal comprised of policy level collection of information on disqualified Register at 71 FR 969 to solicit public representatives. A public hearing will be commercial drivers licenses, and to comments on the quality, timeliness, held in connection with the release of develop enhanced software to receive comprehensiveness, and other the draft EIS. Public notice will be given and process motor vehicle registration characteristics of the driver license data. regarding the time and place of the and licensed driver data more Based on the public comments received, public meetings and hearing. efficiently. the FHWA has determined to make a An Internet Web site (http:// FOR FURTHER INFORMATION CONTACT: Mr. change to the data definition of teenage www.harmonyroadea.org) and other Ralph Erickson, Office of Highway driver to reflect more accurately the communication media will be utilized Policy Information, (202) 366–9235, or actual number of teens driving, to throughout the process to provide Mr. Wilbert Baccus, Office of Chief eliminate the collection of information public information and to receive Counsel, (202) 366–1396, Federal on disqualified commercial drivers comments. All comments and input Highway Administration, 400 Seventh licenses, and to update the software received during the EIS process will be Street, SW., Washington, DC 20590. used to collect the motor vehicle considered and documented. Office hours are from 7:45 a.m. to 4:15 registration and licensed driver The FHWA, ODOT, and Clackamas p.m., ET, Monday through Friday, information from the States. County Department of Transportation except Federal holidays. and Development will evaluate Actions Taken to Date SUPPLEMENTARY INFORMATION: Electronic significant transportation, Access and Filing: Internet users may Teenage Drivers environmental, social, and economic access this document, the initial notice, impacts of the project alternatives. and all comments received by the U.S. In the past, FHWA’s definition of a Potential areas of impact include: DOT Docket Facility by using the licensed driver has been ‘‘[a] person that Neighborhoods, Section 4(f) resources, Universal Resource Locator (URL) can drive inclusively between the hours environmental justice, and natural http://dms.dot.gov. It is available 24 of 5 a.m. and Midnight without another resources. All impacts will be evaluated hours each day, 365 days each year. licensed driver in the vehicle.’’ for both the construction period and Electronic submission and retrieval help However, State drivers license laws long-term period of operation. Measures and guidelines are available under the have changed significantly in recent to avoid, minimize and mitigate any help section of the Web site. years, especially in the area of teenage significant adverse impacts will be An electronic copy of this document drivers. Now, all 50 States and the developed. may also be downloaded by accessing District of Columbia have some form of Comments and suggestions are invited the Office of the Federal Register’s home graduated licensing for teenage drivers. from all interested parties, to ensure that page at http://www.archives.gov and Some States prohibit teens from driving the full range of issues related to this from the Government Printing Office’s unless accompanied by a supervisory project are addressed and all significant Web page at http://www.gpoaccess.gov/ driver. Other States prohibit teens from issues are identified. Comments or nara. driving during certain hours of the day. questions regarding the proposed action Background: The FHWA collects and And still other States may allow and the EIS should be directed to the publishes motor vehicle registration and nighttime teenage driving, but only with FHWA or Clackamas County at the licensed driver information obtained adult supervision. A full definition of address provided above. from the States and the District of Graduated Driver’s License can be found (Authority: 23 U.S.C. 315) in Section 1313.5(d) in the following 1 National Highway Traffic Safety Dated: April 2, 2007. Highway Statistics is an annual report containing analyzed data on motor fuel, motor Administration URL: http:// Jeff Graham, vehicles, driver licensing, highway user taxation, www.nhtsa.dot.gov/nhtsa/whatsup/ Operations Engineer, FHWA Oregon Division. State and local highway finance, highway mileage, tea21/GrantMan/HTML/ and other selected data. This report has been _ _ [FR Doc. E7–6580 Filed 4–6–07; 8:45 am] published each year since 1945. It is available at the 24b Sec410T21Reg 23CFR1313.html. BILLING CODE 4910–22–P following URL: http://www.fhwa.dot.gov/ohpi/hss. As such, the past FHWA data definition

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17596 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

is very narrow in view of recent State the number of Commercial Driver’s revised form templates will be released law changes on teen-age drivers. Licenses disqualified—is no longer and distributed to the States mid-2007, The Office of Highway Policy necessary. FHWA collected this data for allowing sufficient time for the FHWA Information disseminated a the Federal Motor Carrier Safety to train States in preparation for the memorandum to FHWA Division Administration, but now that 2008 release of Highway Statistics— Offices on September 6, 2006, revising organization collects this data in its 2007. The FHWA notes that any its instructions for Form–562 State business procedures. Hence, it is revisions to the software will result in Driver License and Fees, with redundant for FHWA to also collect the template and format changes only, and instructions to forward the material to data. with the exception of the elimination of the State data providers. The revised page four of the FHWA Form 562, will Data Quality instructions will also be incorporated not change the type or quantity of data into Chapter 4 of A Guide to Reporting The FHWA received many comments collected. Revision of the forms will Highway Statistics (Guide). Since this regarding overall data quality. FHWA is involve some additional paperwork change does not create an additional addressing this concern through burden on the data providers in burden for data collection under the improved software to significantly transition to the new forms and learning Paperwork Reduction Act requirements, reduce reporting inconsistencies. Under how the new forms function, but will the Office of Highway Policy the mandates of E-Government also reduce the paperwork burden over Information will revise the Guide within initiatives, the FHWA is developing time as the automated forms will take 3 months of publication of this notice. enhanced software to receive and less time to complete. A discussion of This revised definition is intended to be process motor vehicle registration and the requirements of the Paperwork more detailed in the types of licenses licensed driver data more efficiently. Reduction Act follows. teen-aged drivers obtain. The new The questions asked will remain the definition reads: Teenage Graduated same, but the software used to collect Paperwork Reduction Act Drivers Licenses: Graduated licenses are the information will ease data submittal Under the Paperwork Reduction Act defined as driver licenses that have and will result in more accurate of 1995 (PRA) (44 U.S.C. 3501, et seq.), some restriction placed on the driver to reporting. This enhanced software, once Federal agencies must obtain approval provide basic driving experience under developed, will enable State data from the Office of Management and optimal conditions or under the providers to take advantage of more Budget (OMB) for each collection of supervision of more experienced advanced submittal and editing features information they conduct, sponsor, or drivers, but restrict driving in certain that can significantly reduce reporting require through regulations. The FHWA less than optimal conditions, such as time and errors. has determined that this proposal driving at night. With respect to enhanced software, contains collection of information The new definition is effective for FHWA is in the process of making requirements for the purposes of the Highway Statistics—2006. Thus, when software improvements to the features PRA. preparing Form FHWA–562 (State in the following form templates: Drivers Licenses and Fees), data • FHWA Form 561—State Motor In March 2006, The Office of providers should use the new definition Vehicle Registrations, Registration Fees Management and Budget approved for the State’s 2006 data, either fiscal and Miscellaneous Receipts; FHWA’s Paperwork Reduction Act year or calendar year. The revised data • FHWA Form 562—State Driver Submission (OMB Control Number definition is not a new data Licenses and Fees; 2125–0032), extending FHWA’s requirement; it is a re-definition of • FHWA Form 566—State Motor authority to collect this data for an already required data. Vehicle Registration and Other Receipts; additional 3 years (until March 2009). • FHWA Form 571—Receipts from The overall annual burden of collecting Disqualified Commercial Drivers State Taxation of Motor Vehicles driver’s license and motor vehicle Licenses Operated for Hire and Other Motor registration data from the States is In addition, FHWA has determined Carriers. estimated to be 4,182 hours. See below that the data collected on page four of The FHWA anticipates that the for the breakout of the estimated burden the FHWA Form 562—data concerning enhanced software containing these hours by Form:

Total FHWA form Collection period hours Assumptions

FHWA–561 ...... Annual ...... 1,632 32 Hours/50StatesDC/Year. FHWA–562 ...... Annual ...... 714 14.0 Hours/50StatesDC/Year. FHWA–566 ...... Annual ...... 1,224 24 Hours/50StatesDC/Year. FHWA–571 ...... Annual ...... 612 12 Hours/50StatesDC/Year.

Total ...... 4,182

The FHWA is required to periodically information is necessary for the burden without reducing the quality of submit this proposed collection of performance of the functions of the the information collected. information to OMB for review and FHWA, including whether the Issued on: March 30, 2007. approval and, accordingly, seeks public information has practical utility; (2) the J. Richard Capka, comments. Interested parties are invited accuracy of the estimated burden; (3) to send comments regarding any aspect ways to enhance the quality, utility, and Federal Highway Administrator. of these information collection clarity of the collection of information; [FR Doc. E7–6531 Filed 4–6–07; 8:45 am] requirements, including, but not limited and (4) ways to minimize the collection BILLING CODE 4910–22–P to: (1) Whether the collection of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17597

DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: 388 (68 FR 23084; April 30, 2003), that Joann Spittle, U.S. Department of the issuance of the waiver will have an Maritime Administration Transportation, Maritime unduly adverse effect on a U.S.-vessel [Docket No. MARAD–2007–27794] Administration, MAR–830 Room 7201, builder or a business that uses U.S.-flag 400 Seventh Street, SW., Washington, vessels in that business, a waiver will Requested Administrative Waiver of DC 20590. Telephone 202–366–5979. not be granted. Comments should refer the Coastwise Trade Laws SUPPLEMENTARY INFORMATION: As to the docket number of this notice and described by the applicant the intended AGENCY: Maritime Administration, the vessel name in order for MARAD to Department of Transportation. service of the vessel JO is: properly consider the comments. Intended Use: ‘‘fewer than 6 Comments should also state the ACTION: Invitation for public comments passengers for hire’’. commenter’s interest in the waiver on a requested administrative waiver of Geographic Region: Washington State. the Coastwise Trade Laws for the vessel application, and address the waiver JO. Privacy Act criteria given in § 388.4 of MARAD’s regulations at 46 CFR Part 388. SUMMARY: As authorized by Pub. L. 105– Anyone is able to search the 383 and Pub. L. 107–295, the Secretary electronic form of all comments DATES: Submit comments on or before of Transportation, as represented by the received into any of our dockets by the May 9, 2007. name of the individual submitting the Maritime Administration (MARAD), is ADDRESSES: Comments should refer to comment (or signing the comment, if authorized to grant waivers of the U.S.- docket number MARAD–2007–27796. submitted on behalf of an association, build requirement of the coastwise laws Written comments may be submitted by business, labor union, etc.). You may under certain circumstances. A request hand or by mail to the Docket Clerk, review DOT’s complete Privacy Act for such a waiver has been received by U.S. DOT Dockets, Room PL–401, Statement in the Federal Register MARAD. The vessel, and a brief Department of Transportation, 400 7th description of the proposed service, is published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78) or you St., SW., Washington, DC 20590–0001. listed below. The complete application You may also send comments is given in DOT docket MARAD–2007– may visit http://dms.dot.gov. electronically via the Internet at http:// 27794 at http://dms.dot.gov. Interested Dated: April 3, 2007. dmses.dot.gov/submit/. All comments parties may comment on the effect this By order of the Maritime Administrator. will become part of this docket and will action may have on U.S. vessel builders Daron T. Threet, or businesses in the U.S. that use U.S.- be available for inspection and copying Secretary, Maritime Administration. flag vessels. If MARAD determines, in at the above address between 10 a.m. accordance with Pub. L. 105–383 and [FR Doc. E7–6547 Filed 4–6–07; 8:45 am] and 5 p.m., E.T., Monday through MARAD’s regulations at 46 CFR Part BILLING CODE 4910–81–P Friday, except federal holidays. An 388 (68 FR 23084; April 30, 2003), that electronic version of this document and the issuance of the waiver will have an all documents entered into this docket DEPARTMENT OF TRANSPORTATION unduly adverse effect on a U.S.-vessel is available on the World Wide Web at builder or a business that uses U.S.-flag Maritime Administration http://dms.dot.gov. vessels in that business, a waiver will FOR FURTHER INFORMATION CONTACT: not be granted. Comments should refer [Docket No. MARAD–2007–27796] Joann Spittle, U.S. Department of to the docket number of this notice and Transportation, Maritime the vessel name in order for MARAD to Requested Administrative Waiver of Administration, MAR–830 Room 7201, properly consider the comments. the Coastwise Trade Laws Comments should also state the 400 Seventh Street, SW., Washington, AGENCY: Maritime Administration, DC 20590. Telephone 202–366–5979. commenter’s interest in the waiver Department of Transportation. application, and address the waiver ACTION: Invitation for public comments SUPPLEMENTARY INFORMATION: As criteria given in § 388.4 of MARAD’s on a requested administrative waiver of described by the applicant the intended regulations at 46 CFR Part 388. the Coastwise Trade Laws for the vessel service of the vessel GENESIS is: DATES: Submit comments on or before GENESIS. Intended Use: ‘‘Passenger transport, May 9, 2007. Scuba diving charter.’’ Geographic ADDRESSES: Comments should refer to SUMMARY: As authorized by Pub. L. 105– Region: Coastal and Inland waters of FL, docket number MARAD–2007–27794. 383 and Pub. L. 107–295, the Secretary GA, SC, NC, VA, MD, NJ, DE, NY, MA, Written comments may be submitted by of Transportation, as represented by the CT, RI, ME, AL, MS, LA, TX. hand or by mail to the Docket Clerk, Maritime Administration (MARAD), is U.S. DOT Dockets, Room PL–401, authorized to grant waivers of the U.S.- Privacy Act Department of Transportation, 400 7th build requirement of the coastwise laws Anyone is able to search the St., SW., Washington, DC 20590–0001. under certain circumstances. A request electronic form of all comments You may also send comments for such a waiver has been received by received into any of our dockets by the electronically via the Internet at http:// MARAD. The vessel, and a brief name of the individual submitting the dmses.dot.gov/submit/. All comments description of the proposed service, is comment (or signing the comment, if will become part of this docket and will listed below. The complete application submitted on behalf of an association, be available for inspection and copying is given in DOT docket MARAD–2007– business, labor union, etc.). You may at the above address between 10 a.m. 27796 at http://dms.dot.gov. Interested review DOT’s complete Privacy Act and 5 p.m., E.T., Monday through parties may comment on the effect this Friday, except federal holidays. An action may have on U.S. vessel builders Statement in the Federal Register electronic version of this document and or businesses in the U.S. that use U.S.- published on April 11, 2000 (Volume all documents entered into this docket flag vessels. If MARAD determines, in 65, Number 70; Pages 19477–78) or you is available on the World Wide Web at accordance with Pub. L. 105–383 and may visit http://dms.dot.gov. http://dms.dot.gov. MARAD’s regulations at 46 CFR Part Dated: April 3, 2007.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17598 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

By order of the Maritime Administrator. be available for inspection and copying reinstatement of previously approved Daron T. Threet, at the above address between 10 a.m. collections. Secretary, Maritime Administration. and 5 p.m., E.T., Monday through This document proposes to [FR Doc. E7–6546 Filed 4–6–07; 8:45 am] Friday, except federal holidays. An consolidate four existing collections of BILLING CODE 4910–81–P electronic version of this document and information into two collections, and all documents entered into this docket seeks comments accordingly. The first is available on the World Wide Web at information collection proposes DEPARTMENT OF TRANSPORTATION http://dms.dot.gov. consolidatation of OMB control FOR FURTHER INFORMATION CONTACT: numbers 2127–0511, ‘‘49 CFR 571.213, Maritime Administration Joann Spittle, U.S. Department of Child Restraint Systems,’’ and 2127– 0576, ‘‘Child Safety Seat Registration,’’ [Docket No. MARAD–2007–27795] Transportation, Maritime Administration, MAR–830 Room 7201, into a new one. Thus, all child restraint Requested Administrative Waiver of 400 Seventh Street, SW., Washington, labeling and registration requirements the Coastwise Trade Laws DC 20590. Telephone 202–366–5979. would be included in one information SUPPLEMENTARY INFORMATION: As collection entitled ‘‘Consolidated Child AGENCY: Maritime Administration, described by the applicant the intended Restraint System Registration, Labeling Department of Transportation. service of the vessel PROSIT is: and Defect Notifications’’ (OMB Control ACTION: Invitation for public comments Intended Use: ‘‘sailing school, Number: 2127–0576). on a requested administrative waiver of charter’’. The second information collection the Coastwise Trade Laws for the vessel Geographic Region: Washington and proposes to merge the existing OMB PROSIT. Alaska (excluding Southeast Alaska). control number 2127–0038, ‘‘49 CFR 571.205, Glazing Materials,’’ into 2127– SUMMARY: As authorized by Pub. L. 105– Privacy Act 0512, ‘‘Consolidated Labeling 383 and Pub. L. 107–295, the Secretary Anyone is able to search the Requirements for Motor Vehicles of Transportation, as represented by the electronic form of all comments (except the VIN).’’ Maritime Administration (MARAD), is received into any of our dockets by the DATES: You should submit your authorized to grant waivers of the U.S.- name of the individual submitting the comments early enough to ensure that build requirement of the coastwise laws comment (or signing the comment, if Docket Management receives them no under certain circumstances. A request submitted on behalf of an association, later than June 8, 2007. for such a waiver has been received by business, labor union, etc.). You may ADDRESSES: You may submit comments MARAD. The vessel, and a brief review DOT’s complete Privacy Act [identified by DOT DMS Docket Number description of the proposed service, is Statement in the Federal Register NHTSA–2007–27802] by any of the listed below. The complete application published on April 11, 2000 (Volume following methods: is given in DOT docket MARAD–2007– 65, Number 70; Pages 19477–78) or you • Web site:http://dms.dot.gov. Follow 27795 at http://dms.dot.gov. Interested may visit http://dms.dot.gov. the instructions for submitting parties may comment on the effect this comments on the DOT electronic docket action may have on U.S. vessel builders Dated: April 3, 2007. site. or businesses in the U.S. that use U.S.- By order of the Maritime Administrator. • Fax: 1–202–493–2251. flag vessels. If MARAD determines, in Daron T. Threet, • Mail: Docket Management Facility; accordance with Pub. L. 105–383 and Secretary, Maritime Administration. U.S. Department of Transportation, 400 MARAD’s regulations at 46 CFR Part [FR Doc. E7–6548 Filed 4–6–07; 8:45 am] Seventh Street, SW., Nassif Building, 388 (68 FR 23084; April 30, 2003), that BILLING CODE 4910–81–P Room PL–401, Washington, DC 20590– the issuance of the waiver will have an 0003. unduly adverse effect on a U.S.-vessel • DEPARTMENT OF TRANSPORTATION Hand Delivery: Room PL–401 on builder or a business that uses U.S.-flag the plaza level of the Nassif Building, vessels in that business, a waiver will 400 Seventh Street, SW., Washington, not be granted. Comments should refer National Highway Traffic Safety Administration DC, between 9 a.m. and 5 p.m., Monday to the docket number of this notice and through Friday, except Federal holidays. the vessel name in order for MARAD to [Docket No. NHTSA–2007–27802] • Federal eRulemaking Portal: Go to properly consider the comments. http://www.regulations.gov. Follow the Reports, Forms, and Recordkeeping Comments should also state the online instructions for submitting Requirements commenter’s interest in the waiver comments. application, and address the waiver AGENCY: National Highway Traffic Instructions: All submissions must criteria given in § 388.4 of MARAD’s Safety Administration, Department of include the agency name and docket regulations at 46 CFR Part 388. Transportation (NHTSA). number for this collection. It is DATES: Submit comments on or before ACTION: Request for public comment on requested, but not required, that two May 9, 2007. proposed collection of information. copies of the comments be provided. ADDRESSES: Comments should refer to Note that all comments received will be docket number MARAD–2007–27795. SUMMARY: Before a Federal agency can posted without change to http:// Written comments may be submitted by collect certain information from the dms.dot.gov, including any personal hand or by mail to the Docket Clerk, public, it must receive approval from information provided. Please see the U.S. DOT Dockets, Room PL–401, the Office of Management and Budget Privacy Act heading under Regulatory Department of Transportation, 400 7th (OMB). Under procedures established Notices. St., SW., Washington, DC 20590–0001. by the Paperwork Reduction Act of Docket: For access to the docket to You may also send comments 1995, before seeking OMB approval, read background documents or electronically via the Internet at http:// Federal agencies must solicit public comments received, go to http:// dmses.dot.gov/submit/. All comments comment on proposed collections of dms.dot.gov at any time or to Room PL– will become part of this docket and will information, including extensions and 401 on the plaza level of the Nassif

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17599

Building, 400 Seventh Street, SW., Affected Public: Business, Individuals owner’s request, NHTSA provides a Washington, DC, between 9 a.m. and 5 and Households. substitute registration form that can be p.m., Monday through Friday, except Summary of the Collection of obtained either by mail or from the Federal holidays. Information: This action consolidates Internet 1 (see Figure 3). When the FOR FURTHER INFORMATION CONTACT: two existing collections of information. completed registration is returned to the Complete copies of each request for In the previous collections of agency, it is then submitted to the CRS collection of information may be information: (1) A collection was manufacturers. In the absence of a obtained at no charge from Mr. Maurice established to require manufacturers to substitute registration system, many Hicks, NHTSA, 400 Seventh Street, SW., provide owner registration cards and to owners of child passenger safety seats, Room 5320, NVS–113, Washington, DC label each child restraint system (CRS) especially any second-hand owners, 20590. with a message informing users of the might not be notified of safety defects Mr. Hicks’ telephone number is (202) importance of registering the device and noncompliances, and would not 366–6345. Please identify the relevant with the manufacturer, and (2) another have the defects and noncompliances collection of information by referring to collection was issued to allow NHTSA remedied. its OMB Control Number. to implement a registration program to Child seat owner registration send CRS owners a substitute SUPPLEMENTARY INFORMATION: information is retained in the event that Under the registration form if owners had lost the Paperwork Reduction Act of 1995, owners need to be contacted for defect registration card. Furthermore, in the recalls or replacement campaigns. before an agency submits a proposed second collection, it was also required collection of information to OMB for Chapter 301 of title 49 of the United that if either NHTSA or a manufacturer States Code specifies that if either approval, it must first publish a determines that a CRS contains a defect document in the Federal Register NHTSA or a manufacturer determines that relates to motor vehicle safety or that motor vehicles or items of motor providing a 60-day comment period and fails to comply with an applicable otherwise consult with members of the vehicle equipment contain a defect that Federal Motor Vehicle Safety Standard, relates to motor vehicle safety or fail to public and affected agencies concerning pursuant to Chapter 301 of title 49 of the each proposed collection of information. comply with an applicable Federal United States, the manufacturer must Motor Vehicle Safety Standard, the The OMB has promulgated regulations notify owners and purchasers of the describing what must be included in manufacturer must notify owners and defect or noncompliance and must purchasers of the defect or such a document. Under OMB’s provide a remedy without charge. The regulation (at 5 CFR 1320.8(d)), an noncompliance and must provide a proposed revised collection will remedy without charge. In title 49 of the agency must ask for public comment on consolidate these provisions. the following: CFR, part 577, defect and Child restraint manufacturers are noncompliance notification for (i) Whether the proposed collection of required to provide an owner’s information is necessary for the proper equipment items, including child registration card for purchasers of child restraint systems, must be sent by first performance of the functions of the safety seats in accordance with title 49 agency, including whether the class mail to the most recent purchaser of the Code of Federal Regulation (CFR), known to the manufacturer. information will have practical utility; part 571–section 213, ‘‘Child Restraint (ii) The accuracy of the agency’s Child restraint manufacturers are also Systems.’’ The registration card is required to provide a printed estimate of the burden of the proposed perforated into two-parts (see Figures 1 collection of information, including the instructions brochure with step-by-step and 2). The top part contains a message information on how the restraint is to be validity of the methodology and and suitable instructions to be retained assumptions used; used. Without proper use, the by the purchaser. The bottom part is to effectiveness of these systems is greatly (iii) How to enhance the quality, be returned to the manufacturer by the utility, and clarity of the information to diminished. Each child restraint system purchaser. The bottom part includes must also have a permanent label. A be collected; prepaid return postage, the pre-printed permanently attached label gives (iv) How to minimize the burden of name/address of the manufacturer, the ‘‘quicklook’’ information on whether the the collection of information on those pre-printed model and date of restraint meets the safety requirements, who are to respond, including the use manufacture, and spaces for the recommended installation and use, and of appropriate automated, electronic, purchaser to fill in his/her name and mechanical, or other technological warnings against misuse. address. Optionally, child restraint Estimated Annual Burden: 265,500 collection techniques or other forms of manufacturers are permitted to add to information technology, e.g. permitting hours. the registration form: (a) Specified Number of Respondents: 15. electronic submission of responses. statements informing CRS owners that The total burden hours for this In compliance with these they may register online; (b) the Internet collection consist of: (1) The requirements, NHTSA asks for public address for registering with the administrative hours spent to produce comments on the following proposed company; (c) revisions to statements registration cards and labels, (2) the collections of information: reflecting use of the Internet to register; hours spent collecting registration (1.) Title: Consolidated Child and (d) a space for the consumer’s e- information, and (3) the hours spent by Restraint System Registration, Labeling mail address. For those CRS owners CRS manufacturers to create and keep and Defect Notifications.’’ with access to the Internet, online records. OMB Control Number: 2127–0576. registration may be a preferred method Currently, approximately 15 CRS Requested Expiration Date of of registering a CRS. manufacturers produce,[ras1] on Approval: Three years from the In addition to the registration card average, a total of approximately approval date. supplied by the manufacturer, NHTSA 4,500,000 child restraints each year. Type of Request: Consolidation of has implemented a CRS registration [ras2] NHTSA has determined that OMB control numbers 2127–0511, ‘‘49 system to assist those individuals who CFR 571.213, Child Restraint Systems,’’ have either lost the registration card that 1 http://www.nhtsa.dot.gov/staticfiles/DOT/ and 2127–0576, ‘‘Child Safety Seat came with the CRS or purchased a NHTSA/Vehicle%20Safety/Articles/ Registration.’’ previously owned CRS. Upon the Associated%20Files/csregfrm.pdf.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17600 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

approximately 1,575,000 owners or necessary to carry out these Other information may be provided by purchasers register (i.e., either by requirements. Using this authority, the the manufacturer but is not required. registration card, NHTSA registration agency issued the following FMVSS and FMVSS No. 209, ’’Seat belt form or by the Internet) their child seats regulations, specifying labeling assemblies,’’ requires safety belts to be with the CRS manufacturers each year requirements to aid the agency in labeled with the year of manufacture, (an estimated 35 percent return rate x achieving many of its safety goals: the model, and the name or trademark 4,500,000 restraints). FMVSS No. 105, ‘‘Hydraulic and of the manufacturer (S4.1(j)). For each child restraint system, a CRS electric brake systems,’’ Additionally, replacement safety belts manufactures must spend 0.025 hours to FMVSS No. 135, ‘‘Passenger car brake that are for use only in specifically cut/print, label and to attach a systems,’’ stated motor vehicles must have labels registration card. A manufacturer must FMVSS No. 205, ‘‘Glazing materials,’’ or accompanying instruction sheets to also spend 0.04 hours to collect the FMVSS No. 209, ‘‘Seat belt assemblies,’’ specify the applicable vehicle models information for each returned Part 567, ‘‘Certification.’’ and seating positions (S4.1(k)). All other registration and then spend a total of This notice requests comments on the replacement belts are required to be 0.02 hours to create and keep a record accompanied by an installation on each child restraint system. Given labeling requirements of these FMVSS and regulations. instruction sheet (S4.1(k)). Seat belt these estimates, the estimated total assemblies installed as original Description of the need for the annual burden hours for this collection equipment in new motor vehicles need information and proposed use of the of information are 265,500 hours. This not be labeled with position/model information: In order to ensure that number reflects the combination of information. manufacturers are complying with the 112,500 hours to produce materials Part 567, ‘‘Certification,’’ responds to (0.025 hours per seat × 4,500,000 child FMVSS and regulations, NHTSA requires a number of specific labeling 49 U.S.C. 30111 that requires each restraints), 63,000 hours to collect manufacturer or distributor of motor registrations (0.04 hours per seat × requirements in FMVSS Nos. 105, 135, 205, 209 and part 567. FMVSS No. 105, vehicles to furnish to the dealer or 1,575,000 registrations) and 90,000 distributor of the vehicle a certification hours to create and keep records (0.02 ’’Hydraulic and electric brake systems’’ × and FMVSS No. 135, ’’Passenger car that the vehicle meets all applicable hours per seat 4,500,000 child FMVSS. This certification is required by restraints) each year. brake systems,’’ require that each vehicle shall have a brake fluid warning that provision to be in the form of a (2) Title: Consolidated Labeling label permanently affixed to the vehicle. Requirements for Motor Vehicles statement in letters at least one-eighth of Under 49 U.S.C. 32504, vehicle (Except the VIN). a inch high on the master cylinder manufacturers are directed to make a OMB Control Number: 2127–0512. reservoirs and located so as to be visible Requested Expiration Date of by direct view. similar certification with regard to Approval: Three years from the Federal Motor Vehicle Safety bumper standards. To implement this approval date. Standard No. 205, ’’Glazing materials,’’ requirement, NHTSA issued 49 CFR Type of Request: Consolidation of provides labeling requirements for part 567. The agency’s regulations OMB control numbers 2127–0038, ‘‘49 glazing and motor vehicle establish form and content requirements CFR 571.205, Glazing Materials,’’ and manufacturers. In accordance with the for the certification labels. 2127–0512, ‘‘Consolidated Labeling standard, NHTSA requires each new Description of the Likely Respondents Requirements for Motor Vehicles motor vehicle glazing manufacturer to (Including Estimated Number and (except the VIN).’’ request and be assigned a unique mark Proposed Frequency of Response to the Affected Public: Business. or number. This number is then used by Collection of Information): NHTSA Summary of the Collection of the manufacturer as their unique anticipates that approximately 21 new Information: Because of the similarities company identification on their self- prime glazing manufacturers per year in the collections of information, certification label on each piece of will contact the agency and request a NHTSA seeks to combine the provisions motor vehicle glazing. As part of that manufacturer identification number. of the existing collection for glazing certification label, the company must These new glazing manufacturers must materials labeling into a collection for identify itself with the simple two or submit one letter, one time, identifying labeling information for five other three digit number assigned by the their company. In turn, the agency Federal motor vehicle safety standards. agency. FMVSS No. 205 requires that responds by assigning them a unique 49 U.S.C. 30111 authorizes the manufacturers mark their automotive manufacturer number. For other issuance of Federal motor vehicle safety glazing with certain label information collections in this notice, no response is standards (FMVSS) and regulations. The including: necessary from manufacturers. These agency, in prescribing a FMVSS or labels are only required to be placed on regulation, considers available relevant Manufacturer’s distinctive trademark; each master cylinder reservoir, each motor vehicle safety data, and consults Manufacturer’s ’’DOT’’ code number; safety belt and every motor vehicle with other agencies, as it deems Model of glazing (there are currently 21 intended for retail sale in the United appropriate. Further, the statute items of glazing ranging from plastic States. Therefore, the number of mandates that in issuing any FMVSS or windows to bullet resistant respondents is not applicable. regulation, the agency considers windshields). Estimate of the Total Annual whether the standard or regulation is In addition to these requirements, Reporting and Recordkeeping Burden ’’reasonable, practicable and appropriate which apply to all glazings, certain Resulting from the Collection of for the particular type of motor vehicle specialty items such as standee Information: Based upon previous or item of motor vehicle equipment for windows in buses, roof openings, and notice and comments for those which it is prescribed,’’ and whether interior partitions made of plastic information collections, NHTSA such a standard will contribute to require that the manufacturer affix a estimates that all manufacturers will carrying out the purpose of the Act. The removable label to each item. The label need a total of 73,071 hours to comply Secretary is authorized to invoke such specifies cleaning instructions to with these requirements, at a total rules and regulations as deemed minimize the loss of transparency. annual cost of $1,096,065.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17601

Comments are invited on: Whether information collection; ways to enhance Authority: 44 U.S.C. 3506(c); delegation of the proposed collections of information the quality, utility, and clarity of the authority at 49 CFR 1.50. are necessary for the proper information to be collected; and ways to Issued in Washington, DC, on April 2, performance of the functions of the minimize the burden of the collection of 2007. Department, including whether the information on respondents, including Roger A. Saul, information will have practical utility; the use of automated collection the accuracy of the Department’s techniques or other forms of information Director, Crashworthiness Standards. estimate of the burden of the proposed technology. BILLING CODE 4910–59–P

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17602 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00128 Fmt 4703 Sfmt 4725 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES EN09AP07.008 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17603

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00129 Fmt 4703 Sfmt 4725 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES EN09AP07.009 17604 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES EN09AP07.010 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17605

[FR Doc. E7–6523 Filed 4–6–07; 8:45 am] applicable Federal Motor Vehicle Safety In August 2001, the petitioner BILLING CODE 4910–59–C Standards (FMVSS). 49 U.S.C. received a letter from Ford Motor 30112(a)(1). However, this prohibition Company describing Ford’s Customer does not apply after the first purchase Satisfaction Program Number 01B78 DEPARTMENT OF TRANSPORTATION of the vehicle or equipment. 49 U.S.C. (01B78). Ford initiated this program in 30112(b)(1). The petitioner alleges that August 2001, and it was in effect National Highway Traffic Safety the problem with his vehicle first began through August 31, 2002. Ford offered Administration to develop at least three years after its free repair of any 1999 and 2000 Ford first purchase. Accordingly, the alleged Contour and Mercury Mystique vehicle Denial of Motor Vehicle Defect Petition facts provide no basis for a compliance experiencing panel warping at the front AGENCY: National Highway Traffic investigation. NHTSA has no authority edge of the instrument panel cover near Safety Administration (NHTSA), to intervene in disputes between an the windshield. Initially, Ford offered Department of Transportation. individual and a manufacturer with customers a dealer inspection of the ACTION: Denial of petition for a defect regard to repairs unrelated to safety instrument panel and a free repair as investigation. recalls. However, because the petitioner required. Ford instructed dealers to has characterized his letter as a repair all vehicles with a panel repair SUMMARY: This notice sets forth the ‘‘petition’’, we are construing his letter kit unless the warping was greater than reasons for the denial of a petition as a request for a defect investigation 2 inches at the defroster grill opening. (DP06–004) submitted by Mr. Eric into warping of the leading edge of the For vehicles with greater than 2 inches Moening. In his petition, dated August dashboard in MY 1999–2000 Ford warping, Ford instructed dealers to 23, 2006, the petitioner requests the Contour and Mercury Mystique vehicles replace the instrument panel. agency to remedy a failure of his model under 49 U.S.C. 30162. Ford issued to Ford and Lincoln year (MY) 1999 Ford Contour to Under 49 U.S.C. 30166, NHTSA has Mercury dealers two supplements to the ‘‘comply with Federal Motor Vehicle the authority to conduct an original 01B78 program that superseded Safety Standard 208 Occupant Crash investigation to consider whether a each preceding program. In December Protection.’’ He describes the failure on motor vehicle or motor vehicle 2001, Ford issued Supplement #1 his vehicle as instrument panel equipment contains a safety-related (01B78S1), which provided a revision of warping, and he believes that the defect. In addition, any interested the original repair procedure to ‘‘address some dealer-identified issues.’’ warping may adversely affect person may file a petition under 49 01B78S1 did not affect Ford’s policy of performance of the air bag system or U.S.C. 30162 requesting that NHTSA replacing the instrument panel only create loose instrument panel begin a proceeding to decide whether to when the panel warping is greater than components (such as the defrost bezel) issue an order under § 30118. NHTSA is 2 inches and repairing other vehicles that could ‘‘become projectiles during authorized under 49 U.S.C. 30118(b) to with a panel repair kit. In May 2002, air bag deployments.’’ After a review of make a determination that a motor Ford issued Supplement #2 (01B78S2), the petition and other information, vehicle or motor vehicle equipment which provided a revised repair including the results of NHTSA’s own contains a defect related to motor procedure that ‘‘requires the use of a testing, NHTSA has concluded that vehicle safety. If NHTSA makes such a new repair kit that includes a new further expenditure of the agency’s determination, NHTSA issues an order resources on the issue raised by the defroster grille cover that is placed on directing the manufacturer of the top of the defroster grille.’’ 01B78S2 also petition is not warranted. The agency vehicle or equipment to notify the accordingly denies the petition. provided that ‘‘[i]nstrument panel owners, purchasers and dealers of the replacement is no longer covered under FOR FURTHER INFORMATION CONTACT: Ms. defect and to remedy the defect under this program.’’ And, 01B78S2 states Cynthia Glass, Vehicle Integrity § 30120. that, ‘‘All vehicles that have not had Division, Office of Defects Investigation, As a practical matter, NHTSA’s grant 01B78 or 01B78S1 completed, NHTSA, 400 Seventh Street, SW., of a petition under § 30162 begins an regardless of whether the warpage is Washington, DC 20590. Telephone: investigation that may or may not result visible or not, should be serviced as (202) 366–2920. in a recall. In determining whether to soon as possible before expiration of SUPPLEMENTARY INFORMATION: On August grant or deny a petition under § 30162, this program.’’ Neither 01B78S1 nor 23, 2006, NHTSA’s Office of Defects NHTSA conducts a technical review of 01B78S2 changed the program’s August Investigation (ODI) received a petition the petition. 49 CFR 552.6. This review 31, 2002, expiration date. submitted by Mr. Eric Moening may consist of an analysis of the In February 2003, after Customer (hereinafter identified as the petitioner), material submitted, together with the Satisfaction Program Number 01B78 requesting that NHTSA ‘‘remedy a information already in possession of the expired, Ford issued technical service failure’’ of the instrument panel of his agency or acquired in the course of the bulletin ‘‘TSB 03–4–6, Trim— MY 1999 Ford Contour so that it review. NHTSA has discretion to decide Instrument Panel Warpage Repair.’’ This complies with Federal Motor Vehicle which matters are worthy of TSB described Ford’s most current Safety Standard (FMVSS) No. 208. The investigation and a possible recall order. repair procedure for a warped petitioner alleges that his instrument In addition to the technical merits of the instrument panel, which was identical panel has warped and the defrost bezel petition, NHTSA may consider to the procedure provided in 01B78S2. rattles. He contends that ‘‘improperly additional factors, such as the allocation The TSB did not extend the expiration retained instrument panel components of agency resources, agency priorities, date of the offer for free repair that had can be detrimental to the desired and the likelihood of success of now expired. performance of front air bag litigation that might arise from the order The petitioner indicates that when he deployments as well as become sought by the petitioner. 49 CFR 552.8. took his car into his Lincoln-Mercury projectiles during air bag deployments.’’ As noted above, if NHTSA grants the dealership in 2001 in response to Federal law prohibits manufacturers petition, an investigation is commenced 01B78, the dealership advised him that from selling motor vehicles and to determine the existence of the defect. his vehicle ‘‘was not in need of repair.’’ equipment that do not comply with all 49 CFR 552.9. He reports that, by late 2002, his vehicle

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17606 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

began to show signs of the instrument negligible visibility differences when on a subject vehicle, NHTSA panel warping and that by spring 2006, each driver viewed the cone through the determined that warping of the ‘‘the defrost bezel began to rattle.’’ In portion of the windshield directly in instrument panel is confined to the July 2006, he contacted the same front of the driver. However, in order for surface materials of the instrument dealership and ‘‘was told that this $400 each short female to see the top of the panel, and does not extend to the repair would not be covered [under the 12-inch cone through the right side of supporting structure of the air bag TSB]’’ because his vehicle was past the windshield of the 1999 Contour system. Based on a review of the warranty coverage (36,000 miles/3 with the warped instrument panel, the agency’s complaint database and years). cone needed to be moved two feet examination of subject vehicles, we find Determining an appropriate response further from the vehicle than was no evidence that the warping of the to Mr. Moening’s petition requires necessary for the same driver to see the instrument panel could cause either assessment of the potential safety same cone through the same portion of inappropriate deployment of the consequences of the alleged defect. A the windshield for either the 1999 passenger air bag, impede proper review of NHTSA’s consumer complaint Contour with the instrument panel held deployment of the passenger air bag, or database for the MY 1999 and 2000 Ford down or the 2000 Contour with the block the air bag deployment path. Contour and Mercury Mystique vehicles unwarped instrument panel. The Based on a review of the petitioner’s in February 2007 revealed 302 practical effect of this difference is request and the information provided complaints regarding instrument panel minimal: the smallest drivers still have above, it is unlikely that NHTSA would warping. Most of the complaints report a clear view as they approach such a issue an order for the notification and that the warping of the instrument panel small object (12 inches or less), but remedy of a safety-related defect at the reduces forward visibility or degrades could lose sight of such an object if it conclusion of an investigation. the performance of the defroster. Other is off to the right of their forward field Therefore, in view of the need to complaints indicate that the repair of vision just two feet sooner than a allocate and prioritize NHTSA’s limited performed by the dealer was only a taller driver would. We believe that the resources to best accomplish the temporary fix and the problem returned. observed slight reduction in one portion agency’s safety mission, the petition is A considerable number of complaints of the field of view that might be denied. This action does not constitute express concern that the instrument experienced by the smallest of drivers a finding by NHTSA that a safety-related panel warping may affect the fails to demonstrate any material effect defect does not exist. The agency will performance of the air bag system, either on safety. This conclusion is supported take further action if warranted by by causing the air bag to deploy by the absence of any report in the future circumstances. prematurely or by hindering proper agency’s complaint database of alleged Authority: 49 U.S.C. 30162(d); delegations inflation of the air bag. However, as of loss of control or crash attributed to this of authority at CFR 1.50 and 501.8. November 2006 there were no reports of problem for these vehicles, which have actual improper deployments, nor were now acquired nearly 8 years of field Daniel C. Smith, there reports of injuries, crashes or loss experience. Associate Administrator for Enforcement. of control because of instrument panel NHTSA also evaluated the ability of [FR Doc. E7–6545 Filed 4–6–07; 8:45 am] warping while driving the subject the defroster in a 1999 Ford Contour BILLING CODE 4910–59–P vehicle. with a warped instrument panel to clear NHTSA evaluated forward visibility the windshield of heavy early morning from the driver’s seating position in a frost. NHTSA compared these results DEPARTMENT OF TRANSPORTATION subject vehicle, a 1999 Ford Contour, with the performance of the defrosters with a warped instrument panel (more in three other vehicles with unwarped National Highway Traffic Safety than 3 inches of vertical warping at the instrument panels: a 2000 Ford Contour, Administration centerline of the vehicle) and compared a 2005 Saturn Ion and a 1999 Volvo S80. Petition for Exemption From the this to the forward visibility in the The comparison demonstrated that the Vehicle Theft Prevention Standard; Fuji vehicle with the warped portion of the defroster in the subject vehicle with the Heavy Industries U.S.A., Inc. instrument panel held down in its warped instrument panel, though proper position. Also, NHTSA used for functional, required approximately AGENCY: National Highway Traffic comparison two other vehicles: a 2000 three to four minutes longer to clear Safety Administration (NHTSA), Ford Contour with an unwarped most of the frost from the windshield Department of Transportation (DOT). instrument panel and a peer vehicle, a compared with the other vehicles. ACTION: Grant of petition for exemption. 2005 Saturn Ion with an unwarped However we do not find this reduction instrument panel. NHTSA evaluated the in the speed of the defroster’s SUMMARY: This document grants in full visibility using both a 12-inch and a 28- performance to be a likely safety hazard. the Fuji Heavy Industries U.S.A., Inc.’s inch tall traffic cone placed at various The defroster is still capable of (FUSA) petition for exemption of the positions in front of the subject and peer performing its intended function. Subaru Impreza vehicle line in vehicles. NHTSA selected three subject The principal concern expressed by accordance with 49 CFR part 543, drivers; two were short females (4′9″ the petitioner was the potential for Exemption from the Theft Prevention and 5′3″ tall) and the other a tall male warping of the instrument panel to Standard. This petition is granted (6′1″). NHTSA recorded the minimum degrade the performance of the air bag because the agency has determined that distance from the front of the vehicle to system. As of November 2006, NHTSA’s the antitheft device to be placed on the the cone that allowed the driver to see consumer complaint database contained line as standard equipment is likely to the top of the cone. no allegations that instrument panel be as effective in reducing and deterring When conducting the test using the warping affected the actual deployment motor vehicle theft as compliance with 28-inch cone, there were negligible of the passenger air bag, nor are there the parts-marking requirements of the visibility differences between the reports of instrument panel components Theft Prevention Standard (49 CFR part subject and peer vehicles for all three becoming projectiles during air bag 541). FUSA requested confidential drivers. Similarly, when conducting the deployments. Through examination of treatment for the information and test using the 12-inch cone, there were the construction of the instrument panel attachments it submitted in support of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17607

its petition. In a letter dated November list of the tests it conducted. FUSA unauthorized entrants; and ensuring the 27, 2006, the agency granted the based its belief that the device is reliable reliability and durability of the device. petitioner’s request for confidential and durable on the fact that the device For the foregoing reasons, the agency treatment of the indicated areas of its complied with the specific requirements hereby grants in full FUSA’s petition for petition. for each test. exemption for the vehicle line from the DATES: The exemption granted by this FUSA stated that theft rates for its parts-marking requirements of 49 CFR notice is effective beginning with model Subaru vehicles have typically been low part 541. The agency notes that 49 CFR year (MY) 2008. and that based on the most recent Part 541, Appendix A–1, identifies those lines that are exempted from the FOR FURTHER INFORMATION CONTACT: Ms. National Insurance Crime Bureau’s Theft Prevention Standard for a given Carlita Ballard, Office of International (NICB) state-by-state theft results, only model year. 49 CFR 543.7(f) contains Vehicle, Fuel Economy and Consumer in 2 out 48 states, including the District publication requirements incident to the Standards, NHTSA, 400 Seventh Street, of Columbia have any Subaru vehicle disposition of all part 543 petitions. SW., Washington, DC 20590. Ms. appeared in the top ten list of stolen Advanced listing, including the release Ballard’s phone number is (202) 366– vehicles. Review of the theft rates of future product nameplates, the 0846. Her fax number is (202) 493–2290. published by the agency through MY/ CY 2004 also revealed that, while there beginning model year for which the SUPPLEMENTARY INFORMATION: In a petition is granted and a general petition dated October 31, 2006, FUSA is some variation, the theft rates for Subaru vehicles has on average, description of the antitheft device is requested exemption from the parts- necessary in order to notify law marking requirements of the theft remained below the median theft rate of 3.5826. On December 21, 2006, by enforcement agencies of new vehicle prevention standard (49 CFR part 541) lines exempted from the parts-marking for the Subaru Impreza vehicle line, email, FUSA provided a list of similar devices for which NHTSA has already requirements of the Theft Prevention beginning with the 2008 model year. Standard. The petition has been filed pursuant to granted parts marking exemptions. FUSA believes that this comparison If FUSA decides not to use the 49 CFR part 543, Exemption from exemption for this line, it must formally supports its claim that its MY 2008 Vehicle Theft Prevention Standard, notify the agency, and, thereafter, the immobilizer device will be at least as based on the installation of an antitheft line must be fully marked as required by effective in reducing theft as similar device as standard equipment for an 49 CFR 541.5 and 541.6 (marking of devices for which the agency has entire vehicle line. major component parts and replacement already granted exemptions. Under § 543.5(a), a manufacturer may parts). petition NHTSA to grant exemptions for Additionally, FUSA referred to the most NHTSA notes that if FUSA wishes in one line of its vehicle lines per model recent Highway Loss Data Institute’s the future to modify the device on year. In its petition, FUSA provided a (HLDI) reports that support the which this exemption is based, the detailed description and diagram of the effectiveness of immobilizing antitheft company may have to submit a petition identity, design, and location of the devices and believes that the to modify the exemption. Part 543.7(d) components of the antitheft device for enhancement of electronic states that a part 543 exemption applies the Impreza vehicle line. FUSA stated immobilization will further help to only to vehicles that belong to a line that all Impreza vehicles will be reduce its lower theft rates. The agency exempted under this part and equipped equipped with a passive, transponder- agrees that the device is substantially with the anti-theft device on which the based electronic immobilizer device as similar to devices in other vehicles lines line’s exemption is based. Further, standard equipment beginning with MY for which the agency has already § 543.9(c)(2) provides for the submission 2008. Features of the antitheft device granted exemptions. of petitions ‘‘to modify an exemption to will include an electronic key, a passive Pursuant to 49 U.S.C. 33106 and 49 permit the use of an antitheft device immobilizer system which includes a CFR 543.7(b), the agency grants a similar to but differing from the one key ring antenna and an engine control petition for an exemption from the specified in that exemption.’’ unit (ECU). The system immobilization parts-marking requirements of part 541 The agency wishes to minimize the is automatically activated when the key either in whole or in part, if it administrative burden that part is removed from the vehicle’s ignition determines that, based upon substantial 543.9(c)(2) could place on exempted switch or after 30 seconds if the ignition evidence, the standard equipment vehicle manufacturers and itself. The is simply moved to the off position (key antitheft device is likely to be as agency did not intend part 543 to not removed). The device will also have effective in reducing and deterring require the submission of a modification a visible and audible alarm feature. The motor vehicle theft as compliance with petition for every change to the alarm system will monitor the door the parts-marking requirements of part components or design of an antitheft status and key identification. 541. The agency finds that FUSA has device. The significance of many such Unauthorized opening of a door will provided adequate reasons for its belief changes could be de minimis. Therefore, activate the alarm system horn and that the antitheft device will reduce and NHTSA suggests that if the lamps. FUSA’s submission is deter theft. This conclusion is based on manufacturer contemplates making any considered a complete petition as the information FUSA provided about changes the effects of which might be required by 49 CFR 543.7 in that it its device. characterized as de minimis, it should meets the general requirements The agency concludes that the device consult the agency before preparing and contained in 543.5 and the specific will provide the five types of submitting a petition to modify. performance listed in § 543.6(a)(3): content requirements of 543.6. Authority: 49 U.S.C. 33106; delegation of FUSA also provided information on promoting activation; attracting authority at 49 CFR 1.50. the reliability and durability of its attention to the efforts of unauthorized proposed device, conducting tests based persons to enter or operate a vehicle by Issued on: April 3, 2007. on its own specified standards. In a means other than a key; preventing Stephen R. Kratzke, letter dated November 27, 2006, NHTSA defeat or circumvention of the device by Associate Administrator for Rulemaking. granted FUSA confidential treatment for unauthorized persons; preventing [FR Doc. E7–6527 Filed 4–6–07; 8:45 am] the test information. FUSA provided a operation of the vehicle by BILLING CODE 4910–59–P

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17608 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

DEPARTMENT OF TRANSPORTATION This noncompliance pertains solely to submitted electronically by logging onto the failure of these reflectors to meet the the Docket Management System Web National Highway Traffic Safety applicable color requirements. The site at http://dms.dot.gov. Click on Administration subject reflex reflectors were ‘‘Help’’ to obtain instructions for filing [Docket No. NHTSA–2007–27437; Notice 1] manufactured for Grote by a third-party the document electronically. Comments supplier. The third-party supplier may be faxed to 1–202–493–2251, or Grote Industries, LLC, Receipt of incorporated reflective tape that it may be submitted to the Federal Petition for Decision of purchased from a reflective material eRulemaking Portal: go to http:// Inconsequential Noncompliance supplier. Based on the results of tests www.regulations.gov. Follow the online conducted for Grote, Grote believes the instructions for submitting comments. Grote Industries, LLC (Grote) has intermediate supplier had been using The petition, supporting materials, determined that the amber reflex retroreflective tape that was and all comments received before the reflectors on certain trucks manufactured to the specification for close of business on the closing date manufactured between 2004 through ‘‘selective yellow,’’ instead of the indicated below will be filed and will be 2007 do not comply with S5.1.5 of 49 correct specification for ‘‘amber,’’ as set considered. All comments and CFR 571.108, Federal Motor Vehicle forth in the SAE J578c requirement. The supporting materials received after the Safety Standard (FMVSS) No. 108, intermediate supplier was operating closing date will also be filed and will ‘‘Lamps, reflective devices, and under a certification letter from the be considered to the extent possible. associated equipment.’’ Grote has filed reflective material supplier, which When the petition is granted or denied, an appropriate report pursuant to 49 erroneously listed the material as notice of the decision will be published CFR Part 573, ‘‘Defect and compliant. in the Federal Register pursuant to the Noncompliance Reports.’’ Grote believes the failure of these authority indicated below. Pursuant to 49 U.S.C. 30118(d) and reflex reflectors to meet the color Comment closing date: May 9, 2007. 30120(h), Grote has petitioned for an specification does not reduce their exemption from the notification and effectiveness in providing proper (Authority: 49 U.S.C. 30118, 30120: remedy requirements of 49 U.S.C. delegations of authority at CFR 1.50 and visibility to allow identification of the 501.8) Chapter 301 on the basis that this front and (where applicable) noncompliance is inconsequential to intermediate side points of a vehicle. Issued on: April 3, 2007. motor vehicle safety. Grote believes the difference between Claude H. Harris, This notice of receipt of Grote’s compliant amber reflex reflectors and Director, Office of Vehicle Safety Compliance. petition is published under 49 U.S.C. the subject noncompliant selective [FR Doc. E7–6462 Filed 4–6–07; 8:45 am] 30118 and 30120 and does not represent yellow colored reflex reflectors is barely BILLING CODE 4910–59–P any agency decision or other exercise of discernible to the naked eye when judgment concerning the merits of the reflected with ‘‘Illuminant A’’ light petition. under conditions of ambient darkness. DEPARTMENT OF TRANSPORTATION Affected are approximately 137,050 Such conditions are intended to imitate reflex reflectors that have been sold for nighttime driving conditions when National Highway Traffic Safety installation as original equipment on reflex reflectors serve their primary Administration trucks and were manufactured between purpose. [Docket No. NHTSA–2006–25546, Notice 2] December 28, 2004 and January 22, Grote states that it knows of no 2007. S5.1.5 of FMVSS No. 108 requires: accidents or other issues associated with Koenigsegg Automotive AB; Response The color in all lamps, reflective devices, this noncompliance. The noncompliant to Application for a Temporary and associated equipment to which this reflex reflectors continue to perform Exemption From the Headlamp standard applies shall comply with SAE their intended function without any Requirements of FMVSS No. 108; Standard J578c, Color Specification for identifiable reduction in safety. Advanced Air Bag Requirements of Electric Signal Lighting Devices, February Therefore, Grote believes that this FMVSS No. 208 1977. noncompliance is inconsequential to The reflex reflectors do not contain motor vehicle safety and that all other AGENCY: National Highway Traffic the correct reflective material required requirements under FMVSS No. 108 are Safety Administration (NHTSA), to meet the requirements of S5.1.5. met. Department of Transportation (DOT). Grote has corrected the problem that Interested persons are invited to ACTION: Grant of application for caused these errors so that they will not submit written data, views, and temporary exemption from certain be repeated in future production. Grote arguments on this petition. Comments provisions of Federal Motor Vehicle believes that the noncompliance is must refer to the docket and notice Safety Standard (FMVSS) No. 208, inconsequential to motor vehicle safety number cited at the beginning of this Occupant Crash Protection, and from and that no corrective action is notice and be submitted by any of the certain provisions of FMVSS No. 108, warranted. following methods. Mail: Docket Lamps, Reflective Devices, and Grote first became aware of the Management Facility, U.S. Department Associated Equipment. noncompliance of these reflex reflectors of Transportation, Nassif Building, when a report was received from one of Room PL–401, 400 Seventh Street, SW., SUMMARY: This document grants the its customers who noticed a shipment of Washington, DC 20590–0001. Hand Koenigsegg Automotive AB reflex reflectors it had received from Delivery: Room PL–401 on the plaza (‘‘Koenigsegg’’) application 1 for Grote were a different color than level of the Nassif Building, 400 temporary exemption from certain previous shipments. The customer was Seventh Street, SW., Washington, DC. It advanced air bag requirements of supposed to receive amber reflex is requested, but not required, that two reflectors that met the requirements of copies of the comments be provided. 1 While Koenigsegg also petitioned for an exemption from the 49 CFR Part 581 Bumper FMVSS No. 108 for use as front side- The Docket Section is open on Standard, it subsequently withdrew that portion of mounted and intermediate side- weekdays from 10 am to 5 pm except its petition (see Docket No. NHTSA–2006–25546– mounted reflex reflectors. Federal Holidays. Comments may be 4).

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17609

FMVSS No. 208, Occupant Crash advanced air bag requirements until now-superseded request concerning the Protection, and from the headlamp September 1, 2006, but their efforts to bumper standard. requirements of FMVSS No. 108 bring their respective vehicles into The basis for each portion of the through December 31, 2009. These compliance with these requirements application is that compliance would exemptions apply to the Koenigsegg began several years ago. However, cause substantial economic hardship 5 CCX. In accordance with 49 CFR Part because the new requirements were to a manufacturer that has tried in good 555, the basis for the grant is that challenging, major air bag suppliers faith to comply with these standards. A compliance would cause substantial concentrated their efforts on working copy of the petition 6 is available for economic hardship to a manufacturer with large volume manufacturers, and review and has been placed in the that has tried in good faith to comply thus, until recently, small volume docket for this notice. The agency with the standard, and the exemption manufacturers had limited access to closely examines and considers the would have a negligible impact on advanced air bag technology. Because of information provided by manufacturers motor vehicle safety. the nature of the requirements for in support of these factors, and, in In accordance with the requirements protecting out-of-position occupants, addition, pursuant to 49 U.S.C. of 49 U.S.C. 30113(b)(2), we published ‘‘off-the-shelf’’ systems could not be 30113(b)(3)(A), determines whether a notice of receipt of the application 2 in readily adopted. Further complicating exemption is in the public interest and the Federal Register and asked for matters, because small volume consistent with the Safety Act.7 3 public comments. We received no manufacturers build so few vehicles, the A manufacturer is eligible to apply for comments on the application. costs of developing custom advanced air a hardship exemption if its total motor DATES: The exemption from the bag systems compared to potential vehicle production in its most recent specified provisions of FMVSS No. 208 profits discouraged some air bag year of production did not exceed and FMVSS No. 108 is effective suppliers from working with small 10,000 vehicles, as determined by the immediately and remains in effect volume manufacturers. NHTSA Administrator (49 U.S.C. through December 31, 2009. The agency has carefully tracked 30113). In determining whether a FOR FURTHER INFORMATION CONTACT: Mr. occupant fatalities resulting from air bag manufacturer of a vehicle meets that Ed Glancy or Mr. Eric Stas, Office of the deployment. Our data indicate that the criterion, NHTSA considers whether a Chief Counsel, NCC–112, National agency’s efforts in the area of consumer second vehicle manufacturer also might Highway Traffic Safety Administration, education and manufacturers’ providing be deemed the manufacturer of that 400 Seventh Street, SW., Room 5219, depowered air bags were successful in vehicle. The statutory provisions Washington, DC 20590. Telephone: reducing air bag fatalities even before governing motor vehicle safety (49 (202) 366–2992; Fax: (202) 366–3820. advanced air bag requirements were U.S.C. Chapter 301) do not include any implemented. provision indicating that a manufacturer I. Advanced Air Bag Requirements and As always, we are concerned about might have substantial responsibility as Small Volume Manufacturers the potential safety implication of any manufacturer of a vehicle simply In 2000, NHTSA upgraded the temporary exemptions granted by this because it owns or controls a second requirements for air bags in passenger agency. In the present case, we are manufacturer that assembled that cars and light trucks, requiring what are addressing a petition that seeks, in part, vehicle. However, the agency considers commonly known as ‘‘advanced air a temporary exemption from the the statutory definition of bags.’’ 4 The upgrade was designed to advanced air bag requirements. As part ‘‘manufacturer’’ (49 U.S.C. 30102) to be meet the goals of improving protection of the same document, we are sufficiently broad to include sponsors, for occupants of all sizes, belted and addressing the petitioner’s request for depending on the circumstances. Thus, unbelted, in moderate-to-high-speed temporary exemptions from the agency’s NHTSA has stated that a manufacturer crashes, and of minimizing the risks headlamp requirements. The petitioner may be deemed to be a sponsor and thus posed by air bags to infants, children, is a manufacturer of low volume, exotic a manufacturer of a vehicle assembled and other occupants, especially in low- sports cars. by a second manufacturer if the first speed crashes. II. Overview of Petition for Economic manufacturer had a substantial role in The advanced air bag requirements Hardship Exemption the development and manufacturing were a culmination of a comprehensive process of that vehicle. plan that the agency announced in 1996 In accordance with 49 U.S.C. 30113 Finally, while 49 U.S.C. 30113(b) to address the adverse effects of air bags. and the procedures in 49 CFR Part 555, states that exemptions from a Safety Act This plan also included an extensive Koenigsegg petitioned the agency for a standard are to be granted on a consumer education program to temporary exemption from certain encourage the placement of children in headlamp requirements of FMVSS No. 5 When considering financial matters involving rear seats. The new requirements were 108 (S7), advanced air bag requirements companies based in the European Union (EU), it is phased in beginning with the 2004 of FMVSS No. 208 (S14), and bumper important to recognize that EU and U.S. accounting model year. requirements of 49 CFR Part 581. principles have certain differences in their treatment of revenue, expenses, and profits. Public Small volume manufacturers (i.e., However, in a letter dated December 12, statements by EU manufacturers relating to original vehicle manufacturers 2006, Koenigsegg advised the agency financial results should be understood in this producing or assembling fewer than that recently completed testing had context. This agency analyzes claims of financial 5,000 vehicles annually for sale in the indicated that its modified bumper hardship carefully and in accordance with U.S. system complied with the Part 581 accounting principles. United States) were not subject to the 6 The company requested confidential treatment bumper standard and that it was under 49 CFR Part 512 for certain business and 2 To view the application, go to: http:// withdrawing the portion of its petition financial information submitted as part of its dms.dot.gov/search/searchFormSimple.cfm and requesting an exemption from that petition for temporary exemption. Accordingly, the enter Docket No. NHTSA–2006–25546. standard (See Docket No. NHTSA– information placed in the docket does not contain 3 See 71 FR 50974 (August 28, 2006) (Docket No. such information that the agency has determined to NHTSA–2006–25546–1). 2006–25546–4). Accordingly, we need be confidential. 4 See 65 FR 30680 (May 12, 2000) (Docket No. not further discuss that portion of the 7 The Safety Act is codified as Title 49, United NHTSA–2000–7013). Koenigsegg petition dealing with the States Code, Chapter 301.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17610 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

‘‘temporary basis,’’ 8 the statute also requested exemptions were to be In the past three years (2003 to 2005), expressly provides for renewal of an granted: 25 in calendar year (CY) 2007; the company has had losses totaling exemption on reapplication. 30 in CY 2008, and 30 in CY 2009. $1,637,398, and during this time period, Manufacturers are nevertheless Requested exemptions. Koenigsegg the company’s factory burned to the cautioned that the agency’s decision to stated that it intends to certify the CCX ground and had to be rebuilt. grant an initial petition in no way as complying with the rigid barrier Koenigsegg did make a profit of $58,341 predetermines that the agency will belted test requirement using the 50th in 2003 and $722,406 in 2004, but it repeatedly grant renewal petitions, percentile adult male test dummy set incurred a substantial loss of $2,418,145 thereby imparting semi-permanent forth in S14.5.1 of FMVSS No. 208. The in 2005. exemption from a safety standard. petitioner stated that it previously As of the time of the application, Exempted manufacturers seeking determined the CCX’s compliance with Koenigsegg has invested over $3.2 renewal must bear in mind that the rigid barrier unbelted test requirements million in the CCX project in order to agency is directed to consider financial using the 50th percentile adult male test have the vehicle meet U.S. standards— hardship as but one factor, along with dummy through the S13 sled test using not including the provisions which are the manufacturer’s on-going good faith a generic pulse rather than a full vehicle the subject of the present petition for efforts to comply with the regulation, test. Koenigsegg stated that it, therefore, temporary exemption. The company has the public interest, consistency with the cannot at present say with certainty that stated that it cannot hope to attain Safety Act, generally, as well as other the CCX will comply with the unbelted profitability if it incurs additional such matters provided in the statute. test requirement under S14.5.2, which is research and development expenses at III. Petition of Koenigsegg a 20–25 mph rigid barrier test. this time. As for the CCX’s compliance with the Koenigsegg stated that costs for Background. Koenigsegg Automotive other advanced air bag requirements, external assistance with developing an is a Swedish corporation formed in 1999 Koenigsegg stated that it does not know advanced air bag system would cost to produce high-performance sports whether the CCX will be compliant over $3 million (over $9 million if cars. This application concerns the because to date it has not had the internal costs are included for interior Koenigsegg CCX which was developed financial ability to conduct the redesign, testing, and tooling), and as the next generation of Koenigsegg necessary testing. meeting the headlamp requirements vehicles after production of the CCR As such, Koenigsegg is requesting an would entail an additional expenditure model ended on December 30, 2005. exemption for the CCX from the rigid of at least $500,000. The CCX model (the company’s only barrier unbelted test requirement with In its petition, Koenigsegg reasoned model at this point) is scheduled to go the 50th percentile adult male test that worldwide sales (including the U.S. into production in 2006 and to continue dummy (S14.5.2), the rigid barrier test market) of the current CCX in higher at least through the end of 2009. requirement using the 5th percentile volumes over the next three years is Originally, Koenigsegg planned to sell adult female test dummy (belted and necessary to reduce production costs vehicles only in the European, Mid-East, unbelted, S15), the offset deformable and to make available funding for and Far-East markets, but the company barrier test requirement using the 5th development of the next generation of decided in late 2005 to seek entry to the percentile adult female test dummy the CCX, which would be compliant U.S. market for reasons related to (S17), the requirements to provide with all U.S. air bag and headlamp ongoing financial viability. The retail protection for infants and children (S19, requirements. In essence, Koenigsegg price for the CCX is reported to be over S21, and S23) and the requirement argued that the exemption is necessary $700,000 per vehicle. using an out-of-position 5th percentile to allow the company to ‘‘bridge the As discussed in further detail below, adult female test dummy at the driver gap’’ until fully compliant vehicles can the petitioner argued that it tried in position (S25). be funded, developed, tooled, and good faith, but could not bring the Koenigsegg further requested introduced. vehicle into compliance with the exemption from the headlamp If the exemption is denied, headlamp and advanced air bag requirements set forth in S7 of FMVSS Koenigsegg projects a net loss of over requirements, and would incur No. 108. $10.5 million over the period from substantial economic hardship if it Koenigsegg stated its intention to 2006–2009. However, if the petition is cannot sell vehicles in the U.S. after produce a second generation of the CCX granted, the company anticipates a January 1, 2007. model by late 2009, which would be profit of nearly $3.5 million during that Eligibility. Koenigsegg is a small, certified as complying with all same period. The petitioner argued that privately-owned company with 30 full- applicable U.S. standards, including a denial of this petition could preclude time staff members and several part- ones for head lamps (FMVSS No. 108, entry into the U.S. market until 2010 or time employees. The company is a small S7) and advanced air bags (FMVSS No. later, a development which would have volume manufacturer whose total 208, S14). Accordingly, the company is a highly adverse impact on the production is less than 50 cars per year, requesting exemption from the company. According to the petitioner, if having produced between four and eight enumerated requirements for the period vehicles per year for the past four years. from January 1, 2007 through December discrepancies were discovered between the According to the company, its sales 31, 2009. company’s Part 555 application and its supporting revenues have averaged approximately Economic hardship. Publicly financial statements. These discrepancies were $3.7 million per year. Koenigsegg is not available information and also the ultimately determined to be the result of the affiliated with any other automobile company’s inadvertent error in failing to convert financial documents submitted to Swedish kronas to U.S. dollars. Koenigsegg manufacturer. NHTSA by the petitioner indicate that subsequently submitted two errata sheets to correct According to its current forecasts, the CCX project will result in financial these errors (see Docket No. NHTSA–2006–25546– Koenigsegg anticipates the following losses unless Koenigsegg obtains a 3); we note that these corrections did not number of CCX vehicles would be 9 substantively change the company’s underlying temporary exemption. financial position as would affect the agency’s imported into the United States, if its determination of economic hardship under 49 CFR 9 During the course of the agency’s consideration Part 555. This document utilizes the company’s 8 49 U.S.C 30113(b)(1). of Koenigsegg’s petition, certain minor updated figures denominated in U.S. dollars.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17611

the exemption request is not granted, 108-compliant headlamp for the CCX efforts must await the second generation the company would face a ‘‘virtually have been unavailing, presumably due of the U.S. CCX. insurmountable problem’’ in terms of to the ultra-low quantity of vehicles In short, Koenigsegg argued that, funding and introducing a vehicle that involved.10 despite good faith efforts, limited meets all applicable U.S. requirements, Instead, Koenigsegg decided to resources prevent it from bringing the and it might ultimately drive the produce a headlamp for the CCX in- vehicle into compliance with all company out of business because the house (homologated to European Union applicable requirements, and it is rest of the world export market would requirements), utilizing a lighting beyond the company’s current be inadequate to ensure profitability. source from a major lighting capabilities to bring the vehicle into full Good faith efforts to comply. As stated manufacturer (Hella). The petitioner compliance until such time as above, Koenigsegg initially planned to stated that the plexiglass lens of the additional resources become available produce vehicles for the European, Mid- headlamp box is an integral part of the as a result of U.S. sales. With funding East, and Far-East markets, but once it vehicle body and design. The company from sale of the current generation of was determined in 2005 that entry into explained that despite its good faith U.S. CCX, the company expects that the U.S. market was a necessary part of efforts, the headlamps for the CCX as yet additional development efforts could its business plan, the company invested do not fully comply with the headlamp start in 2007, thereby allowing over $3.2 million in research and requirements of FMVSS No. 108. production of a fully compliant vehicle development and tooling for its U.S. Specifically, while the CCX headlamps in late 2009. Koenigsegg argues that an exemption CCX program. In 18 months, the have been designed to pass the geometry would be in the public interest. The company was able to bring the vehicle requirements of FMVSS No. 108, the petitioner put forth several arguments in into compliance with all applicable required aerodynamic lens will not pass favor of a finding that the requested NHTSA regulations other than those environmental testing and must be re- exemption is consistent with the public which are the subject of the present engineered. exemption petition, as well as the interest. Specifically, Koenigsegg argued emissions regulations administered by According to Koenigsegg, the that the vehicle would be equipped with the Environmental Protection Agency company did explore the possibility of a fully-compliant standard U.S. air bag (EPA). developing an ‘‘interim U.S. headlamp’’ system. As to headlamps, Koenigsegg In light of limited resources, the without a polycarbonate cover. stated that the CCX’s current headlamps petitioner stated that it was necessary to However, that alternative was (designed to European specifications) first develop the vehicle with a standard determined to be unworkable for the are very close to meeting the U.S. air bag system (i.e., one meeting the following reasons. First, there were photometric requirements of FMVSS requirements of FMVSS No. 208, other concerns that the absence of the No. 108, and consequently, they do not than the advanced air bag polycarbonate lens ‘‘ruins the design of pose a safety risk. In all other areas, requirements). The company the body,’’ a result which customers Koenigsegg emphasized that the CCX reengineered the CCX with an Audi TT were deemed unlikely to accept and will comply with applicable FMVSSs. driver air bag system and developed a which was expected to result in As additional bases for showing that new passenger air bag system, a decreased sales.11 Second, the petitioner its requested exemption would be in the $641,000 project. determined that an interim headlamp public interest, Koenigsegg offered the According to its petition, Koenigsegg without a polycarbonate lens would following. The company asserted that anticipates that two years will be have unacceptable aerodynamic effects there is consumer demand in the U.S. needed to install an advanced air bag which would negatively impact vehicle for the CCX, and granting this system on the CCX. Modifications performance. Third, there were application will allow the demand to be would involve development of new concerns that by engineering an interim met, thereby expanding consumer components, such as changes to the headlamp exclusively for the U.S. choice. The company also suggested instrument panel design and market, the company would lose the another reason why granting the incorporation of advanced air bag advantages associated with producing a exemption would not be expected to installation components such as ‘‘world car’’ which can be introduced have a significant impact on safety, mountings and brackets. Vehicle testing into any market, something of great specifically because the vehicle is would also be conducted during that importance for an ultra-low-volume unlikely to be used extensively by time. manufacturer. In addition, Koenigsegg owners, due to its ‘‘sporty (second car) Furthermore, because the vehicle was determined that the cost of developing nature.’’ Koenigsegg reasoned that given not originally designed for the U.S. the interim headlamp could not be its very low production volume and market, it likewise did not have justified when amortized over the small customer base, the possibility of any headlamps that comply with U.S. number of units involved. child being in the vehicle is extremely requirements. According to Koenigsegg, In light of the above, the company small. Finally, Koenigsegg indicated achieving compliance with those again stated that because of the cost and that the CCX incorporates advanced requirements will necessitate a redesign length of this project, such headlighting engineering and certain advanced safety of the headlamps. Koenigsegg explained features that are not required by the that it has undertaken significant efforts 10 In an August 10, 2006 supplement to its FMVSSs, including racing brakes with in pursuit of CCX compliance with the application (included in this docket, following the anti-lock capability and traction control. headlamp requirements of FMVSS No. Koenigsegg petition), Koenigsegg stated that it may In addition, the company argued that 108, but problems have stemmed from have now identified a large lighting manufacturer interested in developing a FMVSS No. 108- the CCX has enhanced fuel efficiency the company’s inability to find a compliant headlighting system for the CCX, but it due to its highly aerodynamic design. supplier. The petitioner stated that would be ‘‘at a price higher than the $500,000 thus given the unique shape of the CCX, far estimated.’’ IV. Agency Decision on Koenigsegg there is no available ‘‘off-the-shelf’’ 11 The petitioner asserted that such Petition considerations were a factor in the agency’s earlier headlamp system available, and efforts decision to grant a ‘‘waiver’’ for the headlamp of the The following discussion provides to find a supplier willing to undertake Lotus Elise (see 69 FR 5658 (Feb. 5, 2005)(Docket our decision regarding Koenigsegg’s the project to produce a FMVSS No. No. NHTSA–2003–16341–5)). temporary exemption requests

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00137 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17612 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

pertaining to the advanced air bag company must undertake redesign work with the relevant safety standard(s), as requirement of FMVSS No. 208 and the to the vehicle’s instrument panel and well as the good faith efforts made by headlamp requirements of FMVSS No. must incorporate a number of advanced the manufacturer to meet those 108. These exemption requests will be air bag installation components. requirements. discussed separately, in order to Furthermore, the petitioner stated that it In the present case, we agree that it examine the engineering challenges and would need an additional two years may be desirable for Koenigsegg to the good faith efforts that the time to work with an advanced air bag incorporate a specialized headlamp for manufacturer has made to meet the supplier (because very low volume a variety of reasons, including aesthetics applicable requirements. However, manufacturers have had to wait for and aerodynamics. While we because the agency’s analyses related to technology to ‘‘trickle down’’ from acknowledge that the company economic hardship and the public larger manufacturers and suppliers), to undertook good faith effort to comply interest are essentially the same for make the necessary changes, and to with the headlamp requirements of these requested exemptions, a single conduct testing. Koenigsegg has made FMVSS No. 108 and that current discussion of those matters is provided clear that such a prospect would pose a financial and production limitations at the end of our decision. unique challenge to the company, due would make compliance impractical in Advanced Air Bag Requirements. We to the high cost of development and its the near term, we expect that it would are granting the Koenigsegg petition to extremely small sales volumes. be possible to achieve compliance with be exempted from portions of the Based upon the information provided all applicable headlamp requirements advanced air bag regulation required by by the petitioner, we understand that by the conclusion of the exemption S14.2 (specifically S14.5.2, S15, S17, Koenigsegg made good faith efforts to period requested by Koenigsegg. We do S19, S21, S23, and S25). The exemption bring the CCX into compliance with the not believe that the required does not extend to the provision applicable requirements until such time modifications would be as complex as requiring a belted 50th percentile male as it became apparent that there was no those associated with advanced air bags. barrier impact test (S14.5.1(a)). In practicable way to do so. As a small Our reasoning is explained in further addition to certifying compliance with specialty manufacturer, the company detail below. S14.5.1(a), Koenigsegg must continue to had a difficult time in gaining access to To start, we would note that certify to the unbelted 50th percentile advanced air bag systems and passenger vehicles generally are not barrier impact test in force prior to components (which presumably reflects designed to accommodate ‘‘off the September 1, 2006 (S5.1.2(a)). We note restraint system suppliers’ initial focus shelf’’ headlamp systems, but instead that the unbelted sled test in S13 is an on meeting the needs of large volume incorporate specialized headlamp acceptable option for that requirement. manufacturers), so alternative means of designs dedicated to the specific The agency’s rationale for this decision compliance were not available as a vehicle. Thus, developing a specialized is as follows. practical matter. Small manufacturers headlamp for the CCX may be The advanced air bag requirements such as Koenigsegg are dependent upon necessary, but it is not an unusual present a unique challenge because they air bag suppliers for the engineering would require Koenigsegg to undertake expertise and technology transfer event. Furthermore, as discussed below, a major redesign of its vehicles, in order necessary for compliance with FMVSS we believe that it would be possible to to overcome the engineering limitations No. 208. This further reduced the lead make modifications to the headlamp of the CCX. Specifically, Koenigsegg time available for development. independent of changes to the bumper would be required to undertake Furthermore, because Koenigsegg is system. significant interior redesign in order to an independent automobile As noted above, there are several upgrade the vehicle’s standard air bag manufacturer, there was no possibility reasons why we believe that Koenigsegg system to an advanced air bag system. of technology transfer from a larger should install FMVSS No. 108- While the petitioner was aware of the parent company that also manufactures compliant headlamps on the CCX as new requirements for some time, its motor vehicles. Consequently, no viable rapidly as possible, even for the small business plans did not initially involve alternatives remain. The petitioner is numbers involved here. First, one sales in the U.S. However, Koenigsegg unable to redesign its vehicle in time to should not lose sight of the fact that subsequently determined that it would meet the new advanced air bag headlamps are safety devices intended be necessary to introduce the CCX into requirements that became effective on to illuminate the roadway and overhead the U.S., thereby raising the problem of September 1, 2006 for small volume signs for the driver and to also make the compliance with the advanced air bag manufacturers. vehicle visible to other drivers and requirements. Once the determination Headlamp Requirements. We are pedestrians. Accordingly, styling was made to seek entry into the U.S. granting the Koenigsegg petition to be characteristics of the headlamp are a market in late 2005, Koenigsegg exempted from the headlamp secondary consideration. We further undertook significant homologation requirements of FMVSS No. 108 (S7). note that the petitioner did not provide efforts in order to meet applicable U.S. We understand that vehicle design any basis for its speculative arguments requirements, but compliance with the involves numerous complex design, regarding decreased sales that would be advanced air bag provisions of FMVSS engineering, and production challenges. expected to result from installation of an No. 208 are beyond the company’s To some extent, small volume interim headlamp without a capabilities at the present time. manufacturers may face difficulties in polycarbonate lens, but which would Koenigsegg plans to utilize proceeds situations where they must wait for comply with FMVSS No. 108. The from sales of the current generation of advanced technologies to ‘‘trickle- petitioner also provided no details as to CCX vehicles to finance the down’’ from major suppliers (e.g., the negative impact on vehicle development of a fully compliant advanced air bag systems), but we do performance that would be expected successor vehicle. not expect that every vehicle component from incorporation of an FMVSS No. Koenigsegg explained the main or system would fall in that category. 108-compliant interim headlamp design engineering challenges precluding Accordingly, the agency will carefully or support for its contention that such incorporation of advanced air bag into consider the modifications to the a headlamp would ‘‘ruin the design of the CCX at this time, as follows. The vehicle necessary to achieve compliance the body.’’

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17613

Likewise, we disagree with the points) could negatively impact the economic feasibility, the petitioner’s petitioner’s contention that construction vehicle’s forward illumination and financial submissions demonstrated that of an FMVSS No. 108-compliant increase glare for oncoming drivers. if its requested temporary exemptions headlamp would deprive the Choosing to grant Koenigsegg’s are granted, it anticipates profits of manufacturer of the advantages requested exemption from FMVSS No. nearly $3.5 million over the period from associated with building a ‘‘world car.’’ 108’s headlamp requirement required 2006–2009, so a portion of the profits On the contrary, developing a headlamp considerable deliberation within the expected to be generated during the first for the CCX that meets the requirements agency, and it was only after careful year of the exemption period (nearly of the Economic Commission for Europe balancing of the manufacturer’s good $2.5 million in 2007) could be (ECE) regulations, as well as FMVSS No. faith efforts, the small number of channeled into headlamp development. 108, provides the opportunity to build vehicles involved, and the potential Economic Hardship. We now turn to the CCX as a world car. As the safety consequences that we decided to our analysis more broadly to the issues Koenigsegg petition suggests, these two do so. Because we are hesitant to set a of the economic hardship facing the sets of regulations are quite similar, precedent in terms of granting petitioner and the impact on motor with a primary difference being the temporary exemptions for vehicles vehicle safety surrounding the requested requirement in FMVSS No. 108 for whose headlamps do not meet the temporary exemptions from the photometric test points intended to environmental requirements of the advanced air bag and headlamp ensure illumination of overhead signs. standard, we would state that the requirements discussed above. After However, it is possible to manipulate agency will carefully examine and review of the income statements the headlamp’s beam pattern to achieve decide such petitions on a case-by-case provided by the petitioner, the agency compliance with the photometric basis. notes that the company has faced requirements for both sets of In further support of expediently ongoing financial difficulties, regulations. achieving compliance with the experiencing net operating losses of In support of its request for a headlamp requirements of FMVSS No. about $1.6 million over the past three temporary exemption from the 108, we understand from the petition years (2003–2005). The company did headlamp requirements of FMVSS No. that Koenigsegg now has identified a turn a small profit in 2003 (about 108, Koenigsegg argued that the agency large lighting manufacturer willing to $58,000) and a larger profit in 2004 granted a similar exemption to Group develop a FMVSS No. 108-compliant (about $722,000), but these were Lotus Plc (Lotus) (see 69 FR 5658 (Feb. headlighting system for the CCX. Having overwhelmed by an over $2.4 million 5, 2004) (Docket No. NHTSA–2003– identified such a supplier, we would loss in 2005. These figures suggest that 16341–5)). As discussed in that notice, expect this arrangement to accelerate the company’s current profitability Lotus made many of the same Koenigsegg’s efforts to develop a situation is somewhat precarious. If the arguments that Koenigsegg is currently FMVSS No. 108-compliant headlamp. petitioner’s request for a temporary making regarding engineering In sum, the information supplied by exemption is denied, the company will challenges, aesthetic concerns, loss of the petitioner demonstrates that the be precluded from selling any vehicles performance, and decreased sales. company to date has made good faith in the U.S. market at this time. The However, as compared to the efforts to achieve compliance with the resulting loss of sales would cause Koenigsegg headlamp, there were headlamp requirements of FMVSS No. substantial economic hardship within significant differences in the headlamp 108 and that it would not be the meaning of the statute, potentially for the Lotus Elise, which supported the economically or technically feasible to amounting to the difference between a agency’s decision to grant a temporary meet these requirements until late 2009. profit of nearly $3.5 million (if an exemption for nearly three years. We are also cognizant of the very small exemption is granted) and a loss of over Specifically, Lotus stated that not only number of vehicles at issue here, many $10.5 million (if an exemption is were its headlamp’s photometrics very of which will probably have limited denied) over the period from 2006– close to the requirements of FMVSS No. road use. For these reasons, we have 2009. Ultimately, denial of the 108, but the lamp also had been decided to grant Koenigsegg a temporary exemption request could preclude subjected to relevant environmental exemption from the headlamp development of a U.S.-compliant testing and exhibited a strong warranty requirements of FMVSS No. 108 vehicle and jeopardize the continued record for this aspect of the vehicle. through December 31, 2009. However, existence of Koenigsegg. In contrast, Koenigsegg stated that the we urge the company to achieve full According to Koenigsegg, absent the CCX’s current headlamps are designed compliance with FMVSS No. 108 exemption, the company anticipates to pass the geometry requirements of earlier, to the maximum extent possible. being unable to enter the U.S. market FMVSS No. 108, but they would not For the reasons discussed above, we until 2010 or later. However, pass the environmental requirements of believe that this period should provide Koenigsegg’s problems would be the standard.12 Thus, even if the CCX sufficient time to engage with the compounded without its requested headlamps were to meet all the identified lighting manufacturer and to temporary exemption, because it needs photometric requirements of the conduct any necessary retooling of the revenue from sales of the CCX over standard at the time of vehicle components related to the headlamps. the next two years to finance certification, performance could We also believe that it would be development of a fully compliant possible to modify the CCX’s headlamps deteriorate if the lenses on those vehicle for delivery to the U.S. market. in a manner that would not change the headlamps could not meet the Granting the exemption will allow shape of the outer lens; accordingly, it applicable weathering, vibration, or Koenigsegg to earn the resources should be possible to undertake abrasion requirements. Such degraded necessary to bridge the gap in terms of headlamp and bumper modifications performance (resulting from the lamp’s development of a successor vehicle for independently. In addition, we note that failure to meet relevant photometric test the current generation of the CCX that achieving compliance with FMVSS No. meets all U.S. requirements. 12 It is unclear from the petition whether the CCX 108 would benefit the company by While some of the information headlamps would meet all applicable geometric and allowing the CCX to attain ‘‘world car’’ submitted by Koenigsegg has been photometric requirements in Standard No. 108. status sooner. Finally, in terms of granted confidential treatment and is

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00139 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17614 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

not detailed in this document, the label containing a statement that the requirements of FMVSS No. 108, petitioner made a comprehensive vehicle conforms to all applicable Lamps, Reflective Devices, and showing of its good faith efforts to Federal motor vehicle safety standards Associated Equipment, would cause comply with the requirements of S14.2 in effect on the date of manufacture substantial economic hardship to a of FMVSS No. 208 and S7 of FMVSS ‘‘except for Standard Nos. [listing the manufacturer that has tried in good faith No. 108 and detailed engineering and standards by number and title for which to comply with the standard. We further financial information demonstrating an exemption has been granted] conclude that granting of an exemption that failure to obtain the exemption exempted pursuant to NHTSA from these provisions would be in the would cause substantial economic Exemption No. ____.’’ This label notifies public interest and consistent with the hardship. Specifically, the petitioner prospective purchasers about the objectives of traffic safety. provided the following: exemption and its subject. Under In accordance with 49 U.S.C. 1. Chronological analysis of § 555.9(c), this information must also be 30113(b)(3)(B)(i), the Koenigsegg CCX is Koenigsegg’s efforts to comply, showing included on the vehicle’s certification granted NHTSA Temporary Exemption the relationship to the rulemaking label. No. EX 06–10, from S14.5.2, S15, S17, history of the advanced air bag We note that the text of § 555.9 does S19, S21, S23, and S25 of 49 CFR requirements. not expressly indicate how the required 571.208 and from S7 of 49 CFR 571.108. 2. Itemized costs of each component statement on the two labels should read The exemption is effective immediately that would have to be modified in order in situations where an exemption covers and continues in effect through to achieve compliance. part but not all of a Federal motor December 31, 2009. 3. Discussion of alternative means of vehicle safety standard. Specifically in Issued on: March 29, 2007. compliance and reasons for rejecting the case of FMVSS No. 208, we believe these alternatives. that a statement that the vehicle has Nicole R. Nason, 4. A detailed OEM price-volume been exempted from Standard No. 208 Administrator. quotation from an advanced air bag generally, without an indication that the [FR Doc. E7–6549 Filed 4–6–07; 8:45 am] supplier, including detailed costs for the exemption is limited to the specified BILLING CODE 4910–59–P necessary components for each stage of advanced air bag provisions, could be the development program. misleading. A consumer might 5. Explanations as to why components incorrectly believe that the vehicle has DEPARTMENT OF TRANSPORTATION from newer, compliant vehicle lines been exempted from all of Standard No. National Highway Traffic Safety could not be borrowed. 208’s requirements. Moreover, we Administration 6. Corporate income statements and believe that the addition of a reference balance sheets for the period from 2002– to such provisions by number without Petition to Modify an Exemption of a 2005, and projected income statements an indication of its subject matter would Previously Approved Antitheft Device; for the period from 2006–2009 be of little use to consumers, since they General Motors Corporation (analyzing alternative scenarios in would not know the subject of those which the petition is granted and specific provisions. For these reasons, AGENCY: National Highway Traffic denied). we believe the two labels should read in Safety Administration, Department of We believe that this exemption will relevant part, ‘‘except for S14.5.2, S15, Transportation (DOT). have negligible impact on motor vehicle S17, S19, S21, S23, and S25 (Advanced ACTION: Grant of a petition to modify an safety because of the limited number of Air Bag Requirements) of Standard No. exemption from the Parts Marking vehicles affected (approximately 85 to 208, Occupant Crash Protection, Requirements of a previously approved be imported for the duration of the exempted pursuant to * * *’’. We note antitheft device. requested three-year exemption). that the phrase ‘‘Advanced Air Bag Furthermore, as discussed in previous Requirements’’ is an abbreviated form of SUMMARY: On August 15, 1989, the decisions on temporary exemption the title of S14 of Standard No. 208. National Highway Traffic Safety applications, the agency believes that Similarly, regarding the temporary Administration (NHTSA) granted in part the public interest is served by affording exemption for the CCX’s headlamps, we General Motors Corporation’s (GM) consumers a wider variety of motor believe that the two labels should read petition for an exemption in accordance vehicle choices. in relevant part, ‘‘except for S7 of with § 543.9(c)(2) of 49 CFR Part 543, We also note that the CCX features Standard No. 108, Lamps, Reflective Exemption from the Theft Prevention several advanced ‘‘active’’ safety Devices, and Associated Equipment, Standard for the Chevrolet Camaro features. These features are listed in the exempted pursuant to * * *.’’ We vehicle line. The exemption was granted petitioner’s application.13 While the believe it is reasonable to interpret because the agency determined that the availability of these features is not § 555.9 as requiring this language. antitheft device proposed to be placed critical to our decision, it is a factor in In sum, the agency concludes that on the line as standard equipment was considering whether the exemption is in Koenigsegg has demonstrated good faith likely to be as effective in reducing and the public interest. effort to bring the CCX into compliance deterring motor vehicle theft as We note that, as explained below, with the advanced air bag requirements compliance with the parts-marking prospective purchasers will be notified of FMVSS No. 208 and the headlamp requirements of the Theft Prevention that the vehicle is exempted from the requirements of FMVSS No. 108 and has Standard. On November 10, 2006, GM specified advanced air bag requirements also demonstrated the requisite petitioned the agency to amend the of Standard No. 208 and the headlamp financial hardship. Further, we find exemption previously granted for the requirements of Standard No. 108. these exemptions to be in the public Chevrolet Camaro vehicle line. NHTSA Under § 555.9(b), a manufacturer of an interest. is granting in full GM’s petition to exempted passenger car must affix In consideration of the foregoing, we modify the exemption because it has securely to the windshield or side conclude that compliance with the determined that the modified antitheft window of each exempted vehicle a advanced air bag requirements of device to be placed on the Chevrolet FMVSS No. 208, Occupant Crash Camaro line as standard equipment will 13 See page 16 of Koenigsegg’s petition. Protection, and the headlamp also likely be as effective in reducing

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17615

and deterring motor vehicle theft as PASS–Key decoder module would shut coded and the vehicle can be compliance with the parts-marking down, disabling the start and fuel programmed to operate with up to ten requirements of the Theft Prevention delivery systems. different codes, compared to the PASS– Standard. The 1993 antitheft device (PASS–Key Key and PASS–Key II devices that only DATES: The exemption granted by this II) was a modification of the PASS–Key allow a vehicle to recognize a single notice is effective beginning with model device. GM stated that the key unique code. year (MY) 2010. resistance read by discrete electrical GM indicated that the theft rates, as components in the PASS–Key circuitry reported by the Federal Bureau of FOR FURTHER INFORMATION CONTACT: Ms. was replaced in the PASS–Key II device Investigation’s National Crime Deborah Mazyck, Office of International with the key resistance being Information Center (NCIC), are lower for Vehicle, Fuel Economy and Consumer determined by a microprocessor. GM models equipped with the ‘‘PASS– Standards, NHTSA, 400 Seventh Street, Additionally, a security indicator would Key’’-like systems which have SW., Washington, DC 20590. Ms. illuminate continuously directing the exemptions from the parts-marking Mazyck’s phone number is (202) 366– operator to have the vehicle serviced if requirements of 49 CFR Part 541, than 0846. Her fax number is (202) 493–2290. ‘‘fail enabled’’ conditions (i.e., vehicle the theft rates for earlier, similarly- SUPPLEMENTARY INFORMATION: On August does not start with the proper key constructed models which were parts- 15, 1989, NHTSA published in the because of a dirty or contaminated marked. Based on the performance of Federal Register a notice granting in resistor pellet) arose. If a fault was the PASS–Key, PASS–Key II, and part a petition from GM for an detected, future ignition cycles would PASS–Key III systems on other GM exemption from the parts marking not be allowed regardless of key models, and the advanced technology requirements of the Theft Prevention authorization. utilized by the modification, GM Standard (49 CFR 541) for the 1990 In its second modification, GM stated believes that the MY 2010 antitheft Chevrolet Camaro vehicle line. The that it proposes to install its Chevrolet device will be more effective in Chevrolet Camaro was equipped with Camaro vehicle line with its PASS–Key deterring theft than the parts-marking the PASS–Key antitheft device (See 54 III+ antitheft device for MY 2010. The requirements of 49 CFR Part 541. FR 33655). For MY 1993, the device was PASS–Key III+ is also a transponder GM stated that the theft rates for the changed to the PASS–Key II device. GM based, electronic immobilizer system. It 2003 and 2004 Cadillac CTS and the MY did not submit a petition for is designed to be active at all times 2004 Cadillac SRX currently installed modification at that time because, in a without direct intervention by the with the PASS-Key III+ antitheft device February 7, 1992, letter to GM, the vehicle operator. The antitheft device is exhibit theft rates that are lower than agency determined that changes in the fully armed immediately after the the median theft rate (3.5826) ‘‘PASS–Key II’’ constituted a de minimis ignition has been turned off and the key established by the agency. The Cadillac change in the PASS-Key device. GM removed. The device will continue to CTS introduced as a MY 2003 vehicle suspended production of the Chevrolet provide protection against unauthorized line has been equipped with the PASS- Camaro vehicle line at the end of the use (i.e., starting and engine fueling), Key III+ device since the start of 2003 MY. but will not provide any visible or production. The theft rates for the MY In a petition dated November 10, audible indication of unauthorized 2003 and 2004 Cadillac CTS is 1.0108 2006, GM requested a modification of vehicle entry (i.e., flashing lights or and 0.7681 respectively. Similarly, the the previously granted exemption for horn alarm). Cadillac SRX introduced as a MY 2004 the Chevrolet Camaro vehicle line. GM Components of the modified antitheft vehicle has been equipped with the stated that ‘‘(F) or the 2010 Model Year, device include an electronically-coded PASS-Key III+ device since production. General Motors will be reinstating ignition key, a PASS–Key III+ controller The theft rate for MY 2004 Cadillac SRX production of the Chevrolet Camaro and module and an engine control module. is 0.7789. GM stated that the theft rates upgrading the standard theft deterrent Unlike the ignition key used with the experienced by these lines with system.’’ GM’s November 10, 2006, PASS–Key and PASS–Key II devices, installation of the PASS-Key III+ device submission is a complete petition, as the PASS–Key III+ ignition key contains demonstrate the effectiveness of the required by 49 CFR Part 543.9(d), in that electronics embedded within the head device. The agency agrees that the it meets the general requirements of the key. These electronics receive device is substantially similar to devices contained in 49 CFR Part 543.5 and the energy and data from the control for which the agency has previously specific content requirements of 49 CFR module. Upon receipt of the data, the approved exemptions. Part 543.6. GM’s petition provides a key will calculate a response to the data GM’s proposed device, as well as detailed description and diagram of the using secret information and an internal other comparable devices that have identity, design, and location of the encryption algorithm, and transmit the received full exemptions from the parts- components of the antitheft device response back to the vehicle. The marking requirements, lack an audible proposed for installation beginning with controller module translates the radio or visible alarm. Therefore, these the 2010 model year. frequency signal received from the key devices cannot perform one of the The 1990 antitheft device (PASS–Key) into a digital signal and compares the functions listed in 49 CFR Part installed on the Chevrolet Camaro was received response to an internally 543.6(a)(3), that is, to call attention to a passively activated, transponder- calculated value. If the values match, unauthorized attempts to enter or move based, electronic immobilizer system. the key is recognized as valid and the the vehicle. Based on comparison of the The PASS–Key system used a standard vehicle can be operated. reduction in the theft rates of GM ignition key to rotate a specially coded The PASS–Key III+ device has the vehicles using a passive theft deterrent ignition switch. Before the vehicle could potential for over four billion unique device with an audible/visible alarm be operated, the electrical resistance of electrical key codes which varies with system to the reduction in theft rates for a pellet embedded in the shank of the every ignition cycle, while the PASS– GM vehicle models equipped with a key had to be sensed by elements in the Key and PASS–Key II has a possibility passive antitheft device without an ignition lock cylinder and recognized by of 15 code combinations that never alarm, GM finds that the lack of an the decoder. If a key with the incorrect varies at each ignition cycle. In the alarm or attention attracting device does electrical resistance was inserted, the PASS–Key III+, each key is uniquely not compromise the theft deterrent

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00141 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17616 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

performance of a system such as PASS- NHTSA suggests that if the Under § 543.5(a), a manufacturer may Key III+. In past petitions, the agency manufacturer contemplates making any petition NHTSA to grant exemptions for has concluded that the lack of a visual changes, the effects of which might be one line of its vehicle lines per year. In or audio alarm has not prevented these characterized as de minimis, it should its petition, GM provided a detailed antitheft devices from being effective consult the agency before preparing and description and diagram of the identity, protection against theft. submitting a petition to modify. design, and location of the components On the basis of this comparison, GM Authority: 49 U.S.C. 33106; delegation of of the antitheft device for the new believes that the antitheft device (PASS- authority at 49 CFR 1.50. vehicle line. The antitheft device is a Key III+) for model years 2010 and later transponder-based, electronic, will provide essentially the same Stephen R. Kratzke, immobilizer system. GM will install its functions and features as found on its Associate Administrator for Rulemaking. passive antitheft device as standard MY 1990–2002 PASS-Key device and [FR Doc. E7–6525 Filed 4–6–07; 8:45 am] equipment on its Saturn Aura vehicle therefore, its modified device will BILLING CODE 4910–59–P line beginning with MY 2008. GM stated provide at least the same level of theft that the device will provide protection prevention as parts-marking. GM against unauthorized use (i.e., starting believes that the antitheft device DEPARTMENT OF TRANSPORTATION and engine fueling), but will not provide proposed for installation on its MY 2010 any visible or audible indication of Chevrolet Camaro is likely to be as National Highway Traffic Safety unauthorized vehicle entry (i.e., flashing effective in reducing thefts as Administration lights or horn alarm). GM’s submission compliance with the parts marking is considered a complete petition as requirements of Part 541. Petition for Exemption From the required by 49 CFR 543.7, in that it In addressing the specific content Federal Motor Vehicle Motor Theft meets the general requirements requirements of 543.6, GM provided Prevention Standard; General Motors contained in § 543.5 and the specific information on the reliability and Corporation content requirements of § 543.6. durability of the proposed device. To AGENCY: National Highway Traffic The antitheft device to be installed on ensure reliability and durability of the Safety Administration, Department of the MY 2008 Saturn Aura is the PASS- device, GM conducted tests based on its Transportation (DOT). Key III+. The PASS-Key III+ device is own specified standards. GM provided designed to be active at all times ACTION: Grant of petition for exemption. a detailed list of the tests conducted and without direct intervention by the believes that the device is reliable and SUMMARY: This document grants in full vehicle operator. The system is fully durable since it complied with the the petition of General Motors armed immediately after the ignition specified requirements for each test. GM Corporation (GM) for an exemption in has been turned off and the key also stated that since the authorization accordance with § 543.9(c)(2) of 49 CFR removed. The system will provide code is not handled or contacted by the Part 543, Exemption from the Theft protection against unauthorized starting vehicle operator, the reliability of the Prevention Standard, for the Saturn and fueling of the vehicle engine. PASS-Key III+ is significantly improved Aura vehicle line beginning with model Components of the antitheft device over the PASS-Key and PASS-Key II year (MY) 2008. This petition is granted include an electronically-coded ignition devices. This reliability allows the because the agency has determined that key, a PASS-Key III+ controller module system to return to the ‘‘Go/No Go’’ the antitheft device to be placed on the and an engine control module. The based system, eliminating the ‘‘fail line as standard equipment is likely to ignition key contains electronics enabled’’ mode of operation. be as effective in reducing and deterring molded into the key head. These The agency has evaluated GM’s MY motor vehicle theft as compliance with electronics receive energy and data from 2010 petition to modify the exemption the parts-marking requirements of the the control module. Upon receipt of the for the Chevrolet Camaro vehicle line Theft Prevention Standard. data, the key will calculate a response from the parts-marking requirements of to the data using secret information and DATES: 49 CFR Part 541, and has decided to The exemption granted by this notice is effective beginning with model an internal encryption algorithm, and grant it. It has determined that the transmit the response back to the year (MY) 2008. PASS-Key III+ system is likely to be as vehicle. The controller module effective as parts-marking in preventing FOR FURTHER INFORMATION CONTACT: Ms. translates the radio frequency signal and deterring theft of these vehicles, Rosalind Proctor, Office of International received from the key into a digital and therefore qualifies for an exemption Vehicle, Fuel Economy and Consumer signal and compares the received under 49 CFR Part 543. The agency Standards, NHTSA, 400 Seventh Street, response to an internally calculated believes that the proposed device will SW., Washington, DC 20590. Ms. value. If the values match, the key is continue to provide four of the five Proctor’s phone number is (202) 366– recognized as valid and the vehicle can types of performance listed in 0846. Her fax number is (202) 493–2290. be operated. § 543.6(a)(3): Promoting activation; SUPPLEMENTARY INFORMATION: In a GM indicated that the theft rates, as preventing defeat or circumvention of petition dated October 6, 2006, GM reported by the Federal Bureau of the device by unauthorized persons; requested an exemption from the parts- Investigation’s National Crime preventing operation of the vehicle by marking requirements of the theft Information Center (NCIC), are lower for unauthorized entrants; and ensuring the prevention standard (49 CFR Part 541) GM models equipped with the ‘‘PASS- reliability and durability of the device. for the Saturn Aura vehicle line Key’’-like systems which have If GM decides not to use the beginning with MY 2008. The petition exemptions from the parts-marking exemption for this line, it should requested an exemption from parts- requirements of 49 CFR Part 541, than formally notify the agency. If such a marking pursuant to 49 CFR 543, the theft rates for earlier, similarly- decision is made, the line must be fully Exemption from Vehicle Theft constructed models which were parts- marked according to the requirements Prevention Standard, based on the marked. Based on the performance of under 49 CFR Parts 541.5 and 541.6 installation of an antitheft device as the PASS-Key, PASS-Key II, and PASS- (marking of major component parts and standard equipment for the entire Key III systems on other GM models, replacement parts). vehicle line. and the advanced technology utilized by

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00142 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17617

the modification, GM believes that the attention attracting device does not If GM decides not to use the MY 2008 antitheft device will be more compromise the theft deterrent exemption for this line, it should effective in deterring theft than the performance of a system such as PASS- formally notify the agency. If such a parts-marking requirements of 49 CFR Key III+. decision is made, the line must be fully Part 541. GM’s proposed device, as well as marked according to the requirements For clarification purposes, the agency other comparable devices that have under 49 CFR 541.5 and 541.6 (marking notes that it does not collect theft data. received full exemptions from the parts- of major component parts and NHTSA publishes theft rates based on marking requirements, lack an audible replacement parts). data provided by the NCIC of the or visible alarm. Therefore, these NHTSA notes that if GM wishes in the Federal Bureau of Investigation. NHTSA devices cannot perform one of the future to modify the device on which uses NCIC data to calculate theft rates functions listed in 49 CFR Part this exemption is based, the company and publishes these rates annually in 543.6(a)(3), that is, to call attention to may have to submit a petition to modify the Federal Register. unauthorized attempts to enter or move the exemption. Part 543.7(d) states that In addressing the specific content the vehicle. However, theft data have a Part 543 exemption applies only to requirements of 543.6, GM provided indicated a decline in theft rates for vehicles that belong to a line exempted information on the reliability and vehicle lines that have been equipped under this part and equipped with the durability of the proposed device. To with devices similar to that which GM antitheft device on which the line’s ensure reliability and durability of the proposes. In these instances, the agency exemption is based. Further, Part device, GM conducted tests based on its has concluded that the lack of a visual 543.9(c)(2) provides for the submission own specified standards. GM provided or audio alarm has not prevented these of petitions ‘‘to modify an exemption to a detailed list of the tests conducted and antitheft devices from being effective permit the use of an antitheft device believes that the device is reliable and protection against theft. similar to but differing from the one durable since it complied with the Based on the evidence submitted by specified in that exemption.’’ specified requirements for each test. GM, the agency believes that the The agency wishes to minimize the GM stated that the PASS-Key III+ antitheft device for the GM vehicle line administrative burden that § 543.9(c)(2) system has been designed to enhance is likely to be as effective in reducing could place on exempted vehicle the functionality and theft protection and deterring motor vehicle theft as manufacturers and itself. The agency provided by GM’s first, second, and compliance with the parts-marking did not intend in drafting Part 543 to third generation PASS-Key, PASS-Key requirements of the Theft Prevention require the submission of a modification II, and PASS-Key III systems. Standard (49 CFR 541). petition for every change to the GM compared the device proposed for The agency concludes that the device components or design of an antitheft its vehicle line with other devices will provide four of the five types of device. The significance of many such which NHTSA has determined to be as performance listed in § 543.6(a)(3): changes could be de minimis. Therefore, effective in reducing and deterring Promoting activation; preventing defeat NHTSA suggests that if the motor vehicle theft as would or circumvention of the device by manufacturer contemplates making any compliance with the parts-marking unauthorized persons; preventing changes, the effects of which might be requirements. GM stated that the theft operation of the vehicle by characterized as de minimis, it should rates for the 2003 and 2004 Cadillac unauthorized entrants; and ensuring the consult the agency before preparing and CTS and the MY 2004 Cadillac SRX reliability and durability of the device. currently installed with the PASS-Key As required by 49 U.S.C. 33106 and submitting a petition to modify. III+ antitheft device exhibit theft rates 49 CFR Part 543.6(a)(4) and (5), the Authority: 49 U.S.C. 33106; delegation of that are lower than the median theft rate agency finds that GM has provided authority at 49 CFR 1.50. (3.5826) established by the agency. The adequate reasons for its belief that the Issued on: April 3, 2007. Cadillac CTS introduced as a MY 2003 antitheft device will reduce and deter Stephen R. Kratzke, vehicle line has been equipped with the theft. This conclusion is based on the Associate Administrator for Rulemaking. PASS-Key III+ device since the start of information GM provided about its [FR Doc. E7–6528 Filed 4–6–07; 8:45 am] production. The theft rates for the MY device. 2003 and 2004 Cadillac CTS is 1.0108 For the foregoing reasons, the agency BILLING CODE 4910–59–P and 0.7681 respectively. Similarly, the hereby grants in full GM’s petition for Cadillac SRX introduced as a MY 2004 exemption for the Saturn Aura vehicle DEPARTMENT OF TRANSPORTATION vehicle has been equipped with the line from the parts-marking PASS-Key III+ device since production. requirements of 49 CFR Part 541. The National Highway Traffic Safety The theft rate for MY 2004 Cadillac SRX agency notes that 49 CFR Part 541, Administration is 0.7789. GM stated that the theft rates Appendix A–1, identifies those lines experienced by these lines with that are exempted from the Theft [NHTSA–04–17217] Prevention Standard for a given model installation of the PASS-Key III+ device Insurer Reporting Requirements; year. 49 CFR Part 543.7(f) contains demonstrate the effectiveness of the Reports Under 49 U.S.C. on Section publication requirements incident to the device. The agency agrees that the 33112(c) device is substantially similar to devices disposition of all Part 543 petitions. for which the agency has previously Advanced listing, including the release AGENCY: National Highway Traffic approved exemptions. of future product nameplates, the Safety Administration (NHTSA), Based on comparison of the reduction beginning model year for which the Department of Transportation. in the theft rates of GM vehicles using petition is granted and a general ACTION: Notice of availability. a passive theft deterrent device with an description of the antitheft device is audible/visible alarm system to the necessary in order to notify law SUMMARY: This notice announces reduction in theft rates for GM vehicle enforcement agencies of new vehicle publication by NHTSA of the annual models equipped with a passive lines exempted from the parts marking insurer report on motor vehicle theft for antitheft device without an alarm, GM requirements of the Theft Prevention the 2001 reporting year. Section finds that the lack of an alarm or Standard. 33112(h) of Title 49 of the U.S. Code,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00143 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17618 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

requires this information to be compiled assessment of information on theft and DEPARTMENT OF THE TREASURY periodically and published by the recovery of motor vehicles, agency in a form that will be helpful to comprehensive insurance coverage and Office of Thrift Supervision the public, the law enforcement actions taken by insurers to reduce [No. OTS–2007–0009] community, and Congress. As required thefts for the 2001 reporting period. by section 33112(c), this report provides Section 33112 of Title 49 requires Savings and Loan Holding Company information on theft and recovery of Rating System vehicles; rating rules and plans used by subject insurers or designated agents to motor vehicle insurers to reduce report annually to the agency on theft AGENCY: Office of Thrift Supervision, premiums due to a reduction in motor and recovery of vehicles, on rating rules Treasury (OTS). and plans used by insurers to reduce vehicle thefts; and actions taken by ACTION: Notice and request for comment. insurers to assist in deterring thefts. premiums due to a reduction in motor ADDRESSES: Interested persons may vehicle thefts, and on actions taken by SUMMARY: Changes in the environment obtain a copy of this report and insurers to assist in deterring thefts. in which depository institutions and appendices by contacting the U.S. Rental and leasing companies also are their holding companies operate have Department of Transportation, Docket required to provide annual theft reports had a substantial impact on the way Management, Room PL–401, 400 to the agency. In accordance with 49 they are managed and necessitate Seventh Street, SW., Washington, DC CFR Part 544.5, each insurer, rental and changes in the way they are supervised. 20590. Docket hours are from 10 a.m. to leasing company to which this OTS supervises a diverse population of 5 p.m. Requests should refer to Docket regulation applies must submit a report holding companies ranging from non- No. 2004–17217. This report and annually not later than October 25, complex companies with limited appendices may also be viewed on-line beginning with the calendar year for activities to large, internationally active at: http://www.nhtsa.dot.gov/cars/rules/ which they are required to report. The conglomerates that engage in a variety of theft. report would contain information for activities. OTS has a well-established program for meeting its statutory FOR FURTHER INFORMATION CONTACT: Ms. the calendar year three years previous to Rosalind Proctor, Office of International the year in which the report is filed. The responsibilities with respect to savings and loan holding companies (SLHCs or Vehicle, Fuel Economy and Consumer report that was due by October 25, 2004 holding companies) and the thrift Standards, NHTSA, 400 Seventh Street, contains the required information for industry. Holding company supervision SW., Washington, DC 20590. Ms. the 2001 calendar year. Interested Proctor’s telephone number is (202) is an integral part of this oversight persons may obtain a copy of individual program, and OTS routinely takes steps 366–0846. Her fax number is (202) 493– insurer reports for CY 2001 by 2290. to enhance its risk-focused supervision contacting the U.S. Department of of holding companies. SUPPLEMENTARY INFORMATION: The Motor Transportation, Docket Management, While OTS has emphasized risk Vehicle Theft Law Enforcement Act of Room PL–401, 400 Seventh Street, SW., management in its supervisory 1984 (Theft Act) was implemented to Washington, DC 20590. Docket hours processes for SLHCs of all sizes and enhance detection and prosecution of are from 10 a.m. to 5 p.m. Requests complexities, this emphasis is not motor vehicle theft (Pub. L. 98–547). should refer to Docket No. 2004–17217. readily apparent in the primary The Theft Act added a new Title VI to components of the current SLHC the Motor Vehicle Information and Cost The annual insurer reports provided supervisory rating system, CORE Savings Act, which required the under section 33112 are intended to aid (Capital, Organizational Structure, Secretary of Transportation to issue a in implementing the Theft Act and Relationship, and Earnings). Therefore, theft prevention standard for identifying fulfilling the Department’s requirements OTS is considering making changes to major parts of certain high-theft lines of to report to the public the results of the the component descriptions and rating passenger cars. The Act also addressed insurer reports. The first annual insurer scale used to evaluate the condition of several other actions to reduce motor report, referred to as the Section 612 SLHCs. All SLHCs are assigned a rating, vehicle theft, such as increased criminal Report on Motor Vehicle Theft, was although the degree of supervisory penalties for those who traffic in stolen prepared by the agency and issued in scrutiny varies based on a risk-focused vehicles and parts, curtailment of the December 1987. The report included evaluation of their size, complexity, exportation of stolen motor vehicles and theft and recovery data by vehicle type, business activities, and risk exposures. off-highway mobile equipment, make, line, and model which were OTS is committed to maintaining a establishment of penalties for tabulated by insurance companies and, common CORE component framework dismantling vehicles for the purpose of rental and leasing companies. and a rating system that is flexible and trafficking in stolen parts, and Comprehensive premium information applies to all SLHCs. After reviewing development of ways to encourage for each of the reporting insurance public comments, OTS intends to make decreases in premiums charged to companies was also included. This any necessary changes to the proposal consumers for motor vehicle theft report, the seventeenth, discloses the and adopt a final SLHC rating system. insurance. same subject information and follows This notice announces publication by DATES: Comments must be received by NHTSA of the annual insurer report on the same reporting format. June 8, 2007. motor vehicle theft for the 2001 Issued on: March 30, 2007. ADDRESSES: You may submit comments, reporting year. Section 33112(h) of Title Stephen R. Kratzke, identified by OTS–2007–0009, by any of 49 of the U.S. Code, requires this the following methods: Associate Administrator for Rulemaking. • information to be compiled periodically [FR Doc. E7–6517 Filed 4–6–07; 8:45 am] Federal eRulemaking Portal: Go to and published by the agency in a form http://www.regulations.gov, select that will be helpful to the public, the BILLING CODE 4910–59–P ‘‘Office of Thrift Supervision’’ from the law enforcement community, and agency drop-down menu, then click Congress. As required by section submit. Select Docket ID ‘‘OTS–2007– 33112(h), this report focuses on the 0009’’ to submit or view public

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00144 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17619

comments and to view supporting and condition for use by the supervisory Earnings related materials for this notice of community and focuses supervisory In the Earnings component, examiners proposed rulemaking. The ‘‘User Tips’’ responses and actions. The SLHC rating assess the holding company’s operations link at the top of the page provides system also provides a measurement and financial condition and their information on using Regulations.gov, tool to discuss the enterprise’s condition current and prospective effect on the including instructions for submitting or with SLHC management. The current subsidiary thrift. OTS pays close viewing public comments, viewing SLHC rating system was implemented attention to the holding company’s other supporting and related materials, in 1988. The rating system currently earnings trends and capacity as well as and viewing the docket after the close includes the following components: cash flow. It also evaluates the relative of the comment period. contributions and dividend payout • Capital Mail: Regulation Comments, Chief ratios of significant subsidiaries and the Counsel’s Office, Office of Thrift The first component of a holding overall financial performance of the Supervision, 1700 G Street, NW., company examination is an evaluation holding company enterprise. Washington, DC 20552, Attention: OTS– of Capital. OTS does not apply a You can find a thorough description 2007–0009. standardized capital requirement to along with examination procedures for • Hand Delivery/Courier: Guard’s SLHCs. Instead, OTS considers the each component in the OTS Holding Desk, East Lobby Entrance, 1700 G overall risk profile of the consolidated Companies Handbook at http:// Street, NW., from 9 a.m. to 4 p.m. on entity on a case-by-case basis. This www.ots.treas.gov. business days, Attention: Regulation involves assessing analytical measures After evaluating these four Comments, Chief Counsel’s Office, that include overall leverage, the level components, OTS assigns a composite Attention: OTS–2007–0009. of short-term debt and liquidity, cash SLHC rating using the following Instructions: All submissions received flow, reliance on thrift and other definitions: 1 must include the agency name and subsidiary earnings, interest coverage, Above Average (A): Holding company docket number for this rulemaking. All quality of earnings, and level of enterprises in this group have a wealth comments received will be entered into consolidated tangible and equity capital. of financial strength. The enterprise the docket and posted on Individualized capital requirements can could be called upon to provide Regulations.gov without change, be used as a tool to achieve this goal financial or managerial resources to the including any personal information when necessary. thrift if circumstances dictate. Above provided. Comments, including Average holding company enterprises attachments and other supporting Organizational Structure may exhibit minor weaknesses, but they materials received are part of the public The Organizational Structure are deemed to be correctable in the record and subject to public disclosure. component requires examiners to normal course of business. For this Do not enclose any information in your identify the organizational structure and rating, all component ratings will comment or supporting materials that ownership and assess any changes. OTS generally be rated 1 or 2. you consider confidential or also reviews the activities of the holding Satisfactory (S): Holding company inappropriate for public disclosure. company and other affiliates to enterprises in this group are those Viewing Comments Electronically: Go determine regulatory compliance and to whose effect on the thrift is considered to http://www.regulations.gov, select assess the risks these activities may pose neutral. Overall, these holding ‘‘Office of Thrift Supervision’’ from the to the thrift. companies exhibit financial conditions agency drop-down menu, then click and operating performance that pose ‘‘Submit.’’ Select Docket ID ‘‘OTS– Relationship only a remote threat to the viability of 2007–0009’’ to view public comments In the Relationship component, the thrift. Satisfactory holding company for this notice of proposed rulemaking. examiners assess the interaction of the enterprises generally do not possess the Viewing Comments On-Site: You may holding company’s board of directors financial strength to be considered a inspect comments at the Public Reading and executive management with the substantial resource to the thrift. These Room, 1700 G Street, NW., by thrift. Examiners reach conclusions companies may be reliant on the thrift appointment. To make an appointment about: for dividends or other sources of funds for access, call (202) 906–5922, send an • The materiality of the thrift to the to service debt; however, their debt level e-mail to [email protected], or holding company or its controlling and expected need for funds from the send a facsimile transmission to (202) shareholders; thrift are not considered overwhelming. For this rating, the components 906–6518. (Prior notice identifying the • The degree of influence the holding should generally be rated 2, but may materials you will be requesting will company has over the thrift and how include components rated 1 or 3. assist us in serving you.) We schedule this influence affects the thrift’s Unsatisfactory (U): This rating is appointments on business days between operations; reserved for holding company 10 a.m. and 4 p.m. In most cases, • Whether the board of directors appointments will be available the next enterprises that impose a detrimental or provides adequate oversight for the burdensome effect on the thrift. Such business day following the date we holding company and its subsidiaries; receive a request. • companies exhibit high levels of various How actively the holding company operating weaknesses that at best are FOR FURTHER INFORMATION CONTACT: is involved in the management of the considered less than satisfactory. There Donna Deale, Director, Holding thrift; exists an inordinate reliance involving Companies and Affiliates, (202) 906– • The degree of interdependence of the thrift. Either the holding company is 7488. the thrift and other entities within the SUPPLEMENTARY INFORMATION: holding company structure; and 1 Component ratings are assigned to all complex The SLHC rating system is a • Whether the board has SLHCs and may be assigned, at the examiner’s management information and implemented effective policies and discretion, to noncomplex SLHCs. When assigned, the four components are rated on a scale of one to supervisory tool that systematically procedures to maintain separate three in descending order of performance quality. indicates the condition of SLHCs. It corporate identities and avoid conflicts The definitions currently in use are set forth in the provides an evaluation of the SLHC’s of interest. OTS Holding Companies Handbook.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00145 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17620 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

inordinately reliant on the thrift for cash Within the Organizational Structure a direct impact on the thrift. OTS flow, or the thrift is inordinately reliant component, examiners would assess believes that using the effect on the on the holding company for critical inherent risk in the context of lines of thrift subsidiary as a SLHC rating operating systems. Without immediate business, operations, affiliate criterion can lead to misinterpretation of corrective action, the thrift’s viability relationships, concentrations, and other the rating. It also may not be as accurate may be impaired. Enterprises deserving exposures. The most significant types of in portraying the condition of the SLHC of this rating will predominantly have risk are defined in the proposed rating enterprise as ratings criteria based on components that are rated 3, although description for the Organizational financial condition, operations, and risk even one component with a 3 rating Structure component. Based on its profile. may suffice to justify an overall U rating experience regulating holding After thoroughly evaluating the if the problems are severe enough. An companies and on a review of similar language in the ratings definitions, OTS Unsatisfactory rating is only given in the guidance by other banking and believes that language emphasizing the most severe circumstances. Such a supervisory agencies, OTS compiled a SLHC’s effect on its thrift subsidiary rating would be comparable to a 4 or 5 comprehensive list of risks that holding limits the supervisory purpose of the composite thrift rating, and would carry company enterprises face. rating. The SLHC’s effect on its thrift the presumption that formal OTS proposes changing the name of subsidiary will continue to be an enforcement action is required, the ‘‘R’’ component from Relationship to important consideration in the pursuant to RB 18–1b. Risk Management. Within the Risk examination process, but the proposal Since the introduction of this rating Management component, examiners does not include such language as rating system, banking organizations and would evaluate corporate governance; criterion. SLHCs have become more complex. board of directors and senior The proposed changes will elevate the Several SLHCs have significant management oversight; policies, prominence of risk management; better international operations and many procedures, and limits; risk monitoring align holding company examination engage in multiple types of financial and management information systems; components with OTS’s supervisory activities. In addition, certain SLHCs and internal controls. OTS recognizes process; and provide a more accurate that existed prior to the enactment of that each SLHC must have the flexibility assessment of the condition of SLHCs. activities restrictions in the Gramm- to tailor risk management programs to OTS recognizes that it bases certain Leach-Bliley Act engage in commercial, its size, complexity, and inherent risks. guidance and administrative processes manufacturing, and other retail OTS also recognizes that its most on the current SLHC rating scale and activities. As of December 2006, SLHCs complex holding companies are highly definitions. OTS anticipates that a rating had aggregate consolidated assets of integrated and may manage risk on an of ‘‘4’’ or ‘‘5’’ will equate to an $7.7 trillion. Because of SLHCs’ enterprise-wide basis, both within and ‘‘unsatisfactory’’ rating for assessment diversity and OTS’s risk focused across business lines and legal entities. and enforcement purposes. OTS expects holding company examination Changes to Rating System to conform existing guidance and approach, the agency’s approach to regulations to incorporate any changes OTS believes that it should refine the holding company examinations and made to the SLHC rating system. ratings must document our assessment current holding company supervisory of the risk profile of the holding approach and ratings system. An Proposed Text of the Savings and Loan company enterprise as well as effective rating system must include an Holding Company Rating System accurate assessment of each enterprise’s management’s ability to identify, Holding Company Rating System measure, monitor, and control risks. financial and managerial condition. The rating system must be flexible and apply The holding company rating system is Changes to Examination Components to holding companies of all sizes and used to assess a holding company’s This document proposes changes to complexity. The current rating scale Capital, Organizational Structure, Risk two of the existing four examination does not facilitate meaningful Management, and Earnings. Using this components. OTS is proposing these distinctions in the strengths and system, OTS comprehensively and changes to place greater emphasis on weaknesses of an enterprise. Therefore, uniformly evaluates all holding risk management. The number of OTS is proposing the use of a five-point company enterprises, focusing components and OTS’s risk focused numeric scale similar to the Uniform supervisory attention on the holding examination approach would not Financial Institution Ratings System company enterprises that are complex change because of this proposal. (UFIRS) and the OTS CAMELS rating or exhibit financial and operational Using a slightly revised approach system. The five-point scale would be weaknesses or adverse trends. The within the CORE framework, OTS will used for both composite and component rating system: review two components that focus on ratings assigned to SLHCs. The use of a • Identifies problem or deteriorating financial condition (Capital and five-point scale will better reflect issues holding company enterprises Earnings) and two other components of supervisory concern and will provide • Categorizes holding company (Organizational Structure and Risk more distinction in the supervisory enterprises with deficiencies in Management) that focus on the activities assessment of condition. A five-point particular areas and operations conducted within the scale also correlates with and is more • Assesses the aggregate strength of enterprise and the SLHC’s risk comparable to the thrift and bank the SLHC industry. management practices. holding company rating systems. Each holding company enterprise With the exception of the ratings OTS proposes to make one other receives a composite rating based on the changes discussed later in this change to the ratings definitions. evaluation factors. document, OTS is not proposing a Historically, OTS has based the rating of Composite and component ratings are change to its philosophy on evaluating the holding company enterprise on its assigned based on a 1 to 5 numeric the financial components (Capital and effect on its subsidiary thrift. OTS has scale. A ‘‘1’’ rating is the highest rating, Earnings). OTS will continue to evaluate encountered situations where it has indicating the strongest performance capital adequacy relative to a given supervisory concerns within the holding and practices and least degree of enterprise’s risk profile. company enterprise, which did not have supervisory concern. A ‘‘5’’ rating is the

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00146 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17621

lowest rating, indicating the weakest risk management practices are risk inherent in an enterprise’s activities performance and the highest degree of satisfactory relative to the enterprise’s and the ability of capital to absorb supervisory concern. size, complexity, and risk profile. unanticipated losses, support business Examiners will use the following Composite 3. A holding company activities including the level and descriptions to assign composite and enterprise in this group raises some composition of the parent company and component ratings to SLHCs. degree of supervisory concern in one or subsidiaries’ debt, and support business more of the component areas, with plans and strategies. Description of the Rating System weaknesses that range from moderate to Capital Rating 1. A rating of 1 Elements severe. The magnitude of the indicates that the consolidated holding Composite Rating deficiencies is generally not severe company enterprise maintains an enough to rate a component more abundant amount of capital to support The composite rating is the overall severely than 4. Management may lack the volume and risk characteristics of its assessment of the holding company the ability or willingness to effectively business lines and products; to provide enterprise as reflected by its address weaknesses within appropriate a significant cushion to absorb organizational structure, risk time frames. This holding company unanticipated losses; and to fully management, and consolidated financial enterprise is less resistant to adverse support the level and composition of strength. The composite rating business conditions. Risk management borrowing. In addition, the enterprise encompasses both a forward-looking practices may be less than satisfactory has abundant capital to support its and current assessment of the relative to the enterprise’s size, business plans and strategies, it has the consolidated enterprise, as well as an complexity, and risk profile. However, ability to enter capital markets to raise assessment of the relationship between there is only a remote threat to the additional capital as necessary, and it the companies in the enterprise. The holding company enterprise’s continued has a strong capital allocation and composite rating is not a simple viability. planning process. numeric average of the CORE Composite 4. A holding company Capital Rating 2. A rating of 2 components; rather, the composite enterprise in this group has serious indicates that the consolidated holding rating reflects OTS’s judgment of the financial or managerial deficiencies that company enterprise maintains adequate relative importance of each component result in unsatisfactory performance. capital to support the volume and risk to the operation of the holding company The supervisory concerns, which characteristics of its business lines and enterprise. Some components may management and the board are not products; to provide a sufficient cushion receive more weight than others satisfactorily addressing, range from to absorb unanticipated losses; and to depending on the SLHC’s activities and severe to critically deficient. A holding support the level and composition of risk profile. Assignment of a composite company enterprise in this group is borrowing. In addition, the enterprise rating may incorporate any factor that generally not capable of withstanding has sufficient capital to support its significantly affects the overall adverse business fluctuations. Risk business plans and strategies, it has the condition of the holding company management practices are generally ability to enter capital markets to raise enterprise, although generally the unacceptable relative to the enterprise’s additional capital when necessary, and composite rating is closely related to the size, complexity, and risk profile. The it has a satisfactory capital allocation component ratings assigned. enterprise may place undue pressure on and planning process. Composite 1. A holding company subsidiaries to meet its cash flow by Capital Rating 3. A rating of 3 enterprise in this group is sound in upstreaming imprudent dividends or indicates that the consolidated holding almost every respect and generally has fees. Unless there is prompt action to company enterprise may not maintain components rated 1 or 2. Any correct these conditions, future viability sufficient capital to support the volume weaknesses are minor, and the board of could be impaired. and risk characteristics of certain directors and management can correct Composite 5. The magnitude and business lines and products; the them in the normal course of business. character of the risk management or unanticipated losses arising from the The enterprise is able to withstand financial weaknesses of a holding activities; or the level and composition economic, financial, and risk exposure company enterprise in this category of borrowing. In addition, the enterprise changes because of solid risk could lead to insolvency without may not maintain a sufficient capital management practices and financial immediate aid from shareholders or position to support its business plans condition. Cash flow is abundant and supervisory action. The volume and and strategies, it may not have the adequately services debt and other severity of problems are beyond the ability to enter into capital markets to obligations. This holding company board and management’s ability or raise additional capital as necessary, or enterprise exhibits strong performance willingness to control or correct. Risk it may not have a sufficient capital and risk management practices relative management practices are inadequate allocation and planning process. The to its size, complexity, and risk profile. relative to the enterprise’s size, capital position of the consolidated Composite 2. A holding company complexity, and risk profile. The holding company enterprise could enterprise in this group is inability to prevent liquidity or capital quickly become inadequate if there is fundamentally sound but may have depletion places the holding company deterioration in operations. modest weaknesses. The board of enterprise’s continued viability in Capital Rating 4. A rating of 4 directors and management are capable serious doubt. indicates that the capital level of the and willing to correct any weaknesses. consolidated holding company Generally, no component rating should Capital Adequacy (C) Component Rating enterprise is significantly below the be more severe than 3 for this holding C reflects the adequacy of an amount needed to ensure support for company enterprise. Risk management enterprise’s consolidated capital the volume and risk characteristics of practices and financial condition create position, from a regulatory perspective certain business lines and products; the stability, and this holding company and an economic capital perspective, as unanticipated losses arising from enterprise is capable of withstanding appropriate to the holding company activities; and the level and composition business fluctuations. Cash flow is enterprise. During OTS’s review of of borrowing. In addition, the adequate to service obligations. Overall, capital adequacy, OTS will consider the weaknesses in the capital position

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00147 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17622 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

prevent the enterprise from supporting Type of risk Description Type of risk Description its business plans and strategies, it may not have the ability to enter into capital Operational .... Operational risk arises from Contagion/Sys- Contagion entails the risk markets to raise additional capital as the potential that inad- temic. that financial difficulties equate information sys- encountered by a busi- necessary, or it has a weak capital tems, operational prob- ness line or subsidiary of allocation or planning process. lems, breaches in internal a holding company could Capital Rating 5. A rating of 5 controls, fraud, or unfore- have an adverse impact indicates that the level of capital of the seen catastrophes will re- on the financial stability of consolidated holding company sult in unexpected losses. the enterprise and pos- Transaction risk arises sibly even on the markets enterprise is critically deficient. from problems with service in which the constituent Immediate assistance from shareholders or product delivery. This parts operate. Systemic or other external sources of financial risk is a function of inter- risk is defined by financial support is required. nal controls, information system instability, poten- systems, employee integ- tially catastrophic, caused Organizational Structure (O) Component rity, and operating proc- or exacerbated by idiosyn- Rating esses. cratic events or conditions Legal/Compli- Legal risk arises from the in financial intermediaries. The O component is an assessment of ance. potential that unenforce- Impacted areas include: the operations and risks in the holding able contracts, lawsuits, or market value of positions, company enterprise. In the O adverse judgments can liquidity, credit-worthiness component, OTS evaluates the disrupt or otherwise nega- of counterparties and obli- gors, default rates, liquida- organizational structure, considering the tively affect the operations or condition of a banking tions, risk premia, and lines of business, affiliate relationships, organization. Compliance valuation uncertainty. concentrations, exposures, and the risk is the risk to earnings Concentration The exposure to losses due overall risk inherent in the structure. or capital arising from vio- to a concentration (assets, OTS’s analysis under the O lations of, or nonconform- liabilities, off-balance- ance with, laws, rules, reg- sheet) at the subsidiary, component considers existing as well as ulations, prescribed prac- business line, and/or en- potential issues and risks. OTS pays tices, or ethical standards. terprise level. particular attention to the following Reputation ...... Reputation risk is the poten- Intra-Group Exposures to risk that result types of risk in assigning the O rating: tial that negative publicity Transactions. from transactions between regarding an institution’s affiliates. Type of risk Description business practices, wheth- Strategic and Strategic and execution risk er true or not, will cause a Execution. is the risk to earnings or Credit ...... Credit risk arises from the decline in the customer capital arising from ad- potential that a borrower base, costly litigation, or verse business decisions or counterparty will fail to revenue reductions. or improper implementa- perform on an obligation. Country/Sov- Country risk arises from the tion of those decisions. Market ...... Market risk is the risk to a fi- ereign. general level of political, fi- This risk is a function of nancial institution’s condi- nancial, and economic un- the compatibility of an or- tion resulting from adverse certainty in a country, ganization’s strategic movements in market which impacts the value of goals, the business strate- rates or prices, such as in- the country’s bonds and gies developed to achieve terest rates, foreign ex- equities. Sovereign risk is those goals, the resources change rates, or equity the risk that a central bank deployed against these prices. will impose foreign ex- goals, and the quality of Liquidity ...... Liquidity risk is the potential change regulations that implementation. The re- that an institution will be will reduce or negate the sources needed to carry unable to meet its obliga- value of foreign exchange out business strategies tions as they come due contracts. It also refers to are both tangible and in- because of an inability to the risk of government de- tangible. They include liquidate assets or obtain fault on a loan made to a communication channels, adequate funding (funding country or guaranteed by operating systems, deliv- liquidity risk) or that it can- it. ery networks, and mana- not easily unwind or offset gerial capacities and capa- specific exposures without bilities. Strategic risk fo- significantly lowering mar- cuses on more than an ket prices because of in- analysis of the written adequate market depth or strategic plan. It focuses market disruptions (market on how plans, systems, liquidity risk). and implementation affect the enterprise’s franchise value. It also incorporates how management ana- lyzes external factors that impact the strategic direc- tion of the company.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17623

Type of risk Description and the board can address them in the Organizational Structure Rating 5. A normal course of business. rating of 5 indicates that there are Insurance Organizational Structure Rating 3. A substantial weaknesses in the rating of 3 indicates that there are organizational structure of the Pricing and The risk that pricing and un- organizational structure weaknesses that enterprise, and/or the nature and level Underwriting derwriting practices are in- raise supervisory concern. The nature of risks associated with the activities Risk. adequate to provide for the risks assumed. and level of risks associated with the are, or pose a high likelihood of Reserving Risk The risk that actual losses or holding company activities are becoming, a significant concern. other contractual pay- moderately likely to cause concern. Strategic growth plans, a deficient ments reflected in reported Intra-group exposures, including control environment, concentrations, reserves or other liabilities servicing agreements, have the potential legal or reputational issues, or other will be greater than esti- to undermine the financial condition of types of risk within the enterprise may mated. other companies in the enterprise. be of critical concern to one or more Strategic growth plans, weaknesses in companies in the enterprise. The Organizational Structure Rating 1. A the control environment, weaknesses identified seriously rating of 1 indicates that the concentrations, legal or reputational jeopardize the continued viability of one organizational structure, including the issues, or other types of risk within the or more companies in the enterprise. enterprise are moderately likely to cause nature and level of risk associated with Risk Management (R) Component Rating the affiliates’ activities, pose minimal regulatory concern. The enterprise has concern. Management controls and one or more entities in the structure that R represents OTS’s evaluation of the monitors intra-group exposures. Any could adversely affect the operation of ability of the directors and senior concerns posed by strategic plans, the other entities in the enterprise if management, as appropriate for their control environment, concentrations, management does not take corrective respective positions, to identify, legal or reputational issues, or other action. measure, monitor, and control risk. The types of risk within the enterprise are Organizational Structure Rating 4. A R rating underscores the importance of the control environment, taking into minor, and management and the board rating of 4 indicates that there are consideration the complexity of the can address them in the normal course weaknesses in the organizational structure of the enterprise, and/or the enterprise and the risk inherent in its of business. nature and level of risks associated with activities. Organizational Structure Rating 2. A the holding company’s activities are, or The R rating includes an assessment rating of 2 indicates that the have a considerable likelihood of of four areas: board and senior organizational structure exhibits minor becoming, a cause for concern. Intra- management oversight; policies, weaknesses, but the nature and level of group exposures, including servicing procedures, and limits; risk monitoring risks associated with the holding agreements, may also have the and management information systems; company’s activities are unlikely to be immediate potential to undermine the and internal controls. These areas are material concerns. Intra-group operations of companies in the evaluated in the context of inherent exposures, including servicing enterprise. Strategic growth plans, risks as related to the size and agreements, are generally acceptable, weaknesses in the control environment, complexity of the holding company’s but isolated transactions or exposures concentrations, legal or reputational operations. They provide a consistent may present limited cause for regulatory issues, or other types of risk within the framework for evaluating risk concern. Concerns posed by strategic enterprise may be of considerable cause management and the control plans, the control environment, for regulatory concern. The weaknesses environment. Moreover, a consistent concentrations, legal or reputational identified could seriously affect the review of these four areas provides a issues, or other types of risks within the operation of one or more companies in clear structure and basis for discussion enterprise are modest, and management the enterprise. of the R rating.

Risk management element Description

Governance/Board and Senior Management This area evaluates the adequacy and effectiveness of board and senior management’s un- Oversight. derstanding and management of risk inherent in the holding company enterprise’s activities, as well as the general capabilities of management. It also considers management’s ability to identify, understand, and control the risks within the holding company enterprise, to hire competent staff, and to respond to changes in risk profile or changes in the holding com- pany’s operating sectors. Policies, Procedures, and Limits ...... This area evaluates the adequacy of policies, procedures, and limits given the risks inherent in the activities of the consolidated enterprise and its stated goals and objectives. OTS’s anal- ysis considers the adequacy of the enterprise’s accounting and risk disclosure policies and procedures. Risk Monitoring and Management Information This area assesses the adequacy of risk measurement and monitoring, and the adequacy of Systems. the holding company’s management reports and information systems. Include a review of the assumptions, data, and procedures used to measure risk and the consistency of these tools with the level of complexity of the enterprise’s activities. Internal Controls ...... This area evaluates the adequacy of internal controls and internal audit procedures, including the accuracy of financial reporting and disclosure and the strength and influence of the inter- nal audit team. Include a review of the independence of control areas from management and the consistency of the scope coverage of the internal audit team with the complexity of the enterprise.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00149 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17624 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Risk Management Rating 1. A rating depth are generally appropriate to of the four elements of sound risk of 1 indicates that management manage the risks assumed. Internal management is wholly deficient, and effectively identifies and controls all controls may display modest management and the board have not major enterprise risks. Management is weaknesses or deficiencies, but they are demonstrated the capability to address fully prepared to address risks correctable in the normal course of these deficiencies. Internal controls are emanating from new products and business. The examiner may have critically weak and could seriously changing market conditions. The board recommendations for improvement, but jeopardize the continued viability of the and management are forward-looking the weaknesses noted should not have enterprise. If not already evident, there and active participants in managing a significant effect on the condition of is an immediate concern about the risk. Management ensures that the enterprise. reliability of accounting records and appropriate policies and limits exist and Risk Management Rating 3. A rating regulatory reports and the potential for that the board understands, reviews, of 3 signifies that there are moderate losses if corrective measures are not and approves them. Policies and limits deficiencies in risk management taken immediately. Deficiencies in the are supported by risk monitoring practices and, therefore, there is a cause enterprise’s risk management procedures, reports, and management for additional supervisory attention. procedures and internal controls require information systems that provide One or more of the four elements of immediate and close supervisory management and the board with the sound risk management is not attention. acceptable, which precludes the information and analysis necessary to Earnings (E) Component Rating make timely and appropriate decisions enterprise from fully addressing one or in response to changing conditions. Risk more significant risks to its operations. E reflects the consolidated holding management practices and the Certain risk management practices need company enterprise’s overall financial enterprise’s infrastructure are flexible improvement to ensure that performance, including measures such and highly responsive to changing management and the board are able to as the quality of consolidated earnings, industry practices and current identify, monitor, and control all profitability, and liquidity. OTS’s regulatory guidance. Staff has sufficient significant risks. In addition, the risk review of this area considers the level, expertise and depth to manage the risks management structure may need trend, and sources of earnings on a assumed. Internal controls and audit improvement in areas of significant consolidated level as well as for procedures are sufficiently business activity, or staff expertise may material legal entities or business lines. OTS also assesses the ability of earnings comprehensive and appropriate to the not be commensurate with the scope to augment capital and to provide size and activities of the holding and complexity of business activities. ongoing support for an enterprise’s company. There are few noted Management’s response to changing activities. exceptions to the enterprise’s industry practices and regulatory guidance may not be sufficient. The Within this component, OTS also established policies and procedures, considers the liquidity of the enterprise. and none is material. Management internal control system may be lacking in some important aspects, leading to This rating reflects the consolidated effectively and accurately monitors and holding company enterprise’s ability to manages the enterprise consistent with continued control exceptions or failure to adhere to written policies and attract and maintain the sources of applicable laws, regulations, and funds necessary to achieve financial guidance, and in accordance with procedures. The risk management weaknesses could have adverse effects if efficiency, support operations, and meet internal policies and procedures. Risk management does not take corrective obligations. OTS evaluates the funding management processes are fully action. conditions for each of the material legal effective in identifying, monitoring, and Risk Management Rating 4. A rating entities in the holding company controlling risks. of 4 represents deficient risk structure to determine if any Risk Management Rating 2. A rating management practices that fail to weaknesses exist that could affect the of 2 indicates that the enterprise’s identify, monitor, and control funding profile of the consolidated management of risk is largely effective, significant risk exposures in material enterprise. but exhibits some minor weaknesses. respects. There is a general lack of Earnings Rating 1. A rating of 1 Management and the board demonstrate adequate guidance and supervision by indicates that the consolidated holding a responsiveness and ability to cope management and the board. One or company enterprise’s overall financial successfully with existing and more of the four elements of sound risk performance is solid. The quantity and foreseeable risks in the business plans. management is deficient and requires quality of earnings for material business While the enterprise may have some immediate and concerted corrective lines and subsidiaries are sufficient to minor risk management weaknesses, action by the board and management. make full provision for the absorption of management and the board have The enterprise may have serious losses and/or accretion of capital in recognized and are resolving these identified weaknesses that require light of asset quality and business plan problems. Overall, board and senior substantial improvement in internal objectives. The enterprise has strong management oversight, policies and control, accounting procedures, or liquidity levels along with well- limits, risk monitoring procedures, adherence to laws, regulations, and developed funds management practices. reports, and management information supervisory guidance. The risk The parent company and subsidiaries systems are satisfactory and effective. management deficiencies warrant a high have reliable and sufficient access to Risks are controlled and do not require degree of supervisory attention because, sources of funds on favorable terms to additional supervisory attention. The unless properly addressed, they could meet present and anticipated liquidity holding company enterprise’s risk seriously affect the condition of the needs. management practices and holding company enterprise. Earnings Rating 2. A rating of 2 infrastructure are satisfactory, and Risk Management Rating 5. A rating indicates that the consolidated holding management makes appropriate of 5 indicates a critical absence of company enterprise’s financial adjustments in response to changing effective risk management practices in performance is adequate. The quantity industry practices and current identifying, monitoring, or controlling and quality of the earnings for major regulatory guidance. Staff expertise and significant risk exposures. One or more business lines and subsidiaries are

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00150 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17625

generally adequate to make provision enterprise’s solvency through erosion of SUPPLEMENTARY INFORMATION: Under the for the absorption of losses and/or capital. In addition, the liquidity levels PRA of 1995 (Public Law 104–13; 44 accretion of capital in light of asset or funds management practices are U.S.C. 3501–21), Federal agencies must quality and business plan objectives. critically deficient and may threaten obtain approval from the Office of The enterprise maintains satisfactory continued viability. The enterprise Management and Budget (OMB) for each liquidity levels and funds management requires immediate external financial collection of information they conduct practices. The parent company and assistance to meet maturing obligations or sponsor. This request for comment is subsidiaries have access to sufficient or other liquidity needs. being made pursuant to Section sources of funds on acceptable terms to Dated: April 3, 2007. 3506(c)(2)(A) of the PRA. meet present and anticipated liquidity By the Office of Thrift Supervision. With respect to the following needs. Modest weaknesses in funds Scott M. Polakoff, management practices may be evident, collection of information, NCA invites Deputy Director & Chief Operating Officer. but management and the board can comments on: (1) Whether the proposed correct those weaknesses in the normal [FR Doc. E7–6602 Filed 4–6–07; 8:45 am] collection of information is necessary course of business. BILLING CODE 6720–01–P for the proper performance of NCA’s Earnings Rating 3. A rating of 3 functions, including whether the indicates that the consolidated holding information will have practical utility; company enterprise’s financial DEPARTMENT OF VETERANS (2) the accuracy of NCA’s estimate of the performance exhibits modest AFFAIRS burden of the proposed collection of weaknesses. Major business line and [OMB Control No. 2900–0222] information; (3) ways to enhance the subsidiary earnings are not fully quality, utility, and clarity of the adequate to make provisions for the Proposed Information Collection information to be collected; and (4) absorption of losses and the accretion of Activity: Proposed Collection; ways to minimize the burden of the capital in relation to the business plan Comment Request collection of information on objectives. The financial performance of respondents, including through the use this enterprise may reflect static or AGENCY: National Cemetery inconsistent earnings trends, Administration, Department of Veterans of automated collection techniques or chronically insufficient earnings, or less Affairs. the use of other forms of information technology. than satisfactory asset quality. This ACTION: Notice. enterprise’s liquidity levels or funds Title: Application for Standard management practices may need SUMMARY: The National Cemetery Government Headstone or Marker for improvement. The enterprise may lack Administration (NCA), Department of Installation in a Private or State ready access to funds on reasonable Veterans Affairs (VA), is announcing an Veterans’ Cemetery, VA Form 40–1330. terms or may evidence significant opportunity for public comment on the OMB Control Number: 2900–0222. weaknesses in funds management proposed collection of certain practices at the parent company or information by the agency. Under the Type of Review: Extension of a subsidiary levels. However, these Paperwork Reduction Act (PRA) of currently approved collection. deficiencies are correctable in the 1995, Federal agencies are required to Abstract: The next of kin or other normal course of business with publish notice in the Federal Register responsible parties of deceased veterans sufficient board and management concerning each proposed collection of complete VA Form 40–1330 to apply for attention. information, including each proposed Government provided headstones or Earnings Rating 4. A rating of 4 extension of a currently approved markers for unmarked graves. VA uses indicates that the consolidated holding collection for which approval has the data collected to determine the company enterprise’s financial expired, and allow 60 days for public performance is weak. Major business veteran’s eligibility for headstone or comment in response to the notice. This marker. line or subsidiary earnings are notice solicits comments on the insufficient to provide for losses and the information needed to obtain a Affected Public: Individuals or necessary accretion of capital. The government headstone or grave marker. Households. enterprise may exhibit erratic DATES: Written comments and Estimated Annual Burden: 83,500 fluctuations in net income, poor recommendations on the proposed hours. earnings (and the likelihood of a further collection of information should be Estimated Average Burden Per downward trend), intermittent losses, received on or before June 8, 2007. chronically depressed earnings, or a Respondent: 15 minutes. ADDRESSES: substantial drop from previous Submit written comments Frequency of Response: On occasion. on the collection of information through performance. The liquidity levels or Estimated Number of Respondents: funds management practices of this www.Regulations.gov; or to Mechelle 334,000. holding company enterprise may be Powell, National Cemetery deficient. The enterprise may not have Administration (40D), Department of Dated: March 29, 2007. or be able to obtain a sufficient volume Veterans Affairs, 810 Vermont Avenue, By direction of the Secretary. NW., Washington, DC 20420; or e-mail: of funds on reasonable terms to meet Denise McLamb, liquidity needs at the parent company [email protected]. Please refer to ‘‘OMB Control No. 2900–0222’’ in any Program Analyst, Records Management or subsidiary levels. Service. Earnings Rating 5. A rating of 5 correspondence. During the comment indicates that the consolidated holding period, comments may be viewed online [FR Doc. E7–6513 Filed 4–6–07; 8:45 am] company enterprise has poor financial through the Federal Docket Management BILLING CODE 8320–01–P performance and one or more business System (FDMS) at www.Regulations.gov. lines or subsidiaries are experiencing FOR FURTHER INFORMATION CONTACT: losses. Such losses, if not reversed, Mechelle Powell at (202) 501–1960 or represent a distinct threat to the FAX (202) 273–9381.

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00151 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17626 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

DEPARTMENT OF VETERANS information will have practical utility; 1995, Federal agencies are required to AFFAIRS (2) the accuracy of VBA’s estimate of the publish notice in the Federal Register burden of the proposed collection of concerning each proposed collection of [OMB Control No. 2900–0051] information; (3) ways to enhance the information, including each proposed Proposed Information Collection quality, utility, and clarity of the extension of a currently approved Activity: Proposed Collection; information to be collected; and (4) collection and allow 60 days for public Comment Request ways to minimize the burden of the comment in response to the notice. This collection of information on notice solicits comments for information AGENCY: Veterans Benefits respondents, including through the use needed to approve licensing and Administration, Department of Veterans of automated collection techniques or certification tests for payment. Affairs. the use of other forms of information DATES: Written comments and ACTION: Notice. technology. recommendations on the proposed Title: Quarterly Report of State collection of information should be SUMMARY: The Veterans Benefits Approving Agency Activities. received on or before June 8, 2007. Administration (VBA), Department of OMB Control Number: 2900–0051. ADDRESSES: Submit written comments Veterans Affairs (VA), is announcing an Type of Review: Extension of a on the collection of information through opportunity for public comment on the currently approved collection. www.Regulations.gov or to Nancy J. proposed collection of certain Abstract: VA reimburses State Kessinger, Veterans Benefits information by the agency. Under the Approving Agencies (SAAs) for Administration (20M35), Department of Paperwork Reduction Act (PRA) of necessary salary, fringe and travel Veterans Affairs, 810 Vermont Avenue, 1995, Federal agencies are required to expenses incurred in the approval and NW., Washington, DC 20420 or e-mail to publish notice in the Federal Register supervision of education and training [email protected]. Please refer to concerning each proposed collection of programs. SAAs are required to report ‘‘OMB Control No. 2900–0697’’ in any information, including each proposed their activities to VA quarterly and correspondence. During the comment extension of a currently approved provide notices regarding which period, comments may be viewed online collection and allow 60 days for public courses, training programs and tests through the Federal Docket Management comment in response to the notice. This were approved, disapproved or System (FDMS) at www.Regulations.gov. notice solicits comments on the suspended. information needed to accurately Affected Public: Federal Government, FOR FURTHER INFORMATION CONTACT: reimburse State Approving Agencies and State, Local or Tribal Government. Nancy J. Kessinger at (202) 273–7079 or (SAAs) for expenses incurred in the Estimated Annual Burden: 37,647 FAX (202) 275–5947. approval and supervision of education hours. SUPPLEMENTARY INFORMATION: Under the and training programs. Estimated Average Burden Per PRA of 1995 (Public Law 104–13; 44 DATES: Written comments and Respondent: 1 hour. U.S.C. 3501—3521), Federal agencies recommendations on the proposed Frequency of Response: Quarterly. must obtain approval from the Office of collection of information should be Estimated Number of Respondents: Management and Budget (OMB) for each received on or before June 8, 2007. 59. collection of information they conduct ADDRESSES: Submit written comments Estimated Number of Responses: or sponsor. This request for comment is on the collection of information through 3,637. being made pursuant to Section www.Regulations.gov or to Nancy J. Dated: March 29, 2007. 3506(c)(2)(A) of the PRA. Kessinger, Veterans Benefits By direction of the Secretary. With respect to the following Administration (20M35), Department of Denise McLamb, collection of information, VBA invites Veterans Affairs, 810 Vermont Avenue, comments on: (1) Whether the proposed NW., Washington, DC 20420 or e-mail to Program Analyst, Records Management Service. collection of information is necessary [email protected]. Please refer to for the proper performance of VBA’s [FR Doc. E7–6514 Filed 4–6–07; 8:45 am] ‘‘OMB Control No. 2900–0051’’ in any functions, including whether the correspondence. During the comment BILLING CODE 8320–01–P information will have practical utility; period, comments may be viewed online (2) the accuracy of VBA’s estimate of the through the Federal Docket Management DEPARTMENT OF VETERANS burden of the proposed collection of System (FDMS) at www.Regulations.gov. AFFAIRS information; (3) ways to enhance the FOR FURTHER INFORMATION CONTACT: quality, utility, and clarity of the Nancy J. Kessinger at (202) 273–7079 or [OMB Control No. 2900–0697] information to be collected; and (4) FAX (202) 275–5947. ways to minimize the burden of the Proposed Information Collection SUPPLEMENTARY INFORMATION: Under the collection of information on Activity: Proposed Collection; respondents, including through the use PRA of 1995 (Public Law 104–13; 44 Comment Request U.S.C. 3501–3521), Federal agencies of automated collection techniques or must obtain approval from the Office of AGENCY: Veterans Benefits the use of other forms of information Management and Budget (OMB) for each Administration, Department of Veterans technology. collection of information they conduct Affairs. Title: Application for Approval of a or sponsor. This request for comment is ACTION: Notice. Licensing or Certification and being made pursuant to Section Organization Entity: 38 CFR 21.4268. 3506(c)(2)(A) of the PRA. SUMMARY: The Veterans Benefits OMB Control Number: 2900–0697. With respect to the following Administration (VBA), Department of Type of Review: Extension of a collection of information, VBA invites Veterans Affairs (VA), is announcing an currently approved collection. comments on: (1) Whether the proposed opportunity for public comment on the Abstract: The data collected will be collection of information is necessary proposed collection of certain used to determine whether licensing for the proper performance of VBA’s information by the agency. Under the and certification tests, and the functions, including whether the Paperwork Reduction Act (PRA) of organizations offering them, should be

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17627

approved for VA training under FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF VETERANS education programs VA administers. Nancy J. Kessinger at (202) 273–7079 or AFFAIRS Affected Public: Individuals or FAX (202) 275–5947. [OMB Control No. 2900–0325] households. SUPPLEMENTARY INFORMATION: Under the Estimated Annual Burden: 3,000 PRA of 1995 (Public Law 104–13; 44 Proposed Information Collection hours. U.S.C. 3501—3521), Federal agencies Activity: Proposed Collection; Frequency of Response: On occasion. must obtain approval from the Office of Comment Request Estimated Average Burden Per Management and Budget (OMB) for each AGENCY: Veterans Benefits Respondents: 3 hours. collection of information they conduct Administration, Department of Veterans Estimated Annual Responses: 1,000. or sponsor. This request for comment is Affairs. Dated: March 29, 2007. being made pursuant to Section ACTION: Notice. By direction of the Secretary. 3506(c)(2)(A) of the PRA. Denise McLamb, With respect to the following SUMMARY: The Veterans Benefits Program Analyst, Records Management collection of information, VBA invites Administration (VBA), Department of Service. comments on: (1) Whether the proposed Veterans Affairs (VA), is announcing an [FR Doc. E7–6515 Filed 4–6–07; 8:45 am] collection of information is necessary opportunity for public comment on the BILLING CODE 8320–01–P for the proper performance of VBA’s proposed collection of certain functions, including whether the information by the agency. Under the information will have practical utility; Paperwork Reduction Act (PRA) of DEPARTMENT OF VETERANS (2) the accuracy of VBA’s estimate of the 1995, Federal agencies are required to AFFAIRS burden of the proposed collection of publish notice in the Federal Register information; (3) ways to enhance the concerning each proposed collection of [OMB Control No. 2900–0249] quality, utility, and clarity of the information, including each proposed information to be collected; and (4) extension of a currently approved Proposed Information Collection ways to minimize the burden of the collection, and allow 60 days for public Activity: Proposed Collection; collection of information on comment in response to the notice. This Comment Request respondents, including through the use notice solicits comments on information of automated collection techniques or needed to authorize advance payment of AGENCY: Veterans Benefits the use of other forms of information educational assistance benefits. Administration, Department of Veterans technology. DATES: Written comments and Affairs. Title: Loan Service Report, VA Form recommendations on the proposed ACTION: Notice. 26–6808. collection of information should be received on or before June 8, 2007. SUMMARY: The Veterans Benefits OMB Control Number: 2900–0249. ADDRESSES: Submit written comments Administration (VBA), Department of Type of Review: Extension of a on the collection of information through Veterans Affairs (VA), is announcing an currently approved collection. www.Regulations.gov or to Nancy J. opportunity for public comment on the Abstract: VA personnel complete VA Kessinger, Veterans Benefits proposed collection of certain Form 26–6806 during personal contact Administration (20M35), Department of information by the agency. Under the with delinquent obligors. VA will use Veterans Affairs, 810 Vermont Avenue, Paperwork Reduction Act (PRA) of the information collected to determine NW., Washington, DC 20420 or e-mail to 1995, Federal agencies are required to whether a loan default is insoluble or [email protected]. Please refer to publish notice in the Federal Register whether the obligor has reasonable ‘‘OMB Control No. 2900–0325’’ in any concerning each proposed collection of prospects for curing the default and correspondence. During the comment information, including each proposed maintaining the mortgage obligation in period, comments may be viewed online extension of a currently approved the future. The information will also be through the Federal Docket Management collection, and allow 60 days for public used to intercede with the holder of the System (FDMS) at www.Regulations.gov. comment in response to the notice. This loan to accept a specially arrange FOR FURTHER INFORMATION CONTACT: notice solicits comments for information repayment plan or other forbearance Nancy J. Kessinger at (202) 273–7079 or needed to service delinquent home aimed at assisting the obligor in FAX (202) 275–5947. loans. retaining his or her home. SUPPLEMENTARY INFORMATION: Under the DATES: Written comments and Affected Public: Individuals or PRA of 1995 (Public Law 104–13; 44 recommendations on the proposed households. U.S.C. 3501–3521), Federal agencies collection of information should be Estimated Annual Burden: 6,250 must obtain approval from the Office of received on or before June 8, 2007. hours. Management and Budget (OMB) for each ADDRESSES: Submit written comments Estimated Average Burden Per collection of information they conduct on the collection of information through Respondent: 25 minutes. or sponsor. This request for comment is www.Regulations.gov or to Nancy J. Frequency of Response: On occasion. being made pursuant to Section Kessinger, Veterans Benefits Estimated Number of Respondents: 3506(c)(2)(A) of the PRA. Administration (20M35), Department of With respect to the following 15,000. Veterans Affairs, 810 Vermont Avenue, collection of information, VBA invites NW., Washington, DC 20420 or e-mail to Dated: March 29, 2007. comments on: (1) Whether the proposed [email protected]. Please refer to By direction of the Secretary. collection of information is necessary ‘‘OMB Control No. 2900–0249’’ in any Denise McLamb, for the proper performance of VBA’s correspondence. During the comment Program Analyst, Records Management functions, including whether the period, comments may be viewed online Service. information will have practical utility; through the Federal Docket Management [FR Doc. E7–6516 Filed 4–6–07; 8:45 am] (2) the accuracy of VBA’s estimate of the System (FDMS) at www.Regulations.gov. BILLING CODE 8320–01–P burden of the proposed collection of

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17628 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

information; (3) ways to enhance the Veterans Affairs (VA), is announcing an Type of Review: Extension of a quality, utility, and clarity of the opportunity for public comment on the currently approved collection. information to be collected; and (4) proposed collection of certain Abstract: VA Form 21–0537 is used to ways to minimize the burden of the information by the agency. Under the confirm the marital status of a surviving collection of information on Paperwork Reduction Act (PRA) of spouse receiving dependency and respondents, including through the use 1995, Federal agencies are required to indemnity compensation benefits (DIC). of automated collection techniques or publish notice in the Federal Register If a surviving spouse remarries, he or the use of other forms of information concerning each proposed collection of she is no longer entitled to DIC unless technology. information, including each proposed the marriage began after age 57 or has Title: Certificate of Delivery of extension of a currently approved been terminated. Advance Payment and Enrollment, VA collection, and allow 60 days for public Affected Public: Individuals or Form 22–1999V. comment in response to the notice. This households. OMB Control Number: 2900–0325. notice solicits comments on the Estimated Annual Burden: 189 hours. Type of Review: Extension of a information needed to determine Estimated Average Burden Per currently approved collection. whether surviving spouses are entitled Respondent: 5 minutes. Abstract: VA will make payments of to dependency and indemnity Frequency of Response: On occasion. educational assistance in advance when compensation (DIC) benefits. Estimated Number of Respondents: the veteran, servivcemember, reservist, 2,270. DATES: Written comments and or eligible person has specifically recommendations on the proposed Dated: March 29, 2007. requested such payment. The school in collection of information should be By direction of the Secretary. which a student is accepted or enrolled received on or before June 8, 2007. Denise McLamb, delivers the advance payment to the student and is required to certify the ADDRESSES: Submit written comments Program Analyst, Records Management Service. deliveries to VA. VA Form 22–1999V on the collection of information through serves as the certificate of delivery of www.Regulations.gov or to Nancy J. [FR Doc. E7–6520 Filed 4–6–07; 8:45 am] advance payment and to report any Kessinger, Veterans Benefits BILLING CODE 8320–01–P changes in the student’s training status. Administration (20M35), Department of The schools are required to report the Veterans Affairs, 810 Vermont Avenue, DEPARTMENT OF VETERANS following to VA: the failure of the NW., Washington, DC 20420 or e-mail to AFFAIRS student to enroll; an interruption or [email protected]. Please refer to termination of attendance; or a finding ‘‘OMB Control No. 2900–0495’’ in any [OMB Control No. 2900–0695] of unsatisfactory attendance, conduct or correspondence. During the comment progress. period, comments may be viewed online Proposed Information Collection Affected Public: State, Local or Tribal through the Federal Docket Management Activity: Proposed Collection; Government, Business or other for- System (FDMS) at www.Regulations.gov. Comment Request profit, and Not-for-profit institutions. FOR FURTHER INFORMATION CONTACT: AGENCY: Veterans Benefits Estimated Annual Burden: 1,551 Nancy J. Kessinger at (202) 273–7079 or Administration, Department of Veterans hours. FAX (202) 275–5947. Affairs. Estimated Average Burden Per SUPPLEMENTARY INFORMATION: Under the Respondent: 5 minutes. ACTION: Notice. Frequency of Response: On occasion. PRA of 1995 (Public Law 104–13; 44 SUMMARY: The Veterans Benefits Estimated Number of Respondents: U.S.C. 3501–3521), Federal agencies Administration (VBA), Department of 2,807. must obtain approval from the Office of Estimated Total Number of Management and Budget (OMB) for each Veterans Affairs (VA), is announcing an Respondents: 18,614. collection of information they conduct opportunity for public comment on the or sponsor. This request for comment is proposed collection of certain Dated: March 29, 2007. being made pursuant to Section information by the agency. Under the By direction of the Secretary. 3506(c)(2)(A) of the PRA. Paperwork Reduction Act (PRA) of Denise McLamb, With respect to the following 1995, Federal agencies are required to Program Analyst, Records Management collection of information, VBA invites publish notice in the Federal Register Service. comments on: (1) Whether the proposed concerning each proposed collection of [FR Doc. E7–6518 Filed 4–6–07; 8:45 am] collection of information is necessary information, including each proposed BILLING CODE 8320–01–P for the proper performance of VBA’s extension of a currently approved functions, including whether the collection and allow 60 days for public information will have practical utility; comment in response to the notice. This DEPARTMENT OF VETERANS (2) the accuracy of VBA’s estimate of the notice solicits comments for information AFFAIRS burden of the proposed collection of needed to determine an applicant’s [OMB Control No. 2900–0495] information; (3) ways to enhance the eligibility for reimbursement of quality, utility, and clarity of the licensing and certification test fees. Proposed Information Collection information to be collected; and (4) DATES: Written comments and Activity: Proposed Collection; ways to minimize the burden of the recommendations on the proposed Comment Request collection of information on collection of information should be AGENCY: Veterans Benefits respondents, including through the use received on or before June 8, 2007. Administration, Department of Veterans of automated collection techniques or ADDRESSES: Submit written comments Affairs. the use of other forms of information on the collection of information through technology. ACTION: Notice. www.Regulations.gov or to Nancy J. Titles: Marital Status Questionnaire, Kessinger, Veterans Benefits SUMMARY: The Veterans Benefits VA Form 21–0537. Administration (20M35), Department of Administration (VBA), Department of OMB Control Number: 2900–0495. Veterans Affairs, 810 Vermont Avenue,

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17629

NW., Washington, DC 20420 or e-mail to DEPARTMENT OF VETERANS burden of the proposed collection of [email protected]. Please refer to AFFAIRS information; (3) ways to enhance the quality, utility, and clarity of the ‘‘OMB Control No. 2900–0695’’ in any [OMB Control No. 2900–0559] correspondence. During the comment information to be collected; and (4) period, comments may be viewed online Proposed Information Collection ways to minimize the burden of the through the Federal Docket Management Activity: Proposed Collection; collection of information on System (FDMS) at www.Regulations.gov. Comment Request respondents, including through the use of automated collection techniques or FOR FURTHER INFORMATION CONTACT: AGENCY: National Cemetery the use of other forms of information Nancy J. Kessinger at (202) 273–7079 or Administration, Department of Veterans technology. FAX (202) 275–5947. Affairs. Title: State Cemetery Data, VA Form SUPPLEMENTARY INFORMATION: Under the ACTION: Notice. 40–0241. PRA of 1995 (Public Law 104–13; 44 OMB Control Number: 2900–0559. SUMMARY: The National Cemetery Type of Review: Extension of a U.S.C. 3501–3521), Federal agencies Administration (NCA), Department of currently approved collection. must obtain approval from the Office of Veterans Affairs (VA), is announcing an Abstract: VA Form 40–0241 is used to Management and Budget (OMB) for each opportunity for public comment on the provide data regarding number of collection of information they conduct proposed collection of certain interments conducted at State veterans’ or sponsor. This request for comment is information by the agency. Under the cemeteries each year. The State being made pursuant to Section Paperwork Reduction Act (PRA) of Cemetery Grants Services use the data 3506(c)(2)(A) of the PRA. 1995, Federal agencies are required to collected to project the need for With respect to the following publish notice in the Federal Register additional burial space and to collection of information, VBA invites concerning each proposed collection of demonstrate to the States (especially comments on: (1) Whether the proposed information, including each proposed those without State veterans’ collection of information is necessary extension of a currently approved cemeteries) the viability of the program. collection and allow 60 days for public for the proper performance of VBA’s Affected Public: Federal Government, comment in response to the notice. This functions, including whether the and State, Local or Tribal Government. notice solicits comments on the Estimated Annual Burden Hours: 65. information will have practical utility; information needed to determine the (2) the accuracy of VBA’s estimate of the Estimated Average Burden Per number of interments conducted at Respondent: 60 minutes. burden of the proposed collection of State veterans’ cemeteries. information; (3) ways to enhance the Frequency of Response: Annually. DATES: Written comments and Estimated Number of Respondents: quality, utility, and clarity of the recommendations on the proposed 65. information to be collected; and (4) collection of information should be Dated: March 29, 2007. ways to minimize the burden of the received on or before June 8, 2007. collection of information on By direction of the Secretary. ADDRESSES: Submit written comments Denise McLamb, respondents, including through the use on the collection of information through of automated collection techniques or www.Regulations.gov; or to Mechelle Program Analyst, Records Management Service. the use of other forms of information Powell, National Cemetery technology. Administration (40D), Department of [FR Doc. E7–6522 Filed 4–6–07; 8:45 am] Title: Application for Reimbursement Veterans Affairs, 810 Vermont Avenue, BILLING CODE 8320–01–P of Licensing or Certification Test Fees, NW., Washington, DC 20420; or e-mail: 38 CFR 21.1030(b), 21–7140(c)(4). [email protected]. Please refer to DEPARTMENT OF VETERANS OMB Control Number: 2900–0695. ‘‘OMB Control No. 2900–0559’’ in any AFFAIRS correspondence. During the comment Type of Review: Extension of a period, comments may be viewed online [OMB Control No. 2900–0365] currently approved collection. through the Federal Docket Management Abstract: Claimants complete VA System (FDMS) at www.Regulations.gov. Proposed Information Collection Activity: Proposed Collection; Form 22–0803 to request reimbursement FOR FURTHER INFORMATION CONTACT: Comment Request of licensing or certification fees paid. Mechelle Powell at (202) 501–1960 or Affected Public: Individuals or FAX (202) 273–6695. AGENCY: National Cemetery households. SUPPLEMENTARY INFORMATION: Under the Administration, Department of Veterans PRA of 1995 (Public Law 104–13; 44 Affairs. Estimated Annual Burden: 1,590 U.S.C. 3501–3521), Federal agencies ACTION: Notice. hours. must obtain approval from the Office of Frequency of Response: On occasion. Management and Budget (OMB) for each SUMMARY: The National Cemetery Estimated Average Burden Per collection of information they conduct Administration (NCA), Department of Respondents: 15 minutes. or sponsor. This request for comment is Veterans Affairs (VA), is announcing an being made pursuant to Section opportunity for public comment on the Estimated Annual Responses: 6,361. 3506(c)(2)(A) of the PRA. proposed collection of certain Dated: March 29, 2007. With respect to the following information by the agency. Under the By direction of the Secretary. collection of information, NCA invites Paperwork Reduction Act (PRA) of Denise McLamb, comments on: (1) Whether the proposed 1995, Federal agencies are required to collection of information is necessary publish notice in the Federal Register Program Analyst, Records Management for the proper performance of NCA’s concerning each proposed collection of Service. functions, including whether the information, including each proposed [FR Doc. E7–6521 Filed 4–6–07; 8:45 am] information will have practical utility; extension of a currently approved BILLING CODE 8320–01–P (2) the accuracy of NCA’s estimate of the collection and allow 60 days for public

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES 17630 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

comment in response to the notice. This provide a written consent before FOR FURTHER INFORMATION CONTACT: notice solicits comments on the disinterment is granted. VA will accept Mary Stout at (202) 273–8664. information needed to determine a an order from a court of local SUPPLEMENTARY INFORMATION: Under the claimant entitlement to disinter the jurisdiction in lieu of VA Form 40– PRA of 1995 (Public Law 104–13; 44 remains of a loved one from or within 4970. U.S.C. 3501–3521), Federal agencies a national cemetery. Affected Public: Individuals or households. must obtain approval from the Office of DATES: Written comments and Management and Budget (OMB) for each recommendations on the proposed Estimated Annual Burden Hours: 55. Estimated Average Burden Per collection of information they conduct collection of information should be or sponsor. This request for comment is received on or before June 8, 2007. Respondent: 10 minutes. Frequency of Response: On occasion. being made pursuant to Section ADDRESSES: Submit written comments Estimated Number of Respondents: 3506(c)(2)(A) of the PRA. on the collection of information through 329. With respect to the following www.Regulations.gov; or to Mechelle collection of information, VHA invites Powell, National Cemetery Dated: March 29, 2007. comments on: (1) Whether the proposed Administration (40D), Department of By direction of the Secretary. collection of information is necessary Veterans Affairs, 810 Vermont Avenue, Denise McLamb, for the proper performance of VHA’s NW., Washington, DC 20420; or e-mail: Records Management Service. functions, including whether the [email protected]. Please refer to [FR Doc. E7–6524 Filed 4–6–07; 8:45 am] information will have practical utility; ‘‘OMB Control No. 2900–0365’’ in any BILLING CODE 8320–01–P (2) the accuracy of VHA’s estimate of correspondence. During the comment the burden of the proposed collection of period, comments may be viewed online information; (3) ways to enhance the through the Federal Docket Management DEPARTMENT OF VETERANS quality, utility, and clarity of the System (FDMS) at www.Regulations.gov. AFFAIRS information to be collected; and (4) FOR FURTHER INFORMATION CONTACT: [OMB Control No. 2900–0600] ways to minimize the burden of the Mechelle Powell at (202) 273–5181 or collection of information on FAX (202) 273–6695. Proposed Information Collection respondents, including through the use SUPPLEMENTARY INFORMATION: Under the Activity: Proposed Collection; of automated collection techniques or PRA of 1995 (Public Law 104–13; 44 Comment Request the use of other forms of information U.S.C. 3501–3521), Federal agencies AGENCY: Veterans Health technology. must obtain approval from the Office of Administration, Department of Veterans Management and Budget (OMB) for each Title: Regulation for Reconsideration Affairs. collection of information they conduct of Denied Claims. ACTION: or sponsor. This request for comment is Notice. OMB Control Number: 2900–0600. being made pursuant to Section SUMMARY: The Veterans Health Type of Review: Extension of a 3506(c)(2)(A) of the PRA. Administration (VHA) is announcing an currently approved collection. With respect to the following opportunity for public comment on the Abstract: Veterans who disagree with collection of information, NCA invites proposed collection of certain the initial decision denying their comments on: (1) Whether the proposed information by the agency. Under the healthcare benefits in whole or in part collection of information is necessary Paperwork Reduction Act (PRA) of may obtain reconsideration by for the proper performance of NCA’s 1995, Federal agencies are required to submitting a request in writing within functions, including whether the publish notice in the Federal Register one year of the date of the initial information will have practical utility; concerning each proposed collection of decision. The request must state why (2) the accuracy of NCA’s estimate of the information, including each proposed the decision is in error and include any burden of the proposed collection of extension of a currently approved new and relevant information not information; (3) ways to enhance the collection, and allow 60 days for public previously considered. This process quality, utility, and clarity of the comment in response to the notice. This reduces both formal appeals and allows information to be collected; and (4) notice solicits comments on information decision making to be more responsive ways to minimize the burden of the needed to request an informal review of to veterans using the VA healthcare collection of information on veterans’ denied healthcare benefits system. respondents, including through the use claims. of automated collection techniques or Affected Public: Individuals or the use of other forms of information DATES: Written comments and households. recommendations on the proposed technology. Estimated Total Annual Burden: collection of information should be Title: Request for Disinterment, VA 50,826 hours. Form 40–4970. received on or before June 8, 2007. OMB Control Number: 2900–0365. ADDRESSES: Submit written comments Estimated Average Burden Per Type of Review: Extension of a on the collection of information through Respondent: 30 minutes. currently approved collection. www.Regulations.gov; or to Mary Stout, Frequency of Response: On occasion. Abstract: Claimants complete VA Veterans Health Administration Estimated Number of Respondents: Form 40–4970 to request removal of (193E1), Department of Veterans Affairs, 101,652. remains from a national cemetery for 810 Vermont Avenue, NW., interment at another location. Washington, DC 20420; or e-mail: Dated: March 29, 2007. Interments made in national cemeteries [email protected]. Please refer to By direction of the Secretary. are permanent and final. All immediate ‘‘OMB Control No. 2900–0600’’ in any Denise McLamb, family members of the decedent, correspondence. During the comment Program Analyst, Records Management including the person who initiated the period, comments may be viewed online Service. interment, (whether or not he/she is a through the Federal Docket Management [FR Doc. E7–6526 Filed 4–6–07; 8:45 am] member of the immediate family) must System (FDMS) at www.Regulations.gov. BILLING CODE 8320–01–P

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17631

DEPARTMENT OF VETERANS effective on that date. 71 FR 62347. On 20420; or by fax to (202) 273–9026. AFFAIRS November 24, 2006, the comment Copies of comments received will be period was extended until December 26, available for public inspection in the Privacy Act of 1974 2006. In response to a request for Office of Regulation Policy and additional time in which to submit AGENCY: Department of Veterans Affairs Management, Room 1063B, between the comments, the Department of Veterans (VA). hours of 8 a.m. and 4:30 p.m. Monday Affairs is hereby reopening the through Friday (except holidays). Please ACTION: Notice of new system of records; comment period until October 9, 2007. call (202) 273–9515 for an appointment. reopen comment period. All written comments previously In addition, during the comment period, SUMMARY: The Privacy Act of 1974, 5 received will be considered and need comments may be viewed online U.S.C. 552(e)(4), requires that all not be resubmitted. through the Federal Docket Management agencies publish in the Federal Register DATES: The comment period is reopened System (FDMS). to October 9, 2007. Comments must be a notice of the existence and character FOR FURTHER INFORMATION CONTACT: received on or before October 9, 2007. of their systems of records. On October Veterans Health Administration Privacy If no public comment is received, the 24, 2006, the Department of Veterans Officer, Department of Veterans Affairs, new system will become effective Affairs (VA) published a notice of a new 810 Vermont Ave., NW., Washington, October 9, 2007. system of records entitled ‘‘Automated DC 20420, telephone (727) 320–1839. safety Incident Surveillance and ADDRESSES: Written comments may be tracking System—VA’’ (99VA13). 71 FR submitted through Approved: April 3, 2007. 62347–62350. The system notice www.Regulations.gov; by mail or hand- Robert C. McFetridge, provided for a comment period ending delivery to the Director, Regulations Assistant to the Secretary for Regulation November 24, 2006, and if no comments Management (00REG), Department of Policy and Management. were received during that period of Veterans Affairs, 810 Vermont Ave., [FR Doc. 07–1738 Filed 4–6–07; 8:45 am] time, the system of records was to be NW., Room 1068, Washington, DC BILLING CODE 8320–01–M

VerDate Aug<31>2005 18:21 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 E:\FR\FM\09APN1.SGM 09APN1 sroberts on PROD1PC70 with NOTICES Monday, April 9, 2007

Part II

Department of Justice Antitrust Division

Public Comment and Response on Proposed Final Judgement; Notice

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17634 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

DEPARTMENT OF JUSTICE Complaint, the United States filed a Mill Products (‘‘TMP’’) sold to proposed Final Judgment and a Hold customers in the United States, east of Antitrust Division Separate Stipulation and Order the Rocky Mountains (‘‘Eastern United (‘‘HSSO’’) signed by plaintiff and Mittal States’’.) TMP are finely rolled steel Public Comment and Response on Steel consenting to the entry of the sheets, usually coated with a thin Proposed Final Judgment proposed Final Judgment after protective layer of tin or chrome. TMP Pursuant to the Antitrust Procedures compliance with the requirements of the include black plate, electrolytic tin plate and Penalties Act, 15 U.S.C. 16(b)–(h), Tunney Act, 15 U.S.C. section 16. (‘‘ETP’’), and tin free steel (‘‘TFS’’). the United States hereby publishes Pursuant to those requirements, the Black plate is a light-guage cold-rolled below the comments received on the United States filed its Competitive bare steel sheet that serves as a substrate proposed Final Judgment in United Impact State (‘‘CIS’’) in this Court on for production of ETP and TFS. Black States v. Mittal Steel Company, No. August 1, 2006; published the proposed plate is coated with tin to produce ETP 1:06–CV–1360–ESH, which were filed Final Judgment and CIS in the Federal and with chrome to produce TFS. Both in the United States District Court for Register on August 24, 2006, see United ETP and TFS are used primarily in the District of Columbia, on February States v. Mittal Steel Company N.V., 71 manufacturing steel cans for packaging Fed. Reg. 50084, 2006 WL 2431068; and a wide range of food products, such as 13, 2007. published summaries of the terms of the soup, fruits, and vegetables, and non- Copies of the comments and the proposed Final Judgment and CIS, food products, such as paints, aerosols, response are available for inspection at together with directions for the and shaving cream. For most TMP the Department of Justice Antitrust submission of written comments purchasers, particularly food can Division, 325 Seventh Street, NW., relating to the proposed Final Judgment, makers, there are no close substitutes for Room 200, Washington, DC 20530, in The Washington Post for seven days TMP. Packaging alternatives, such as (telephone (202) 514–2481), and at the beginning on September 10, 2006 and plastic containers, are not viewed as Office of the Clerk of the United States ending on September 16, 2006. The 60- close product substitutes. A small but District Court for the District of day period for public comments ended significant increase in price would not Columbia, 333 Constitution Avenue, on November 15, 2006, and three likely cause sufficient TMP can NW., Washington, DC 20001. Copies of comments were received as described customers to switch products or any of these materials may be obtained below and attached hereto. otherwise curtail their TMP usage so as upon request and payment of a copying to render the increase unprofitable. fee. I. The Investigation and Proposed More than 89 percent of TMP sold in Resolution J. Robert Kramer II, the Eastern United States is Director of Operations Antitrust Division. On January 27, 2006, Mittal Steel manufactured by firms located either in announced its intention to commence a the Eastern United States or eastern UNITED STATES DISTRICT COURT tender offer to acquire control of Canada. A small but significant increase FOR THE DISTRICT OF COLUMBIA Arcelor. At the same time, Mittal Steel in price for TMP would not cause TMP United States of America, Plaintiff, v. announced that it would subsequently customers in the United States to Mittal Steel Company N.V., Defendant sell Arcelor’s recently acquired substitute purchases from outside the Canadian subsidiary, Dofasco Inc. Eastern United States in sufficient [Civil Action No. 1: 06CV01360–ESH] (‘‘Dofasco’’) to ThyssenKrupp A.G. quantities to make such a price increase Response of Plaintiff United States to (‘‘ThyssenKrupp’’) if it acquired control unprofitable. Mittal Steel, Arcelor, and Public Comments of Arcelor. For six months following the Arcelor’s subsidiary Dofasco sell TMP to announcement of the tender offer, the customers in the Eastern United States. Pursuant to the requirements of the United States Department of Justice As explained more fully in the Antitrust Procedures and Penalties Act, (‘‘Department’’) conducted an extensive, Complaint and CIS, the acquisition of 15 U.S.C. section 16(b)–(h) (‘‘APPA’’ or detailed investigation into the Arcelor and Dofasco by Mittal Steel ‘‘Tunney Act’’), the United States competitive effects of the Mittal/Arcelor would substantially increase hereby responds to the public comments transaction. As part of this investigation, concentration and lessen competition in received regarding the proposed final the Department obtained substantial the production and sale of TMP in the Judgment in this case. After careful documents and information from Mittal Eastern United States, giving the top consideration of the comments, the Steel and issued eight Civil Investigative two TMP producers, including Mittal United States continues to believe that Demands to third parties. The Steel, a market share of more than 81 the proposed Final Judgment will Department received and considered percent of sales. Therefore, the provide an effective and appropriate more than 45,000 pages of material. Department filed its Complaint alleging remedy for the antitrust violations More than fifty interviews were competitive harm in the TMP market in alleged in the Complaint. The United conducted with customers, competitors, the Eastern United States and sought a States will move the Court for entry of and other individuals with knowledge remedy that would ensure that such the proposed Final Judgment after the of the industry. The investigative staff harm is prevented. public comments and this Response carefully analyzed the information The proposed Final Judgment in this have been published in the Federal provided and thoroughly considered all case is designed to preserve competition Register, pursuant to 15 U.S.C. section of the issues presented. The Department in the production, manufacture, and 16(d). considered the potential competitive sale of TMP in the Eastern United On August 1, 2006, the United States effects of the transaction with respect to States. The proposed Final Judgment filed the Complaint in this matter a number of steel products, obtaining requires the divestiture of sufficient alleging that the proposed acquisition of information about these products from assets to prevent the increase in Arcelor S.A. (‘‘Arcelor’’) by defendant customers, competitors, and other concentration that resulted from the Mittal Steel Company N.V. (‘‘Mittal knowledgeable parties. The Department combination of Mittal Steel’s capacity Steel’’) would violate Section 7 of the concluded that the combination of and Arcelor’s capacity to supply TMP to Clayton Act, 15 U.S.C. section 18. Mittal Steel and Arcelor likely would the Eastern United States market. The Simultaneously with the filing of the lessen competition in one market—Tin proposed Final Judgment requires the

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17635

divestiture of a significant steel mill that converting steel slabs obtained from in the Complaint, and it will select the manufactures TMP for sale in the Mittal’s Sparrows Point and Cleveland mill that is most likely to continue to Eastern United States. Specifically, it plants. compete successfully for TMP sales in directs a sale of Dofasco to In the Department’s judgment, the Eastern United States following its ThyssenKrupp or an alternative divestiture of Dofasco to ThyssenKrupp divestiture by Mittal Steel. The purchaser acceptable to the United or another qualified purchaser would proposed Final Judgment would permit States. At the time the proposed Final remedy the violation alleged in the this process to go forward if Dofasco Judgment was filed with the Court, Complaint because Dofasco is an cannot be sold in a timely manner. Mittal Steel already had executed a integrated steel mill that has the Although entry of the proposed Final letter of intent to sell Dofasco to demonstrated capacity to make Judgment would terminate this action, ThyssenKrupp when and if Mittal Steel significant TMP sales in the Eastern the Court would retain jurisdiction to acquired Arcelor, at a price comparable United States. In the event that Mittal construe, modify, or enforce the to the price Arcelor itself paid to acquire fails to sell Dofasco in a timely manner provisions of the proposed Final Dofasco in early 2006. Dofasco, which due to legal impediments arising from Judgment and punish violations 1 has a history of successful operation as its control by the S3 and the S3’s refusal thereof. an independent entity, has not been to permit its sale, the proposed Final II. Summary of Public Comments and integrated into Arcelor and thus remains Judgment provides that the Department Responses a viable divestiture candidate. will determine whether Sparrows Point During the 60-day public comment Mittal Steel’s announced plan to sell or Weirton should be divested to Dofasco to ThyssenKrupp upon its period, the United States received remedy the violation alleged in the acquisition of Arcelor would have comments from Silgan Containers Complaint. The Department is confident mitigated the increase in post-merger Corporation (‘‘Silgan’’), ThyssenKrupp, that these options allow it to select an concentration in the Eastern United and DaimlerCyrysler Corporation alternate facility the divestiture of States that would have resulted from its (‘‘DaimlerChrysler’’). Upon review, the which to a viable qualified purchaser acquisition of Arcelor. As part of an United States believes that nothing in would remedy the violation. Each mill effort by Arcelor’s Board of Directors to the comments warrants a change in the currently makes substantial TMP sales impede the tender offer, however, proposed Final Judgment or is sufficient in the Eastern United States, and the Arcelor sought to prevent any figure to suggest that the proposed Final successful continued operation of either effort by Mittal Steel to divest Dofasco Judgment is not in the public interest. by transferring Arcelor’s Dofasco legal mill by a viable qualified purchaser The comments include concerns title to an independent Dutch would remedy the violation. The relating to whether the proposed Final foundation, known as the Strategic Steel Department is currently assessing which Judgment adequately remedies the Stichting (‘‘S3’’). Since Mittal completed of these two mills is most likely to harms alleged in the Complaint. The its acquisition of Arcelor, Arcelor and continue as an on-going vigorous United States addresses these concerns Mittal Steel have requested that the S3 competitor for TMP sales in the event below and explains how the remedy is dissolve itself so as to permit the sale of that Dofasco cannot be divested. appropriate. Sparrows Point is an integrated facility Dofasco to ThyssenKrupp. The board of A. Public Comment Submitted by Silgan the S3 nevertheless has decided not to that produces a variety of steel products dissolve itself. in addition to TMP, and it manufactures 1. Summary of Silgan’s Comment its own steel slabs, which are the basic In negotiating the proposed Final Silgan, the largest food can producer Judgment, the parties recognized that raw material for TMP fabrication. Weirton currently operates as a TMP and the largest consumer of TMP in the the existence of the S3 could prevent United Stats, submitted a 42-page finishing facility that converts slabs Mittal Steel from divesting Dofasco in a comment with 44 attachments (attached obtained from Mittal Steel’s Sparrows timely manner. For this reason, the hereto as Exhibit 1). Silgan’s submission Point and Cleveland mills. Mittal Department determined that alternative asserts that only the divestiture of recently idled Weirton’s slab-making assets, owned by Mittal Steel and not Dofasco has any prospect for success, facilities because they were considered burdened with any restrictions on sale, and that neither the divestiture of to be less efficient than other slab should be designated to accomplish the Weirton nor the divestiture of Sparrows manufacturing locations within the intended preservation of TMP Point will be effective. competition in the event that Mittal Mittal Steel organization, and the Department is assessing whether those Steel was unable to divest Dofasco 1 The merger closed on August 1, 2006. In within the time allowed by the decree. facilities could be reactivated to keeping with the United States’s standard practice, The proposed Final Judgment requires produce slabs at Weirton on a cost- neither the HSSO nor the proposed Final Judgment Mittal Steel to divest one of two steel effective basis in the event of Weirton’s prohibited closing the merger. See ABA Section of Antitrust Law, Antitrust Law Developments 387 mills—Sparrows Point or Weirton—if, divestiture. Even if the Department (5th ed. 2002) (noting that ‘‘[t]he Federal Trade despite its best efforts to do so, it has concludes that cost-effective slab Commission (as well as the Department of Justice) not been able to carry out the divestiture production at Weirton is not likely to be generally will permit the underlying transaction to of Dofasco within the period allowed by feasible, there still may be sources from close during the notice and comment period’’). Such a prohibition could interfere with many time- the decree. Sparrows Point is a fully which Weirton could obtain slabs with sensitive deals and prevent or delay the realization integrated steel mill located near a degree of consistency and reliability, of substantial efficiencies. In consent decrees Baltimore, Maryland, which produces a and at a cost that would enable it to requiring divestitures, it is also standard practice to diversified portfolio of products, compete successfully as an independent include a ‘‘preservation of assets’’ clause in the decree and to file a stipulation to ensure that the including hot-rolled sheet, cold-rolled supplier of TMP to the Eastern United assets to be divested remain competitively viable. sheet, galvanized sheet, Galvalume, and States market. The Department will That practice was followed here. Proposed Final TMP, for construction, steel service consider the availability of slabs to Judgment § VIII. In addition, the HSSO has been center, container, appliance, and other Weirton and other relevant filed and entered by the Court in this case. That Order requires Mittal Steel to preserve Weirton and end-use markets. Weirton, located in considerations in determining whether Sparrows Point and to hold separate Dofasco, Weirton, West Virginia, operates Sparrows Point or Weirton should be pending the divestiture contemplated by the primarily as a TMP finishing facility, divested to remedy the violation alleged proposed Final Judgment.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17636 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Silgan’s comments may be indeed, in recent years has produced Dofasco to operate efficiently. Given summarized in three points. First, more slabs than it consumes. With that a prompt remedy is in the public Silgan argues that Weirton cannot long respect to Wierton, even if the new interest and that the Final Judgment survive as an independent producer of owner of Sparrows Point refused to sell provides a mechanism by which the TMP, because it cannot produce slabs— slabs on reasonable terms to Mittal Steel Department can assure that adequate the essential TMP substrate—at a for use at Weirton, Mittal Steel would and viable Mittal Steel assets are competitive cost and cannot obtain slabs still own even blast furnaces in North divested, there is no reason to require from elsewhere at a competitive cost. America, five of which are now the extraordinary and unprecedented Thus, Weirton should not be divested. operating, giving it ample ability to imposition of a long-term HSSO. Second, Silgan further asserts that, supply Wierton with slabs. Further, although Sparrows Point is capable of Mittal could obtain additional slabs for B. Public Comment Submitted by surviving as a stand-along producer of Weirton on the open market. If Weirton ThyssenKrupp TMP, it currently provides 45 percent of were divested from Mittal and sought to 1. Summary of ThyssenKrupp’s the slabs used by Weirton. If Sparrows acquire all of its slabs from other Comment Point is divested, Weirton will be sources, the supply of slabs would be separated from a significant portion of ThyssenKrupp is a large German steel somewhat less certain, but there is some manufacturer that has an agreement in its supply of slabs and will be unable to indication that Weirton could obtain obtain a sufficient number of slabs from principle with Mittal Steel to purchase sufficient slabs, including from imports. Dofasco. ThyssenKrupp currently other sources. Thus, if Sparrows Point is Dofasco, as Silgan points out, obtains divested, Weirton may cease TMP exports TMP to customers in the United about 750,000 tons of slabs per year States. In its comment, attached hereto production even if it is kept in the from other firms, 400,000 tons of which Mittal Steel group. as Exhibit 2, ThyssenKrupp states that comes from CST in Brazil. Some of only the divestiture of Dofasco will Finally, Silgan concludes that since those slabs are used to make tin mill divestiture of either Weirton or adequately remedy the alleged products. The fact that Dofasco itself anticompetitive effects set forth in the Sparrows Point likely will lead to the successfully imports a significant demise of Weirton as a TMP producer, Complaint and that divestiture of volume of tin-quality slabs suggests that Weirton or Sparrows Point cannot neither Mittal Steel mill should be an independent Weirton might have divested. Instead, Silgan argues that remedy those anticompetitive effects. sufficient alternative sources for such ThyssenKrupp asserts that the proposed Dofasco should be divested even if slabs. The Department continues to accomplishing that objective must await Final Judgment and CIS ‘‘make clear investigate the likelihood that a divested that divestiture of Dofasco to the expiration of the S3, and that the Weirton would be able to manufacturer Final Judgment should be modified to ThyssenKrupp is the preferred remedy or purchase tin-quality slabs on a cost- for the competitive harm alleged to arise extend the period for divesting Dofasco efficient basis. If the Department by several years. This would require from Mittal [Steel]’s acquisition of concludes for any reason that the lack Arcelor[.]’’ Ex. 2, ThyssenKrupp that the stipulated HSSo, under which of certainty regarding Weirton’s viability Dofasco now is operating, be modified Comment at 3. ThyssenKrupp’s makes divestiture of Sparrows Point comment, however, does not address to extend for the entire duration of the preferable, the Final Judgment permits S3.2 the question of what should be done if the Department to direct Mittal Steel to Dofasco cannot be divested due to the 2. Response of United States to Silgan’s divest Sparrows Point. existence of the S3. ThyssenKrupp Silgan proposes that, in lieu of Comment claims that neither Weirton nor diverting Weirton or Sparrows Point, The United States has carefully Sparrows Point has sufficiently modern the proposed Final Judgment be considered Silgan’s concern that and efficient facilities to compete in the amended to provide that Dofasco be Weirton will go out of business if the TMP market in a manner that would held separate for five years, which United States chooses Weirton or replace competition lost as a result of Silgan asserts is the duration of the S3, Sparrows Point as an alternative the challenged acquisition. In this after which it could and should be divestiture, but disagrees. respect, ThyssenKrupp’s comments sold.3 This proposal presents significant Silgan’s conclusion rests crucially on mirror those of Silgan. an assumption that slabs suitable for use problems. To ensure Dofasco’s operation in TMP production would be readily or separately from Mittal Steel for such an 2. Response of United States to economically available to Weirton from extended period of time would be ThyssenKrupp’s Comment sources other than Sparrows Point. The difficult, if not impossible. Moreover, The response of the United States to United States agrees that the supply of under the HSSO, ordinary and the Silgan Comment is equally slabs is an important issue, but the customary business decisions that applicable to the comments made by concerns raised by Silgan are overstated. would be made promptly by an ThyssenKrupp. In sum, for the reasons If Sparrows Point is divested, and independent entity cannot be made by given in Part II.A.2 above, the United Weirton remains part of Mittal Steel, for Dofasco without certain notices and States believes that the Final Judgment example, there would be no concern approvals and, in some circumstances, provides a mechanism to ensure that about the availability to the divested Court permission. This situation is assets sufficient to remedy the violation mill. Sparrows Point is a fully integrated tolerable as a temporary solution to alleged in the Complaint will be steel mill that does not depend on other effectuate a prompt divestiture and to divested. Mittal Steel facilities for significant limit interference or collusion pending Notwithstanding ThyssenKrupp’s operational resources or supplies and that divestiture. As a long-term evaluation of the equipment and operating arrangement, however, it facilities at Weirton and Sparrows Point, 2 Silgan assets in its comment that the S3 has a could adversely affect the ability of the Weirton and Sparrows Point assets 5-year term. Although the actual term of the S3 is have proved adequate consistently to not public information, it is many times longer than 3 The Department understands that Silgan’s the period the proposed Final Judgment gives Mittal objective would require an extension only for the supply large quantities of TMP to the Steel to effect the divestiture of one of the three duration of the S3, but Silgan is correct that this Eastern United States market. In 2005, mills. would require an extension of multiple years. Weirton and Sparrows Point sold more

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17637

TMP in the Eastern United States than DaimlerChrysler claims that the DaimlerChrysler comments relating to Arcelor and Dofasco combined. While proposed acquisition will adversely the adequacy of a divestiture of either of capacity to manufacture TMP for sale in affect competition for that product. the alternative assets. As discussed the Eastern United States is not the only DaimlerChrysler asserts that more thoroughly above, the United factor, it is certainly a highly relevant consolidation in the steel industry since States has considered the capabilities factor in assessing the competitive 2001 has reduced the number of North and economic viability of each of the significance of mill assets. In American manufacturers of hot dipped alternative facilities and is confident determining which alternate mill should galvanized steel from nine to five, and that these options allow it to select an be divested pursuant to the Final that after the acquisition of Dofasco, alternate facility the divestiture of Judgment, the Department will focus on Mittal Steel will have approximately 47 which to a viable qualified purchaser questions relating to the relative ability percent of North American capacity for would be sufficient to restore of Sparrows Point and Weirton to this product. DaimlerChrysler also states competition to the market for the sale of operate independently of Mittal Steel as that there are no adequate substitutes for TMP in the Eastern United States. future suppliers of TMP to the Eastern this product, and that foreign producers III. Conclusion United States market. The fact that both are not suitable suppliers. mills have successfully supplied DaimlerChrysler asserts that the alleged The issues raised in the public substantial quantities of TMP to the harm to competition would be comments were among the many market with their current equipment alleviated if Mittal Steel were required considered during the United States’ supports the conclusion that the to divest Dofasco, but that the extensive and through investigation. alternate mill that the United States divestiture of either Sparrows Point or The United States has determined that selects to be divested would accomplish Weirton would not remedy the harm the proposed Final Judgment as drafted the objectives of the Final Judgment. because neither facility produces hot provides an effective and appropriate As to ThyssenKrupp’s statement that dipped galvanized steel suitable for remedy for the antitrust violations automotive purposes. divestiture of Dofasco is the ‘‘preferred’’ alleged in the Complaint, and is Although DaimlerChyrsler has no remedy, we agree. As discussed above, therefore in the public interest. The Dofasco is an attractive divestiture direct interest in the TMP market, the company nevertheless asserts that the United States will move this Court to candidate for a number of reasons, and enter the proposed Final Judgment after the proposed Final Judgment requires divestiture of Weirton or Sparrows Point will not restore competition in TMP the comments and response are Mittal Steel in the first instance to use published. its best efforts to divest Dofasco. because neither facility is capable of However, nothing in the proposed Final operating as a stand-alone facility. Dated: February 13, 2007. Judgment or the Competitive Impact DaimlerChrysler cites past financial Respectfully submitted, Statement indicates that Dofasco is the troubles of Weirton when it was a stand- Lowell R. Stern (D.C. Bar #440487), only suitable divestiture candidate. Both alone company and Sparrows Point Attorney, United States Department of Mittal Steel and the Department realized when it was operated by the former Justice, Antitrust Division, Litigation II that Mittal Steel might be unable to Bethlehem Steel Company. Section, 1401 H Street, NW., Suite 3000, DaimlerChrysler asserts that either Washington, DC 20530, Telephone: (202) accomplish the divestiture of Dofasco in 307–0924, Facsimile: (202) 307–6283. a timely manner because the S3 might alternative facility is likely to close after prevent its sale. Accordingly, the parties divestiture. The result, according to Certificate of Service crafted alternative relief—the divestiture DaimlerChrysler, would be less of Sparrows Point or Weirton—that also competition in the market for TMP. I hereby certify that on the 13th day of February, 2007, I caused a copy of the would preserve competition. Although 2. Response of United States to foregoing Plaintiff United States’s the United States is satisfied that DaimlerChrysler’s Comment divestiture of Dofasco would remedy the Response to Public Comments to be DaimlerChrysler’s principal argument mailed, by U.S. mail, postage prepaid, to violation alleged in the Complaint, if is that the United States’ focus on TMP Dofasco cannot be sold within the the attorneys listed below and I caused is misplaced, and that the United States the attachments thereto to be delivered period prescribed by the proposed Final should also have alleged harm to Judgment, the United States will decide by electronic transmission to the competition for hot dipped galvanized attorneys listed below: which of the two alternatives should be steel. During its investigation, the divested. United States carefully and thoroughly Lowell R. Stern, C. Public Comment Submitted by reviewed the competitive implications For Mittal Steel Company N.V.: of Mittal Steel’s acquisition of Arcelor Mark Leddy, Esquire; Brian Byrne, Esquire; DaimlerChrysler Jeremy J. Calsyn, Esquire; Cleary Gottlieb (and Dofasco) for a number of different Steen & Hamilton LLP., 2000 1. Summary of DaimlerChrysler’s potential relevant geographic and Comment Pennsylvania Avenue, NW., Washington, product markets, including hot dipped DC 20006. DaimlerChrysler is an automobile galvanized products. Upon completion For Arcelor S.A.: manufacturer in North America that of its review, the United States John M. Nannes, Esquire; Michael V. sources its steel from a number of North determined that it should allege a Sosso, Esquire; Skadden, Arps, Slate, American steel producers, including violation and seek relief only with Meagher & Flom LLP., 1440 New York Mittal Steel and Dofasco. See regard to sales to TMP in the Eastern Avenue, NW., Washington, DC 20005. DaimlerChrysler Comment (attached United States, and the Complaint filed For Silgan Containers Corporation: hereto as Exhibit 3). DaimlerChrysler in this case reflects that determination. Daniel L. Porter, Esquire; Vinson & Elkins does not use TMP in the production of LLP., 1455 Pennsylvania Avenue, NW., The decision regarding the filing of a Suite 600, Washington, DC 20004–10009. automobiles and does not purchase complaint as to any particular market For ThyssenKrupp A.G.: TMP. It does, however, use another type lies within the prosecutorial discretion Steven K. Bernstein, Esquire; James F. of flat steel product called hot dipped of the United States. Lerner, Esquire; Weil, Gotshal & Manges galvanized steel, which it buys from With respect to the market for TMP, LLP., 767 Fifth Avenue, New York, NY Mittal Steel and Dofasco, and the United States disagree with the 10153–0119.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17638 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

A. Paul Victor, Esquire; Dewey Ballantine C. Dofasco Is More Committee To Investing Introduction and Summary of LLP., 1301 Avenue of the Americas, New in the Future of the Tin Mill Steel Comments York, NY 10019–6092. Market For DaimlerChyrsler Corporation: D. The Decree Should Be Amended if Silgan Containers Corporation, the Thomas B. Leary, Esquire; Janet L. Necessary To Require Divestiture of largest U.S. food can producer and McDavid, Esquire; Hogan & Hartson Dofasco on the Earliest Date on Which It single largest consumer of tin mill steel LLP., Columbia Square, 555 Thirteenth May Legally Be Divested Free of the products in the United States, hereby Square, NW., Washington, DC 20004. Stichting Arrangements, and the Hold- provides comments on the proposed Exhibit 1 Separate Order Should Continue in final judgment in United States v. Mittal Effect Until That Divestiture Is Steel Company, the civil action Willkie Farr and Gallagher LLP Accomplished concerning the effects of Mittal Steel’s Theodore Case Whitehouse, 202 303 1118, II. A Stand-Alone Weirton Operation Will acquisition of Arcelor in the tin mill [email protected], 1875 K Street, Fail in the Immediate Future and steel market in the Eastern United NW., Washington, DC 20006–1238, Tel: Undermine the Departments Objective of States. These comments are submitted 202 303 1000, Fax: 202 303 2000. Preserving Competition in the Market in response to the invitation of the 23 October 2005 A. Weirton’s Ironmaking and Steelmaking Antitrust Division of the United States By Hand Delivery Assets Are Not Competitive Justice Department set forth in the 1. Weirton Has Small, Inefficient Blast Maribeth Petrizzi, Esq., Chief, Litigation II August 24, 2006 edition of the Federal Furnaces Section, Antitrust Division, U.S. 2. Weirton’s Steelmaking Operations Are Register. Silgan appreciates the Department of Justice, Suite 3000, 1401 H opportunity to submit comments. Street, NW., Washington, DC 20530 Also Antiquated and High Cost 3. An Independent Weirton Operating Its Silgan wholeheartedly agrees with the Re: Comments of Silgan Containers Corp. on Ironmaking Facilities Would Lack Any Department’s conclusions that (1) Mittal Proposed Consent Decree in United States v. Captive Raw Material Supplies Steel’s acquisition of Arcelor ‘‘further Mittal Steel Co., NV, No. 1:06–CV–01360– 4. Weirton’s Geographic Location consolida[tes] an already highly ESH (D.D.C.) Guarantees Higher Costs for Basic Inputs concentrated market’’ and (2) ‘‘the likely Dear Ms. Petrizzi: 5. Weirton’s Limitations as a Fully- effect of this acquisition would be to Transmitted with this letter, on behalf of Integrated Steel Maker Producing Tin lessen competition substantially’’ Silgan Containers Corporation (‘‘Silgan’’) and Mill Steel Are Recognized by Mittal and among suppliers of tin mill steel pursuant to the Antitrust Procedures and Outside Observers Penalties Act (15 U.S.C. 16), are Silgan’s products in the Eastern United States, B. Prospects for a Stand-Alone Weirton and (3) ‘‘this loss of competition would comments on the proposed consent decree Enterprise Operating as a Rolling and submitted by the Division to the United Finishing Operation Are Limited likely result in higher prices, lower States District Court for the District of 1. Weirton’s Rolling and Finishing Assets quality, less innovation and less Columbia in August 2006. Require Substantial Investment To Be favorable delivery terms to customers’’ Silgan and its counsel would be pleased to Competitive of tin mill steel.1 Silgan submits that enlarge upon or explain any aspect of 2. Weirton Would Be Committed To such conclusions are amply supported Silgan’s comments and would be pleased to Producing Primarily Tin Mill Steel, meet with you and your staff to discuss any by the evidence. Limiting Production Flexibility issue or concern relating to this matter. The proposed decree provides for two 3. Weirton Would Have Difficulty Securing alternative divestiture scenarios. The Sincerely, the Quality and Volume of Slab first is to require divestiture by Mittal of Theodore Case Whitehouse Necessary To Maintain Its Operations Dofasco, a Canadian integrated steel cc (w/encl.): Kerrie J. Freeborn, Esq. 4. Even if a Stand-Alone Weirton Rolling producer. The alternative remedy, to be and Finishing Operation Found a available only if Mittal is ‘‘unable’’ UNITED STATES DISTRICT COURT Consistent Source of Slab Supply, the despite ‘‘best efforts’’ to accomplish the FOR THE DISTRICT OF COLUMBIA Market Dynamics for Tin Mill Steel Would Limit Profitability divestiture of Dofasco, would be United States of America, Plaintiff, v. divestiture of either the Sparrows Point Mittal Steel Company N.V., Defendant 5. A Stand-Alone Weirton Enterprise Running Only Its Tin Line Would Have integrated steel operation or the Weirton [Civil Action No. 1: 06CV01360–ESH] Difficulty Securing Sufficient Volumes of steel mill operation (which includes Black Plate only a rolling mill capability at this Comments of Silgan Containers C. There Are No Legitimate Suitors for time). Silgan wholeheartedly agrees Corporation on the Proposed Final Weirton with the Department that the preferred Judgment and Competitive Impact D. Divesting Weirton Will Have an Adverse remedy to address this lessening of Statement Regarding Competition in the Impact on Competition competition in the tin mill steel market Tin Mill Products Market III. A Divestiture of Sparrow’s Point Would is to require the divestiture of Dofasco. Willkie Farr and Gallagher LLP., 1875 K Also be a Far Less Effective Remedy Indeed, Silgan submits that a proper Street, NW., Washington, DC 20006– Than Divesting Dofasco A. Divestiture of Sparrows Point Is understanding of both the market 1238, (202) 303–1000. Unlikely To Enhance Competition Over participants and the competitive Thomas Prusa, Ph.D., Professor of the Long Term dynamics affecting the market Economics, Rutgers University, New 1. Dofasco Is an Unlikely Replacement for participants demonstrates the following: Brunswick, New Jersey. Sparrows Point in Supplying Slabs to • Weirton would not be able to October 23, 2006 Weirton survive as an independent operation. 2. It Is Unlikely That Mittal Steel’s Other Given its location, its old, small, and Table of Contents North American Slab Producers Will currently inoperative blast furnaces, and Introduction and Summary of Comments Divert Scarce Feedstock to Weirton the limited capabilities of Weirton’s I. Divestiture of Dofasco is the Best Option 3. It Would Make no Economic Sense for rolling facilities, Weirton cannot survive A. Dofasco Has a Proven Track Record of Mittal’s Brazilian Affiliate CST To as an independent producer. Neither Operating as a Highly Profitable, Supply Slabs to Weirton Independent Company B. Divesting Sparrows Point Will Have an 1See United States v. Mittal Steel Company, B. Dofasco Is Far Better Suited To Operate Adverse Impact on Competition in the Proposed Final Judgment and Competitive Impact as a Stand-Alone Facility Than Either Medium to Long Term Statement, 71 Fed. Reg. 50084, 50085, 50093 Weirton or Sparrows Point Conclusion (August 24, 2006) (Attachment 1).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17639

running Weirton’s ironmaking and Second, if immediate divestiture is steel market resulting from the Mittal- steelmaking operations nor purchasing not possible, Silgan strongly Arcelor merger. slab in the merchant market would be recommends the consent decree be In assessing divestiture options the a viable strategy. Consequently, a modified to wait the five years Department must consider whether the remedy allowing the divestiture of reportedly necessary to eliminate any divested firm can operate independently Weirton would simply cause substantial existing legal impediments to the and serve the changing needs of tin mill steel capacity to exit the market, divestiture of Dofasco. An independent consumers. Any divested tin mill steel which would make the available tin mill Dofasco in five years is better than any entity must be viable on its own, making steel supply even more concentrated. of the other alternatives for preserving Dofasco the most logical choice for • No existing integrated steel mill has competition. A long run solution to the divestiture. a serious interest in acquiring Weirton, issue is better than a short term fix. A. Dofasco Has a Proven Track Record because it makes no economic sense. Silgan makes this recommendation Weirton’s only realistic hope of of Operating as a Highly Profitable, because the other options under surviving is to operate as one facility Independent Company consideration—divesting Weirton or within a large, diversified enterprise divesting Sparrows Point—will not In sharp contrast to Weirton or capable of supplying Weirton with key accomplish the Department’s objective Sparrows Point (both of which are inputs and averaging costs across a of enhancing competition in the tin mill discussed below), Dofasco is recognized larger production base. Weirton as one of the best steel mills in the currently enjoys that status as part of steel market. These other options will only protect competition if one believes world. A leading steel consultancy and Mittal. No viable alternative integrated benchmarking firm, World Steel steel mill is likely to come forward to that Weirton has better than a 64% chance of surviving over the next two or Dynamics (‘‘WSD’’), ranked Dofasco in replace Mittal. the Top 25 of all global steelmakers. The • three years, either outside or within the Although Sparrows Point Is a same assessment ranked Dofasco the Superior Mill to Weirton, It Is Uncertain Mittal enterprise. However, no knowledgeable industry observer would highest of all North American Whether Divesting Sparrows Point producers.3 Dofasco scored a remarkable Would Preserve Competition Over the give Weirton better than a 10–20% chance of surviving if either Weirton or 9 out of 10 in the WSD analysis for Mid- to Long-Term. profitability over the 2000–04 period.4 Within the Mittal system, Sparrows Sparrows Point is divested. Therefore, the only appropriate remedy is to divest The WSD analysis, which covers the Point is a key supplier of slab for period through June 2005, presents an Weirton. A Sparrows Point facility Dofasco as soon as possible, even if this means waiting for the alleged legal independent, expert assessment of operating outside the Mittal system Dofasco prior to its acquisition by would eliminate a guaranteed supply of impediments to such a divestiture to expire. Arcelor, when the facility stood as a this key feedstock to Weirton and fully independent entity. Dofasco’s thereby threaten the ongoing viability of To summarize: performance during that period Weirton. Without Sparrows Point’s slab • Divestiture of Dofasco is the most pro- provides a strong indication of its likely capacity, the likelihood that Mittal will competitive outcome. performance if separated from Mittal. ration Weirton’s slab supply is greatly • If divestiture of Dofasco is not possible increased because Weirton will not be now (because of the stichting arrangements B. Dofasco Is Far Better Suited To the best use of Mittal’s limited slab reportedly engineered by Arcelor), the Operate as a Stand-Alone Facility Than supply in the Midwest that can be used second best option is continued independent Either Weirton or Sparrows Point operation of Dofasco for the life of the trust, in more profitable operations. Such fact Compared to either Weirton or is evidenced by the statements of Mittal (reportedly 5 years) followed by divestiture to a firm not a U.S. tin-mill producer. Sparrows Point, Dofasco is far better Steel officials that Weirton is the least • suited to survive and thrive as a stand- desirable facility among Mittal Steel’s A less desirable but feasible outcome would be divestiture of Sparrows Point to a alone facility. Four differences stand North American operations. In short, firm not a U.S. tin-mill producer (with out: (1) Dofasco has a much deeper divesting Sparrows Point would almost appropriate assurance that Sparrows Point’s product line, (2) Dofasco has a larger certainly lead to Weirton’s demise even tin-mill activity will be continued). scale operation, (3) Dofasco owns its • within the Mittal enterprise, thereby Divestiture of Weirton under any own raw materials, and (4) Dofasco has diminishing overall capacity to the scenario would be counterproductive from a much more cold-rolled capacity to feed competition perspective and would hurt the detriment of consumers and frustrating its tin mill steel production. Silgan the goal of the decree. market because Weirton would not survive and its capacity would be permanently lost. discusses these below. In the pages below, Silgan discusses First, Dofasco has production and documents these factual I. Divestiture of Dofasco Is the Best capability that covers the full spectrum conclusions in considerable detail. Option of flat-rolled products, from hot-rolled Silgan submits that these factual steel to cold-rolled and galvanized, as A combined Mittal-Arcelor would conclusions require the Department to well as tin mill steel. Dofasco also have three tin mill steel production adopt the following approach in produces tubular products in operations facilities supplying the Eastern United designing an appropriate remedy to that consume the hot-rolled and cold- States market, resulting in an address the reduced competition in the rolled steel it produces. Indeed, Dofasco excessively concentrated supply tin mill steel market. First, the Tubular Products is the largest and most situation. To remedy that undesirable Department should make every effort to diversified producer of tubular products accomplish the divestiture of Dofasco. outcome, the Department has in North America.5 Finally, Dofasco is a Press reports immediately after determined that Dofasco should be significant player in the high margin publication of the consent decree divested.2 The Department is correct in auto sheet market, in which there are suggest a lack of interest by Mittal- that determination: Divesting Dofasco remains the preferred remedy to address Arcelor of seriously pursuing divesting 3 World Steel Dynamics (2005) (Attachment 2). Dofasco. The Department needs to push the loss of competition in the tin mill 4 Id. Mittal-Arcelor to accomplish the 5 See http://www.dofascotube.com/Default.htm divestiture of Dofasco. 2 Id. (Attachment 3).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17640 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

few significant North American grades of cold-rolled and galvanized Third, Dofasco has access to captive suppliers.6 flat-rolled steel. supplies of both coke and iron ore, This breadth of production capability Second, Dofasco is also a larger scale reducing its exposure to price volatility allows Dofasco to remain viable even if operation, with just over 4 million of in raw material markets. Neither the tin mill steel market turns down. tons of steelmaking capacity compared Weirton nor Sparrows Point has any to 3.4 million tons at Sparrows Point Neither Weirton nor Sparrows Point has such assets. Like the larger scale, these and zero operating steelmaking capacity the same breadth of production. captive supplies of key feedstock allow at Weirton. Dofasco also has larger Dofasco to operate more cost effectively Weirton’s product line is quite limited. rolling assets, with 4.9 million tons of Indeed, Silgan’s understanding is that and profitably than Weirton or Sparrows hot strip capacity available compared to Point. the vast majority of Weirton’s total steel 3 million tons at Sparrows Point and 3.8 production is just tin mill steel. million tons at Weirton.7 This larger Finally, as detailed in the chart below, Sparrows Point is not much better. scale allows Dofasco to operate more Dofasco has a much more favorable ratio Other than tin mill steel, Sparrows Point efficiently and profitably than either of tin mill steel capacity to cold-rolled predominantly focuses on commodity Weirton or Sparrows Point. capacity.

FIGURE 1.—RATIO OF TIN MILL CAPACITY TO COLD-ROLLED CAPACITY

Sparrows Dofasco Point Weirton

Cold-Rolled Capacity (000 tons) ...... 3100 1580 1000 Tin steel production (000 tons) ...... 418 828 800 Fraction of tin mill capacity to cold-rolled ...... 13.5% 52.4% 80%

The ratio of tin mill capacity to cold- Weirton Steel tinplate operations in D. The Decree Should Be Amended if rolled capacity at Dofasco is just 13.5 Weirton, WV. Since the acquisition of Necessary To Require Divestiture of percent. In contrast, the ratio of tin mill ISG, these operations have been scaled Dofasco on the Earliest Date on Which steel capacity to cold-rolled capacity at back, not expanded, and Mittal has It May Legally Be Divested Free of the Sparrows Point is greater than 50%, and shown little or no interest in their long- Stichting Arrangements, and the Hold- is roughly 80% at Weirton. Dofasco’s term viability. As importantly, since its Separate Order Should Continue in more limited tin mill steel capacity acquisition of ISG, Mittal has met is Effect Until That Divestituture Is relative to its cold-rolled capacity means contractual volume commitment to Accomplished a much larger portion of its cold-rolled Silgan, but has declined to ship capacity is immediately available for additional volumes requested by Silgan. Because of the obvious superiority, sale in often more profitable cold-rolled Efforts to engage Mittal in discussions from the standpoint of competitive or galvanized markets. Weirton and toward extending the current supply supply of tin mill steel products, of a Sparrows Point, on the other hand, have commitment to Silgan have not been divstiture of Dofasco over either limited opportunity to serve cold-rolled successful. alternative divestiture contemplated by and galvanized markets while at the the proposed decree, the Decree should same time keeping their more The experience with Dofasco has been be amended to ensure that Dofasco is substantial tin mill steel lines operating much different. Time and again Dofasco divested and that any short-term at efficient capacity utilization rates. has demonstrated a willingness to impediment to that divestiture arising commit to the long term production and C. Dofasco Is More Committed to from the stichting arrangements erected supply of tin mill steel. For example, Investing in the Future of the Tin Mill by Arcelor to frustrate Mittal’s efforts to Dofasco understood the desire of can Steel Market acquire Arcelor does not wind up companies for wider and wider coils to producing long-term harm to the tin A key factor for the Department’s enhance can making productivity. mill steel market in the Eastern United consideration should be which entity Dofasco, unlike other suppliers, decided States. Dofasco’s long history of will support the tin mill steel market for to invest in additional wide coil the long term. It is Silgan’s opinion that successful operation as a stand-alone capacity, and now is one of the few entity and its modern plant and Mittal is not interested in this product suppliers in the world to offer extra- and will not support the tin mill steel facilities make it highly likely that wide coils. Another example is market, whereas Dofasco has Dofasco could exist and prosper under Dofasco’s willingness to talk about and demonstrated a concrete willingness to the hold-separate order now in place for agree to longer-term supply support the product. at least five years and remain a viable Prior to its acquisition of International arrangements. There is no question that and attractive divestiture candidate at Steel Group, Mittal had no significant producing tin mill steel is in Dofasco’s the end of that period. Thus, there is no involvement in the tinplate market from long term plans. reason for the Department or the Court any of its worldwide operations. With to accept the plainly less effective—and ISG, Mittal acquired the former potentially counterproductive— Bethlehem Steel tinplate operations at alternatives of divesting either Sparrows Sparrows Point, MD and the former Point or Weirton.

6 The leading North American suppliers are to long-time steel analyst Charles Bradford, 7 See generally 2005 Directory of Iron and Steel Mittal (non-Sparrows Point production), U.S. Steel, Sparrows Point ‘‘doesn’t have those (automotive) Plants, Association for Iron and Steel Technology AK Steel and Dofasco. See Peter Marsh, Massive grades.’’ Scott Robertson, Mittal Sparrows Point (2005) (Attachment 6). Bids on Table as Giants Fight for Dofasco, Financial Mill May Be On Auction Block, American Metal Times (January 13, 2006) (Attachment 4). According Market (June 2, 2006) (Attachment 5).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17641

II. A Stand-Alone Weirton Operation alone entity. First, the proposition that furnaces, as does the U.S. Department of Will Fail in the Immediate Future and a stand-alone Weirton operation would Energy (‘‘DOE’’). According to an article Undermine the Department’s Objective have access to the quality or volume of posted on the American Iron and Steel of Preserving Competition in the steel inputs at the cost necessary to run Institute’s web page, ‘‘[b]last furnaces Market the facility efficiently is highly will survive into the next millennium There is no viable business model for speculative. Second, limitations at because the larger, efficient furnaces can a stand-alone Weirton operation that Weirton’s rolling operations would produce hot metal at costs competitive ensures even the intermediate term further hinder the facility’s ability to with other iron making technologies.’’ 10 survival of the company. As a fully- operate a flexible production base or Similarly, a study of alternative integrated steel producer making raw meet the ever-increasing quality ironmaking technologies funded by DOE steel through to tin mill products (‘‘tin demands of tin mill steel consumers. concluded that ‘‘the primary problem mill steel’’), Weirton is not competitive. A. Weirton’s Ironmaking and (sic) the Blast Furnace approach is that The Weirton facility’s ironmaking and Steelmaking Assets Are Not Competitive many of these Blast furnaces are steelmaking assets are antiquated and relatively small, as compared to newer effectively unusable. Indeed, the 1. Weirton Has Small, Inefficient Blast Furnaces larger furnaces; thus are relatively costly ironmaking and steelingmaking assets and inefficient to operate.’’ 11 are currently not operating for this very It is generally agreed within the steel reason.8 The lack of any captive raw industry that blast furnaces with an Weirton’s blast furnaces—none of material assets and the costs associated annual production capacity of less than which is currently in operation—are with transporting bulk raw materials 1.5 million tons per year are not of among the smallest blast furnaces in such as iron ore to the Weirton site only efficient scale. Most, if not all, world- North America. Weirton’s primary No. 1 make the prospects for restarting the class blast furnaces exceed 3 million furnace has a rated annual capacity of ironmaking and steelmaking assets in a tons in annual capacity. While blast 1.46 million tons. The facility’s No. 4 stand-alone configuration that much furnace size is not necessarily furnace, the only other furnace at the more untenable. dispositive with respect to cost Weirton site in any condition to be As a finishing operation consuming competitiveness, it is considered among restarted,12 has a rated capacity of just either slab or more advanced the most important factors.9 1 million tons.13 By contrast, the would- downstream inputs (i.e., hot-rolled band The U.S. Domestic steel industry’s be competitors of a stand-alone Weirton or black plate), it is also highly doubtful own trade association acknowledges the enterprise operate the largest blast that Weirton would survive as a stand- weaknesses and fate of small blast furnaces in North America.14

FIGURE 2.—COMPARISON OF BLAST FURNACE SIZE

Annual capacity Company/operation Blast furnace Year built (million tons)

Mittal, Indiana Harbor ...... No. 7 ...... 1980 4.0 U.S. Steel, Gary Works ...... No. 14 ...... 1974 3.4 Mittal, Sparrows Point ...... ‘‘L’’ ...... 1977 3.2 Weirton ...... No. 1 ...... 1919 1.5 Weirton ...... No. 4 ...... 1953 1.0

Weirton’s furnace limitations have long exercise. Both the Weirton No. 1 and costs may in fact be prohibitive to any been known; in 1982, National Steel No. 4 furnaces are no longer hot banked, would-be investor. proposed shutting down Weirton’s but now sit completely cold. The costs 2. Weirton’s Steelmaking Operations furnaces and operating Weirton as a of restarting the furnaces from a cold Are Also Antiquated and High Cost rolling mill.15 state are uncertain, but could be In any case, assessing the significant depending on any damage Weighed down by the high cost of its competitiveness of the Weirton blast resulting from the cool down. Such ironmaking operations, the Weirton furnaces is strictly an academic facility inherently is a high cost steel

8 See Mark Reutter, The Strange Case of Weirton 10 See How a Blast Furnace Works, AISI these furnaces have been made more efficient, but Steel, MakingSteel.Com (April 25, 2006) (emphasis (emphasis added) (Attachment 9). they remain high cost. Indeed, by Mittal’s own aded) (Attachment 7). 11 Ironmaking Process Alternative Screening admission, Silgan knows they are at least the 9 Other competitiveness factors one might Study—Volume I, Summary Report, Lockwood highest cost furnaces in the Mittal USA system. See consider include the coking rate of the furnace and Greene study for the Department of Energy (Oct. Mark Reutter, The Strange Case of Weirton Steel, any alternative charging technologies utilized by 2000) at 1–1 (Attachment 10). MakingSteel.Com (April 25, 2006) (Attachment 7). 12 14 the furnace to reduce that rate and increase Weirton’s No. 4 furnace needs repairs before Capacity data for the Weirton blast furnaces productivity. For a discussion of these alternative being restarted. Weirton’s former owner ISG derived from 2005 Directory of Iron and Steel intended to make such repairs. See Jim Leonard, Plants, Association for Iron and Steel Technology techniques, see William T. Hogan and Frank T. ISG To Repair, Restart Second Blast Furnace at (2005) (Attachment 6). Capacity data for Mittal, Koelbe, Fewer Blast Furnaces, But Higher Weirton Unit, American Metal Market (July 12, Sparrows Point ‘‘L’’ furnace derived from Mittal Productivity, New Steel (November 1996) 2004) (Attachment 11). With Mittal’s acquisition of Steel USA Works to Restore Furnace at Sparrows (Attachment 8). Note, however, that reliance on Weirton, it was determined that Weirton would no Point, PRNewswire (July 14, 2006) (Attachment 12). alternative charging techniques has presented new longer produce raw steel and the repair work was Capacity data on Mittal, Indiana Harbor No. 7 cost problems for some blast furnace operations. In never initiated. See Mark Reutter, The Strange Case furnace derived from Ispat Inland Accelerates particular, for those blast furnaces relying on of Weirton Steel, MaingSteel.Com (April 25, 2006) Maintenance Outages, Ispat Inland Press Release natural gas injection to reduce coking rates (Attachment 7). (March 7, 2005) (Attachment 13). (including Weirton), they successfully lowered their 13 While age is less indicative of the efficiency of 15 Weirton Workers Buyout from Online coking rates and boosted productivity, but were a furnace, Weirton’s furnaces are very old. The No. NewsHour, September 23, 1983; http:// later hit with heavy costs as natural gas prices rose 1 furnace was built in 1919; the No. 4 furnace was www.pbs.org/newshour/bb/business/july-dec83/ dramatically. built in 1953. Through rebuilds and modifications, steel_9-23-83.html. (Attachment 14).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17642 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

producer. Leaving no doubt, Weirton’s 3. An Independent Weirton Operating their blast furnaces. To insulate slab costs have been rated by a leading Its Ironmaking Facilities Would Lack themselves from volatility in raw steel consultancy as the highest in the Any Captive Raw Material Supplies material markets, integrated producers world.16 These results are consistent tend to maintain captive supplies of at A stand-alone Weirton enterprise with Mittal’s own top-down review of least some of their raw material needs. utilizing its ironmaking assets does not the Mittal USA system, which found the Although all U.S. mills have largely fit the paradigm of successful integrated Weirton steelmaking assets to be the divested themselves of their U.S. coal steel makers (i.e., those operating blast assets, maintaining captive coke least economical among its many U.S. furnaces and basic oxygen furnaces to facilities.17 supplies remains a common practice produce steel) operating in the U.S. among integrated producers. This Weirton’s continuous caster is also an market. That paradigm includes access practice continues given the high costs 18 old, four-strand caster. A new, single to captive supplies of at least some raw associated with building new coke strand caster is necessary to achieve material requirements (coal, coke, or plants in today’s regulatory better yield loss and quality control in iron ore). environment and the fact that the coke important tin mill grades of steel. Integrated steel producers consume market tends to be in very tight supply. massive amounts of raw materials in the The largest producers also maintain form of coal, coke, and iron ore to run captive iron ore assets.

FIGURE 3.—INTEGRATED MILL RAW MATERIAL ASSETS 19

U.S. coke U.S. iron ore Company assets assets

U.S. Steel ...... Yes ...... Yes. Mittal Steel ...... Yes ...... Yes. AK Steel ...... Yes ...... No. Wheeling-Pittsburgh Steel ...... Yes ...... No. WCI Steel ...... No ...... No. Severstal-Rouge Steel ...... Yes ...... No. Sparrows Point ...... No ...... No. Dofasco 20 ...... Yes ...... Yes. Weirton ...... No ...... No.

The Weirton facility does not operate supply disruption when U.S. Steel (a tin coal to produce coke.22 Key sources of coke ovens, nor does it own any iron ore mill steel producer) declared force imported coke, such as China, now assets. As a stand-alone enterprise majeure on a supply contract with consume a larger portion of that supply operating its blast furnaces, Weirton’s Weirton in a very tight market for coke, in their own domestic markets.23 With lack of raw materials assets would leave forcing Weirton to limit operations in a tight world market for metallurgical it dependent on outside supply, that year.21 coal coupled with U.S. supply including supply from other U.S. tin Although the first new coke ovens disruptions that occurred in 2005, the mill steel producers. built in the United States in seven years average delivered price of coal to U.S. With respect to coke, the implication were completed in 2005, shipments of coke plants increased by 36.2 percent to of Weirton’s outside supply dependency metallurgical coal to U.S. coke plants reach an average price of $83.79 per is documented in Weirton’s recent past. show a decline over the last 5 years due short ton in 2005. This, in turn, caused In 2004, Weirton experienced a coke to the tight specifications needed for coke prices to skyrocket.24

FIGURE 4.—U.S. METALLURGICAL COAL SUPPLY AND PRICES TO U.S. COKE PLANTS [Million short tons and nominal dollars per short ton]

2001 2002 2003 2004 2005

Consumption Average ...... 26 .1 23 .7 24.2 23 .7 23 .4 Delivered Price ...... $46.42 $50 .67 $50.63 $61.50 $83.79

Even Weirton’s union representatives materials are the root of Weirton’s plant and must buy it at a high cost on acknowledge the coke problem: ‘‘Union problem. Weirton does not have a coke the open market.’’ 25 spokesman David Gosset said raw

16 High Production Costs Hamper AK Steel’s 20 Dofasco has iron ore assets in Canada. See 23 For a discussion of the tight market for coke Middletown Works, Steel Business Briefing (Aug. Maria Guzzo, Dofasco seals $251m purchase of during 2004 and the factors that drive tight coke 10, 2006) (Attachment 15). Canadian iron ore miner QCM, American Metal supplies, see Peter Krouse, Heat Back on Steel 17 See Mark Reutter, The Strange Case of Weirton Market (July 26, 2005) (Attachment 16). Makers, The Plain Dealer (February 26, 2004) Steel, MakingSteel.Com (April 25, 2006) 21 Scott Robertson, Force Majeure Clobbers Coke- (Attachment 18). (Attachment 7). Short Steelmakers: Weirton Eyes Options, Blast 24 U.S. Coal Supply and Demand: 2005 Review, 18 2005 Directory of Iron and Steel Plants, Furnace Closure, American Metal Market (Jan. 9, Department of Energy, Energy Information Association for Iron and Steel Technology (2005) at 2004) (Attachment 17). Administration. 130 (Attachment 6). 22 U.S. Coal Supply and Demand: 2005 Review, 25 Vicki Smith, Furnace Will Stay Idle at Weirton 19 See Various Annual Reports from producers Department of Energy, Energy Information Steel Mill, Associated Press (Dec. 2, 2005) listed in the above table below. Administration. (Attachment 19).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17643

The raw material paradigm bears out processes entail costs that are too high to stream flat-rolled steel markets. Finally, in the experience of other integrated support competitive downstream facilities.28 the prospect of limited availability of steel producers. Operations with no At the same time, noted industry analyst merchant slab or black plate substrate captive supplies are vulnerable and tend and expert on ironmaking/steelmaking could lead to supply disruptions and to have poorer operating performance. assets Michael Locker stated: limit capacity utilization at the mill, such that it could not generate WCI Steel, for example, also retains no The negative of the consolidation process raw material assets. Not surprisingly, is that you have a comparison going on of sustainable profits. like Weirton, it was also the victim of plants * * * within the Mittal family. 1. Weirton’s Rolling and Finishing the coke supply disruption that If they come out on the short end of the Assets Require Substantial Investment 26 stick, they can’t justify standing alone—even occurred in 2004. WCI emerged from To Be Competitive nearly three years of bankruptcy only with all the hopes of cost reduction and this year. efforts by the union, which were mighty.29 The Weirton facility, both as an Other commentary from the period is independent entity and as part of the 4. Weirton’s Geographic Location consistent with that above concerning International Steel Group and Mittal Guarantees Higher Costs for Basic Mittal’s own internal assessment of the Steel, has been a consistent industry Inputs Weirton facility: laggard. Years of losses have led to years of neglect at the mill.31 At the tin line, Unlike competitors along the Great Unknown to Weirton workers as well as to alone, Mittal has publicly identified the many ISU officers, Mittal Steel kept obsessive Lakes and elsewhere, which have access need for in-line edge-cutting and to water transportation to bring in raw track of all financial aspects of its five integrated mills (Burns Harbor and Indiana tension leveling equipment to keep the materials, Weirton must resort to more mill competitive.32 Mittal, however, has expensive truck and rail options to Harbor in addition to Cleveland, Sparrows Point, and Weirton). The mills were not committed to that investment, supply such basic bulk inputs as iron compared and ranked according to their raw which it identified as important shortly 27 ore. As a stand-alone enterprise not material inputs, manufacturing costs, and after it acquired the Weirton assets from affiliated with a larger integrated steel product profit margins. At the bottom of the the International Steel Group.33 operation, Weirton would have no list lay the ‘‘swing’’ plant—the facility that, Given Weirton’s historically poor ability to average higher transportation in times of low demand, didn’t generate financial performance, it is likely that costs over a broader asset base or enough money to please the steelmasters in other major maintenance at the mill has London. leverage lower transportation prices been severely neglected. If Weirton has with service providers serving more Weirton was the ‘‘swing’’ plant. It was hobbled by higher raw material any chance at all of being a viable, than the Weirton facility. costs, especially for coke, than the other stand-alone operation, any new investor 5. Weirton’s Limitations as a Fully- mills.30 would have to be committed to Integrated Steel Maker Producing Tin Based on this commentary, it is clear substantial new capital spending to Mill Steel Are Recognized by Mittal and that Weirton, even as part of a vast improve the competitive position of the Outside Observers integrated steel enterprise, is incapable mill. The rolling and finishing lines as of being competitive running its they currently exist are not ‘‘turn-key’’ There is no dispute that Weirton ironmaking and steelmaking assets. As operations that would be immediately suffers from severe limitations as a an independent enterprise running competitive in today’s market. those assets, prospects would only fully-integrated steel producer, even 2. Weirton Would Be Committed to diminish from bad to worse. among those parties with an immediate Producing Primarily Tin Mill Steel, interest in, or who are otherwise B. Prospects for a Stand-Alone Weirton Limiting Production Flexibility knowledgeable about, the facility. Enterprise Operating as a Rolling and In today’s steel industry, few mills Consider the comments of Mittal USA Finishing Operation Are Limited CEO Leo Schorsch shortly after Mittal consistently make money producing acquired Weirton and made the decision Even if Weirton’s ironmaking and only one product. This is particularly to shut down its steelmaking operations: steelmaking assets remain closed and true for mills that maintain hot-rolled the facility continues operating as a through galvanizing assets and have to This was a very difficult decision, since the rolling and finishing operation, the cover the fixed costs associated with Independent Steelworkers Union and all viability of such an operation on a each stage of flat-rolled steel employees have worked so hard to beat the odds trying to maintain steelmaking at stand-alone basis is doubtful. The production. Large integrated operations Weirton,’’ said Louis L. Schorsch, chief Weirton rolling operations—long such as these seek a balance, shifting executive of Mittal Steel USA. ‘‘However, the neglected by its previous and current production upstream and downstream structural disadvantages of Weirton for these owners—require substantial investment to adjust to changing market conditions to remain competitive. Moreover, the in each segment while also attempting 26 See Peter Krouse, Heat Back on Steel Makers, production emphasis on tin mill steel, The Plain Dealer (February 26, 2004) (Attachment as well as the configuration and 31 Weirton filed for Chapter 11 Bankruptcy 18). limitations at the mill, mean that it protection in May 2003 after racking up more than 27 According to the Minneapolis Federal Reserve would have limited production $700 million in losses over the previous five years. ‘‘water transport via inland ports is estimated to be Vicki Smith, Weirton Files for Ch. 11; 1,100 Ohio at least five times more efficient than rail and trucks flexibility to maximize profitability by Jobs Affected, Associated Press (May 20, 2003) at delivering similar cargo on a fuel cost-per-gallon reacting to changes in up- and down- (Attachment 21). Such financial performance is not basis. U.S. inland waterways move about 15 percent conducive to investment in the capital-intensive steel industry. of interstate commerce for bulk commodities at only 28 Mark Reutter, The Strange Case of Weirton 32 2 percent of the cost.’’ Marcia Jedd, Minneapolis Steel, MakingSteel.Com (April 25, 2006) See Hearing Transcript, In the Matter Of: Tin Federal Reserve fedgazette, January 2003, http:// (Attachment 7). and Chromium-Coated Steel Sheet from Japan, Inv. No. 731–TA–860 (Review) (April 27, 2006) minneapolisfed.org/pubs/fedgaz/03-01/ 29 Vicki Smith, Furnace Will Stay Idle at Weirton (testimony of Bill Stephans, Division Manager for shipping.cfm (Attachment 20); See also Vicki Steel Mill, Associated Press (Dec. 2, 2005) TMP at Mittal Steel USA’s Weirton Facility) Smith, Furnace Will Stay Idle at Weirton Steel Mill, (emphasis added) (Attachment 19). Associated Press (Dec. 2, 2005) (Attachment 19) (Attachment 22). (‘‘Weirton also must buy iron ore and have it 30 Mark Reutter, The Strange Case of Weirton 33 Mark Reutter, The Strange Case of Weirton shipped by rail. Mittal’s mill in Cleveland can get Steel, MakingSteel.Com (April 25, 2006) Steel, MakingSteel.Com (April 25, 2006) iron ore shipped in cheaper on Lake Erie’’). (Attachment 7). (Attachment 7).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17644 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

to preserve efficient capacity utilization 3. Weirton Would Have Difficulty producer of merchant slab (i.e., slab rates at each stage of production. Securing the Quality and Volume of produced for sale) in the world and Weirton cannot make similar Slab Necessary To Maintain Its would be the logical supplier to the adjustments. Operations Weirton facility. However, current At the front of the flat-rolled Tin mill steel is a high grade steel Brazilian merchant slab supply is production chain, hot-rolled steel, product that must meet strict largely allocated among an existing 36 Weirton would lack the ability to metallurgical and physical tolerances in global customer base. Indeed, free challenge more nimble and cost order to satisfy customer demands. The supplies will be further limited with competitive minimill producers that steelmaking and slab casting phases of CSN’s anticipated acquisition of U.S. have long dominated the commodity production are every bit as critical to steelmaker Wheeling-Pittsburgh, which hot-rolled market. The economics of achieving these qualities as are the currently maintains 600,000 tons in buying slab dictate that stand-alone rolling and finishing phases. As a slab excess hot-rolling capacity that would 37 Weirton rolling and finishing operation roller, it would be necessary for a stand- be filled by CSN slab. That tonnage move downstream to higher value- alone Weirton enterprise to secure tin could increase substantially if a added products in order to capitalize on mill steel-grade slab from as few decision is made to shut Wheeling- 38 steel grades that minimills find more committed sources as possible in order Pittsburgh’s aging blast furnace. difficult to produce. to control uniformity and quality. While the Brazilian slab industry has At the end of the production chain, Failure to do so would lead to committed to a substantial expansion of the Weirton facility is incapable of circumstances with which the Weirton its slab-making capacity, there is little competing in the galvanized sheet facility is all too familiar: Unreliable, prospect that an economically viable market, whether using a hot-rolled or quality-deficient supply. This was the volume of this forthcoming slab cold-rolled substrate. Weirton’s outcome in 1999, when Weirton capacity would be available to a stand- galvanizing lines were determined to be experimented as an independent alone Weirton in the quality required to the highest cost operations in the Mittal producer rolling slab acquired from produce tin mill steel. As documented system and closed.34 It is difficult to other producers. Delivery and inventory in the following table, virtually all of the conceive of a cost environment in which management were poorly handled. Slab new Brazilian slab would be unavailable Weirton could reliably purchase slab arrived late and in inconsistent quality to Weirton. Much of the planned slab and produce a sustainable profit and tolerances.35 It is unlikely that the capacity expansion among Brazilian running steel through such a high cost Weirton facility could achieve better producers targets either Brazilian facility. results in today’s market. domestic demand or other offshore Finally, Weirton’s cold-rolling mill, A stand-alone Weirton Enterprise demand (via existing business while potentially capable of producing rolling purchased slab would find it relationships). Timing considerations competitive cold-rolled, would have difficult to secure, on an economic make it even more improbable that limited capacity to do so since it is basis, the 800 thousand to 1 million tons Brazil can source slab for a newly- dedicated to serving the tin operations, of tin mill steel-grade slab necessary for divested and independent Weirton mill: creating constant pressure to keep the its operations from high quality A significant fraction of Brazil’s new tin mill operating at efficient rates to suppliers. In this regard, Brazil is slab capacity will ramp up years from cover costs. recognized as the low-cost, high quality now, an unsuitably long period of time.

FIGURE 5.—BRAZILIAN SLAB CAPACITY EXPANSIONS

New slab capacity Producer/project (million tons) Expected startup Comments

CST (Arcelor Brazil) 39 ...... 2.5 ...... End of 2006 ...... Expected to add 2.5 million tons of hot-rolled coil capacity by 2008, which will capture much of this expansion. Also in- tends to ship substantial additional tonnage to Arcelor-affil- iate Dofasco, which is slab-deficient. Gerdau Acominas SA 40 ...... 3 (initially 1.5)...... Mid-2008 ...... Discussions are already underway with ‘‘possible clients abroad.’’ CSA 41 (Thyssen/CVRD) ...... 4.4 ...... 2008 ...... Much of this capacity is to be dedicated to Thyssen Steel’s offshore operations, including a proposed U.S. greenfield mill expected to produce 4.5 million tons of finished steel. Ceara Steel 42 (CVRD/Donguk 1.5 ...... 2009 ...... Donguk Steel is expected to consume at least 50 percent of Steel/Danieli & C. SpA). the slab produced at the facility. CSN/Baosteel 43 ...... 4.5 ...... 2011 ...... Two projects are envisioned, with feasibility studies to be fi- nalized by the end of 2006. Baosteel is a projected partner in one project, with the expectation that a portion of the production would be directed at Baosteel. Other available capacity would also serve CSN’s rolling operations abroad, with the remainder available to third parties.

34 Sam Kusic, ISU Irked by Mittal Steel’s Plan To up for production losses due to an accident at its 38 A competitor for the Wheeling-Pittsburgh Shut Weirton Galvanizing Line, American Metal No. 3 blast furnace. A looming increase in export assets, Esmark, envisions shutting down the last Market (Feb. 3, 2006) (Attachment 23). taxes on Chinese slab put further pressure on the Wheeling-Pittsburgh blast furnace in an indication 35 Weirton’s resort to purchased slabs and the market as Chinese producers pulled back from of the perceived or assessed costs of running that export markets. See Diana Kinch, Brazil Slab hits problems created by that strategy were cited in facility. See Esmark To Shut Wheeling-Pitt BF If Bid testimony during the 2000 antidumping case on $555/T In Tight Export Market, American Metal Succeeds, Steel Business Briefing (August 23, 2006) TMP imports from Japan (Attachment 24). Market (June 5, 2006) (Attachment 25). (Attachment 27). 36 In 2006, Brazilian merchant slab supply 37 Wheeling-Pittsburgh Makes Loss, Despite became extremely tight, with prices rising to $555 Rising Market, Steel Business Briefing (May 11, a ton, as Brazilian producer CSN struggled to make 2006) (Attachment 26).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17645

FIGURE 5.—BRAZILIAN SLAB CAPACITY EXPANSIONS—Continued

New slab capacity Producer/project (million tons) Expected startup Comments

Usiminas/CVRD 44 ...... 5 ...... 2010–2012 ...... Usiminas is seeking a partner among companies that already have, or plan to set up, rolling capacity abroad.

The Russian producer Severstal is prospect of supply disruptions and tends to remain more stable. A more also a low-cost producer capable of production problems related to uneven consistent pricing spread is maintained meeting international quality standards slab consistency. as prices for slab rise and fall. A very and therefore might be an economical different pattern emerges for tin mill 4. Even if a Stand-Alone Weirton option for a stand-alone Weirton facility steel, given the very small and Rolling and Finishing Operation Found dedicated to rolling slab. This option, specialized market it serves. The pricing a Consistent Source of Slab Supply, the however, is limited. Severstal’s spread between slab and tin mill steel Market Dynamics for Tin Mill Steel acquisition of Rouge Steel limits its grows or shrinks substantially as the Would Limit Profitability ability to supply high volumes of overall market for flat-rolled steel merchant slab while meeting its Ultimately, even if Weirton could strengthens or weakens. For a tin mill commitment to Rouge.45 secure an adequate source of slab from steel producer relying on merchant slab, In short, the market situation for third parties, the market dynamics for it is more difficult to preserve profit merchant slab would likely force a tin mill steel would create significant margins as markets for hot-rolled, cold- stand-alone Weirton to source tin mill profitability problems as the market for rolled, and galvanized steel expand and steel-quality slab piecemeal from flat rolled steel ebbs and flows. In the cause slab prices to rise. This is multiple sources. As Weirton’s 1999 flat-rolled steel market, the relationship evidenced in the figure below tracking experience showed, this is precisely the between slab prices and prices for prices for imported slab, as well as the sourcing situation Weirton would want mainstream flat-rolled steel—hot-rolled, U.S. market prices for hot-rolled, cold- to avoid since it would raise the cold-rolled and galvanized products— rolled, galvanized, and tin mill steel.46

39 Diana Kinch, Arcelor Brasil Sets Sights on New 42 Diana Kinch, Groundwork Laid For Brazil’s Steel to U.S., Reuters (February 2, 2004) Slab Plant, American Metal Market (May 1, 2006) Ceara Slab Project, American Metal Market (Attachment 36). (Attachment 28); Diana Kinch, CST to Hike Slab (December 16, 2005) (Attachment 33). 46 Slab prices reflect average unit values for Sales to Dofasco, American Metal Market (March 43 Diana Kinch, CSN May Lift Slab Capacity of carbon steel slab imported from Brazil, tracking 22, 2006) (Attachment 29). Two Projects, American Metal Market (September 1, U.S. harmonized tariff schedule items 7207.12.0050 40 Diana Kinch, Gerdau Acominas Charging Into 2006) (Attachment 34). and 7207.20.0045. U.S. market prices for hot-rolled, Slab Mart, American Metal Market (June 30, 2006) 44 Diana Kinch, Brazil’s Usiminas Casts Sights (Attachment 30). Ahead for New Slab Project Partner, American cold-rolled and galvanized sheet were sourced from 41 Diana Kinch, CSA Steel Project Receives Metal Market (August 29, 2006) (Attachment 35). Steel Business Briefing and are FOB Midwest U.S. License, American Metal Market (July 6, 2006) 45 At the time of acquisition, Severstal expressed mill. U.S. market prices for TMP were sourced from (Attachment 31); Scott Robertson, North American its intent to revitalize the Rouge facility by shipping Tin- and Chromium-Coated Steel Sheet from Japan, at Top of TK’s Agenda, American Metal Market low-cost slab to Rouge from its Russian production Inv. No. 731–TA–860 (Review), USITC Pub. 3860 (August 11, 2006) (Attachment 32). base. See Russia’s Severstal Wants to Ship More (June 2006) at V–8 (Attachment 37).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17646 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Figure 1 captures both the mill steel production means that lines and sourced only the substrate for significantly depressed steel market in margins from tin mill steel production tin mill steel, black plate, it would be 2003 and the extremely strong steel become extremely tight in a strong steel unable to source enough substrate to run market that followed in 2004 and 2005. market. Yet, this is precisely when tin its operations on a profitable basis. In The substantial swing in pricing for hot- mill steel producers would logically this regard, Silgan notes that the rolled, cold-rolled, and galvanized sheet seek to recoup losses from weak years. Weirton tin lines are substantial, is in sharp contrast to the much flatter This phenomenon has two important capable of running 800,000 tons of tin pricing trajectory of tin mill steel. implications. First, a tin mill steel mill steel. To achieve economies of Indeed, during much of 2004, the producer reliant on merchant slab is scale, it needs to operate those lines at market price for commodity grade cold- unable to capitalize on a strong market better than 70 percent, meaning it rolled steel (i.e., the product most through better margins on a higher would have to secure as much as similar to tin mill steel substrate) was volume of steel shipped. Second, a tin 560,000 tons of black plate to run actually higher than the tin mill steel mill steel producer reliant on merchant efficiently. price, despite the substantial additional slab is at a competitive disadvantage in Consider, however, the experience of value-added associated with tin mill the acquisition of slab on the open Ohio Coatings, a tin mill steel producer steel production. While the visual market against other slab rollers configured to finish black plate. Despite depiction of pricing suggests tin mill producing traditional flat-rolled being owned by, or in close affiliation steel also maintains a manageable products. In particular, because of the with, integrated steel producers with the pricing spread over time, the reality is pricing spread, these other slab rollers capacity to produce black plate,48 Ohio very different. Consider that, over the have greater bidding power to secure the Coatings has been unable to secure more 2000–2005 period, U.S. tin mill steel volumes necessary for their operations. than 60 percent of its black plate producers, as an industry, recorded These two factors combine to produce a requirement. This is true even though their largest loss in 2003, when it very difficult competitive environment the mill is capable of producing only appears from the figure above that their for any tin mill steel producer wishing 300,000 tons of tin mill steel. The fact raw material costs would have been the to rely exclusively on merchant slab. that an owner of the facility is unwilling most manageable.47 Weirton would not be an exception to to supply Ohio Coatings with its Just as important, the additional this reality. material requirements speaks volumes about whether a stand-alone Weirton overhead and fixed costs associated 5. A Stand-Alone Weirton Enterprise with running rolling and finishing Running Only Its Tin Line Would Have assets from the very first stage of flat 48 Ohio Coatings is a 50–50 joint venture between Difficulty Securing Sufficient Volumes Wheeling-Pittsburgh Steel and Donguk Steel of rolled steel production through to tin of Black Plate Korea. Wheeling-Pittsburgh is a producer of black plate and supplies Ohio Coatings that input. 47 Tin- and Chromium-Coated Steel Sheet from Real world experience indicates that Nippon Steel is Ohio Coatings’s exclusive Japan, Inv. No. 731–TA–860 (Review), USITC Pub. even if a stand-alone Weirton enterprise distributor, and is also a major producer of black 3860 (June 2006) at Table III–8 (Attachment 38). reduced its operations to only its tin plate.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.000 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17647

finishing black plate into tin mill steel, either its parent company, companies apparently do not even consider the with far more substantial tin mill steel with close ties to it, or other outside necessary investment in the rolling capacity, could source enough black suppliers. There is no expectation that assets, but focus only on the blast plate as a stand-alone producer looking a stand-alone Weirton, similarly furnaces, although Mr. Hecht has to the open market. configured, would fare better. It would expressed interest in acquiring the Ohio Coatings’ problem, which is the likely fare worse, given the lack of any rolling assets as well.50 same problem a stand-alone Weirton affiliated supplier of black plate. enterprise would face if similarly D. Divesting Weirton Will Have an C. There Are No Legitimate Suitors for Adverse Impact on Competition operated, relates back to the flat-rolled Weirton pricing dynamics discussed in the Weirton has long been perceived as Given that there is no existing steel previous section. Steelmakers must entity interested in buying Weirton and make choices regarding the products one of the weakest and least competitive since an independent Weirton would be they choose to market. The decision steel producers in the U.S. industry. To entirely unprofitable, a decision to begins at the raw steel phase, since steel Silgan’s knowledge, the only individual divest Weirton will result in an increase chemistry will dictate what finished to surface expressing a desire to acquire in the HHI. As detailed in the chart steel products can be made. In a strong the Weirton assets, Mitch Hecht, is not below, using the public data available to market for hot-rolled, cold-rolled, or taken seriously by Mittal and has galvanized sheet, the incentive to presented no viable business plan. us, Silgan estimates that prior to the produce black plate for tin mill steel Mr. Hecht’s estimates on start-up Mittal-Arcelor merger the HHI for the production is diminished. A steelmaker costs to get the Weirton blast furnaces Eastern U.S. tin industry was 3058. will seek to maximize profitability and running are overly optimistic, including With the Mittal-Arcelor merger, Silgan a proposed initial investment of just $10 throughput by focusing on those estimates that the HHI now stands at million, including the purchase price. products generating the strongest 3446. Assuming that Weirton is divested Hecht has been even more ambiguous margins. The difference in profit and it survives as a standalone entity, about working capital needs and what 51 margins between tin mill steel and the the HHI would fall to 2761. he sees as necessary longer term other traditional flat-rolled products can investment in the ‘‘several’’ tens of 50 be so great that there is no economic Mittal Steel Plans to Sell Dofasco, Hecht Waits millions of dollars.49 These ‘‘estimates’’ for Weirton, Steel Business Briefing (August 16, justification for producing black plate. 2006) (Attachment 40). The result is Ohio Coating’s dilemma— 49 Scott Robertson, Mittal Shows Little Interest in 51 The full analysis is provided at Attachment 41 a 60 percent capacity utilization rate Weirton Furnace Sale, American Metal Market (May (‘‘HHI Impact of Alternative Divestiture and no ready supply of black plate from 5, 2006) (Attachment 39). Scenarios’’).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17648 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

FIGURE 7.—HHI ANLAYSIS: POST-MERGER AND WEIRTON MARKET EXIT

HHI impact

Pre-merger ...... 3058 Post-merger (no divestiture) ...... 3446 Remedy-Divest Weirton ...... 2761 (if Weirton survives). 3645 (if Weirton fails).

Unfortunately, as the above a Weirton divestiture is a higher, not Weirton runs contrary to the goal of discussion makes clear, the divestiture lower, HHI. In fact, unless the DOJ improving competition in tin market. of Weirton will almost certainly result believes that a stand-alone Weirton has The increase in HHI is only one in failure and the exit of Weirton from a better than a two out of three chance probable consequence of a divestiture of the tin industry. Assuming that Weirton of surviving (an unduly optimistic belief Weirton. A failed Weirton would is divested and it does not survive as in Silgan’s opinion), the expected result remove more than 800,000 tons of tin- standalone entity, the HHI will rise to of a Weirton divestiture is a less making capacity from the market. With 3645. competitive market.52 Given Weirton’s Weirton in the market can-makers are It is Silgan’s belief that this latter poor prospects as a standalone often put on allocation and struggle to scenario is quite likely; indeed, Silgan producer, allowing Mittal to divest knows of no industry expert who would get delivery of product. The removal of about 20% of U.S. production capacity give a stand-alone Weirton more than a 52 The full analysis is provided at Attachment 42 20% chance of surviving. Consequently, (‘‘Probability that Divestiture Will Improve will make the current bad situation truly this implies that the expected result of Competition’’). dire.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17649

III. A Divestiture of Sparrow’s Point where profit margins are among the between other flat-rolled products and Would Also Be a Far Less Effective strongest in the industry. Sparrows tin mill steel is just too great to justify Remedy Than Divesting DoFasco Point is not a significant player in that sending scarce feedstock to Weirton. market.54 There would be virtually no A. Divestiture of Sparrows Point Is economic incentive for Mittal to divert FIGURE 8.—COMPARISON OF U.S. IN- Unlikely To Enhance Competition Over slabs from Dofasco and reduce the Long Term DUSTRY PROFITABILITY FOR FLAT- production in the high margin auto ROLLED PRODUCTS As discussed above, Weirton does not sheet segment. Dofasco’s slab [Operating margin] have the ability to survive on its own. production must also support other And, without Sparrows Point, Weirton Dofasco downstream operations, 2004 2005 is unlikely to survive as part of the including its hot-rolled, cold-rolled and Mittal-Arcelor enterprise. The reason is pipe facilities.55 Galvanized 57 ... 10.9% 5.4% straightforward: Without Sparrows More importantly, Dofasco is not self- Plate 58 ...... 22.0% 25.4% Point, Weirton will not be able to secure sufficient in slabs, but itself requires as Hot-Rolled 59 .... 22.1% Not available. sufficient volumes of feedstock to much as 750,000 tons in purchased slab Tin Mill 60 ...... ¥0.9% ¥0.7% produce tin mill steel. to feed its rolling and finishing Within the Mittal system, Sparrows operations.56 Thus, to maintain efficient Very simply,Weirton will not be the best Point is a key supplier of slab for capacity utilization rates at all of its use of Mittal’s limited slab supply in the Weirton. For example, Silgan’s production lines, Dofasco needs every Midwest that services more profitable understanding is that all the tin free ton of slab it produces and acquires. operations. steel (‘‘TFS’’) originating at the Weirton facility is produced using Sparrows 2. It Is Unlikely That Mittal Steel’s 3. It Would Make No Economic Sense Point slab. A Sparrows Point facility Other North American Slab Producers for Mittal’s Brazilian Affiliate CST To operating outside the Mittal system Will Divert Scarce Feedstock to Weirton Supply Slabs to Weirton would limit the supply of this key Divesting Sparrows Point will cause Within Mittal’s global steel feedstock to Weirton and thereby Mittal Steel to have one fewer steel- operations, its Brazilian affiliate CST threaten the ongoing viability of making facility. With one less blast (Arcelor/Brazil) is a significant producer Weirton. furnace operating to support its of slab for sale in export markets. CST And, as importantly, all indications operations, Weirton becomes more also has plans to expand its slab are that other slab producers within vulnerable to blast furnace outages— capacity in the very near term, with the Mittal Steel’s collection of facilities some planned, some unplanned—that introduction of some 2.5 million tons of either cannot or are unlikely to become aer a regular occurrence in the steel new slab capacity at the close of this reliable suppliers to Weirton’s tin mill industry. Blast furnace relines as well as year. CST, however, is an unlikely steel operations. Specifically, (1) accidents can cause significant supply candidate to ship a significant tonnage Dofasco’s current product mix and sales disruptions, particularly if slab supply of slab to Weirton. make Dofasco an unlikely replacement is already tight. Any problem at Mittal’s for Sparrows Point as a supplier of other steel-making facilities in Burns CST is already a major supplier of feedstock to Weirton, (2) given lower tin Harbor, Cleveland, or Indiana Harbor slab to Dofasco, shipping some 400,000 mill steel profitability compared to will result in a reduction of slab tons with plans to increase that amount, other flat-rolled products, it is unlikely supplied to Weirton’s tinning lines. perhaps to meet all of Dofasco’s that Mittal Steel’s other U.S. slab Facing a supply shortage, Mittal USA merchant slab requirements (750,000 producers will divert scarce feedstock to would have a strong incentive to divert tons).61 It would make more economic Weirton, and (3) it would make no its limited supply of slabs away from sense to ship this slab to Dofasco, a high economic sense for Mittal’s Brazilian the downsized tin mill steel market in profit margin producer that needs the affiliate, CST, to supply slabs to order to maintain production volumes slab to fill capacity in high demand, Weirton. in the more robust galvanized and cold- than to Weirton. Silgan discusses these points below. rolled markets. The result would be The window in which CST might ship significant production delays at 1. Dofasco Is an Unlikely Replacement to Weirton is also limited since it has Weirton. Given the tight timing for Sparrows Point in Supplying Slabs plans to increase its own hot-rolled requirements for tin mill steel, where to Weirton sheet capacity by 2.5 million tons by can-makers demand just-in-time 2008, the same amount as its slab As discussed above, if Sparrows Point delivery, such delays would be is divested, it is unlikely that Dofasco devastating to Weirton’s customers. 57 ITC Prehearing Staff Report, Certain Carbon would replace Sparrows Point as a key Without Sparrows Point’s slab Steel Products from Australia, Belgium, Brazil, supplier of slab to Weirton. First, capacity, the likelihood that Mittal will Canada, Finland, France, Germany, Japan, Korea, Dofasco is already a producer of tin mill ration Weirton’s slab supply is greatly Mexico, Poland, Romania, Spain, Sweden, Taiwan, and the United Kingdom, Inv. Nos. AA1921–197 steel and, while Sparrows Point may increased. As the chart below makes (Second Review); 701–TA–319, 320, 325–328, 348, claim the same status, Dofasco is also a clear, the difference in profit margins and 350 (Second Review); and 731–TA–573, 574, key supplier to the auto sheet market,53 576, 578, 582–587, 612, and 614–618 (Second American Metal Market (June 2, 2006) (Attachment Review) (September 25, 2006) at Table CORE–III– 53 Dofasco is the fourth-largest producer of auto 5). 8 (Attachment 43). sheet in the North American market, at roughly 1 55 2005 Directory of Iron and Steel Plants, 58 Id. at Table CTL–III–9. million tons, behind the multi-site operations of Association for Iron and Steel Technology (2005) at 59 Certain Hot-Rolled Flat-Rolled Carbon-Quality Mittal Steel, U.S. Steel and AK Steel. See Peter 98–101 (listing flat-rolled assets) (Attachment 6). Steel Products From Brazil, Japan, and Russia, Inv. Marsh, Massive Bids on Table as Giants Fight for Dofasco Tubular Products is the largest and most Nos. 701–TA–384 and 731–TA–806–808 (Review), Dofasco, Financial Times (January 13, 2006) diversified producer of tubular products in North USITC Pub. 3767 (April 2005) at Table III–11 (Attachment 4). America. See http://www.dofascotube.com/ (Attachment 44). 54 According to long-time steel analyst Charles Default.htm (Attachment 3). 60 Tin and Chromium Coated Steel Sheet from Bradford, Sparrows Point (‘‘doesn’t have those 56 Diana Kinch, CST to Hike Slab Sales to Japan, Inv. No. 731–TA–860, USITC Pub. 3860 (automotive) grades.’’ Scott Robertson, Mittal Dofasco, American Metal Market (March 22, 2006) (June 2006) at Table III–8 (Attachment 38). Sparrows Point Mill May Be On Action Block, (Attachment 29). 61 Id.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17650 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

capacity expansion.62 Between servicing B. Divesting Sparrows Point Will Have Arcelor merger, the HHI for the Eastern this new hot-rolled capacity and other an Adverse Impact on Competition in U.S. tin industry was 3058; following profitable global accounts, CST would the Medium to Long Term the merger, Silgan estimates that the be very reluctant to allocate slab for HHI will be 3446. Assuming that supply to Weirton. Under the From the standpoint of consumer Sparrows Point is divested and that circumstances, as a rational economic impact, the divestiture of Sparrows such divestiture neither adversely actor seeking to maximize profits, there Point is, at best, a highly risky policy impacts Weirton’s viability nor alters is no justification for Mittal to ship slabs option. As detailed in the chart below, Sparrow Point’s commitment to tin, the from CST to Weirton. Silgan estimates that, prior to the Mittal- HHI would fall to 2836.63

FIGURE 9.—WEIRTON AND SPARROWS POINT HHI ANALYSIS

HHI impact

Pre-merger ...... 3058. Post-merger (no divestiture) ...... 3446. Remedy–Divest Sparrows Point ...... 2836 (if both W & SP survive). 3421 (if Weirton fails). 3495 (if SP does not maintain its tin operations).

Regrettably, the necessary conditions Conclusion 6. Excerpts from 2005 Directory of for an improvement in the concentration Iron and Steel Plants, Association for metric (both Weirton and Sparrows For all the foregoing reasons, we ask Iron and Steel Technology (2005). Point surviving upon divestiture) are that the Department adopt the following 7. The Strange Case of Weirton Steel, unrealistic and not likely to materialize. approach in designing an appropriate MakingSteel.com (April 25, 2006). As explained above, the divestiture of remedy to address the reduced 8. Fewer Blast Furnaces, But Higher Sparrows Point will significantly competition in the tin mill steel market. Productivity, New Steel (November • threaten the reliable supply of quality First, the Department should make 1996). slab to the Weirton facility and hence every effort to accomplish the 9. See How a Blast Furnace Works, will jeopardize Weirton’s viability. divestiture of Dofasco. AISI. While Weirton would not likely fail • Second, if immediate divestiture is 10. Ironmaking Process Alternative immediately, the lack of reliable captive not possible, Silgan strongly Screening Study—Volume I, Summary slab supply will result in the exit of recommends the consent decree be Report, Lockwood Greene study for the Weirton from the tin industry. Such exit modified to wait the five years Department of Energy (Oct. 2000). from the industry would cause the HHI reportedly necessary to eliminate any 11. ISG To Repair, Restart Second to rise to 3421. Said differently, if the existing legal impediments to the Blast Furnace at Weirton Unit, divestiture of Sparrows Point results in divestiture of Dofasco. An independent American Metal Market (July 14, 2004). Weirton failing, the Sparrows Point Dofasco in five years is better than any 12. Mittal Steel USA Works to Restore divestiture would be totally ineffectual of the other alternatives for preserving Furnace at Sparrows Point, PRNewswire in restoring competitive balance to the competition. (July 14, 2006). 13. Ispat Inland Accelerates tin industry. Respectfully submitted, Maintenance Outages, Ispat Inland Further weakening the benefits of a Theodore C. Whitehouse Press Release (March 7, 2005). Sparrows Point divestiture is the James P. Durling 14. Weirton Workers Buyout from Daniel L. Porter question of Sparrows Point’s Online NewsHour, September 23, 1983; commitment to the tin market. As Matthew McCullough Willkie Farr & Gallagher LLP, 1875 K Street, http://www.pbs.org/newshour/bb/ discussed, Sparrows Point has never business/july-dec83/steel_9-23-83.html. operated as a stand-alone facility and is NW., Washington, DC 20006, (202) 303– 1000. 15. High Production Costs Hamper AK not only likely to invest insufficiently in Steel’s Middletown Works, Steel making its tin lines world class. If a List of Attachments Business Briefing (Aug. 10, 2006). stand-alone Sparrows Point is not 16. Dofasco Seals $251m Purchase of committed to its tin facility, the HHI 1. United States v. Mittal Steel Company, Proposed Final Judgment and Canadian Iron Ore Miner QCM, would be 3495. Again, this implies that American Metal Market (July 26, 2005). the Sparrows Point divestiture would be Competitive Impact Statement, 71 Fed. Reg. 50084, 50085, 50093 (August 24, 17. Force Majeure Clobbers Coke- totally ineffectual in restoring Short Steelmaking: Weirton Eyes competitive balance to the tin industry. 2006). 2. World Steel Dynamics (2005). Option, Blast Furnace Closure, In sum, the divestiture of Sparrows American Metal Market (Jan. 9, 2004). Point is a risky gambit. The Department 3. http://www.dofascotube.com/ 18. Heat Back on Steel Makers, The of Justice’s competition policy should Default.htm. Plain Dealer (February 26, 2004). not be based on hope and a prayer. If the 4. Massive Bids on Table as Giants 19. Furnace Will Stay Idle at Weirton DOJ believes that either of the above two Fight for Dofasco, Financial Times Steel Mill, Associated Press (Dec. 2, scenarios has more than a one in two (January 13, 2006). 2005). chance of occurring, the expected result 5. Mittal Sparrows Point Mill May Be 20. The shipping news & forecast: of a Sparrows Point divestiture is a less On Auction Block, American Metal District ports face many competitive competitive market. Market (June 2, 2006). challenges, but whether they sink or

62 Diana Kinch, Arcelor Brasil Sets Sights On New 63 The full analysis is provided at Attachment 41 Slab Plant, American Metal Market (May 1, 2006) (‘‘HHI Impact of Alternative Divestiture (Attachment 28) Scenarios’’).

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17651

swim over the long term will likely 30. Gerdau Acominas Charging Into 41. ‘‘HHI Impact of Alternative depend on infrastructure improvements, Slab Mart, American Metal Market (June Divestiture Scenarios’’. Minneapolis Federal Reserve fedgazette 30, 2006). 42. ‘‘Probability that Divestiture Will (January 2003). 31. CSA Steel Project Receives Improve Competition’’. 21. Weirton Files for Ch. 11; 1,000 License, American Metal Market (July 6, Ohio Jobs Affected, Associated Press 2006). 43. ITC Prehearing Staff Report, (May 20, 2003). 32. North America at Top of TK’s Certain Carbon Steel Products from 22. Testimony of Bill Stephans, Agenda, American Metal Market Australia, Belgium, Brazil, Canada, Division Manager for TMP at Mittal (August 11, 2006). Finland, France, Germany, Japan, Steel USA’s-Weirton Facility from 33. Groundwork Laid For Brazil’s Korea, Mexico, Poland, Romania, Spain, Hearing Transcript, In the Matter Of: Ceara Slab Project, American Metal Sweden, Taiwan, and the United Tin and Chromium Coated Steel Sheet Market (September 1, 2006). Kingdom, Inv. Nos. AA1921–197 from Japan, Inv. No. 731–TA–860 34. CSN May Lift Slab Capacity Of (Second Review); 701–TA–319, 320, (Review) (April 27, 2006). Two Projects, American Metal Market 325–328, 348, and 350 (Second Review); 23. ISU Irked by Mittal Steel’s Plan To (September 1, 2006). and 731–TA–573, 574, 576, 578, 582– Shut Weirton Galvanizing Line, 35. Brasil’s Usiminas Casts Sights 587, 612, and 614–618 (Second Review) American Metal Market (Feb. 3, 2006). Abroad For New Slab Project Partner, 24. Excerpts of Testimony from (September 25, 2006) at Tables CORE– American Metal Market (August 29, Hearing Transcript, In the Matter Of: III–8 and CTL III–9. 2006). Tin and Chromium Coated Steel Sheet 44. Certain Hot-Rolled Flat-Rolled 36. Russia’s Severstal Wants to Ship from Japan, Inv. No. 731–TA–860 (F) Carbon-Quality Steel Products From More Steel to U.S., Reuters (February 2, (June 29, 2000). Brazil, Japan, and Russia, Inv. Nos. 2004). 25. Brazil Slab Hits $555/T In Tight 701–TA–384 and 731–TA–806–808 Export Market, American Metal Market 37. Tin and Chromium Coated Steel Sheet from Japan, No. 731–TA–860 (Review), USITC Pub. 3767 (April 2005) (June 5, 2006). at Table III–11. 26. Wheeling-Pittsburg Makes Loss, (Review), USITC Pub. 3860 (June 2006) Despite Rising Market, Steel Business at V–8. Attachment 1—United States v. Briefing (May 11, 2006). 38. Tin and Chromium Coated Steel Mittal Steel Company, Proposed Final 27. Esmark To Shut Wheeling-Pitt BF Sheet from Japan, Inv. No. 731–TA–860 Judgment and Competitive Impact If Bid Succeeds, Steel Business Briefing (Review), USITC Pub. 3860 (June 2006) Statement 71 FR 50084, 50085, 50093 (Aug. 23, 2006). at Table III–8. (August 24, 2006) 28. Arcelor Brasil Sets Sights On New 39. Mittal Shows Little Interest in Slab Plant, American Metal Market Weirton Furnace Sale, American Metal The attachment is available in the (March 22, 2006). Market (May 5, 2006). Federal Register, 71 FR 50084. 29. CST to Hike Slab Sales to Dofasco, 40. Mittal Plans to Sell Dofasco, Hecht American Metal Market (March 22, Waits for Weirton, Steel Business Attachment 2—World Steel Dynamics 2006). Briefing (August 16, 2006). (2005) POSITIONING OF 23 WORLD-CLASS STEELMAKERS AS OF JUNE 2005 [Version A—by Factor Weight] 1=least favorable 1 10=most favorable 1

Anshan Bao- Blue- China Arcelor Steel Steel Scope Steel Corus CSN CST Dofasco Gerdau JFE E.U China China Australia Taiwan UK Brazil Brazil Canada Brazil Japan

Annual Steel Shipments (million tons)...... 53 10 19 8 12 23 5 5 5 15 30 Factor Weight (percent) 1 Cash operating costs ..... 10 6 8 8 8 7 5 10 10 6 7 6 2 Harnessing technological revolution ...... 10 6 7 8 7 5 4 4 6 6 5 7 3 Profitability in 2000– 2004 ...... 6 4 8 10 9 8 4 10 8 9 10 6 4 Balance sheet...... 6 7 4 8 8 10 8 7 5 7 9 7 5 Dominance country/re- gion ...... 6 4 10 10 4 3 2 8 8 3 7 2 6 Domestic market growth 5 6 7 8 7 5 4 4 6 6 5 7 7 Expanding capacity...... 5 3 10 9 6 3 2 6 10 3 8 3 8 Access to outside funds 4 7 6 10 9 9 5 6 9 9 8 8 9 Cost-cutting efforts...... 4 10 9 7 7 6 10 6 6 6 6 10 10 Downstream busi- nesses ...... 4 5 3 4 9 3 7 5 3 4 6 10 11 Environment and safety 4 9 9 9 9 9 9 9 9 9 9 9 12 Iron ore and coking coal mines...... 4 3 7 4 4 3 3 7 3 5 4 3 13 Liabilities for retired workers ...... 4 6 6 8 6 6 10 7 10 7 8 6 14 Location to procure raw materials ...... 4 6 7 8 8 8 8 7 8 6 5 8 15 Alliances, mergers, ac- quisitions and JVs...... 4 10 9 9 7 6 4 7 7 7 10 9 16 ‘‘Pricing Power’’ with large buyers...... 4 8 4 8 8 10 8 7 5 7 7 8 17 Threat from nearby competitors ...... 4 5 4 5 8 8 5 7 6 6 7 7

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17652 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

POSITIONING OF 23 WORLD-CLASS STEELMAKERS AS OF JUNE 2005—Continued [Version A—by Factor Weight] 1=least favorable 1 10=most favorable 1

Anshan Bao- Blue- China Arcelor Steel Steel Scope Steel Corus CSN CST Dofasco Gerdau JFE E.U China China Australia Taiwan UK Brazil Brazil Canada Brazil Japan

18 Product quality...... 4 9 5 9 8 8 8 7 8 9 6 10 19 Skilled and productive workforce ...... 4 8 5 7 8 8 8 7 9 10 8 10 20 Stock market perform- ance (3-year)...... 4 9 9 9 9 9 9 9 9 9 9 9 Average Score...... 6.55 6.85 7.90 7.45 6.70 6.15 7.00 7.25 6.70 7.20 7.25 Ranking 1 ...... 18 14 4 7 15 23 13 9 15 11 9 Weighted-Average Score ...... 6.07 6.75 7.61 7.05 6.22 5.60 6.80 6.98 6.19 6.81 6.66 Ranking 1 ...... 20 12 4 7 18 23 10 8 19 9 13 1 Many of these rankings are subjective and some are duplicative. 2 Plants in many countries, includes lspat International. Source: WSD estimates.

POSITIONING OF 23 WORLD-CLASS STEELMAKERS AS OF JUNE 2005 [Version A—by Factor Weight] 1=least favorable 1 10=most favorable 1

1 Nippon Tata Thyssen/ U.S. Mittal Maanshan Steel Nucor POPSO SDI Severstal Shagang Steel Krupp Steel Wuhan Avg. Steel China Japan USA S.K. USA Russia China India Germany USA China

Annual Steel Shipments (million tons)...... 62 8 30 20 34 4 13 5 5 19 21 10 18 Factor: 1 Cash operating costs ...... 7 7 6 8 8 8 10 6 10 5 6 7 7.4 2 Harnessing techno- logical revolution...... 7 6 7 10 9 9 6 7 7 6 5 6 6.5 3 Profitability in 2000– 2004 ...... 7 7 6 7 10 9 9 8 10 4 4 8 7.6 4 Balance sheet...... 8 6 7 6 10 4 8 4 8 6 6 6 7.0 5 Dominance country/ region ...... 6 10 2 2 6 2 8 10 10 2 2 10 5.5 6 Domestic market growth ...... 7 6 7 10 9 9 6 7 7 6 5 6 6.5 7 Expanding capacity 8 10 3 10 4 10 9 10 10 5 3 9 6.6 8 Access to outside funds ...... 10 6 8 10 10 9 9 5 10 7 7 6 8.0 9 Cost-cutting efforts.. 10 9 9 6 6 6 6 6 8 8 8 8 7.5 10 Downstream busi- nesses ...... 5 7 10 10 7 6 7 2 5 10 3 2 6.0 11 Environment and safety ...... 9 9 9 9 9 9 9 9 9 9 9 9 9.0 12 Iron ore and coking coal mines ...... 7 5 3 ...... 4 ...... 10 3 10 3 7 3 4.9 13 Liabilities for retired workers ...... 7 6 6 10 8 10 8 10 6 6 5 6 7.4 14 Location to procure raw materials...... 8 6 8 6 8 6 7 8 10 5 8 6 7.2 15 Alliances, mergers, acquisitions and JVs 10 7 7 10 8 10 8 8 9 9 10 8 8.2 16 ‘‘Pricing Power’’ with large buyers ...... 8 4 8 4 10 3 9 3 8 7 5 4 6.8 17 Threat from nearby competitors ...... 6 4 7 4 10 4 8 4 7 5 5 4 6.0 18 Product quality...... 7 5 10 7 10 7 6 5 8 9 9 6 7.7 19 Skilled and produc- tive workforce...... 8 5 10 10 10 10 7 7 8 9 9 5 8.2 20 Stock market per- formance (3-year)..... 10 9 9 9 9 9 10 5 9 9 9 9 8.9 Average Score...... 7.75 6.70 7.10 7.79 8.25 7.37 8.00 6.35 8.45 6.50 6.25 6.40 7.16 Ranking 1 ...... 6 15 12 5 2 8 3 21 1 19 22 20 ...... Weighted-Average Score ...... 7.21 6.52 6.54 7.10 7.87 6.75 7.65 6.27 8.11 5.93 5.70 6.29 6.76 Ranking 1 ...... 5 15 14 6 2 11 3 17 1 21 22 16 ...... 1 Many of these rankings are subjective and some are duplicative. 2 Plants in many countries, includes Ispat International. Source: WSD estimates.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17653

Attachment 3—http:// have to hand Thyssen a CDollars 100m Attachment 5—Mittal Sparrows www.dofascotube.com/Default.htm break-up fee. Point Mill May Be On Auction The attachment is available at the Mike Locker, of Locker Associates, a Block, American Metal Market (June 2, following Web site, http:// US steel consultancy, says the 2006) www.dofascomarion.com/Default.htm magnitude of both bids is ‘‘eye- Mittal Sparrows Point Mill May Be on Attachment 4—Massive Bids on Table popping’’, given that Dofasco is a Auction Block as Giants Fight for Dofasco, relatively small player with production By Scott Robertson last year estimated at about 5m tonnes. Financial Times (January 13, 2006) PITTSBURGH—Mittal Steel Co. NV In the first nine months of 2005, Dofasco reportedly is shopping its integrated Massive Bids on Table as Giants Fight turned in net income of CDollars 142.6 for Dofasco steel mill in Sparrows Point, Md., as m on sales of CDollars 2.69bn, with the part of what appears to be a contingency Scarcity and an iron ore mine drive earnings figure well down on the plan if its proposed acquisition of the battle between Arcelor and CDollars 280.1m net income recorded in Arcelor SA, Luxembourg, falls through. ThyssenKrupp for the Canadian the first nine months of 2004, a result Executives from ThyssenKrupp AG, steelmaker, says Peter Marsh. of tougher conditions generally in the which is in line to buy Dofasco Inc. if By Peter Marsh steel industry in the early part of last Mittal acquires Arcelor, toured the 13 January 2006 year. Sparrows Point plant last week and Financial Times (c) 2006 The Financial Times Limited. But in spite of the earnings drop, Mr. have expressed interest in it, according All rights reserved Locker still thinks the high price of the to Mittal sources. The global steel industry has been offers can be justified, given Dofasco’s Mittal reportedly is entertaining a sale through a transformation as spectacular strong position in higher-value segments of the Sparrows Point plant, formerly as any to have affected the business of the steel industry—particularly in flat owned by Bethlehem Steel Corp. and world in the past few years. galvanized sheet used for car bodies. later by International Steel Group Inc., That is confirmed in the bidding About 75m tonnes of this material— in an antitrust maneuver. battle between Arcelor and which has to be made using special Mittal is interested in acquiring ThyssenKrupp, two giants of the processes so it is especially shiny and Arcelor and has reached an agreement European steel industry, for Dofasco, a resistant to corrosion—is made each to sell Dofasco—currently held in a trust created by Arcelor—to ThyssenKrupp if mid-sized Canadian steelmaker that year, with Arcelor being the world it succeeds in getting Arcelor. both companies are valuing at more leader with about 10m tonnes. than USDollars 4bn. Arcelor, however, has reached an Luxembourg-based Arcelor is While Thyssen is well behind with agreement to acquire Russian steel considering whether to make a fresh bid 5m tonnes, both are keen to expand in producer OAO Severstal that could take for the Ontario company higher than this field in North America—where Mittal out of the picture. The possible that tabled by its German rival—and Dofasco is the fourth biggest producer sale of the Sparrows Point plant to other companies could still enter the with output estimated at about 1m ThyssenKrupp might be a contingency fray. Just before Christmas, Lakshmi tonnes a year. Mittal Steel and US Steel plan should Mittal be unable to Mittal, chairman and majority owner of are the two largest producers of complete the promised sale of Dofasco Mittal Steel, the world’s biggest automotive sheet steel in the region— as part of an Arcelor takeover. steelmaker, indicated he had not ruled with global output of 6m tonnes and 5m A spokesman for Mittal Steel USA out making an offer for Dofasco, even tonnes respectively, most of this coming Inc., Chicago, said Thursday that its though such a move is considered from their US plants. Rotterdam-based parent expects to complete the Arcelor purchase and to unlikely. Mr. Mittal has been a prime The third player in North America, initiator of steel industry mergers since move forward with its sale of the with 2m tonnes, is AK Steel—which has 2000 that have increased the size of the Dofasco mill in Hamilton, Ontario, to been in financial difficulties and is main players in the sector and put them ThyssenKrupp. In that case, he said, ‘‘no in a much stronger position to dictate burdened by healthcare and pensions other moves would be necessary.’’ terms to customers. At the same time, liabilities estimated at Dollars 3.5bn. The U.S. Department of Justice steel prices have rocketed due to ‘‘Since neither Mittal nor US Steel is already has granted conditional rapacious demand from China as its available, and AK is probably ruled out, approval to the Mittal merger with economy has expanded to suck in about there is a scarcity value about Dofasco Arcelor. The conditions stipulate that it 30 percent of world steel output. (in automotive steel) which inevitably dispose of certain operations— As a consequence, share prices of increases its price,’’ says Mr. Locker. interpreted to be Dofasco. quoted steel companies in recent years Another attraction of the Canadian Calls to managers at the Sparrows have been among the best performers on company is its ownership of QCM, an Point plant, to Mittal Steel offices in global stock markets, despite a iron ore mine in Quebec. This raw London and to ThyssenKrupp in downturn in recent months. Thyssen’s material has been in short supply in the Dusseldorf, Germany, were not returned most recent January 3 offer of CDollars past two years, with a consequent big by late Thursday. 63 a share values Dofasco at CDollars increase in price. It is not unusual for representatives of 4.9bn (USDollars 4.2bn). It was pitched steel producers to tour each other’s at the same level as a rival bid by Michelle Applebaum, of Michelle plants, so in some respects a Arcelor—which started the effort to Applebaum Research, an Illinois-based ThyssenKrupp tour of Sparrows Point acquire Dofasco through a CDollars 56- consultancy, says ‘‘roughly a third’’ of could be viewed as something done in a-share bid in November. But the the money Arcelor and Thyssen are the normal course of business. The Canadians regard Arcelor as a predator prepared to pay for Dofasco could be appearance of ThyssenKrupp and the Dofasco board is backing the linked to ownership of the mine—which representatives at the plant, however, Germans, at least in part because if it produces about 16m tonnes of ore a sparked widespread industry chatter sells to another suitor, Dofasco would year, most for sale to other steelmakers. that the plant was on the block and

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17654 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

could be part of a Mittal-ThyssenKrupp think if they had their druthers, they’d a look whenever a competitor gives you contingency plan. sell Weirton, but that does not meet that opportunity, you take advantage of When it announced last month it was what ThyssenKrupp needs, either. it.’’ improving its bid for Arcelor, Mittal ‘‘I think it would be more likely that Another market source close to the Steel said it would consider selling they would get rid of Inland,’’ he said, other North American assets if it could referring to the former Ispat Inland plant Sparrows Point plant said the visit not complete the sale of Dofasco to in East Chicago, Ind. that is now part of could be nothing more than a ThyssenKrupp. Mittal’s Indiana Harbor division. ‘‘It smokescreen. ‘‘ThyssenKrupp Several sources said that while the used to be said that Inland and Dofasco announced a few days ago it will contingency plan idea might be true, a were like brother and sister in terms of downsize its steel business,’’ he said. ThyssenKrupp acquisition of Sparrows the things they did, so that would make ‘‘So while an outpost in North American Point would not mesh with its goals for more sense to me. Getting rid of could be good for ThyssenKrupp, since the North American market. Sparrows Point does not make sense they won’t get Canada’s Dofasco (in the ThyssenKrupp, which lost out in a from an antitrust perspective because it case of a Severstal-Arcelor merger), bidding war with Arcelor for Dofasco is not related to automotive like Inland there might be less to this than meets earlier this year, in the past has been and Dofasco are.’’ the eye. rumored to be interested in acquiring Bradford added that ThyssenKrupp’s ‘‘Maybe this was done on behest of AK Steel Corp., Middletown, Ohio, or presence in the global stainless steel Mittal to raise interest among other U.S. Steel Corp., Pittsburgh, in an effort market and its ownership of to gain entry to the North American ThyssenKrupp Budd Co., an automotive (potential) investors,’’ he said. ‘‘I know automotive market. parts manufacturer in Troy, Mich. also ThyssenKrupp and Mittal are pretty ‘‘Sparrows Point doesn’t have those make an acquisition of Sparrows Point tight at the moment.’’ (automotive) grades,’’ longtime steel unlikely. Attachment 6—Excerpts from 2005 industry analyst Charles Bradford said. ‘‘They (Budd) are a parts-maker and Directory of Iron and Steel Plants, ‘‘If (Mittal) were going to get rid of chassis maker,’’ Bradford said. ‘‘Again, Association for Iron and Steel something in North America, I don’t that does not fit with what Sparrows Technology (2005) think it would be Sparrows Point. I Point does. But you always go and take

IRON AND STEEL PLANT FACILITIES [CSN USA—Cont’d]

Capacity, Identification tons/year Bases Furnaces Atmosphere

Batch Annealing

308,000 12 4-high stack ...... 6 100% H2

Product size, thickness × Capacity, tons/ width, in. Identification Nominal width, in. year Configuration Low C Motor Lam.

Temper/Skinpass Mill

Max width: 73 untrimmed, 72 600,000 0.012 min .... 0.025 min .... Single stand 4-h. trimmed. Min. width: 34 ...... 0.100 max ... 0.040 max ... Dynamic Shape Roll. 85 in. max OD. 38 in. min OD. 85,000 max. wt.

Product thickness × width, in. Type Capacity tons/ Differential coat- year Cold roll Hot roll Width ing

Galvanizing

Hot dip ...... 350,000 ...... min. 0.012 ...... min. 0.050 ...... min. 34 ...... Yes. max. 0.080...... max. 0.130...... max. 73......

Unit capacity, Identification tons/year No. of units Product size range Configuration

Slitting

Pro-Eco ...... 1 0.010–0.175 × 72 ...... Driven slit and slitter assist tension 85,000 max wt. unit Kor-flex leveler.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17655

DOFASCO INC. Hamilton, Ont., Canada

Oven dimensions, ft-in. Battery identi- Battery capac- Ovens fication Type ity, tons/year per Width, Byproducts recovered battery Height avg. Length

Cokemaking

1 ...... Gun ...... 148,607 25 13–0 17 39–111⁄8 Tar, ammonium sulfate, light oil, sulfur. 2 ...... Gun ...... 208,050 35 13–0 17 39–111⁄8 3 ...... Gun ...... 267,493 45 13–0 17 39–111⁄8 4 ...... Gun ...... 322,478 53 13–0 17 39–611⁄8 Tar, anhydrous ammonia, light oil, hydrogen. 5 ...... Gun ...... 322,478 53 13–0 17 39–61⁄8 6 ...... Compound/underjet 402,412 35 20–5/32 17 48–11⁄2

IRON AND STEEL PLANT FACILITIES

Capacity Identification Total height, Hearth Working vol. Injectants No. of tons/day tons/year ft-in. dia. ft-in. cu. ft stoves

Blast Furnace

No. 2...... 2650* 758,300 ...... 108–9** 20–9 32,600 Oil, oxygen...... 3 No. 3 ...... 2750* 846,600 ...... 108–101⁄2 ** 21–6 31,900 Oil, oxygen...... 2 No. 4 ...... 4850* 1.4 million ...... 118–93⁄4** 28–0 56,320 Oil, oxygen...... 3 * Instantaneous smelting rate. ** lip ring to foundation pad.

No. of Heat size, Shop Identification Process Capacity, tons/year vessels tons Gas cleaning

Steelmaking—Oxygen

K–OBM ...... 2.75 million ...... 1 330 Scrubber and screen.

No. of Transformer Process Capacity, tons/year vessels Heat size, tons Gas cleaning rating, MVA

Steelmaking—Electric Arc Furnace

Twin-shell, AC ...... 1.35 million ...... 1 180 Baghouse ...... 120

No. of Type Total capacity, tons/year units Heat size, tons Injectants

Vacuum Degassing

Tank ...... 1.5 million ...... 1 290 Aluminum for deoxidation after vacuum.

Transformer Total capacity, tons/year No. of units Heat size, tons Injectants rating, kVA

Ladle Metallurgy

2.37 million (aim) ...... 1 reheat furnace, 2 high-flow stirring stations, 2 330 (avg.) Nil 40,000 deslag stations. 1.35 million ...... 1 reheat furnace to handle two ladle cars (twin- 180 1 20,000 shell).

Ladle capacity, Capacity, tons/year Strands tons Product size range, in. Shroud

Continuous Casting

2.75 million (aim) ...... 2 300 8.5 × 30.5–63 × 177–374 Argon 1.35 million ...... 1 180 8.5 × 30.5–63 × 177–374 Argon.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17656 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

No. of Capacity, tons/ Mill served Type furnaces hr/furnace Hearth dimensions

Reheating Furnaces

No. 2 hot strip mill ...... Walking beam ...... 2 400 47.4 × 12.0 m

IRON AND STEEL PLANT FACILITIES [DOFASCO INC.—Cont’d]

Finished size, thickness No. and configuration Nominal width, in. Capacity, tons/year × width, in. Roughing stands Finishing stands

Hot Strip Mill

68 ...... 3.2 million ...... 0.060–0.500 × 30–62 2-hi reversing with attached 7-stand, 4-hi, 30 and 60 × 68. edgers. Horizontal 541⁄2 × 72, vertical 42 × 431⁄2.

Capacity, tons/ Strip thickness × width, Identification year in. Acid used

Pickling

No. 2 ...... 660,000 0.075–0.110 × 24–56 HCl. No. 3 ...... 1,100,000 0.075–0.200 × 24–66 HCl. No. 4 ...... 750,000 0.055–0.275 × 24–62 HCl. CPCM ...... 1,000,000 0.075–0.215 × 24–62.5 HCl.

Nominal width, Capacity, tons/ Finished size, thickness Identification in. year × width, in. Configuration

Cold Reduction Mill

66 in ...... 66 260,000 0.0195–0.1650 × 24–61 4-hi, single-stand reversing. No. 1 tandem ...... 56 450,000 0.0072–0.0456 × 24–49 4-hi, 5-stand tandem. No. 2 tandem ...... 72 1,400,000 0.011–0.0125 × 24–61.5 4-hi, 5-stand tandem. CPCM ...... 68 1,000,000 0.008–0.100 × 23.5–62 4-hi, 5-stand continuous.

Capacity, tons/ Strip thickness × width, Identification year in. Fuel type

Continuous Annealing

No. 2 tower anneal ...... 280,000 0.0077–0.036 × 40 max. Electric. No. 1 ...... 80,000 0.007–0.025 × 18–48 No. 2 ...... 110,000 0.007–0.040 × 18–48

Capacity, tons/ Identification year Bases

Batch Annealing

Sheet mill batch ...... 575,000 10 × 60-in. radiant tube, HNX, single stack. 112 × 72-in. radiant tube, HNX, single stack. 48 × 72-in. direct-fire, HNX, single stack. 4 × 86-in. direct-fire, 100% H2, single stack. Open coil anneal ...... 52,200 3 × 108-in. radiant tube, HNX, single stack. 11 × 114-in. radiant tube, HNX, single stack. 2 × 114-in. direct-fire, HNX, single stack. 16 × 114-in. radiant tube, HNX, single stack.

Nominal Capacity, Product size, thickness × Identification width, in. tons/year width, in. Configuration

Temper/Skinpass Mill

42 in...... 42 317,200 0.0061–0.0350 × 20–39.5 4-hi, 2-stand. 56 in...... 56 341,000 0.0051–0.0480 × 20–52 4-hi, 2-stand. No. 1 ...... 66 372,800 0.018–0.135 × 20–61 4-hi, single-stand. No. 2 ...... 66 475,900 0.018–0.135 × 20–61 4-hi, single-stand. No. 5–56 ...... 56 300,000 0.012–0.040 × 24–50 4-hi, single-stand.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17657

Capacity, Product thickness × Type tons/year width, in. Differential coating

Galvanizing

No. 1 hot dip ...... 170,000 ...... 0.012–0.080 × 24–48 Galvalume/galvanize. No. 2 hot dip ...... 320,000 ...... 0.024–0.0168 × 24–60 Galvanneal/galvanize. No. 3 hot dip ...... 254,000 ...... 0.010–0.080 × 24–52 Galvanneal/galvanize. No. 4 hot dip ...... 305,000 ...... 0.012–0.080 × 24–60 Galvanize. DJG hot dip ...... 400,000 (Dofasco 50% ownership) ... 0.0157–0.0787 × 24–72 Galvanneal/galvanize. DSG hot dip ...... 450,000 (Dofasco 80% ownership) ... 0.0196–0.0787 × 36–72 Galvanneal/galvanize. Sorevco hot dip ...... 125,000 (Dofasco 50% ownership) ... 0.012–0.0787 × 24–50 Wipe coat/galvanize.

Capacity, tons/ × Type year Product thickness width, in.

Tinplate

No. 2 E line ...... 144,600 0.0055–0.0230 × 18–40 No. 3 E line, tin/chrome ...... 273,200 0.0055–0.0230 × 58–43

Unit capacity, No. of Identification tons/year units Product size range Configuration

Slitting

48 in...... 64,000 1 19–48. 60 in...... 350,000 1 0.059–0.100 × 9–64 entry to 2 min. out. 62 in...... 300,000 1 0.100–0.375 × 17–64 entry to 21⁄4 min. out.

Capacity, tons/ No. of Unit year units Product size range

Miscellaneous

Prep Line ...... 320,000 1 0.005–0.023 No. 1 Cleaning Line ...... 220,000 1 0.006–0.026 No. 2 Cleaning Line ...... 360,000 1 0.077–0.140 × 18–68 Rewind Line ...... 200,000 1 0.010–0.100 × 25–62 No. 3 Shear Line ...... 50.000 1 0.0081–0.048 × 12.5–40 No. 5 Shear Line ...... 150,000 1 0.014–0.135 × 12.5–67

IRON AND STEEL PLANT FACILITIES [International Steel Group—Cont’d.]

Type Capacity, tons/year No. of units Heat size, tons Injectants

Vacuum Degassing

RH 5-stage steam ejection unit ...... 1 million ...... 2 340 Argon, aluminum

No. of Type Capacity, tons/year units Heat size, tons Injectants

Ladle Metallurgy

Ladle stirring and Trim Sta- 3,000,000 1 340 Argon, carbon, aluminum, manganese and scrap. tion. CAS–OB ...... 3,000,000 1 340 Argon, oxygen, nitrogen, carbon aluminum, manganese, titanium.

Ladle capacity, Capacity, tons/year Strands tons Product size range, in. Shroud

Continuous Casting

3,000,000 ...... 4 340 32–48 × 9 × 400 max. Argon gas submerged ladle shroud; Fused sili- ca and alumina graphite.

No. of Capacity, tons/ Mill served Type furnaces hr/furnace Hearth dimensions, ft

Reheating Furnaces

54-in. hot mill ...... Walking beam ...... 2 350 35 × 155

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17658 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Finished size, thickness Number and configuration Nominal width, in. Capacity, tons/year × width, in. Roughing stands Finishing stands

Hot Strip Mill

54 ...... 3.8 million ...... 0.056–0.50 × 23–49 1 4-hi reversing, 1 4-hi con- 7-stand, 4-hi. tinuous. Nominal width, Capacity, Finished size, thickness × Identification in. tons/year width, in. Configuration

Cold Reduction Mill

No. 7 tandem ...... 52 725,000 0.0065–0.0359 × 221⁄2–48 5-stand, 4-hi No. 8 tandem ...... 52 699,000 0.0193–0.138 × 221⁄2–48 4-stand, 4-hi No. 9 continuous tandem ...... 52 991,000 0.0065–0.060 × 241⁄2–48 5-stand, 4-hi

Attachment 7—The Strange Case of have to meet a new public-health The Future Metallics Supply Weirton Steel, MakingSteel.com (April standard, which has not yet been The growth in blast-furnace 25, 2006) promulgated. productivity and in the output of scrap- The attachment is available at the As the two deadlines force more coke based EAFs has helped U.S. steelmakers following Web site, http:// plants to close, the current deficit in to have a viable metallics supply in www.makingsteel.com/weirton.html domestic coke supply is likely to widen recent years. But several trends do not appreciably. This could constrain blast- bode well for the future supply of Fewer Blast Furnaces, But Higher furnace output and offset the recent Productivity metallics feedstocks for American mills: improvements in productivity, which (1) Secular trends in U.S. steel The number of U.S. blast furnaces has have allowed for fewer furnaces to demand and production have shifted dropped from 83 to 43 in the past sustain and even increase the supply of from decline to renewed growth. decade, but PCI and natural gas have steelmaking iron. Increasing quantities of both iron and helped raise output from the survivors The U.S. blast-furnace population has scrap will be needed to support by 25 percent declined as the U.S. steel industry has steelmaking over the long term. By William T. Hogan, S.J., and Frank T. undergone one of the most drastic (2) Recent levels of U.S. coke and iron Koelble restructurings in the history of demand already have been taxing the Father William Hogan and Frank industrial enterprise. At one point, limits of coke-oven and blast-furnace Koelble of Fordham University’s nearly one-third of the industry’s raw- capacity. Industrial Economics Research Institute steel capacity was downsized out of (3) U.S. coke ovens are of advancing recently conducted an extensive study existence. age. Although steelmakers have invested of the current capacity, condition, and The blast-furnace-based integrated considerably in extending their useful outlook of coke ovens and blast furnaces steelmakers were hit the hardest. Since lives, the stricter environmental in the U.S. In this two-part study, New 1975, the number of integrated mills regulations will make the coke ovens’ Steel looks this month at blast furnaces with blast furnaces has fallen from 48 to future operation increasingly difficult and next month at coke ovens and at 21. The number of blast furnaces in the and higher in cost. (4) U.S. steelmakers are depending how steelmakers are boosting U.S. has plummeted from 197 to 43. The more on imports of coke and productivities and responding to new most recent shutdown was a year ago, semifinished steel. This ultimately environmental regulations. when Bethlehem Steel shut down its A quiet recasting of how the U.S. iron raises the costs of finished-steel output blast furnace, basic oxygen furnaces and steel industry makes its iron has and undermines the U.S. iron and steel (BOFs), and electric furnace in been yielding major gains in industry’s long-term competitiveness. In Bethlehem, Pa., in Nov. 1995 (Steel productivity and major benefits to the the past, U.S. mills have imported coke Forum, Jan. 1995). environment. Driving this progress has and slabs mainly to alleviate temporary been not some new, ‘‘direct’’ technology Electric furnaces accounted for 40 shortfalls in domestic coke, iron, and but the tried-and-true blast furnace, the percent of U.S. steel production last steel production. dominant ironmaker for more than a year, up from 28 percent in 1980 and 34 (5) Despite advances in scrap-based century. Today’s surviving blast percent in 1985. The growth of scrap- steelmaking and in the substitution of furnaces still support some 60 percent using EAFs has meant that ferrous scrap scrap for iron, electric-furnace melting of all U.S. steelmaking activity by now accounts for more of U.S. alone is incapable of meeting U.S. steel producing much more iron and steelmakers’ metallics supply than blast- demand. Minimills are limited by the consuming much less coke than they furnace iron. availability and cost of high-quality, did even a few years ago. And yet, BOFs accounted for 60 percent of low-residual scrap and purchased because of impending environmental steel production last year—virtually the electricity as well as by restrictions on standards on cokemaking, the future of same as in 1980. BOFs use on average the types and qualities of steel it can the blast furnaces is anything but 77-percent blast-furnace iron and 23- produce without access to virgin iron assured. percent scrap. Much of the growth of the units at an economical cost. On Jan. 1, 1998, 90 percent of all U.S. electric furnaces occurred at the For these reasons steelmakers are cokemaking capacity will have to meet expense of the open hearth, the now investigating new, direct methods of much stricter standards under the Clean extinct process once used by integrated producing iron, both in solid form as a Air Act. Five years later, on Jan. 1, 2003, plants and phased out completely in high-quality complement to scrap and an initial group of coke batteries will 1991. in molten form as an alternative to iron

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17659

from the blast furnace. However, at least One big reason for the higher Operators at the No. 3 furnace in for the next ten years, U.S. mills will productivity is that blast-furnace Middletown have boosted capacity by implement such ironmaking alternatives operators are injecting more 54 percent to a current level of 6,000 on a relatively small scale in supplemental fuels, primarily natural tons/day partly by injecting natural gas comparison to U.S. blast-furnace gas and pulverized coal. This not only at a rate of 215 pounds/ton and using an capacity. has reduced coke consumption but also enhanced burden that contains some has increased iron output by making 350 pounds/ton of hot-briquetted iron Saving 350 Pounds of Coke per Ton of additional space available in the furnace (HBI). The coke input rates have Iron to hold iron ore and other iron-bearing declined from 0.425 ton per ton of iron U.S. steelmakers currently are materials instead of the coke displaced. output at both blast furnaces a few years operating 40 blast furnaces with a Steelmakers also are boosting iron ago to 0.388 at Amanda in Ashland and combined annual ironmaking capacity output by: 0.353 at No. 3 in Middletown. of 61.2 million tons. In addition, three • Charging scrap metal, direct- A recent reline and upgrading of furnaces are designated as ‘‘standby’’ reduced iron (DRI), and self-fluxing National’s B furnace at Granite City, Ill., but are unlikely to operate again; these iron-ore pellets into the blast furnaces; boosted its ironmaking capacity by 50 • have a combined capacity rating of 2.7 Optimizing such hot-blast percent from 2,800 to 4,200 tons/day. million tons. This brings the total blast- conditions as temperature and Improvements included a new furnace furnace population to 43 units. (All tons contained oxygen; and top, a newly designed hearth, increased • in this article are net.) Using new repair and maintenance cooling and advanced process controls U.S. steelmakers have eliminated 27 techniques, including refractory at the furnace, and a revamp of the blast furnaces since mid-1990. In June gunning and grouting, to reduce stoves to raise the wind rate and hot- 1990, there were 70 U.S. blast furnaces maintenance downtime and blast temperature. with a combined capacity of 75.3 significantly extend furnace campaigns U.S. Steel’s four remaining blast million tons. between major relines, obviating the furnaces at Gary, Ind., have raised their Most of the blast furnaces shut down need for standby capacity. ironmaking throughput by an average of The combined result of these in recent years were idled before 30 percent while their combined input advances has been not only to sharply shutdown. The number of idle furnaces coke rate has fallen to 0.340 ton per ton reduce the coke rate since 1991 but also of iron output. The productivity gains has fallen from 35 in 1986 to three now. to boost the aggregate capacity of today’s largely are due to the use of PCI in all The active furnace population declined 40 still-active furnaces by some 10 four furnaces at injection rates that, from 48 in 1986 to 40 in 1996; the total million annual tons. averaged, currently lead the industry. blast-furnace population declined from 83 to 43 during this period (see Table Leading Blast Furnaces PCI vs. Natural Gas 2). Acme, AK, National, and U.S. Steel Although they have used Despite the shutdown of 27 furnaces are among the leaders in boosting blast- supplemental fuel injection for decades, since June 1990, the ironmaking furnace productivities. Acme’s A blast U.S. ironmakers in recent years have capacity of U.S. blast furnaces dropped furnace at South Chicago has raised its aggressively increased their injection during that period by just 11.4 million ironmaking capacity by one-third to a rates of natural gas and, more recently, tons—half the capacity represented by current level of 3,200 tons/day. Acme pulverized coal. All 40 active blast the 27 abandoned furnaces. The did this by injecting natural gas at a rate furnaces today inject either one or a difference was made up by major of 250 pounds/ton of iron, by using self- combination of fuels, including natural productivity gains at the blast furnaces fluxing pellets, and by raising the hot- gas, pulverized coal, oil, tar, and coke- that continue to operate. blast temperature some 100 degrees F to oven gas. Twenty-five furnaces inject While closing the least efficient 1,910 degrees F. Acme uses the stoves natural gas at rates of up to 250 pounds furnaces, steelmakers now are and hot-blast system of the B furnace to per ton of iron produced; 12 furnaces concentrating ironmaking output at the enhance the hot blast on A; this is a use PCI at rates of up to 375 pounds/ton. fewer, more productive blast furnaces. primary reason Acme maintains B as The volume of natural gas consumed The overall productivity of today’s standby capacity. by U.S. blast furnaces has increased active furnaces is more than one-fourth Acme operators eventually plan to nearly 90 percent since 1990, from 56.7 higher than it was a decade ago. Daily raise throughput on the A furnace to million to 106.5 million cubic feet output over the past decade has risen, more than 4,000 tons/day by injecting annually. The acceptance of natural gas on average, from 5.5 to nearly 7.0 tons additional natural gas and adding scrap stems from its ready availability, its per 100 cubic feet of working volume. to the furnace charge. The increased relatively low price in recent years, and From 1975 to 1995, ironmaking coke iron output realized to date has been its adaptability to injection without needs were cut by more than one-fourth, accompanied by a decline in the coke major capital or startup costs. Assuming saving some 350 pounds of coke per ton rate from just above 0.500 to a low of a starting coke input rate of 0.500 ton of iron. The quantity of coke required to 0.365 ton of coke input ton of iron per ton of iron output (or 1,000 pounds/ smelt one ton of iron fell during this output. ton), natural-gas injection has been period from 1,222 pounds (0.611 ton) to AK Steel’s two remaining blast proven by some mills to be capable of 874 pounds (0.437 ton) (Table 3). furnaces, Amanda at Ashland, Ky., and displacing about 25 percent of coke Although the active blast-furnace No. 3 at Middletown, Ohio, also have requirements—and maybe more, population declined from 135 to 40 made major productivity gains in the depending on the outcome of current from 1975 to 1995, average yearly past few years. Employees at Amanda tests sponsored by the Gas Research output per furnace increased from have increased the blast-furnace Institute. 590,000 to 1.4 million tons. capacity by 49 percent by using Although 250 pounds/ton is the Much of the boost in productivity pulverized-coal injection (PCI) at a rate highest natural-gas injection rate took place recently. It took some 150 of 200 pounds/ton of iron and by adding currently employed, the average rate is pounds less coke to make a ton of iron BOF slag and scrap to the iron-ore a much lower 125 pounds/ton. At most in 1995 than it did in 1991. pellets charged. blast furnaces, injection is limited to

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17660 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

between 100 and 200 pounds, because obtaining injectable coal from a coke than some of its counterparts built higher volumes unfavorably lower flame company-owned mine some five miles 60–70 years later. temperatures and furnace productivity. away; the coal is transported in Roughly 75 percent of the active Higher gas-injection rates require specially designed hopper cars to ensure furnace population is under 30 years of increased oxygen enrichment and it remains dry. USS/Kobe’s PCI unit age, and 25 percent over (see Table 1). higher hot-blast temperatures; this is not uses coal pulverizers provided by Ohio Startup dates of current U.S. blast attainable at some blast furnaces Edison. furnaces range from the first decade of because of limitations in oxygen PCI was developed in the early 1960s the century to 1980. processing and the capabilities of their by AK Steel’s forerunner, Armco. The hot-blast systems. In such cases, company first used the new technology Clearly, blast furnaces that have been injecting more natural gas would require commercially at the Ashland plant’s rebuilt and retrofitted to take advantage significant investments to upgrade now abandoned Bellefonte blast furnace of technological improvements over the stoves and other hot-blast components in 1963—the same year Armco years have proven capable of operating and to make more oxygen available. completed construction of the Amanda indefinitely, and doing so very Compared to natural gas, PCI has a furnace there. Ten years later, Armco effectively. As the furnace population much less significant impact on process installed PCI at Amanda and used it has been rationalized and the least temperatures and affords a greater intermittently at varying injection rates efficient units removed from service, age opportunity for lowering the coke rate. until establishing in recent years an has become a less relevant indicator of Steel mills have proven that PCI can average rate of 200 pounds/ton. useful furnace life. Rather, the most replace 40 percent of a 1,000-pound Twelve blast funaces in the U.S. now significant influence on future decisions coke requirement and can use lower- are equipped for PCI (Table 4). Their to maintain or discontinue blast-furnace cost, lower-grade coals in place of the injection rates range from 120 to 375 ironmaking will derive from high-grade metallurgical coal needed for pounds/ton and average 254 pounds; environmental regulations that result in cokemaking. blast furnaces can inject as much as 400 additional cuts in U.S. cokemaking The disadvantage of PCI is that, pounds/ton, industry managers say. capacity. unlike natural-gas injection, it requires Raising PCI rates will help blast Father William Hogan of the Society an initial investment of $40–50 million, furnaces face future constraints on of Jesus has been a leading authority on approximately two-thirds of which can cokemaking capacity. the steel industry for the past 45 years. be required for coal preparation. Some Next year Gulf States and National His numerous books include blast-furnace operators already injecting Steel at Ecorse plan to install PCI. LTV Productivity in the Blast Furnace, The 150 pounds or more of natural gas is considering using PCI at its Cleveland Development of Heavy Industry in the consider this too high a price to pay for and Indiana Harbor, Ind., plants, Twentieth Century, Economic History of increasing injection rates an additional although it has not yet made a final the Iron and Steel Industry in the 200 pounds or so by switching to PCI. decision. United States (a five-volume work), and, However, most operators recognize that Startups From 1909 to 1980 most recently, Steel in the 21st Century: a commitment to natural gas leaves Competition Forges a New World Order them vulnerable to a repeat of past run- In the past few years, steelmakers (1994). The International Iron and Steel ups in gas prices. have made some of their largest A number of steel companies with PCI productivity gains at some of the oldest Institute has named only two honorary projects have benefited from creative blast furnaces. U.S. Steel’s Gary No. 8 members since its founding in 1967: Fr. arrangements to reduce or avoid the furnace was built in 1909; rebuilt in Hogan and Herbert Gienow. financial costs of coal preparation. PCI 1943; disabled in April 1995 by an Frank Koelble has worked as a steel at Inland, for example, is supported by explosion near the top of its stack; and economist and consultant for the past 30 a coal-preparation facility jointly funded returned to service in Aug. 1995 after years. His books include Purchased by Inland and Northern Indiana Public repairs and an unscheduled reline. No. Ferrous Scrap, An Analysis of the U.S. Service Company. National will obtain 8 now produces 40 percent more iron Metallurgical Coke Industry, and Direct pulverized coal for its Ecorse, Mich., than it did a few years ago. Equipped to Reduction as an Ironmaking Alternative blast furnaces from Detroit Edison use PCI at a rate of some 235 pounds/ in the United States. Hogan is director Company. ton, the No. 8 blast furnace has seen its and Koelble associate director of the Likewise, U.S. Steel reduced its PCI coke rate decline to the 0.390 level, Industrial Economics Research Institute investment at Fairfield, Ala., by which makes it more efficient at using of Fordham University (Bronx, N.Y.).

THE 43 BLAST FURNACES IN THE U.S. TODAY (TABLE 1)

Co. & capacity coke capacity Plant Furnace Dia. 2 Rate 3 Year 4 (net tpd) 5 (mil. net tpy) 1

Acme (1.17) ...... S. Chicago, Ill ...... A ...... 25′0″ 0.365 1964R 3,200 ...... B ...... 19′8″ ...... 1970R (1,200)(S) AK Steel (4.12) ...... Ashland, Ky ...... Amanda ...... 33′5″ 0.388 1963B 5,300 Middletown, Ohio ...... 3 ...... 29′4″ 0.353 1984R 6,000 Bethlehem (8.53) ...... Burns Harbor, Ind ...... C ...... 38′3″ 0.359 1972B 7,030 ...... D ...... 35′9″ 0.397 1969B 6,590 Sparrows Pt., Md ...... L ...... 44′3″ 0.430 1977B 9,750 Geneva (2.45) ...... Geneva, Utah ...... 1 ...... 26′6″ 0.448 1963R 2,275 ...... 2 ...... 26′6″ 0.450 1963R 2,250 ...... 3 ...... 26′6″ 0.455 1963R 2,180 Gulf States (1.08) ...... Gadsden, Ala ...... 2 ...... 26′0″ 0.490 1966R 2,965 Inland (5.24) ...... E. Chicago, Ind ...... 5 ...... 26′6″ 0.393 1974R 2,500 ...... 6 ...... 26′6″ 0.448 1976R 2,450 ...... 7 ...... 45′0″ 0.330 1980B 9,400

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17661

THE 43 BLAST FURNACES IN THE U.S. TODAY (TABLE 1)—Continued

Co. & capacity coke capacity Plant Furnace Dia. 2 Rate 3 Year 4 (net tpd) 5 (mil. net tpy) 1

LTV (7.68) ...... Cleveland, Ohio ...... C1 ...... 27′6″ 0.413 1972R 3,440 ...... C5 ...... 29′6″ 0.407 1990R 4,150 ...... C6 ...... 29′6″ 0.412 1989R 4,350 Ind. Harbor, Ind ...... H3 ...... 29′6″ 0.400 1988R 3,950 ...... H4 ...... 32′9″ 0.421 1987R 5,150 McLouth 6 (1.24) ...... Trenton, Mich ...... 1 ...... 28′6″ ...... 1956B (3,000)(S) ...... 2 ...... 28′6″ 0.475 1958B 3,400 National (6.46) ...... Ecorse, Mich ...... A ...... 30′6″ 0.470 1954B 3,450 ...... B ...... 29′0″ 0.463 1951B 3,350 ...... D ...... 28′10″ 0.440 1952B 2,800 Granite City, Ill ...... A ...... 27′3″ 0.378 1956B 3,900 ...... B ...... 27′3″ 0.380 1961B 4,200 Rouge (2.62) ...... Dearborn, Mich ...... B ...... 20′0″ 0.375 1958R 2,275 ...... C ...... 29′0″ 0.385 1959R 4,900 U.S. Steel (12.00) ...... Fairfield, Ala ...... 8 ...... 32′0″ 0.420 1978B 6,000 Gary, Ind ...... 4 ...... 28′10″ 0.368 1950R 3,700 ...... 6 ...... 28′0″ 0.388 1947R 3,750 ...... 8 ...... 28′0″ 0.390 1943R 3,800 ...... 13 ...... 36′6″ 0.290 1974B 9,425 Mon Valley, Pa ...... 1 ...... 28′10″ 0.448 1943R 3,230 ...... 3 ...... 25′3″ 0.443 1930R 2,975 USS/Kobe (2.30) ...... Lorain, Ohio ...... 3 ...... 28′6″ 0.355 1959R 3,600 ...... 4 ...... 29′0″ 0.453 1962R 2,700 WCI (1.50) ...... Warren, Ohio ...... 1 ...... 28′0″ 0.470 1980R 4,100 Weirton (2.54) ...... Weirton, WV ...... 1 ...... 27′0″ 0.403 1984R 3,770 ...... 3 ...... 26′3″ 0.418 1983R 3,200 ...... 4 ...... 27′0″ ...... 1977R (3,100)(S) Wheel-Pitt (2.30) ...... Steubenville, Ohio ...... 1N ...... 25′0″ 0.405 1991R 2,900 ...... 5S ...... 23′10″ 0.430 1995R 3,400 1 Capacity of active blast furnaces, representing potential maximum productive capability. 2 Hearth diameter of furnace. 3 Coke rate at full ironmaking capacity is expressed as the net tons of coke input per net ton of iron output. 4 Years are designated B for the year built and R for the year in which a major rebuild was last completed. Relinings are not considered re- builds. 5 ( ) indicates idle capacity; (S) indicates standby furnaces. 6 Plant temporarily idled in March 1996; company has been sold to Hamlin Holdings Inc., with operations scheduled to restart in early 1997.

REDUCING THE NUMBER OF U.S. BLAST FURNACES (TABLE 2)

Date 1 Active Idle Total

2/86 ...... 48 35 83 5/87 ...... 45 32 77 9/88 ...... 47 25 72 10/89 ...... 45 25 70 6/90 ...... 46 24 70 8/91 ...... 38 19 57 8/92 ...... 40 11 51 8/93 ...... 40 10 50 8/94 ...... 40 9 49 9/95 ...... 41 4 45 7/96 ...... 40 3 43 1 Dates of surveys conducted by Industrial Economics Research Institute, Fordham University.

LOWERING THE COKE RATE (TABLE 3) [Million of net tons]

U.S. blast- Coke Year furnace Coke rate 1 production consumed

1975 ...... 79.9 48.8 0.611 1976 ...... 86.9 51.6 0.594 1977 ...... 81.3 48.5 0.597 1978 ...... 87.7 51.3 0.585 1979 ...... 87.0 50.0 0.574 1980 ...... 68.7 39.1 0.569 1981 ...... 73.6 40.5 0.55 1982 ...... 43.3 23.3 0.538 1983 ...... 48.7 26.3 0.540

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17662 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

LOWERING THE COKE RATE (TABLE 3)—Continued [Million of net tons]

U.S. blast- Coke Year furnace Coke rate 1 production consumed

1984 ...... 51.9 27.4 0.528 1985 ...... 50.4 26.6 0.508 1986 ...... 44.0 22.3 0.507 1987 ...... 48.4 25.5 0.527 1988 ...... 55.7 29.4 0.528 1989 ...... 55.9 29.2 0.522 1990 ...... 54.8 27.5 0.502 1991 ...... 48.6 24.8 0.510 1992 ...... 52.2 25.0 0.479 1993 ...... 53.1 23.7 0.446 1994 ...... 54.4 24.2 0.445 1995 ...... 56.1 24.5 0.437 1 Data are from American Iron and Steel Institute; coke rate indicates the tons of coke consumed per ton of blast-furnace iron produced.

PULVERIZED-COAL INJECTION (TABLE 4)

Company Plant Furnace Year Rate started up (lbs./ton) 1

AK Steel ...... Ashland ...... Amanda ...... 1973 200 Bethlehem ...... Burns Harbor 2 ...... C ...... 1994 180 ...... D ...... 1994 260 Gulf States Inland ...... Gadsden ...... 2 ...... 1997 E. Chicago ...... 5 ...... 1993 245 ...... 6 ...... 1993 120 ...... 7 ...... 1993 320 National ...... Ecorse ...... A ...... 1997 350P ...... B ...... 1997 250P ...... D ...... 1997 250P U.S. Steel ...... Fairfield 2 ...... 8 ...... 1995 270 Gary ...... 4 ...... 1993 295 ...... 6 ...... 1993 235 ...... 8 ...... 1993 235 ...... 13 ...... 1993 375 USS/Kobe ...... Lorain ...... 3 ...... 1994 315 1 Injection rate; P is projected; all others are average rates during 1995. 2 Plant based on granular-coal injection.

Attachment 9—See How a Blast Attachment 12—Mittal Steel USA Attachment 15—High Production Costs Furnace Works, AISI Works to Restore Furnace at Sparrows Hamper AK Steel’s Middletown Works, The attachment is available at the Point, PRNewswire (July 14, 2006) Steel Business Briefing (Aug. 10, 2006) following Web site, http:// The attachment is available at the High Production Costs Hamper AK www.steel.org/AM/Template. following Web site, http:// Steel’s Middletown Works cfm?Section=Home&template=/CM/ www.mittalsteel.com/NR/rdonlyres/ Thursday, 10 August 2006 HTMLDisplay.cfm&ContentID=12305 20253936-859A-42A8-8DEC- AK Steel, trying to lower its labour Attachment 10—Ironmaking Process DBC284FDFB6A/1161/ LFurnacerecoveryNR071406.pdf. costs, is pointing to a year-old analyst’s Alternative Screening Study—Volume report that says slab-making costs at its I, Summary Report, Lockwood Greene Attachment 13—Ispat Inland flagship Middletown, Ohio works are study for the Department of Energy Accelerates Maintenance Outages, Ispat nearly the highest on the globe, Steel (Oct. 2000) Inland Press Release (March 7, 2005) Business Briefing has learned. The attachment is available at the In a communique´ sent out earlier this following Web site, http://www.ornl. The attachment is available at the week, AK says a report authored by gov/~webworks/cppr/y2001/rpt/ following Web site, http:// World Steel Dynamics’ Peter Marcus, 122325.pdf metalsplace.com/metalsnews/?a=942 rates Middletown 147th out of 151 slab Attachment 14—Weirton Workers mills in terms of cost per ton of slab. Attachment 11—ISG to Repair, Restart The steelmaker is attempting to Second Blast Furnace at Weirton Unit, Buyout from Online NewsHour, September 23, 1983 illustrate that its labour costs have to American Metal Market (July 12, 2004) come down in order for the plant to be The attachment is available at the The attachment is available at the competitive, not only in North America following Web site, http://www. following Web site, http://www.pbs.org/ but throughout the globe. findarticles.com/p/articles/mi_m3MKT/ newshour/bb/business/july-dec83/ An AK spokesman tells SBB, is_28-1_112/ai_n6106694. steel_9-23-83.html. however, ‘‘We’re not saying all of that

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17663

is employment’’ costs. He declined to 13,000 people and now has just 1,300 Weirton also must buy iron ore and discuss what the works’ per-ton slab union workers. have it shipped by rail. Mittal’s production costs are. Mittal Steel, the world’s largest Cleveland mill can get it shipped in Steel industry analyst Charles steelmaker, idled the blast furnace at its cheaper on Lake Erie. Bradford says AK likely has a cost Weirton division this summer, laying off Weirton is also struggling with high disadvantage on iron ore alone of about some 750 workers for what the gas prices in a mill that Gossett said $30/short ton. He says the steelmaker Independent Steelworkers Union hoped doesn’t use fuel as efficiently as it also probably has a cost penalty on coal, would be a temporary wait for business could. too. ‘‘Even if they could get competitive to pick up. But late Tuesday, Mittal told Bradford predicts Weirton’s blast raw materials, they would have a freight the union that the furnace will remain furnace will only be restarted if and penalty,’’ he adds. But Bradford notes cold, and as many as 800 jobs will be when every other Mittal furnace is at that care has to be taken in such an permanently lost. capacity. analysis because there is a cost ‘‘This was a very difficult decision, But ISU President Mark Glyptis said difference to produce commodity hot- since the Independent Steelworkers he believes Mittal is committed to rolled coil versus an interstitial-free HR Union and all employees have worked maintaining an operation in Weirton, coil. so hard to beat the odds trying to and that the mill is a key part of its In addition to AK, other North maintain steelmaking at Weirton,’’ said strategy to sell tin. American steelmakers at the bottom of Louis Schorsch, chief executive of Schorsch acknowledged in a the Marcus list include Mittal Steel Mittal Steel USA. ‘‘However, the statement that Mittal wants to USA’s Weirton, West Virginia works, structural disadvantages of Weirton for reconfigure the Weirton plant around which has since shut its hot end, as the these processes entail costs that are too tinplate. world’s most costly slab producer. high to support competitive Severstal North America’s River Rouge Attachment 20—The shipping news & downstream facilities.’’ forecast: District ports face many works was found to be the next highest Analyst Michael Locker, president of cost producer in the June 2005 report. competitive challenges, but whether Locker Associates in New York, said the they sink or swim over the long term Attachment 16—Dofasco Seals $251m small blast furnace and the steelmaking will likely depend on infrastructure Purchase of Canadian Iron Ore Miner Mittal has elsewhere combined to seal improvements, Minneapolis Federal QCM, American Metal Market (July 26, Weirton’s fate. Reserve fedgazette (January 2003) 2005) He said, ‘‘The negative of the consolidation process is that you have a The attachment is available at the The attachment is available at the comparison going on of plants * * * following Web site, http://www. following Web site, http:// within the Mittal family. If they come minneapolisfed.org/pubs/fedgaz/03-01/ www.findarticles.com/p/articles/ out on the short end of the stick, they shipping.cfm. mi_m3MKT/is_29-2_113/ai_n14842699. can’t justify standing alone—even with Attachment 21—Weirton Files for Ch. Attachment 17—Force Majeure all the hopes of cost reduction and 11; 1,000 Ohio Jobs Affected, Clobbers Coke-Short Steelmakers: efforts by the union, which were Associated Press (May 20, 2003) Weirton Eyes Option, Blast Furnace mighty. Closure, American Metal Market (Jan. ‘‘You have good finishing facilities at Tuesday, May 20, 2003 9, 2004) Weirton that are going to survive, but Weirton Steel Files for Ch. 11 the source of the steel is going to be The attachment is available at the elsewhere.’’ 1,100 Ohio Jobs Affected following Web site, http:// Analyst Charles Bradford of Bradford www.findarticles.com/p/articles/ By Vicki Smith Research-Soleil Securities in New York, mi_m3MKT/is_1-5_112/ai_112104367. sees Mittal’s flexibility as a benefit of The Associated Press Attachment 18—Heat Back on Steel the industry’s global consolidation. WEIRTON, W.Va.—Weirton Steel Corp., Makers, The Plain Dealer (February ‘‘When there is softness in the market, the nation’s sixth-largest integrated steel 26, 2004) you close the high-cost ones first. Mittal, maker and No. 2 producer of tin, filed The attachment is available at the just within North America, has more for Chaper 11 bankruptcy protection following Web site, http:// than a dozen blast furnaces, so they Monday. cleve.live.advance.net/indepth/steel/ have the ability to cut one or two and The employee-owned company index.ssf?/indepth/steel/more/ moderate their business.’’ located across the Ohio River from 1077791716314950.html. Mittal, a Netherlands company, took Steubenville, Ohio, held on while an control of Weirton in April through a import crisis took down dozens of Attachment 19—Furnace Will Stay $4.5 billion purchase of former owner competitors, but racked up more than Idle at Weirton Steel Mill, Associated International Steel Group of Richfield, $700 million in losses over five years. Press (Dec. 2, 2005) Ohio. ISG had won a bidding war for Weirton Steel employs 1,100 Ohioans. Friday, December 2, 2005 Weirton, the nation’s No. 2 tin producer, President and CEO John Walker said in bankruptcy court in 2004. the company has obtained a $225 Furnace Will Stay Idle at Weirton Steel Weirton’s steel-production costs have million financing package that will Mill been among the highest at Mittal, which allow it to keep operating while it Bad Site, High Costs and Age Are Cited has other mills capable of producing reorganizes. enough steel to meet demand through Walker had been in the middle of a By Vicki Smith, Associated Press 2006. plan to cut costs by $120 million when Historically high production costs, an Union spokesman David Gossett said Weirton Steel’s board of directors voted inconvenient location and old, raw materials are at the root of Monday to file for bankruptcy. inefficient facilities have apparently Weirton’s problem. Weirton does not ‘‘In the past year, we did everything doomed hopes of revitalizing a West have a coke plant and must buy it at a we could do outside the bankruptcy Virginia steel mill that once employed high cost on the open market. venue before taking this necessary

VerDate Aug<31>2005 22:18 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17664 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

step,’’ Walker said. ‘‘Our previous prescription drugs and doctor visits. But Mark Glyptis, president of the initiatives strengthened the company, Weirton Steel is seeking court approval Independent Steelworkers Union (ISU) but it became increasingly evident in to create a committee of retirees to at Weirton, said the union had been the current industry climate that address the pension issues. working toward lowering the line’s Chapter 11 reorganization is the only ISU president Mark Glyptis, who sits operating costs. ‘‘ Its a good line and one remaining solution to address our on the board of directors, opposed the that ought to be running in this liability issues.’’ bankruptcy filing. organization,’’ he said. ‘‘We did a great In its bankruptcy filing, Weirton Steel ‘‘Today, our senior management deal of work to keep that line in said it had about $654.5 million in effectively gave up and conceded operation.’’ assets and about $1.41 billion in debts defeat,’’ he said. ‘‘But the working The closure, set to take place in two as of March 31. The company expects to people of Weirton Steel will never to three months, follows the layoff of file a reorganization plan within about surrender. We will not give up.’’ about 450 people when the Chicago- six months. Attachment 22—Testimony of Bill based company decided to indefinitely Walker said the recent U.S. Steel- Stephans, Division Manager for TMP at close its iron and steelmaking National Steel and International Steel Mittal Steel USA’s Weirton Facility operations there in November. The hot Group-Bethlehem Steel mergers, along from Hearing Transcript, In the end previously had been temporarily with a federal $250 million loan Matter Of: Tin and Chromium idled since May, when steel prices were package awarded to Wheeling- Coated Steel Sheet from Japan, Inv. falling due to bloated inventories Pittsburgh Steel, left his company with No. 731–TA–860 (Review) (April 27, nationwide. no options for expansion. 2006) The closure ends nearly 100 years of Weirton’s survival strategy had The attachment is available at the steelmaking at the plant, which was a centered on having the nation’s largest following Web site, http:// founding piece of Weirton Steel Corp. in tin mill. Only U.S. Steel produces more www.usitc.gov/trade_remedy/731_ 1909. In 1984, its employees bought the tin-plated steel than Weirton, where tin ad_701_cvd/investigations/2005/tin_ plant, at the time making it the world’s accounts for 38 percent of production chromium_steel/PDF/Tin%20and% largest wholly employee-owned and 50 percent of revenues. 20chromium%20steel%2004-27-06.pdf. company. In 2003, International Steel Monday’s filing surprised a steel Group Inc. (ISG) purchased the analyst who said Weirton Steel had Attachment 23—ISU Irked by Mittal business, and Mittal bought ISG in a seemed to ‘‘be bumping along.’’ Steel’s Plan To Shut Weirton multibillion-dollar deal in April 2005. Galvanizing Line, But the company was squeezed by American Metal With the closures, only the plant’s rising energy and material costs and Market (Feb. 3, 2006) hot- and cold-rolled mills and its declining prices for tin products, said ISU Irked by Mittal Steel’s Plan To tinplating operations remain intact. If Michael Locker, president of Locker Shut Weirton Galvanizing Line there is good news, Glyptis said, it’s that Associates Inc. and author of the Steel By Sam Kusic the union was able to work with the Industry Update Newsletter. company to keep the hot-roll mill open, The Independent Steelworkers Union PITTSBURGH—Mittal SteeL USA Inc. saving about 200 jobs. had helped Walker trim $38 million, plans to shut down the galvanizing line Mittal had been reviewing whether to approving a one-year contract that cut at its Weirton, W.Va., plant, eliminating shutter the hot-roll mill, but ultimately pay 5 percent, canceled a planned raise 25 to 40 jobs, and refocus the facility decided against it. ‘‘It’s one of the better and froze accrued pension benefits. The entirely on tinplate products. hot mills in operation,’’ Glyptis said, company planned to cut an additional The move comes two months after the adding that as the plant increases its $34 million by asking the 3,600 active company sent official notices to workers tinplating operations, jobs are being employees and 4,600 retirees and that the plant’s blast furnace, idle for added. ‘‘It’s kind of a roller coaster of dependents for health-care givebacks. much of last year, would be closed good news and not-so-good news.’’ Retirees, however, had been slow to permanently. embrace the request, which asked that ‘‘The (galvanizing) line does not fit Attachment 24—Excerpts of Testimony they help cover the cost of health into the plans,’’ a Mittal Steel USA from Hearing Transcript, In the insurance with a $200 monthly spokesman said, adding that the Matter Of: Tin and Chromium deduction from their pension checks. Wierton line costs more to operate than Coated Steel Sheet from Japan, Inv. They also faced higher co-payments for other comparable facilities it owns. No. 731–TA–860 (F) (June 29, 2000)

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17665

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.001 17666 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.002 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17667

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.003 17668 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.004 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17669

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.005 17670 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Attachment 25—Brazil Slab Hits Pittsburgh Steel, is reporting a $2.1m Esmark bid as inferior to CSN’s $555/T In Tight Export Market, net loss for the first quarter, compared proposal. American Metal Market (June 5, 2006) with $8m in earnings in the first quarter of 2005. The sheet steel producer had a Attachment 28—Arcelor Brasil Sets Brazil Slab Hits $555/T in Tight Export Sights on New Slab Plant, American Market $49m cost increase, Steel Business Briefing understands. Metal Market (March 22, 2006) By Diana Kinch Wheeling-Pittsburgh, in talks with Arcelor Brasil Sets Sights on New Slab Vitoria, Brazil—Export prices for steel Brazil’s CSN to form a slab rolling Plant slab have risen to $555 a tonne f.o.b. alliance, shipped 681,000 short tons in By Diana Kinch Brazil and could continue to rise due to Q1, up substantially from 523,000 s.t ˜ ß tight world supplies, Cia. Sider A rgica shipped in Q1 2005 when the company Vitoria, Brazil—Arcelor Brasil SA is ˜ de TubarA£o (CST) said late Thursday. suffered an equipment failure. However, studying the possibility of building a The slab producer, majority owned by sales were made at an average of $739/ 3.5-million-tonne-a-year steel slab-for- Luxembourg-based steelmaker Arcelor s.t a year ago, declining to $680/s.t in export plant, probably in conjunction SA, said it had just closed a deal to sell the most recently completed quarter. with Cia. Vale do Rio Doce (CVRD), at slab to a U.S. buyer at $555 a tonne, CSN is interested in having its slabs Anchieta in Espirito Santo state. although the tonnage was not disclosed. rolled by Wheeling-Pittsburgh, which ‘‘Pressure continues on prices has about 600,000 s.t/year of excess hot- The plant would be about 60 following the Chinese pulling out of the kilometers (37 miles) from the existing rolling capacity. CSN is also discussing ˜ ß ˜ slab export market due to China’s taking a minority stake in the West Cia. SiderA rgica de TubarA£o (CST)- charging of export taxes,’’ a CST source Virginia steelmaker. Arcelor Brasil slabmaking and hot- said. ‘‘While our first quarter loss rolled coil plant, company executives (In fact, China apparently has delayed represented an improvement from the said during a press conference. implementation of higher export taxes fourth quarter of 2005, it was a CVRD announced a month ago that it on steel products until at least July 1. disappointment given current demand was seeking partners for a new But Chinese exporters reduced slab and for our products,’’ says company CEO slabmaking venture at Anchieta, in billet offers in May in anticipation of the James Bradley. which it would like to hold a minority anticipated 5- to 10-percent tax, and as participation. According to the CVRD yet there is no sign of any rebound in Attachment 27—Esmark To Shut Wheeling-Pitt BF If Bid Succeeds, announcement, the final capacity of slab exports, according to reports out of such a plant would be around 5 million Steel Business Briefing (Aug. 23, 2006) China.) tonnes a year. The other major factor influencing Esmark To Shut Wheeling-Pitt BF If Bid ‘‘We would probably start off with 3 Brazilian export prices is the loss of the Succeeds No. 3 blast furnace at Cia. Sider A˜ ßrgica million to 3.5 million tonnes per year,’’ Nacional (CSN) in January in what was Wednesday, 23 August 2006 a spokesman said. described at the time as a minor Esmark, the U.S. service centre Usinas SiderA˜ ßrgicas de Minas Gerais accident involving a dust collection consolidator in a proxy fight for control SA (Usiminas), based in Belo Horizonte, system. The furnace, responsible for 60 of Wheeling-Pittsburgh Steel, plans to which also is considering building new percent of CSN’s raw steel output of 6 shutter the sheet producer’s Mingo slabmaking capacity in Brazil, million tonnes per year, was expected to Junction, Ohio blast furnace and rely reportedly isn’t involved in the return to service in June, but now solely on its new electric furnace, in Anchieta project talks. sources said they don’t expect it to addition to purchased slabs, Steel CST-Arcelor Brasil is expected to restart until next month at the earliest. Business Briefing understands. CSN reportedly has ordered 1 million expand its own steelmaking capacity to In a television interview with a tonnes of slab to replace the lost 9 million tonnes a year by 2012, after Wheeling, West Virginia television ˜ production but so far has received only which its current site at TubarA£o will station, brothers James and Craig 300,000 tonnes because of the market be saturated, the spokesman said. Bouchard of Esmark say they plan to tightness, sources said. CST-Arcelor Brasil later this year will shut the BF because it is not cost- CST did not confirm whether it sees bring on-stream its third blast furnace, effective. SBB could not reach the the delay in bringing on-stream its new boosting its annual steelmaking capacity Bouchards for further comment. Esmark No. 3 blast furnace as a market factor. from 5 million tonnes currently to 7.5 has not filed documents with regulators The new 2.5-million-tonne-per-year million tonnes, of which some 5 million detailing its plans. furnace, which is now more than 90 tonnes will be used for merchant slab percent complete, will probably be The interview preceded Wheeling- production. inaugurated in early 2007 because of the Pittsburgh’s response to a United Steelworkers assertion that the The steelmaker currently produces impact on a recent construction some 2.5 million tonnes of hot-rolled workers’ strike at the site, a source close steelmaker violated its labour contract by not giving the union the same coil a year and is expected to double its to the furnace project said (see story, hot-rolled coil mill capacity by 2008 in page 6). amount of time to make a competing bid for the company that Brazilian suitor what should be a relatively economic Attachment 26—Wheeling-Pittsburg CSN was given. investment. Makes Loss, Despite Rising Market, In a 21 August letter to USW officials, Attachment 29—CST to Hike Slab Steel Business Briefing (May 11, 2006) Wheeling-Pittsburgh CEO James Bradley Sales to Dofasco, American Metal Wheeling-Pittsburgh Makes Loss, notes the union has known about the Market (March 22, 2006) Despite Rising Market potential hook-up with CSN since early July and that the USW ‘‘has no The attachment is available at the Thursday, 11 May 2006 compelling basis’’ to request more time following Web site, http:// Wheeling-Pittsburgh Corp, the given its support of the Esmark www.findarticles.com/p/articles/ holding company of Wheeling- proposal. He also again criticises the mi_m3MKT/is_11–3_114/ai_n16119523.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17671

Attachment 30—Gerdau Acominas billet being its principal product. But its Dofasco Inc., Hamilton, Ontario, from Charging Into Slab Mart, American relatively new sections rolling mill is Arcelor SA-Mittal Steel Co. NV falls Metal Market (June 30, 2006) aimed principally at the domestic through. But it seems likely the project Gerdau Ac¸ominas Charging Into Slab construction industry. will move forward, given the protective Mart Gerdau Johannpeter indicated that the measures Arcelor took to secure Dofasco installation of a 3-million-tonne slab as it attempted to fight off a Mittal By Diana Kinch caster is to prepare for possible future takeover in early negotiations. Ouro Branco, Brazil—Gerdau expansions of the Gerdau AA¯ §ominas ‘‘Our first priority is the acquisition of AA¯ §ominas SA will step up production works, which was envisioned as a 10- Dofasco,’’ Ekkehard D. Schulz, of merchant slab, particularly of special million-tonne-per-year steelmaker when executive board chairman of grades, by installing its first continuous it was originally set up 20 years ago by ThyssenKrupp, said. ‘‘But in case that is slab caster. the Brazilian state. not possible, we have to look for The 3-million-tonne-per-year slab ‘‘We are already studying the opportunities to develop our (North caster will operate initially at a rate of possibility of a further expansion to 6 American) strategy.’’ 1.5 million tonnes annually when it million or 6.5 million tonnes of crude That would appear to make building starts up in two years, with output steel capacity,’’ Rico Vicente said. ‘‘We a mill the likely option, especially given directed at the export market, Jorge are being advised by (Japan’s JFE Steel that ThyssenKrupp’s announcement Gerdau Johannpeter, Gerdau SA Corp.) on these studies, which should comes less than a week after Gonzalo chairman and president, announced be completed by the end of this year.’’ Urquijo, senior executive vice president and chief financial officer of Arcelor, Wednesday. Attachment 31—CSA Steel Project Currently, Gerdau AA¯ §ominas, said it appears ‘‘impossible’’ for Dofasco Receives License, American Metal located at Ouro Branco, Minas Gerais to be sold given its control by a ‘‘Dutch Market (July 6, 2006) state, produces less than 200,000 tonnes trust.’’ of merchant slab per year. Most of its CSA Steel Project Receives License ThyssenKrupp has been looking to current 3 million tonnes of annual raw increase its position in North America By Diana Kinch steel output is sold as billet, bloom, wire for years and reportedly had eyed the rod and sections. Rio de Janeiro—Cia. SiderA˜ ßrgica do purchase of AK Steel Corp., ‘‘The move into slab is in response to AtlA˜ ¢ntico (CSA), the 4.4-million- Middletown, Ohio, or some form of tie- market demand,’’ Gerdau AA¯ §ominas tonne-per-year slab-for-export joint up with U.S. Steel Corp., Pittsburgh. sales director Alberto Huallem said, venture to be built in Sepetiba, Rio de The company also reportedly looked at adding that talks have already taken Janeiro state, by Germany’s acquiring the Sparrows Point, Md., place with possible clients abroad. ThyssenKrupp Stahl AG and Brazil’s plant of Mittal Steel USA Inc. if the The move into large-scale slab export Cia. Vale do Rio Doce, has been granted Dofasco deal fell through. will bring Gerdau AA¯ §ominas into a preliminary environmental license Now it has turned its focus to a direct competition with both Cia. despite protests by local fishermen. greenfield project that would comprise SiderA¯ ßrgica de Tubarao and Cia. Notice that Rio de Janeiro state carbon and stainless steel SiderA¯ ßrgica Nacional, Huallem said. environmental authority FundaA˜ §A˜ £o manufacturing. The plan contemplates ‘‘But the market is big enough for Estadual de Engenharia do Meio the construction of a hot strip mill by everyone,’’ he added. Ambiente granted the license to CSA ThyssenKrupp Steel AG that would be The plant is working to boost its raw was published in the state’s official used to process slab from steel output to 4.5 million tonnes per gazette Monday. ThyssenKrupp’s new Cia. Siderurgica year beginning in the second half of The preliminary environmental do Atlantico (CSA) steel mill in Brazil. 2007, when its No. 2 blast furnace using license basically determines the site of The new U.S. plant also would feature Chinese technology, currently under the new works and will enable the cold-rolling and hot-dip galvanizing construction, is due on-stream as part of steelmaking project to proceed with capacity for carbon flat products. The a $1.5-billion investment. equipment purchases. The $2.4-billion 1.8-billion-euros ($2.3-billion) carbon The extra capacity will be used CSA is slated for start-up in 2008, with plant would produce about 4.5 million initially to produce more billet, and all output aimed for export. tonnes of steel per year. later slab for export once the slab caster At the same time, ThyssenKrupp comes on-stream in 2008, Gerdau Attachment 32—North America at Stainless AG would spend around 500 AA¯ §ominas industrial director Manoel Top of TK’s Agenda, American Metal million euros ($636 million) to build a Vitor de MendonA¯ §a said. Market (August 11, 2006) melt shop with an annual capacity of up ‘‘The slab caster is a new North America at Top of TK’s Agenda to 1 million tonnes of slab, which would development, recently approved by the be processed on the hot strip mill. A board, and will cost $275 million,’’ By Scott Robertson cold-rolling facility also would be Gerdau Johannpeter said. Proposals Pittsburgh—ThyssenKrupp AG, included, which in its initial phase from potential suppliers are still being Du¨ sseldorf, Germany, is sharpening its would be designed to produce 325,000 considered and the supplier should be focus on North America, with plans to tons of cold strip and 100,000 tons of confirmed by the end of this year. take a significant share of the U.S. pickled hot strip. In addition, Luiz AndrA¯ e´ Rico Vicente, Gerdau carbon and stainless steel markets. ThyssenKrupp Mexinox would be AA¯ §ominas president, said that the The company said Friday it had supplied with hot strip from the United caster will make only high-value grades. approved a project development budget States as starting material. ‘‘Our company trend is to steer away of $50 million, in effect a feasibility ThyssenKrupp said sites in Alabama, from commodity grades. We want to study into building a $2.9-billion carbon Arkansas and Louisiana are under produce API and interstitial-free grades and stainless steel mill in the southern consideration for the project, but gave because the market is hungry for these United States. no timetable as to when construction products,’’ he said. ThyssenKrupp executives termed the might begin. Locating in that region Currently, Gerdau AA¯ §ominas sells proposal to build a mill a ‘‘backup plan’’ would place the company in a 70 percent of its products for export, in case the company’s deal to acquire geographic position to supply steel to

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17672 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

automotive transplant companies Attachment 35—Brasil’s Usiminas $285.5 million. Through its U.S. throughout the Southeast. It also would Casts Sights Abroad For New Slab vehicle, Severstal has also bought place the proposed mill in direct Project Partner, American Metal Rouge’s 50 percent stake in Double competition with SeverCorr LLC, a Market (August 29, 2006) Eagle Steel Coating Company—the carbon steel mini-mill now under The attachment is available at the world’s largest electro-galvanising line construction in Columbus, Miss., that following Web site, http:// that produces galvanised sheet steel for plans to supply the automotive www.findarticles.com/p/articles/ cars. Severstal North America has also transplants. SeverCorr is on track to mi_m3MKT/is_34-3_114/ai_n16715616. acquired Rouge’s 48 percent stake in begin production in late 2007. Spartan Steel Coating, a hot dip Attachment 36—Russia’s Severstal galvanizing firm. ThyssenKrupp executives stressed Wants to Ship More Steel to U.S., that negotiations aimed at acquiring Reuters (February 2, 2004) Attachment 37—Tin and Chromium Dofasco would continue over the next Coated Steel Sheet from Japan, Inv. Russia’s Severstal Wants To Ship More few days and that the mill project would No. 731–TA–860 (Review), USITC Pub. Steel to U.S. be undertaken only if those negotiations 3860 (June 2006) at V–8 fail. Reuters, 02.02.04, 7:56 AM ET The attachment is available at the ‘‘Dofasco is our top priority,’’ said A. Moscow, Feb 2 (Reuters)—Russian following Web site, http:// _ Stefan Kirsten, chief financial officer steel giant Severstal hotdocs.usitc.gov/docs/pubs/701 731/ and a member of the executive board of , fresh from its first pub3860.pdf. ThyssenKrupp. ‘‘The greenfield strategy acquisition in the United States, said on Attachment 38—Tin and Chromium is a backup strategy. We need a Nafta Monday it would ask the U.S. Coated Steel Sheet from Japan, Inv. strategy. If there is any chance that we Commerce Department to allow it to No. 731–TA–860 (Review), USITC Pub. do not get Dofasco, we do not want to ship more steel to the United States. 3860 (June 2006) at Table III–8 Last Friday, Severstal completed the be unprepared. We do not want to put The attachment is available at the our steel strategy into the hands of a acquisition of bankrupt U.S. firm Rouge Industries Inc, one of the largest following Web site, http:// third party. What we have done is fund suppliers of steel to car giants such as hotdocs.usitc.gov/docs/pubs/701_731/ a feasibility study. We have not agreed Ford Motor (nyse: F—news—people) pub3860.pdf. to build a steel plant in the U.S. This is Co. a prudent company.’’ Attachment 39—Mittal Shows Little The purchase, likely to increase Interest in Weirton Furnace Sale, ThyssenKrupp has been prudent Severstal’s presence in the global car American Metal Market (May 5, 2006) enough, Kirsten said, to review what market, was the second move by a major adding such capacity would mean to the Russian metals company into the U.S. Mittal Shows Little Interest in Weirton U.S. market. He said the U.S. steel market after Norilsk Nickel Furnace Sale industry does not produce all the steel took over By Scott Robertson the country needs and relies on imports U.S.-based platinum firm Stillwater to provide anywhere from 8 million to Mining (nyse: SWC—news—people) Co. Pittsburgh—Mitchell A. Hecht, former chief financial officer at International 12 million tons per year to make up the ‘‘We would like to present Rouge Steel Group Inc., wants to buy and difference. ThyssenKrupp’s plan, he Industries (nyse: ROU—news—people) restart two idle blast furnaces in said, is to displace those imports. with a plan for its financial revitalisation by this spring,’’ said Weirton, W.Va. Standing in his way, he The entire plan could be scrapped, Severstal spokeswoman Olga Yezhova. says, is the inattention of the furnaces’ Kirsten said, if ThyssenKrupp gets ‘‘As part of this plan we intend to ask current owner, Mittal Steel Co NV., the Dofasco. ‘‘If we get Dofasco, we will the U.S. Commerce Department to allow world’s largest steelmaker. revisit our strategy,’’ he said. ‘‘We us to supply more steel slab there.’’ ‘‘I know right now they have bigger already have achieved a strong position Severstal, one of Russia’s biggest fish to fry,’’ Hecht said about Mittal in stainless (in the Nafta region) with exporters of steel, had previously said Steel’s efforts to acquire Arcelor SA, the our Mexican plant. This strategy (to foreign firms with U.S. assets tended to world’s second-largest steel producer. build a new mill) is something we obtain such permission. The company ‘‘But I think once they can focus on this, would be sure to revisit when the shipped a mere 2,000 tonnes of steel they’ll find it’s a win-win-win moment comes.’’ and products to the United States last situation’’ for Mittal, for Hecht’s recently formed Hamsphire Steel Attachment 33—Groundwork Laid year. But Washington’s recent decision to Investments and for as many as 200 For Brazil’s Ceara Slab Project, abolish three-year steel import duties unemployed steelworkers in West American Metal Market (September 1, that the United States slapped on Virginia. 2006) countries including Russia, is likely to Hecht confirmed Thursday that he has made an offer to buy the former Weirton The attachment is available at the trigger major export growth from Russia. Steel Corp. blast furnaces from Mittal following Web site, http:// Dmitry Goroshkov, Severstal’s sales Steel USA Inc. Those furnaces were www.findarticles.com/p/articles/ director, said in a recent media idled a year ago when Mittal decided to mi_m3MKT/is_49-5_113/ai_n15981124. interview that Severstal could sell ‘‘hundreds of thousands of tonnes of reduce steel production to better align it Attachment 34—CSN May Lift Slab steel’’ to the United States this year as with demand at the time. The company Capacity Of Two Projects, American a result. never brought back the furnaces— Metal Market (September 1, 2006) Yezhova said Severstal had never among the highest cost in Mittal’s supplied slab to Rouge before. Severstal arsenal—in-stead redirecting efforts on The attachment is available at the plans to invest up to $45 million a year the Weirton plant’s tinplate business. following Web site, http:// in its U.S. partner. Hecht envisions starting a new www.findarticles.com/p/articles/ A U.S. bankruptcy court has allowed company around the furnaces with an mi_m3MKT/is_35-1_114/ai_n16726710. the sale of Rouge to Severstal for about initial investment of about $10 million,

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17673

including the purchase price. company) has their attention elsewhere. Attachment 41—‘‘HHI Impact of Additional working capital would be I am confident that once they turn their Alternative Divestiture Scenarios’’ needed as well. attention and get focused on this offer, Arcelor-Mittal Merger—Competitive Employees of the new company we’ll be able to get something done.’’ Impact for U.S. Tin Consumers would receive an unspecified Hecht’s Hampshire Steel Investments HHI Impact of Alternative Divestiture ownership interest. Hecht said is a private hedge fund that aims to Scenarios employee involvement would not be on invest in steel equities. Before becoming the order of an employee stock involved with International Steel Group, We calculate the HHI for the U.S. tin ownership plan (ESOP), the likes of which was acquired by steel mogul market using market shares reported in which once operated at Weirton Steel. Lakshmi N. Mittal last year and merged the DOJ Competitive Impact Statement. ‘‘It’s not going to be an ESOP. But I want with his other U.S. holdings to form Market shares for the two foreign the employees to be involved,’’ he said. Mittal Steel USA, Hecht spent time with suppliers (Rasselstein and Corus) was ‘‘The furnaces are in good shape,’’ estimated using U.S. import statistics. Hecht said. ‘‘They would require some Bankers Investment, PaineWebber Inc. and as an independent consultant. Prior to the Mittal-Arcelor merger we prep work to bring them back. We’re not estimate the market shares as follows: talking about major dollars initially. Attachment 40—Mittal Plans to Sell Long-term, I think we are looking at Dofasco, Hecht Waits for Weirton, Market investment on the level of several tens Steel Business Briefing (August 16, share of millions of dollars.’’ 2006) (percent) His plan is to sell pig iron produced on-site and invest further in alternative Mittal Still Plans To Sell Dofasco, Hecht USS ...... 44 Waits for Weirton Mittal ...... 31 methods of ironmaking. Ohio Coatings ...... 8 ‘‘We think it is a win for all parties,’’ Wednesday, 16 August 2006 Dofasco-Arcelor-EU ...... 6 he said. ‘‘It’s a win for the (Independent Rasselstein ...... 5 Steelworkers Union) in that it would Whilst the Arcelor side of the Arcelor Corus ...... 6 bring people back to work. It’s a win for Mittal merger maintains that Dofasco Mittal because it would allow them to cannot be sold to ThyssenKrupp, there Mittal’s market share (31%) can be enhance their good standing with the still appears to be a differing opinion divided into Weirton (18.6%) and union, in the community and in the coming from the Mittal camp. In fact, Sparrows Point (12.4%). Arcelor’s region. And it would be a win for us that opinion seems strong enough that market share can be divided into because we think we can make money Mittal Steel USA declines to say if one Dofasco (4.0%) and Arcelor-EU (2.0%). selling pig and trying to invest in of its other tinplate plants will be sold In the following pages we present a alternate methods of ironmaking. I have to satisfy regulators’ concerns. separate HHI calculation for each potential divestiture. Given that certain become intrigued over the past year A Mittal Steel USA spokesman tells with advances in alternative ironmaking options involve the high likelihood that Steel Business Briefing that no decision a U.S. firm will fail, we are forced to that are being made in other countries. is forthcoming shortly on whether the I think there are some positive things make an assumption about how the Sparrows Point, Maryland works or the surviving firms’ market share will be that can be done in that area.’’ Weirton, West Virginia works will be The ISU, which represents hourly reallocated. For simplicity we assume sold to comply with U.S. Justice workers at what is now known as Mittal that the surviving firms’ market share Department concerns over a controlling Steel-Weirton, expects 80 jobs would be will grow in proportion to their current interest in the U.S. tin mill products created by restarting one furnace and as share. market place. many as 200 jobs if both furnaces are For instance, if Weirton is divested by operating, according to Mark Glyptis, He says that’s because European Mittal-Arcelor but subsequently fails, president of the ISU. About 1,000 union management—at least those from the 18.6% of the tin market will disappear jobs have been eliminated at Mittal Mittal side of the equation—still believe and 81.4% survives. We assume that the Steel-Weirton since the furnaces were Dofasco can be sold to TK under an surviving firms’ market share will idled. agreement the two sides forged in remain in proportion to their current Glyptis indicated that Mittal Steel January. shares. That is, USS’s current market appeared unwilling to part with the Meanwhile, Mitch Hecht, the former share is 44%; our assumption implies assets. ISG executive who has expressed an that USS’s market share following the Hecht expressed a more positive view. interest in Weirton’s now-shuttered hot failure of Weirton would be 44%/ ‘‘I have made an offer to them and they end, tells SBB he’s still interested in the (81.4%) = 54.05% have responded to that offer with some slab making operation and that he is We stress that our assumption is very questions,’’ he said. ‘‘I have responded also willing to partner with the works’ optimistic (i.e., pro-competitive) as it to their questions and we are moving independent union to purchase the implies the foreign suppliers’ market the process forward. Frankly, they are rolling operations as well if Mittal is share also increases. Given the U.S. tin thinly staffed at this point and their keen to sell them. industry’s protectionist history, such attention is diverted to what they are market share increases could easily doing with Arcelor. I think once they get Saying the Weirton hot strip mill ‘‘is result in an antidumping petition through (dealing with Arcelor) and have a very attractive asset,’’ Hecht says he against foreign suppliers. As a chance to focus on this offer, they’ll will bring in financial partners to again exemplified by the 2000 tin case against see it as something positive.’’ combine the rolling and finishing Japan antidumping actions often result Hecht said he has not heard anything operations with the hot end to make the in the foreign country exiting the U.S. negative from Mittal with regard to his works profitable. market. This prospect makes it even offer. ‘‘We are going through the He adds, however, ‘‘We’re sitting here more imperative that the DOJ pursue a process. Mittal Steel USA is a relatively waiting to see which way Mittal will divestiture that maximizes that chance small part, about 10 percent, of the go’’ with the sale of one of the that all U.S. production will remain global company. Right now (the parent properties. viable.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17674 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

HHI TIN MARKET—SUMMARY TABULATION [Eastern U.S. Regional Market]

Loss of Mkt HHI size (%)

Market Condition (Pre-merger) ...... 3,058 ...... Market Condition (Post-merger)—No Divestiture ...... 3,446 ......

Change in HHI ...... 388 ...... Market Condition (Post-merger)—Weirton Divested (independent): Weirton Survives (highly unlikely) ...... 2,761 ...... Weirton Fails (very likely) ...... 3,645 18.6 Market Condition (Post-merger)—Sparrows Point Divested (independent): Weirton Survives (unlikely beyond the very short term) ...... 2,836 ...... Weirton Fails (likely within a few years) ...... 3,421 18.6 Market Condition (Post-merger)—Sparrows Point Divested (independent): S–Point TMP Operations Survive ...... 2,836 ...... S–Point TMP Operations Shuttered ...... 3,495 12.4 Market Condition (Post-merger)—Sparrows Point Divested (to USS): S–Point TMP Operations Survive ...... 3,927 ...... S–Point TMP Operations Shuttered ...... 3,495 12.4 Market Condition (Post-merger)—Dofasco Divested (independent) 3,182 ...... Market Condition (Post-merger)—Dofasco Divested to TK 3,222 ......

Prepared by WFG Competitive Impact Analysis: HHI Tin Market Alternative Remedies Eastern U.S. Regional Market

MARKET CONDITION (PRE-MERGER)

Mkt share MShr-Sqr

USS ...... 44% 0.19360 Mittal ...... 31% 0.09610 Ohio Coatings ...... 8% 0.00640 Dofasco-Arcelor-EU ...... 6% 0.00360 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 HHI ...... 3,058 ......

MARKET CONDITION (POST-MERGER)—NO DIVESTITURE

Mkt share MShr-Sqr

USS ...... 44% 0.19360 Mittal-Arcelor ...... 37% 0.13690 Ohio Coatings ...... 8% 0.00640 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 100% ...... HHI ...... 3,430 ......

KEY MARKET SHARES

Weirton ...... 18.6% Sparrows Point ...... 12.4% Dofasco ...... 4.0% Arcelor-EU ...... 2.0%

MARKET CONDITION (POST-MERGER)—WEIRTON DIVESTED (INDEPENDENT)

Weirton survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 54% 0.29218 Mittal-Arcelor ...... 18.4% 0.03386 23% 0.05110 Ohio Coatings ...... 8.0% 0.00640 10% 0.00966 Weirton ...... 18.6% 0.03460 ...... Rasselstein ...... 5% 0.00245 6% 0.00370

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17675

MARKET CONDITION (POST-MERGER)—WEIRTON DIVESTED (INDEPENDENT)—Continued

Weirton survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

Corus ...... 6% 0.00366 7% 0.00552 HHI ...... 2,746 ...... 3,622 ......

Eastern U.S. Regional Market

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (INDEPENDENT)

Weirton Survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 54% 0.29218 Mittal-Arcelor ...... 24.6% 0.06052 7.4% 0.00543 Ohio Coatings ...... 8.0% 0.00640 10% 0.00966 Sparrows Point ...... 12.4% 0.01538 15% 0.02321 Rasselstein ...... 5% 0.00245 6% 0.00370 Corus ...... 6% 0.00366 7% 0.00552 HHI ...... 2,820 ...... 3,397 ......

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (INDEPENDENT)

S–Point TMP operations remain S–Point TMP operations in operation shuttered Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 50% 0.25229 Mittal-Arcelor ...... 24.6% 0.06052 28% 0.07886 Ohio Coatings ...... 8.0% 0.00640 9% 0.00834 Sparrows Point ...... 12.4% 0.01538 ...... 0.00000 Rasselstein ...... 5% 0.00245 6% 0.00319 Corus ...... 6% 0.00366 7% 0.00477 HHI ...... 2,820 ...... 3,475 ......

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (TO USS)

S–Point TMP operations remain S–Point TMP operations in operation shuttered Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 56.4% 0.31810 50% 0.25229 Mittal-Arcelor ...... 24.6% 0.06052 28% 0.07886 Ohio Coatings ...... 8.0% 0.00640 9% 0.00834 ...... 0% 0.00000 Rasselstein ...... 5% 0.00245 6% 0.00319 Corus ...... 6% 0.00366 7% 0.00477 HHI ...... 3,911 ...... 3,475 ......

MARKET CONDITION (POST-MERGER)—DOFASCO DIVESTED (INDEPENDENT)

Mkt share MSr-Sqr

USS ...... 44%0 0.19360 Mittal-Arcelor ...... 33% 0.10890 Ohio Coatings ...... 8% 0.00640 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 Dofasco ...... 4% 0.00160 HHI ...... 3,166 ......

MARKET CONDITION (POST-MERGER)—DOFASCO DIVESTED TO THYSSENKRUPP

Mkt share MSr-Sqr

USS ...... 44% 0.19360

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17676 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

MARKET CONDITION (POST-MERGER)—DOFASCO DIVESTED TO THYSSENKRUPP—Continued

Mkt share MSr-Sqr

Mittal-Arcelor ...... 33% 0.10890 Ohio Coatings ...... 8% 0.00640 Rasselstein-Dofasco (TK) ...... 9% 0.00801 Corus ...... 6% 0.00366 HHI ...... 3,206 ......

Prepared by WFG Competitve Impact Analysis: HHI Tin Market Alternative Remedies Eastern U.S. Regional Market

MARKET CONDITION (PRE-MERGER)

Mkt shareCHED H=’1’≤MShr- Sqr

USS ...... 44% 0.19360 Mittal ...... 31% 0.09610 Ohio Coatings ...... 8% 0.00640 Dofasco-Arcelor-EU ...... 6% 0.00360 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 HHI ...... 3,058 ......

MARKET CONDITION (POST-MERGER)—NO DIVESTITURE

Mkt share MShr-Sqr

USS ...... 44% 0.19360 Mittal-Arcelor ...... 37% 0.13690 Ohio Coatings ...... 8% 0.00640 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 100% ...... HHI ...... 3,430 ......

KEY MARKET SHARES

Weirton ...... 18.6% Sparrows Point ...... 12.4% Dofasco ...... 4.0% Arcelor-EU ...... 2.0%

MARKET CONDITION (POST-MERGER)—WEIRTON DIVESTED (INDEPENDENT)

Weirton survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 54% 0.29218 Mittal-Arcelor ...... 18.4% 0.03386 23% 0.05110 Ohio Coatings ...... 8.0% 0.00640 10% 0.00966 Weirton ...... 18.6% 0.03460 ...... Rasselstein ...... 5% 0.00245 6% 0.00370 Corus ...... 6% 0.00366 7% 0.00552 HHI ...... 2,746 ...... 3,622 ......

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (INDEPENDENT)

Weirton survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 54% 0.29218 Mittal-Arcelor ...... 24.0% 0.06052 7.4% 0.00543 Ohio Coatings ...... 8.0% 0.00640 10% 0.00966

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17677

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (INDEPENDENT)—Continued

Weirton survives Weirton fails Mkt share MShr-Sqr Mkt share MShr-Sqr

Sparrows Point ...... 12.4% 0.01538 15% 0.02321 Rasselstein ...... 5% 0.00245 6% 0.00370 Corus ...... 6% 0.00366 7% 0.00552 HHI ...... 2,820 ...... 3,397 ......

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (INDEPENDENT)

S–Point TMP operations remain S–Point TMP operations in operation shuttered Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 44.0% 0.19360 50% 0.25229 Mittal-Arcelor ...... 26.6% 0.06052 28% 0.07886 Ohio Coatings ...... 8.0% 0.00640 9% 0.00834 Sparrows Point ...... 12.4% 0.01538 ...... 0.00000 Rasselstein ...... 5% 0.00245 6% 0.00319 Corus ...... 60% 0.00366 7 0.00477 HHI ...... 2,820 ...... 3,475 ......

MARKET CONDITION (POST-MERGER)—SPARROWS POINT DIVESTED (TO USS)

S–Point TMP operations remain S–Point TMP operations in operation shuttered Mkt share MShr-Sqr Mkt share MShr-Sqr

USS ...... 56.4% 0.31810 50% 0.25229 Mittal-Arcelor ...... 24.6% 0.06052 28% 0.07886 Ohio Coatings ...... 8.0% 0.00640 9% 0.00834 ...... 0% 0.00000 Rasselstein ...... 5% 0.00245 6% 0.00319 Corus ...... 6% 0.00366 7% 0.00477 HHI ...... 3,911 ...... 3,475 ......

MARKET CONDITION (POST-MERGER)—DOFASCO DIVESTED (INDEPENDENT)

Mkt share MShr-Sqr

USS ...... 44% 0.19360 Mittal-Arcelor ...... 33% 0.10890 Ohio Coatings ...... 8% 0.00640 Rasselstein ...... 5% 0.00245 Corus ...... 6% 0.00366 Dofasco ...... 4% 0.00160 HHI ...... 3,166 ......

MARKET CONDITION (POST-MERGER)—DOFASCO DIVESTED TO THYSSENKRUPP

Mkt share MShr-Sqr

USS ...... 44% 0.19360 Mittal-Arcelor ...... 33% 0.10890 Ohio Coatings ...... 8% 0.00640 Rasselstein-Dofasco (TK) ...... 9% 0.00801 Corus ...... 6% 0.00366 HHI ...... 3,206 ......

Attachment 42—‘‘Probability That Divestiture Will Improve Competition’’

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17678 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.006 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17679

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES EN09AP07.007 17680 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Attachment 43—ITC Prehearing Staff (Second Review); 701–TA–319, 320, than in January–June 2005. Ten of the Report, Certain Carbon Steel 325–328, 348, and 350 (Second Review); 18 producers operating continuously Products From Australia, Belgium, and 731–TA–573, 574, 576, 578, 582– from 2000 to 2003 reported better Brazil, Canada, Finland, France, 587, 612, and 614–618 (Second Review). operating profits while the other eight Germany, Japan, Korea, Mexico, Staff assigned: producers reported a decline in Poland, Romania, Spain, Sweden, Elizabeth Haines, Investigator (205– operating profits. As discussed in table Taiwan, and the United Kingdom, 3200), CORE–III–9, data for 2003 are impacted Inv. Nos. AA1921–197 (Second Michael Szustakowski, Investigator by limitations in information available Review); 701–TA–319, 320, 325–328, (205–3188), to * * * regarding the operations of 348, and 350 (Second Review); 701–TA– Gerald Houck, Industry Analyst (205– * * *. 319, 320, 325–328, 348, and 350 3392), (Second Review); and 731–TA–573, 574, Heather Sykes, Industry Analyst (205– 576, 578, 582–587, 612, and 614–618 3436), (Second Review) (September 25, 2006) Kelly Clark, Economist (205–3166), at Tables CORE–III–8 and CTL III–9 Mary Klir, Accountant (205–3247), Public Version June Brown, Attorney (205–3042), UNITED STATES INTERNATIONAL David Fishberg, Attorney (708–2614), TRADE COMMISSION Douglas Corkran, Supervisory Investigator (205–3057). Washington, DC Staff gratefully acknowledge the Certain Carbon Steel Products From contributions of the following Australia, Belgium, Brazil, Canada, Finland, individuals: France, Germany, Japan, Korea, Mexico, Mara Alexander; Gabriel Ellenberger; Poland, Romania, Spain, Sweden, Taiwan, Lita David-Harris; Carolyn Holmes; and the United Kingdom Steven Hudgens; Susan Louie; Mark Prehearing Report to the Commission Rees; Fred Ruggles; Lemuel Shields; and on Investigation Nos. AA1921–197 Darlene Smith in January–June 2006 TABLE CORE–III–8—CORROSION-RESISTANT STEEL: RESULTS OF OPERATIONS OF U.S. PRODUCERS, 2000–05, JANUARY–JUNE 2005, AND JANUARY–JUNE 2006

Fiscal year January–June Item 2000 2001 2002 2003 2004 2005 2005 2006

Quantity (short tons)

Total net sales ...... 20,077,026 19,561,875 20,890,841 19,290,267 21,916,288 20,389,803 10,108,023 11,349,571

Value ($1,000)

Total net sales ...... 11,060,117 9,766,640 10,955,956 10,324,538 14,847,617 14,495,023 7,428,201 8,258,842 COGS ...... 10,487,543 9,843,595 10,699,028 9,711,362 12,768,311 13,267,367 6,587,267 7,606,927 Gross profit (loss) ...... 572,574 (76,955 ) 256,928 613,176 2,079,306 1,277,656 840,934 651,915 SG&A expenses...... 424,888 412,539 435,110 459,562 456,432 448,921 215,626 224,073 Operating income (loss) ...... 147,686 (489,494 ) (178,182 ) 153,614 1,622,874 778,735 625,308 427,842 Interest expense...... 270,797 281,813 219,501 184,218 190,862 147,755 71,222 79,063 CDSOA income ...... 0 8,240 5,125 14,416 17,235 6,593 0 0 Other income (expense) ...... 50,357 6,953 29,850 (58,033 ) (95,415 ) (101,884) (54,609 ) (45,711 ) Net income (loss) ...... (72,754 ) (756,114) (362,708) (74,221) 1,353,832 535,689 499,477 303,068 Depreciation ...... 629,065 632,189 556,215 433,982 413,178 396,836 204,831 213,797 Cash flow ...... 556,311 (123,925) 193,507 359,761 1,767,010 932,525 704,308 516,865

Ratio to net sales (percent)

COGS: Raw materials...... 42.1 45.3 44.3 49.4 51.9 55.8 55.0 58.3 Direct labor...... 11.3 11.5 9.3 9.8 8.0 7.9 7.8 7.7 Other factory costs...... 41.5 44.0 44.0 34.9 26.0 27.9 25.9 26.1

Total COGS...... 94.8 100.8 97.7 94.1 86.0 91.5 88.7 92.1

Gross profit (loss) ...... 5.2 (0.8 ) 2.3 5.9 14.0 8.5 11.3 7.9 SG&Aexpenses ...... 3.8 4.2 4.0 4.5 3.1 3.1 2.9 2.7 Operating income (loss) ...... 1.3 (5.0 ) (1.6) 1.5 10.9 5.4 8.4 5.2 Net income (loss) ...... (0.7 ) (7.7) (3.3) (0.7) 9.1 3.7 6.7 3.7

Unit value (per short ton)

Total net sales...... $551 $499 $524 $535 $677 $711 $735 $728 COGS: Raw materials...... 232 226 233 264 352 396 404 424 Direct labor...... 62 58 49 52 54 56 57 56 Other factory costs...... 228 220 231 187 176 198 191 190

Total COGS...... 522 503 512 503 583 651 652 670

Gross profit (loss) ...... 29 (4) 12 32 95 60 83 57

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17681

TABLE CORE–III–8—CORROSION-RESISTANT STEEL: RESULTS OF OPERATIONS OF U.S. PRODUCERS, 2000–05, JANUARY–JUNE 2005, AND JANUARY–JUNE 2006—Continued

Fiscal year January–June Item 2000 2001 2002 2003 2004 2005 2005 2006

SG&Aexpenses ...... 21 21 21 24 21 22 21 20 Operating income (loss) ...... 7 (25 ) (9) 8 74 38 62 38 Net income (loss) ...... (4) (39 ) (17 ) (4 ) 62 26 49 27

Number of firms reporting

Operating losses...... 5 10 7 6 1 4 2 6 Data ...... 18 19 19 19 19 19 19 19 Souce: Compiled from data submitted in response to Commission questionnaires.

The industry-wide financial results reflected in 18 of 19 reporting firms’ per short ton). The overall decline from improved sharply from 2003 to 2004. financial data. 2004 to 2005 was experienced by the Per-unit operating income substantially The domestic industry’s total and per- majority (17 of 19 producers) of the improved as the increase in per-unit net unit operating income again declined industry. sales values ($142 per short ton) was from 2004 to 2005 and was lower in Per-unit net sales values were lower greater than the combined effects of an January—June 2006 than in January— ($7 per short ton) while per-unit costs increase in unit cost of goods sold June 2005; however, 2005 operating (‘‘COGS’’) ($79 per short ton) and a income was still higher than in 2000– and expenses were higher ($17 per short decline in selling, general, and 03. In 2005, the increase in per-unit net ton) in January—June 2006 as compared administrative (‘‘SG&A’’) expenses ($3 sales values ($33 per short ton) was to January—June 2005. The overall per short ton). The 2003 to 2004 smaller than the increase in COGS ($68 decline. improvements in operating income was per short ton) and SG&A expenses ($1 TABLE CTL–III–9—CTL PLATE: RESULTS OF OPERATIONS OF U.S. MILLS AND PROCESSORS, 2000–05, JANUARY–JUNE 2005, AND JANUARY–JUNE 2006

Fiscal year January–June Item 2000 2001 2002 2003 2004 2005 2005 2006

Quantity (short tons)

Total net sales...... 4,747,122 4,308,921 4,769,611 5,263,108 5,691,810 5,762,736 2,859,260 3,389,491

Value ($1,000)

Total net sales...... 1,731.020 1,467,318 1,627,675 1,906,404 3,609,040 4,213,623 2,202,648 2,486,482

COGS ...... 1,782,446 1,562,873 1,644,041 1,903,185 2,711,059 3,018,911 1,548,290 1,782,419 Gross profit (loss) ...... (51,426 ) (95,555 ) (16,366 ) 3,219 897,981 1,194,712 654,358 704,423 SG&A expenses...... 111,043 104,762 97,260 136,865 104,440 122,899 58,079 70,415 Operating income (loss) ...... (162,469 ) (200,317 ) (113,626 ) (133,646 ) 793,541 1,071,813 596,279 634,009 Interest expense...... 40,553 50,098 43,096 44,338 43,747 45,283 18,184 15,062 CDSOA income ...... 0 827 146 1,508 2,677 413 0 0 Other income/(expense) ...... 5,466 (1,824 ) 19,237 18,185 17,809 23,559 (382 ) 10,989 Net income/(loss) ...... (197,556 ) (251,412 ) (137,339 ) (158,291 ) 770,281 1,050,502 577,713 629,935 Depreciation ...... 109,461 114,677 127,946 121,969 116,779 116,072 58,565 60,141 Cash flow ...... (88,095 ) (136,735 ) (9,393 ) (36,322 ) 887,060 1,166,574 636,278 690,077

Ratio to net sales (percent)

COGS: Raw materials...... 44.0 43.7 43.9 48.8 46.6 45.8 44.8 43.7 Direct labor...... 14.7 14.4 12.2 11.8 5.5 5.0 4.4 5.2 Other factory costs...... 44.2 48.4 44.9 39.3 23.0 20.8 21.1 22.8

Total COGS...... 103.0 106.5 101.0 99.8 75.1 71.6 70.3 71.7

Gross profit (loss) ...... (3.0 ) (6.5) (1.0) 0.2 24.9 28.4 29.7 28.3 SG&A expenses...... 6.4 7.1 6.0 7.2 2.9 2.9 2.6 2.8 Operating income (loss) ...... (9.4 ) (13.7 ) (7.0) (7.0) 22.0 25.4 27.1 25.5 Net income (loss) ...... (11.4 ) (17.1 ) (8.4) (8.3) 21.3 24.9 26.2 25.3

Unit value (per short ton)

Total net sales...... $365 $341 $341 $362 $634 $731 $770 $734

COGS: Raw materials...... 161 149 150 177 295 335 345 320 Direct labor...... 54 49 41 43 35 37 34 38 Other factory costs...... 161 165 153 142 146 152 162 167

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17682 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

TABLE CTL–III–9—CTL PLATE: RESULTS OF OPERATIONS OF U.S. MILLS AND PROCESSORS, 2000–05, JANUARY–JUNE 2005, AND JANUARY–JUNE 2006—Continued

Fiscal year January–June Item 2000 2001 2002 2003 2004 2005 2005 2006

Total COGS...... 375 363 345 362 476 524 542 526

Gross profit (loss) ...... (11 ) (22 ) (3) 1 158 207 229 208 SG&A expenses...... 23 24 20 26 18 21 20 21 Operating income (loss) ...... (34 ) (46) (24 ) (25 ) 139 186 209 187 Net income (loss) ...... (42 ) (58 ) (29 ) (30 ) 135 182 202 186

Number of firms reporting

Operating losses...... 8 8 9 10 1 0 1 0

Data ...... 14 13 14 15 16 15 15 15 Source: Compiled from data submitted in response to Commission questionnaires.

The industry-wide financial decline Exhibit 2 significant competitor to Mittal.1 reversed from 2003 to 2005. Per-unit Weil, Gotshal & Manges LLP Because the remedies proposed as operating income substantially alternatives to the divestiture of Dofasco improved as the increase in per-unit net November 15, 2006 do not address adequately the harm alleged by the Department of Justice sales values ($369 per short ton) was Maribeth Petrizzi, Esq., much greater than the combined effects (‘‘DOJ’’) in the Complaint, entry of the Chief, Litigation II Section, U.S. of an increase in unit cost of goods sold Proposed Final Judgment is not in the Department of Justice, Antitrust public interest. (‘‘COGS’’) ($162 per short ton) and a Division, 1401 H St., NW., Suite decline in selling, general, and 3000, Washington, DC 20530. Divestiture of Mittal’s Sparrows Point administrative (‘‘SG&A’’) expenses ($5 Business or Mittal’s Weirton Business per short ton). While * * * enjoyed Re: Comments of ThyssenKrupp A.G. Will Not Preserve Competition in the some of the largest increases in Regarding The Proposed Final Market for Tin Mill Products in the operating profitability from 2003 to Judgment In United States v. Mittal Eastern United States Steel Company N.V. (Civil Case No. 2005, the 2003 to 2005 increase cut As set forth in the DOJ’s August 1, 1:06–CV01360–ESH) across the industry, as all mills 2006 Complaint, ‘‘Mittal Steel’s (individually) and processors Dear Ms. Petrizzi: Pursuant to the proposed acquisition of Arcelor would (collectively) operating continuously Section 2(b) of the Antitrust Procedures eliminate Arcelor, including its during this time frame reported and Penalties Act, 15 U.S.C. § 16, subsidiary Dofasco, as an independent increased operating profits or smaller ThyssenKrupp A.G. hereby submits competitor in the sale of Tin Mill losses. comments on the Proposed Final Products in the Eastern United States, Judgment in the above-referenced further consolidating an already highly The domestic industry’s operating matter. concentrated market. * * *’’ The income was also higher in January–June Sincerely, acquisition would remove current 2006 than in January–June 2005 due to constraints on coordination and the increase in net sales quantity; James F. Lerner. increase the incentives of the two largest however, on a per-unit basis, lower net Encl. firms to coordinate their behavior. The sales values ($37 per short ton) were acquisition would thus substantially greater in magnitude than the net Comments of Thyssenkrupp A.G. increase the likelihood of coordination reduction in COGS (lower by $16 per Regarding the Proposed Final Judgment and would likely lead to higher prices, short ton) and SG&A expenses (higher in United States v. Mittal Steel lower quality, less innovation, and less by $0.50 per short ton). The higher Company N.V. (Civil Case No. 1:06– favorable delivery terms in the Tin Mill operating income level in January–June CV01360–ESH) Products market in the Eastern United 2006 was generally reflected across the States.’’ 2 Complaint, at ¶¶ 4, 5. Pursuant to Section 2(b) of the industry, as a majority (10 of 15) of The Proposed Final Judgment and Antitrust Procedures and Penalties Act; Competitive Impact Statement both firms reported greater operating income 15 U.S.C. 16, ThyssenKrupp A.G. than in January–June 2005. make clear that the divestiture of (‘‘ThyssenKrupp’’) hereby files these Dofasco to ThyssenKrupp is the Attachment 44—Certain Hot-Rolled comments demonstrating that the preferred remedy for the competitive Flat-Rolled Carbon-Quality Steel remedies proposed as alternatives to the harm alleged to arise from Mittal’s Products From Brazil, Japan, and divestiture of Dofasco Inc. (‘‘Dofasco’’) Russia, Inv. Nos. 701–TA–384 and to ThyssenKrupp, set forth in the 1 Although Mittal and Arcelor are now known as 731–TA–806–808 (Review), USITC Pub. Proposed Final Judgment intended to Arcelor Mittal, we refer to each by their pre-merger names in these comments to avoid confusion, 3767 (April 2005) at Table III–11 resolve the Complaint filed by the United States to prevent the acquisition unless otherwise indicated. 2 As defined in the Proposed Final Judgment, The attachment is available at the by Mittal Steel Company N.V. (‘‘Mittal’’) ‘‘Tin Mill Products’’ means collectively black plate, following Web site, http:// of Arcelor, S.A. (‘‘Arcelor’’), do not i.e., light-gauge cold-rolled bare steel sheet; hotdocs.usitc.gov/docs/pubs/701_731/ adequately replace the competition lost electrolytic tin plate, i.e., black-plate electrolytically in the Tin Mill Products market from coated with tin; and tin free steel, i.e., black plate pub3767.pdf. electrolytically coated with chromium. Proposed the elimination of Dofasco as a Final Judgment, II.M.

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17683

acquisition of Arcelor. Mittal is ordered successful production of tin plate, both the terms agrees to in the proposed consent to use its best efforts to divest the Sparrow Point and Weirton fall far short decree, is in the public interest. Id. Dofasco Business as expeditiously as of the capabilities of Dofasco. An DaimlerChrysler is aware of the Division’s possible, Proposed Final Judgment, acquirer of either Sparrows or Weirton position that Tunney Act review requires only an examination of whether the relief IV.A, and only in the event that Mittal would not, without a substantial proposed satisfactorily remedies the is unable to accomplish the divestiture investment that would take time (and competition issues pleaded in the Complaint. of Dofasco is Mittal then required to still might not yield the desired results), In this case, the Complaint identified divest either the Sparrows Point or the be able to replace immediately the Tin competitive issues in the market for Eastern Weirton Business (the ‘‘Selected Mill Product competition lost by United States Tin Mill Products. However, Business’’), with the decision as to allowing Mittal to retain Arcelor and this settlement is worthy of reconsideration which of these two alternative by the Division for several reasons. Dofasco. Therefore, ThyssenKrupp will • businesses is to be divested resting with certainly not acquire Sparrows Point nor First, although both the Division and Mittal apparently believe that Dofasco could the United States. Weirton. The Competitive Impact Statement be divested, that turns out not to be true. The In contrast to this, ThyssenKrupp’s directors of Strategic Steel Stichting, the states that the divestiture of either acquisition of Dofasco will preserve a Dutch foundation holding Dofasco’s shares Dofasco or the Selected Business ‘‘is strong local tinplate competitor which (‘‘Dutch trust’’), have refused to dissolve the designed to enable whoever acquires will be able to continue to provide Dutch trust and relinquish the shares. such divested business to be ’’viable and quality Tin Mill products and preserve • Second, recent events demonstrate that active competitor in the Eastern United meaningful competition for tinplate the automotive issues resulting from the States Tin Mill Products market,’’ customers in the Eastern US. merger are far more important for the Competitive Impact Statement, at 2, and automobile industry than they first appeared. Accordingly, entry of a Proposed • goes on to assert that whether the Final Judgement that permits Mittal to Third, the alternative divestitures are not Dofasco Business or a Selected Business likely to preserve competition in either the divest either Sparrows Point or Weirton market alleged in the Complaint, Eastern is divested, ‘‘the preserved competitor rather than requiring the divestiture of United States tin Mill Products, or the North would have modern and efficient Dofasco will not adequately address the American Hot dipped Galvanized Steel facilities located close enough to competitive concerns alleged in the market. customers in the Eastern United States DOJ’s Complaint. DaimlerChrysler submits these comments to compete effectively.’’ Competitive in support of the Division’s preferred Dated: November 15, 2006. Impact Statement, at 11. Despite this remedy—the divestiture of Dofasco—and to assertion, it is ThysdenKrupp’s A. Paul Victor, explain the infirmities in the alternative Dewey Ballantine LLP, 1301 Avenue of the divestiture candidates. assessment that neither Sparrows Point Americas, New York, NY 10019, and nor Weirton has the ‘‘modern and The Arcelor-Mittal Merger Steven P. Bernstein, efficient’’ facilities necessary to compete James F. Lerner, A. Merger Chronology in the Tin Mill Products market in a Weil, Gotshal & Manges LLP, 767 Fifth In January 2006, Mittal Steel Company manner that adequately would replace Avenue, New York, NY 10153. the competition lost by Mittal’s N.V. (‘‘Mittal’’) announced its intention to Attorneys for Thyssen Krupp, A.G. launch a hostile tender offer to acquire acquisition of Arcelor, including Arcelor S.A. (‘‘Arcelor’’). In an attempt to Dofasco. Exhibit 3 preempt potential antitrust objections to the ThyssenKrupp received several Hogan & Hartson proposed combination in the United States, comments from their key US tinplate Mittal simultaneously announced that if it customers expressing their concerns Hogan & Hartson LLP, Columbia Square, 555 acquired Arcelor, it intended to sell Arcelor’s with the alternative divestiture, Thirteenth Street, NW, Washington, DC subsidiary, Dofasco Inc. (‘‘Dofasco’’), which stressing that divestiture of either of the 20004, +1.202.637.5600 Tel, +1.202.637.5910 Arcelor was in the process of acquiring at US Mittal tinplate facilities would not Fax, www.hhlaw.com. that time, to ThyssenKrupp, a German-based have the same effect in addressing their November 15, 2006 steel corporation. Arcelor initially resisted Mittal’s takeover attempt vigorously and, as Maribeth Petrizzi, Esquire, competitive concerns. These customers part of that resistance, transferred its interest indicated that the divestiture of Dofasco Chief, Litigation II Section, Antitrust in Dofasco to the Dutch trust as a defense to ThyssenKrupp is highly preferred to Division, U.S. Department of Justice, measure against Mittal’s tender offer. After the divestiture of either of the Mittal 1401 H Street, NW., Suite 3000, the Dofasco transfer, Arcelor’s Board agreed facilities (i.e., Sparrows Point or Washington, DC 20530. to recommend Mittal’s improved 433 billion Weirton) and is the most-competitive Re: DaimlerChrysler Tunney Act Comments offer to its shareholders on June 25, 2006, solution. Dear Maribeth: DaimlerChrysler submits and the combination of Arcelor and Mittal is In line with its customers, it is that the United States Department of Justice now under way. See Paul Glader, Mittal’s ThyssenKrupp’s firm conviction that antitrust Division (the ‘‘Division’’ or Founder Asserts Control as Steelmaker, Wall only direct access to an integrated ‘‘Antitrust Division’’) should renegotiate its St. J., (Nov. 7, 2006). On November 13, 2006, proposed consent decree with Arcelor Mittal Arcelor announced that the directors of the network ensuring strong R&D support, to ensure that Dofasco is either divested as Dutch trust had decided not to dissolve the and close coordination across a full- planned or operated separately until it can be Dutch trust and this action has blocked fledged and reliable steel production sold. The alternative divestitures in the Arcelor Mittal’s divestiture of Dofasco—the chain (including state-of-the art proposed consent decree do not adequately Division’s preferred remedy. See Press metallurgy—blast furnaces, melt shops, address the competitive problems created by Release, Arcelor Mittal Press Release on continuous casting—hot and cold Arcelor-Mittal merger. Dofasco (Nov. 13, 2006) available at: http:// www.arcelormittal.com/index.php?lang=en& rolling, annealing and coating) will Introduction enable a tinplate producer to compete page=49&tbPress=here&tb0=10. The Tunney Act requires that a proposed effectively and to meet the increasing consent decree negotiated between the B. Complaint and Proposed Consent Decree demands of its customers in regard to Antitrust Division and the parties be In May 2006, the Division negotiated a Tin Mill Products with thinner gauges published in the Federal Register, with a 60 ‘‘pocket consent decree’’ with Mittal in and higher surface quality. day period for public comment. 15 U.S.C. 16. which Mittal agreed to divest Dofasco. At In terms of virtually all of the process The Act also requires a federal court to that time, it appears that neither the Division steps and critical success factors for the determine if the entry of final judgment on nor Mittal fully appreciated the obstacles to

VerDate Aug<31>2005 22:18 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17684 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

the Dofasco divestiture created by the Dutch American automobile manufacturers. If Tin sufficiently high quality, automotive-grade trust. On August 1, 2006, the Antitrust Mill Products were the only problematic corrosion resistant steel can be used by the Division filed a Complaint, proposed consent product market, DaimlerChrysler and the rest automobile industry. The most cost-efficient decree, and Competitive Impact Statement of the automobile industry would have little material to provide this protection is steel with the United States District Court for the interest in Mittal’s and the Division’s choice that is coated with a rust-inhibiting layer, District of Columbia, conditionally approving of remedies. However, DaimlerChrysler and usually composed primarily of zinc, which is Mittal’s proposed acquisition of Arcelor. other automobile manufacturers are keenly referred to as Galvanized Steel. 1. Alleged Anticompetitive Effects on Tin interested in which facility is divested DaimlerChrysler utilizes up to a ton of Mill Products because the market for Hot Dipped Galvanized Steel per vehicle. Galvanized Steel would be even more Two methods of galvanization are used to In the Complaint and Competitive Impact adversely affected by Mittal’s acquisition of provide protection from corrosion— Statement, the Division alleged that Mittal’s Arcelor. DaimlerChrysler utilizes up to a ton Electroplate Galvanizing and Hot Dipped acquisition of Arcelor would substantially of Hot Dipped Galvanized Steel per vehicle Galvanizing. In Electroplate Galvanizing, lessen competition in the market for Tin Mill produced. steel is passed through a zinc-rich bath at Products in the Eastern United States in DaimlerChrysler fully supports the ambient air temperature. An electric current violation of Section 7 of the Clayton Act. The Division’s preferred divestiture of Dofasco, is passed through the steel, which attracts Division alleged that the relevant geographic but submits that the alternative divestitures particles of zinc to the steel’s surface thereby market for Tin Mill Products is the Eastern would not preserve necessary competition. plating it. In Hot Dipped Galvanizing, heated United States because of a number of factors, The divestiture of Dofasco would ensure that steel sheet is passed through a bath of molten including shipping costs and anti-dumping Dofasco remains an independent competitive zinc resulting in a thin coating of an duties on Tin Mill Products from Japan that restraint on the increasingly consolidated Hot essentially pure zinc layer on the steel. The effectively close the United States market to Dipped Galvanized Steel market. Further, post-coating application of heat to the zinc competition from Japan. Applying this this divestiture would allow for continued coated steel promotes a reaction between the geographic market definition to Tin Mill regional competition in Canada. iron in the steel and the zinc in the coating, Products, the Division determined that the creating the zinc-iron compound known as D. Alternative Divestiture Remedies Should market for Tin Mill Products in the Eastern ‘‘Galvanneal.’’ In contrast, the iron and zinc Be Rejected United States is highly concentrated and is do not react in electroplate galvanization and dominated by Mittal and ‘‘another integrated Divestiture of either Sparrows Point or thus do not produce the desirable properties steelmaker’’ (United States Steel). According Weirton likely will not preserve competition characteristic of Galvanneal. to the Complaint, Mittal accounted for 31 for Eastern United States Tin Mill Products 1. Hot Dipped vs. Electrogalvanizing percent of the Tin Mill product tonnage sold and certainly will not prevent the merger’s in this geographic market in 2005, and anticompetitive effects in the Hot Dipped Automotive-grade Hot Dipped Galvanized United States Steel accounted for more than Galvanized Steel market. Neither Sparrows Steel constitutes a separate product market 44 percent. The Complaint alleges that Point nor Weirton is attractive to potential from galvanized steel generally because Mittal’s acquisition of a combined Arcelor/ buyers, nor do they have the ability to Electroplate Galvanized Steel has more Dofasco would significantly increase compete in either market as an independent limited uses and applications, especially in concentration in the already concentrated company. Instead, each is a candidate for the automotive industry. Hot Dipped market for Eastern United States Tin Mill closure, especially during economic Galvanizing is less costly than Products. The Complaint also alleges that the downturns. Weirton’s steel making capability Electrogalvanizing and requires substantially remaining competitors lack the ability and has already been shut down, making Weirton less energy to produce. Hot Dipped incentive to defeat anticompetitive price only a rolling mill and coating facility that Galvanizing also impacts desirable high increases and that de novo or foreign entry is dependent upon a source of hot bands, strength to the steel without the addition of is neither feasible nor likely. which presently are in short supply. costly alloying elements. Even if 2. The Proposed Remedies Sparrows Point still has the ability to make Electrogalvanizing proved to be adequate for steel, but it has never demonstrated that it is automotive needs, the differences in The proposed Final Judgment (‘‘the viable as a stand-alone facility; it has always stamping properties for automotive uses proposed consent decree’’) aims to preserve been part of a larger, multi-facility would require major investments in competition in the Eastern United States Tin corporation. Dofasco, unlike either of the stamping, painting and other processes by Mill Products market by requiring Arcelor alternative divestiture candidates, was a automobile manufacturers that sought to Mittal to use its best efforts to sell its Dofasco profitable stand-alone company as late as switch from one process to another. As a mill in Canada to ThyssenKrupp or another January 2006. result, Hot Dipped Galvanized Steel and approved buyer. In the event that Mittal is Electroplate Galvanized Steel cannot easily unable to dissolve the Dutch trust—which North American Hot Dipped Galvanized be substituted by automobile manufacturers. now appears to be the case—Mittal may sell Steel Automotive uses also require much higher either Mittal’s Sparrows Point or Weirton DaimlerChrysler recognizes that the grade of steels, which Hot Dipped facilities (collectively ‘‘alternative Division’s Complaint and proposed consent Galvanization can best supply. For example, divestitures’’). While the proposed consent decree focus on the anticompetitive impact of automotive uses require a smooth finish and decree clearly reveals the Division’s the merger on the Eastern United States Tin very precise alloy chemistries. Hot Dipped preference that Mittal divest Dofasco, it states Mill Products market and not the North Galvanneal has better cosmetic corrosion that divestiture of either Weirton or Sparrows American Hot Dipped Galvanized Steel performance than Electrogalvanized Steel Point is sufficient to preserve competition. market. However, this view should be which typically has more surface defects. DaimlerChrysler agrees that the divestiture of reconsidered. Automotive use also requires very tight Dofasco solves the competitive problems width and thickness tolerances that Hot A. Product Market created by the Arcelor-Mittal merger, but Dipped Galvanization can better provide. As disagrees with the Division’s view that either The automotive industry requires various a result, production yields for automotive- of the alternative divestitures would be steel alloys for frame, shell, and various parts grade Galvanized Steel are much lower than sufficient to preserve competition. that make up a complete automobile. Because for other end uses. of their exposure to the elements, C. DaimlerChrysler’s Interest—Hot Dipped automobiles require steel that resists 2. Substitutes for Galvanized Steel Galvanized Steel corrosion. But, automobile manufacturers As explained above, steel can be DaimlerChrysler is an automobile cannot utilize all grades of corrosion resistant galvanized two ways—by the hot dipped or manufacturer that sources its steel from a steel. Automobile-grade exposed corrosion electroplating processes. Automotive number of North American steel producers resistant steel must also be of high strength companies have explored other materials, but including Mittal and Dofasco. and high enough quality to apply paint. none is likely to replace galvanized/ DaimlerChrysler does not, however, utilize While corrosion resistant steel of lower galvannealed steel in the foreseeable future. Tin Mill Products in its production of grades can be used in construction or Like electrogalvanized steel, available automobiles, nor do the other North products like home appliances, only alternatives are not adequate for automotive

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices 17685

uses. Non-coated steel is much less Steel.2 If Dofasco were controlled by Mittal, $500 per ton in 2000 to nearly $900 per ton corrosion-resistant and fails to meet there would be no incentive for it to do so. earlier this year. DaimlerChrysler expects minimum automotive standards for quality. significant price increases for contracts C. Market Concentration Painted steels similarly fail to meet such starting in 2007. Over this same period, the standards. Stainless steel, while able to meet Today, the market for North American Hot number of industry participants dwindled. quality standards, is far too costly to serve as Dipped Galvanized Steel is highly Thus, industrial production has decreased a viable alternative to Hot Dipped Galvanized concentrated with the top two firms while prices increased to a new, higher band. Steel. As a result, Hot Dipped Galvanized representing approximately 73% of capacity Comments to industry analysts and press Steel is a separate relevant product market. and the top three firms representing nearly by Mittal leave little doubt that the goal and 90%. Arcelor Mittal alone represents nearly likely result of consolidation is the continued B. The Relevant Geographic Market half of North American capacity for Hot rise in prices to consumers. The Automotive For DaimlerChrysler and other North Dipped Galvanized Steel with its acquisition News observed in October of this year that American automobile manufacturers, the of Arcelor (including Dofasco’s Canadian ‘‘Mittal has taken steps to stave off price cuts only practical Hot Dipped Galvanized Steel facilities). Unless Dofasco is divested, the caused by a recent run-up in steel suppliers are in North America. post-merger Herfindahl-Hirschman Index for inventories.’’ It added, ‘‘Mittal is prepared. the North American Hot Dipped Galvanized 1. Logistical Limitations The company has told analysts that it will Steel market will rise from a premerger total prop up prices by reducing production at one Reliance on overseas imported steel is not of 2171 to more than 3200—well above the plant during that period.’’ A Ton of Trouble, economically feasible because of the Guidelines’ threshold of 1800 for a highly Automotive News (Oct. 2, 2006). ‘‘Mr. Mittal logistical obstacles presented by the product concentrated market. The change in also hopes that a new, larger group may be itself. As Susan DeSandre, Director of Body concentration resulting from the merger able to set a lead for the rest of the industry— and Chassis Purchasing, North America for would be over 1000 points—again well above sending signals about when to moderate Ford Motor Company characterized it in the Guidelines’ threshold for concern. proceedings before the United States production, and so smooth the peaks and 1. Concentration Through Consolidation International Trade Commission, ‘‘it’s heavy, troughs in demand that have bedeviled the it’s bulky, and it rusts on water.’’1 Only five years ago, DaimlerChrysler had a steel business.’’ Steel: Age of Giants, The Automobile producers require continuous choice of nine suppliers to choose from to Economist (Feb. 2, 2006) (emphasis added). supply to keep the production lines running meet its demand for Hot Dipped Galvanized As a result, there is reason for concern and it is not economically feasible to Steel. In 2001, Mittal represented a mere 8% about the effect of the merger on output and transport steel by air to accommodate of North American Hot Dipped Galvanized prices for North American Hot Dipped unforeseen variations in demand. Steel capacity. LTV’s bankruptcy in 2001 and Galvanized Steel. These effects would be subsequent combination with Bethlehem reduced by divestiture of Dofasco—and the 2. Tariffs on Imported Steel Steel into International Steel Group in 2002 Division should insist on its original Currently, Australia, Canada, France, ushered in a wave of consolidation that preferred remedy. Germany, Japan, and Korea are subject to continues today. In 2003, US Steel acquired antidumping and/or countervailing duties on National Steel, leaving only seven suppliers Neither Alternative Divestiture is Viable corrosion resistant flat steel products, of North American Hot Dipped Galvanized Although the unique circumstances including Hot Dipped Galvanized Steel. On Steel. Mittal increased its share from 8% to existing here warrant reconsideration of this October 17, 2006, the International Trade 30% with its acquisition of ISG in 2005. transaction’s effects on the North American Commission heard testimony on whether it Mittal achieved market leadership with its Hot Dipped Galvanized Steel market, the should renew tariffs on the foreign supply of acquisition of Arcelor and its Dofasco alternative divestiture remedies also fail to Corrosion Resistant Steel, which are facilities in Canada, and DaimlerChrysler remedy the Division’s legitimate concerns currently being reviewed. The six largest estimates that Arcelor Mittal now has 47% of regarding the transaction’s effect on the automobile producers in North America have North American Hot Dipped Galvanized Eastern United States Tin Mill Products advocated removal of the duties on Corrosion Steel capacity. market. Resistant Steel because the domestic steel Unprintable graph appears here, it purports industry is healthy and would not be to show 2006 North America hot dip auto A. Alternative Divestitures Will Fail To materially injured by their removal. In capacity by company. A copy of the graph is Preserve Competition in Either Tin Mill or addition, automobile producers have argued available for inspection at the Department of Hot-Dipped Galvanized Steel Markets that non-U.S. sources of corrosion-resistant Justice Antitrust Division, 325 Seventh Weirton has struggled since the 1970s and steel are not readily available anyway Street, NW., Room 200, Washington, DC has nearly closed several times. In 1982, because these products are in heavy demand 20530. National Steel announced that it would not in foreign markets. 2. Effect of Consolidation on Prices make the capital improvements needed for Although Dofasco is not a U.S. producer, Weirton to remain competitive. In efforts to an independent Dofasco would indirectly Although it is too early to detect the effect save the company, Weirton was purchased by constrain anticompetitive price increases in that Mittal’s acquisition of Arcelor and its employees in 1984. Public offerings in the United States. It would be an alternate Dofasco will have on prices, rising prices 1989 and 1994 raised funds needed to supply to DaimlerChrysler’s Canadian over the last five years, coupled with modernize the plant. However, the steel operations and thus reduce the company’s comments to industry analysts and the press import crisis that began in 1998 dependence on the few remaining United by Mittal, indicate that higher prices are to ‘‘significantly reduced the company’s States suppliers of Hot Dipped Galvanized come. Indeed, Mr. Lakshmi Mittal has noted production output, harmed its ability to Steel. If antidumping duties are lifted on that ‘‘[c]onsolidation of the industry has control pricing and severely hampered its Canadian Corrosion Resistant Steel, as accelerated * * * [l]eading to a new market financial performance.’’ See Weirton Steel DaimlerChrysler believes is appropriate, a oriented behavior * * * [a]nd a new Corporation: History, available at: http:// divested Dofasco has the capacity to compete fundamental price dynamic.’’ See ‘‘New Steel www.weirton.com/company/about/hist.html. Paradigm and Future Challenges,’’ directly with the three remaining North Weirton lost nearly $800 million from 1998 Presentation by Lakshmi Mittal to Merrill American Hot Dipped Galvanized Steel until it declared Chapter 11 bankruptcy in Lynch Conference (May 11, 2006). producers, US Steel, Arcelor Mittal, and AK 2003. ISG purchased Weirton in 2004, and Over the past six years, the average price ISG was acquired by Mittal in 2005. In for Galvanized Steel has risen from about 1 Certain Carbon Steel Products from Australia, November 2005, Mittal shut down Weirton’s Belgium, Brazil, Canada, Finland, France, Germany, steelmaking operations altogether and laid off 2 Japan, Korea, Mexico, Poland, Romania, Spain, A fourth supplier, Nucor Corp., is not a practical 800 employees. Sweden, Taiwan and the United Kingdom, USITC alternative supplier to the auto industry for exposed Today Weirton produces no steel and Inv. Nos. 701–TA–319, 320, 325–328, 348 and 350 automotive-grade corrosive resistant steel because (Second Review) and 731–TA–573, 574, 576, 578, its production method, which utilizes recycled instead relies on other Mittal facilities to 582–587, 612, and 614–618 (Second Review) scrap metal, produces steel that does not meet the supply the substrate it uses in its production Hearing Transcript at 426 (testimony of Ms. tolerances required by automobile makers for of tin plate. It is unlikely that Weirton will DeSandre) (Oct. 17, 2006). substrate. produce steel going forward. See Vicki

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES 17686 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Notices

Smith, Furnace Will Stay Idle at Weirton industry and is unlikely ever to be able to The Division, with its investigative Steel Mill, Courier-Journal (Louisville, Ky.) operate as a stand-alone entity. resources, has better access than (Dec. 2, 2005). In any event, Weirton will DaimlerChrysler does to the underlying facts almost certainly never play a role in B. Divestiture of Dofasco Is the Only Viable that support these comments. It has Option To Preserve Competition disciplining price increases in North prudently reserved the right to determine American Hot Dipped Galvanized Steel Unlike either Sparrows Point or Weirton, whether a divestiture of either Sparrows because it cannot produce that product. Its Dofasco has recently been a successful stand Point or Weirton would be feasible. The inability efficiently to produce the steel alone steel company and continues to thrive Division should revisit its view that substrate it needs for tin mill production, independently today (pursuant to the Hold divestiture of either Weirton or Sparrows coupled with relatively high transportation Separate Order). If not for the Dutch trust Point would be sufficient. and raw materials costs, do not bode well for issue, Dofasco could clearly be sold to its tin mill production prospects either. In ThyssenKrupp or a number of other potential Conclusion fact, Weirton is likely to be a victim of the suitors. Indeed, analysts agree that Dofasco is An independent Dofasco can discipline increased concentration in the North by far the most attractive of the three mills anticompetitive price increases for Tin Mill American Steel market rather than a and that Mittal has little incentive to divest Products. But even more important from disciplining force. Since Weirton does not it. ‘‘Right now time is on their side, and they DaimlerChrysler’s point of view, it can also produce Hot Dipped Galvanized Steel at all, are generating a lot of cash flow. * * * At act as a competitive constraint on it is totally unable to discipline any output the end of the day, if they can keep [Dofasco], anticompetitive output restrictions on the restrictions in that market. really the winners will be Arcelor Mittal, and supply of North American Hot Dipped Sparrows Point has also struggled. In the losers will be ThyssenKrupp,’’ says Alain Galvanized Steel. Thus, DaimlerChrysler October 2001, Bethlehem, which employed William, an analyst for Societe Generale. urges the Division to reconsider its about 3,400 workers at Sparrows Point, filed acceptance of one of the alternative for Chapter 11 bankruptcy. By May 2006, the Heather Thomas, Poison Pill Is Among the divestiture candidates and instead to insist plant employed only 2,500 employees and Reasons Mittal Steel Deal Remains a Multi- had changed hands three times in the past six Company Tangle, N.Y. Times (Nov. 3, 2006). on the divestiture of Dofasco. If the Dutch years. Despite cutting costs and the Sparrows Point and Weirton, on the other trust proves to be an immovable obstacle to introduction of new ‘‘efficiencies and hand, will be difficult to divest, and the sale of Dofasco, it could simply be spun innovations, Sparrows Point is one of Mittal’s incapable of operating as stand-alone off as a freestanding entity, to operate most expensive plants to run because of high businesses. ‘‘The problem is, who would independently, as it did as recently as energy costs and more environmental want to buy either of the two? Mittal will January 2006. If an adequate remedy requires regulations owing to its location on the have to decide which one to sell, but you renegotiation of the consent decree, we urge Chesapeake Bay.’’ Allison Connolly, Feeling can’t manufacture a customer,’’ said Charles the Division to take the steps that are Pressure for Profits, Balt. Sun, 1C (May 14, Bradford, an independent steel analyst for necessary to maintain competition in the 2006). ‘‘[W]orkers worry that Mittal will take Soleil Securities in New York. See Merger steel industry. away their incentives or force them to make Proviso Gives Hope to Weirton Steel, Sincerely, other concessions to keep the plant open.’’ Pittsburgh Tribune Rev. (Aug. 3, 2006). Thomas B. Leary. Id. ‘‘They also worry about layoffs if certain ‘‘Weirton and Sparrow’s Point are not good Janet L. McDavid. parts of the plant are idled, for example, if plants. Dofasco is * * *. Dofasco’s good cc: Allan M. Huss, Senior Counsel, Antitrust/ Mittal sends the tin work back to Weirton.’’ company and I’m not so sure that Mittal Regulatory Affairs, DaimlerChrysler Id. Today, Sparrows Point is used primarily wouldn’t rather have it than Weirton or Corporation. to supply other Mittal plants with substrate. Sparrow’s Point.’’ Romino Maurino, Mittal It is unlikely to produce Hot Dipped Steel Sets Deadline for Sale of Dofasco, Inc., [FR Doc. 07–1321 Filed 4–6–07; 8:45 am] Galvanized Steel for use by the automobile Winnipeg Free Press, (Sept. 28, 2006). BILLING CODE 4410–11–M

VerDate Aug<31>2005 21:50 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4703 E:\FR\FM\09APN2.SGM 09APN2 sroberts on PROD1PC70 with NOTICES Monday, April 9, 2007

Part III

Department of Homeland Security 6 CFR Part 27 Chemical Facility Anti-Terrorism Standards; Final Rule

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17688 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: 4. Relation of CVI to Other Categories of SECURITY Dennis Deziel, Chemical Security Protected Information and FOIA Regulatory Task Force, Department of 5. Sharing CVI with State and Local 6 CFR Part 27 Homeland Security, 703–235–5263. Officials, the Public, and Congress 6. Litigation [DHS–2006–0073] SUPPLEMENTARY INFORMATION: This 7. Protection of CVI interim final rule is organized as K. Preemption RIN 1601–AA41 follows: Section I explains the public L. Implementation of the Rule participation provisions and provides a M. Other Issues Chemical Facility Anti-Terrorism brief discussion of the statutory and 1. Whistleblower Protection Standards 2. Inherently Safer Technology regulatory authority and history; Section 3. Delegation of Responsibility II summarizes the changes from the AGENCY: Department Of Homeland 4. Interaction with Other Federal Rules and Advance Notice of Rulemaking and Security. Programs discusses the revised rule text; Section 5. Third-Party Actions ACTION: Interim final rule. III summarizes and responds to the 6. Judicial Review 7. Guidance and Technical Assistance SUMMARY: The Department of Homeland comments the Department received in response to the Advance Notice of 8. Miscellaneous Comments Security (DHS or Department) issues N. Regulatory Evaluation this interim final rule (IFR) pursuant to Rulemaking; and Section IV contains the regulatory analyses for this interim IV. Regulatory Analyses Section 550 of the Homeland Security A. Executive Order 12866: Regulatory Appropriations Act of 2007 (Section final rule. Planning and Review 550), which provided the Department Table of Contents B. Regulatory Flexibility Act with authority to promulgate ‘‘interim C. Executive Order 13132: Federalism I. Introduction and Background 1. Background final regulations’’ for the security of A. Public Participation certain chemical facilities in the United 2. Propriety of the Department’s View on B. Statutory and Regulatory Authority and Preemption States. History 3. No Field Preemption This rule establishes risk-based II. Interim Final Rule 4. Principles of Conflict Preemption performance standards for the security A. Summary of Changes From Advance D. Unfunded Mandates Reform Act of our Nation’s chemical facilities. It Notice of Rulemaking E. Paperwork Reduction Act requires covered chemical facilities to B. Rule Provisions F. NEPA prepare Security Vulnerability III. Discussion of Comments I. Introduction and Background Assessments (SVAs), which identify A. Applicability of the Rule 1. Definition of ‘‘Chemical Facility or facility security vulnerabilities, and to Facility’’ A. Public Participation develop and implement Site Security 2. Multiple Owners or Operators Interested persons are invited to Plans (SSPs), which include measures 3. Classifying Facilities Based on Hazard participate in this rulemaking by that satisfy the identified risk-based Class submitting written data, views, or performance standards. It also allows 4. Applicability to Specific Chemicals or arguments on Appendix A of this Quantities of Chemicals certain covered chemical facilities, in interim final rule. Comments that will specified circumstances, to submit 5. Applicability to Types of Facilities 6. Statutory Exemptions provide the most assistance to DHS in Alternate Security Programs (ASPs) in finalizing the Appendix will reference lieu of an SVA, SSP, or both. B. Determining Which Facilities Present a High-Level of Security Risk specific chemicals and Screening The rule contains associated 1. Use of the Top-Screen Approach Threshold Quantities on the list, explain provisions addressing inspections and 2. Assessment Methodologies the reason for any recommended audits, recordkeeping, and the 3. Risk-Based Tiers change, and include data, information, protection of information that C. Security Vulnerability Assessments and or authority that support such constitutes Chemical-terrorism Site Security Plans recommended change. 1. General Comments Vulnerability Information (CVI). Finally, Instructions: All submissions received the rule provides the Department with 2. Submitting a Site Security Plan 3. Content of Site Security Plans must include the agency name and authority to seek compliance through docket number for this rulemaking. All the issuance of Orders, including Orders 4. Approval of Site Security Plans 5. Timing comments received will be posted Assessing Civil Penalty and Orders for 6. Alternate Security Programs without change to http:// the Cessation of Operations. D. Risk-Based Performance Standards www.regulations.gov, including any EFFECTIVE DATES: This regulation is 1. General Approach To Performance personal information provided. effective June 8, 2007, except for Standards Comments that include trade secrets, Appendix A to part 27. A subsequent 2. Comments about Specific Performance confidential commercial or financial Standards final rule document will announce the information, Sensitive Security effective date of Appendix A to Part 27. 3. Variations in Performance Standards for Risk Tiers Information (SSI), or Protected Critical Comment related to the addition of 4. Adoption of MTSA Provisions Infrastructure Information (PCII) should Appendix A to part 27 only will be E. Background Checks not be submitted to the public accepted until May 9, 2007. F. Inspections and Audits regulatory docket. Please submit such ADDRESSES: You may submit comments, 1. Inspections comments separately from other identified by docket number 2006–0073, 2. Third-Party Auditors and Inspectors comments on the rule. Comments by one of the following methods: G. Recordkeeping containing trade secrets, confidential • Federal eRulemaking Portal: H. Orders commercial or financial information, I. Adjudications and Appeals http://www.regulations.gov. Follow the J. Information Protection: Chemical- Sensitive Security Information (SSI), or instructions for submitting comments. Protected Critical Infrastructure • terrorism Vulnerability Information (CVI) Mail: IP/CSCD/Dennis Deziel, Mail 1. General Information (PCII) should be Stop 8100, Department of Homeland 2. Disclosure of CVI appropriately marked as containing Security, Washington, DC 20528–8100. 3. Scope of CVI such information and submitted by mail

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17689

to the individual(s) listed in the FOR Explosives (ATF) regulates, through the Department provides further details FURTHER INFORMATION CONTACT section. licenses and permits, the purchase, below on a number of unresolved issues Docket: For access to the docket to possession, storage, and transportation presented in the Advance Notice. For read background documents or of explosives. example, the Department provides comments received, go to http:// With the authority under Section 550, further detail on the issues surrounding www.regulations.gov. Submitted the Department can now fill a background checks for those with access comments by mail may also be significant security gap in the country’s to high-risk facilities, and the inspected. To inspect comments, please anti-terrorism efforts. Section 550 Department describes its approach on call Dennis Deziel, 703–235–5263, to specifies that the regulations ‘‘shall facilities possessing ammonium nitrate. arrange for an appointment. apply to chemical facilities that, in the On several important issues, the Department has reconsidered and B. Statutory Regulatory Authority and discretion of the Secretary, present high modified the position it proposed in the History levels of security risk.’’ The statute requires that the regulations establish Advance Notice. For example, in On October 4, 2006, the President risk-based performance standards; response to comments, the Department signed the Department of Homeland requires Security Vulnerability has restructured its provisions Security Appropriations Act of 2007 Assessments and Site Security Plans; concerning objections, consultations, (the Act), which provides the allows Alternative Security Programs; adjudications, and appeals. As Department of Homeland Security with mandates audits and inspections to discussed below, the Department’s aim the authority to regulate the security of determine compliance with the is to provide flexibility and assistance high-risk chemical facilities. See Pub. L. regulations; provides for civil penalties for facilities seeking to comply with the 109–295, sec. 550. Section 550 requires for violation of an order issued under regulatory standards. The Department the Secretary of Homeland Security to the statute; and allows the Secretary to has decided, however, to incorporate a promulgate interim final regulations order a facility to cease operations if the role for a neutral adjudicator where ‘‘establishing risk-based performance facility is not in compliance with the unresolved differences present standards for security of chemical requirements. The statute also gives the themselves and result in significant facilities’’ by April 4, 2007. Id. Although Department the authority to protect fines or other penalties. In addition, the interim final regulations are usually from inappropriate public disclosure Department has modified a number of issued without prior notice and any information developed pursuant to scheduling and timing requirements in comment (and the Act requires neither), Section 550, ‘‘including vulnerability response to comments, and the the Department issued an Advance assessments, site security plans, and Department further explains its Notice of Rulemaking (Advance Notice) other security related information, approach on preemption of state and seeking comment on the significant records, and documents.’’ local law after considering the issues and regulatory text. See generally As discussed in the Advance Notice, numerous comments on that subject. 71 FR 78276 (Dec. 28, 2006). by directing the Secretary to issue Although the Department continues to As discussed more fully in the ‘‘interim final regulations,’’ Congress view as important the opportunity for Advance Notice, before the enactment of authorized the Secretary to proceed facilities to submit Alternative Security Section 550, the Federal government did without the traditional notice-and- Programs, the Department modified the not have authority to regulate the comment required by the circumstances in which it will accept security of most chemical facilities. The Administrative Procedure Act. See 71 Alternative Security Programs. Department has, however, worked Finally, the Department will consider closely with industry leaders in pursuit FR 78276, 78277. The Department, however, saw great benefit in soliciting the issues surrounding the use of fees in of voluntary enhancement of security at this regulatory program. The these facilities and provided both comments on as much of the program as was practicable in the short timeframe Department is contemplating the technical assistance and grant funding assessment of different fees, including for security. In addition, through the permitted under the statute. Accordingly, the Department filing fees, fees for inspections and Coast Guard’s Maritime Security audits, and fees for the screening of voluntarily sought comment on a range regulations, the Department has individuals against the Terrorist of regulatory and implementation issues addressed security at certain maritime- Screening Database. The Department and responds to the comments below. related chemical facilities. See 33 CFR has not provided for fees in this interim Part 105. Recently, the Departments of II. Interim Final Rule final rule, but may, in the future, Homeland Security and Transportation propose and seek comment on the A. Summary of Changes From Advance also proposed security regulations for issues surrounding fees for this Notice of Rulemaking the rail transportation of hazardous regulatory program. chemicals. See 71 FR 76834, 71 FR In this interim final rule, the 76851 (Dec. 21, 2006). Other Federal Department has not changed the B. Rule Provisions programs have addressed chemical general, risk-based approach it proposed This section summarizes the facility safety, but not security: the in the December 28, 2006, Advance regulatory text changes that the Environmental Protection Agency (EPA) Notice. See 71 FR 78276. As discussed Department has made to this interim regulates chemical process safety in detail below, the Department plans to final rule. In addition to the summary through its Risk Management Plan implement the regulation in phases, contained in this section, we have, in (RMP) program; the Department of starting to work aggressively with many cases, provided a more extensive Labor’s Occupational Safety and Health chemical facilities presenting the very discussion of the change, and the reason Administration (OSHA) regulates highest security risks first. The for the change, in the response to workplace safety and health at chemical Department adopts a risk-based tiering comments below. See § III ‘‘Discussion facilities; the Department of Commerce structure in its regulatory approach, so of Comments.’’ Finally, to the extent oversees compliance with the Chemical that the Department’s scrutiny of that the Department has made technical Weapons Convention; and the facilities under this regulation increases corrections or corrected typographical Department of Justice’s Bureau of as the level of risk increases. Even errors, we do not specifically discuss Alcohol, Tobacco, Firearms, and though this approach remains the same, them.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17690 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Subpart A be available only to the extent that proposed § 27.200(a). Paragraph (b)(1) Section 27.100 Purpose resources permit. provides that the Assistant Secretary In § 27.120(c), the Department has may seek the information listed in The Department has added a Purpose provided specific details as to how a paragraph (a) by contacting chemical section to the rule. It states the facility requests the assistance of the facilities individually or by publishing a Department’s purpose and intent in Coordinating Official. In the second notice in the Federal Register. It also issuing this rule and enforcing this sentence of § 27.120(c), the Department provides that the Assistant Secretary regulatory program. provides that requests for consultation may instruct facilities to complete and or technical guidance do not serve to submit a Top-Screen through a secure Section 27.105 Definitions toll any of the applicable timelines set Department Web site or through any For purposes of clarity, DHS has forth in this part. Accordingly, other means approved by the Assistant added several definitions, including regardless of whether or when a facility Secretary. ‘‘Chemical Security Assessment Tool,’’ submits a request for consultation or Paragraph (b)(2) is a new provision. It ‘‘Chemical-terrorism Vulnerability technical guidance, the Department will provides that a facility must complete Information,’’ ‘‘Deputy Secretary,’’ require the facility to comply with the and submit a Top-Screen in accordance ‘‘Director of the Chemical Security regulatory requirements, such as with the schedule provided in § 27.210 Division’’ and ‘‘Screening Threshold completing the Top-Screen, identifying if it possesses any of the chemicals Quantity.’’ The Department has also vulnerabilities in the Security listed in Appendix A: ‘‘DHS Chemicals revised a few definitions, including Vulnerability Assessment, and of Interest’’ at the corresponding ‘‘Assistant Secretary’’ and ‘‘Under developing and implementing a Site quantities. For a further discussion of Secretary.’’ The Department revised Security Plan. Appendix A, see the discussion of ‘‘Under Secretary’’ as a result of The Department has added a new Appendix A further below in the Rule organizational changes in the provision in § 27.120(d). This provision Provisions section. The purpose of this Department following the Post-Katrina provides that a covered facility may provision is to give facilities direction as Emergency Reform Act, which the request a consultation with the to whether or not they must complete President signed on October 4, 2006. Coordinating Official if it modifies its and submit a Top-Screen. See Public Law 109–295, Title VI. In facility, processes, or the types or As noted in the discussion of several places, the Department indicated quantities of materials that it possesses, Appendix A, the presence or amount of that the named official, or his designee, and believes such changes may impact a particular chemical is not an indicator has the specified responsibility under the covered facility’s obligations under of a facility’s coverage under this rule. the regulation. The Department also this part. The Department added this The presence or amount of a chemical in the Appendix is merely a baseline revised the definition of ‘‘Alternate provision in response to commenters threshold requiring a facility to Security Program,’’ to provide concerned about a facility’s ability to complete and submit a Top-Screen. consistency with changes the ‘‘exit’’ the regulatory program. The (Consistent with § 27.200(b)(1), DHS Department has since made to § 27.235, Department recognizes that facilities will retain the ability to notify facilities, the Alternate Security Programs section. that reduce risk to levels below those through direct notification or Federal The Department expanded upon the levels that the Department deems as that Register notice, that they need to definition of ‘‘tier,’’ adding that, for characterized for Tier 4 facilities (i.e., complete and submit a Top-Screen.) The purposes of this part, there are four risk- the lowest risk facilities of the ‘‘high information that the Department will based tiers. risk’’ facilities) or that eliminate certain obtain through the Top-Screen process risks altogether may no longer need to Finally, the Department made is only one of several factors that the be covered by this regulation. This clarifying changes to ‘‘Chemical Department will consider in provision allows the covered facility to Facility,’’ ‘‘Covered Chemical Facility,’’ determining whether a facility is ‘‘high- request the initiation of the screening and ‘‘Owner.’’ With respect to the risk’’ and thus covered by this rule. definition of ‘‘Chemical Facility,’’ the process (which determines whether or Paragraph (b)(3) addresses the Department removed the circular nature not the facility is high-risk and therefore requirements for individuals who of the definition in the Advance Notice whether the facility is or is not included submit information to the Department (i.e., a chemical facility shall mean any in this regulatory program) prior to the through the CSAT system, which facility) (emphasis added) and now facility’s next scheduled CSAT Top- includes the Top-Screen process. provides that a chemical facility ‘‘shall Screen submission pursuant to § 27.210. Paragraph (b)(3) provides that, where mean any establishment that possesses Through this consultation process, the the Department requests that a facility or plans to possess * * *.’’ facility may initiate discussions with complete and submit a Top-Screen, the the Department and ultimately Section 27.120 Designation of a facility must designate a person to be accelerate the process for determining responsible for the submission of coordinating official; Consultations and whether it can ‘‘exit’’ the regulatory technical assistance information through the CSAT system. program. (The CSAT system is comprised of three The language in revised § 27.120(a) Subpart B sequential parts: the Top-Screen, the makes clear that the Assistant Secretary SVA, and the SSP). The Department will designate a Coordinating Official Section 27.200 Information regarding provides that any such submitter must responsible for ensuring the uniform, security risk for a chemical facility be an officer of the corporation or other impartial, and fair implementation of The Department has added several person designated by an officer of the these regulations. The language in new provisions to this section. The corporation, and must be domiciled in revised § 27.120(b) indicates that the Department has revised paragraph (b), the United States. The Department had Coordinating Official and his staff shall by incorporating language from contemplated such requirements in provide guidance to facilities, and while proposed § 27.200(a) of the Advance Appendix A to the Advance Notice and the Coordinating Official and his staff Notice and by also adding new now finalizes them here. will be available for consultation and to provisions. The two sentences in Consistent with the explanation in provide technical assistance, they will paragraph (b)(1) come from the end of Appendix A to the Advance Notice, the

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17691

Department notes that a facility may covered facility may request a SSP and that the Department would choose to have another individual, in consultation if it modifies its facility, notify the facility within 60 days of addition to the above-discussed processes, or the types or quantities of whether the Department disapproved ‘‘submitter,’’ involved in the submission materials that it possesses and believes the revised SVA or SSP. The of information through the Top-Screen. such changes may impact the covered Department has re-located a new but That other individual is a ‘‘provider.’’ A facility’s obligations under this part. In similar requirement in § 27.210(d). The provider would be a qualified addition, §§ 27.240(b) and 27.245(b) regulation now provides that if a individual who is familiar with the provide that a facility shall enter further covered facility makes material facility in question and who completes consultations following Departmental modifications to its operations or site, the information in the CSAT system. written notification that a Security the covered facility must complete and The provider, however, would not Vulnerability Assessment or Site submit a revised Top-Screen to the formally submit information to the Security Plan is unsatisfactory. Given Department within 60 days of Department. The individual responsible that the rule already provides completion of the material modification. for sending information to the consultation opportunities, coupled In accordance with the resubmission Department through the CSAT system with the fact that the Department has requirements in § 27.210(b)(2) and (3), (whether Top-Screen, SVA, or SSP) is greatly modified its adjudication and the Department will notify the covered always the submitter. And as indicated appeal provisions, the Department facility as to whether the covered in paragraph (b)(3), the submitter is also believes it is unnecessary to retain these facility must submit a revised Security responsible for attesting to the accuracy objections provisions and has thus Vulnerability Assessment, Site Security of the submitted information. removed them from the interim final Plan, or both. As a result of this new Paragraphs (c)(1) and (2) address rule. paragraph (d), the Department removed facilities that the Department deems as the provisions that appeared in Section 27.210 Submissions Schedule ‘‘presumptively high risk.’’ Both §§ 27.215(c)(3) and 27.225(b)(3) of the paragraphs were in the Advance Notice, In § 27.210, the Department clarifies Advance Notice. though they were located in proposed the submission schedule for the Top- §§ 27.200(b) and (c). Screen, Security Vulnerability Section 27.215 Security Vulnerability Assessment, and Site Security Plan. In Assessments and Section 27.225 Site Section 27.205 Determination that a § 27.210(a) of the Advance Notice, the Security Plans chemical facility ‘‘presents a high level Department included a sentence The Department has revised several of of security risk.’’ indicating that the presumptive time the corresponding provisions in both The Advance Notice, at the end of frames were 60 days for the Security § 27.215 and § 27.225. First, the § 27.205(a), contained a provision about Vulnerability Assessment and 120 days Department has revised the Departmental notification to facilities of for the Site Security Plan. In this interim corresponding provisions regarding their preliminary placement in a risk- final rule, the Department has added methodologies. Specifically, the based tier. The Department has moved presumptive timeframes for the Department has revised the language in that language to § 27.220 ‘‘Tiering,’’ so submission of the Top-Screen and § 27.215(b) and added a new paragraph that it is located with the related tiering revised the presumptive timeframes for (b) in § 27.225. In both places, the provisions. SVAs and SSPs. See § 27.210(a) and (b). Department explains that, except as In addition, the Department has The presumptive timeframes for initial provided in § 27.235, a covered facility removed proposed § 27.205(c), along submissions are 60 calendar days for the must submit either the SVA/SSP with §§ 27.220(b), and 27.240(c), all of Top-Screen, 90 calendar days for the through the CSAT process or any other which had contained a mechanism for SVA, and 120 calendar days for the SSP. methodology or process identified by objections. In the Advance Notice, the The presumptive timeframes for the Assistant Secretary. Department had provided facilities with resubmission vary depending on a By this change, the Department is the opportunity to object to the facility’s tier. As a general matter, the making more explicit its intention to use following three Departmental actions: Department will require facilities in the CSAT process at this time. The determination that a facility ‘‘presents a Tiers 1 and 2 to update their Top- CSAT process includes completion of high level of risk,’’ placement in a high- Screen, SVA, and SSP every two years, the Top-Screen process and, depending risk tier, and disapproval of a facility’s and facilities in Tiers 3 and 4 to update on the results of the Top-Screen process, Site Security Plan. The intention behind their Top-Screen, SVA, and SSP every may also include the development of a those provisions was to provide three years. Security Vulnerability Assessment and facilities with an informal opportunity In addition, the Department added a the development of a Site Security Plan. to consult with the Department. The new paragraph (c), which addresses the Thus, for facilities that are determined Department believes that the rule Department’s authority to modify to be high-risk, the CSAT process will (including existing provisions from the schedules as necessary. The Department consist of three sequential parts (i.e., the Advance Notice as well as new removed § 27.210(c) as it appeared in Top-Screen, SVA, and SSP). The provisions in this interim final rule) the Advance Notice, because the Department also notes that facilities will provides facilities with several provision was unnecessary in light of have to obtain access to the CSAT opportunities for consultation when the new provisions in § 27.120(b) and system by submitting a user registration they disagree with an initial decision on (c), ‘‘Designation of a coordinating request. Section 27.200(b)(1) contains these matters. Specifically, revised official; consultations and technical the requirements for individuals (i.e., § 27.120(b) provides that the assistance.’’ submitters) who will be submitting Coordinating Official and his staff shall Finally, the Department added a new information through the CSAT system be available to consult and to provide paragraph (d), which addresses material and attesting to the accuracy of that technical assistance to a facility owner modifications. In §§ 27.215(c)(3) and information. or operator, revised § 27.120(c) provides 27.225(b)(3) of the Advance Notice, the Second, in paragraph (c) of both the details for how a facility should Department provided that a covered sections, the Department provides that a initiate consultations or assistance, and facility had to notify the Department of covered facility must submit an SVA or revised § 27.120(d) provides that a material modifications to the SVA or SSP to the Department in accordance

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17692 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

with the schedule provided in § 27.210. decision. This contrasts with the the point at which the attack becomes This captures the requirement that had Advance Notice, which had merely successful.’’ This revised language more been located in proposed § 27.240(a)(1) indicated that the Department may adequately captures the concept that the of the Advance Notice. notify a facility of the Department’s Department had intended in the Third, in paragraph (d) of both preliminary tiering decision. language in paragraph (a)(4) of the sections, the Department revised the Section 27.220(b) is not a new Advance Notice and is more complete. update/revision provisions for subsection; rather, it contains the Section 27.230(a)(5) now requires submitting SVAs and SSPs. In the language that was previously located in facilities to secure and monitor the Advance Notice, the Department § 27.220(a). Note that the Department storage of hazardous materials, in indicated that covered facilities must has removed paragraph (b) as proposed addition to the shipping and receipt of update or revise their SVAs or SSPs in the Advance Notice. Paragraph (b) hazardous materials. Section based on a schedule set by the Assistant had contained an objections provision. 27.230(a)(8) now contains a broader Secretary. Because the Department has For a discussion of the Department’s description of critical process systems. established a submission schedule in decision to remove the objections In the Advance Notice, the Department § 27.210, the Department now includes provisions from this rule (in had used the acronym ‘‘SCADA’’ cross-references in § 27.215(d)(1) and §§ 27.205(c), 27.220(b), and 27.240(c)), (Supervisory Control and Data § 27.225(d)(2) to that schedule. As a see the summary under § 27.205(c). Acquisition) to refer to instrumented related matter, in § 27.215(d), the Section 27.220(c) is a new subsection. control systems in general. In this Department moved the general The Department is reiterating, in part, interim final rule, the Department has submissions schedule requirement to what it provides in the definitions provided more descriptive terminology § 27.215(d)(1), thereby re-locating the section. The Department will place to refer to critical process systems. For provision formerly in § 27.215(d)(1) to facilities in one of four risk-based tiers. a further discussion of SCADA, see the § 27.215(d)(2). Tiers will range from Tier 1, which Department responses to ‘‘Comments on Fourth, the Department has removed contains the highest-risk covered Specific Performance Standards.’’ the language about material facilities, to Tier 4, which contains the Section 27.230(a)(12) contains an modifications from proposed lowest-risk covered facilities. Finally, expanded standard for background § 27.215(c)(3) and § 27.225(b)(3). As the Department separated the sentence checks. For a further discussion of discussed in the summary of § 27.210, located at the end of proposed background checks, see the Department the Department added a new, but § 27.220(a) into its own section, response to comments about similar, provision to § 27.210(d). The § 27.220(d). ‘‘Background Checks.’’ Section new provision now captures the concept Section 27.230 Risk-Based 27.230(a)(15) now provides that contemplated in proposed § 27.215(c)(3) Performance Standards facilities should report significant and § 27.225(b)(3). security incidents to local law With respect to changes to § 27.225 This section contains the risk-based enforcement in addition to the only, the Department has added a performance standards that covered Department. Finally, the Department provision that requires facilities to facilities must satisfy. The Department has removed the paragraph that was conduct annual audits of their Site has added a sentence to § 27.230(a), paragraph 27.230(a)(19) in the Advance Security Plans. See § 27.225(e). This noting that the ‘‘acceptable layering of Notice, because that standard was provision had been implied in the measures used to meet the standards already addressed in paragraph (a)(14). recordkeeping requirement in the will vary by risk-based tier.’’ While all Advance Notice (see § 27.255(a)(6)) and facilities must satisfy the performance Section 27.235 Alternative security is now explicit. DHS made some standards, the measures sufficient to program additional revisions to the meet those standards will be more The Department has revised this corresponding recordkeeping provision, robust for those facilities that present section to provide more detail about the in which DHS more clearly specifies the higher levels of risk. In other words, the process for Alternate Security Programs audit-related records that covered manner in which the standards are (ASPs). The basic requirement remains facilities should maintain. applied will require a higher level of the same, in that certain covered Finally, throughout this document, security (and so provide for greater facilities may submit ASPs, and the the Department now uses the term reduction in risk) for those facilities that Assistant Secretary may approve those ‘‘Security Vulnerability Assessment’’ (or present higher levels of risk. The ASPs. See § 27.235(a). To accept an SVA) instead of the term ‘‘Vulnerability Department will provide details about ASP, the Assistant Secretary must find Assessment’’ or (VA), which the the application of these standards in that the program ‘‘provides an Department had used in the Advance guidance. equivalent level of security to the level Notice. The Department intends no In addition, for each of the of security established by this part.’’ change in meaning with this revision. performance standards, the Department This language, which clarifies the has added a short descriptor at the standard for accepting ASPs, comes Section 27.220 Tiering beginning of the subparagraph (e.g., from the preamble of the Advance The Department has added several paragraph (a)(1) begins with ‘‘Restricted Notice and is consistent with the terms paragraphs to this section. Section Area Perimeter,’’ paragraph (a)(2) begins of Section 550. See 71 FR 78276, 78285. 27.220(a) addresses the Department’s with ‘‘Securing Site Assets,’’ and so In § 27.235(a)(1)–(2), the Department preliminary determination as to a forth). specifies, by tier, which facilities may facility’s risk-based tier. Paragraph (a) is The Department has also revised some submit ASPs in lieu of Security based on language that had been in the of the language related to specific Vulnerability Assessments (SVAs) and Advance Notice at the end of performance standards. Section which facilities may submit ASPs in § 27.205(a). The Department has 27.230(a)(4) now provides that facilities lieu of Site Security Plans (SSPs). A Tier elaborated on the Preliminary Tiering must select, develop, and implement 4 facility may submit an ASP in lieu of provision. Notably, the Department has measures designed to ‘‘[d]eter, detect, a Security Vulnerability Assessment, indicated that it shall notify a facility of and delay an attack, creating sufficient Site Security Plan, or both. Tier 1, Tier the Department’s preliminary tiering time between detection of an attack and 2, and Tier 3 facilities may submit an

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17693

ASP in lieu of a Site Security Plan. Tier will be required, even where the facility The Department has removed 1, Tier 2, and Tier 3 facilities may not has produced a strong SVA, the effort 27.240(c) as proposed in the Advance submit an ASP in lieu of a Security will be considerably less than that at Notice. Paragraph (c) had contained an Vulnerability Assessment. Accordingly, facilities that are starting without a pre- objections provision. For a discussion of Tier 1, Tier 2, and Tier 3 facilities will existing SVA. the Department’s decision to remove the have to submit their SVA through the In addition, § 27.235(b) provides that objections provisions from this rule (in CSAT system. the notice requirements for submitting §§ 27.205(c), 27.220(b), and 27.240(c)), With respect to Tier 4 facilities, the ASPs correspond with the notice see the summary under § 27.205(c). Department clarifies the following requirements (including the approval Section 27.250 Inspections and Audits point: Given that the Department and disapproval process) for SVAs and notifies a facility of its final placement SSPs. In other words, if a facility is The Department has added additional in a risk-based tier following the submitting an ASP in lieu of an SVA, provisions to the inspection and audit Department’s review of a covered the process in § 27.240 applies, and if a section. In § 27.250(c), the Department facility’s SVA (see § 27.220(b)), a facility facility is submitting an ASP in lieu of discusses the time and manner will not know its final tier placement at an SSP, the process in § 27.245 applies. requirements for inspections. While the the time it might decide to submit an Department will generally provide ASP in lieu of a SVA. Because of that, Section 27.240 Review and Approval facilities with 24-hour advance notice of the Department understands that of Security Vulnerability Assessment inspections, the Department recognizes facilities will rely on the Department’s and Section 27.245 Review and two exceptions where an unannounced preliminary tiering determination made Approval of Site Security Plans inspection might occur. The Department pursuant to § 27.220(a). In this interim final rule, the included the first exception in the There are various reasons underlying Department has separated the review Advance Notice, and the Department has added the second exception in this the Department’s decision not to accept and approval of SVAs and SSPs into interim final rule. For a further ASPs as SVAs for Tier 1, Tier 2, and two separate sections. In the Advance discussion, see the Discussion of Tier 3 facilities. The Department needs Notice, both sets of requirements were Comments in § III(F) on ‘‘Inspections a consistent baseline against which to located in § 27.240. In this interim final compare risks and vulnerabilities across and Audits.’’ rule, the provisions related to Security chemical facilities. (For a further In § 27.250(d), the Department Vulnerability Assessments are located discussion of this issue, see the addresses various details related to the in § 27.240, and the provisions related Department’s response to comments in inspectors who will conduct inspections to Site Security Plans are located in § III(B)(1)). As well, the Chemical and audits. This is a new paragraph that § 27.245. Security Assessment Tool (CSAT) was not in the Advance Notice. system uses an integrated approach to In addition, the Department made Although Congress has not provided the chemical facility security, and by some changes to the corresponding Department with administrative considering SVAs that use the provisions in the two separate sections. subpoena authority, this paragraph methodology in the CSAT system, the In both sections, the Department has explains that inspectors will have Department can take full advantage of removed the language (from proposed credentials and may administer oaths that integrated approach. Furthermore, § 27.240(a)(1)) about time periods for and receive affirmations upon consent. by using this electronic, integrated submitting SVAs and SSPs. The It also provides details about the means CSAT approach, the Department can Department has already addressed this by which inspectors may gather more efficiently review and assess a issue in §§ 27.215(c)–(d) and information and the access that greater number SVAs, and that is of §§ 27.225(c)–(d) (by providing that a inspectors will have to records. The importance considering the facility must provide, update, and revise Department has also added a paragraph Department’s phased implementation its SVA and SSP consistent with the (e), which addresses confidentiality. scheme to address the highest risk schedule in § 27.210), so it was Finally, the guidance paragraph, which facilities first. unnecessary to also include this had been located in paragraph (d) has The Department acknowledges that language here. Also, in both sections, been moved to paragraph (f). many facilities have expended the Department has added new language substantial resources and incurred about the disapproval of SVAs or SSPs. Section 27.255 Recordkeeping significant expense to identify The Department added a new sentence, Requirements vulnerabilities and to develop security which provides that ‘‘[i]f the The Department revised various plans. The Department commends resubmitted [SVA or SSP] does not provisions related to recordkeeping. facilities for such efforts. The work satisfy the requirements of [§ 27.215 or With respect to § 27.255(a)(1), the performed on these efforts is valuable, § 27.225], the Department will provide Department added a few additional and DHS is committed to capitalizing on the facility with written notification record requirements regarding training. these investments. The information (including a clear explanation of In addition to keeping records of the developed in these efforts will be deficiencies in the [SVA or SSP]) of the date and location of each training relevant to facilities as they complete Department’s disapproval of the [SVA or session, time of day and duration of the CSAT SVA. Facilities will be able to SSP].’’ See § 27.240(b) and § 27.245(b). each session, the name and use the information from existing Finally, the Department has added a qualifications of the instructor, and a vulnerability assessments, and in many provision in § 27.245(a)(1)(iii), clear, legible list of the attendees cases, the practical impact of requiring indicating that the Department issues a including attendees’ signatures, the Tiers 1, 2, and 3 facilities use the CSAT Letter of Approval if it approves a facility must also keep at least one other SVA system will be one of formatting, facility’s Site Security Plan in unique identifier for each attendee i.e., facilities will have to enter their accordance with § 27.250. While this receiving training and the results of any information from their existing provision appears elsewhere in the rule evaluation or training. The Department vulnerability assessments into the (see § 27.245(b)), the Department also added a requirement to § 27.255(b), format established by the CSAT system. thought it was appropriate to include it requiring facilities to keep submitted While some additional analytical effort here as well. Top-Screens in addition to submitted

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17694 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

SVAs and SSPs. In addition, as Orders. Section 27.300(c) lists the modifications in exigent circumstances. discussed above in the summary for information, at a minimum, that the See § 27.310(d). § 27.225(e), the Department revised the Assistant Secretary must include in an A Presiding Officer is the neutral recordkeeping provision related to Order and also notes that the Assistant adjudications officer who handles these internal audits. See § 27.255(a)(6). Secretary may establish further proceedings. The Secretary shall The Department also added a new procedures for the issuance of Orders. appoint a Presiding Officer, consistent paragraph (c), allowing the Department Section 27.300(d) notes that a facility with the requirements in § 27.315. A to request that covered facilities make must comply with the terms of the Presiding Officer shall immediately available records kept pursuant to other Order by the date specified in the Order. consider whether a summary Federal programs or regulations. The Section 27.300(e) indicates that a adjudication of an Application for Department would make such requests facility has the right to seek an Review is appropriate, and if the for records to the extent that any such adjudication to review the decision of Presiding Officer finds that there is no records were necessary for security the Assistant Secretary to issue an genuine issue of material fact and that purposes. As a result of adding new Order, and § 27.300(f) addresses final one party or the other is entitled to paragraph (c), the Department had to re- agency action. decision as a matter of law, then the designate proposed paragraph (c) as With respect to the staying of Orders, record shall be closed and the Presiding paragraph (d). the Department addresses this issue in Officer shall issue an Initial Decision on the Application for Review. See Subpart C the new adjudications sections. Specifically, § 27.310(b)(4) provides that § 27.330(b). Such summary decisions The Department has substantially an Order is stayed from the timely filing are governed by the procedures in revised Subpart C, which contains the of a Notice of Application for Review § 27.330. provisions for Orders, Adjudications, Where there is no summary decision, until the Presiding Officer issues an and Appeals. the Presiding Officer may conduct a Initial Decision, unless the Secretary hearing using the procedures specified Section 27.300 Orders lifts the stay due to exigent in § 27.335. The Presiding Officer shall circumstances pursuant to § 27.310(d). The Department has restructured the close and certify the record upon the The new adjudications section is Orders provisions. Whereas the completion of one of the following: a discussed in more depth below. Advance Notice contained four separate summary judgment proceeding, a sections (see §§ 27.300, 27.305, 27.310, Section 27.305 through 27.340 hearing, the submission of post-hearing and 27.315), the Department has now Adjudications briefs, or the conclusion of oral consolidated all of the Order provisions arguments. See § 27.340(a). Based on the Most significantly with respect to into one section, § 27.300. The main certified record, the Presiding Officer adjudications, the Department has substance of the Orders provisions, shall issue an Initial Decision, and the provided facilities with the opportunity however, remains the same. Pursuant to decision shall be subject to appeal to seek review of specified decisions § 27.300(a), the Assistant Secretary can pursuant to § 27.345. issue an Order for any instance of before a neutral adjudications officer. A In addition to the sections mentioned noncompliance. For example, the facility or other person may seek review above, there are a few other sections that Assistant Secretary may issue an Order of the following Department (i.e., address provisions related to for a facility’s refusal to complete a Top- Assistant Secretary) determinations: (1) adjudications. Section 27.320 specifies Screen, failure to allow an inspection, or A finding, pursuant to the prohibition on ex parte failure to update a Site Security Plan. § 27.230(a)(12)(iv) that an individual is communications during Proceedings. Beyond a basic Order, the Assistant a potential security threat; (2) The And § 27.325 provides that the Assistant Secretary may issue an Order Assessing disapproval of a Site Security Plan Secretary bears the initial burden of Civil Penalty, an Order to Cease pursuant to § 27.245(b); or (3) The proving the facts necessary to support Operations, or both, where it determines issuance of an Order pursuant to the challenged administrative action at that a facility is in violation of any § 27.300(a) or (b). See § 27.310(a). every proceeding instituted under this Order issued pursuant to paragraph (a). The procedures for Applications are subpart. See § 27.300(b). Orders Assessing Civil found in § 27.310(b). To institute Finally, as related to the Appeals Penalty are for a continual Adjudication Proceedings, the facility or section below, a Presiding Officer’s noncompliance, a repeated pattern of other person (‘‘Applicant’’) must file a Initial Decision is stayed from the noncompliance or egregious instances of Notice of Application for Review within timely filing of a Notice of Appeal until noncompliance. Orders to Cease seven calendar days of notification of the Under Secretary issues a Final Operations are the most serious Orders the Assistant Secretary’s determination. Decision, unless the Under Secretary that the Assistant Secretary might See § 27.310(b)(1)–(2). Then, in an lifts the stay due to exigent choose to issue under this regulatory Application for Review, the Applicant circumstances. See § 27.345(b)(4). scheme. The Assistant Secretary will must explain his or her position (i.e., use such a measure cautiously and explain why the Assistant Secretary’s Section 27.345 Appeals judiciously and will balance the determination should be set aside). The The interim final rule contains a immediate security needs with the Applicant has 14 calendar days from the revised appeals section. There are possible impact (e.g., economic impact date of notification of the Assistant several differences. First, a facility or or national security effect) of such an Secretary’s determination to file and other person may appeal the Initial Order on the chemical industry and the serve an Application for Review. See Decision of the Presiding Officer made Nation as a whole. As the Department § 27.310(b)(5). The Assistant Secretary, pursuant to § 27.340(b). This differs wrote in the Advance Notice, ‘‘This through the Office of the General from the Advance Notice, in which a authority would be utilized when no Counsel, shall file and serve a Response facility could appeal a Departmental other options will achieve the required within 14 calendar days of the filing and final determination regarding result.’’ See 71 FR 78276, 78287. service of the Application for Review. disapproval of a Site Security Plan and Paragraphs (c) through (f) of § 27.300 See § 27.310(c). Finally, the Secretary the Departmental issuance of an Order. address the process and procedures for may make certain procedural See § 27.320 in the Advance Notice.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17695

Second, the Advance Notice provided The Department has highlighted these changes and preemption in that the Under Secretary would make below the more substantive changes to general, see the section below entitled decisions for most categories of appeals, § 27.400. With respect to paragraph (c), ‘‘Executive Order: 13132: Federalism.’’ and the Deputy Secretary would make the Department has removed paragraph Proposed Appendix A: DHS Chemicals (c)(2), because that concept is already decisions for one category of appeal. of Interest This interim final rule provides that all covered in paragraph (e)(1)(v). In appeals go to the Under Secretary or his paragraph (d)(1), the Department In the Advance Notice, the designee acting as a neutral appeals provides that covered persons must Department sought comment on officer. Third, as is discussed in more protect all CVI in their possession or appropriate sources of information or depth below, the procedures for an control, including electronic data. In methodologies for evaluating and appeal have changed. paragraph (e)(1), the Department added categorizing chemical facilities.’’ See 71 language providing that a person who FR 78276, 78282. The Department The Assistant Secretary, a facility, or responds to those comments below in other person (‘‘Appellant’’) may might have a ‘‘need to know’’ includes ‘‘state or local officials, law enforcement the ‘‘Discussion of Comments.’’ In this institute an Appeal by filing a Notice of interim final rule, the Department has Appeal within seven calendar days of officials, and first responders.’’ In paragraph (e)(1)(ii), the Department decided to evaluate chemical facility notification of the Presiding Officer’s clarified that a person in training will risks by, in part, classifying facilities by Initial Decision. See § 27.345(b)(1)–(3). only have access to CVI that he needs particular chemicals. In proposed The Appellant shall then file and serve as part of his training, and in paragraph Appendix A, the Department has a Brief within 28 calendar days of the (e)(1)(iv), the Department clarified that a included a list of ‘‘DHS Chemicals of notification of the Presiding Officer’s the person in a fiduciary relationship Interest’’ along with Screening Initial Decision. See § 27.345(b)(5). The with a covered person who is Threshold Quantities, or STQs, for each Appellee shall file and serve its representing or providing advice to that chemical. The Department has Opposition Brief within 28 days of the covered person will also have a need to established STQs to trigger preliminary filing of Appellant’s Brief. See know CVI. In paragraph (e)(2)(iii), the screening requirements. The STQ is not § 27.345(b)(6). The Under Secretary Department provides that it may require the threshold quantity for establishing shall issue a Final Decision and serve it non-Federal persons seeking access to whether a given facility is a high-risk on the parties. A Final Decision by the CVI to complete a non-disclosure facility, but only sets a threshold to Under Secretary constitutes final agency agreement before such access is granted. require a facility to complete and submit action. See § 27.345(f). In paragraph (f)(3), the Department a CSAT Top-Screen. As noted in the In addition to the provisions shortened the distribution limitation ‘‘Public Participation’’ section above, mentioned above, the Department notes statement and added a new sentence at the Department is accepting public the following: Pursuant to § 27.345(b), the end, which provides: ‘‘[i]n any comment on proposed Appendix A for the Under Secretary may provide for an administrative or judicial proceedings, 30 days. Following the close of the expedited appeal; pursuant to this information shall be treated as comment period, the Department will § 27.345(c), ex parte communications classified information in accordance review the comments and publish a are prohibited; and pursuant to with 6 CFR §§ 27.400(h) and (i).’’ And final Appendix A. The requirements § 27.345(c), a facility or other person in paragraphs (h)(1), (i)(1), and (i)(2), the related to Appendix A, which are found may elect to have the Under Secretary Department made it clear that these in §§ 27.200(b)(2) and 27.210, will participate in any mediation or other sections apply to the disclosure of CVI become operative on the date that the resolution process by expressly waiving, in the context of administrative or Department publishes a final Appendix in writing, any argument that such judicial enforcement proceedings of A. participation has compromised the section 550 only, not any other kind of Pursuant to § 27.200(b)(2), if a facility Appeals process. In addition, pursuant enforcement proceeding. Similarly, in possesses any chemicals identified in to § 27.345(g), the Secretary may paragraph (i)(7)(iii), the Department Appendix A at the corresponding establish procedures for the conduct of made it clear that this section applies quantities, the facility must complete appeals. only to judicial enforcement and submit a Top-Screen. Consistent proceedings and not any other judicial with the submission requirements in Subpart D proceeding. § 27.210(a)(1), the facility must Section 27.400 Chemical-Terrorism complete the Top-Screen within 60 Section 27.405 Review and Preemption Vulnerability Information calendar days of the effective date of a of State Laws and Regulations final Appendix A or within 60 calendar The Department has made numerous The Department has made several days of coming into possession of any clarifying changes to the chemical- changes to § 27.405, including various such chemical at the corresponding terrorism vulnerability information regulatory text changes. Among those quantity. (As indicated in the regulatory (CVI) section. Some of these changes changes, the Department has added text, this submission requirement is not corrected typographical errors, while paragraph (a)(1). The Department operative until the Department several others clarified existing wishes to avoid any unintended publishes a final Appendix A.) Note that provisions. With respect to a minor consequences in the program’s this provision does not affect the change, note that, in § 27.400 of the interaction with other Federal Department’s ability to contact facilities Advance Notice, the Department requirements. For this reason, independently of this list. Pursuant to referred to CVI as ‘‘Chemical-terrorism § 27.405(a)(1) provides that ‘‘[n]othing § 27.200(b)(1), DHS may notify facilities, Security and Vulnerability Information’’ in this regulation is intended to displace on an individual basis or through an and in this interim final rule, the other federal requirements administered additional Federal Register notice, that Department now refers to CVI as by the Environmental Protection they need to complete and submit the ‘‘Chemical-terrorism Vulnerability Agency, U.S. Department of Justice, U.S. Top-Screen. The Department notes that, Information.’’ The Department intends Department of Labor, U.S. Department where a facility has a question as to no change in meaning with this of Transportation, or other federal whether it should complete a Top- revision. agencies.’’ For a further discussion of Screen, the facility can contact the

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17696 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Department and seek a consultation Convention on the Prohibition of the In proposed Appendix A, the pursuant to § 27.120. Development, Production, Stockpiling Department lists the DHS Chemicals of The Department reiterates that the and Use of Chemical Weapons and on Interest and identifies a Standard presence or amount of a particular Their Destruction. The CWC covers Threshold Quantity (STQ) for each chemical listed in Appendix A is not three lists, or ‘‘schedules’’ of chemicals. chemical. To clearly identify each the sole factor in determining whether Schedule 1 chemicals are provided in chemical, the Department includes the a facility presents a high-level of Supplement No. 1 to 15 CFR part 712, Chemical Abstract Service (CAS) security risk and is not an indicator of Schedule 2 chemicals are provided in number for each chemical. These a facility’s coverage under this rule. The Supplement No. 2 to 15 CFR part 713, chemicals listed in proposed Appendix DHS Chemicals of Interest list merely and Schedule 3 chemicals are provided A fall into the three categories identified directs certain facilities to complete and in Supplement No. 3 to 15 CFR part 714; above: chemicals with a release hazard, submit the Top-Screen. This list serves and (3) Hazardous materials, including chemicals with a theft or diversion as a tool to aid the Department in gases poisonous by inhalation (PIH) and hazard, and chemicals with a sabotage gathering information needed to explosive materials, which the or contamination hazard. administer the program under Section Department of Transportation regulates. The Department acknowledges that 550. In order for the Department to See 49 CFR 173.115(c), 49 CFR there are two additional security issues assess compliance by particular 173.50(b), and 49 CFR 172.101. The that it is considering at this time, chemical facilities with the regulation Department has also considered other although it is not including any such (see Section 550(e)), the Department categories of chemicals, such as chemicals that would trigger a Top- must first obtain information to chemicals that can be used as precursors Screen submission. They include the determine whether the particular for Improvised Explosive Devices (IEDs) following two issues: chemical facilities qualify for coverage and certain water-reactive materials that 1. Critical Relationship to Government under Section 550. The list set out in produce toxic gases. Mission—DHS believes that the loss of Appendix A serves as a procedural tool The Department makes a few points certain chemicals, materials, or facilities designed to aid the Department in with respect to the list in Appendix A. could create significant adverse determining which facilities must First, DHS is not using any existing list consequences for national security or comply with the substantive standards. (e.g., the EPA RMP list) as its sole the ability of the government to deliver Only after the Department gathers source, and DHS is not classifying all essential services. additional information through the Top- facilities on a list in one particular way 2. Critical Relationship to National Screen process will the Department (i.e., classifying all RMP facilities as Economy—DHS believes that the loss of make a determination as to whether a high-risk). By using multiple sources at certain chemicals, materials or facilities facility presents a high risk and this initial phase, DHS believes it is could create significant adverse therefore must comply with the obtaining a more complete picture of the consequences for the national or regulatory requirements to ensure universe of facilities that may qualify as regional economy. adequate security. Under Section 550, high-risk. Second, in identifying the The Department is continuing to the Department has the authority to use types and STQs of chemicals for assess currently-available information its best judgment and all available Appendix A, the Department has sought about these chemicals critical to information in determining whether a to be sufficiently inclusive of chemicals government mission and the national facility presents a high level of security and quantities that might present a high economy. The Department will use the risk. level of risk under the statute without information it collects through the Top- In developing the ‘‘DHS Chemicals of being overly inclusive and therefore Screen process, as well as currently- Interest’’ list, the Department has looked capturing facilities which are unlikely available information, as a means of to existing sources of information and to present a high level of risk. identifying facilities responsible for has then drawn on many of those In addition to drawing on information economically critical and mission- sources of information, including some from existing sources, the Department critical chemicals. of the sources that commenters has identified chemicals by considering III. Discussion of Comments suggested. Those sources include the three security issues. These three following: (1) The chemicals contained security issues, which are explained In the Advance Notice, DHS sought on the EPA’s RMP list. Pursuant to the below, address multiple risk areas. comment on proposed text for the Clean Air Act (42 U.S.C. 7401, et seq.), 1. Release—DHS believes that certain interim final rule as well as on various which provides that the EPA shall quantities of toxic, flammable, or implementation and policy issues promulgate a list of substances that ‘‘in explosive chemicals or materials, if concerning the chemical security the case of accidental release, are known released from a facility, have the program. DHS received a total of 106 to cause or may reasonably be potential for significant adverse public comments totaling more than anticipated to cause death, injury, or consequences for human life or health. 1,300 pages, including comments from serious adverse effects to human health 2. Theft or Diversion—DHS believes thirty-two trade associations, thirty or the environment (see 42 U.S.C. that certain chemicals or materials, if companies, thirteen private citizens, ten 7412(r)(3)), the EPA promulgated two stolen or diverted, have the potential to state agencies and associations, seven lists. Table 1 is titled ‘‘List of Regulated be used as weapons or easily converted advocacy and safety groups, eight U.S. Toxic Substances and Threshold into weapons using simple chemistry, Representatives, five U.S. Senators, four Quantities for Accidental Release equipment or techniques in order to unions, one Local Emergency Planning Prevention,’’ and Table 3 is titled ‘‘List create significant adverse consequences Committee, one professional of Regulated Flammable Substances and for human life or health. association, one international standards Threshold Quantities for Accidental 3. Sabotage or Contamination—DHS committee, and the U.S. Small Business Release Prevention’’ (see 40 CFR believes that certain chemicals or Administration. 68.130); (2) The chemicals from the materials, if mixed with readily- Commenters generally applauded this Chemical Weapons Convention (CWC). available materials, have the potential to effort from the Department and Section 6701, et seq. of Title 22 of the create significant adverse consequences commended the general approach that United States Code implements the for human life or health. the Department is taking. However,

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17697

commenters also raised some specific The industry commenters noted, commonly used chemicals, DHS notes concerns. In the sections below, DHS however, that not all RMP facilities that it is aware of that issue. While DHS provides a topical summary of the should be considered high-risk. One believes these STQs are set at levels that comments and responses to those commenter pointed out that RMP does normally will not cover such retail comments. not take into account facilities that may establishments, DHS believes that, if a cause substantial impacts from multiple retail establishment does exceed any of A. Applicability of the Rule tanks. A few commenters also these STQs, the retail establishment will 1. Definition of ‘‘Chemical Facility or recommended that DHS should consider have to complete the Top-Screen. facilities in EPA’s Toxic Release Facility’’ 2. Multiple Owners and Operators Inventory program or facilities that The Advance Notice defined The second half of the definition of ‘‘Chemical Facility or facility’’ to mean handle DOT hazardous materials. One commenter emphasized that the ‘‘Chemical Facility or facility’’ provides ‘‘any facility that possesses or plans to rule could focus on toxic gases at RMP that the terms ‘‘shall also refer to the possess, at any relevant point in time, a threshold quantities, but warned that owner or operator of the chemical quantity of a chemical substance the RMP program has a different facility. Where multiple owners and/or determined by the Secretary to be purpose. The commenter indicated that operators function within a common potentially dangerous or that meets worst-case scenarios under RMP may be infrastructure or within a single fenced other risk-related criterion identified by based on unrealistic assumptions. area, the Assistant Secretary may the Department. * * *’’ See proposed Another commenter indicated that DHS determine that such owners and § 27.100. should consider certain substances from operators constitute multiple chemical Comment: While a few industry and the Chemical Weapons Convention list facilities depending on the State agency commenters supported this when assessing overall risk. Finally, circumstances.’’ See § 27.105. definition, commenters generally some industry commenters objected to Comment: Comments were varied on thought that the proposed definition the phrase ‘‘possesses or plans to the issue of multiple owners and was broad. In particular, several possess,’’ because the term implies legal operators. One industry commenter industry commenters, an industry title or ownership rather than simple suggested that DHS should combine association, a labor union, and a State presence at the facility. adjacent facilities under common agency thought the proposed definition Response: Aside from the minor ownership into a single facility, and was overly broad and consequently did modification noted above, DHS is other industry commenters thought that not inform facilities about whether they retaining the definition of chemical DHS should define certain adjacent would be regulated. They noted that the facility that it proposed in the Advance facilities as less than the entire property. definition did not name the regulated Notice. And while DHS is not defining One industry commenter thought that chemical substances or the threshold ‘‘chemical facility’’ by listing specific DHS should allow facilities with quantities. One commenter argued that chemicals, DHS is making available, multiple owners or operators to agree DHS’s failure to release to the public its with the issuance of this rule, a list of among themselves how to meet the proposed list of ‘‘potentially dangerous those chemicals and Screening requirements of this rule. A trade chemicals’’ and threshold amounts for Threshold Quantities (STQs) that it association noted that some large those chemicals denies the public the proposes to use to determine whether to chemical facilities have third-party opportunity to comment on key further assess whether a chemical warehouses and leasing agreements and provisions of the rule that depend on facility presents a high risk. that the owners of the chemical facility whether the facility possess specified Specifically, if a facility possesses any should be responsible for security. quantities of chemicals determined by of the chemicals, at the corresponding Response: DHS believes that it will DHS to be potentially dangerous. The quantities, in Appendix A (when generally be fairly straightforward for commenter explained that it is difficult finalized), the facility must complete facilities to define their boundaries and to comment on that aspect of the rule and submit a Top-Screen within 60 identify the party (at their facility) that without knowing what the chemicals calendar days. See § 27.200(b)(2) and is responsible for compliance with the and thresholds are. An industry group § 27.210(a). The Department will regulation. However, DHS cautioned that threshold quantities continue to contact facilities acknowledges that, in some should be set high enough that retail individually and through additional circumstances, the issue might be more establishments are not covered merely Federal Register notices, as necessary. complex. The Department will address because they stock commercially See § 27.200(b)(1). To the extent the these situations on a case-by-case basis. acceptable quantities of commonly used Department notifies facilities through an Both owners and operators of facilities, chemicals. A few industry commenters additional Federal Register notice, the however, bear responsibility under the and a member of Congress added that Department will engage in outreach regulations for implementing measures the definition of chemical facility activities with the chemical sector. that meet the regulatory standards. should include the concepts of national Finally, in response to specific security and economic criticality. comments above, the Department makes 3. Classifying Facilities Based on Hazard Several industry commenters two additional points. The Department Class supported the use of EPA’s Risk has retained the phrase ‘‘possesses or Comment: In the preamble to the Management Plan (RMP) program to plans to possess.’’ DHS believes that Advance Notice, DHS requested help identify the initial group of phrase adequately captures the comment on whether it should use an regulated facilities. Commenters Department’s intent. The plain meaning approach based on hazard class, rather supported use of the RMP list of toxic of those terms is not limited to than use an approach where substances as a basis for selecting ownership. Also, with respect to the classifications are based on particular chemical facilities. Likewise, one commenter who cautioned that any chemicals. Responses were mixed. association felt that DHS should link its types of threshold quantities should be Several commenters favored the definition of chemical facility to those high enough so that DHS does not cover hazard class approach, noting that facilities covered by EPA’s RMP, all retail establishments that stock facilities are familiar with the DOT because it is a clear and defined list. commercially acceptable quantities of hazard classes, that the hazard classes

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17698 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

may be harmonized with international chemicals or may handle them only Response: The Department’s requirements, and that the number of intermittently. A trade association regulatory scheme will cover chemical chemicals (in a non-hazard class suggested that DHS should allow such facilities that present a high risk because approach) might otherwise be very facilities to adjust their level of security they possess or plan to possess large. Some of the commenters who to the level of risk. Another commenter chemicals that terrorists may use or favored the hazard class approach also urged DHS to consider the nature of target in the furtherance of acts of noted some caveats to its use. Industry batch production facilities, which make terrorism. Facilities that possess commenters and a State agency warned a continually changing mix of products chemicals that are hazardous and can be that the hazard class approach could using a continually changing, and often used as weapons, such as anhydrous result in the inclusion of chemicals that unpredictable, mix of ingredients. ammonia or ammonium nitrate, will be do not pose a security risk. Conversely, With respect to anhydrous ammonia, regulated if they present a high risk. others noted that the hazard classes may commenters noted that the chemical is However, a facility that possesses a not include chemicals of concern from in the EPA RMP list but indicated that chemical substance that does not cause a terrorism perspective. Commenters it should not be a chemical that DHS it to present a high risk (taking into noted that other agencies may regulate regulates. They explained that ammonia account all relevant factors), or the hazard classes under other refrigeration is used for dairy and food possesses an otherwise hazardous programs. Also, one State agency processing facilities and that those chemical in an amount that is below association pointed out that a facilities do not pose a significant risk what would cause the facility to present combination of chemicals might be to human health, national security, or a high risk (again, taking into more dangerous than any one chemical. the economy, because an attack on such consideration all relevant factors), will One firm suggested that the DHS a facility would not result in a not be regulated. approach should include both the catastrophic release of ammonia. In Accordingly, with this interim final hazard class approach and the addition, the commenters stated that the rule, DHS plans to regulate high-risk classification of chemicals approach. food industry (which uses anhydrous facilities with ammonium nitrate and A few industry commenters indicated ammonia for refrigeration) should not anhydrous ammonia using the same that basing the applicability of the rule have to spend its resources enhancing risk-based approach under which it on hazard classes would be security for refrigeration systems. plans to regulate all other high-risk inappropriate and that they favored a facilities. If DHS later decides that any With respect to ammonium nitrate list of security-sensitive chemicals with individual chemicals warrant (AN), some industry commenters noted threshold quantities. One trade specialized attention in regulatory that AN is an important part of the association supported the use of lists of provisions, DHS will address such economy in both the explosives and the particular chemicals, explaining that chemicals through future rulemakings. fertilizer industries. They noted that the they thought it would lead to more threat posed by AN is not that of a direct 5. Applicability to Types of Facilities accurate assessments of likelihood and attack but of theft or diversion for later consequence and therefore risk. They Comment: A few commenters also argued that DHS publish the list in criminal misuse. While they said that suggested that the rule should not apply the final rule. DHS should focus not only on the to railroad facilities, because such Response: As explained above, DHS is possibility of a direct attack at facilities facilities are covered by current and publishing a list of ‘‘Chemicals of with ‘‘weaponizable’’ chemicals, but on proposed requirements from the Interest’’ in Appendix A to this interim facilities with risks of theft or diversion, Department of Transportation’s (DOT) final rule. The list contains specific they suggested that DHS place those Federal Railroad Administration and chemicals and STQs. That list is a facilities (i.e., those with risk of theft or Pipeline and Hazardous Materials Safety baseline screening threshold against diversion) in lower-risk tiers. Administration and DHS’s which facilities will know whether they One commenter recommended Transportation Security Administration need to complete and submit a Top- requirements for chain-of-custody (TSA). Those commenters asserted that Screen. While DHS’s primary approach control and suggested that the ATF railroads should be treated separately will be through the classification of could assist in enforcement at AN sites from fixed facilities and that the chemicals, DHS will not preclude the with commercial explosives; other proposed requirements are use of the hazard classes for certain commenters favored regulation by DHS, inappropriate for railroad facilities. One purposes in the performance standard not ATF. Another commenter believed commenter requested exemptions for guidelines. that DHS should work with the U.S. motor vehicles and rail cars that are ‘‘in Department of Agriculture and producer transit.’’ Another commenter asked DHS 4. Applicability to Specific Chemicals or groups in deciding whether to regulate to take a system-wide approach and Quantities of Chemicals an agriculture operator or supplier. An recognize the interdependence of Comment: Several commenters industry commenter noted that the mere chemical facility and rail security. discussed specific chemicals and presence of AN at a site should not Response: Regulating chemicals in the whether or not the regulation should trigger application of DHS’s screening railroad system is a complex issue, and cover facilities that possess those process. Two members of Congress DHS continues to evaluate it. TSA is the chemicals. Several commenters thought argued that the rule should apply to AN lead component within DHS for the that DHS should not cover anhydrous manufacturing facilities, but they agreed security of transportation facilities and ammonia or ammonium nitrate, both of with DHS and other commenters that has initiated some recent efforts to which are discussed in more depth DHS should subject AN facilities to address rail security, including below. A local government agency urged regulatory requirements based on the Voluntary Agreements with the rail DHS to cover facilities that store nature of the facility and risk industry and a Notice of Proposed propane, while other commenters assessment results. The commenters Rulemaking on Rail Transportation indicated that DHS should not cover thought that by including AN facilities Security. See 71 FR 76852 (December flammable fuels such as propane. A few in the regulatory program, DHS would 21, 2006). With respect to chemical commenters noted that some facilities make it more difficult for terrorists to security, certain aspects of Section 550 may have only small amounts of acquire this product. and TSA’s authorities are concurrent

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17699

and overlapping. DHS is working, and part on the type and amount of exemptions requested by commenters, will continue to work, with its chemicals present at any given mine and, at this time, the Department does components, including TSA, to facility. The Department expects that not intend to provide any additional determine whether DHS will include mines will comply with the regulatory text exemptions. railroad facilities in its chemical requirements of § 27.200(b) and Comment: Some industry commenters security program. DHS presently does complete and submit the Top-Screen as supported the exemptions in § 27.110, not plan to screen railroad facilities for required in that section. With respect to such as the exemption for facilities inclusion in the Section 550 regulatory large mines that may only possess a regulated under the Maritime program, and therefore DHS will not concentrated amount of a given Transportation Security Act (MTSA). In request that railroads complete the Top- chemical in one discrete location, if the addition, one association wanted to Screen risk assessment methodology. given chemical (and quantity) is one exclude from the Top-Screen DHS may in the future, however, re- that the Department believes presents a requirements any facilities covered evaluate the coverage of railroads, and security risk, the Department will under MTSA. Other commenters asked would issue a rulemaking to consider expect that the facility will go through for clarifying information about the the matter. the screening process. While the facility exemptions. Comment: Commenters asked about may have to develop a Site Security Response: In the Advance Notice, the the applicability of the rule to natural Plan, the SSP would be tailored to the Department discussed the applicability gas pipelines and facilities, with some specific circumstances at the mine. The of this rule to maritime facilities. See 71 noting that DHS should not regulate SSP for a large mine with a concentrated FR 78276, 78290. In this interim final pipelines because DOT/PHMSA and amount of one chemical in one location rule, the Department clarifies that it will DHS/TSA already regulate safety and would surely look dramatically different apply the statutory exemption only to security of pipelines. Other commenters than that of mine company with facilities regulated under 33 CFR part asked about DHS’s plans to address different circumstances (e.g., a large 105, Maritime Facility Security other large facilities, such as mines. One mine with larger quantities of different regulations. Part 105 of Title 33 of the engineer pointed out that mining types of chemicals spread throughout Code of Federal Regulations is the only facilities can be very large and can cover the mine or a smaller mine with regulation that imposes the security thousands or tens of thousands acres but moderate quantities of very hazardous plan requirements of 46 U.S.C. 70103 on that the security-sensitive portions of chemicals in several different locations). maritime facilities. those mines may be very small (e.g., a 6. Statutory Exemptions Comment: A State agency believed single tank). that the Nuclear Regulatory Commission Response: Whether a facility is Comment: Some commenters asked (NRC) exemption should apply only to covered under this regulation is driven why § 27.105(b) excluded certain facilities holding an NRC power reactor by a number of factors, including the facilities from the rule, and another license and disagreed with the specific types and quantities of commenter suggested that the exempted exemptions for public water systems chemicals at a given facility. Whether facilities should be reviewed to and treatment works. the Department will apply the determine if they would be considered Response: The Department agrees requirements of this regulation to a high-risk but for the exemption. with the commenter and will apply the facility depends, in part, on the Other commenters suggested statutory exemption to facilities where additional exemptions. One commenter chemicals present at that facility. In the NRC already imposes significant suggested that the rule should not apply case of natural gas pipelines, DHS has security requirements and regulates the to most facilities that manufacture, sell, no intention at this time of requiring safety and security of most of the or reclaim lead-acid batteries, and long-haul pipelines to complete the facility, not just a few radioactive another commenter believed DHS Top-Screen (or prepare Security sources. For example, a power reactor should exclude pesticide facilities. Yet Vulnerability Assessments and develop holding a license under 10 CFR part 50, another commenter thought that most Site Security Plans). But chemical a special nuclear material fuel cycle facilities storing petroleum products, facilities otherwise covered by this holding a license under 10 CFR part 70, some of which are exempted under regulation and with pipelines within and facilities licensed under 10 CFR proposed § 27.105(b), are not high-risk their boundaries must treat those parts 30 and 40 that have received pipelines like any other asset, i.e., facilities. security orders requiring increased include measures in their Site Security Response: In the authorizing protection, will all be exempt from 6 Plan addressing the security of those legislation for this regulation, Congress CFR part 27. A facility that only pipelines. exempted various facilities from this Related to this, DHS makes a rule. See Section 550(a). DHS has possesses small radioactive sources for clarifying point about facility assets in included those exemptions in chemical process control equipment, general. DHS expects that facilities will § 27.110(b) of the rule. The statute gauges, and dials, will not be exempt. address all facility assets in their provides for the following exemptions: B. Determining Which Facilities Present Security Vulnerability Assessments and facilities regulated pursuant to the a High-Level of Security Risk Site Security Plans, as any given facility Maritime Transportation Security Act of asset has the potential to have an effect 2002, Public Law 107–295, as amended; 1. Use of the Top-Screen Approach on the consequence and/or public water systems (as defined by Comment: In general, many industry vulnerabilities of the facility. Facility Section 1401 of the Safe Drinking Water associations and chemical companies assets include any items or structures Act); water treatment works facilities (as supported the use of a tiered approach (such as buildings, vehicles, defined by Section 212 of the Federal that narrows DHS’s focus to high-risk laboratories, or test facilities) located on Water Pollution Control Act); any facilities. Several commenters pointed an area owned, operated, or used by the facilities owned or operated by the out as a problem the fact that they had facility. Such assets may exist inside or Departments of Defense and Energy; and been unable to review the details of the outside of perimeter structures. any facilities subject to regulation by the approach and associated criteria; several Similarly, the extent of coverage of Nuclear Regulatory Commission. The commenters suggested that mines in this regulation will depend in Department has considered the knowledgeable parties should have an

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17700 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

opportunity to review the details. Many noted that a facility should consider all spectrum of methodologies. Even where of the commenters wanted to make sure impacts, not just the impacts to one certain ‘‘equivalencies’’ exist between that the final group of high-risk facilities facility. One association commented methodologies, the equivalencies can was determined based on risk (not just that most facilities will not be able to only be extracted and employed in a on potential consequence or limited provide answers to the questions in the comparative risk analysis at very great pieces of threat data) and that the Top-Screen that ask about a facility’s cost and over a very long period of time. number of facilities in this group was market share for given chemicals. That In order to effectively manage risk at the small. association suggested that DHS re- national level, the Department must be Associations differed in their views phrase those questions to support yes/ able to develop and understand the on how inclusive the Top-Screen no answers or to allow facilities to use relative risk of different facilities. A process should be—one association broad ranges. comparative risk capability is essential wanted DHS to screen out certain low- Several associations commented that to regulation and can be achieved only risk facilities in the first few questions the submitting company, not DHS, through the collection of comparative while other associations and a chemical should determine the most appropriate data. Thus, a standard vulnerability tool company wanted DHS to make sure that person to submit data. A number of is necessary. as many facilities as possible submitted parties commented on DHS’s The Department has vetted the CSAT Top-Screen data, including some subsequent use of the data that is system with the engineering profession, facilities that might not traditionally be collected through the Top-Screen. One the National Laboratories, and considered chemical facilities. Several association commented that any academia. The Top-Screen component, associations urged DHS not to information must have demonstrated as well as the individual algorithms presumptively classify facilities as high- utility before it is shared with anyone. employed in the Top-Screen, have been risk without perfect information; they As for timing, commenters, including subject to extensive peer review and felt that doing so would go beyond the State agencies, requested that DHS have been found acceptable. While the authority that Congress granted DHS provide facilities with the specific Top-Screen is consequence-specific, and would not match the intended focus timing requirements for completing the DHS uses the Top-Screen only to on high-risk facilities. A local agency Top-Screen. One industry association determine a preliminary tier ranking. took the opposite view on that question. recommended that DHS use phased-in DHS bases a facility’s final tier ranking Several commenters provided input timing for having facilities complete the upon the complete Security on the data that facilities will need to Top-Screen. A number of commenters Vulnerability Assessment, as well as the enter into the Top-Screen. One from State agencies and industry application of threat information—and association suggested that DHS allow associations suggested the need for DHS thus it is risk-based. facilities to enter chemical volumes in to provide active, written notification Insofar as the range of facilities ranges and asked that DHS provide that a facility is not high risk—and for possessing dangerous or potentially guidance on handling mixtures and telling facilities that they need to dangerous chemicals is large, there is no blends. That association also questioned comply with the regulation. One good alternative to a fairly broad range how facilities should address chemicals association suggested that DHS provide of facilities being included in the that are stored offsite. Another this notification immediately upon the screening process. DHS anticipates that association encouraged DHS to include facility’s submission of data. the vast majority of screened facilities reactive chemicals and propane in the Finally, a number of company and will be found not to have a level of Top-Screen. One advocacy group industry association commenters potential consequences that would encouraged DHS to incorporate wanted to make sure that facilities have result in a ‘‘high risk’’ designation. chemical transportation in the rule and the opportunity to conduct independent However, the facilities that do achieve the Top-Screen. evaluations (or meet with DHS) to verify that level of consequence are expected Commenters also provided input on or deny DHS’s initial classification of a to come from a fairly broad swath of the how DHS should process the facility’s risk. Nation’s economy. DHS has no information that it receives through the Response: In this regulatory program, intention of classifying facilities as Top-Screen. One industry association DHS will employ a modified version of presumptively high risk until and suggested that facilities should be the Risk Analysis and Management for unless DHS is unable to acquire allowed to explain ‘‘yes’’ responses Critical Asset Protection (RAMCAP) risk sufficient data. before DHS drives the facility to a full assessment methodology known as the The Top-Screen will enable DHS to Security Vulnerability Assessment. The Chemical Security Assessment Tool, or determine a preliminary tier based on association suggested that facilities CSAT. The RAMCAP Sector Specific consequence. That ranking will should not be the ones to estimate Guidance was developed under contract determine the need for (and timeline consequences, particularly injuries, and to DHS by the ASME Innovative for) a Security Vulnerability that DHS should refine the definition of Technologies Institute (ASME–ITI) and Assessment, and where the Top-Screen injuries. The association stated that DHS leveraged the knowledge and insight of indicates the need for a follow-on should have different requirements for leading experts from across the industry Security Vulnerability Assessment, DHS facilities that only periodically have and Federal Government. The DHS Risk will expect that the owner-operator will certain materials onsite. One association Assessment Methodology is composed comply. The Department will require cautioned about using RMP data and of two separate parts. The first part is a facilities to submit the Top-Screen advocated for DHS to use conversion screening tool known as the Top-Screen, within the timeframes now specified in factors to make estimates of casualties. which is used to perform a preliminary § 27.210. The Department notes that the Several commenters were concerned ‘‘consequence’’ analysis. The second Top-Screen is designed to preclude a about the questions in the Top-Screen part provides the tools to conduct a large number of ‘‘false negatives.’’ that related to economic impacts. thorough facility Security Vulnerability DHS is establishing the entire CSAT Several associations indicated that DHS Assessment. system as an on-line suite of tools, should use a sufficiently high threshold DHS is using a standard vulnerability which will allow notification of results for economic impacts that captures the tool, the CSAT system, because it is not to the owner or operator. As provided in full extent of economic impacts. They practical for DHS to accept a broad § 27.205, the Department ‘‘shall notify

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17701

the facility in writing [of a within the expertise of the facility CSAT system employs a set of defined determination that the facility presents personnel. attack vectors, used to both ‘‘produce’’ a high level of security risk].’’ While the Many commenters also focused on consequences (for the measurement of online feature of the CSAT system will various aspects related to RAMCAP. criticality) and to measure vulnerability. allow rapid results, it will not allow the One commenter asserted that RAMCAP These are not ‘‘Design Basis’’ threats Department to respond instantaneously, might not adequately identify high-risk and in no way reflect the type of actual as some commenters requested. Finally, facilities. Another commenter asked threats against which owner-operators the Top-Screen tool does require the who owns RAMCAP. Several will be expected to ‘‘defend.’’ They are owner-operator to provide certain data commenters noted that the RAMCAP measurement devices, supporting the similar to an RMP analysis; however, approach was not designed to address DHS need to conduct comparative risk casualty estimates and consequence control system cyber security. Another analysis. The CSAT tool does include ranking are performed by DHS using commenter felt that DHS provided basic assessments of certain types of well-vetted formulae. inadequate detail on the RAMCAP cyber systems, and certain features Regarding economic criticality, DHS methodology and noted that DHS thereof. However, the CSAT tool is not recognizes the complexity of estimating should define the method before DHS intended to be a full-scope, detailed potential economic or mission impact solicits comment. Several commenters analysis of all possible areas of stemming from the loss of certain also pointed out that RAMCAP’s lack of vulnerability. It is a measurement tool manufacturing (or other) capacity. details on vulnerability team that will allow general categorization of Accordingly, DHS will focus early composition and experience could be a a facility as vulnerable or not, critical or efforts on developing a sufficiently clear limitation. Some of RAMCAP’s not, and thus, at risk or not. DHS will picture of the chemical industry as a developers took issue with deviations undertake detailed evaluations of system in order to allow a reasonable from the original RAMCAP design. specific security issues as part of the analysis of economic and mission Another commenter pointed out the ongoing relationship between the criticality, which will be enhanced as need for DHS to include proper facility owner-operator and DHS. The the Department moves forward. references to the RAMCAP and its assessment tool that DHS uses to genesis. conduct comparative risk assessments 2. Assessment Methodologies Also related to RAMCAP, some must be uniform and consistent in order commenters expressed concern with the Comment: Many commenters for DHS to use it, and so a ‘‘menu’’ of details in Appendix B, ‘‘Background: provided input on methodologies that different methodologies is simply not Risk Analysis and Management Critical DHS should use for determining which practical. Asset Protection (RAMCAP) Finally, DHS notes that there were facilities present a high level of risk, and Vulnerability Assessment several comments from companies, several commenters had suggestions as Methodology.’’ In particular, some encouraging the Department to adopt or to how DHS should determine which expressed concern about expectations require their own methodology or facilities are high-risk. One association that the noted threat scenarios would be technique. DHS is unaware of the extent asserted that DHS needed to clearly analyzed as design basis threats. The of peer review or scientific evaluation of define the ‘‘risk of interest’’ before DHS commenters noted that many of the these other methodologies or could determine which methodology to scenarios require military support to techniques. In addition, DHS does not use. One (non-chemical) company defeat, and that appears to be beyond believe it is appropriate to identify a suggested that DHS use other Federal the capability of a chemical facility to single commercial product or endorse programs such as the EPA’s Toxics address. Associations noted that particular commercial products for Release Inventory or the Superfund scenarios can be useful in a comparative purposes of complying with this rule. Amendments and Reauthorization Act top-screen, but that they should not (SARA) Tier II annual reports to guide all facility-specific assessments. 3. Risk-Based Tiers determine high risk facilities. One company opined that the threats In the Advance Notice, the Commenters addressed the suitability of needed to be more realistic before they Department asked for comment on the both asset- and scenario-based were used in any assessments. notion of risk-based tiering of high-risk approaches, with the majority favoring Finally, one chemical company facilities. Specifically, the Department an asset-based approach. Commenters commented that DHS needs to list in the asked how many risk-based tiers should suggested that DHS consider specific rule the specific threats that facilities the Department create, what the criteria methodologies developed by need to address in their SSP. Also, the should be for differentiating among associations, national laboratories, or company indicated that DHS, not tiers, what the types of risk should be State and Federal agencies. One individual companies, should most critical in the tiering, how should association suggested that DHS use determine deaths and injuries. performance standards differ among other methodologies while RAMCAP Response: In the Advance Notice, risk-based tiers, what additional levels continues to develop and mature. State DHS sought to provide an overview of of regulatory scrutiny should DHS apply agency commenters warned that the RAMCAP and the DHS Methodology to each tier. 71 FR 78276, 78283. question of which facilities pose a high Assessment in the preamble (see, e.g., Comment: Most commenters risk is a community-specific issue. pp. 78277–78288) and in Appendix B. supported the establishment of risk tiers Many comments were very specific as As there seemed to be confusion about and agreed that three or four tiers would to how DHS should proceed, and what the nature and purpose of RAMCAP and be sufficient. Several comments, tools DHS should employ. For example, the DHS Assessment Methodology (or including industry commenters, State an engineering firm focused on the need CSAT) and its purpose, DHS provides agencies, and a member of Congress for process-based assessments. A further explanation here. believed that DHS should base tiering chemical company noted the need for The CSAT vulnerability assessment on the attractiveness of the facility as a any approved methodology to also tool, part of the CSAT system owned by target or the consequences of a terrorist consider the criticality of surrounding DHS, is an asset-based vulnerability attack, such as adverse impacts on and supporting infrastructure in a assessment tool very similar to the public health and welfare, the potential reasonable manner—that is, one that is Chemical Sector RAMCAP module. The for mass casualties, and disruption of

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17702 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

essential services. The commenter economic impact, and mission critical that reason, the Department cannot indicated that the creation of tiers aspects of the given chemicals and provide an exhaustive list of material would allow facilities to maintain Threshold Quantities (TQ) of the modifications. In general, though, DHS security measures commensurate with chemicals. The Department considers expects that material modifications risk. the methods for determining these tiers would likely include changes at a A few commenters suggested that to be sensitive anti-terrorism facility to chemical holdings (including DHS did not provide enough information that may be protected from the presence of a new chemical, information in the Advance Notice on further disclosure. The types and increased amount of an existing the number of tiers or on how a tier intensity of security measures chemical, or the modified use of a given classification would affect a facility’s (necessary to satisfy the risk-based chemical) or to site physical security requirements. Two industry performance standards in the facility’s configuration, which may (1) commenters were concerned that DHS Site Security Plan) will depend on the substantially increase the level of might apply the rule requirements to facility’s tier. The Department will consequence should a terrorist attack or facilities other than those that pose the mandate the most rigorous levels of incident occur; (2) substantially increase highest security risk. Two other protection and regulatory scrutiny for a facility’s vulnerabilities from those commenters believed that the tiering facilities that present the greatest degree identified in the facility’s Security approach is not appropriate for cyber of risk. Finally, pursuant to Section Vulnerability Assessment; (3) security of control systems. One 550(a), it is in the discretion of the substantially effect the information commenter argued that tiers should Secretary to apply regulatory already provided in the facility’s Top- include consideration of the requirements to those facilities that Screen submission; or (4) substantially transportation of chemicals outside the present high levels of security risk; effect the measures contained in the facility property. Another commenter accordingly, the Department believes it facility’s Site Security Plan. recommended that DHS should modify is most appropriate for the Secretary to 2. Submitting a Site Security Plan the tiers after it receives data from determine which facilities present high- regulated facilities. Another commenter risk (and not, for example, rely solely on Comment: Several industry thought that DHS should define output from the CSAT process). commenters recommended changes to ‘‘present high levels of security risk’’ The Department incorporates the the proposed process for notifying and ‘‘high risk’’ at the end of the concept of ‘‘target attractiveness’’ into facilities to submit SSPs and the timing RAMCAP process and not at the its risk equation. Insofar as it is a fairly for submitting the SSPs. A number of discretion of the Secretary. subjective element, and that it requires commenters believed that the most Commenters suggested that tiers considerable analysis to develop, DHS appropriate person to submit an SSP is should be objective and transparent and will not incorporate it into the initial a corporate representative with first- hand knowledge of security matters at should provide flexibility. One industry tier assignment process. However, the facility, rather than an officer of the commenter pointed out that tiering insofar as ‘‘target attractiveness’’ is corporation, as proposed. The allows DHS to focus on the most included in the more detailed Security comments recommended allowing a important facilities first and believed Vulnerability Assessment component of that DHS should establish a de minimis corporate security contact, a security the regulatory process, and insofar as tier that sets thresholds below which a manager, or a consultant with delegated the final determination of tier placement facility does not have to complete the authority to submit information on will be based upon the complete Top-Screen tool. Two commenters behalf of the corporation. The analysis of risk, ‘‘target attractiveness’’ noted that tiering provides an incentive commenters indicated that, in most will, in fact, be an important element in for facilities to eliminate risk. instances, members of senior Some industry commenters and State tier assignment and subsequent risk management teams do not have day-to- and local agencies suggested that management efforts. day detailed knowledge on security facilities in higher risk tiers should have C. Security Vulnerability Assessments issues and, thus, cannot meet the more contact with DHS, and that lower- and Site Security Plans proposed qualifications. One of the risk facilities should have fewer security commenters added that the proposed layers implemented over a longer period 1. General Comments regulations appear to limit an of time, greater discretion, or fewer Comment: One association requested organization’s flexibility to assign inspections. One commenter, however, that DHS encourage, but not require, internal responsibilities for various believed there should be no difference facilities that are not high-risk to aspects of the regulations. Another in regulatory scrutiny or performance conduct vulnerability assessments as a commenter suggested that, in addition standards between tiers. best practice. to notifying a covered facility, the Response: The Department agrees Response: The Department has always Department should notify the facility’s with many of the commenters that the encouraged the chemical sector to corporate ownership (and/or parent risk-based tiering structure will allow analyze security vulnerabilities and will corporation) allowing a multi-facility DHS to focus its efforts on the highest continue to do so through voluntary corporation to prepare and submit a risk facilities first. To that end, the sector efforts even if the site has not response in an efficient and timely Department intends to retain the model been designated as high risk under this manner. proposed in the Advance Notice. See, rule. Response: The goal of this rule is to e.g., 71 FR 78276, 78283. In sum, the Comment: One commenter requested increase flexibility while embracing Department’s framework for risk-based that DHS define ‘‘material security for covered facilities, not to tiering will consist of four risk-based modifications,’’ as used in unnecessarily decrease flexibility. The tiers of high-risk facilities, ranging from §§ 27.215(c)(3) and 27.225(b)(3), or at rule obligates the chemical facility to high (Tier 1) to low (Tier 4). The least provide examples of circumstances submit the Site Security Plan; however, Department will use a variety of factors or events that rise to the level of as used herein, the term chemical in determining which tier facilities will ‘‘material modifications.’’ facility or facility shall also refer to the be placed, including information about Response: Material modifications can owner or operator of the chemical the public health and safety risk, include a whole host of changes, and for facility. While the owner or operator of

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17703

a chemical facility may designate 4. Approval of Site Security Plans sooner. One commenter agreed with someone to submit the Site Security Comment: In general, commenters updating SSPs annually, but not Plan, the owner or operator is supported the proposed submission and Security Vulnerability Assessments. responsible for satisfying all the approval processes for SSPs. While one Several commenters suggested the requirements under this part. Note that commenter endorsed proposed following for updates: every 2–5 years the Department has added requirements § 27.240(a)(3) stating that the for Tier 1 facilities, 3–5 years for Tier 2, for submitters in the rule (see Department will not disapprove an SSP and 3–7 years for Tier 3 and beyond. Numerous reviewers recommended § 27.200(b)(3)) and that the Department based on the presence or absence of a that the reviews be limited to discusses those new requirements in the particular security measure, another approximately every three years. Two Rule Provisions discussion of § 27.200. commenter believed that the See § II(B). Finally, it is presumed that companies and one industry association Department should have the authority to wanted reviews to follow major changes the covered facility is the most disapprove an SSP if a facility has appropriate party to notify its parent and not follow a set schedule. Many refused to include a widely-practiced reviewers wanted periodic replaced corporation or other related corporate and cost-efficient procedure that can entities as necessary. with a suggested frequency. severely reduce the risk posed by a Several commenters stated that the 3. Content of Site Security Plans chemical facility. Two commenters requirement to submit SVAs within 60 requested that the Department inform calendar days, and SSPs within 120 Comment: One commenter stated that, local law enforcement and first calendar days, starting on the date that until some of the initial regulatory responders when the Department is the facility is notified that it is elements regarding definition of risk reviewing an SSP in their community considered high-risk, is too short, and and the establishment of tiers is in and then inform them whether that plan therefore inadequate. One commenter place, it would be premature for DHS to was accepted or rejected. The noted that managing change in a safe publish details on Site Security Plans. commenters stated that the health and fashion requires significant thought and Another commenter stated that, based safety of responders may well depend careful planning to ensure that the on the consequence assessment, every upon whether the chemical facility has change itself does not create another site should be required to have specific an adequate SSP. hazard to the community, the security elements in place that Response: The Department may not environment, or employees. The prudently deter, detect, delay, and disapprove a Site Security Plan commenter also noted that developing respond based on their assigned tier submitted under this Part based on the and implementing an SSP that properly level. The commenter also stated that, presence or absence of a particular mitigates risk requires the security without some degree of access control security measure, as provided in Section manager to make appropriate revisions and physical security specificity based 550 of the Homeland Security to existing facility procedures and to on tier levels, there will be considerable Appropriations Act of 2007. The train employees and other affected confusion as to the exact considerations Department may disapprove a Site parties on these new procedures. needed to meet Department Security Plan that fails to satisfy the Another commenter expressed concern requirements. Another commenter risk-based performance standards that there is no specific date or time by encouraged DHS to abide by the established in § 27.230. which DHS must notify high-risk congressional mandate of Public Law The Department intends to work chemical facilities of their status. 104–113, as described in OMB Circular closely with local law enforcement and Likewise, there is no firm time by which A119, and ensure that voluntary first responders to provide adequate the Secretary will send out a notice consensus codes and standards are used homeland security information to them approving or disapproving an SSP. when they are applicable under the rule. under this rule. With regard to the time needed to Comment: One commenter review an SSP, one commenter stated Response: The Department has recommended that the Department first that DHS should issue a decision developed a means of assessing risk and complete the SSP review and approval approving or disapproving them within a tiering process as described in process for Tier 1 facilities, then, after 30 days of receipt of a completed plan. §§ 27.205 and 27.220. These methods soliciting feedback from the Tier 1 This timeframe would bring at least anticipate, on a risk basis, a certain level facilities on the process, then proceed in most priority facilities into compliance of vulnerability for a given tier level. A a step-wise fashion to subsequent tiers. within seven months of the effective facility’s SSP will describe the Response: The Department will date. The commenter also stated that, appropriate levels of security measures implement the rule in a phased given the urgency, any ‘‘objections’’ or that a facility must implement to approach but will not necessarily ‘‘appeals’’ should be processed after the address the vulnerabilities identified in complete all Tier 1 sites prior to seven-month schedule is completed. their SVA and the risk-based undertaking plan review and approvals Because of concern that DHS staffing performance standards for their tier. The with lower-tier chemical facilities as the levels might delay the processing of Department has included risk-based need arises. This is necessary to make SSPs, another commenter requested a performance standards in this interim sufficient progress with higher-tier provision be included in the interim final rule and will publish further chemical facilities and not only the final rule indicating that facilities are guidance on the risk-based performance highest tier. deemed in compliance after 30 days of standards. The risk-based standards submission of SVAs and SSPs until 5. Timing address, among other things, such time that the Department reviews vulnerabilities under the security Comment: One concern raised by an and responds to the submission. concepts of detection, deterrence, delay, industry association related to DHS’s A few commenters recommended that and response. Finally, the Department resources for reviewing Security the deadline for Tier 1 facilities to notes that covered facilities may use and Vulnerability Assessments and submit SSPs be extended from 120 days cite voluntary consensus codes and providing responses in 20 days. Changes to 180 days. The commenters believe standards in their SVAs and SSPs to the to control systems were suggested for that this extension would assure extent they are appropriate. reviews and updates within 7 days or facilities adequate time to assemble the

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17704 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

best teams, prepare thorough SVAs, deal unless DHS periodically reviews its At this time, the Department will only with budget planning for potentially resources and expertise. permit Tier 4 facilities (found to be Tier large capital expenditures, and ensure A number of industry associations 4 facilities following the Department’s the on-site work is properly conducted. offered their own approaches and a food preliminary tiering decision pursuant to Another commenter agreed that the industry association commented on the § 27.220(a)) to submit an ASP in lieu of proposed submission schedule for need to keep their current programs in an SVA. Tier 4 facilities may submit for submitting SSPs was unrealistic in light place and to not unduly focus on review and approval the Sandia RAM of the tasks involved. The commenter ammonia refrigeration risks. MTSA-, for chemical facilities, the CCPS also thought that, if DHS found fault Sandia-, and NFPA-approved programs Methodology for fixed chemical with a provision of the SVA, it would were among those mentioned by the facilities, or any methodology certified be unreasonable to begin development commenters, as were those allowed by CCPS as equivalent to CCPS and has of an SSP based upon a potentially under other regulations. Some equivalent steps, assumptions, and flawed assessment. Consequently, the commenters found the specific process outputs and sufficiently addresses the commenter argued that the submission for approval of alternative programs to risk-based performance standards and time of 120 days should be started only be lacking in detail. One association CSAT SVA potential terrorist attack after the Department’s approval of the requested that submitters just send in a scenarios. The Department is requiring SVA is formally received. Yet another form saying they have an alternate Tier 1, Tier 2, and Tier 3 chemical commenter believed that submission of security plan, and not require any other facilities to use the CSAT SVA SSPs should be timed according to the document be submitted for approval. methodology for preliminary and final tier assigned to the facility and that the An advocacy group commented that tiering. As discussed above in the time clock should begin when the alternate approaches needed to be summary of changes to Rule Provisions, facility receives word back from the equivalent to the DHS approach, not just this will provide a common platform for Department on its preliminary tier sufficiently similar, and that DHS the analysis of vulnerabilities and will assignment. should approve equivalent State and ensure that the Department has a Response: The Department has local programs. Another advocacy group consistent measure of risk across the established a schedule for activities suggested that DHS should only industry. With respect to SSPs, the under this part that considers the need determine equivalency based on reviews Department will permit facilities of all to generally address the risks associated of individual SSPs, not in any blanket tiers to submit ASPs to satisfy the with higher tier facilities before that of or broad way. A third advocacy group requirements of this rule. lower tiers, but staggers the submittals The Department modified § 27.235 to supported a single, consistent approach and review and inspection activities. reflect these requirements. The set out by DHS with private sector The Department has developed the Department also amended the regulation programs being modified to conform to Chemical Security Assessment Tool to link the review and approval the DHS approach. One commenter (CSAT) to assist chemical facilities with procedures for ASPs to the review and noted that the specification of RAMCAP all of the program requirements approval procedures for SVAs and SSPs. may have created an unfair playing field (registration, screening, SVA, and SSP). for other firms wanting to visit the D. Risk-Based Performance Standards In addition, because information from source company for RAMCAP. the CSAT applications will be in In the Advance Notice, DHS sought electronic form, DHS will be able to Response: The Assistant Secretary comment on the use of risk-based expedite its review of the information will review and may approve an ASP performance standards to address that chemical facilities submit. These upon a determination that it meets the facility-identified vulnerabilities. The deadlines are both prudent and requirements of this regulation and Advance Notice proposed that DHS achievable. DHS expects that it will provides an equivalent level of security require covered facilities to select, complete its review of the Top-Screen, to the level of security established by develop, and implement security SVA, and SSP within 60 days of the this part. In its ASP submission, a measures to satisfy the risk-based facility’s submission of the Top-Screen, facility will have to provide sufficient performance standards in § 27.230. The SVA, or SSP. information about the proposed ASP to measures sufficient to meet these ensure that the Department can standards would vary depending on the 6. Alternate Security Programs adequately perform a review and make covered facility’s risk-based tier. Comment: The use of alternate an equivalency determination. Facilities would address the security programs was supported by As described below, certain facilities performance standards in the facility’s several chemical companies and may submit an ASP in lieu of an SVA, Site Security Plan, and DHS would associations as well as companies and an ASP in lieu of a SSP, or both. verify and validate the facility’s associations in related industries. A Accordingly, the ASP option will only implementation of the Site Security chemical company agreed with the be available following the facility’s Plan during an on-site inspection. concept of initially allowing multiple submission, and Department’s review, methodologies and then switching to a of the Top-Screen. An ASP for an SVA 1. General Approach to Performance common methodology for at least the will need to satisfy the requirements Standards Tier 1 facilities; they encouraged DHS to provided in § 27.215, and an ASP for an Comment: The majority of the still allow alternate approaches for other SSP will need to satisfy the commenters supported the proposed tiers. This viewpoint was echoed by at requirements provided in § 27.225. The regulatory approach due to the least one association. Several companies ASP for the SSP will need to describe flexibility that the risk-based wanted to ensure that existing plans specific security measures, or metrics performance standards provide to the could be used and one association noted for measures, that will allow the ASP to regulated community in choosing that more methodologies than just those be considered equivalent to an security measures for their respective approved by the Center for Chemical individually-developed SSP, and facilities. The proposed approach Process Safety (CCPS) would be facilities implementing an ASP will be acknowledges the fact that each of the appropriate. Commenters also noted subject to DHS inspection against the facilities faces different security that CCPS should not be the sole arbiter terms of the ASP. challenges. A few commenters noted

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17705

that the goal of the performance performance standards that directly guidance to assist the regulated standards should be to reduce apply to its facility and its risk-based community in the interpretation and vulnerabilities identified in the SVA, tier. One commenter thought that, in application of the proposed not necessarily reduce all potential certain circumstances, a covered facility performance standards. They consequences or mandate the use of should be able provide adequate encouraged the Department to work specific countermeasures. chemical security without with the regulated community on the By contrast, some other commenters implementing every one of the risk- development of such guidance. opposed the Department’s proposed based performance standards. The However, some of these same regulatory approach, noting various commenter stated that the regulations commenters also emphasized that, to reasons: that the Advance Notice was should allow for situations where the effectuate Congress’ intention that the too prescriptive in certain areas; that facility can demonstrate that, under its chemical security requirements be risk- performance standards are open to particular circumstances, one or more of based performance standards rather interpretation and thus can become the risk-based performance standards is than prescriptive requirements, DHS discretionary, interpretive, and unnecessary or redundant. must explicitly make the guidance non- sometimes arbitrary; that chemical Response: Congress intended for the binding. Consistent with the comments companies may be allowed under the performance standards to provide about CVI, one commenter discussed rule to make risk reduction facilities with a degree of flexibility in the importance of limiting public access determinations based on their available the selection of security measures, and to the completed guidance since it could risk reduction budget, rather than on the the Department has tried to provide that serve as a roadmap for terrorists. actual elimination or reduction of the flexibility throughout the rule. DHS Response: DHS intends to release most serious risks; that the rule allows expects that a facility will need to non-binding guidance on the enormous flexibility and variability in address only those performance application of the performance the documents that facilities can submit standards that apply directly to their standards in § 27.230 to the risk-based to the Department, which could make facility. In addition, DHS notes that tiers of covered facilities. This guidance program review difficult and hinder any there may be circumstances in which a will contain sensitive information comparative analysis of risk reduction facility needs not implement one or concerning anti-terrorism measures, and efforts among similar sites. more of the risk-based performance DHS will make that guidance available Response: The Department’s statutory standards and will still be able to to those individuals and entities with an authority mandates the issuance of provide adequate chemical security; the appropriate need for the document. DHS performance standards. Section 550 Department will work with these will provide the guidance to the House requires the Department to issue interim facilities on a case-by-case basis in these of Representatives Committee on final regulations ‘‘establishing risk- specific situations. Homeland Security and the Senate based performance standards for Comment: Several commenters stated Committee on Homeland Security and security chemical facilities.’’ See that the proposed standards do not Governmental Affairs. § 550(a). Also, as noted in the Advance include clear security goals, outcomes, Notice, Executive Order 12866 also or results to measure increased security. 2. Comments About Specific directs federal agencies to use They also asserted that DHS should Performance Standards performance standards. See 71 FR develop a measurement of vulnerability Comment: Several commenters 78276, 78283. Performance standards or risk reduction. One commenter requested clarification about the avoid prescriptive requirements, and suggested that chemical facilities should performance standards in proposed although they provide flexibility, they identify operational and protection § 27.230(a). A few asked whether still establish and maintain a non- goals and that the protection system paragraph (a)(5) is intended to cover all arbitrary threshold standard that should be evaluated with respect to Department of Transportation hazardous facilities will have to reach in order to meeting these goals. Another materials and whether it is intended to gain DHS approval under the regulation. commenter suggested that DHS express cover transportation and storage of The ultimate purpose of the the performance standards in terms of hazardous materials. One suggested that performance standards is to reduce overall vulnerability scores as measures paragraph (a)(5) should include a vulnerabilities, and that is regardless of via a common Security Vulnerability provision for securing and monitoring risk reduction budgets. Assessment methodology. This the storage of hazardous materials, in With respect to documentation, alternative would allow facilities to addition to securing and monitoring the except as provided in § 27.235 for devote their security expenses to those shipping and receipt of hazardous Alternative Security Programs, DHS is measures that would produce the materials. Commenters also requested requiring facilities to electronically greatest vulnerability reductions and that DHS have facilities report submit all documentation required for would result, nationally, in the greatest significant security incidents to local analysis and approval. Facilities will amount of overall vulnerability law enforcement in addition to the complete the Top-Screen, Security reduction per dollar spent. Department. Another commenter Vulnerability Assessment, and Site Response: DHS intends for the risk- indicated that the Department should Security Plans through the online, Web- based performance standards to provide require the following additional based CSAT system. This electronic facility owners with the flexibility to elements in the performance standards: submission will minimize the choose security measures in their Site written job descriptions for security variability concerns and allow DHS to Security Plan that will reduce the personnel, adequate response teams and manage and protect information. facility’s level of risk. The Security resources, safe shutdown procedures, Comment: Regarding the application Vulnerability Assessment process, and evacuation procedures, and of the performance standards, some DHS’s resulting placement of the facility decontamination facilities. In addition, commenters thought that facilities within the tier structure, will provide another commenter asked that DHS should not have to address all facility owner-operators with an define ‘‘dangerous substances and performance standards (listed in indication of their level of risk. devices’’ as used in § 27.230(a)(3)(i), § 27.230) in their Site Security Plan and Comment: Many commenters ‘‘potentially dangerous chemicals’’ as should only have to address those supported DHS’s intention to issue used in § 27.230(a)(6), and ‘‘significant

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17706 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

security incidents’’ and ‘‘suspicious one site’s vulnerability poses a risk to development of specific performance activities’’ as used in §§ 27.230(a)(15) other connected sites. standards for each tier. Various and 27.230(a)(16). Another commenter Response: The Department recognizes commenters favored the Department’s asked to whom facilities should report that cyber security is an issue and has proposal to place high-risk facilities in ‘‘significant security incidents.’’ included cyber security as one of the risk-based tiers and to prioritize the Response: These comments relate to performance standards that facilities implementation phase-in and the level the measures that facilities must select, must address in their Site Security of regulatory scrutiny (i.e., frequency of develop, and implement in their Site Plans. Paragraph (c)(8) requires facilities regulatory reviews, inspections and Security Plans. The Department will to select, develop, and implement SVA/SSP updates) based on the provide information in guidance to measures that ‘‘deter cyber sabotage.’’ In facility’s risk and associated tier. facilities on these measures. That might addition, the Department notes that it Commenters noted that DHS should include information on the meaning of has implemented an assessment of cyber require facilities in higher risk tiers to these terms, details on the parties to vulnerabilities for industrial control develop more robust measures to meet whom facilities should report security systems within the CSAT Security the performance standards. incidents and suspicious activities, and Vulnerability Assessment. The In contrast, a few other commenters explanations about the role of local law Department has accomplished this had differing opinions. A small number enforcement (e.g., the Department’s through the assistance of DHS’s of comments cautioned that recognition that some investigations of National Cyber Security Division performance standards should be potentially illegal conduct may be the (NCSD). DHS appreciates the consistent across all tiers, regardless of role of local law enforcement). complexity and uniqueness of the level of risk. These commenters In addition, DHS also notes that it has addressing cyber security with chemical noted that DHS should adjust the made a few changes to the regulatory facilities and anticipates that the CSAT specific measures, not the performance context based on these comments. As will mature over time, especially with standards, to match the level of risk. In discussed in the summary of regulatory the constructive feedback from addition, one commenter stated that text changes, the Department has interested and knowledgeable parties. DHS should not establish risk-based Comment: The Department received revised paragraphs (a)(5), (8), (12), and tiers and should instead identify the numerous comments on its use of the (15). criteria for those facilities that will be acronym ‘‘SCADA’’ in § 27.230(a)(8). regulated and those that will not. If DHS Comment: Several comments Commenters asserted that SCADA refers were to establish tiers, that commenter discussed the need for approaches that to a central control system that monitors thought DHS should limit the tiers to address cyber security risks, with and controls a complete site or a system high or low risk. several asserting that it is not sufficient spread out over a long distance. They Response: As discussed above in for DHS to consider security only from noted that using the term SCADA to Section III(B)(3), DHS is creating four a physical perspective. Commenters represent cyber systems at chemical risk-based tiers, with the highest risk opined that there were very few specific facilities is too narrow and suggested facilities in the top tier (i.e., Tier 1). The references to cyber security in the that the Department should replace the types and intensity of security measures Advance Notice, even though it is term SCADA with ‘‘Industrial Control (sufficient to satisfy the risk-based important. Some commenters suggested Systems.’’ performance standards in the facility’s that DHS should address cyber security Response: While the Department had Site Security Plan) will depend on the in more detail in its own performance used the acronym ‘‘SCADA’’ facility’s tier. For facilities that present standard (i.e., a performance standard (Supervisory Control and Data the greatest degree of risk, more rigorous that only addresses cyber security), Acquisition) in the Advance Notice as security measures will be needed to while others suggested that DHS should shorthand for instrumented control satisfy the performance standards. The integrate cyber considerations into other systems in general, the Department Department will use a higher level of performance standards. Other agrees with the comments and has regulatory scrutiny for facilities that commenters asked DHS to identify the incorporated broader, more descriptive present the highest risk. scope of ‘‘cyber’’ security and ‘‘other terminology into this performance DHS consulted with the chemical sensitive computerized systems’’ in standard. The Department has revised industry in developing the tier system paragraph (a)(8). § 27.230(a)(8), so that it reads as follows: and performance standards. In adopting Commenters also raised other issues ‘‘Each covered facility must select, the four tier system and applicable risk- related to cyber security. One develop, and implement measures based performance standards, DHS commenter mentioned that cyber or designed to: * * * [d]eter cyber intends to employ a scalable joint physical/cyber intrusions could sabotage, including by preventing performance standard across the tiers, create dangerous chemicals that did not unauthorized onsite or remote access to i.e., within the same performance previously exist. Consequently, critical process controls, such as standard, a more robust set of security commenters thought that DHS should Supervisory Control and Data measures will be needed for a Tier 1 address these contingencies in the Acquisition (SCADA) systems, facility than for a Tier 2 facility, for a screening process and/or issue an Distributed Control Systems (DCS), Tier 2 facility than for a Tier 3 facility, expansive list of chemicals. Other Process Control Systems (PCS), and so on. DHS will ensure that risk- commenters noted that the RAMCAP Industrial Control Systems (ICS), critical based performance standards are approach was not designed to address business systems, and other sensitive applied consistently across each tier, control system cyber security. A few computerized systems.’’ but guidelines for each tier will vary. other commenters believed that the Comment: A few commenters also tiering approach is not appropriate for 3. Variations in Performance Standards supported the idea that a facility, which cyber security of control systems. for Risk Tiers the Department has previously Additionally, commenters mentioned Comment: Several commenters determined is ‘‘high risk,’’ can request that it is important to consider that supported the use of risk-based tiers, that the Department move it to a lower facilities with interconnecting electronic with several recommending that DHS tier if it has materially altered its systems could face additional threats as consult with industry in the operations in a way that significantly

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17707

lowers its potential vulnerabilities and association presented an analysis of the interests and in response to government consequences. four MTSA standards and concluded programs. The commenters urged that Response: Pursuant to § 27.205(b), ‘‘if that they were largely duplicative of, or the level of screening for existing a covered facility previously determined potentially inconsistent with, existing employees and contractors should be to present a high level of security risk categories of performance standards commensurate with the access has materially altered its operations, it presented in the Advance Notice. The provided. While some commenters may seek a redetermination by filing a commenter stated that the MTSA wanted existing employees who had Request for Redetermination with the standards were not performance undergone employee screening before Assistant Secretary, and may request a standards, but mandatory particular hire to be ‘‘grandfathered’’ from any meeting regarding the request.’’ DHS has security measures, in direct conflict new requirements, other commenters retained that provision in this interim with Section 550. Through a similar thought that existing employees should final rule. This provision allows DHS to section-by-section analysis of the MTSA be subject to screening when they are re-evaluate risk based upon changes at provisions, a chemical manufacturer assigned to secure areas or have the the facility in process, chemistry, or found several provisions to be potential to be reassigned. An other factors. DHS, through the compatible with performance standards, association recommended checking Assistant Secretary, intends to evaluate but others too prescriptive or current employees with less than five such proposed measures on a case-by- incompatible with activities in chemical years seniority within six months of the case basis. facilities. effective date of the program and more In evaluating the redetermination, Another association representing senior employees within one year. DHS will consider whether the planned chemical distributors stated that only a Several commenters argued that, action actually reduces risk (as opposed tiny fraction of its members relied on extending the proposed requirements to to simply ‘‘moving’’ the risk into the waterways to distribute chemicals and, contractors, subcontractors, truck community around the facility) and accordingly, recommended against drivers, and delivery and repair does so without compromising security. adoption of the standards. personnel, and others who are Where these parameters are met, DHS Response: The Department agrees frequently on site, would create serious will approve the plan and re-evaluate with the commenters who difficulties because of the large numbers the tier placement for the facility in recommended against adopting the of individuals in these categories, the question. Pursuant to § 27.205(b), the MTSA provisions referred to in the need to have them available on short Assistant Secretary will notify the preamble of the Advance Notice. As the notice, redundancy of existing facility of the Department’s decision on commenters noted, these provisions credentials, cost of new credentialing, the Request for Redetermination within either duplicate current standards, and delay while screening is completed. 45 calendar days of receipt of such a conflict with current standards, or Chemical companies explained that Request or within 45 calendar days of a mandate particular security measures in they rely heavily on contractors and meeting regarding the Request. conflict with the statute. expect the contracting company to be Comment: One commenter noted that Comment: One association noted that, responsible for assuring that their how performance standards vary across because many of its members had employees meet security requirements. tiers would depend on the criteria used facilities on waterways, member Commenters suggested that officers to establish the tiers. companies often developed MTSA-type hired by the facility supervise Response: DHS will assess all approaches to Security Vulnerability contractors and sub-contractors without facilities based upon worst plausible Assessments and Site Security Plans to background checks. case scenarios as applicable to each establish some uniformity across The commenters also addressed the facility. facilities. Another commenter suggested types of background checks that DHS is considering, including the personal 4. Adoption of MTSA Provisions that when an owner of multiple facilities has some covered by MTSA information required, and whether The Advance Notice solicited and others by the chemical security name checks against the Terrorist comment on whether DHS should adopt rules, MTSA could be an ASP if applied Screening Database and fingerprint- various provisions from MTSA as to non-MTSA facilities. based checks for terrorism, criminal elements of the chemical security Response: Where the application of history, or immigration status would be program. In particular, DHS asked MTSA practices is sufficient, it may be required. A number of commenters whether it should adopt the following considered a valid ASP. DHS will urged DHS to tailor the degree of performance standards in addition to review and consider adoption of MTSA scrutiny to the degree of employee the standards already listed in 6 CFR plans to non-MTSA facilities on a case- access to sensitive locations. Private 27.230: 33 CFR 105.250 (Security by-case basis. The Department does not screening firms described systems that systems and equipment maintenance), intend to require duplication of effort collect more detailed information and 33 CFR 105.255 (Security measures for where responsible facilities have enhanced verification depending on the access control); 33 CFR 105.260 implemented adequate security applicant’s access. Operators of private (Security measures for restricted areas); measures. screening systems state that they 33 CFR 105.275 (Security measures for typically rely on the database screens monitoring); 33 CFR 105.280 (Security E. Background Checks for candidates with potential terrorist incident procedures). See 71 FR 78276, Under the Advance Notice, covered connections. A chemical industry 78284. facilities would be required to perform association supported screening of Comment: Of the several comments appropriate background checks on and chemical facility employees for received on the request, the majority ensure appropriate credentials for terrorism, criminal records, and opposed adopting the standards, facility personnel and, as appropriate, immigration status. characterizing them as highly detailed for unescorted visitors with access to One commenter explained that and prescriptive and, as such, restricted areas or critical assets. biometric testing in a chemical incompatible with the risk-based Comment: Numerous commenters environment can fail because of performance standards proposed for stated that chemical facilities already smudging and deterioration of chemical facilities. A chemical industry screen their employees for their own fingerprints over time, while another

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17708 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

believed that adequate field testing had commenters stated that third parties critical assets, and a list of the not been completed. Another were already providing background employees requiring background commenter explained that biometrics checks for thousands of employees of checks, shall be detailed in the Site and other verification techniques will chemical facilities. Other commenters, Security Plan that the facility submits to not foil a person who has stolen an including organizations that provided the Department for approval. The rule identity to pass the screen. The screening services, maintained that does not include a provision that would commenter recommended that existing programs for screening exempt certain employees from the authentication techniques, in addition applicants and employees for chemical personnel surety performance standard to validation and verification, be facilities were reliable, effective, and based on length of employment at the applied to applicants with access to inexpensive. Another commenter wrote facility. Merely because an individual secure locations. In response to the that one program operated through has worked in a chemical facility for a proposed use of a list of disqualifying safety councils might be eligible as an period of time without incident does not crimes to reject applications for alternate security program, although a automatically mean that they do not clearance, a number of commenters chemical company suggested not using pose a terrorism risk and should be urged DHS to restrict the crimes to those safety councils, because their standards given free access to restricted areas and that were most clearly linked to were too lax. critical assets without a background potential for terrorism. The commenters, A few commenters favored the check. Allowing such access without a both unions and chemical companies, government’s undertaking background background check presents an argued that loyal employees can lose checks because, unlike private unacceptable security risk, and is their jobs or fail to qualify for hire companies, the government has access contrary to the performance standard on because of misdemeanors, such as to terrorist databases and FBI databases, personnel surety. This is not to say, missing a few months of child support, and because the government, unlike however, that employers may not or crimes that are not good predictors of employers, would be immune from legal consider an employee’s prior history of the potential for terrorism. One challenges from a rejected employee. employment and service in making commenter recommended adoption of Opposition to government responsibility personnel decisions. It should also be an appeal process that allows a came from several commenters who noted that nothing in this regulation disqualified person to explain why he or were concerned about slow completion prohibits a person that has been she is no longer at risk, similar to the of background checks, and that the convicted of a misdemeanor offense process under MTSA regulations. backlog might be exacerbated by a new from being employed at a high risk The preamble also requested chemical security program. chemical facility. comment on whether the access A few commenters, including three Second, DHS views the background provisions of the Transportation Worker unions, strongly urged that the system check process as one of the many pieces Identification Credential (TWIC) provide an appeals process for affected of the Site Security Plan, and as such, Program, Hazardous Materials applicants whose employment will require that it be completed and Endorsement (HME), ATF requirements, prospects in the chemical industry and submitted with the Site Security Plan. or other structured programs should elsewhere could be seriously affected by Once the facility receives the Letter of apply to chemical facility security an erroneous determination. Private Authorization under § 27.245 denoting programs. A few commenters supported services noted that they notified preliminary approval of the Site the concept that the screening required applicants of adverse decisions and Security Plan, the facility may then for the TWIC program should be allowed them to contest the decisions. proceed with all necessary background acceptable for the chemical security Response: DHS believes that checks, if it has not done so already. All program. Indeed, many chemical personnel surety is a key component of employees required in the SSP to have facilities are on bodies of water and a successful chemical facility security a background check should be included employees were already compliant with program. This component of the in the initial submission and must be the TWIC program. Another commenter performance standards will enhance duly vetted in accordance with the plan. took the opposite position that the security in what would otherwise be a This should not cause any interruption TWIC program did not provide the significant potential vulnerability. In the in work. customization available in existing Advance Notice, the Department Third, the Department understands screening systems to grade the level of requested comment on these that many covered facilities already screening based on employment and components of a background check perform background checks on assignment decision. Numerous program: (1) What individuals should employees and certain contractor comments maintained that an employee have a background check? (2) When employees, and with some or contractor who was credentialed should the check be required? (3) What modifications, will allow that process to under the TWIC, HME, ATF, or similar type of background check should be continue. In order to perform an programs should not need additional conducted? And (4) Should the federal appropriate background check for the security screening under the chemical government conduct the check? We purpose of protecting critical assets and security program. Related comments address each of these four issues below. restricted areas of high risk chemical requested portability of security checks First, DHS agrees that the level of facilities from persons who pose a for employees or contractors cleared by screening for employees and contractors terrorist threat, the Department has another chemical facility. One should be commensurate with the made some modifications to the commenter recommended that DHS access provided. As part of this personnel surety performance standard establish a national repository of cleared approach, the facility shall identify in the regulation. The Department will personnel to minimize redundancy and critical assets and restricted areas and consider appropriate open source expense. establish which employees and background checks as an acceptable With respect to the question of contactors may need unescorted access response to the background check whether the government should conduct to those areas or assets, and thus must performance standard. Specifically, the background checks or whether the undergo a background check. A Department will consider as appropriate industry could use authorized third facility’s approach to personnel surety, a background check process that verifies parties to conduct the checks, three including its defined restricted areas, its and validates identity; includes a

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17709

criminal history check of publicly or finding and how the applicant may facility’s Site Security Plan. This will commercially available databases; contest the finding. Applicants will help the inspector to determine whether verifies and validates legal authorization have the opportunity to seek an the facility has adequately implemented to work through the I–9 process; and adjudication proceeding and appeal the risk-based performance standards in includes measures designed to identify under Subpart C. its Site Security Plan. With respect to people with terrorist ties. This last requests for records, the Department F. Inspections and Audits standard can be achieved by checking expects that facilities will produce the against the consolidated Terrorist Numerous comments addressed the records—whether located onsite at the Screening Database (TSDB). The proposed provisions for auditing and facility, at corporate headquarters, or in Department modified the performance inspecting chemical facilities to any other location—that are relevant to standard at 6 CFR § 27.230(a)(12) to determine compliance and allowing the security of the facility. The reflect these changes. certified third-party auditors to Department has added some additional Fourth, while much of the supplement DHS personnel at lower tier language in the rule about the background check process can be facilities. While DHS has responded, to production of records. See accomplished by commercial methods, the extent that it is able, to the § 27.250(d)(4). the check of the Terrorist Screening comments below, DHS also notes that it With respect to scope of inspections, Database is an inherently governmental will issue guidance that identifies DHS is not narrowing its scope to cover function that necessarily includes a appropriate processes for inspections only those items covered in the facility’s check of classified databases that are not and provides specifics about the records Security Vulnerability Assessment and commercially available. The Department that must be made available to DHS Site Security Plan; DHS needs the will augment the background check in upon request. See §§ 27.250(d) and appropriate discretion to inspect those the SSP with a TSDB check. The 27.255. That guidance will provide items and areas that are related to the Department has determined a TSDB further detail. security of the facility. However, DHS check is necessary for the purpose of 1. Inspections has no intention of inspecting areas that protecting critical assets and restricted are unrelated to security. areas of high risk chemical facilities Comment: Section 27.245(a) in the Comment: One industry association from persons who pose a terrorist threat. Advance Notice provided that DHS may noted that § 27.245(b)(1) of the Advance DHS will designate a secure portal or ‘‘enter, inspect, and audit the property, Notice suggested that security measures other method for the submission of equipment, operations, and records of (which DHS requires for final approval application data for each employee or covered facilities.’’ One commenter of the Site Security Plan) should be in contractor for whom a TSDB check is asserted that DHS should inspect and place at the time that DHS inspects a required in the SSP. The Application audit using an approved or facility. The commenter stated that, if data will be the name, date of birth, preliminarily approved Site Security facilities address vulnerabilities through address, and citizenship, and if Plan and not on other criteria outside capital improvements, facilities are applicable, the passport number, DHS the scope of the Site Security Plan. In unlikely to have these security measures redress number,1 and information addition, commenters indicated that in place within the stated time frame. In concerning whether the person has a DHS need not inspect equipment and such cases, the commenter DHS credential or has previously records related to operations outside the recommended that DHS use a timeline applied for a DHS credential. vulnerabilities identified in the facility’s approach, detailing an implementation To minimize redundant background Security Vulnerability Assessment and schedule of prioritized security checks of workers, DHS agrees that a protected in the Site Security Plan; the measures, and include that timeline in person who has successfully undergone commenter thought that such a facility’s Site Security Plan. a security threat assessment conducted inspections would go beyond what is Response: The commenter is correct by DHS and is in possession of a valid required to ensure that high-risk in noting that DHS expects that facilities DHS credential such as a TWIC, HME, chemical facilities are secure. In will have met the requirements of NEXUS, or FAST, will not need to addition, one commenter requested that § 27.225 (i.e., the facility will have undergo additional vetting by DHS. DHS revise the scope of inspection to developed and submitted a Site Security Even so, the facility shall submit the property, equipment, operation, and Plan, which the Department will have name and credential information for records covered in a facility’s Site preliminarily approved) when the these persons along with the application Security Plan. Department visits the facility for an data for other employees. Facilities shall Response: During inspections, inspection or audit. See § 27.250(b)(l). not allow unescorted access to a critical authorized DHS officials may inspect One of the purposes of the inspection is asset or restricted area to a person in equipment, view and/or copy records, for the Department to determine possession of a DHS credential unless and audit records and/or operations. whether facilities have adequately information on that person has been This section imposes an affirmative implemented their Site Security Plans. submitted as discussed above. obligation on facilities to cooperate with However, the Department realizes that DHS will screen each applicant and authorized DHS officials, including there may be circumstances where determine whether the applicant poses inspectors, and allow inspections and facilities will have to implement a security threat. Where appropriate, audits. DHS will inspect a covered security measures through capital DHS will notify the facility and facility following DHS’s preliminary improvements, and that can take time. applicant via U.S. mail, with approval of the facility’s Site Security Based on the Department’s assessment information concerning the nature of the Plan. DHS may also inspect facilities of risk at a given facility and the outside of the Site Security Plan realities of getting security measures 1 A DHS redress number is issued by DHS to an approval cycle if there are exigent into place, the Department will work individual who has successfully completed a circumstances or special security with facilities on a case-by-case basis. redress inquiry, in which the inquiry resolved a concerns. During the course of Where the Department believes that previous false-positive match to a watch list record. Redress inquiries can be submitted directly to DHS inspections, an inspector may ask a extra time is warranted, the Department as part of the DHS Traveler Redress Inquiry facility to demonstrate the effectiveness will work with facilities to incorporate Program (DHS–TRIP). of a given security measure found in the that time into the facility’s Site Security

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17710 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Plan and into the Department’s timeline unannounced inspections for facilities To accommodate those circumstances, for inspecting the facility. that had significant deficiencies in the DHS has identified two exceptions. See Comment: Various commenters prior inspection or that have had an § 27.250(c). DHS had identified one requested clarification about the time unusual number of breaches. exception in the Advance Notice: If the and manner provisions found in Response: DHS has retained the Under Secretary determines that an § 27.245(c) of the Advance Notice. language that it used in the Advance inspection without notice is warranted Several commenters noted that the Notice. Authorized DHS officials will by exigent circumstances, the Under proposed regulations did not define the conduct audits and inspections during Secretary or Assistant Secretary may terms ‘‘reasonable times’’ or ‘‘reasonable reasonable times and in a reasonable approve such an inspection. The exigent manner’’ and asked the Department to manner. The nature of any given circumstances may include threat define those terms. In addition, some inspection will depend on the specific information warranting immediate commenters noted that the preamble circumstances surrounding a particular action. DHS adds a second exception in provided a timeframe for inspections facility’s operations at a given point in this interim final rule: If any delay in (‘‘during regular business hours of 9 time and will be considered in conducting an inspection might be a.m. to 5 p.m.’’) but that the Advance conjunction with available threat seriously detrimental to security, and Notice text did not specify that information. the Director of the Chemical Security timeframe. Other commenters indicated Commenters asked for clarification on Division, Office of Infrastructure that DHS should clearly outline the the times that DHS plans to conduct Protection determines that an inspection regularity of audits and inspections that inspections. While DHS expects that it without notice is warranted, the Field the Department will require for each will conduct many of its inspections Operations supervisor may permit an tier. during the regular business hours of 9 inspector to conduct such inspection. Several other comments discussed the a.m. to 5 p.m., DHS will not limit its This additional exception addresses the notice provisions in the rule. The inspections to regular business hours concerns of commenters who claimed Advance Notice provided that ‘‘DHS only. DHS must have the flexibility to the exception in the Advance Notice will provide covered facility owners and respond to information, operations, and was too restrictive. operators with 24-hour advance notice circumstances whenever they exist or Comment: Some commenters noted before inspections, except where the develop, and so DHS may have to that facilities may choose to validate Under Secretary or Assistant Secretary conduct inspections in the evening, at any government-issued credential for determines that an inspection without the purpose of inspectors gaining entry night, or during weekends. Security such notice is warranted by exigent onto a chemical facility. One commenter concerns are different at different times circumstances and approves such requested that, as part of the guidance, of the day and on different days of the inspection.’’ See § 27.250(c). Several DHS include information on the week, and so DHS must be able to assess industry associations believe that 24- security measures that will allow a the different security measures that hour advance notice would not be a facility to determine that the DHS facilities put into place, pursuant to sufficient amount of time for facilities to officials or third party auditors are their Site Security Plans. arrange for the appropriate personnel to legitimate. be available for the inspection. DHS has maintained the Advance Response: DHS will handle this issue Commenters suggested that DHS Notice provision that gives facilities 24- like other Federal agencies handle their provide more notice to facilities; hour advance notice before an respective inspectors and auditors. requests ranged from three to seven inspection. In some circumstances, DHS Individuals performing these days. Other commenters requested that, may provide facilities with additional inspections will carry Federal in addition to notifying the facility, DHS time. As a general matter, DHS believes government credentials identifying also provide local emergency that 24 hours is an appropriate and themselves as having official authority responders and local agencies tasked reasonable notice period, striking a to inspect. In addition, any chemical with regulating hazardous materials balance between providing the facility wishing to authenticate the facilities with a 24-hour advance notice Department with flexibility to determine identity of an individual purporting to as a courtesy. compliance with this regulation and represent DHS may contact the Others commented on the concept of providing regulated entities with appropriate DHS Chemical Security unannounced inspections. A member of sufficient notice to prepare for an Division official within the Office of Congress objected to the restrictions on inspection. Some commenters suggested Infrastructure Protection at DHS unannounced inspections, asserting that that DHS also provide advance notice headquarters. In addition, the the provision was a near-preclusion of about inspections to local emergency Department has provided some random audits, because approval by responders and local agencies. While additional regulation text on the issue of senior officials (i.e., the Under Secretary DHS may choose to notify local inspector credentials. See § 27.250(d)(1). for Preparedness or Assistant Secretary emergency responders or other agencies Comment: Several commenters for Infrastructure Protection) would on a case-by-case basis, DHS does not addressed the issue of training for make unannounced audits exceedingly believe it is necessary to include a inspectors. One commenter stated that it rare. Moreover, focusing such mandatory requirement in the rule. is DHS’s role to ensure that inspectors unannounced audits exclusively on Many commenters expressed concern and auditors are qualified in both facilities (or geographic regions) where that DHS is not able to conduct physical security and chemical agency officials determine that ‘‘exigent unannounced inspections. These processes. Others noted that, if circumstances preclude notice’’ concerns are unfounded: DHS will be inspectors and auditors do not have a presupposes that the agency is already able to conduct unannounced background in chemical manufacturing, in a position to know where exigent inspections when it complies with then DHS must adequately train circumstances exist. As a result it would internal policy. While DHS has a inspectors. Furthermore, that be far harder for the Department to general requirement for advance notice, commenter encouraged DHS to utilize a determine actual rates of compliance DHS recognizes that there may be cross functional team consisting of with regulatory requirements. An circumstances where advance notice is individuals with chemical process industry commenter would support not possible. knowledge and physical security

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17711

background and include a local area auditors in order to establish a auditors to appropriate state and local first responder on each inspection team minimum level of competency for third- government officials with familiarity of for each facility. The commenter noted party auditors. Other commenters stated the chemical process safety and security that many facilities maintain a close that training should include, among systems currently in place at the relationship with local emergency other things, information on physical chemical facility in question to ensure responders. One commenter indicated security, chemical processes, and safety the credibility and effectiveness of the that DHS inspectors should expect that operations. One commenter inspection and auditing program. Some chemical facilities may require them to recommended Sandia National other commenters suggested that State complete a safety overview before being Laboratory’s Risk Assessment and local entities could be a resource granted access to a facility; this is Methodology for Chemical Facilities base for audits and site visits, including regardless of the training that DHS (RAM–CF) training as an excellent those of higher tier facilities. provides to its inspectors. review in all aspects of chemical facility Commenters asked several other Response: DHS will use properly operation and security. One pointed out specific questions about DHS’s use of trained personnel to conduct that there is currently no certification third-party auditors. A chemical inspections. During inspections, DHS for control system cyber security company requested clarification on how intends to use teams consisting of auditors. Another commenter added DHS could delegate its authorities to Federal inspectors, many with that any DHS third-party inspectors third-parties. Another commenter backgrounds in law enforcement and should have a strong background and wanted the ability to seek legal remedies physical security, and experts in experience with the agricultural retail/ against third-party auditors. Other chemical manufacturing. DHS will put distribution segment of the chemical commenters raised the question of who inspectors through a rigorous training industry. The commenter encouraged would pay for third-party auditors, program, incorporating both classroom DHS to work with industry associations suggesting that DHS should. training and on-site visits, so that and industry experts on establishing the Some commenters argued for the use inspectors are informed on all aspects proper criteria to select certified third- of third-party audits at any chemical related to this regulatory program as party auditors that will be used to facility regardless of its tier ranking. well as on safety issues. These inspect agricultural retail or distribution One commenter noted that the eventual individuals will receive training on facilities determined to be covered by requirements for certification should be specific safety procedures, including these regulations. stringent, creating confidence that the OSHA’s Hazardous Waste Operations One commenter was concerned that auditor will be just as capable as DHS and Emergency Response Standard DHS had not effectively addressed inspectors of auditing or inspecting a (HAZWOPER), that they should use auditor independence and objectivity in high-risk facility. The commenter while visiting chemical facilities. If the Advance Notice. To remedy this suggested that, as a result, a certified chemical facilities request that concern, the commenter suggested that third-party auditor should also be inspectors receive facility-specific safety DHS define third-party auditor and allowed to conduct inspections at briefings or training, the Department address auditor concepts such as due ‘‘high’’ or ‘‘higher’’ risk facilities. Other will work with facilities to diligence, due professional care, auditor commenters noted that allowing third- accommodate those concerns, provided certification, auditor training, auditor party auditors to perform work at any that the additional safety training is indemnification, conformity assessment, chemical facility, regardless of its tier, reasonable given the nature of the audit/inspection methodology, etc. will increase the ability of DHS to expected inspection. Other commenters raised questions rapidly and effectively review security about third-party auditors and plans at chemical facilities by making 2. Third-Party Auditors and Inspectors information protection. One commenter sure sufficient numbers of inspectors are Comment: Numerous chemical stated that all third-party auditors must available at any given time. companies, industry associations, and be held to the same requirements and Other commenters opposed DHS’s use State and local agencies requested standards as applied to DHS officers and of third-party auditors altogether. A clarification on the roles and employees regarding the protection of chemical industry commenter opposed responsibilities of third-party auditors. confidential information; this includes DHS’s use of consultants, contractors, or Several commenters pointed out that information protected by law, such as vendors to perform audits and there is currently a lack of standards for PCII, Sensitive Security Information inspections of facilities based on third-party auditors, and some (SSI), or other applicable requirements. concerns about confidentiality and commenters noted that if DHS does not DHS should develop requirements and conflicts of interest. The commenter provide specific criteria for compliance, procedures, including the use of non- asserted that DHS-trained personnel are such audits will be very subjective. disclosure agreements, to prohibit best suited to understand the Several commenters asserted that there disclosure or use of confidential complexities of security in affected is a need for DHS to develop standards information developed or obtained facilities and to understand the and requirements for third-party during the auditing process. One importance of sensitive business auditors, including requirements for association, whose member companies information provided to DHS. certification, qualifications, already use third party audits, wanted Consequently, the commenter urged independence, objectivity, training and confirmation that the use of third-party DHS not to initiate the proposed re-training, confidentiality, ethical auditors would be in compliance with program without the appropriate level obligations, conflicts of interests, the CVI framework. of staff, training, and resources discipline procedures, and liability Three State agency commenters urged necessary to implement enforcement. insurance. the Department to clarify that the third- One commenter preferred that DHS Several commenters discussed the party auditor provision includes officials, not officials from other third-party auditor certification or qualified state and local assets to government agencies or non- approval process in detail. One conduct audit inspections and assist governmental organizations, conduct commenter pointed out that DHS would with Security Vulnerability third-party inspections or audits to have to develop either a professional Assessments and Site Security Plans. assess compliance; the commenter registration or licensing for third-party One commenter would limit third-party asserted that consistency of audits can

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17712 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

only be maintained if one agency, using commenter supported the training and recordkeeping the same inspection and/or audit recommendation by pointing out that all requirements that are made applicable procedures, performs the work. Several NFPA codes and standards are to drivers hauling covered chemicals other commenters disagreed with the developed through the voluntary should be the responsibility of the concept of third-party auditors unless consensus process and are accredited by transportation firms, not the facilities they were under contract to DHS and the American National Standards they service. met DHS hiring standards and training Institute (ANSI); that Congress, in Response: There are no specific certifications. They felt that if such an several cases has mandated the adoption requirements for recordkeeping of activity is important, then DHS should of NFPA codes and standards and that transportation activities in this rule. carry out the activity itself. Public Law 104–113, as described in H. Orders Response: The Department recognizes OMB Circular A119, mandated that that there are many important and voluntary consensus codes and Comment: Various commenters complex issues surrounding the use of standards be used when they are mentioned the remedies in proposed third-party auditors. Those issues applicable and to ensure that chemical §§ 27.300, 27.305, 27.310, and 27.315. include questions about whether it is facility safety be the primary concern. An industry group indicated that the appropriate for DHS to use third-party Response: Voluntary consensus rule should provide adequate protection auditors and if so, for which tiers of approaches to chemical facility security for recipients of penalty and cessation facilities; what the standards and will be addressed in guidance. However, orders, including the opportunity for an requirements would be for those third- the Department cannot mandate specific adjudicatory hearing before a neutral party auditors; and who would pay for security measures under this authority. hearing officer. The commenter third-party auditors. DHS continues to Comment: One chemical association suggested that the rule make clear that take these issues under advisement. found the requirements for the burden of proof lies with DHS, not DHS intends to issue a future recordkeeping to be excessive. the facility; that facilities may be rulemaking providing the details about Concerning training, the commenter represented by counsel; that the facility its plans to use third-party auditors. In stated that the location of the session is entitled to present evidence on its developing its proposed rule, DHS will and the name and qualifications of the behalf; that there be an orderly process consider these comments about third- trainer were not important, and the for the hearing officer to make a party auditors. Until that time, DHS will requirement for attendees’ signatures decision on the basis of the record use its own inspectors for conducting would cause headaches if attendees presented, including a record of inspections and audits. leave without signing. Also, many of decision and for intra-agency appeal of these requirements seem to prevent the the hearing officer’s decision before it G. Recordkeeping use of web-based training. With respect becomes final. Finally, a trade Comment: One commenter suggested to the drill and exercise provision, the association pointed out a typographical that the recordkeeping and reporting commenter believed that a error in proposed §§ 27.305(b) and requirements be strengthened for comprehensive list of participants is 27.310(a). process malfunctions or any attempted more challenging than it might appear, Response: The Department has terrorist attack; the need for emergency since drills and exercises frequently substantially revised the regulatory text response, safe shut down, evacuation involve persons in multiple locations. in Subpart C, which includes Orders, and decontamination procedures in case Finally, recording the name and adjudications, and appeals. The of an attack or malfunction be defined; qualifications of every maintenance Department directs commenters to the and effective training requirements for technician is overly burdensome and revised regulatory text in Subpart C, as workers in covered facilities be extremely difficult to document. well as summary of those changes in required. According to the commenter, this § II(B) Rule Provisions. In sum, the Response: Recordkeeping proposed requirement would lead to Department has included adjudicatory requirements under this new authority inadvertent non-compliance due to its procedures for a proceeding before a focus on security and will capture many inherent complexity. The commenter neutral hearing officer whereby facilities of the issues identified by the urged that the recordkeeping and others may be represented by commenter. Recordkeeping requirements, at most, track the MTSA counsel and may present evidence. The requirements regarding incidents under requirements (33 CFR § 105.225), which procedures provide that the burden of process safety, including shut down/ are less detailed and only require proof rests with the Assistant Secretary start up, are outside of the scope of this records to be maintained for two years. and that a record will be compiled for regulation. Response: Memorializing minimal an appeal within DHS. Comment: One commenter asked for information about training, drills, Comment: Several others provided guidance regarding what would exercise, and maintenance is important input on cessation orders. A local constitute a reportable ‘‘security for a facility to assist in the analysis and government agency indicated that an incident’’ or ‘‘suspicious incident.’’ The review of its security efforts, and DHS Order to Cease Operations likely would commenter noted that DOT has does not agree that these requirements be litigated immediately after issuance, provided helpful guidance for reporting are overly burdensome or excessive and questioned how non-compliance and recordkeeping under HM–232. given the potential risks in this sector. during the lengthy litigation period Response: The Department will The recordkeeping requirements would be remedied. Another commenter provide facility owners with guidance address specific issues that arise in recommended that DHS add a provision on these and other terms used in the chemical facilities, and a three year stating that it would not enforce an recordkeeping section. period is consistent with the anticipated order to cease operations within 30 days Comment: Another commenter audit and review cycle under this rule. of a final action, which would allow the suggested that § 27.250(a)(4) include a Comment: An industry association facility time to seek judicial review. An reference to NFPA 731, Standard for the argued that, in light of existing DOT industry commenter stated that DHS’s Installation of Electronic Premises requirements, no additional training and professional assessment that a chemical Security Systems (2006 edition), recordkeeping requirements are needed facility was in total violation of the Chapter 9, Testing and Inspections. The for battery transportation. Further, any security requirements should result in

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17713

an initial audit of what is required at rule. Of course, consultations are still actions during adjudications and that particular site to be in compliance. available pursuant to various provisions appeals, substantially address these If, after a reasonable time, the facility in the rule including § 27.120(b). comments. The adjudications and does not come into compliance, then In addition, DHS now expressly spells appeals sections provide that, absent DHS should consider temporary closure out new procedures for adjudications exigent circumstances, Orders are until compliance is attained. An and appeals. In particular, DHS has stayed pending the completion of association expressed concern that DHS added adjudicatory procedures for a proceedings. should consider whether a facility’s proceeding before a neutral hearing Comment: Another commenter products are critical to the economy, officer whereby facilities and others indicated that §§ 27.205(c)(1), chemical industry, or national security may be represented by counsel and may 27.220(b)(1), and 27.240(c)(1) (of the before imposing fines or issuing a notice present evidence. The procedures Advance Notice) cite ‘‘within 20 to cease operations. provide that the burden of proof rests calendar days’’ as the deadline for filing Response: As noted above, the with the Assistant Secretary and that a objections regarding the high risk Department has substantially revised record will be compiled for an appeal determination, risk-based tiering, and the regulatory text in Subpart C, which within DHS. The Secretary is expressly disapproval of site security plans. In includes the provisions on Orders, authorized to appoint individuals to contrast, §§ 27.215(c), 27.305(d), and adjudications, and appeals. Consistent serve as a neutral hearing officer. The 27.320(b)–(d) (of the Advance Notice) with the statement in the Advance Secretary and others retain their existing cite ‘‘within 30 calendar days’’ for Notice, the Department realizes that an authority to delegate duties and certain deadlines regarding notification, Order to Cease Operations would likely responsibilities. appeals, and payments of civil be litigated immediately after issuance. Comment: Another commenter penalties. The commenter believed that See 71 FR 78276, 78287. suggested that DHS revise the rule to having two different deadlines for provide some guidance and limitation I. Adjudications and Appeals various actions under the regulatory on the number of requests that a facility program is burdensome to both DHS Comment: While commenters will be permitted to make for additional and the regulated facilities, and generally supported the processes information and on the maximum extent requested that all ‘‘within 20 calendar proposed for objections and appeals, to which DHS will toll timeframes. One days’’ be amended to ‘‘within 30 some thought that DHS should commenter noted that although there is calendar days’’ to provide more strengthen and expand the objections authority for the Assistant Secretary to consistency within the Department’s and appeals provisions. Several ask the facility for more information, regulatory program. Another commenter commenters suggested that DHS include there is no mechanism for the facility to urged that an appeal must be filed additional provisions to the objections seek further explanation that is needed within 30 calendar days of when the and appeals sections. One commenter for purposes of arguing its objection. recommended that DHS revise the rule Response: The revisions of the order is issued should be changed to to include a full description of the procedures substantially address these within 30 calendar days of when the administrative review process, comments. The adjudications provisions order is served. See § 27.320(b) of the including the procedures to which all empower a hearing officer to make Advance Notice. parties and the adjudicating official decisions on the information to be Response: The Department’s revisions must adhere. Another commenter accepted into each hearing record. to the adjudications and appeals recommended that the Under Secretary Comment: Another commenter stated provisions substantially address these and the Deputy Secretary have the that, under the Advance Notice, a comments. The rule continues to permit authority to delegate their facility had the option of using the consultations but does not set hard and responsibilities as adjudicating officials. appeal procedure (instead of the fast time periods for such consultations. One commenter stated that the burden objection procedure) for challenging the See, e.g., § 27.120(b), § 27.240(b), and of proof should lie with DHS, not the disapproval of its SSP. The Advance § 27.245(b). With respect to the time order recipient, that recipients may be Notice stated that orders are stayed until periods for adjudications and appeals, represented by counsel, that the the administrative appeal is completed, the revised procedures provide that recipient is entitled to present evidence but the Advance Notice did not provide adjudications and appeals must be on its behalf, that there be an orderly specifically for the disapproval of a SSP commenced with stated time periods process for the hearing officer to make to be stayed pending the administrative after ‘‘notification.’’ See, e.g., a decision on the basis of the record appeal. The commenter suggested that § 27.310(b)(2) or § 27.345(b)(2). presented, including a record of DHS should make such a stay explicit. Comment: One commenter decision, and for intra-agency appeal of Another commenter argued that, recommended that the regulations the hearing officer’s decision before it because timelines are short, facilities provide specifically that DHS would becomes final. will be forced to complete the SVA and make available to the public non- Response: DHS has reorganized the SSP regardless of the outcome of the confidential summaries of adjudications and appeals procedures, appeal, thus rendering the appeals determinations on appeals. The as discussed in the summary of rule process moot. If a facility objects to a commenter also recommended that the provision changes to Subpart C. See determination, whether it is opposing regulations contain specific statements § II(B). Given that the rule already either the overall assessment of ‘‘high that objections and appeals may be provides consultation opportunities, risk’’ or the specific tier assignment, one submitted as CVI. coupled with the fact that the commenter recommended that DHS Response: The adjudication and Department has greatly modified its should issue a decision on objection appeal sections contemplate that the adjudications provisions, the before the facility is required to hearing officer or appeal officer will Department believes it is unnecessary to implement any additional measures— make the necessary decisions retain the objections provisions from the including both the SVA and SSP. concerning the handling of CVI. There Advance Notice (proposed §§ 27.205(c), Response: The addition of the factual is nothing in the procedure to prevent 27.220(b), and 27.240(c) and has thus adjudication procedure, with provisions a facility or other person from relying on removed them from the interim final on the effectiveness of administrative CVI.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17714 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

J. Information Protection: Chemical- displace or otherwise affect any In addition, some commenters terrorism Vulnerability Information provisions of Federal statutes, including requested provisions to protect (CVI) the Emergency Planning and whistleblowers by stating that no The Advance Notice identified a Community Right to Know Act, 42 criminal charges be associated with category of Chemical-terrorism U.S.C. 11001 et seq., or section 112(r) disclosing information marked as CVI in Vulnerability Information (CVI) and set and 114 of the Clean Air Act of 1990, manner complying with whistleblower forth rules governing the maintenance, as amended, 42 U.S.C. 7412(r), 7414, protections. safeguarding, and disclosure of sections 308 and 402 of the Clean Water Response: Under § 27.400(c)(3) of the information and records that constitute Act, 33 U.S.C. 1318, 1342, and section Advance Notice, ‘‘any person who CVI. 104(e)(7) of the Comprehensive * * * receives or gains access to what they know or should reasonably know 1. General Environmental Response, Compensation, and Liability Act, 42 constitutes CVI’’ is a ‘‘covered person’’ Comment: Several commenters U.S.C. 9604. and therefore has a duty to protect that maintained that the proposed rule We also believe that any potential CVI in the manner provided in undermined enforcement, gaps in a facility’s security will be § 27.400(d). This includes the duty to accountability, and the credibility of the addressed through the government’s promptly inform the Assistant Secretary program through excessive secrecy. One ‘‘when a covered person becomes aware of these commenters thought that the close involvement with chemical facilities as a result of this rule. that CVI has been released to persons proposed regulations pose a threat to without a need to know * * *.’’ See existing right-to-know laws, while 2. Disclosure of CVI § 27.400(d)(7). We expect that in the another stated that people might be well event DHS is so notified, it will notify Comment: While some of the aware of security gaps and the affected chemical facility. vulnerabilities at specific facilities, and commenters found the provisions to be To the extent DHS determines that it yet would have no official channel to inadequately protective of chemical is appropriate to use third-party communicate concerns to DHS. industry information, others found the auditors in the future for certain Response: As Congress recognized in disclosure rules to be too restrictive. A chemical facilities, the auditors will section 550(c), protecting CVI from few commenters urged the Department have a ‘‘need to know’’ under public disclosure is crucial to DHS’s to include language requiring § 27.400(e)(1)(i) as persons who ability to ensure that chemical facilities notifications to facilities in cases of CVI ‘‘require[ ] access to specific CVI to are as secure as possible against a disclosure to unauthorized parties. The carry out chemical security activities terrorist attack. CVI information may commenters noted that a facility has a * * * directed by the Department.’’ reveal, among other things, current need to know if sensitive information Moreover, under § 27.400(e)(3), DHS vulnerabilities or other details of a pertaining to its site has been or might retains the discretion to require that any chemical facility’s security capabilities have been disclosed. A commenter, individuals with a need to know, that could be exploited by terrorists. In concerned over how the CVI rules may including third-party auditors, complete addition, limited and controlled public affect third-party audits of security appropriate background checks before disclosure of CVI is essential to fostering measures and documents that may be obtaining access to CVI. We believe that the necessary relationship and submitted to the Department as these safeguards are sufficient to ensure information flow between the Alternative Security Plans, requested an that CVI is adequately protected from government and private sector. Indeed, interpretation of DHS’s approach. improper disclosure, even if it may be because the chemical security regime Taking the point further, another handled by third-party auditors. relies to an extent in the first instance commenter did not believe it was in a Section 27.400(b) of the Advance on the veracity and completeness of the company’s best interest to provide Notice, which defines CVI, currently is information provided by chemical copies of CVI to outside parties, as ambiguous as to whether it includes facilities, it is of the utmost importance currently allowed under the proposed information conveyed verbally as well that those facilities are comfortable that rule. The commenter would prefer the as in written form. DHS believes that such information—which may include proposed rule be amended to require concerns over public disclosure of CVI proprietary information—will not be CVI be made readily available to are the same regardless of the manner in unduly exposed to public view. authorized Department representatives which the information is conveyed. In crafting the Advance Notice, DHS only when they conduct on-site visits. Accordingly, we have amended this attempted to balance these concerns One commenter encouraged the section to read as follows: ‘‘In with the desire to enhance information Department to adopt non-disclosure accordance with section 550(c) of the sharing, as appropriate. We believe that protections for verbally transmitted or Department of Homeland Security the rule adequately does this by obtained CVI. The commenter noted Appropriations Act of 2007, the ensuring that any entities or individuals that information sharing among a following information, whether with a ‘‘need to know,’’ including covered facility and authorized transmitted verbally, electronically, or appropriate State and local officials, individuals may require verbal in written form, shall constitute CVI.’’ will have access to the necessary CVI, communication as much as it will We believe that § 27.400(j) gives the while, at the same time, and consistent require written communication. To Department broad latitude to craft a with congressional intent, protecting further protect against disclosure, some civil remedy sufficient to deter the CVI from public disclosure that would commenters believed that proposed unauthorized disclosure of CVI. The IFR undermine the government’s ability to § 27.400(j) should be enhanced so that it does not provide for any criminal ensure the security of chemical has a meaningful deterrent effect and penalties for disclosure of CVI. facilities. establishes consequences that reflect the To the extent that this approach seriousness of the violation. The 3. Scope of CVI conflicts with existing state ‘‘right to commenter suggested that the Comment: A number of commenters know’’ or ‘‘sunshine’’ laws, we believe Department adopt administrative expressed concern regarding the scope that such laws are preempted by this penalties similar to those outlined by 6 of CVI. The commenters wanted the IFR. At this time, we do not intend to CFR 29.9(d). interim final rule to declare that

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17715

information developed under other Two commenters recommended that In drafting the rule, the Department requirements of law or regulation the interim final rule clarify that CVI did not intend for its restrictions on cannot be designated as CVI under this protections would be in addition to any public disclosure to displace separate program. Similarly, a commenter other applicable bases for nondisclosure and additional statutory restrictions on suggested that DHS narrow the scope of of information under the Freedom of the public disclosure of confidential CVI by removing from the rule Information Act (FOIA), such as the business information. § 27.400(b)(9), which defines CVI to Trade Secrets Act and its protections are The terms and structure of Section include ‘‘[a]ny other information that for confidential business information. 550 clearly preclude public disclosure the Secretary, in his discretion, Another commenter noted the provision of CVI. For this reason, it is the determines warrants the protections set gives the Department discretion to Department’s view that CVI, like SSI forth in this part.’’ refuse release of part of a record under and PCII, is exempt from FOIA Response: As outlined in the Advance FOIA that contains no CVI, when disclosure under Exemption 3 of FOIA. Notice, the Department intends CVI to another part of the same document See 5 U.S.C. 552(b)(3). Exemption 3 include only that information developed contains CVI. The commenter suggests provides, in part, that information is and/or submitted pursuant to Section that this proposal is at odds with exempt from disclosure by operation of 550(c). Accordingly, any information longstanding FOIA mandates and another statute, provided that such resulting from other statutory regimes is practice. Furthermore, the commenter statute either: ‘‘(A) requires that the not considered CVI. The Department noted that, if a portion of a requested matters be withheld from the public in believes, however, that the Secretary record contains no CVI and is such a manner as to leave no discretion must retain the discretion provided in reasonably segregable from other parts on the issue; or (B) * * * provided that § 27.400(b)(9). As the Department and of the record that do, there is no such statute refers to particular types of private sector gain more experience authority or justification for matters to be withheld.’’ Id. Section with the chemical security regime set withholding that CVI-free portion unless 550(c) provides in relevant part that forth herein, the Department may some other FOIA exemption or ‘‘information developed under this determine that other types of exclusion applies. section, including vulnerability information, not covered in the current Response: It is the Department’s view assessments, site security plans, and definition of CVI, require similar that the language of Section 550(c) calls other security related information, protection. Section 27.400(b)(9) is also for a unique information protection records, and documents, shall be given necessary to cover any unique or novel regime. As stated in the preamble of the protections from public disclosure information that the Department may Advance Notice, in creating CVI, the consistent with similar information deem, on a case-by-case basis, requires Department looked to and drew on developed by chemical facilities subject protection from public disclosure. various aspects of those information to regulation under section 70103 of protection regimes currently in title 46 [the Maritime Transportation 4. Relation of CVI to Other Categories of existence, including, SSI, PCII and SGI. Security Act (MTSA)] * * *.’’ MTSA Protected Information and FOIA Moreover, as the Advance notice makes states that ‘‘information developed Comment: Some commenters were clear, the Department intended CVI to under this chapter is not required to be confused by the different categories of track the existing SSI regime in certain disclosed to the public.’’ 46 U.S.C. protected information. One commenter respects and indeed, borrowed 70103. Under this language, it is stated that the proposed regulations are somewhat from that regime’s structure conceivable that the government has not sufficiently clear on the relationship and provisions (e.g., requiring a ‘‘need discretion to release information to the of CVI to SSI and other relevant to know,’’ storage in a secure container, public. See Church of Scientology of methods of information protection. The etc.) None of these regimes, however, is Calif. v. U.S. Postal Serv., 633 F.2d commenter indicated that the interim sufficient to accommodate the 1327, 1330 (9th Cir. 1980). As stated in final rule should clarify how these protections Congress called for in the Advance Notice, however, information protection regimes will Section 550(c), most notably, that any ‘‘information developed’’ under MTSA relate to each other. A few commenters information developed pursuant to is treated as SSI and, unlike MTSA, the believed that the creation of the new Section 550(c) be treated as classified statute governing SSI (49 U.S.C. 114(s)) CVI category of information protection information in the course of states that the government ‘‘shall is redundant and unnecessary given that enforcement proceedings. For this and prescribe regulations prohibiting the current protections, such as SSI, are other reasons, the Department disclosure of information ***.’’ adequate options for the Department to developed CVI, which is separate and (Emphasis added.) This language has implement the statutory restrictions. distinct from SSI, PCII, SGI or any other been interpreted as constituting the One commenter noted that the pre-existing information protection ‘‘absolute’’ prohibition required to ‘‘Safeguards’’ classification for the regime. invoke the exception of Subsection (A). Nuclear Sector seems to parallel the Section 550(c) pertains only to See Chowdhury v. Northwest Airlines proposed ‘‘CVI’’ classification for the chemical facilities and thus this rule Corp., 226 F.R.D. 608, 611 (N.D. Cal. Chemical Sector. The commenter does not speak to the handling of other 2004). questioned whether the Department is critical infrastructure sectors. That said, To the extent that there is some considering inventing new security the Department does not take the ambiguity as to which statute should classifications for each of the 15 Critical creation of a new information protection govern for purposes of an Exemption 3 Infrastructure Protection Sectors. The regime lightly, especially in light of the analysis, it is our view that the SSI commenter would prefer that the President’s Memorandum for Heads of statute most accurately reflects Department develop a new Category of Executive Departments and Agencies of Congress’s intent in section 550(c) and Information Classification for all 17 December 16, 2005, entitled ‘‘Guidelines that, therefore, CVI should be exempt sectors for security-specific or security- and Requirements in Support of the from FOIA disclosure under subsection related information that are, at a Information Sharing Environment.’’ (A) of Exemption 3. Nevertheless, we minimum, the same as those for the Absent express direction from Congress, need not resolve the issue at this time current ‘‘Safeguards’’ classification as in Section 550(c), the Department is because it is also our view that the program. reluctant to create additional regimes. language of section 550(c), which

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17716 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

provides meaningful limits on the is provided to California local agencies recommended, or directed by the universe of information subject to may be subject to the California Public Department.’’ Yet because many withholding, is sufficient to justify Records Act, which if true, means that commenters have requested clarification withholding CVI from FOIA disclosure CVI in California may not be protected. on this point, the Department amends under subsection (B) of Exemption 3. Cf. A commenter recommended that the the § 27.400(e)(1) to read as follows: ‘‘A Fin. Corp. v. Donovan, 830 F.2d 1132, Department develop a method to share person, including a State or local 1138 (D.C. Cir. 1989) (holding provision certain information with the public, official, has a need to know CVI in each of Trade Secrets Act failed to qualify for such as whether a facility is in of the following circumstances. * * * ’’ subsection (B) exemption because of compliance with the security program, As stated above, to the extent any ‘‘exceedingly broad,’’ ‘‘oceanic,’’ and because the people who live in close state law requires the public disclosure ‘‘encyclopedic’’ quality of the Act). The proximity to a chemical facility deserve of information that is deemed CVI, it is Department believes that it adequately to know. The commenter recommended the Department’s view that such laws expresses this conclusion in the disclosure of the Letters of Approval are preempted by this rule. § 27.400(g)(1), which states that: issued upon completion of a site At this time the Department does not ‘‘Except as otherwise provided in this inspection and audit. The Letters of intend to provide a means of notifying section, and notwithstanding the Approval could be stripped of any the public about local chemical Freedom of Information Act (5 U.S.C. sensitive information, but still provide facilities. We will continue to consider 552), the Privacy Act (5 U.S.C. 552a), some assurance that facilities are this issue as the program progresses, and other laws, records containing CVI complying with security requirements. however, and issue a subsequent notice are not available for public inspection or Finally, other commenters stated that if necessary. copying, nor does DHS release such the interim final rule should make clear This rule does not attempt to displace records without a need to know.’’ that DHS is not authorized to withhold or create any new law concerning the (Emphasis added.) Moreover, even if information from either House of Department’s ability to withhold FOIA did apply to CVI, we believe that Congress, or, to the extent of matter information from Congress. it would be exempt from disclosure, within its jurisdiction, any committee or 6. Litigation inter alia, as ‘‘homeland security subcommittee of Congress. information’’ under FOIA Exemption 2. Response: Congress clearly intended Comment: With respect to availability See 5 U.S.C. 552(b)(2). that CVI would be shared with State and of CVI during litigation, some The commenters’ concern that, if a local officials, including law commenters supported the preamble document is portion marked to signify enforcement officials and first statement that, in enforcement cases, the both CVI and non-CVI, the Department responders, in appropriate cases. defendant and its counsel would have intends to withhold the entire document Section 550(c) states that ‘‘this access to relevant CVI to enable them to under FOIA, is not supported by the subsection does not prohibit the sharing prepare a full defense. Another Advance Notice. Section 27.400(g)(2) of such information, as the Secretary commenter supported the Department’s states to the contrary that: ‘‘If a record deems appropriate, with State and local proposal to prohibit the disclosure of is marked to signify both CVI and government officials possessing the CVI in civil litigation unrelated to information that is not CVI, DHS, on a necessary security clearances, including Section 550 enforcement. Yet another proper Freedom of Information Act law enforcement officials and first commenter stated that, according to the request, may disclose the record with responders, for the purpose of carrying proposed rule, information on routine the CVI redacted, provided the record is out this section, provided that such chemicals used and produced in not otherwise exempt under the information may not be disclosed processes would be treated as CVI, and Freedom of Information Act or Privacy pursuant to any State or local law.’’ And thus disclosed in litigation only in Act.’’ The use of ‘‘may’’ in this context the Department made clear in the extraordinary circumstances. The was intended as permissive, assuming preamble to the Advance Notice that commenter noted that, because personal such disclosure is otherwise ‘‘[t]he Secretary shall administer this injury and workers’ compensation appropriate. Section consistent with section 550, claims are the consequences of handling including appropriate sharing with State many toxic substances, this provision 5. Sharing CVI With State and Local and local officials, law enforcement would appear to bring these actions to Officials, the Public, and Congress officials, and first responders.’’ See 71 an absolute halt, since these cases Comment: Several comments sought FR 78276, 78289. Furthermore, the cannot be prosecuted without precise greater access to CVI. Commenters importance of sharing CVI with knowledge of the toxic substances at stated that the Department should share appropriate State and local officials is issue. Finally, a commenter cautioned CVI with State and local officials. reflected in the structure of the rule. For the Department to limit those provisions Others noted that the definitions of example, it is expected that chemical governing disclosure in civil or criminal ‘‘covered persons’’ and ‘‘need-to-know’’ facilities will coordinate extensively litigation to the authority delegated to were overly narrow and heightened with state and local officials—including the Department. The commenter saw their concern that the Department the sharing of relevant CVI—in the nothing in the statute delegating the would not provide information to State course of completing the SSPs required authority to issue binding regulations to and local officials. One commenter under § 27.225. It is the Department’s govern a judicial proceeding. The noted that, to the extent information is view, therefore, that the language in the commenter did think it helpful for the shared directly with State or local rule is sufficiently broad to accomplish Department to publish regulations that officials, DHS should enter into this task. For example, we believe that express its own policies and agreements with them to ensure that State and local officials, including law interpretations, thereby affording others CVI is sufficiently protected. Other enforcement officials and emergency guidance as to what the Department’s commenters agreed that the Department responders, fall within § 27.400(e)(1)(i)’s preferred practices will be when should impose strict controls for the use definition of those with a need to know litigation arises. of any facility-specific information by because they will require access to CVI Response: As stated above, Section States and local governments. A to ‘‘carry out chemical facility security 550(c) requires CVI to be treated as commenter stated that information that activities approved, accepted, funded, classified information in the context of

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17717

any enforcement proceedings. This Response: The Department believes was called for and another added that novel mandate reflects the seriousness that the protective measures required by the interim final rule should specify a with which Congress viewed the §§ 27.400(d) and (f) are sufficient to reasonable time period for a decision to protection of CVI from unnecessary adequately protect CVI. be rendered and for the decision to constitute a final administrative disclosure in administrative or judicial K. Preemption enforcement proceedings and, by decision so that judicial relief could be extension, any civil litigation unrelated Comment: Section 27.405(a) of the sought. One association stated that the to Section 550. The Department Advance Notice proposed to preempt preemption decision process and approach balances this concern with the State and local laws, rules, and court appeals procedures did not include need for individuals to have access to decisions that conflict with, hinder, State government, thereby excluding the certain CVI, as appropriate, to defend pose an obstacle to, or frustrate the parties whose laws, rules, and public themselves in enforcement proceedings. regulation. Several chemical companies interests are most affected. The That said, it is not clear that the type and associations endorsed the proposed commenter proposed including a of information involved in a worker’s preemption of State and local mandatory consultation process compensation or tort claim would regulations because they believe that between the State and the facility before necessarily constitute CVI. The mere national risk-based, performance the DHS appeal, a joint hearing reference to a type of chemical may not standards could be undercut by opportunity with the facility and State readily fit into one of the categories of specification standards imposed by the before DHS, a written decision, and States. These commenters expressed the information under §§ 27.400(b)(1)–(9). State access to a judicial appeal for an concern that companies with multi-state However, even if it did, under adverse decision. operations could be subject to a § 27.400(i)(6), the Secretary retains the Response: Please see the section confusing array of State programs. One discretion to release CVI in such below entitled ‘‘Executive Order: 13132: commenter argued that varying State proceedings. Federalism’’ for a response to these regulations also provide varying levels As explained in the preamble to the comments and a discussion of of protection, which the commenter did preemption. Advance Notice, Section 550(c) states not think was Congress’s intent. Other generally that CVI shall be treated as commenters noted that Maritime L. Implementation of the Rule ‘‘classified material’’ in the context of Transportation Security Act (MTSA), Comment: The preamble stated that any enforcement proceedings. Congress which applies to facilities located on did not specify, though, whether the DHS is considering a phased waterways, including chemical implementation of the program. Several Department should look to the rules facilities, contains an express governing classified material in civil industry commenters and a State agency preemption provision. supported phased implementation litigation or criminal litigation. The An equal number of comments from Department chose to mirror in large part because they agreed that DHS should advocacy groups, State agencies, and take action on the most critical facilities the handling of classified material in Members of Congress opposed the civil litigation under 18 U.S.C. 2339B. It first. One commenter warned that Department’s position on preemption. problems and issues should be remains the Department’s view that this These commenters cited the lack of is a reasoned approach to effectuating addressed prior to implementation, and express language in Section 550 and the another commenter requested that DHS Congress’s intent. legislative history to support their define what tiers apply to which phases. position that Congress did not intend to 7. Protection of CVI Two members of Congress asked DHS to grant DHS express or implied authority clarify implementation for high-risk Comment: Other comments sought to preempt State laws and regulations. facilities beyond Phase I. technical changes to make the rule more A few commenters referred to a body of Response: The Department will secure or user-friendly including: case law indicating a ‘‘presumption immediately and quickly address the Prohibiting the transmission of CVI against preemption.’’ Other highest risk facilities. At the same time, using electronic systems unless DHS is commenters, including Members of the Department will reach out to a able to provide Military Grade/Quality Congress, suggested Congress intended broader class of facilities, (numbering in Encryption Devices/Systems to the to resolve the issue of preemption in the many thousands), to gather private sector or provide access to future chemical facility security information necessary for the government locations where this legislation. Commenters also urged DHS Department to make risk-based tiering equipment is available for private sector to delete § 27.405 and allow the courts decisions. use; extending the safeguards that the to determine the preemptive effect of CVI provisions require in proposed the Department’s chemical facility M. Other Issues § 27.400(d)(1) concerning ‘‘secure regulations. 1. Whistleblower Protection container[s], such as a safe,’’ to A few commenters were concerned establishing secure databases; modifying that the language in § 27.405 was so Comment: Many commenters thought requirements for marking every page of broad that it might be construed to that this regulation should provide a CVI document with the words preempt State health, safety, and ‘‘whistleblower protection.’’ They ‘‘CHEMICAL-TERRORISM environmental regulations. Similarly, explained that the regulation should VULNERABILITY INFORMATION’’ and one State requested that DHS modify the protect employees that provide a lengthy warning statement; allowing final provision to avoid any inadvertent information on a facility’s security and facilities to mark only those pages of a preemption of Federal, State, or local safety from employer retaliation. document containing the CVI and the health, safety, and environmental Commenters suggested that workers are warning statement only be provided regulations. on the front lines, and therefore in the once per record, with per page reference A few comments were directed at the best position to participate in the to it as needed; indicating DHS’s appeals procedures for preemption development of Security Vulnerability intention to destroy, return, or permit decisions. One commenter disagreed Assessments and Site Security Plans. reclassification of Top-Screen data with the lack of benchmarks that DHS Commenters suggested that DHS create pursuant to proposed § 27.400(k). would use to determine if preemption a system which would allow

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17718 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

individuals to report vulnerabilities, In contrast, other commenters rejected and TSA), the Federal Bureau of shortcomings, and failures without the the use of any IST requirements. Some Investigation (FBI), the Bureau of fear of retaliation from the company. argued that inherently safer Alcohol, Tobacco, Firearms, & Commenters requested that DHS change technologies are an environmental Explosives (ATF), the Departments of regulatory text to provide whistleblower construct and should not be implicitly State, Commerce, and Transportation protection to employees, with some or explicitly required for security. One (including its modal administrations), suggesting that DHS should include the association expressed concern that EPA, and OSHA. Other commenters protections found in H.R. 5695 and S. requirements for safer technologies encouraged DHS to build upon the 2145. could shift rather than reduce risk and/ existing EPCRA and the Risk Response: Section 550 did not give or limit the production of certain Management Program (RMP) regulatory DHS authority to provide whistleblower chemicals. In addition, some programs, because of their proven protection, and so DHS has not commenters urged DHS to avoid records of success and the important incorporated specific whistleblower including any ‘‘pseudo-IST mandates’’ health, safety, and environmental protections into this regulation. The in the rule; the commenter thought that purposes that they serve. Department does, however, value frank DHS had inadvertently done so. One commenter noted that DOT has information concerning security Response: Section 550 prohibits the security plan requirements in 49 CFR vulnerabilities. Employees with daily Department from disapproving a site Part 172, Subpart I and that several of involvement at high-risk facilities can security plan ‘‘based on the presence or the DHS performance standards overlap certainly be a valuable source of absence of a particular security with the DOT security plan information. In the interest of providing measure,’’ including inherently safer requirements. One commenter asserted some mechanism for employees to alert technologies. See Section 550(a). Even that the proposal in the Advance Notice the Department about information at so, covered chemical facilities are attempted to cover up knowledge of their employer’s chemical facility, the certainly free to consider IST options, toxic dangers by potentially ‘‘gutting the and their use may reduce risk and worker and public right-to-know Department intends to establish a regulatory burdens. provisions’’ of existing Federal and telephone line through which State laws, including the Occupational individuals can submit security 3. Delegation of Responsibility Safety and Health Act and the concerns to the Department. The Comment: Another commenter Emergency Planning and Community Department will provide callers with strongly recommended that DHS Right-to-Know Act (EPCRA). In the option of remaining anonymous. consider delegating oversight addition, some of these commenters 2. Inherently Safer Technology responsibility to State governments, were concerned that preemption and along with appropriate levels of Federal CVI classification will restrict Comment: The Department received funding to support homeland security information flow and access currently numerous comments on the issue of efforts. Interested states could petition available through these Federal inherently safer technologies (IST) DHS, and DHS would grant delegated regulatory programs. options. Several commenters, including authority on a discretionary basis. The Several commenters expressed advocacy groups, unions, academics, commenter suggested that DHS could concern that, although DHS intends that State agencies, and other officials, retain oversight authority, but would this rule not affect other laws regulating strongly encouraged DHS to consider delegate programmatic responsibility manufacture, sale, use, and disposal of safer technologies as well as physical and commit resources to authorized chemicals, it is unclear how the DHS countermeasures. A few commenters, States. The commenter likened the security planning and enforcement can including members of Congress, arrangement to the one that the EPA avoid impacting the environmental, suggested that the Department should uses to handle air and water regulations occupational, trade, and other rules address the use of ISTs, even though and the one that the Nuclear Regulatory already regulating the same facilities. Section 550 was silent on the issue. Commission runs with its ‘‘Agreement Potential conflicts also affect first Many of these commenters urged DHS State’’ program. Another State agency responders. Since past conflicts over to include provisions in the rule that commenter noted that California has authority have tended to diminish would encourage chemical facilities to promulgated a successful chemical program effectiveness, the commenter consider implementing safer processes safety program built on partnering State wonders how such conflicts can be and using safer chemicals as a method and local regulatory interests with avoided. Solutions offered by to improve site security through the chemical industry hazard mitigation commenters include a more explicit reduction of risk. They suggested that activities. statement on conflict resolution in the DHS require chemical companies to Response: The Department has final rules, an inter-agency coordination analyze and report on safer technologies contemplated the issue of delegating process to resolve conflicts, or in their Site Security Plans. These authority to State governments, and has memoranda of agreement with agencies commenters asserted that substituting decided not to do so. If the Department having concurrent authority. safer chemicals, processes, practices, or reconsiders the issue in the future, it Response: The Department is aware technologies not only contributes to will provide notice of any such that potential overlap exists between severity (i.e., can minimize the decision. this rule and existing Federal rules and consequences associated with an programs. In the Advance Notice, the accident at or attack on a chemical 4. Interaction With Other Federal Rules Department acknowledged that overlap facility), but has the potential to greatly and Programs and included an extensive discussion of minimize the physical security costs a Comment: Many commenters pointed existing and proposed Federal programs chemical facility would otherwise have out potential overlap between this rule that are related to chemical security. See to assume. Other commenters pointed and other Federal agency rules. As one § I of the Advance Notice, ‘‘Brief History out that ISTs are the best tools available commenter stated, many Federal of Federal Pre-Existing Chemical to completely mitigate facility agencies have some involvement in Security Tools and Programs.’’ vulnerabilities and safeguard chemical facility security, including Section 550 provides that ‘‘[n]othing communities. DHS (including the U.S. Coast Guard in this section shall be construed to

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17719

supersede, amend, alter, or affect any causes of actions (such as review normal recourse of the U.S. legal Federal law that regulates the pursuant to the Administrative system.’’ manufacture, distribution in commerce, Procedure Act). Response: In § 27.410 of the Advance use, sale, other treatment, or disposal of Members of Congress also challenged Notice, the Department set out two chemical substances or mixtures.’’ In the broad scope of DHS’s position on principles: (1) the chemical security the Advance Notice, after third-party suits, because it would block regulations did not on their own terms acknowledging that the ATF regulates basic challenges to DHS under the create any additional rights of action for the purchase, possession, storage, and Administrative Procedure Act. The any person other than the Secretary; and transportation of explosives, the commenters believed that § 27.410(a) (2) relevant parties may seek a statement Department indicated that it did not was an unnecessary limitation on from the Department of its views in any intend for these regulations to interfere private rights of action. One Member of litigation involving the chemical with ATF’s current authorities. See 71 Congress explained that Congress security regulatory program. The FR 78276, 78290. Likewise, the intended to limit the provision to Department has decided to adopt these Department does not intend for these citizen suits against chemical facilities provisions as proposed in the Advance regulations to impede the authorities of for failure to comply with the Notice. other Federal agencies. With respect to Department’s chemical security rules. In the preamble to the Advance this regulatory program, DHS will work One commenter strongly supported Notice, the Department also stated its closely with the Department of Energy, the Department’s discussion of the view that Section 550(d) prohibits any EPA, OSHA, ATF and other federal prohibition of private rights of action to party other than the Secretary from agencies. Where there is concurrent enforce the provisions of Section 550. enforcing the provisions of Section 550. jurisdiction, the Department will work The commenter believed that the The Department also stated its view that closely with other Federal agencies to availability of enforcement actions Section 550(d) prohibits actions brought ensure that regulated facilities can should be limited to avoid unnecessary to compel the Department to take a comply with applicable regulations and potentially frivolous lawsuits that specific action to enforce Section 550. while minimizing any duplication. As attempt to enforce chemical facility Although the Department does not find the program develops, the Department security requirements that are outside it necessary to codify these views in the will consider the necessity of various the reach of the government’s authority. Code of Federal Regulations, they formalized arrangements, such as an Some commenters supported the DHS remain the views of the Department inter-agency coordination process, to provision because they believed that after considering the comments resolve jurisdictional questions or third party actions should be limited received. In Section 550(d), Congress conflicts. and that the Department should have provided in clear terms its intent to the sole discretion of when and how to prevent parties other than the Secretary 5. Third-Party Actions enforce these regulations. One from making enforcement decisions Comment: Several commenters commenter stated that neither DHS nor under Section 550. This intent would be supported the Advance Notice regulated chemical facilities should be thwarted if parties could seek indirectly discussion of the statutory prohibition distracted from their purpose of to have particular enforcement measures against third party actions to enforce minimizing the possibility of a taken by bringing suit against the any provision of the chemical security catastrophic terrorist incident by Department. Such suits would also pose rules. See § 27.410 and Section 550(d). concerns about how their actions difficulties involving the information A State commenter wrote that the implementing Section 550 might be protections of Section 550 and its prohibition might be construed to used in private tort litigation. One implementing regulations. In short, the prevent State actions against the industry organization supported terms and structure of Section 550 Department to enforce the regulations, a § 27.410(b), which allows a chemical provide the Secretary with critical position that the commenter believed to facility to petition DHS to provide ‘‘the discretion in implementing the be contrary to congressional intent. The Department’s view in any litigation chemical security program. It would be commenter agreed that the statutory involving any issues or matters inappropriate to curtail that discretion language would bar a State from taking regarding this Part.’’ The commenter through lawsuits. See generally Norton enforcement action against an owner or noted that DHS is in a unique position, v. Southern Utah Wilderness Alliance, operator for violation of these in light of its Section 550 authorities 542 U.S. 55 (2004). regulations, but it saw no support in the and expertise, to provide its views 6. Judicial Review statute to bar State action against the regarding a chemical facility’s security Department (or other non-owners or efforts. Comment: Several commenters, non-operators). According to the A labor union expressed concern that including Members of Congress, urged commenter, this interpretation exceeds § 27.410(a) grants immunity to chemical DHS to incorporate the right to judicial the scope of Section 550 and is therefore facilities from actions by third parties to review in the interim final rule and an unnecessary limitation on private enforce any provisions of the rule. The clarify the judicial remedies available. rights of action. Commenters asserted labor union thought that it may act as One commenter mentioned that the that a plain reading of Section 550 an open invitation to chemical facilities right to judicial review was expressly indicates that Congress limited judicial to disregard provisions in the rules or in stated in prior legislative proposals. review in only two ways: (1) By security plans that are meant to protect Another commenter believed that the prohibiting Section 550 from being maritime activities from unduly District Courts have jurisdiction to asserted as a jurisdictional basis for a burdensome or improper application of consider whether a facility presents a cause of action; and (2) by providing security procedures. The labor union ‘‘high level of security risk.’’ Other that only the Secretary of Homeland explained that ‘‘[w]here damages are commenters discussed judicial review Security has the right to bring incurred by maritime-related businesses in the context of preemption, urging the enforcement actions against ‘‘owners or mariners as a result of improper Department to provide facilities with and operators.’’ The commenters said action of chemical facilities under color the opportunity for judicial review of they do not believe that Congress of enforcing their security plans, the Departmental decisions pursuant to intended to prohibit other statutory injured parties should not be denied the § 27.405. Finally, one commenter

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17720 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

recommended that the rule provide that mandating any particular measures that Comment: One commenter supported if the adjudicating official fails to reach facilities should use. Commenters the position that continued funding of a decision within the timeframes recommended that DHS follow the OMB this program would, in effect, provided by the proposed rule, then the Bulletin entitled ‘‘Agency Good reauthorize the program beyond the administrative review process is Guidance Practices,’’ which establishes three years noted in the statute and that deemed completed and all policies and procedures for the DHS may amend the interim final rule administrative remedies exhausted, so development, issuance, and use of if necessary. Another commenter did as to afford the facility the ability to significant guidance documents by not support this position and stated that challenge the Department’s decision in Executive Branch departments and the statute was clear that the regulatory a District Court. agencies. authority expires after three years. That Response: The Department does not Response: DHS believes that guidance commenter also urged the Department have authority to create jurisdiction in will play an important role in this to engage in notice and comment the district courts for review of regulatory program. The Department’s rulemaking for any future modifications Department decisions. Jurisdiction is guidance will provide examples of to the interim final rule. created by provisions of law other than specific measures that facilities may use Response: The Department will, to the these regulations. Nor does the to address the performance standards in extent required by law, engage in notice Department have authority to create the rule. Because this rule is based on and comment rulemaking in the event specific judicial remedies through performance standards and not on that changes are made to this interim rulemaking. Decision-making authority prescriptive measures, guidance is final rule. with respect to preemption is discussed particularly important. The guidance Comment: Commenters suggested a below in the portion of this preamble will aid in informing the regulated process by which facilities can exit the related to Federalism. As discussed community of ways to satisfy the program if they make sufficient changes there, courts have the ability in performance standards without to their operations. In addition, a appropriate contexts to review the imposing additional requirements not chemical company and an industry Department’s opinions as they relate to found in these regulations. association questioned how the results from vulnerability assessments could be preemption. This interim final rule does The Department will designate the used to allow a facility to exit the not augment the administrative law guidance document as CVI. The default principles that govern program. guidance document will contain Response: To address the issue of appropriate action if the Department specific anti-terrorism measures does not make decisions in the exiting the program, the Department designed to mitigate or prevent terrorist timeframes specified in this interim added § 27.120(d). It provides that attacks, as well as other sensitive final rule. covered facilities may request a information. This type of information is consultation with the Department if 7. Guidance and Technical Assistance not appropriate for public disclosure their facility, processes, or types or Comment: Some industry commenters under Section 550 and the regulations quantities of chemicals change in such noted that guidance, information, and issued hereunder. a way that they believe their obligations education were essential for the success With respect to comments regarding under this part may be impacted. For a of the program. A chemical company OMB’s Bulletin on Agency Good discussion of this provision, see § II(B) commented that facilities should have Guidance Practices, the Department above. the opportunity to review and comment notes that it will apply the Bulletin as Comment: Various commenters raised on any guidance provided to them by appropriate. issues related to data security, DHS. Several industry associations Comment: The availability of specifically in the context of the made the same comment and stated the technical assistance to facilities not Department’s web-based CSAT need for guidance to provide direction placed in the top tier was requested by applications. One commenter thought and advice but not to become either an industry association. that DHS should be able to provide enforceable or limiting in the security Response: Technical assistance will Military Grade/Quality Encryption measures that a facility may employ. be available for all covered facilities as Devices/Systems for the private sector to One commenter suggested that there resources permit. Section 27.120 use to submit information. Until that be sufficient time to respond to the establishes requirements for a time, the commenter requested that DHS guidance prior to developing a security Coordinating Official who will provide receive information only in paper form plan. Commenters suggested that DHS guidance to facilities in all tiers, as or discs produced on stand-alone draft guidance on aspects of the necessary and to the extent that computers. regulation and that such guidance be as resources permit. Response: DHS recognizes the data detailed and specific as possible. 8. Miscellaneous Comments security issues that commenters have One commenter believed that, while raised. DHS realizes that there is a risk, agency guidance is procedurally easier Comment: One commenter both on the sending of information and to issue because agencies typically issue recommended that DHS engage and the receiving of information, when it without notice and comment, due work with Congress to enact a more transmitting data over the Internet. DHS process, or other protections afforded by comprehensive and meaningful has weighed the risk to the data rulemaking under the Administrative chemical security law as soon as collection approach against the risk of Procedure Act, this ‘‘pseudo- possible, and under no circumstances collecting the data through paper rulemaking’’ can be referenced in beyond the three year expiration of submissions and concluded that the enforcement actions, imposing cost interim authority. web-based approach was the best. burdens, or creating other compliance Response: The Department has DHS is concerned about data security liabilities. Another commenter aggressively sought this authority, and and has taken a number of steps to appreciated the fact that the guidance on October 4, 2006, Congress provided protect both the data that will be would specify the security measures that authority. The Department will collected through the CSAT program that facilities could take to meet the continue to work with Congress on and the process of collection. The proposed standards while not chemical security matters. security of the data has been the system

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17721

designers’ number one priority. The site extent to which any given type of Response: In the Advance Notice, that the Department will use to collect employee may be able to contribute. DHS did not attempt to estimate the full submissions is equipped with hardware Comment: A commenter noted that a cost of complying with the regulation. encryption that requires Transport Layer strong enforcement program is essential. Instead, DHS placed in the docket a Security (TLS), as mandated by the Response: The Department agrees stand-alone document titled ‘‘Capital latest Federal Information Processing with the commenter and will vigorously Cost Information for Public Comment,’’ Standard (FIPS). The encryption devices enforce these regulations. which provides specific cost estimates have full Common Criteria Evaluation Comment: A few commenters sought for a potential suite of capital security and Validation Scheme (CCEVS) immediate phased-in implementation of investments, such as fences and certifications. CCEVS is the a national re-routing and a ban on toxic perimeter lighting. DHS fully implementation of the partnership by inhalation (TIH) storage wherever understands that, in addition to capital between the National Security Agency feasible. Although the commenters costs, facilities may also incur non- and the National Institute of Standards stated that re-routing is the first and capital costs, including the costs of (NIST) to certify security hardware and fastest step in eliminating catastrophic additional personnel (e.g., security software. vulnerabilities in the chemical sector, guards) and the costs of preparing Upon completing any part of the the commenters thought it should assessments and plans. The costs that CSAT (whether the Top-Screen, ideally be done in tandem with the use DHS has estimated for compliance with Security Vulnerability Assessment, or of safe technology, which could in turn the interim final rule do indeed include Site Security Plan), the facility will click eliminate ultra-hazardous substances in both the capital costs and non-capital a ‘‘submit’’ button, which calls a routine our rail system. costs. DHS also notes that while a few to encrypt the data on the server using Response: These comments are commenters thought the costs DHS a one way key. Properly-executed public beyond the scope of this rulemaking, presented were too low, commenters key encrypted data is very secure, and which addresses chemical facility anti- did not generally provide specific the implementation that DHS has used terrorism standards. However, DHS information regarding which costs may complies with the NIST 800–57 points out that there are current DHS have been too low or additional requirements for security. The key to and other Federal initiatives to address information that would have assisted decrypt the data does not exist outside materials that are toxic by inhalation. the Department in reconsidering the of facilities that are isolated from the On December 21, 2006, TSA issued a costs presented with the Advance public internet. The key is connected Notice of Proposed Rulemaking on Rail Notice. Consequently, while DHS did only through a dedicated, restricted, Transportation Security. See 71 FR government network that cannot re-evaluate the costs presented with the 76852. The rule applies, in part, to tank Advance Notice in response to these connect to the public internet. Once a cars containing materials that are comments, DHS believes that the costs facility submits a Top-Screen (or SVA or poisonous by inhalation (PIH) as presented in the Advance Notice are SSP), the data is no longer available defined in 49 CFR § 171.8. (Note that the reasonable approximations, and they unencrypted. PIH is synonymous with TIH). See remain unchanged in the interim final Comment: A few commenters proposed 49 CFR § 1580.100(b). Also, on rule. indicated that the Advance Notice December 21, 2006, one of the Some commenters indicated that cost lacked meaningful worker involvement. Department of Transportation’s modal recovery for implementation can be According to some of the commenters, administrations, the Pipelines and difficult under certain government the rule does not ensure meaningful Hazardous Materials Administration contracts. Such comments are outside of front line worker and union (PHMSA), issued a Notice of Proposed the scope of this rulemaking. participation during risk assessments, Rulemaking titled ‘‘Hazardous Comment: Commenters also during the development of the Site Materials: Enhancing Rail expressed concern that the high costs Security Plans, in the inspection Transportation Safety and Security for will give an unfair advantage to larger process, or as part of ongoing Hazardous Material Shipments.’’ See 71 companies, because these associated consideration of safety and security FR 76834. PHMSA’s proposed costs will be harder for smaller concerns. One commenter felt that this regulation would include requirements companies (like local farmers) to absorb. omission occurred despite the fact that for rail carriers to use data to analyze Response: The Department notes, in it is the front line employee whose life safety and security risks along rail general, that it may be more difficult for is on the line first if there is a transportation routes where certain smaller companies to absorb increased catastrophic release. hazardous materials (including PIH costs than larger companies. However, Response: There is nothing in the rule materials) are used. the security measures required by this that prohibits chemical facilities from Comment: Some commenters raised interim final rule are not ‘‘command involving employees in their security questions regarding specific funding for and control’’ type measures. Instead, efforts. Many facilities may find it programs such as the BZPP Webcam they are risk-based performance beneficial to include employees in their Pilot Program. measures that will allow a high degree respective efforts to comply with this Response: Those comments are of flexibility for small entities that own regulation (e.g., identifying security beyond of the scope of this rulemaking, high-risk chemical facilities. These risk- vulnerabilities, developing Site Security which addresses chemical facility anti- based performance measures will allow Plans). However, the Department is not terrorism standards. high-risk chemical facilities to tailor a mandating participation by any specific regulatory compliance regime particular type of employee, and the N. Regulatory Evaluation that could minimize the compliance Department does not think it is wise to Comment: Commenters believe that costs to their respective facilities. DHS specify any employees that must be DHS has underestimated this cost to the also notes that certain chemical involved. The Department will leave chemical sector and that DHS should facilities have already voluntarily spent those decisions to facilities, as they will consider other costs beyond capital a significant amount of financial best understand the types and functions costs, such as additional physical resources to increase their security. This of employees at their facility and the security. interim final rule, by establishing a

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17722 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

baseline level of security across tiers, rule and the compliance costs explained Guard found it impractical to attempt to will serve to minimize any competitive in the Regulatory Assessment, we have estimate compliance costs for each advantage that may be currently enjoyed determined that this rule may have a individual facility and instead by those companies that are under- significant economic impact on a developed costs based on 16 ‘‘model investing in security. substantial number of small entities. See facilities.’’ Each of the several thousand Comment: One commenter noted that ‘‘Regulatory Flexibility Act’’ section facilities was placed into one of the 16 in order to quantify the benefits of the below. different subgroups for which rule, DHS must make assumptions about compliance costs were then estimated. the threats to the public, which injects IV. Regulatory Analyses Once the compliance costs for the 16 uncertainty into the calculation of A. Executive Order 12866: Regulatory ‘‘model facilities’’ were calculated, actual benefits. Planning and Review estimating the cost of the regulation was Response: The Department agrees that relatively straightforward. This rule is considered to be an it is difficult to quantify the ‘‘actual As this regulation is not a ‘‘command benefits’’ of this interim final rule. DHS economically significant regulatory and control’’ regulation, owners and/or has included a qualitative discussion of action under Executive Order 12866, operators will have considerable the benefits of this rule in the regulatory because it will result in the expenditure flexibility in how they choose to comply analysis of Executive Order 12886, of over $100 million in any one year. with its requirements. As owners and/ which is located in Section IV of the Accordingly, this rule has been or operators will have discretion on how preamble to this rule. reviewed by the Office of Management to best meet the risk-based performance Comment: Commenters noted that the and Budget (OMB). A Regulatory objectives, the cost assessment makes idea of a model facility is indeed a good Assessment which more thoroughly broad assumptions regarding the proposal but worried that there is explains the assumptions used to percentage of facilities that will choose insufficient time to implement the generate the cost of this interim final to implement or continue certain changes this proposal would entail. rule is available in the docket as security measures and the costs of those Response: DHS agrees that the idea of indicated under ADDRESSES. A summary security measures. For example, many model facilities is a good proposal. The of the Regulatory Assessment follows: facility owners and/or operators will cost estimate of the interim final rule is Cost Assessment Summary choose such measures as building based on the concept of the ‘‘model fences, enhancing perimeter lighting, facility’’ as it was used by the Coast Section 550 requires the Secretary of and hiring additional security guards in Guard to estimate the cost of their Homeland Security to promulgate order to comply with the risk-based Maritime Transportation Security Act of ‘‘interim final regulations establishing performance standards. In order to 2002 Facility Security final rule. See 68 risk-based performance standards for estimate the cost of the interim final FR 60515 (Oct. 22, 2003). security of chemical facilities * * *.’’ regulation, we made assumptions Comment: The Small Business He must do so ‘‘[n]o later than six regarding the specific percentage of Administration (SBA), Office of months’’ from the date of enactment of facilities that will choose to implement Advocacy, commented that DHS should this new authority, i.e. by April 4, 2007. certain security measures, such as prepare an Initial Regulatory Flexibility Consequently, the methodology chosen fences and perimeter lighting. Analysis (IRFA) under the Regulatory to analyze the cost of the interim final We expect that chemical facility Flexibility Act (RFA), 5 U.S.C. 603, after rule was chosen with the six month owners and/or operators will take full issuing the interim final rule or if DHS congressional deadline in mind. In advantage of the flexibility that these makes subsequent changes to the rule order to quickly analyze the cost of the risk-based performance standards will once it is promulgated. SBA explained interim final rule, DHS relied on readily provide and will conduct facility- that the RFA process is an extremely available information and drew upon specific and company-specific analyses valuable tool for agencies to use when the knowledge of professionals to determine the most cost-effective assessing the impact of a rule on small employed by DHS who have extensive method to comply with the businesses and other small entities. knowledge of the chemical industry. In requirements of this interim final Response: The RFA mandates that an addition, on December 28, 2006, DHS regulation. As a result of these internal agency conduct an analysis when an published an Advance Notice, which analyses, facilities are likely to identify agency is required to publish a notice of outlined our costing methodology and various means of meeting the risk-based proposed rulemaking. See 5 U.S.C. also placed in the docket our estimates performance standards applicable to 603(a). In this case, the Department is of capital costs for potential security their facility and tier. It is possible that not required to publish a notice of investments in order to seek meaningful some percentage of facilities will find proposed rulemaking: By directing the public comment. the most-cost effective method to Secretary to issue ‘‘interim final We have reviewed the methodology comply with the requirements will be to regulations’’, Congress authorized the used by the U.S. Coast Guard to analyze implement business and related Secretary to proceed without the the cost of the MTSA Facility Security production, processing or equipment traditional notice-and-comment final rule at 68 FR 60515 (Oct. 22, 2003), changes such as to no longer make required by the Administrative and, due to the similarities between the certain chemicals or to change their Procedure Act. See 71 FR 78276, 78277, MTSA Facility final rule and this process to use a less concentrated or less and 78292 (Dec. 28, 2006). interim final rule, we believe that this hazardous form of a listed chemical. DHS did, however, consider the methodology has merit and should be Such process changes, however, are impacts of this rule on small entities. used in this rulemaking. The MTSA very facility-, business- and process- The Regulatory Assessment, which is Facility Security final rule estimated the specific. Those that involve changes in available in the public docket, contains cost of performance standards on chemistry or processes may take several our analysis of the impacts of this rule several thousand unique facilities. years of design, testing and re- on small entities. After consideration of Similarly, the interim final rule will permitting before they can become the percentage of small entities that may estimate the costs of risk-based operational. Others may be easily and have to comply with the risk-based performance standards to several immediately implemented. However, performance standards required by this thousand unique facilities. The Coast because process changes are so facility-

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17723

and business-specific, DHS has no way final regulations establishing risk-based intent on causing massive damage. of estimating how many facilities may performance standards requiring the Many facilities house toxic chemicals ultimately implement such measures for performance of vulnerability that could become airborne and drift to the purpose of estimating compliance assessments and the development and surrounding communities if released or costs. Consequently, DHS is basing its implementation of site security plans. could be stolen and used to create a estimate of compliance costs on Section 550 establishes the parameters weapon capable of causing harm. commonly used security measures that of the Federal government’s first Terrorist attacks involving the theft or are broadly applicable to a wide range regulatory program to secure chemical release of certain chemicals could have of high risk chemical facilities, such as facilities against possible terrorist a significant impact on the health and the purchase of fences, the purchase of attack. safety of millions of Americans. The perimeter lighting, and the employment The threat of a terrorist attack against disaster at Bhopal, India in 1984, when of security guards. high-risk chemical facilities is real. methyl isocyanate gas—a highly toxic For the purposes of good practices or However, due to the economics of chemical—leaked from a tank, regulations promulgated by other externalities, the free market may not reportedly killing about 3,800 people Federal or State agencies, many provide adequate incentives for and injuring anywhere from 150,000 to chemical facility owners and/or chemical facilities to make a socially 600,000 others, illustrates the potential operators have already spent a optimal investment in the full range of threat to public health from a chemical substantial amount of money and measures that would reduce the release.3 resources to upgrade and improve probability of a successful terrorist • The Department of Justice has security. The costs shown below do not attack. Externalities are a cost or benefit concluded that the risk of terrorists include the costs of security measures from an economic transaction attempting in the foreseeable future to already implemented to enhance experienced by parties ‘‘external’’ to the cause an industrial chemical release is security. The costs shown here are transaction. In the case of chemical both real and credible. Terrorists or intended to represent the marginal cost facilities, since the consequences of an other criminals are likely to view the incurred by owner and/or operators as attack or other security incident may be potential of a chemical release from an a result of the interim final rule. significantly larger than what would be industrial facility as a relatively DHS’s preliminary estimate of the suffered by the owner of the facility attractive means to cause mass number of high risk chemical facilities itself, the private market may not casualties to the populace and/or large that will be covered by the risk-based generally provide the incentive for scale damage to property. DOJ notes that performance measures required by the profit-maximizing firms to unilaterally there have been successful efforts by interim final rule ranges from 1,500 to spend the socially optimal amount of foreign militaries and certain terrorist 6,500 chemical facilities. It is important resources to prevent or mitigate a groups indigenous to other countries to to stress that this estimate is simply terrorist attack. Since companies cause releases from industrial facilities DHS’s best guess based on currently nevertheless will likely suffer serious using bombs. Those efforts have in available information. Within this range consequences in the case of a terrorist effect converted the facilities into of 1,500 to 6,500 potentially covered attack, many certainly have invested makeshift WMD. Some of these releases chemical facilities, DHS is estimating significant resources in implementing have inflicted damage on the 5,000 facilities as its best guess of security measures, and this analysis surrounding communities. Moreover, covered facilities for the purpose of recognizes those resource expenditures. the evacuations that were triggered by In a competitive marketplace, however, generating the cost estimate required by the attempted and successful releases of a firm will not normally choose to make Executive Order 12866. industrial chemicals produced panic some additional investment in security Using the point estimate of 5,000 and disruption among the targeted over their privately optimal amount, facilities, the estimated present value population. These are precisely the since they would consequently be cost of this interim final rule is $3.6 goals of a terrorist.4 choosing to increase its cost of • billion dollars over the period 2006– In April 27, 2005, testimony before production and would be at a 2009 2 (7 percent discount rate). For the the Senate Committee on Homeland disadvantage when competing with purposes of illustration, we also have Security and Governmental Affairs companies that have chosen not to make calculated the cost of the interim final regarding the vulnerability of America a similar investment in security. As this rule over the ten year period 2006–2015. to a chemical attack, a Brookings interim final rule will require high-risk Over the period 2006–2015, DHS Institution Visiting Fellow testified. The chemical facilities to be held to the estimates the present value cost of this testimony stated that ‘‘of all the various same risk-based performance standards interim final rule would be $8.5 billion remaining civilian vulnerabilities in according to their risk-based tier, the assuming 5,000 covered facilities. America today, one stands alone as competitive advantage that may be uniquely deadly, pervasive, and Benefits Assessment currently enjoyed by those companies susceptible to a terrorist attack: toxic- This interim final rule allows DHS to that are under-investing in security inhalation-hazard (TIH) industrial implement Section 550 of the Homeland measures would be expected to chemicals, such as chlorine, ammonia, Security Appropriations Act of 2007. disappear. phosgene, methyl bromide, The first sentence of Section 550 Need for Increased Security at High-Risk hydrochloric and various other acids.’’ mandates the Secretary to issue interim Chemical Facilities In addition, the testimony indicated, There is much publicly-available 2 Section 550(b) of the Act states: ‘‘Interim 3 GAO, Homeland Security: Federal and Industry regulations issued under this section shall apply information that indicates an attack on Efforts Are Addressing Security Issues at Chemical until the effective date of interim or final a chemical facility is a credible threat Facilities, but Additional Action is Needed, GAO– regulations promulgated under other laws that with dire consequences: 05–631T (Washington, DC: April 2005). establish requirements and standards referred to in • According to the Government 4 Department of Justice Assessment of the subsection (a) and expressly supersede this section: Increased Risk of Terrorist or Other Criminal Provided, That the authority provided by this Accountability Office, experts agree that Activity Associated With Posting Off-Site section shall terminate three years after the date of the Nation’s chemical facilities present Consequence Analysis Information on the Internet, enactment of this Act.’’ an attractive target for terrorists who are April 18, 2000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17724 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

‘‘the casualty potential of a terrorist benefits of these risk-based performance release of a hazardous material to harm attack against a large TIH chemical standards: onsite personnel or the community. container near a population center is • By securing and monitoring the • Deterring the theft or possible comparable to that of a fully successful perimeter of the facility, site personnel diversion of potentially hazardous terrorist employment of an improvised are better able to detect, delay, and chemicals will prevent loss of chemicals nuclear device or effective biological respond to individuals or groups who from the site. Such measures provide weapon. The key difference is that TIH seek unauthorized access to the site or security benefits as well as improving chemical containers are substantially its restricted areas. A well-secured inventory controls especially for easier to attack than improvised nuclear perimeter deters intruders from seeking chemicals that can be used directly as devices or effective biological weapons to gain access. By limiting acce3ss a chemical weapon or can be used to are to acquire or fabricate.’’ 5 through control points, the facility can produce such a weapon. • • In April 27, 2005, testimony before more easily and effectively control who Deterring insider sabotage prevents the Senate Committee on Homeland enters and leaves the site. Additionally, the facility’s own property and activities Security and Governmental Affairs securing and monitoring restricted areas from being used by a potential terrorist regarding the vulnerability of America or potentially critical targets within the against the facility. Examining the to a chemical attack, a Senior Fellow for facility reduces the likelihood of theft of background of employees or contractors National Security Studies at the Council chemicals because adversaries risk who may be planning acts of sabotage on Foreign Relations testified. The observation arriving and leaving the assists in preventing an in situ release of hazardous chemicals, damage to testimony stated ‘‘Of the carefully premises. Control of gates by guards or process units manufacturing chemicals selected potential targets that al Qaeda observation of the perimeter allows or tampering with chemicals that could or its imitators might seek to attack, the facility personnel to know who is cause an offsite impact. Ascertaining chemical industry should be at the top entering and leaving the site and in that visitors and contractors have of the list. There are hundreds of what vehicles. Access control points legitimate business onsite and are chemical facilities within the United permit the facility to check persons and escorted when necessary increases the States that represent the military vehicles seeking entrance to the site and control of the site in general and equivalent of a poorly guarded arsenal confirm their legitimate business. reduces the likelihood of sabotage or of weapons of mass destruction.’’ 6 • Controlling access to the site • theft. A recent Congressional Research including the screening and/or • The deterrence of cyber sabotage Service Report discussed trends in inspection of individuals and vehicles will benefit the facility by preventing chemical terrorism and discussed as they enter and exit the facility serves unauthorized onsite or remote access to evidence that U.S. chemical facilities to deter and detect unauthorized critical process controls, site security, may be used by terrorists to gain access introduction or removal of substances business systems, or SCADA systems (if to chemicals. One of the 1993 World and devices that may cause a dangerous significant consequences can be Trade Center bombers, Nidal Ayyad, chemical reaction, explosion, or other generated by the manipulation of the became a naturalized U.S. citizen and release to harm facility personnel or the process controls/systems). Appropriate worked as a chemical engineer in the surrounding community. A regular controls will allow the detection of chemical industry, from which he used system of identification checks will help unauthorized access and unauthorized company stationery to order chemical guards and other facility personnel modification of information (hacking). ingredients to make the bomb.’’ 7 recognize those personnel authorized to • Developing and exercising an • Information contained in the be on the site and identify those emergency plan to respond to security Congressional Record states that U.S. individuals who should not be granted incidents internally and with local law chemical trade publications were found access. enforcement and first responders (i.e., • in one of the caves where Osama bin Deterring vehicles from entering the emergency medical technicians (EMTs), Laden had hidden.8 facility or restricted access areas will fire, police) benefits the facility by reduce the likelihood that an adversary preparing it to take quick and decisive Qualitative Benefits of the Risk-Based will detonate a vehicle-borne action in the event of an attack or other Performance Standards improvised explosive device inside the breach of security. Establishing As explained previously, Section 550 facility. Appropriate methods of relationships with local law requires the Secretary of Homeland deterring vehicles form unauthorized enforcement improves responder Security to promulgate ‘‘interim final entry provide additional time for local understanding of the layout and of regulations establishing risk-based law enforcement response or otherwise hazards associated with the facility and performance standards for security of delay or prevent the vehicle from strengthens relationships with the chemical facilities * * *.’’ Section entering the site to cause harm. community. 27.230 establishes these standards. • Securing and monitoring the • Maintaining effective monitoring, Below is a discussion of the qualitative shipping and receiving of hazardous communications and warning systems chemicals will improve inventory allows the facility to notify internal 5 Statement of Richard A. Falkenrath, Visiting control, product stewardship and personnel and local responders in a Fellow, The Brookings Institution, before the security against theft, diversion and timely manner about security incidents. United States Committee on Homeland Security tampering. In addition, improved Regular tests, repairs and improvements and Governmental Affairs (April 27, 2005). inventory control and control of to the warning and communications 6 Statement of Stephen E. Flynn, PhD, Jeane J. Kirkpatrick Senior Fellow for National Security transportation containers on site system increase the reliability of such Studies, Council on Foreign Relations, before the decreases the likelihood that a foreign systems and will improve response United States Committee on Homeland Security substance could be introduced into time. and Governmental Affairs (April 27, 2005). feedstock, incidental chemicals, or • When the facility provides proper 7 CRS Report for Congress, Chemical Facility products leaving the site that could later security training, exercises and drills, Security, Updated August 2, 2006. 8 Bond, Christopher. Statement on S.2579. react with the chemical to cause a facility personnel are better able to Congressional Record, Daily Edition, June 5, 2002, significant on- or off-site reaction to respond to suspicious behavior, p. S5044. damage process equipment or cause a attempts to enter or attack a facility, or

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17725

other malevolent acts by insiders or B. Regulatory Flexibility Act facilities will be deemed to be ‘‘high- intruders. Well trained personnel who The Regulatory Flexibility Act (RFA) risk’’ for the purposes of the rule. Also, practice how to react can more mandates that an agency conduct an in meeting the risk-based performance effectively detect and delay intruders RFA analysis when an agency is standards required by this rule, facilities and provide increased measures of required to publish a notice of proposed will have a large degree of flexibility in deterrence against unauthorized acts. rulemaking. See 5 U.S.C. 603(a). An choosing specific security Establishing relationships with local RFA analysis, however, is not required enhancements. We expect that chemical law enforcement improves responder when an agency is not required to facility owners and/or operators will use understanding of the layout and hazard publish a notice of proposed this flexibility to minimize the cost of associated with the facility and rulemaking, as is the case here. By this rule to their operations. These strengthens relationships with the directing the Secretary to issue ‘‘interim uncertainties make it very difficult to community. final regulations’’ Congress authorized estimate the extent of the economic the Secretary to proceed without the impact of this rule on small entities. • The ability to escalate the levels of traditional notice-and-comment Even so, strictly for the purposes of security measures for periods of required by the Administrative analyzing the impact of this rule on elevated threat will provide the facility Procedure Act. See 71 FR 78276, 78277, small entities, DHS has selected from with the capacity to increase security and 78292. the EPA RMP database a sample of 350 measures to better protect against Even though a Regulatory Flexibility facilities that may be required to comply known increased threats or generalized Analysis is not required for this rule, with the risk-based performance increased threat levels declared by the DHS did consider the impacts of this standards required by the rule. We federal government. By maintaining the rule on small entities. The Regulatory researched these 350 facilities using ability to increase security measures, the Assessment, which is available in the Reference USA and LexisNexis and facility does not have to expend time public docket, contains this analysis of found detailed information (i.e., annual and resources on more robust security the impacts of this rule on small revenue, number of employees, and measures unless and until warranted. entities. A portion of the analysis is parent company information) for 326 (93%) of them. Of the 326 facilities for • A facility addressing specific summarized below. At this time, DHS’s preliminary which we were able to find detailed threats, vulnerabilities or risks estimate of the number of high risk information, our analysis of the data identified by the Assistant Secretary chemical facilities that will be covered indicates that 118 (36%) fit the Small will decrease the likelihood of a by the risk-based performance measures Business Administration’s definition of successful attack on its facility, required by the rule ranges from 1,500 a small entity. If we assume that the 24 personnel, products or community. Any to 6,500. This estimate is based on companies for which we could find no additional performance standards currently available information. After information are also small entities, the specified by the Secretary will increase chemical facilities with certain risk percentage of these facilities which are the facilities ability to deter, detect, profiles complete the Top-Screen, DHS owned by small entities could be 41 delay and respond to specific and will have a better understanding of how percent. Table 1 below provides revenue general threats against its security. many and which specific chemical ranges of the118 small entities.

TABLE 1.—PERCENTAGE OF SMALL ENTITIES BY REVENUE

Number of Percent of Revenue small entities small entities

$0–$999,999 ...... 11 9.3 $1,000,000–$4,999,999 ...... 14 11.9 $5,000,000–$9,999,999 ...... 12 10.2 $10,000,000–$19,999,999 ...... 15 12.7 $20,000,000–$49,999,999 ...... 23 19.5 $50,000,000–$99,999,999 ...... 9 7.6 $100,000,000–$999,999,999 ...... 31 26.3 > $1Billion ...... 3 2.5

Total ...... 118 100.0

After consideration of the percentage of ‘‘meaningful and timely input by State meet with the Department to discuss the small entities that may have to comply and local officials in the development of proposed regulations. These groups with the risk-based performance regulatory policies that have federalism were: the National League of Cities, the standards required by this rule and the implications.’’ Between the publication National Association of Counties, the compliance costs explained in the of the Advance Notice and this Interim National Conference of State Legislators, Regulatory Assessment, we have Final Rule, the Department has the County Executives of America, the determined that this rule may have a complied with this instruction in two International City/County Management significant economic impact on a ways. The Department specifically Association, the American Legislative substantial number of small entities. sought public comment on issues Exchange Council, the National C. Executive Order 13132: Federalism involving preemption. Additionally, Emergency Management Association/ after issuing its proposal, the CSG Council of State Governments, the 1. Background Department specifically invited a International Association of Emergency Executive Order 13132 requires DHS number of groups representing the Managers, the National Governors to develop a process to ensure interests of States and their legislators to

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17726 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Association, and the United States administrative agency to administer a federal law in a number of contexts. See, Conference of Mayors. congressionally created * * * program e.g., In re Wireless Consumers Alliance, The Department received numerous necessarily requires the formulation of Inc., 15 F.C.C.R. 17,021 (Aug. 14, 2000) comments in response to its invitations. policy and the making of rules to fill (administrative agency opinion on States, the private sector, academia, any gap left, implicitly or explicitly by preemptive effect of federal law); 1999 various interest groups, and individual Congress.’’) (ellipses in original; citation WL 303948 (April 20, 1999) (U.S. members of Congress submitted omitted). Agencies, not only the courts, Department of Labor Release discussing comments. The commenters were exercise their expertise to fill in the gaps views on preemption of state laws). We divided in their views of the proposed and interpret the ambiguities. See id. at anticipate that the courts will ultimately approach on preemption. A number of 843 & n.11 (‘‘If, however, the court resolve any preemption question, with commenters favored the Department’s determines that Congress has not an appropriate level of deference to the proposal, while others opposed it. Some directly addressed the precise question position of the agency. commenters misunderstood the at issue, the court does not simply Some comments urged the Department’s position on preemption or impose its own construction on the Department to avoid preemption after the current state of the case law on statute * * * Rather, if the statute is looking to a canon of interpretation preemption. As discussed below, the silent or ambiguous with respect to the involving a presumption against Department is clarifying its approach on specific issue, the question for the court preemption. This presumption, preemption in certain respects. is whether the agency’s answer is based however, typically exists ‘‘in areas of Specifically, we confirm: the propriety on a permissible construction of the regulation that are traditionally of discussing the Department’s view on statute. The court need not conclude allocated to states and are of particular preemption, though Congress was silent that the agency construction was the local concern.’’ Wachovia Bank, N.A., on the question; that the type of only one it permissibly could have 414 F.3d at 314; see also United States preemption called for by Section 550 is adopted to uphold the construction, or v. Locke, 529 U.S. 89 (2000). As noted not field preemption, but conflict even the reading the court would have in the Advance Notice, measures to preemption; and that the Department reached if the question initially had prevent terrorist attacks against the will further assist in the process of arisen in a judicial proceeding.’’). And Nation’s critical infrastructure do not determining whether a non-Federal even if a court interprets an ambiguous involve an area traditionally regulated regulation is preempted by providing statute before an agency promulgates by the States. Very few state and local opinions regarding the impact of that rules to fill the gaps or interpret the jurisdictions currently regulate security regulation on the Federal scheme. ambiguities, the court’s interpretation at chemical facilities. does not necessarily restrict the agency’s The Department recognizes that 2. Propriety of Department’s Views on courts sometimes look to legislative Preemption ability to adopt a different interpretation in the future. See National Cable & intent with respect to the issue of As an initial matter, some Telecomm. Ass’n v. Brand X Internet preemption—decisions in this area are commenters, including Members of Servs., 545 U.S. 967, 982 (2005). replete with such references. See, e.g., Congress, suggested that, since Congress This does not mean to slight the Medtronic, Inc. v. Lohr, 518 U.S. 470, was silent on preemption, the courts’ role in the interpretive process. 485 (1996). In the context of Section Department’s rulemaking should be As the Supreme Court has stated, ‘‘The 550, however, it is very difficult to silent as well. The comments on this judiciary is the final authority on issues discern that intent. The legislative subject touch on two important of statutory construction and must reject history on the point is mixed, with subtopics: who (i.e., which government administrative constructions which are various Members of Congress making structure) should determine the contrary to clear congressional intent.’’ floor statements that are not consistent preemptive effect of Section 550 and the Chevron, 467 U.S. at 843 n.9. with each other. See, e.g., Cong. Rec. regulatory program promulgated under With respect to the issue of H7967 (daily ed. Sept. 29, 2006) its authority; and what law, if any, the preemption in particular, the Supreme (statement of Rep. King) (‘‘the intention regulatory program under Section 550 Court has applied these same principles is not to preempt the ability of the might preempt. regarding Congress, the courts and the States’’) and Cong. Rec. S10619 (daily In Section 550, Congress did not agencies. See, e.g., Fidelity Fed. Sav. ed. Sept. 29, 2006) (statement of Sen. expressly speak to the issue of and Loan Ass’n v. de la Cuesta, 458 U.S. Voinovich) (‘‘I feel strongly that this preemption. Preemption questions 141, 151–54 (1982). ‘‘Federal regulations provision sets that uniform set of rules following statutory silence on have no less pre-emptive effect than and in so doing, impliedly preempts preemption are not novel. Courts and federal statutes * * * A pre-emptive further regulation by State rules or agencies have previously faced and regulation’s force does not depend on laws.’’) In addition, it is particularly dealt with who decides preemption express congressional authorization to difficult to gauge congressional intent issues in the face of congressional displace state law.’’ Id. at 153–54. The on one relatively short, page-and-a half silence. It is helpful to recall that, as a Supreme Court, and lower courts, have authorizing provision in a lengthy general matter, Congress often provides given deference to agencies that define, appropriations act that runs over 100 the Executive Branch with authority to through regulation, the scope of pages. To be sure, individual members administer a regulatory program while preemption. See, e.g., id.; Wachovia of Congress—including some members leaving gaps or ambiguities in the Bank, N.A. v. Burke, 414 F.3d 305 (2d substantially involved in homeland authorizing law. When this happens, the Cir. 2005). security issues—have expressed strong Supreme Court has long recognized that So although some commenters views on preemption. But can it really agencies have the responsibility, within claimed that the Department lacks the be said that legislative intent may be the general delegation, to formulate authority to address the issue of discerned on the silent aspect of one policy and make rules to fill those gaps preemption in its regulations or later- authorizing section of a lengthy and interpret the ambiguities. See issued opinions, this assertion is simply appropriations act? Cf. Chrysler Corp. v. Chevron U.S.A., Inc. v. Natural not consistent with current law. Federal Brown, 441 U.S. 281, 311–12 (1979); Resources Defense Council, Inc., 467 agencies have historically published Castaneda-Gonzalez v. INS, 564 F.2d U.S. 837, 843 (1984) (‘‘The power of an their views on the preemptive effect of 417, 424 (D.C. Cir. 1977).

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17727

As an additional consideration, the regulatory text at § 27.405—apply to to the regulation as it relates to Department notes that if it were to Section 550 and this regulation. preemption. disclaim any preemptive effect of the After considering comments, Certain commenters asked that the regulatory program under Section 550, it however, the Department has modified Advance Notice be more clear in would create an inconsistency with the certain of its prior statements on delineating what state laws are not to be Department’s own regime for regulating preemption as potentially too broad. In preempted. The Department does not chemical facilities under the MTSA. In the Advance Notice, the Department intend to preempt existing health, safety its regulations under MTSA, the noted that Section 550 compels the and environmental regulations. In the Department has stated its view that the Department to preserve chemical future, however, if state or local principles of conflict preemption apply. facilities’ flexibility to choose security governments enact security laws or See 68 FR 60468 (Oct. 22, 2003). measures to reach the appropriate promulgate security regulations under Congress has charged the Department security outcome. The Department went the rubric of health, safety, or with implementing the security on to say that a State measure frustrating environmental protections, those laws programs under both MTSA and Section this balance ‘‘will be preempted.’’ The and regulations will be measured 550, and the Department seeks to Department has decided, however, that against the standard described in implement these programs in a clarification is in order, as this § 27.405. Of course, non-Federal consistent and logical manner. regulation is not intended to be the regulations that fall below federal 3. No Field Preemption equivalent of ‘‘field preemption’’ for performance standards will not facilities determined to be high risk. diminish the federal requirements that Some commenters feared—and others Instead, it is only meant to indicate that covered facilities must meet. hoped—that the Department’s approach the regulation is not to be conflicted by, to preemption would wholly displace interfered with, hindered by or D. Unfunded Mandates Reform Act state and local laws. This is incorrect. frustrated by State measures, under The Department does not in this interim Title II of the Unfunded Mandates long-standing legal principles. final rule claim that the ‘‘field Reform Act of 1995 (UMRA), enacted as preemption’’ doctrine applies in this Only a few jurisdictions have Pub. L. 104–4 on March 22, 1995, regulatory context. The Department developed security regulations (rather requires each Federal agency, to the does not view its regulatory scheme as than health, safety, and environmental extent permitted by law, to prepare a one which so fully occupies the field as regulations) governing chemical sites. written assessment of the effects of any to pre-empt any state law touching the While we have not canvassed all Federal mandate in a proposed or final same subject. existing state laws and regulations, agency rule that may result in the This is clear from the statutory text. currently we have no reason to conclude expenditure by State, local, and tribal For example, the authority granted in that any such non-Federal measure is governments, in the aggregate, or by the Section 550 calls for the federal being applied in a way that would private sector, of $100 million or more regulations to apply to facilities that impede the performance standards or (adjusted annually for inflation) in any present ‘‘high levels of security risk’’ as other provisions of Section 550 and this one year. Section 204(a) of UMRA, 2 determined by the Secretary. The Interim Final Rule. However, concrete U.S.C. 1534(a), requires the Federal Department does not, therefore, have conclusions about the effect of state agency to develop an effective process authority under Section 550 to regulate laws and the application of preemption to permit timely input by elected facilities that may, in the Secretary’s principles will require an understanding officers (or their designees) of State, view, present other than high levels of of future, factual contexts in which local, and tribal governments on a security risk. Some facilities may not be those laws are applied. The Department proposed ‘‘significant intergovernmental deemed by the Department as will consider any problems that arise in mandate.’’ A ‘‘significant presenting a high risk. These facilities this regard in a more particularized intergovernmental mandate’’ under the may be regulated by States provided manner. UMRA is any provision in a Federal such regulation is not otherwise in Consistent with the approach outlined agency regulation that will impose an conflict with the federal program. In in the Advance Notice, the Department enforceable duty upon State, local, and addition, as mentioned in the will entertain requests for its views on tribal governments, in the aggregate, of comments, Section 550 specifically particular state or local laws, which will $100 million (adjusted annually for allows the Secretary to approve be issued by way of an opinion. In inflation) in any one year. Section 203 alternative security programs that may addition to the approach described in of UMRA, 2 U.S.C. 1533, which have been submitted in response to the Advanced Notice, the Department supplements section 204(a), provides State or local authorities. will seek the input and views of a State that before establishing any regulatory before finalizing the Department’s view requirements that might significantly or 4. Principles of Conflict Preemption of preemption with respect to such uniquely affect small governments, the Even for high risk facilities, the State’s laws. See § 27.405(d)(3). It will agency shall have developed a plan that, approach outlined in the Advance be helpful for the Department to seek among other things, provides for notice Notice, and further developed here, is the views of the relevant States if an to potentially affected small one of conflict preemption. Conflict opinion on preemption is requested governments, if any, and for a preemption is established in the under these regulations. Additionally, meaningful and timely opportunity to Constitution and has been developed in the Department would, time permitting, provide input in the development of case law (see, e.g., Geier v. American seek public notice and comment before regulatory proposals. The Department Honda Motor Co., 529 U.S. 861, 873 formulating its views on a particular sought input from state and local (2000); Fidelity Fed. Sav. and Loan preemption question, consistent, of governments during the comment Ass’n v. de la Cuesta, 458 U.S. 141, 152 course, with the congressional mandate period and hosted a meeting with state (1982); Surrick v. Killion, 449 F.3d 520, to protect from public disclosure and local representatives on February 6, 530–31 (3d Cir. 2006)), and the well- information submitted under Section 2007. A list of participants and short known standards of conflict 550. The Department, however, declines description of the meeting is in the preemption—which are captured in the to add additional procedural formalities docket.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17728 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

This interim final rule would result in Assessment Tool (CSAT) system to Annual Burden Estimate: Each facility expenditure by the private sector of collect and analyze key data from is estimated to have a burden of 44.5 $100 million (adjusted annually for chemical facilities to: (1) Identify minutes to complete DHS Form 9002 inflation) or more in any one year. At facilities that present a high level of (1/07). The annual hour burden is this time, however, we do not have risk, (2) Support the facility-specific estimated to be 22,250. enough information regarding the judgment for preliminary and final tier Title: Chemical Security Assessment specific facilities that will be required to high risk determinations, (3) Specify the Tool (CSAT): Top Screen. comply with the rule’s risk-based facility-specific security concerns that Summary of Collection of performance standards in order to know facilities must address in their SVAs Information: Section 550 provided the if this interim final rule will impose an and SSPs, and (4) Collect the facility- Department with the authority to enforceable duty upon State, local, and specific security measures, activities, regulate high risk chemical facilities. tribal governments of $100 million and systems for judging compliance Further, it requires that the Secretary of (adjusted annually for inflation) or more against the risk based performance the Department of Homeland Security in any one year. DHS has conducted a standards. DHS will submit the identify high risk facilities and provide ‘‘Regulatory Assessment,’’ which collections for SVAs and the SSPs for the protection of the information explains the economic effects of the during the summer months. regarding and provided by those rule. The ‘‘Regulatory Assessment’’ is This rule introduces a new collection, facilities. DHS has identified the CSAT summarized in the section entitled 1670–NEW, with two new forms: User system as the Information Technology ‘‘Executive Order 12866,’’ and a copy Registration (DHS 9002 (1/07)) and Top (IT) system it will use to obtain and may be found in the public docket for Screen (DHS 9007 (2/07)). As such, DHS quantify this key risk data from this IFR. has submitted the following information facilities. The Department will begin As explained in the ‘‘Regulatory requirements to OMB for its review: collecting information upon the Assessment,’’ DHS’s preliminary Title: Chemical Security Assessment effective date of this interim final rule. estimate of the total number of high-risk Tool (CSAT): User Registration. Use of: The CSAT is the Department’s chemical facilities that will be covered OMB Control Number: 1670_NEW system for collecting and analyzing key by the risk-based performance measures Summary of Collection of data from chemical facilities to: (1) required by this rule ranges from 1,500 Information: Section 550 provided the Identify facilities that present a high to 6,500 chemical facilities. This Department with the authority to level of risk, (2) Support the facility- estimate is based on currently available regulate high risk chemical facilities. specific judgment for preliminary and information. After chemical facilities Further, it requires that the Secretary of final tier determinations, and (3) Specify fitting certain risk profiles complete the the Department of Homeland Security the facility-specific security concerns Top-Screen risk assessment identify high risk facilities and provide that facilities must address in their methodology (which will be accessible for the protection of the information SVAs and SSPs. through a secure Department website), regarding and provided by those Respondents (including number of): DHS will better understand how many facilities. DHS has identified the CSAT DHS anticipates there will be 40,000 and which specific chemical facilities system as the Information Technology respondents in the first year. The will be deemed to be ‘‘high-risk’’ for the (IT) system it will use to obtain and respondents will be chemical facilities purposes of this rule. For the purposes quantify this key risk data from that possess, or plan to possess, a of this discussion, we believe this rule facilities. The Department will begin quantity of a chemical substance may require certain municipalities that collecting information upon the determined by the Secretary to be own and/or operate power generating effective date of this interim final rule. potentially dangerous or that meets facilities to purchase security Use of: The Department will use the other risk-related criteria identified by enhancements, but at this time we do registration information as a basis for the Department. not know the extent of the financial providing chemical facilities access to Frequency: Most facilities will impact. the CSAT system. complete the Top-Screen once. The Need for Information: The Department will require facilities that E. Paperwork Reduction Act Department needs the information from are determined to be high risk to This interim final rule contains the User Registration form to identify periodically resubmit the Top-Screen. collection of information requirements and vet requests to access the CSAT Burden of Response: Depending upon under the Paperwork Reduction Act of system. the size of the facility, the burden rates 1995 (44 U.S.C. 3501–3520). ‘‘Collection Description of the Respondents: DHS will vary. The estimated burden hours of information,’’ as defined in 5 CFR anticipates that there will be 40,000 for the different facility types are 1320.3(c), includes reporting, record respondents in the first year. The detailed in the table below. The keeping, monitoring, posting, labeling, respondents will be the owners and combined hour burden for all facilities and other similar actions. operators of the chemical facilities that completing the Top-Screen is estimated Under Section 550 of the DHS will need to submit information through to be 1,230,550. The combined annual Appropriations Act, the Department the CSAT system. cost burden for the User Registration will use the Chemical Security Frequency of Response: On Occasion. and the Top-Screen is $110,003,900.

TABLE 2.—SUMMARY OF BURDEN HOURS FOR CONDUCTING USER REGISTRATION (DHS FORM 9002 (1/07)) AND TOP SCREEN (DHS FORM 9007 (2/07))

Number of Hour burden Total hour Type of facility facilities per facility burden

Open Large ...... 9,327 39.5 368,400 Merchant Wholesalers ...... 432 30 13,000 Facilities with only 1–2 chemicals ...... 7,968 25.5 203,200

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17729

TABLE 2.—SUMMARY OF BURDEN HOURS FOR CONDUCTING USER REGISTRATION (DHS FORM 9002 (1/07)) AND TOP SCREEN (DHS FORM 9007 (2/07))—Continued

Number of Hour burden Total hour Type of facility facilities per facility burden

Other ...... 22,273 30 668,200

Total ...... 1,252,800

As required by the Paperwork interim final regulations and the The Interim Final Rule Reduction Act of 1995 (44 U.S.C. 3507 statutory mandate, which directed that I For the reasons set forth in the (d)), we have submitted a copy of the each chemical facility develop and preamble, the Department of Homeland interim final rule to OMB for its review implement site security plans, with the Security adds Part 27 to Title 6, Code of of the collections of information. Due to proviso that the facility could select Federal Regulations, to read as follows: the circumstances surrounding this final layered security measures to rule, we ask for emergency processing. appropriately address the vulnerability Title 6—Department of Homeland DHS is soliciting comments to: assessment and the risk-based Security (1) Evaluate whether the proposed performance standards for security of Chapter 1—Department of Homeland information requirement is necessary for the facility. Additionally, Congress Security, Office of the Secretary the proper performance of the functions mandated that the Secretary could not of the agency, including whether the disapprove a site security plan based on PART 27—CHEMICAL FACILITY ANTI- information will have practical utility; TERRORISM STANDARDS (2) Evaluate the accuracy of the the presence or absence of a particular agency’s estimate of the burden; security measure, but only on the failure Subpart A—General (3) Enhance the quality, utility, and to satisfy a risk-based performance Sec. clarity of the information to be standard. 27.100 Purpose. collected; and Chemical facilities are of a wide 27.105 Definitions. (4) Minimize the burden of the variety of designs and sizes, and are 27.110 Applicability. collection of information on those who 27.115 Implementation. located in a wide range of geographic 27.120 Designation of a coordinating are to respond, including using settings, communities, and natural official; Consultations and technical appropriate automated, electronic, environments. The Department is not assistance. mechanical, or other technological funding or directing specific measures 27.125 Severability. collection techniques or other forms of under these regulations, but issuing information technology. Subpart B—Chemical Facility Security performance standards. Consequently, Program Individuals and organizations may the Department currently has no way to 27.200 Information regarding security risk submit comments on the information determine the action the chemical collection requirements by July 9, 2007. for a chemical facility. facility will take to meet the standards, 27.205 Determination that a chemical Direct the comments to the address and what effect any action might have facility ‘‘presents a high level of security listed in the ADDRESSES section of this on the environment. Even if the risk.’’ document. Also, fax a copy of the Department could predict the actions 27.210 Submissions schedule. comments to the Office of Information 27.215 Security vulnerability assessments. and Regulatory Affairs, Office of the facilities would take in response to 27.220 Tiering. Management and Budget at 202–395– the standards, it is likely facilities 27.225 Site security plans. 6974, Attention: Nathan Lesser, DHS would take widely varying actions to 27.230 Risk-based performance standards. Desk Officer; and send via electronic comply, based upon type of facility, 27.235 Alternative security program. 27.240 Review and approval of security mail to [email protected]. geographic location, existing infrastructure, etc. vulnerability assessments. A comment to OMB is most effective 27.245 Review and approval of site security if OMB receives it within 30 days of We received no comments objecting plans. publication. DHS will publish the OMB to this conclusion during the comment 27.250 Inspections and audits. control number for this information period, and further, no comments on 27.255 Recordkeeping requirements. collection in the Federal Register after this matter were raised during the Subpart C—Orders and Adjudications OMB approves it. Environmental Organizations Forum the Under the protections provided by the 27.300 Orders. Department hosted on January 17, 2007. 27.305 Neutral adjudications. PRA, as amended, an agency may not Accordingly, the information needed to 27.310 Commencement of adjudication conduct or sponsor, and a person is not conduct an Environmental Impact proceedings. required to respond to, a collection of Statement is not available at this time 27.315 Presiding officers for proceedings. information unless it displays a and, in any event, the Department could 27.320 Prohibition on ex parte currently valid OMB control number. not reasonably conduct an communications during proceedings. 27.325 Burden of proof. F. National Environmental Policy Act Environmental Impact Statement within 27.330 Summary decision procedures. In the Advance Notice, the the six months time allotted for issuance 27.335 Hearing procedures. Department reviewed the rulemaking of the interim final regulations. 27.340 Completion of adjudication process with regard to the National proceedings. List of Subjects in 6 CFR Part 27 27.345 Appeals. Environmental Policy Act (NEPA). See 71 FR 78276, 78294 (Dec. 28, 2006). Chemical security, Facilities, Subpart D—Other Specifically, the Department considered Reporting and recordkeeping, Security 27.400 Chemical-terrorism vulnerability the short timeframe to issue these measures. information.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17730 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

27.405 Review and preemption of State determined by the Assistant Secretary to tiers, ranging from highest risk at Tier 1 laws and regulations. present high levels of security risk, or a to lowest risk at Tier 4. 27.410 Third party actions. facility that the Assistant Secretary has Top-Screen shall mean an initial Appendix A to Part 27—DHS Chemicals of determined is presumptively high risk screening process designed by the Interest under § 27.200. Assistant Secretary through which Department shall mean the chemical facilities provide information Authority: Pub. L. 109–295, sec. 550. Department of Homeland Security. to the Department for use pursuant to Subpart A—General Deputy Secretary shall mean the § 27.200 of these regulations. Deputy Secretary of the Department of Under Secretary shall mean the Under § 27.100 Purpose. Homeland Security or his designee. Secretary for National Protection and The purpose of this Part is to enhance Director of the Chemical Security Programs, Department of Homeland the security of our Nation by furthering Division or Director shall mean the Security or any successors to that the mission of the Department as Director of the Chemical Security position within the Department or his provided in 6 U.S.C. § 111(b)(1) and by Division, Office of Infrastructure designee. Protection, Department of Homeland lowering the risk posed by certain § 27.110 Applicability. chemical facilities. Security or any successors to that position within the Department or his (a) This Part applies to chemical § 27.105 Definitions. designee. facilities and to covered facilities as set As used in this part: General Counsel shall mean the out herein. Alternative Security Program or ASP General Counsel of the Department of (b) This Part does not apply to shall mean a third-party or industry Homeland Security or his designee. facilities regulated pursuant to the organization program, a local authority, Operator shall mean a person who has Maritime Transportation Security Act of state or Federal government program or responsibility for the daily operations of 2002, Pub. L. 107–295, as amended; any element or aspect thereof, that the a facility or facilities subject to this Part. Public Water Systems, as defined by Assistant Secretary has determined Owner shall mean the person or entity Section 1401 of the Safe Drinking Water meets the requirements of this Part and that owns any facility subject to this Act, Pub. L. 93–523, as amended; provides for an equivalent level of Part. Treatment Works as defined in Section security to that established by this Part. Present high levels of security risk and 212 of the Federal Water Pollution Assistant Secretary shall mean the high risk shall refer to a chemical Control Act, Pub. L. 92–500, as Assistant Secretary for Infrastructure facility that, in the discretion of the amended; any facility owned or Protection, Department of Homeland Secretary of Homeland Security, operated by the Department of Defense Security or his designee. presents a high risk of significant or the Department of Energy, or any Chemical Facility or facility shall adverse consequences for human life or facility subject to regulation by the mean any establishment that possesses health, national security and/or critical Nuclear Regulatory Commission. or plans to possess, at any relevant point economic assets if subjected to terrorist § 27.115 Implementation. in time, a quantity of a chemical attack, compromise, infiltration, or The Assistant Secretary may substance determined by the Secretary exploitation. implement the Section 550 program in to be potentially dangerous or that Risk profiles shall mean criteria a phased manner, selecting certain meets other risk-related criteria identified by the Assistant Secretary for chemical facilities for expedited initial identified by the Department. As used determining which chemical facilities processes under these regulations and herein, the term chemical facility or will complete the Top-Screen or provide identifying other chemical facilities or facility shall also refer to the owner or other risk assessment information. types or classes of chemical facilities for Screening Threshold Quantity or STQ operator of the chemical facility. Where other phases of program shall mean the quantity of a chemical of multiple owners and/or operators implementation. The Assistant interest, upon which the facility’s function within a common Secretary has flexibility to designate obligation to complete and submit the infrastructure or within a single fenced particular chemical facilities for specific CSAT Top-Screen is based. area, the Assistant Secretary may phases of program implementation Secretary or Secretary of Homeland determine that such owners and/or based on potential risk or any other Security shall mean the Secretary of the operators constitute a single chemical factor consistent with this Part. facility or multiple chemical facilities Department of Homeland Security or depending on the circumstances. any person, officer or entity within the § 27.120 Designation of a coordinating Chemical Security Assessment Tool or Department to whom the Secretary’s official; Consultations and technical CSAT shall mean a suite of four authority under Section 550 is assistance. applications, including User delegated. (a) The Assistant Secretary will Registration, Top-Screen, Security Terrorist attack or terrorist incident designate a Coordinating Official who Vulnerability Assessment, and Site shall mean any incident or attempt that will be responsible for ensuring that Security Plan, through which the constitutes terrorism or terrorist activity these regulations are implemented in a Department will collect and analyze key under 6 U.S.C. 101(15) or 18 U.S.C. uniform, impartial, and fair manner. data from chemical facilities. 2331(5) or 8 U.S.C. 1182(a)(3)(B)(iii), (b) The Coordinating Official and his Chemical-terrorism Vulnerability including any incident or attempt that staff shall provide guidance to covered Information or CVI shall mean the involves or would involve sabotage of facilities regarding compliance with this information listed in § 27.400(b). chemical facilities or theft, Part and shall, as necessary and to the Coordinating Official shall mean the misappropriation or misuse of a extent that resources permit, be person (or his designee(s)) selected by dangerous quantity of chemicals. available to consult and to provide the Assistant Secretary to ensure that Tier shall mean the risk level technical assistance to an owner or the regulations are implemented in a associated with a covered chemical operator who seeks such consultation or uniform, impartial, and fair manner. facility and which is assigned to a assistance. Covered Facility or Covered Chemical facility by the Department. For purposes (c) In order to initiate consultations or Facility shall mean a chemical facility of this part, there are four risk-based seek technical assistance, a covered

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17731

facility shall submit a written request Screen process, which may be the facility could result in significant for consultation or technical assistance completed through a secure Department adverse consequences for human life or to the Coordinating Official or contact Web site or through other means health, national security or critical the Department in any other manner approved by the Assistant Secretary. economic assets. Upon determining that specified in any subsequent guidance. (2) A facility must complete and a facility presents a high level of Requests for consultation or technical submit a Top-Screen in accordance with security risk, the Department shall guidance do not serve to toll any of the the schedule provided in § 27.210 if it notify the facility in writing of such applicable timelines set forth in this possesses any of the chemicals listed in initial determination and may also Part. Appendix A to this part at the notify the facility of the Department’s (d) If a covered facility modifies its corresponding Screening Threshold preliminary determination of the facility, processes, or the types or Quantities. facility’s placement in a risk-based tier quantities of materials that it possesses, (3) Where the Department requests pursuant to § 27.220(a). and believes that such changes may that a facility complete and submit a (b) Redetermination. If a covered impact the covered facility’s obligations Top-Screen, the facility must designate facility previously determined to under this Part, the covered facility may a person who is responsible for the present a high level of security risk has request a consultation with the submission of information through the materially altered its operations, it may Coordinating Official as specified in CSAT system and who attests to the seek a redetermination by filing a paragraph (c). accuracy of the information contained Request for Redetermination with the in any CSAT submissions. Such Assistant Secretary, and may request a § 27.125 Severability. submitter must be an officer of the meeting regarding the Request. Within If a court finds any portion of this Part corporation or other person designated 45 calendar days of receipt of such a to have been promulgated without by an officer of the corporation and Request, or within 45 calendar days of proper authority, the remainder of this must be domiciled in the United States. a meeting under this paragraph, the Part will remain in full effect. (c) Presumptively High Risk Facilities. Assistant Secretary shall notify the (1) If a chemical facility subject to covered facility in writing of the Subpart B—Chemical Facility Security paragraph (a) or (b) of this section fails Department’s decision on the Request Program to provide information requested or for Redetermination. complete the Top-Screen within the § 27.200 Information regarding security § 27.210 Submissions schedule. risk for a chemical facility. timeframe provided in § 27.210, the Assistant Secretary may, after (a) Initial Submission. The timeframes (a) Information to determine security attempting to consult with the facility, in paragraphs (a)(2) and (a)(3) of this risk. In order to determine the security reach a preliminary determination, section also apply to covered facilities risk posed by chemical facilities, the based on the information then available, that submit an Alternative Security Secretary may, at any time, request that the facility presumptively presents Program pursuant to § 27.235. information from chemical facilities that a high level of security risk. The (1) Top-Screen. Facilities shall may reflect potential consequences of or Assistant Secretary shall then issue a complete and submit a Top-Screen vulnerabilities to a terrorist attack or notice to the entity of this determination within the following time frames: incident, including questions and, if necessary, order the facility to (i) This paragraph is operative on the specifically related to the nature of the provide information or complete the date that the Department publishes a business and activities conducted at the Top-Screen pursuant to these rules. If final Appendix A. Unless otherwise facility; information concerning the the facility then fails to do so, it may be notified, within 60 calendar days of the names, nature, conditions of storage, subject to civil penalties pursuant to effective date of Appendix A for quantities, volumes, properties, § 27.300, audit and inspection under facilities that possess any of the customers, major uses, and other § 27.250 or, if appropriate, an order to chemicals listed in Appendix A at the pertinent information about specific cease operations under § 27.300. corresponding STQs, or within 60 chemicals or chemicals meeting a (2) If the facility deemed calendar days for facilities that come specific criterion; information ‘‘presumptively high risk’’ pursuant to into possession of any of the chemicals concerning facilities’ security, safety, paragraph (c)(1) of this section listed in Appendix A at the and emergency response practices, completes the Top-Screen, and the corresponding STQs; or operations, and procedures; information Department determines that it does not (ii) Within the time frame provided in regarding incidents, history, funding, present a high level of security risk any written notification from the and other matters bearing on the under § 27.205, its status as Department or specified in any effectiveness of the security, safety and ‘‘presumptively high risk’’ will subsequent Federal Register notice. emergency response programs, and terminate, and the Department will (2) Security Vulnerability Assessment. other information as necessary. issue a notice to the facility to that Unless otherwise notified, a covered (b) Obtaining information from effect. facility must complete and submit a facilities. (1) The Assistant Secretary Security Vulnerability Assessment may seek the information provided in § 27.205 Determination that a chemical within 90 calendar days of written paragraph (a) of this section by facility ‘‘presents a high level of security notification from the Department or contacting chemical facilities risk.’’ within the time frame specified in any individually or by publishing a notice in (a) Initial Determination. The subsequent Federal Register notice. the Federal Register seeking Assistant Secretary may determine at (3) Site Security Plan. Unless information from chemical facilities that any time that a chemical facility otherwise notified, a covered facility meet certain criteria, which the presents a high level of security risk must complete and submit a Site Department will use to determine risk based on any information available Security Plan within 120 calendar days profiles. Through any such individual (including any information submitted to of written notification from the or Federal Register notification, the the Department under § 27.200) that, in Department or within the time frame Assistant Secretary may instruct such the Secretary’s discretion, indicates the specified in any subsequent Federal facilities to complete and submit a Top- potential that a terrorist attack involving Register notice.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17732 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

(b) Resubmission Schedule for § 27.215 Security vulnerability security-related reasons, if requested by Covered Facilities. The timeframes in assessments. the Assistant Secretary. this subsection also apply to covered (a) Initial Assessment. If the Assistant § 27.220 Tiering. facilities who submit an Alternative Secretary determines that a chemical Security Program pursuant to § 27.235. facility is high-risk, the facility must (a) Preliminary Determination of Risk- complete a Security Vulnerability Based Tiering. Based on the information (1) Top-Screen. Unless otherwise the Department receives in accordance notified, Tier 1 and Tier 2 covered Assessment. A Security Vulnerability Assessment shall include: with §§ 27.200 and 27.205 (including facilities must complete and submit a (1) Asset Characterization, which information submitted through the Top- new Top-Screen no less than two years, includes the identification and Screen process) and following its initial and no more than two years and 60 characterization of potential critical determination in § 27.205(a) that a calendar days, from the date of the assets; identification of hazards and facility presents a high level of security Department’s approval of the facility’s consequences of concern for the facility, risk, the Department shall notify a Site Security Plan; and Tier 3 and Tier its surroundings, its identified critical facility of the Department’s preliminary 4 covered facilities must complete and asset(s), and its supporting determination of the facility’s placement submit a Top-Screen no less than 3 infrastructure; and identification of in a risk-based tier. years, and no more than 3 years and 60 existing layers of protection; (b) Confirmation or Alteration of Risk- calendar days, from the date of the (2) Threat Assessment, which Based Tiering. Following review of a Department’s approval of the facility’s includes a description of possible covered facility’s Security Vulnerability Site Security Plan. internal threats, external threats, and Assessment, the Assistant Secretary (2) Security Vulnerability Assessment. internally-assisted threats; shall notify the covered facility of its Unless otherwise notified and following (3) Security Vulnerability Analysis, final placement within a risk-based tier, a Top-Screen resubmission pursuant to which includes the identification of or for covered facilities previously paragraph (b)(1) of this section, a potential security vulnerabilities and notified of a preliminary tiering, covered facility must complete and the identification of existing confirm or alter such tiering. submit a new Security Vulnerability countermeasures and their level of (c) The Department shall place Assessment within 90 calendar days of effectiveness in both reducing identified covered facilities in one of four risk- written notification from the vulnerabilities and in meeting the based tiers, ranging from highest risk Department or within the time frame applicable Risk-Based Performance facilities in Tier 1 to lowest risk specified in any subsequent Federal Standards; facilities in Tier 4. Register notice. (4) Risk Assessment, including a (d) The Assistant Secretary may determination of the relative degree of provide the facility with guidance (3) Site Security Plan. Unless risk to the facility in terms of the regarding the risk-based performance otherwise notified and following a expected effect on each critical asset standards and any other necessary Security Vulnerability Assessment and the likelihood of a success of an guidance materials applicable to its resubmission pursuant to paragraph attack; and assigned tier. (b)(2) of this section , a covered facility (5) Countermeasures Analysis, § 27.225 Site security plans. must complete and submit a new Site including strategies that reduce the Security Plan within 120 calendar days probability of a successful attack or (a) The Site Security Plan must meet of written notification from the reduce the probable degree of success, the following standards: Department or within the time frame strategies that enhance the degree of risk (1) Address each vulnerability specified in any subsequent Federal reduction, the reliability and identified in the facility’s Security Register notice. maintainability of the options, the Vulnerability Assessment, and identify (c) The Assistant Secretary retains the capabilities and effectiveness of and describe the security measures to address each such vulnerability; authority to modify the schedule in this mitigation options, and the feasibility of Part as needed. The Assistant Secretary the options. (2) Identify and describe how security measures selected by the facility will may shorten or extend these time (b) Except as provided in § 27.235, a address the applicable risk-based periods based on the operations at the covered facility must complete the performance standards and potential facility, the nature of the covered Security Vulnerability Assessment modes of terrorist attack including, as facility’s vulnerabilities, the level and through the CSAT process, or through applicable, vehicle-borne explosive immediacy of security risk, or for other any other methodology or process identified or issued by the Assistant devices, water-borne explosive devices, reasons. If the Department alters the Secretary. ground assault, or other modes or time periods for a specific facility, the (c) Covered facilities must submit a potential modes identified by the Department will do so in written notice Security Vulnerability Assessment to Department; to the facility. the Department in accordance with the (3) Identify and describe how security (d) If a covered facility makes material schedule provided in § 27.210. measures selected and utilized by the modifications to its operations or site, (d) Updates and Revisions. (1) A facility will meet or exceed each the covered facility must complete and covered facility must update and revise applicable performance standard for the submit a revised Top-Screen to the its Security Vulnerability Assessment in appropriate risk-based tier for the Department within 60 days of the accordance with the schedule provided facility; and material modification. In accordance in § 27.210. (4) Specify other information the with the resubmission requirements in (2) Notwithstanding paragraph (d)(1) Assistant Secretary deems necessary § 27.210(b)(2) and (3), the Department of this section, a covered facility must regarding chemical facility security. will notify the covered facility as to update, revise or otherwise alter its (b) Except as provided in § 27.235, a whether the covered facility must Security Vulnerability Assessment to covered facility must complete the Site submit a revised Security Vulnerability account for new or differing modes of Security Plan through the CSAT Assessment, Site Security Plan, or both. potential terrorist attack or for other process, or through any other

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17733

methodology or process identified or presenting a hazard to potentially restricted areas or critical assets, issued by the Assistant Secretary. critical targets; including, (c) Covered facilities must submit a (ii) Deter attacks through visible, (i) Measures designed to verify and Site Security Plan to the Department in professional, well maintained security validate identity; accordance with the schedule provided measures and systems, including (ii) Measures designed to check in § 27.210. security personnel, detection systems, criminal history; (d) Updates and Revisions. (1) When barriers and barricades, and hardened or (iii) Measures designed to verify and a covered facility updates, revises or reduced value targets; validate legal authorization to work; and otherwise alters its Security (iii) Detect attacks at early stages, (iv) Measures designed to identify Vulnerability Assessment pursuant to through countersurveillance, frustration people with terrorist ties; § 27.215(d), the covered facility shall of opportunity to observe potential (13) Elevated Threats. Escalate the make corresponding changes to its Site targets, surveillance and sensing level of protective measures for periods Security Plan. systems, and barriers and barricades; of elevated threat; (2) A covered facility must also and (14) Specific Threats, Vulnerabilities, update and revise its Site Security Plan (iv) Delay an attack for a sufficient or Risks. Address specific threats, in accordance with the schedule in period of time so to allow appropriate vulnerabilities or risks identified by the § 27.210. response through on-site security Assistant Secretary for the particular (e) A covered facility must conduct an response, barriers and barricades, facility at issue; annual audit of its compliance with its hardened targets, and well-coordinated (15) Reporting of Significant Security Site Security Plan. response planning; Incidents. Report significant security (5) Shipping, Receipt, and Storage. incidents to the Department and to local § 27.230 Risk-based performance law enforcement officials; standards. Secure and monitor the shipping, receipt, and storage of hazardous (16) Significant Security Incidents (a) Covered facilities must satisfy the and Suspicious Activities. Identify, performance standards identified in this materials for the facility; (6) Theft and Diversion. Deter theft or investigate, report, and maintain records section. The Assistant Secretary will of significant security incidents and issue guidance on the application of diversion of potentially dangerous chemicals; suspicious activities in or near the site; these standards to risk-based tiers of (17) Officials and Organization. (7) Sabotage. Deter insider sabotage; covered facilities, and the acceptable Establish official(s) and an organization (8) Cyber. Deter cyber sabotage, layering of measures used to meet these responsible for security and for including by preventing unauthorized standards will vary by risk-based tier. compliance with these standards; onsite or remote access to critical Each covered facility must select, (18) Records. Maintain appropriate process controls, such as Supervisory develop in their Site Security Plan, and records; and implement appropriately risk-based Control and Data Acquisition (SCADA) (19) Address any additional measures designed to satisfy the systems, Distributed Control Systems performance standards the Assistant following performance standards: (DCS), Process Control Systems (PCS), Secretary may specify. (1) Restrict Area Perimeter. Secure Industrial Control Systems (ICS), critical (b) [Reserved] and monitor the perimeter of the business system, and other sensitive facility; computerized systems; § 27.235 Alternative security program. (2) Secure Site Assets. Secure and (9) Response. Develop and exercise an (a) Covered facilities may submit an monitor restricted areas or potentially emergency plan to respond to security Alternate Security Program (ASP) critical targets within the facility; incidents internally and with assistance pursuant to the requirements of this (3) Screen and Control Access. of local law enforcement and first section. The Assistant Secretary may Control access to the facility and to responders; approve an Alternate Security Program, restricted areas within the facility by (10) Monitoring. Maintain effective in whole, in part, or subject to revisions screening and/or inspecting individuals monitoring, communications and or supplements, upon a determination and vehicles as they enter, including, warning systems, including, that the Alternate Security Program (i) Measures to deter the unauthorized (i) Measures designed to ensure that meets the requirements of this Part and introduction of dangerous substances security systems and equipment are in provides for an equivalent level of and devices that may facilitate an attack good working order and inspected, security to that established by this Part. or actions having serious negative tested, calibrated, and otherwise (1) A Tier 4 facility may submit an consequences for the population maintained; ASP in lieu of a Security Vulnerability surrounding the facility; and (ii) Measures designed to regularly Assessment, Site Security Plan, or both. (ii) Measures implementing a test security systems, note deficiencies, (2) Tier 1, Tier 2, or Tier 3 facilities regularly updated identification system correct for detected deficiencies, and may submit an ASP in lieu of a Site that checks the identification of facility record results so that they are available Security Plan. Tier 1, Tier 2, and Tier personnel and other persons seeking for inspection by the Department; and 3 facilities may not submit an ASP in access to the facility and that (iii) Measures to allow the facility to lieu of a Security Vulnerability discourages abuse through established promptly identify and respond to Assessment. disciplinary measures; security system and equipment failures (b) The Department will provide (4) Deter, Detect, and Delay. Deter, or malfunctions; notice to a covered facility about the detect, and delay an attack, creating (11) Training. Ensure proper security approval or disapproval, in whole or in sufficient time between detection of an training, exercises, and drills of facility part, of an ASP, using the procedure attack and the point at which the attack personnel; specified in § 27.240 if the ASP is becomes successful, including measures (12) Personnel Surety. Perform intended to take the place of a Security to: appropriate background checks on and Vulnerability Assessment or using the (i) Deter vehicles from penetrating the ensure appropriate credentials for procedure specified in § 27.245 if the facility perimeter, gaining unauthorized facility personnel, and as appropriate, ASP is intended to take the place of a access to restricted areas or otherwise for unescorted visitors with access to Site Security Plan.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17734 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

§ 27.240 Review and approval of security to satisfy the risk-based performance purpose as ‘‘inspectors’’ by the vulnerability assessments. standards established in § 27.230. Secretary or the Secretary’s designee. (a) Review and Approval. The (b) When the Department disapproves (1) An inspector will, on request, Department will review and approve in a preliminary Site Security Plan issued present his or her credentials for writing all Security Vulnerability prior to inspection or a Site Security examination, but the credentials may Assessments that satisfy the Plan following inspection, the not be reproduced by the facility. requirements of § 27.215, including Department will provide the facility (2) An inspector may administer oaths Alternative Security Programs with a written notification that includes and receive affirmations, with the submitted pursuant to § 27.235. a clear explanation of deficiencies in the consent of any witness, in any matter. (b) If a Security Vulnerability Site Security Plan. The facility shall (3) An inspector may gather Assessment does not satisfy the then enter further consultations with the information by reasonable means requirements of § 27.215, the Department and resubmit a sufficient including, but not limited to, Department will provide the facility Site Security Plan by the time specified interviews, statements, photocopying, with a written notification that includes in the written notification provided by photography, and video- and audio- a clear explanation of deficiencies in the the Department under this section. If the recording. All documents, objects and Security Vulnerability Assessment. The resubmitted Site Security Plan does not electronically stored information facility shall then enter further satisfy the requirements of § 27.225, the collected by each inspector during the consultations with the Department and Department will provide the facility performance of that inspector’s duties resubmit a sufficient Security with written notification (including a shall be maintained for a reasonable Vulnerability Assessment by the time clear explanation of deficiencies in the period of time in the files of the specified in the written notification SSP) of the Department’s disapproval of Department of Homeland Security provided by the Department under this the SSP. maintained for that facility or matter. section. If the resubmitted Security § 27.250 Inspections and audits. (4) An inspector may request Vulnerability Assessment does not forthwith access to all records required (a) Authority. In order to assess satisfy the requirements of § 27.215, the to be kept pursuant to § 27.255. An compliance with the requirements of Department will provide the facility inspector shall be provided with the this Part, authorized Department with written notification (including a immediate use of any photocopier or officials may enter, inspect, and audit clear explanation of deficiencies in the other equipment necessary to copy any the property, equipment, operations, SVA) of the Department’s disapproval of such record. If copies can not be the SVA. and records of covered facilities. (b) Following preliminary approval of provided immediately upon request, the § 27.245 Review and approval of site a Site Security Plan in accordance with inspector shall be permitted security plans. § 27.245, the Department will inspect immediately to take the original records (a) Review and Approval. (1) The the covered facility for purposes of for duplication and prompt return. Department will review and approve or determining compliance with the (e) Confidentiality. In addition to the disapprove all Site Security Plans that requirements of this Part. protections provided under CVI in satisfy the requirements of § 27.225, (1) If after the inspection, the § 27.400, information received in an including Alternative Security Programs Department determines that the audit or inspection under this section, submitted pursuant to § 27.235. requirements of § 27.225 have been met, including the identity of the persons (i) The Department will review Site the Department will issue a Letter of involved in the inspection or who Security Plans through a two-step Approval to the covered facility. provide information during the process. Upon receipt of Site Security (2) If after the inspection, the inspection, shall remain confidential Plan from the covered facility, the Department determines that the under the investigatory file exception, Department will review the requirements of § 27.225 have not been or other appropriate exception, to the documentation and make a preliminary met, the Department will proceed as public disclosure requirements of 5 determination as to whether it satisfies directed by § 27.245(b) in ‘‘Review and U.S.C. 552. the requirements of § 27.225. If the Approval of Site Security Plans.’’ (f) Guidance. The Assistant Secretary Department finds that the requirements (c) Time and Manner. Authorized shall issue guidance identifying are satisfied, the Department will issue Department officials will conduct audits appropriate processes for such a Letter of Authorization to the covered and inspections at reasonable times and inspections, and specifying the type and facility. in a reasonable manner. The Department nature of documentation that must be (ii) Following issuance of the Letter of will provide covered facility owners made available for review during Authorization, the Department will and/or operators with 24-hour advance inspections and audits. inspect the covered facility in notice before inspections, except § 27.255 Recordkeeping requirements. accordance with § 27.250 for purposes (1) If the Under Secretary or Assistant of determining compliance with the Secretary determines that an inspection (a) Except as provided in § 27.255(b), requirements of this Part. without such notice is warranted by the covered facility must keep records of (iii) If the Department approves the exigent circumstances and approves the activities as set out below for at least Site Security Plan in accordance with such inspection; or three years and make them available to § 27.250, the Department will issue a (2) If any delay in conducting an the Department upon request. A covered Letter of Approval to the facility, and inspection might be seriously facility must keep the following records: the facility shall implement the detrimental to security, and the Director (1) Training. For training, the date and approved Site Security Plan. of the Chemical Security Division location of each session, time of day and (2) The Department will not determines that an inspection without duration of session, a description of the disapprove a Site Security Plan notice is warranted, and approves an training, the name and qualifications of submitted under this Part based on the inspector to conduct such inspection. the instructor, a clear, legible list of presence or absence of a particular (d) Inspectors. Inspections and audits attendees to include the attendee security measure. The Department may are conducted by personnel duly signature, at least one other unique disapprove a Site Security Plan that fails authorized and designated for that identifier of each attendee receiving the

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17735

training, and the results of any Subpart C—Orders and Adjudications chemical facility may seek an evaluation or testing. adjudication pursuant to § 27.310. § 27.300 Orders. (2) Drills and exercises. For each drill (f) An Order issued under this section or exercise, the date held, a description (a) Orders Generally. When the becomes final agency action when the of the drill or exercise, a list of Assistant Secretary determines that a time to file a Notice of Application of participants, a list of equipment (other facility is in violation of any of the Review under § 27.310 has passed than personal equipment) tested or requirements of this Part, the Assistant without such a filing or upon the employed in the exercise, the name(s) Secretary may take appropriate action conclusion of adjudication or appeal and qualifications of the exercise including the issuance of an appropriate proceedings under this subpart. director, and any best practices or Order. (b) Orders Assessing Civil Penalty and § 27.305 Neutral adjudications. lessons learned which may improve the Orders to Cease Operations. (1) Where (a) Any facility or other person who Site Security Plan; the Assistant Secretary determines that has received a Finding pursuant to (3) Incidents and breaches of security. a facility is in violation of an Order § 27.230(a)(12)(iv), a Determination Date and time of occurrence, location issued pursuant to paragraph (a) of this pursuant to § 27.245(b), or an Order within the facility, a description of the section, the Assistant may enter an pursuant to § 27.300 is entitled to an incident or breach, the identity of the Order Assessing Civil Penalty, Order to adjudication, by a neutral adjudications individual to whom it was reported, and Cease Operations, or both. officer, of any issue of material fact a description of the response; (2) Following the issuance of an Order relevant to any administrative action (4) Maintenance, calibration, and by the Assistant Secretary pursuant to which deprives that person of a testing of security equipment. The date paragraph (b)(1) of this section, the cognizable interest in liberty or and time, name and qualifications of the facility may enter further consultations property. technician(s) doing the work, and the with Department. (b) A neutral adjudications officer specific security equipment involved for (3) Where the Assistant Secretary appointed pursuant to § 27.315 shall each occurrence of maintenance, determines that a facility is in violation issue an Initial Decision on any material calibration, and testing; of an Order issued pursuant to factual issue related to a Finding (5) Security threats. Date and time of paragraph (a) of this section and issues pursuant to § 27.230(a)(12)(iv), a occurrence, how the threat was an Order Assessing Civil Penalty Determination pursuant to § 27.245, or communicated, who received or pursuant to paragraph (b)(1) of this an Order pursuant to § 27.300 before identified the threat, a description of the section, a chemical facility is liable to any such administrative action is threat, to whom it was reported, and a the United States for a civil penalty of reviewed on appeal pursuant to description of the response; not more than $25,000 for each day § 27.345. during which the violation continues. (6) Audits. For each audit of a covered (c) Procedures for Orders. (1) At a § 27.310 Commencement of adjudication proceedings. facility’s Site Security Plan (including minimum, an Order shall be signed by each audit required under § 27.225(e)) the Assistant Secretary, shall be dated, (a) Proceedings Instituted by Facilities or Security Vulnerability Assessment, a and shall include: or other Persons. A facility or other record of the audit, including the date (i) The name and address of the person may institute proceedings to of the audit, results of the audit, name(s) facility in question; review a determination by the Assistant of the person(s) who conducted the (ii) A listing of the provision(s) that Secretary: audit, and a letter certified by the the facility is alleged to have violated; (1) Finding, pursuant to the covered facility stating the date the (iii) A statement of facts upon which § 27.230(a)(12)(iv), that an individual is audit was conducted. the alleged instances of noncompliance a potential security threat; (7) Letters of Authorization and are based; (2) Disapproving a Site Security Plan Approval. All Letters of Authorization (iv) A clear explanation of pursuant to § 27.245(b); or and Approval from the Department, and deficiencies in the facility’s chemical (3) Issuing an Order pursuant to documentation identifying the results of security program, including, if § 27.300(a) or (b). audits and inspections conducted applicable, any deficiencies in the (b) Procedure for Applications by pursuant to § 27.250. facility’s Security Vulnerability Facilities or other Persons. A facility or other person may institute Proceedings (b) A covered facility must retain Assessment, Site Security Plan, or both; by filing a Notice of Application for records of submitted Top-Screens, and Review specifying that the facility or Security Vulnerability Assessments, Site (v) A statement, indicating what other person requests a Proceeding to Security Plans, and all related action(s) the chemical must take to review a determination specified in correspondence with the Department for remedy the instance(s) of paragraph (a) of this section. at least six years and make them noncompliance; and (1) An Applicant institutes a available to the Department upon (vi) The date by which the facility Proceeding by filing a Notice of request. must comply with the terms of the Order. Application for Review with the office (c) To the extent necessary for (2) The Assistant Secretary may of the Department hereinafter security purposes, the Department may establish procedures for the issuance of designated by the Secretary. request that a covered facility make Orders. (2) An Applicant must file a Notice of available records kept pursuant to other (d) A facility must comply with the Application for Review within seven Federal programs or regulations. terms of the Order by the date specified calendar days of notification to the (d) Records required by this section in the Order unless the facility has filed facility or other person of the Assistant may be kept in electronic format. If kept a timely Notice for Application for Secretary’s Finding, Determination, or in an electronic format, they must be Review under § 27.310. Order. protected against unauthorized access, (e) Where a facility or other person (3) The Applicant shall file and deletion, destruction, amendment, and contests the determination of the simultaneously serve each Notice of disclosure. Assistant Secretary to issue an Order, a Application for Review and all

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17736 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

subsequent filings on the Assistant § 27.320 Prohibition on ex parte proceedings that the Presiding Officer Secretary and the General Counsel. communications during proceedings. determines to be appropriate. (4) An Order is stayed from the timely (a) At no time after the designation of (b) If the Presiding Officer determines filing of a Notice of Application for a Presiding Officer for a Proceeding and that there is no genuine issue of material Review until the Presiding Officer prior to the issuance of a Final Decision fact and that one party or the other is issues an Initial Decision, unless the pursuant to § 27.345 with respect to a entitled to decision as a matter of law, Secretary has lifted the stay due to facility or other person, shall the then the record shall be closed and the exigent circumstances pursuant to appointed Presiding Officer, or any Presiding Officer shall issue an Initial paragraph (d) of this section. person who will advise that official in Decision on the Application for Review (5) The Applicant shall file and serve the decision on the matter, discuss ex pursuant to § 27.340. (c) If a Presiding Officer determines an Application for Review within parte the merits of the proceeding with that any factual issues require the cross- fourteen calendar days of the any interested person outside the Department, with any Department examination of one or more witnesses or notification to the facility or other other proceedings at a hearing, the person of the Assistant Secretary’s official who performs a prosecutorial or investigative function in such Presiding Officer, in consultation with Finding, Determination, or Order. the parties, shall promptly schedule a (6) Each Application for Review shall proceeding or a factually related proceeding, or with any representative hearing to be conducted pursuant to be accompanied by all legal § 27.335. memoranda, other documents, of such person. declarations, affidavits, and other (b) If, after appointment of a Presiding § 27.335 Hearing procedures. evidence supporting the position Officer and prior to the issuance of a (a) Any hearing shall be held as asserted by the Applicant. Final Decision pursuant to § 27.345 with expeditiously as possible at the location (c) Response. The Assistant Secretary, respect to a facility or other person, the most conducive to a prompt through the Office of General Counsel, appointed Presiding Officer, or any presentation of any necessary testimony shall file and serve a Response, person who will advise that official in or other proceedings. accompanied by all legal memoranda, the decision on the matter, receives (1) Videoconferencing and other documents, declarations, from or on behalf of any party, by means teleconferencing may be used where affidavits and other evidence supporting of an ex parte communication, appropriate at the discretion of the the position asserted by the Assistant information which is relevant to the Presiding Officer. Secretary within fourteen calendar days decision of the matter and to which (2) Each party offering the affirmative of the filing and service of the other parties have not had an testimony of a witness shall present that Application for Review and all opportunity to respond, a summary of testimony by declaration, affidavit, or supporting papers. such information shall be served on all other sworn statement submitted in other parties, who shall have an advance as ordered by the Presiding (d) Procedural Modifications. The opportunity to reply to the ex parte Officer. Secretary may, in exigent circumstances communication within a time set by the (3) Any witness presented for further (as determined in his sole discretion): Presiding Officer. examination shall be asked to testify (1) Lift any stay applicable to any (c) The consideration of classified under an oath or affirmation. Order under § 27.300; information or CVI pursuant to an in (4) The hearing shall be recorded (2) Modify the time for a response; camera procedure does not constitute a verbatim. (3) Rule on the sufficiency of prohibited ex parte communication for (b)(1) A facility or other person may Applications for Review; or purposes of this subpart. appear and be heard on his own behalf (4) Otherwise modify these or through any counsel of his choice procedures with respect to particular § 27.325 Burden of proof. who is qualified to possess CVI. matters. The Assistant Secretary bears the (2) A facility of other person initial burden of proving the facts individually, or through counsel, may § 27.315 Presiding officers for necessary to support the challenged offer relevant and material information proceedings. administrative action at every including written direct testimony (a) Immediately upon the filing of any proceeding instituted under this which he believes should be considered Application for Review, the Secretary subpart. in opposition to the administrative shall appoint an attorney, who is action or which may bear on the employed by the Department and who § 27.330 Summary decision procedures. sanction being sought. has not performed any investigative or (a) The Presiding Officer appointed (3) The facility or other person prosecutorial function with respect to for each Proceeding shall immediately individually, or through counsel, may the matter, to act as a neutral consider whether the summary conduct such cross-examination as may adjudications officer or Presiding adjudication of the Application for be specifically allowed by the Presiding Officer for the compilation of a factual Review is appropriate based on the Officer for a full determination of the record and the recommendation of an Application for Review, the Response, facts. Initial Decision for each Proceeding. and all the supporting filings of the § 27.340 Completion of adjudication (b) Notwithstanding paragraph (a) of parties pursuant to §§ 27.310(b)(5) and proceedings. this section, the Secretary may appoint 27.310(c). (a) The Presiding Officer shall close one or more attorneys who are (1) The Presiding Officer shall and certify the record of the employed by the Department and who promptly issue any necessary adjudication promptly upon the do not perform any investigative or scheduling order for any additional completion of: prosecutorial function with respect to briefing of the issue of summary (1) Summary judgment proceedings, this subpart, to serve generally in the adjudication on the Application for (2) A hearing, if necessary, capacity as Presiding Officer(s) for such Review and Response. (3) The submission of post hearing matters pursuant to such procedures as (2) The Presiding Officer may conduct briefs, if any are ordered by the the Secretary may hereafter establish. scheduling conferences and other Presiding Officer, and

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17737

(4) The conclusion of oral arguments, proceeding, or with any representative Security Vulnerability Assessments and if any are permitted by the Presiding of such person. Site Security Plans, including Letters of Officer. (2) If, after the filing of a Notice of Authorization, Letters of Approval and (b) The Presiding Officer shall issue Appeal pursuant to paragraph (b)(1) of responses thereto; written notices; and an Initial Decision based on the certified this section and prior to the issuance of other documents developed pursuant to record, and the decision shall be subject a Final Decision on an Appeal pursuant §§ 27.240 or 27.245; to appeal pursuant to § 27.345. to paragraph (f) of this section with (4) Alternate Security Programs under (c) An Initial Decision shall become a respect to a facility or other person, the § 27.235; final agency action on the expiration of Under Secretary, his designee, or any (5) Documents relating to inspection the time for an Appeal pursuant to person who will advise that official in or audits under § 27.250; § 27.345. the decision on the matter, receives (6) Any records required to be created from or on behalf of any party, by means or retained under § 27.255; § 27.345 Appeals. of an ex parte communication, (7) Sensitive portions of orders, (a) Right to Appeal. A facility or any information which is relevant to the notices or letters under § 27.300; person who has received an Initial decision of the matter and to which (8) Information developed pursuant to Decision under § 27.340(b) has the right other parties have not had an §§ 27.200 and 27.205; and to appeal to the Under Secretary acting opportunity to respond, a summary of (9) Other information developed for as a neutral appeals officer. such information shall be served on all chemical facility security purposes that (b) Procedure for Appeals. (1) The other parties, who shall have an the Secretary, in his discretion, Assistant Secretary, a facility or other opportunity to reply to the ex parte determines is similar to the information person, or a representative on behalf of communication within a time set by the protected in § 27.400(b)(1) through (8) a facility or person, may institute an Under Secretary or his designee. and thus warrants protection as CVI. Appeal by filing a Notice of Appeal with (3) The consideration of classified (c) Covered Persons. Persons subject the office of the Department hereinafter information or CVI pursuant to an in to the requirements of this section are: designated by the Secretary. camera procedure does not constitute a (1) Each person who has a need to (2) The Assistant Secretary, a facility, prohibited ex parte communication for know CVI, as specified in § 27.400(e); or other person must file a Notice of purposes of this subpart. (2) Each person who otherwise (e) A facility or other person may elect Appeal within seven calendar days of receives or gains access to what they to have the Under Secretary participate the service of the Presiding Officer’s know or should reasonably know in any mediation or other resolution Initial Decision. constitutes CVI. process by expressly waiving, in (d) Duty to protect information. A (3) The Appellant shall file with the writing, any argument that such designated office and simultaneously covered person must— participation has compromised the (1) Take reasonable steps to safeguard serve each Notice of Appeal and all Appeal process. CVI in that person’s possession or subsequent filings on the General (f) The Under Secretary shall issue a control, including electronic data, from Counsel. Final Decision and serve it upon the unauthorized disclosure. When a person (4) An Initial Decision is stayed from parties. A Final Decision made by the is not in physical possession of CVI, the the timely filing of a Notice of Appeal Under Secretary constitutes final agency person must store it in a secure until the Under Secretary issues a Final action. container, such as a safe, that limits Decision, unless the Secretary lifts the (g) The Secretary may establish access only to covered persons with a stay due to exigent circumstances procedures for the conduct of Appeals need to know; pursuant to § 27.310(d). pursuant to this section. (2) Disclose, or otherwise provide (5) The Appellant shall file and serve access to, CVI only to persons who have Subpart D—Other a Brief within 28 calendar days of the a need to know; notification of the service of the § 27.400 Chemical-terrorism vulnerability (3) Refer requests for CVI by persons Presiding Officer’s Initial Decision. information. without a need to know to the Assistant (6) The Appellee shall file and serve (a) Applicability. This section governs Secretary; its Opposition Brief within 28 calendar the maintenance, safeguarding, and (4) Mark CVI as specified in days of the service of the Appellant’s disclosure of information and records § 27.400(f); Brief. that constitute Chemical-terrorism (5) Dispose of CVI as specified in (c) The Under Secretary may provide Vulnerability Information (CVI), as § 27.400(k); for an expedited appeal for appropriate defined in § 27.400(b). The Secretary (6) If a covered person receives a matters. shall administer this section consistent record or verbal transmission containing (d) Ex Parte Communications. (1) At with Section 550(c) of the Homeland CVI that is not marked as specified in no time after the filing of a Notice of Security Appropriations Act of 2007, § 27.400(f), the covered person must— Appeal pursuant to paragraph (b)(1) of including appropriate sharing with (i) Mark the record as specified in this section and prior to the issuance of Federal, State and local officials. § 27.400(f) of this section; and a Final Decision on an Appeal pursuant (b) Chemical-terrorism Vulnerability (ii) Inform the sender of the record to paragraph (f) of this section with Information. In accordance with Section that the record must be marked as respect to a facility or other person shall 550(c) of the Department of Homeland specified in § 27.400(f); or the Under Secretary, his designee, or Security Appropriations Act of 2007, (iii) If received verbally, make any person who will advise that official the following information, whether reasonable efforts to memorialize such in the decision on the matter, discuss ex transmitted verbally, electronically, or information and mark the memorialized parte the merits of the proceeding with in written form, shall constitute CVI: record as specified in § 27.400(f) of this any interested person outside the (1) Security Vulnerability section, and inform the speaker of any Department, with any Department Assessments under § 27.215; determination that such information official who performs a prosecutorial or (2) Site Security Plans under § 27.225; warrants CVI protection. investigative function in such (3) Documents relating to the (7) When a covered person becomes proceeding or a factually related Department’s review and approval of aware that CVI has been released to

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17738 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

persons without a need to know background check or other procedures (2) Disclosure of Segregatable (including a covered person under and requirements for safeguarding CVI Information under the Freedom of § 27.400(c)(2)), the covered person must that are satisfactory to the Department. Information Act and the Privacy Act. If promptly inform the Assistant (4) Need to know further limited by a record is marked to signify both CVI Secretary. the Department. For some specific CVI, and information that is not CVI, the (8) In the case of information that is the Department may make a finding that Department, on a proper Freedom of CVI and also has been designated as only specific persons or classes of Information Act or Privacy Act request, critical infrastructure information under persons have a need to know. may disclose the record with the CVI Section 214 of the Homeland Security (5) Nothing in § 27.400(e) shall redacted, provided the record is not Act, any covered person in possession prevent the Department from otherwise exempt from disclosure under of such information must comply with determining, in its discretion, that a the Freedom of Information Act or the disclosure restrictions and other person not otherwise listed in Privacy Act. requirements applicable to such § 27.400(e) has a need to know CVI in (h) Disclosure in administrative information under Section 214 and any a particular circumstance. enforcement proceedings. (1) The implementing regulations. (f) Marking of paper records. (1) In the Department may provide CVI to a (e) Need to know. (1) A person, case of paper records containing CVI, a person governed by Section 550, and his including a State or local official, has a covered person must mark the record by counsel, in the context of an need to know CVI in each of the placing the protective marking administrative enforcement proceeding following circumstances: conspicuously on the top, and the of Section 550 when, in the sole (i) When the person requires access to distribution limitation statement on the discretion of the Department, as specific CVI to carry out chemical bottom, of— appropriate, access to the CVI is facility security activities approved, (i) The outside of any front and back necessary for the person to prepare a accepted, funded, recommended, or cover, including a binder cover or response to allegations contained in a directed by the Department. folder, if the document has a front and legal enforcement action document (ii) When the person needs the back cover; issued by the Department. information to receive training to carry (ii) Any title page; and (2) Security background check. Prior out chemical facility security activities (iii) Each page of the document. to providing CVI to a person under approved, accepted, funded, (2) Protective marking. The protective § 27.400(h)(1), the Department may recommended, or directed by the marking is: CHEMICAL-TERRORISM require the individual or, in the case of Department. VULNERABILITY INFORMATION. an entity, the individuals representing (iii) When the information is (3) Distribution limitation statement. the entity, and their counsel, to undergo necessary for the person to supervise or The distribution limitation statement is: and satisfy, in the judgment of the otherwise manage individuals carrying WARNING: This record contains Department, a security background out chemical facility security activities Chemical-terrorism Vulnerability check. approved, accepted, funded, Information controlled by 6 CFR 27.400. (i) Disclosure in judicial proceedings. recommended, or directed by the Do not disclose to persons without a (1) In any judicial enforcement Department. proceeding of Section 550, the (iv) When the person needs the ‘‘need to know’’ in accordance with 6 Secretary, in his sole discretion, may, information to provide technical or legal CFR 27.400(e). Unauthorized release subject to § 27.400(i)(1)(i), authorize advice to a covered person, who has a may result in civil penalties or other access to CVI for persons necessary for need to know the information, regarding action. In any administrative or judicial the conduct of such proceedings, chemical facility security requirements proceeding, this information shall be including such persons’ counsel, of Federal law. treated as classified information in (v) When the Department determines accordance with 6 CFR 27.400(h) and provided that no other persons not so that access is required under (i). authorized shall have access to or be §§ 27.400(h) or 27.400(i) in the course of (4) Other types of records. In the case present for the disclosure of such a judicial or administrative proceeding. of non-paper records that contain CVI, information. (2) Federal employees, contractors, including motion picture films, (i) Security background check. Prior and grantees. (i) A Federal employee videotape recordings, audio recording, to providing CVI to a person under has a need to know CVI if access to the and electronic and magnetic records, a § 27.400(i)(1), the Department may information is necessary for covered person must clearly and require the individual to undergo and performance of the employee’s official conspicuously mark the records with satisfy, in the judgment of the duties. the protective marking and the Department, a security background (ii) A person acting in the distribution limitation statement such check. performance of a contract with or grant that the viewer or listener is reasonably (ii) [Reserved] from the Department has a need to know likely to see or hear them when (2) In any judicial enforcement CVI if access to the information is obtaining access to the contents of the proceeding of Section 550 where a necessary to performance of the contract record. person seeks to disclose CVI to a person or grant. Contractors or grantees may not (g) Disclosure by the Department—In not authorized to receive it under further disclose CVI without the consent general. (1) Except as otherwise paragraph (i)(1) of this section, or where of the Assistant Secretary. provided in this section, and a person not authorized to receive CVI (iii) The Department may require that notwithstanding the Freedom of under paragraph (i)(1) of this section non-Federal persons seeking access to Information Act (5 U.S.C. 552), the seeks to compel its disclosure through CVI complete a non-disclosure Privacy Act (5 U.S.C. 552a), and other discovery, the United States may make agreement before such access is granted. laws, records containing CVI are not an ex parte application in writing to the (3) Background check. The available for public inspection or court seeking authorization to— Department may make an individual’s copying, nor does the Department (i) Redact specified items of CVI from access to the CVI contingent upon release such records to persons without documents to be introduced into satisfactory completion of a security a need to know. evidence or made available to the

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17739

defendant through discovery under the (iii) Obligation of defendant—In any administered by the Environmental Federal Rules of Civil Procedure; judicial enforcement proceeding, it shall Protection Agency, U.S. Department of (ii) Substitute a summary of the be the defendant’s obligation to Justice, U.S. Department of Labor, U.S. information for such CVI; or establish the relevance and materiality Department of Transportation, or other (iii) Substitute a statement admitting of any CVI sought to be introduced. federal agencies. relevant facts that the CVI would tend (8) Construction. Nothing in this (2) [Reserved] to prove. subsection shall prevent the United (b) State law, regulation or (3) The court shall grant a request States from seeking protective orders or administrative action defined. For under paragraph (i)(2) of this section if, asserting privileges ordinarily available purposes of this section, the phrase after in camera review, the court finds to the United States to protect against ‘‘State law, regulation or administrative that the redacted item, stipulation, or the disclosure of classified information, action’’ means any enacted law, summary is sufficient to allow the including the invocation of the military promulgated regulation, ordinance, defendant to prepare a defense. and State secrets privilege. administrative action, order or decision, (4) If the court enters an order (j) Consequences of Violation. or common law standard of a State or granting a request under paragraph (i)(2) Violation of this section is grounds for any of its political subdivisions. of this section, the entire text of the a civil penalty and other enforcement or (c) Submission for review. Any documents to which the request relates corrective action by the Department, chemical facility covered by these shall be sealed and preserved in the and appropriate personnel actions for regulations and any State may petition records of the court to be made available Federal employees. Corrective action the Department by submitting a copy of to the appellate court in the event of an may include issuance of an order a State law, regulation, or administrative appeal. requiring retrieval of CVI to remedy action, or decision or order of a court for (5) If the court enters an order unauthorized disclosure or an order to review under this section. denying a request of the United States cease future unauthorized disclosure. (d) Review and opinion—(1) Review. under paragraph (i)(2) of this section, (k) Destruction of CVI. (1) The The Department may review State laws, the United States may take an Department of Homeland Security. administrative actions, or opinions or immediate, interlocutory appeal of the Subject to the requirements of the orders of a court under State law and court’s order in accordance with 18 Federal Records Act (5 U.S.C. 105), regulations submitted under this U.S.C. 2339B(f)(4), (5). For purposes of including the duty to preserve records section, and may offer an opinion such an appeal, the entire text of the containing documentation of a Federal whether the application or enforcement documents to which the request relates, agency’s policies, decisions, and of the State law or regulation would together with any transcripts of essential transactions, the Department conflict with, hinder, pose an obstacle arguments made ex parte to the court in destroys CVI when no longer needed to to or frustrate the purposes of this Part. connection therewith, shall be carry out the agency’s function. (2) Other covered persons—(i) In (2) Opinion. The Department may maintained under seal and delivered to issue a written opinion on any question the appellate court. general. A covered person must destroy CVI completely to preclude recognition regarding preemption. If the question (6) Except as provided otherwise at was submitted under subsection (c) of the sole discretion of the Secretary, or reconstruction of the information when the covered person no longer this part, the Assistant Secretary will access to CVI shall not be available in notify the affected chemical facility and any civil or criminal litigation unrelated needs the CVI to carry out security measures under paragraph (e) of this the Attorney General of the subject State to the enforcement of Section 550. of any opinion under this section. (7) Taking of trial testimony— section. (ii) Exception. Section 27.400(k)(2) (3) Consultation with States. In (i) Objection—During the examination does not require a State or local conducting a review under this section, of a witness in any judicial proceeding, government agency to destroy the Department will seek the views of the United States may object to any information that the agency is required the State or local jurisdiction whose question or line of inquiry that may to preserve under State or local law. laws may be affected by the require the witness to disclose CVI not Department’s review. previously found to be admissible. § 27.405 Review and preemption of State (ii) Action by court—In determining laws and regulations. § 27.410 Third party actions. whether a response is admissible, the (a) As per current law, no law, (a) Nothing in this Part shall confer court shall take precautions to guard regulation, or administrative action of a upon any person except the Secretary a against the compromise of any CVI, State or political subdivision thereof, or right of action, in law or equity, for any including— any decision or order rendered by a remedy including, but not limited to, (A) Permitting the United States to court under state law, shall have any injunctions or damages to enforce any provide the court, ex parte, with a effect if such law, regulation, or provision of this Part. proffer of the witness’s response to the decision conflicts with, hinders, poses (b) An owner or operator of a question or line of inquiry; and an obstacle to or frustrates the purposes chemical facility may petition the (B) Requiring the defendant to of this regulation or of any approval, Assistant Secretary to provide the provide the court with a proffer of the disapproval or order issued there under. Department’s view in any litigation nature of the information that the (1) Nothing in this part is intended to involving any issues or matters defendant seeks to elicit. displace other federal requirements regarding this Part.

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

1,1,3,3,3-pentafluoro-2-(trifluoromethyl)-1-propene ...... 382–21–8 Any Amount. 1,1-Dimethylhydrazine ...... 57–14–7 11,250.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17740 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST—Continued

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

1,2-bis(2-chloroethylthio)ethane ...... 3563–36–8 Any Amount. 1,3-bis(2-chloroethylthio)-n-propane ...... 63905–10–2 Any Amount. 1,3-Butadiene ...... 106–99–0 7,500. 1,3-Pentadiene ...... 504–60–9 7,500. 1,4-bis(2-chloroethylthio)-n-butane ...... 142868–93–7 Any Amount. 1,5-bis(2-chloroethylthio)-n-pentane ...... 142868–94–8 Any Amount. 1-Butene ...... 106–98–9 7,500. 1-Chloropropylene ...... 590–21–6 7,500. 1H-Tetrazole ...... 16681–77–9 2,000. 1-Pentane ...... 109–67–1 7,500. 2,2-Dimethylpropane ...... 463–82–1 7,500. 2-Butene ...... 107–01–7 7,500. 2-Butene-cis ...... 590–18–1 7,500. 2-Butene-trans ...... 624–64–6 7,500. 2-chloroethylchloromethylsulfide ...... 2625–76–5 Any Amount. 2-Chloropropylene ...... 557–98–2 7,500. 2-Chlorovinyldichloroarsine ...... 541–25–3 Any Amount. 2-Methyl-1-butene ...... 563–46–2 7,500. 2-Methylpropene ...... 115–11–7 7,500. 2-Pentene, (Z)- ...... 627–20–3 7,500. 2-Pentene,(E)- ...... 646–04–8 7,500. 3,3-dimethyl-2-butanol ...... 464–07–3 Any Amount. 3-Methyl-1-butene ...... 563–45–1 7,500. 3-Quinuclidinyl benzilate (BZ) ...... 62869–69–6 Any Amount. 5-Nitrobenzotriazol ...... 2338–12–7 2,000. Acetaldehyde ...... 75–07–0 7,500. Acetone ...... 67–64–1 2,000. Acetone cyanohydrin, stabilized ...... 75–86–5 2,000. Acetyl bromide ...... 506–96–7 2,000. Acetyl chloride ...... 75–36–5 2,000. Acetyl iodide ...... 507–02–8 2,000. Acetylene ...... 74–86–2 7,500. Acrolein ...... 107–02–8 3,750. Acrylonitrile ...... 107–13–1 15,000. Acrylyl chloride ...... 814–68–6 3,750. Allyl alcohol ...... 107–18–6 11,250. Allylamine ...... 107–11–9 7,500. Allyltrichlorosilane, stabilized ...... 107–37–9 2,000. Aluminum bromide, anhydrous ...... 7727–15–3 2,000. Aluminum chloride, anhydrous ...... 7446–70–0 2,000. Aluminum phosphide ...... 20859–73–8 2,000. Ammonia (anhydrous) ...... 7664–41–7 7,500. Ammonia (conc. 20% or greater) ...... 7664–41–7 15,000. Ammonium nitrate (nitrogen concentration of 28%–34%) ...... 6484–52–2 2,000. Ammonium perchlorate ...... 7790–98–9 2,000. Ammonium picrate ...... 131–74–8 2,000. Amyltrichlorosilane ...... 107–72–2 2,000. Antimony pentafluoride ...... 7783–70–2 2,000. Arsenous trichloride ...... 7784–34–1 Any Amount. Arsine ...... 7784–42–1 Any Amount. Barium azide ...... 18810–58–7 2,000. bis(2-chloroethyl)ethylamine ...... 538–07–8 Any Amount. bis(2-chloroethyl)methylamine ...... 51–75–2 Any Amount. bis(2-chloroethyl)sulfide ...... 505–60–2 Any Amount. bis(2-chloroethylthio)methane ...... 63869–13–6 Any Amount. bis(2-chloroethylthioethyl)ether ...... 63918–89–8 Any Amount. bis(2-chloroethylthiomethyl)ether ...... 63918–90–1 Any Amount. bis(2-chlorovinyl)chloroarsine ...... 40334–69–8 Any Amount. Boron tribromide ...... 10294–33–4 2,000. Boron trichloride ...... 10294–34–5 Any Amount. Boron triflouride ...... 7637–07–2 Any Amount. Boron triflouride compound with methyl ether (1:1) ...... 353–42–4 11,250. Bromine ...... 7726–95–6 7,500. Bromine chloride ...... 13863–41–7 Any Amount. Bromine pentafluoride ...... 7789–30–2 2,000. Bromine trifluoride ...... 7787–71–5 2,000. Bromotrifluorethylene ...... 598–73–2 7,500. Butane ...... 106–97–8 7,500. Butene ...... 25167–67–3 7,500. Butyltrichlorosilane ...... 7521–80–4 2,000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17741

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST—Continued

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

Calcium dithionite ...... 15512–36–4 2,000. Calcium hydrosulfite ...... 15512–36–4 2,000. Calcium phosphide ...... 1305–99–3 2,000. Carbon disulfide ...... 75–15–0 15,000. Carbon monoxide ...... 630–08–0 Any Amount. Carbon oxysulfide ...... 463–58–1 7,500. Carbonyl fluoride ...... 353–50–4 Any Amount. Carbonyl sulfide ...... 463–58–1 Any Amount. Chlorine ...... 7782–50–5 1,875. Chlorine dioxide ...... 10049–04–4 2,000. Chlorine monoxide ...... 7791–21–1 7,500. Chlorine pentafluoride ...... 13637–63–3 Any Amount. Chlorine trifluoride ...... 7790–91–2 Any Amount. Chloroacetyl chloride ...... 79–04–9 2,000. Chloroform ...... 67–66–3 15,000. Chloromethyl ether ...... 542–88–1 750. Chloromethyl methyl ether ...... 107–30–2 3,750. Chloropicrin ...... 76–06–2 Any Amount. Chlorosulfonic acid ...... 7790–94–5 2,000. Chromium oxychloride ...... 7803–51–2 2,000. Crotonaldehyde ...... 4170–30–3 15,000. Crotonaldehyde, (E)- ...... 123–73–9 15,000. Cyanogen ...... 460–19–5 Any Amount. Cyanogen chloride ...... 506–77–4 Any Amount. Cyclohexylamine ...... 108–91–8 11,250. Cyclohexyltrichlorosilane ...... 98–12–4 2,000. Cyclopropane ...... 75–19–4 7,500. Cyclotetramethylenetetranitramine ...... 2691–41–0 2,000. Diazodinitrophenol ...... 87–31–0 2,000. Diborane ...... 19287–45–7 Any Amount. Dichlorosilane ...... 4109–96–0 Any Amount. Diethyl ethylphosphonate ...... 78–38–6 Any Amount. Diethyl N,N-dimethylphosphoramidate ...... 2404–03–7 Any Amount. Diethyl phosphate ...... 762–04–9 Any Amount. Diethyldichlorosilane ...... 1719–53–5 2,000. Diethyleneglycol dinitrate ...... 693–21–0 2,000. Difluoroethane ...... 75–37–6 7,500. Dimethyl ethylphosphonate ...... 6163–75–3 Any Amount. Dimethyl methylphosphonate ...... 756–79–6 Any Amount. Dimethyl phosphate ...... 868–85–9 Any Amount. Dimethylamine ...... 124–40–3 7,500. Dimethyldichlorosilane ...... 75–78–5 2,000. Dimethylphosphoramidodichloridate ...... 677–43–0 Any Amount. Dinitrogen tetroxide ...... 10544–72–6 Any Amount. Dinitroglycoluril ...... 55510–04–8 2,000. Dinitrophenol ...... 25550–58–7 2,000. Dinitroresorcinol ...... 35860–51–6 2,000. Dinitrosobenzene ...... 25550–55–4 2,000. Diphenyl-2-hydroxyacetic acid (aka benzilic acid) ...... 76–93–7 Any Amount. Diphenyldichlorosilane ...... 80–10–4 2,000. Dipicryl sulfide ...... 2217–06–3 2,000. Dodecyltrichlorosilane ...... 4484–72–4 2,000. Epichlorohydrin ...... 106–89–8 15,000. Ethane ...... 74–84–0 7,500. Ethyl acetylene ...... 107–00–6 7,500. Ethyl chloride ...... 75–00–3 7,500. Ethyl ether ...... 60–29–7 7,500. Ethyl mercaptan ...... 75–08–1 7,500. Ethyl nitrite ...... 109–95–5 7,500. Ethyl phosphonyl dichloride ...... 1066–50–8 Any Amount. Ethyl phosphonyl difluoride ...... 753–98–0 Any Amount. Ethylamine ...... 75–04–7 7,500. Ethyldiethanolamine ...... 139–87–7 Any Amount. Ethylene ...... 74–85–1 7,500. Ethylene oxide ...... 75–21–8 Any Amount. Ethylenediamine ...... 107–15–3 15,000. Ethyleneimine ...... 151–56–4 7,500. Ethyltrichlorosilane ...... 115–21–9 2,000. Fluorine ...... 7782–41–4 Any Amount. Fluorosulfonic acid ...... 7789–21–1 2,000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17742 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST—Continued

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

Formaldehyde (solution) ...... 50–00–0 11,250. Furan ...... 110–00–9 3,750. Germane ...... 7782–65–2 Any Amount. Germanium tetrafluoride ...... 7783–58–6 Any Amount. Guanyl nitrosaminoguanylidene hydrazine ...... 2,000. Guanyl nitrosaminoguanyltetrazene ...... 109–27–3 2,000. Hexaethyl tetraphosphate and compressed gas mixtures ...... 757–58–4 Any Amount. Hexafluoroacetone ...... 684–16–2 Any Amount. Hexanitrodiphenylamine ...... 35860–31–2 2,000. Hexanitrostilbene ...... 20062–22–0 2,000. Hexolite ...... 121–82–4 2,000. Hexotonal ...... 107–15–3 2,000. Hexyltrichlorosilane ...... 928–89–2 6 2,000. Hydrazine ...... 302–01–2 11,250. Hydrochloric acid (conc. 37% or greater) ...... 7647–01–0 11,250. Hydrocyanic acid ...... 74–90–8 1,875. Hydrogen ...... 1333–74–0 7,500. Hydrogen bromide, anhydrous ...... 10035–10–6 Any Amount. Hydrogen chloride (anhydrous) ...... 7647–01–0 Any Amount. Hydrogen cyanide ...... 74–90–8 Any Amount. Hydrogen fluoride/Hydrofluoric acid (conc. 50% or greater) ...... 7664–39–3 750. Hydrogen iodide, anhydrous ...... 10034–85–2 Any Amount. Hydrogen peroxide (concentration of at least 30%) ...... 7722–84–1 2,000. Hydrogen selenide ...... 7783–07–5 Any Amount. Hydrogen sulfide ...... 7783–06–4 Any Amount. Iodine pentafluoride ...... 7783–66–6 2,000. Iron, pentacarbonyl- ...... 13463–40–6 1,875. Isobutane ...... 75–28–5 7,500. Isobutyronitrile ...... 78–82–0 15,000. Isopentane ...... 78–78–4 7,500. Isoprene ...... 78–79–5 7,500. Isopropyl chloride ...... 75–29–6 7,500. Isopropyl chloroformate ...... 108–23–6 11,250. Isopropylamine ...... 75–31–0 7,500. Lead azide ...... 13424–46–9 2,000. Lead styphnate ...... 15245–44–0 2,000. Lithium amide ...... 7782–89–0 2,000. Lithium nitride ...... 26134–62–3 2,000. Magnesium aluminum phosphide ...... 2,000. Magnesium diamide ...... 7803–54–5 2,000. Magnesium phosphide ...... 12057–74–8 2,000. Mannitol hexanitrate, wetted ...... 15825–70–4 2,000. Mercury fulminate ...... 628–86–4 2,000. Methacrylonitrile ...... 126–98–7 7,500. Methane ...... 74–82–8 7,500. Methyl bromide ...... 74–83–9 Any Amount. Methyl chloride ...... 74–87–3 7,500. Methyl chloroformate ...... 79–22–1 3,750. Methyl ether ...... 115–10–6 7,500. Methyl formate ...... 107–31–3 7,500. Methyl hydrazine ...... 60–34–4 11,250. Methyl isocyanate ...... 624–83–9 11,250. Methyl mercaptan ...... 74–93–1 Any Amount. Methyl phosphonyl dichloride ...... 676–97–1 Any Amount. Methyl phosphonyl difluoride ...... 676–99–3 Any Amount. Methyl thiocyanate ...... 556–64–9 15,000. Methylamine ...... 74–89–5 7,500. Methylchlorosilane ...... 993–00–0 Any Amount. Methyldichlorosilane ...... 75–54–7 2,000. Methyldiethanolamine ...... 105–59–9 Any Amount. Methylphenyldichlorosilane ...... 149–74–6 2,000. Methyltrichlorosilane ...... 75–79–6 2,000. N,N-diisopropyl-2-aminoethyl chloride hydrochloride ...... 4261–68–1 Any Amount. N,N-diisopropyl-b-aminoethanol ...... 96–80–0 Any Amount. N,N-diisopropyl-b-aminoethyl chloride ...... 96–79–7 Any Amount. Nickel Carbonyl ...... 13463–39–3 750. Nitric acid ...... 7697–37–2 2,000. Nitric oxide ...... 10102–43–9 Any Amount. Nitro urea ...... 556–89–8 2,000. Nitrocellulose ...... 9004–70–0 2,000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17743

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST—Continued

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

Nitrogen trioxide ...... 10544–73–7 Any Amount. Nitroglycerine ...... 55–63–0 2,000. Nitroguanidine ...... 556–88–7 2,000. Nitromethane ...... 75–52–5 2,000. Nitrostarch ...... 9056–38–6 2,000. Nitrosyl chloride ...... 2696–92–6 Any Amount. Nitrotriazolone ...... 932–64–9 2,000. Nonyltrichlorosilane ...... 5283–67–0 2,000. o,o-diethyl S-[2-(diethylamino)ethyl] phosphorothiolate ...... 78–53–5 Any Amount. Octadecyltrichlorosilane ...... 112–04–9 2,000. Octolite ...... 68610–51–5 2,000. Octonal ...... 124–13–0 2,000. Octyltrichlorosilane ...... 5283–66–9 2,000. o-ethyl-N,N-dimethylphosphoramido-cyanidate ...... 77–81–6 Any Amount. o-ethyl-o-2-diisopropylaminoethyl methylphosphonite ...... 57856–11–8 Any Amount. o-ethyl-S-2-diisopropylaminoethyl methyl phosphonothiolate ...... 50782–69–9 Any Amount. o-isopropyl methylphosphonochloridate ...... 1445–76–7 Any Amount. o-isopropyl methylphosphonofluoridate ...... 107–44–8 Any Amount. Oleum (Fuming Sulfuric acid) ...... 8014–95–7 7,500. o-pinacolyl methylphosphonochloridate ...... 7040–57–5 Any Amount. o-pinacolyl methylphosphonofluoridate ...... 96–64–0 Any Amount. Oxygen difluoride ...... 7783–41–7 Any Amount. Pentaerythrite tetranitrate or PETN ...... 78–11–5 2,000. Pentane ...... 109–66–0 7,500. Pentolite ...... 8066–33–9 2,000. Peracetic acid ...... 79–21–0 7,500. Perchloromethylmercaptan ...... 594–42–3 7,500. Perchloryl fluoride ...... 7616–94–6 Any Amount. Phenyltrichlorosilane ...... 98–13–5 2,000. Phosgene ...... 75–44–5 Any Amount. Phosphine ...... 7803–51–2 Any Amount. Phosphorus ...... 7723–14–0 Any Amount. Phosphorus oxychloride ...... 10025–87–3 Any Amount. Phosphorus oxychloride ...... 10025–87–3 2,000. Phosphorus pentachloride ...... 10026–13–8 Any Amount. Phosphorus pentachloride ...... 10026–13–8 2,000. Phosphorus pentasulfide ...... 1314–80–3 2,000. Phosphorus trichloride ...... 7719–12–2 Any Amount. Phosphorus trichloride ...... 7719–12–2 2,000. Piperidine ...... 110–89–4 11,250. Potassium chlorate ...... 3811–04–9 2,000. Potassium cyanide ...... 151–50–8 2,000. Potassium nitrate ...... 7757–79–1 2,000. Potassium perchlorate ...... 7778–74–7 2,000. Potassium phosphide ...... 20770–41–6 2,000. Propadiene ...... 463–49–0 7,500. Propane ...... 74–98–6 7,500. Propionitrile ...... 107–12–0 7,500. Propyl chlorofromate ...... 109–61–5 11,250. Propylene ...... 115–07–1 7,500. Propylene oxide ...... 75–56–9 7,500. Propyleneimine ...... 75–55–8 7,500. Propyltrichlorosilane ...... 141–57–1 2,000. Propyne ...... 74–99–7 7,500. Quinuclidine-3-ol ...... 1619–34–7 Any Amount. RDX and HMX mixtures ...... 121–82–4 2,000. Selenium hexafluoride ...... 7783–79–1 Any Amount. Silane ...... 7803–62–5 7,500. Silicon tetrachloride ...... 10026–04–7 2,000. Silicon tetrafluoride ...... 7783–61–1 Any Amount. Sodium chlorate ...... 7775–09–9 2,000. Sodium cyanide ...... 143–33–9 2,000. Sodium dinitro-o-cresolate ...... 25641–53–6 2,000. Sodium dithionite ...... 7775–14–6 2,000. Sodium hydrosulfite ...... 7775–14–6 2,000. Sodium nitrate ...... 7631–99–4 2,000. Sodium phosphide ...... 7558–80–7 2,000. Sodium picramate ...... 831–52–7 2,000. Stibine ...... 7803–52–3 Any Amount. Strontium phosphide ...... 13450–99–2 2,000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 17744 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

APPENDIX A TO PART 27.—DHS CHEMICALS OF INTEREST—Continued

Chemical Ab- Screening threshold quantity Chemical of interest stract Service (STQ) (CAS) number (lbs)

Sulfur dichloride ...... 10545–99–0 Any Amount. Sulfur dioxide (anhydrous) ...... 7446–09–5 Any Amount. Sulfur monochloride ...... 10025–67–9 Any Amount. Sulfur tetraflouride ...... 7783–60–0 Any Amount. Sulfur trioxide ...... 7446–11–9 7,500. Sulfuryl chloride ...... 7791–25–5 2,000. Sulfuryl fluoride ...... 2699–79–8 Any Amount. Tellurium hexafluoride ...... 7783–80–4 Any Amount. Tetrafluoroethylene ...... 116–14–3 7,500. Tetramethyllead ...... 75–74–1 7,500. Tetramethylsilane ...... 75–76–3 7,500. Tetranitroaniline ...... 53014–37–2 2,000. Tetranitromethane ...... 509–14–8 7,500. Tetrazol-1-acetic acid ...... 21732–17–2 2,000. Thiodiglycol ...... 111–48–8 Any Amount. Thionyl chloride ...... 7719–09–7 Any Amount. Thionyl chloride ...... 7719–09–7 2,000. Titanium tetrachloride ...... 7550–45–0 2,000. Toluene 2,4-diisocyanate ...... 584–84–9 7,500. Toluene 2,6-diisocyanate ...... 91–08–7 7,500. Toluene diisocyanate (unspecified isomer) ...... 26471–62–5 7,500. Trichlorosilane ...... 10025–78–2 2,000. Triethanolamine ...... 102–71–6 Any Amount. Triethanolamine hydrochloride ...... 637–39–8 Any Amount. Triethyl phosphite ...... 122–52–1 Any Amount. Trifluoroacetyl chloride ...... 354–32–5 Any Amount. Trifluorochloroethylene ...... 79–38–9 Any Amount. Trimethyl phosphite ...... 121–45–9 Any Amount. Trimethylamine ...... 75–50–3 Any Amount. Trimethylchlorosilane ...... 75–77–4 2,000. Trinitroaniline ...... 26952–42–1 2,000. Trinitroanisole ...... 606–35–9 2,000. Trinitrobenzene ...... 99–35–4 2,000. Trinitrobenzenesulfonic acid ...... 2508–19–2 2,000. Trinitrobenzoic acid ...... 129–66–8 2,000. Trinitrochlorobenzene ...... 88–88–0 2,000. Trinitrofluorenone ...... 129–79–3 2,000. Trinitro-meta-cresol ...... 602–99–3 2,000. Trinitronaphthalene ...... 558101–17–8 2,000. Trinitrophenetole ...... 4732–14–3 2,000. Trinitrophenol ...... 88–89–1 2,000. Trinitroresorcinol ...... 82–71–3 2,000. Trinitrotoluene ...... 118–96–7 2,000. Tris(2-chloroethyl)amine ...... 555–77–1 Any Amount. Tris(2-chlorovinyl)arsine ...... 40334–70–1 Any Amount. Tritonal ...... 54413–15–9 2,000. Tungsten hexafluoride ...... 7783–82–6 Any Amount. Uranium hexafluoride ...... 7783–81–5 2,000. Urea ...... 57–13–6 2,000. Urea nitrate ...... 124–47–0 2,000. Vinyl acetate monomer ...... 108–05–4 11,250. Vinyl actylene ...... 689–97–4 7,500. Vinyl chloride ...... 75–01–4 7,500. Vinyl ethyl ether ...... 109–92–2 7,500. Vinyl fluoride ...... 75–02–5 7,500. Vinyl methyl ether ...... 107–25–5 7,500. Vinylidene chloride ...... 75–35–4 7,500. Vinylidene fluoride ...... 75–38–7 7,500. Vinyltrichlorosilane ...... 75–94–5 2,000. Zinc dithionite ...... 7779–86–4 2,000. Zinc hydrosulfite ...... 7779–86–4 2,000. Zirconium picramate ...... 63868–82–6 2,000.

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17745

Dated: April 2, 2007. Michael Chertoff, Secretary of Homeland Security, Department of Homeland Security. [FR Doc. E7–6363 Filed 4–6–07; 8:45 am] BILLING CODE 4410–10–P

VerDate Aug<31>2005 22:10 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR2.SGM 09APR2 rwilkins on PROD1PC63 with RULES_2 Monday, April 9, 2007

Part IV

Department of Education 34 CFR Parts 200 and 300 Title I—Improving the Academic Achievement of the Disadvantaged; Individuals With Disabilities Education Act (IDEA); Final Rule

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17748 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

DEPARTMENT OF EDUCATION Individuals with disabilities may information to help these students obtain this document in an alternative progress toward grade-level 34 CFR Parts 200 and 300 format (e.g., Braille, large print, achievement. RIN 1810–AA98 audiotape, or computer diskette) on These regulations permit States to request to one of the contact persons develop an assessment that is Title I—Improving the Academic listed in the preceding paragraph. appropriately challenging for this group Achievement of the Disadvantaged; SUPPLEMENTARY INFORMATION: These of students as part of their State Individuals With Disabilities Education regulations amend regulations in 34 accountability and assessment systems Act (IDEA)—Assistance to States for CFR part 200, implementing certain under Title I of the ESEA, as amended the Education of Children With provisions of Title I, Part A of the ESEA, by NCLB. This assessment is based on Disabilities as amended by NCLB, which are modified academic achievement designed to help disadvantaged children standards that cover grade-level content. AGENCY: Office of Elementary and The requirement that modified Secondary Education; Office of Special meet high academic standards. They also amend regulations in 34 CFR part academic achievement standards be Education and Rehabilitative Services, aligned with grade-level content U.S. Department of Education. 300, implementing programs for students with disabilities under Part B standards is important—in order for ACTION: Final regulations. of the IDEA. On December 15, 2005, the these students to have an opportunity to achieve at grade level, they must have SUMMARY: The Secretary amends the Secretary published a notice of access to, and instruction in, grade-level regulations governing programs proposed rulemaking (NPRM) for these content. The regulations include a administered under Title I of the programs in the Federal Register (70 FR number of safeguards to ensure that Elementary and Secondary Education 74624). students assessed based on modified Act of 1965 (ESEA), as amended by the These regulations build upon academic achievement standards have No Child Left Behind Act of 2001 flexibility that currently is available access to grade-level content so that (NCLB) (referred to in these regulations under the Title I regulations in 34 CFR they can work toward grade-level as the Title I program) and the part 200 for measuring the achievement achievement, such as the requirement regulations governing programs under of students with the most significant that their IEPs include goals that are Part B of the Individuals with cognitive disabilities. Those Title I based on grade-level content standards Disabilities Education Act (IDEA) regulations permit a State to develop and provide for monitoring of the (referred to in these regulations as the alternate academic achievement students’ progress in achieving those IDEA program). These regulations standards for students with the most goals. In addition to ensuring that provide States with additional significant cognitive disabilities and to students with disabilities are flexibility regarding State, local include those students’ proficient and appropriately assessed, these educational agency (LEA), and school advanced scores on alternate regulations also will give teachers and accountability for the achievement of a assessments based on alternate schools credit for the work that they do small group of students with disabilities academic achievement standards in with these students to help them whose progress is such that, even after measuring adequate yearly progress progress toward grade-level receiving appropriate instruction, (AYP), subject to a cap of 1.0 percent of achievement. including special education and related all students assessed at the State and services designed to address the district levels. Since those regulations Major Concepts Regarding Modified students’ individual needs, the students’ were published, the experiences of Academic Achievement Standards in individualized education program (IEP) many States, as well as recent research, These Regulations teams (IEP Teams) are reasonably indicate that in addition to students What are modified academic certain that the students will not with the most significant cognitive achievement standards? The NPRM achieve grade-level proficiency within disabilities, there is a small group of described modified academic the year covered by the students’ IEPs. students whose disability has precluded achievement standards as academic DATES: These regulations are effective them from achieving grade-level achievement standards aligned with May 9, 2007. proficiency and whose progress is such grade-level content standards, but FOR FURTHER INFORMATION CONTACT: that they will not reach grade-level modified in such a manner that they Regarding Part 200, Jacquelyn C. achievement standards in the same time reflect reduced breadth or depth of Jackson, Ed.D., Director, Student frame as other students. Currently, these grade-level content. Based on the Achievement and School Accountability students must take either a grade-level comments we received, it was clear that Programs, Office of Elementary and assessment or an alternate assessment this language was confusing and did not Secondary Education, U.S. Department based on alternate academic sufficiently convey our intent that only of Education, 400 Maryland Avenue, achievement standards. Neither of these the academic achievement standards for SW., room 3W202, FB–6, Washington, options provides an accurate assessment students are to be modified, not the DC 20202–6132. Telephone: (202) 260– of what these students know and can content standards on which those 0826. Regarding Part 300, Alexa Posny, do. A grade-level assessment is too modified academic achievement Ph.D., Director, Office of Special difficult and, therefore, does not provide standards are based. The final Education Programs, Office of Special data about a student’s abilities or regulations make clear that modified Education and Rehabilitative Services, information that would be helpful to academic achievement standards are U.S. Department of Education, Potomac guide instruction. An alternate challenging for eligible students, but are Center Plaza, 550 12th Street, SW., assessment based on alternate academic a less rigorous expectation of mastery of Washington, DC 20202–2641. achievement standards is too easy and grade-level academic content standards. Telephone: (202) 245–7459, Ext. 3. is not intended to assess a student’s Notably, modified academic If you use a telecommunications achievement across the full range of achievement standards must be based device for the deaf (TDD), you may call grade-level content. Such an on a State’s grade-level academic the Federal Relay Service (FRS) at 1– assessment, therefore, would not content standards for the grade in which 800–877–8339. provide teachers and parents with an eligible student with disabilities is

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17749

enrolled. In other words, a State’s regulations and replaced it with a that a student assessed based on academic content standards are not requirement that if the IEPs of these modified academic achievement what are modified. The expectations for students include goals for a subject standards has the opportunity to learn whether a student has mastered those assessed under § 200.2, those goals must grade-level content. Specifically, the standards, however, may be less be based on grade-level content final regulations in § 200.1(f)(2) require difficult than grade-level academic standards. We believe this will help a State to (a) establish and monitor achievement standards. ensure that students have access to implementation of clear and appropriate The characteristics of modified grade-level content before they are guidelines for an IEP Team to apply in academic achievement standards are the assessed based on modified academic developing and implementing the IEP of same as those described in § 200.1(c) of achievement standards and that they a student assessed based on modified the Title I regulations for grade-level receive instruction in grade-level academic achievement standards; (b) academic achievement standards. That content after they are assessed based on ensure that a student who takes an is, they must be aligned with a State’s modified academic achievement alternate assessment based on modified academic content standards, describe at standards. Such an approach focuses the academic achievement standards has least three levels of achievement, IEP Team and the student on grade-level access to the curriculum, including include descriptions of the content standards and on the student’s instruction, for the grade in which the competencies associated with each current achievement relative to those student is enrolled; and (c) ensure that achievement level, and include standards. We believe that instruction in a student who takes an alternate assessment scores (cut scores) that grade-level content is critical to ensure assessment based on modified academic differentiate among the achievement that students who participate in achievement standards is not precluded levels. A State must provide a alternate assessments based on modified from attempting to complete the description of the rationale and academic achievement standards are requirements, as defined by the State, procedures used to determine each prepared to demonstrate their mastery for a regular high school diploma. achievement level as part of the of grade-level content and can move To help IEP Teams make appropriate Department’s peer review of Statewide closer to grade-level achievement. The decisions and ensure that students are assessment systems under Title I of the final regulations intentionally do not not inappropriately assessed based on ESEA. prescribe which students with modified academic achievement Which students with disabilities are disabilities are eligible to be assessed standards, § 200.1(f)(1)(iii) requires a eligible to be assessed based on based on modified academic State to provide IEP Teams with a clear modified academic achievement achievement standards; that is the explanation of the differences between standards? The final regulations reflect determination of a student’s IEP Team, assessments based on grade-level our intent that students assessed based which includes the student’s parents, academic achievement standards and on modified academic achievement based on criteria developed by the State those based on modified or alternate standards are not limited to students as part of the State’s guidelines for IEP academic achievement standards with disabilities achieving close to Teams. Those criteria must include, but (including any effects of State and local grade level, may be in any of the are not limited to, the following: policies on the student’s education disability categories listed in the IDEA, (1) There must be objective evidence resulting from taking an alternate and may represent a wide spectrum of demonstrating that the student’s assessment based on alternate or abilities. The comments we received disability has precluded the student modified academic achievement indicated that the proposed requirement from achieving grade-level proficiency standards). Under § 200.1(f)(1)(iv), a that a student receive direct instruction in the content area assessed. Such State also must ensure that the parents in grade-level content in order to be evidence may include the student’s of a student selected to be assessed eligible for an alternate assessment performance on State assessments or based on alternate or modified academic based on modified academic other assessments that can validly achievement standards are informed achievement standards was mistakenly document academic achievement; that their child’s achievement will be understood to mean that only students (2) The student’s progress to date in measured based on alternate or achieving close to grade level could be response to appropriate instruction, modified academic achievement assessed based on modified academic including special education and related standards. achievement standards. That was not services designed to address the The assumption underlying these our intent. We included this student’s individual needs, is such that, regulations is that many students requirement because we believe that all even if significant growth occurs, the eligible to be assessed based on students with disabilities, including IEP Team is reasonably certain that the modified academic achievement students assessed based on modified student will not achieve grade-level standards are in regular classrooms with academic achievement standards, proficiency within the year covered by children of the same chronological age should have access to grade-level the student’s IEP. The IEP Team must and are receiving instruction in grade- content. This is consistent with the use multiple valid measures of the level curriculum; however, because of provisions in the IDEA that focus on student’s progress over time in making these students’ disabilities, their IEP ensuring that all students with this determination; and Teams are reasonably certain they will disabilities have access to the general (3) If the student’s IEP includes goals not achieve grade-level proficiency curriculum (See, e.g., section for a subject assessed under § 200.2, within the year covered by their IEPs. In 614(d)(1)(A)(i)(II)(aa) and (IV)(bb)). those goals must be based on the most schools, students assessed based However, in order to clarify the policy academic content standards for the on modified academic achievement and limit further misunderstanding, we grade in which the student is enrolled. standards will represent a small portion have removed the requirement that a In addition to requiring that the IEP of students with disabilities. The final student receive direct instruction in of a student assessed based on modified regulations in § 200.13(c)(2)(ii) provide grade-level content in order to be academic achievement standards that up to 2.0 percent (approximately 20 eligible for an alternate assessment include goals that are based on percent of students with disabilities) of based on modified academic academic content standards, the final the proficient and advanced scores from achievement standards from the final regulations include safeguards to ensure alternate assessments based on modified

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17750 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

academic achievement standards may professional and technical standards) standards that meet the requirements of be included in calculating AYP. and be based on modified academic these regulations. What assessments measure achievement standards that have been Former students with disabilities. The performance based on modified developed through a documented and final regulations in § 200.20(f)(2) academic achievement standards? validated standards-setting process that provide additional flexibility in Because a student eligible to be assessed includes broad stakeholder input, calculating AYP for the students with based on modified academic consistent with new § 200.1(e)(1)(iv). disabilities subgroup. Under the final achievement standards must have regulations, a State may include, for a access to a curriculum based on the Other Provisions Addressed in These period of up to two years, the scores of State’s academic content standards for Regulations students who were previously identified the grade in which the student is These regulations also finalize several with a disability under the IDEA but enrolled, that student must be assessed other provisions under Title I and the who no longer receive special education with a measure that is also based on IDEA that were proposed in the NPRM, services. A State, however, would not be those same grade-level academic including the following: able to include the scores of former content standards, although the Minimum group size. The final Title students with disabilities as part of the assessment may be less difficult than I regulations in § 200.7(a)(2)(ii) prohibit students with disabilities subgroup in the State’s regular assessment. An out- a State, beginning in the 2007–08 school reporting any other information (e.g., of-level assessment cannot be used as an year, from establishing a different participation rates) under Title I. alternate assessment based on modified minimum number (group size or ‘‘n Assessment of students with academic achievement standards size’’) of students across the required disabilities under the IDEA. To ensure a because, by definition, an out-of-level AYP subgroups for purposes of coordinated administration of the IDEA assessment does not cover the same calculating AYP. This requirement and Title I programs, the final IDEA content as an assessment based on applies to all States, not just those that regulations on assessment in § 300.160, grade-level academic content standards. choose to develop and administer an which are included in this regulations The final regulations in § 200.6(a)(3) alternate assessment based on modified package, incorporate provisions make clear that a State may develop a academic achievement standards. regarding modified academic new alternate assessment based on Multiple test administrations. With achievement standards that are modified academic achievement the removal of current § 200.20(c)(3), consistent with the changes to the standards or adapt its general States will now be permitted to regulations under Title I of the ESEA. In assessment. Consistent with administer their State assessments addition, the final IDEA regulations § 200.6(a)(3)(ii), an alternate assessment (including regular and alternate provide that a State’s (or in the case of based on modified academic assessments) more than once and a district-wide assessment, an LEA’s) achievement standards must cover the include the student’s best score in guidelines must require each child to be same grade-level content as the regular determining AYP. validly assessed and must identify, for assessment. Beyond this essential Guidelines for IEP Teams. Title I each assessment, accommodations that requirement, a State may employ a requires a State to administer would result in an invalid score. variety of strategies to design an assessments that are valid and reliable Consistent with Title I, these final alternate assessment based on modified for the purposes for which they are regulations also provide in academic achievement standards. For used. Accordingly, students, including § 300.160(f)(1) that a student taking an example, it might replace the most students with disabilities, who are assessment with an accommodation that difficult items on a State’s general assessed with assessments that are not invalidates the score would not be assessment with simpler items while valid and reliable are not ‘‘participants’’ reported as a participant under the retaining coverage of the State’s for purposes of calculating participation IDEA. This coordination of the academic content standards or modify rates in determining AYP. The final regulations for the IDEA and Title I the same items that appear on the grade- IDEA regulations that are included in programs should avoid confusion level assessment by eliminating one of these regulations provide that a State’s among parents, teachers, and the incorrect answers in a multiple (or in the case of district-wide administrators, and reinforce IDEA’s choice test. Alternatively, a State might assessments, an LEA’s) guidelines and Title I’s shared goal of high choose to develop a unique assessment require each child to be validly assessed expectations and accountability for all based on grade-level academic content and identify, for each assessment, any students. standards that provides flexibility in the accommodations that would result in an presentation of test items, for example, invalid score. Consistent with Title I, a Major Changes in the Regulations by using technology to allow students to student with disabilities must receive a The following is a summary of the access items via print, spoken, and valid score in order to be counted as a major substantive changes in these final pictorial form. Or States may permit participant under the IDEA. regulations from the regulations students to respond to test items by The final Title I regulations in proposed in the NRPM (the rationale for dictating responses or using § 200.1(f) place responsibility on a State each of these changes is discussed in the mathematics manipulatives to illustrate to develop guidelines for IEP Teams and Analysis of Comments and Changes conceptual or procedural knowledge. in new § 200.20(c)(3) make clear that, to section elsewhere in this preamble). Regardless of whether a State chooses to count a student who is assessed based construct a unique assessment or to on alternate or modified academic PART 200—TITLE I—IMPROVING THE adapt its general assessment, any achievement standards as a participant ACADEMIC ACHIEVEMENT OF THE alternate assessment based on modified for purposes of meeting the 95 percent DISADVANTAGED academic achievement standards must assessment participation requirement, a meet the requirements for high technical State must have guidelines for IEP State Responsibilities for Developing quality set forth in §§ 200.2(b) and Teams to use to determine appropriately Challenging Academic Standards 200.3(a)(1) (including validity, which students should participate in (§ 200.1(a)) reliability, accessibility, objectivity, and alternate assessments based on alternate • Section 200.1(a)(1) and (a)(2) have consistency with nationally recognized or modified academic achievement been revised to clarify that the same

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17751

academic content standards apply to all removed. A similar provision has been the 13 disability categories listed in the public schools and all public school included in the requirements for State IDEA, has been removed. This provision students and that the authority to guidelines in new § 200.1(f)(2)(iv). has been incorporated into the develop alternate and modified (7) A new § 200.1(e)(1)(iv) has been requirements for State guidelines in new academic achievement standards for added requiring modified academic § 200.1(f)(1)(ii). eligible students with disabilities does achievement standards to be developed • Proposed § 200.1(e)(4), which not apply to academic content through a documented and validated would have provided that a student standards. Proposed paragraph (b)(1)(i) standards-setting process that includes could be assessed based on modified is redundant with these changes and has broad stakeholder input, including academic achievement standards in one been removed. persons knowledgeable about a State’s or more subjects for which assessments academic content standards and are administered under Title I, has been Modified Academic Achievement experienced in standards setting and removed. This provision has been Standards (§ 200.1(e)) special educators who are most revised and incorporated into the • Section 200.1(e)(1), which defines knowledgeable about children with requirements for State guidelines in new modified academic achievement disabilities. § 200.1(f)(1)(i)(B) (proposed standards for a State that chooses to • Section 200.1(e)(2), regarding the § 200.1(f)(1)(ii)). develop such standards, has been criteria for IEP Teams to use in • Proposed § 200.1(e)(5), which revised as follows: determining whether a student is would have required the decision to (1) Paragraph (e)(1) of § 200.1, which eligible to be assessed based on assess a student based on modified permits a State to develop modified modified academic achievement academic achievement standards to be academic achievement standards for standards, has been revised to make the reviewed annually by a student’s IEP students with disabilities, has been following changes: Team, has been removed. This changed by deleting the reference to a (1) The introduction to § 200.1(e)(2) requirement has been revised and documented and validated standards- has been changed to clarify that a State incorporated into the requirements for setting process. The requirement for a may include criteria, in addition to State guidelines in new § 200.1(f)(2)(v). State to use a documented and validated those listed in paragraphs (e)(2)(i) State Guidelines (§ 200.1(f)) standards-setting process has been through (e)(2)(iii), for IEP Teams to use clarified and expanded in new in determining whether a student • Proposed § 200.1(f), regarding the § 200.1(e)(1)(iv). should be assessed based on modified requirements for State guidelines, has (2) Proposed paragraph (e)(1)(i) of academic achievement standards. been restructured into new paragraphs § 200.1, which requires modified (2) Paragraph (e)(2)(ii) of § 200.1, (f)(1) and (f)(2). New paragraph (f)(1) academic achievement standards to be regarding the guidelines that a State includes the requirements for State aligned with a State’s academic content must establish for IEP Teams, has been guidelines for students who are assessed standards for the grade in which the changed by (A) removing the based on either alternate or modified student is enrolled, would have requirement that IEP Teams consider a academic achievement standards. New permitted modified academic student’s progress in response to high- paragraph (f)(2) includes additional achievement standards to reflect quality instruction and replacing it with requirements for State guidelines for reduced breadth or depth of grade level a requirement that IEP Teams consider students who are assessed based on content. The requirement has been a student’s progress to date in response modified academic achievement changed by deleting the reference to to appropriate instruction; and (B) standards. reduced breadth or depth. removing the requirement that IEP • Proposed § 200.1(f)(1), which would (3) A new paragraph (e)(1)(ii) has been Teams determine that a student is not have required a State to establish and added to § 200.1 to specify that likely to achieve grade-level proficiency ensure implementation of clear and modified academic achievement within the year covered by the student’s appropriate guidelines for IEP Teams to standards must be challenging for IEP, and replacing it with a requirement determine if students are to be assessed eligible students, but may be less that IEP Teams be reasonably certain based on alternate or modified academic difficult than grade-level academic that, even if significant growth occurs, achievement standards, has been achievement standards. the student will not achieve grade-level expanded to require a State to establish (4) Proposed paragraph (e)(1)(ii) of proficiency within the year covered by and monitor implementation of clear § 200.1, which would have required the student’s IEP. and appropriate guidelines for IEP modified academic achievement (3) A new paragraph (e)(2)(iii) has Teams. Proposed §§ 200.1(f)(1) and standards to provide access to grade- been added to § 200.1 requiring that if 200.1(f)(1)(i) have been redesignated as level curriculum, has been removed. a student assessed based on modified new §§ 200.1(f)(1)(i) and This requirement has been incorporated academic achievement standards has an 200.1(f)(1)(i)(A), respectively. into the requirements for State IEP that includes goals for a subject • Proposed § 200.1(f)(1)(ii), which guidelines in new § 200.1(f)(2)(iii). In assessed under § 200.2, those goals must requires a State to establish guidelines addition, we have clarified that grade- be based on the academic content for IEP Teams to use in determining if level curriculum includes instruction. standards for the grade in which the students are to be assessed based on (5) A new paragraph (e)(1)(iii) has student is enrolled. Proposed modified academic achievement been added to §00.1 indicating that § 200.1(e)(2)(iii), which would have standards, has been revised to clarify modified academic achievement required, as an eligibility condition, that that students may be assessed based on standards, like grade-level academic a student be receiving instruction in the modified academic achievement achievement standards, must include at grade-level curriculum for the subjects standards in one or more of the subjects least three achievement levels. in which the student is assessed, has tested under Title I. Proposed (6) Proposed paragraph (e)(1)(iii) of been removed. § 200.1(f)(1)(ii) has been redesignated as § 200.1, which would have required that • Proposed § 200.1(e)(3), which new § 200.1(f)(1)(i)(B). modified academic achievement would have permitted a student • A new § 200.1(f)(1)(ii) has been standards not preclude a student from assessed based on modified academic added to require a State to inform IEP earning a high school diploma, has been achievement standards to be in any of Teams that students eligible to be

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17752 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

assessed based on alternate or modified who takes an alternate assessment based academic achievement standards, as academic achievement standards may on modified academic achievement new paragraph (a)(4)(iv). In addition, be from any of the disability categories standards is not precluded from ‘‘to the Secretary’’ has been added to the listed in the IDEA. attempting to complete the introductory sentence in § 200.6(a)(4) to • A new § 200.1(f)(1)(iii) has been requirements, as defined by the State, clarify to whom States must report the added to require a State to provide IEP for a regular high school diploma. data collected under section 1111(h)(4) Teams with a clear explanation of the (5) New paragraph (f)(2)(v) in § 200.1 of the Act. differences between assessments based ensures that each IEP Team reviews on grade-level academic achievement annually for each subject its decision to Disaggregation of Data (§ 200.7) standards and those based on modified assess a student based on modified • or alternate academic achievement academic achievement standards. Section 200.7(a)(ii), providing that a standards, including any effects of State State may not establish a different and local policies on a student’s Inclusion of All Students (§ 200.6) minimum number of students for education resulting from taking an • Section 200.6(a)(1)(ii)(A) has been separate subgroups, has been revised by alternate assessment based on alternate revised to clarify that a State must clarifying that this provision also or modified academic achievement develop, disseminate information on, applies to the school as a whole. In standards (such as whether only and promote the use of appropriate addition, the final regulations make satisfactory performance on a regular accommodations to increase the number clear that this provision takes effect for assessment would qualify a student for of students who are tested against AYP determinations based on 2007–08 a regular high school diploma). academic achievement standards for the assessment data. • Proposed § 200.1(f)(2), which would grade in which a student is enrolled. have required that parents of a student • Section 200.6(a)(2)(iii), which Making Adequate Yearly Progress selected to be assessed based on requires a State to document that a (§ 200.20(f)) alternate or modified academic student with the most significant • achievement standards are informed cognitive disabilities is, to the Proposed § 200.20(f)(1), which that their child’s achievement will be maximum extent possible, included in permits a State to include, for a period measured based on alternate or the general curriculum, has been of up to two years, the scores of students modified academic achievement changed by deleting the word who were previously identified with a standards, has been redesignated as ‘‘maximum.’’ disability in AYP calculations, has been § 200.1(f)(1)(iv). • Section 200.6(a)(3), regarding incorporated into current § 200.20(f)(2), • A new § 200.1(f)(2), regarding alternate assessments based on modified which codifies the final regulations on requirements for State guidelines for a academic achievement standards, has accountability for former limited student who is assessed based on been revised as follows: English proficient (LEP) students modified academic achievement (1) The heading in § 200.6(a)(3) has published in the Federal Register on standards, has been added and includes been changed to clarify that an September 13, 2006 (71 FR 54187). assessment based on modified academic the following: • Proposed § 200.20(f)(2) has been (1) New paragraph (f)(2)(i) in § 200.1 achievement standards is an ‘‘alternate’’ changed to clarify that if a State requires a State to inform IEP Teams assessment. that a student may be assessed based on (2) Section 200.6(a)(3) has been includes the scores of former students modified academic achievement revised by removing the regulatory with disabilities in calculating AYP, it standards in one or more subjects for references to grade-level assessments must include the scores of all such which assessments are administered and alternate assessments. students. Proposed § 200.20(f)(2) has under Title I. (3) A new § 200.6(a)(3)(i) has been been incorporated into new (2) New paragraph (f)(2)(ii) in § 200.1 added to clarify that a State may § 200.20(f)(2)(ii). requires a State to establish and monitor develop a new alternate assessment or Transition Provision Regarding the implementation of clear and adapt a grade-level assessment to assess Modified Academic Achievement appropriate guidelines for an IEP Team a student based on modified academic Standards (§ 200.20(g)) to apply in developing and achievement standards. implementing an IEP for a student who (4) A new § 200.6(a)(3)(ii) has been • A new § 200.20(g) has been added is assessed based on modified academic added to include the requirements for to make explicit that the Secretary may achievement standards. New paragraph alternate assessments based on modified provide States flexibility in accounting academic achievement standards. (f)(2)(ii)(A) and (B) requires that the IEP for the achievement of some students Proposed § 200.6(a)(3)(i) through of a student assessed based on modified with disabilities in AYP determinations academic achievement standards (a)(3)(iv), which included the that are based on assessments include IEP goals that are based on the requirements for alternate assessments administered in 2007–08 and 2008–09. academic content standards for the based on modified academic States must demonstrate, for each year grade in which the student is enrolled, achievement standards, has been and be designed to monitor the redesignated as new § 200.6(a)(3)(ii)(A) for which flexibility is available, that student’s progress in achieving the through (a)(3)(ii)(D). they are expeditiously moving to adopt student’s standards-based goals. • Section 200.6(a)(4), regarding the and administer assessments based on (3) New paragraph (f)(2)(iii) in § 200.1 reporting requirements under section modified academic achievement requires a State to ensure that a student 1111(h)(4) of Title I, has been changed standards consistent with these who is assessed based on modified by redesignating (A) proposed regulations and meet other criteria, as academic achievement standards has paragraph (a)(4)(iv), regarding alternate the Secretary determines appropriate, in access to the curriculum, including assessments based on grade-level order to be considered for this instruction, for the grade in which the academic achievement standards, as flexibility. student is enrolled. new paragraph (a)(4)(iii); and (B) (4) New paragraph (f)(2)(iv) in § 200.1 proposed paragraph (a)(4)(iii), regarding requires a State to ensure that a student alternate assessments based on modified

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17753

PART 300—ASSISTANCE TO STATES education resulting from taking an report on the performance results of FOR THE EDUCATION OF CHILDREN alternate assessment based on alternate children with disabilities on regular WITH DISABILTIES or modified academic achievement assessments and on alternate standards (such as whether only assessments, has been clarified by Participation in Assessments (§ 300.160) satisfactory performance on a regular specifically identifying alternate • Section 300.160(b)(2), regarding assessment would qualify a student for assessments based on grade-level accommodation guidelines that a State a regular high school diploma). academic achievement standards; must develop, has been revised to • A new paragraph (e) has been alternate assessments based on modified clarify that the State guidelines must (A) added, requiring a State to ensure that academic achievement standards; and identify the accommodations for each parents of a student selected to be alternate assessments based on alternate assessment that do not invalidate the assessed based on alternate or modified academic achievement standards. It also score; and (B) instruct IEP Teams to academic achievement standards are has been revised to require that select, for each assessment, only those informed that their child’s achievement performance results for children with accommodations that do not invalidate will be measured based on alternate or disabilities be compared to the the score. modified academic achievement achievement of all students, including • Proposed § 300.160(c), which standards. children with disabilities. Proposed would have required a State that has • Proposed § 300.160(e), regarding § 300.160(e)(5) has been redesignated as adopted modified academic reports on the assessment of students § 300.160(f)(5). achievement standards to have with disabilities, has been redesignated • Proposed § 300.160(f), regarding guidelines for the participation of as § 300.160(f) and changed as follows: universal design, has been redesignated students with disabilities in assessments (1) Proposed paragraph (e)(1) in as § 300.160(g). based on those standards, has been § 300.160, which requires a State to Analysis of Comments and Changes removed. With the clarification in report on the number of children with § 200.6(a)(3) that assessments based on disabilities participating in regular In response to the Secretary’s modified academic achievement assessments, and the number of those invitation in the NPRM, more than 300 standards are alternate assessments, children who were provided parties submitted comments on the proposed § 300.160(c) is redundant with accommodations that did not result in proposed regulations, many of which new § 300.160(c) (proposed an invalid score, has been redesignated were substantially similar. An analysis § 300.160(d)). as § 300.160(f)(1). of the comments and changes in the • Proposed § 300.160(d)(1), which (2) Proposed paragraph (e)(2) in regulations since publication of the requires a State (or in the case of a § 300.160 has been redesignated as NPRM follows. district-wide assessment, an LEA) to § 300.160(f)(2) and revised to require a We discuss substantive issues under develop and implement alternate State to report on the number of the sections of the regulations to which assessments and guidelines for children children participating in alternate they pertain. Generally, we do not who cannot participate in regular assessments based on grade-level address technical or minor changes, and assessments, even with academic achievement standards. suggested changes that we are not accommodations, has been redesignated (3) Proposed paragraph (e)(3) in authorized to make under the law. We as new § 300.160(c)(1). § 300.160, which requires a State to also do not address comments on Title • Proposed § 300.160(d)(2)(ii), which report on the number of children with I or IDEA regulations that were not part would have required a State to measure disabilities who are assessed based on of the NPRM published on December the achievement of children based on alternate academic achievement 15, 2005 (70 FR 74624), such as alternate academic achievement standards, has been changed to require comments concerning the regulations standards if a State has adopted those a State to report on the number of regarding alternate academic standards, has been changed by children with disabilities, if any, who achievement standards. replacing ‘‘alternate academic are assessed based on modified Interim Flexibility achievement standards’’ with ‘‘modified academic achievement standards. The academic achievement standards,’’ and regulatory reference to alternate Comment: Several commenters made clarifying that modified academic assessments based on alternate recommendations regarding the achievement standards are permitted for academic achievement standards has Department’s interim flexibility, which children who meet the State’s criteria been deleted and proposed gave eligible States the flexibility to under § 200.1(e)(2). Proposed § 300.160(e)(3) has been redesignated as provide credit to schools or districts that § 300.160(d)(2)(ii) has been redesignated § 300.160(f)(3). missed AYP solely because of the as § 300.160(c)(2)(ii). (4) Proposed paragraph (e)(4) in achievement of the students with • A new § 300.160(c)(2)(iii) has been § 300.160, which requires a State to disabilities subgroup. Some commenters added, providing that, if a State has report on the number of children with opposed this flexibility; most others adopted alternate academic disabilities who are assessed based on suggested extending the flexibility until achievement standards, the State must modified academic achievement the final regulations on modified measure the achievement of children standards, has been changed to require academic achievement standards are in with the most significant cognitive a State to report on the number of effect or until States have had time to disabilities against those standards. children with disabilities, if any, who develop modified academic • A new paragraph (d) has been are assessed based on alternate achievement standards and aligned added, requiring a State to provide IEP academic achievement standards. The alternate assessments. One commenter Teams with a clear explanation of the regulatory reference to modified recommended that the interim differences between assessments based academic achievement standards has flexibility be made permanent instead of on grade-level academic achievement been deleted and proposed the Department regulating to permit standards and those based on modified § 300.160(e)(4) has been redesignated as States to establish modified academic or alternate academic achievement § 300.160(f)(4). achievement standards. Finally, one standards, including any effects of State (5) Proposed paragraph (e)(5) in commenter stated that offering interim or local policies on the student’s § 300.160, which required a State to flexibility prior to rulemaking violated

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17754 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Title I negotiated rulemaking To be eligible for this flexibility, a State participate in the standards-setting requirements. must meet criteria, as the Secretary process, and include information about Discussion: The Department determines appropriate, for each year how parents and specialists should be permitted States that expressed interest for which the flexibility is available. involved. in developing modified academic Discussion: We do not believe that it achievement standards and assessments State Responsibilities for Developing is necessary to include the details of a based on those standards to take Challenging Academic Standards validated standards-setting process in advantage of interim flexibility while (§ 200.1) these regulations because the field the Department drafted the proposed Comment: A few commenters generally agrees that the process should regulations. This flexibility was granted recommended revising § 200.1(a)(1) to be consistent with the standards for for the 2004–05 school year and then clarify when the regulation applies to educational and psychological testing extended for a second year (2005–06) to academic content standards versus (1999).1 This process relies on both cover the period of time when members academic achievement standards. The empirical data and the informed of the public were commenting on the commenters noted that the authority to judgments of persons familiar with proposed regulations and while the develop modified and alternate academic content as well as with the Department developed the final academic achievement standards students with disabilities to be assessed. regulations. The interim flexibility will appears erroneously also to apply to We agree with the commenters that the be extended for the 2006–07 school year academic content standards. development of achievement standards for States that can show evidence of a Discussion: We agree that the typically benefits from broad commitment to develop modified regulation in § 200.1(a)(1) should be stakeholder involvement to ensure academic achievement standards. more specific when referring to consensus regarding the knowledge and We believe that the flexibility to academic standards. Therefore, we have skills essential for all students and have develop modified academic clarified that the same academic content clarified this in the regulations. In achievement standards provides a standards apply to all public schools response to the request to define who means to assess appropriately some and all public school students in a State should be involved in the standards- students with disabilities and include and that the authority to develop setting process for modified academic them in State accountability systems. alternate academic achievement achievement standards, we believe that Therefore, we do not believe the interim standards in paragraph (d) and modified the process should include persons who flexibility should be used in lieu of academic achievement standards in are knowledgeable about the State’s setting modified academic achievement paragraph (e) for eligible students with academic content standards and standards, as recommended by one disabilities does not apply to academic experienced in standards setting, as well commenter. content standards. We also have as special educators who are most We do not believe that offering modified paragraph (a)(2) to be knowledgeable about the academic interim flexibility prior to rulemaking consistent with these changes. Section abilities and achievement of students violated negotiated rulemaking 200.1(b)(1)(i) is redundant with these with disabilities, and we have added requirements. We understand the changes and has been removed. clarifying language in the regulations. statutory requirements for negotiated Changes: We have made the following We decline to comment on how parents rulemaking in section 1901 of the ESEA changes in § 200.1(a)(1): (1) Added and specialists should be involved in to apply to Title I standards and ‘‘content and academic achievement’’ the process. These determinations are assessment regulations required to be before ‘‘standards’; and (2) added best left to State and local officials. implemented within one year of ‘‘which apply only to the State’s With regard to the commenter who enactment of NCLB, not to subsequent academic achievement standards’’ at the requested that the regulations require a regulatory amendments such as those end of the sentence in paragraph (a)(1). State to explain to the public how it included in these regulations. Consistent with these changes, we have proposes to change its content standards The Department recognizes that some revised paragraph (a)(2) to read, to coincide with modified academic States may need time beyond the 2006– ‘‘Include the same knowledge and skills achievement standards, we note that a 07 school year to develop and expected of all students and the same State that intends to develop modified implement alternate assessments based levels of achievement of all students, academic achievement standards on modified academic achievement except as provided in paragraphs (d) consistent with these regulations would standards. Therefore, we are adding a and (e) of this section.’’ We have not propose to change its academic new § 200.20(g) providing that the removed § 200.1(b)(1)(i). content standards. As required in Secretary may give flexibility for two Modified Academic Achievement § 200.1(e)(1), modified academic additional years (through the 2008–09 Standards (§ 200.1(e)) achievement standards must be aligned school year) to States that are Comment: Several commenters with the State’s academic content developing alternate assessments based recommended that the regulations standards. on modified academic achievement provide more detail on the essential Changes: We have removed the standards consistent with these components of the documented and phrase ‘‘through a documented and regulations. validated standards-setting process validated standards-setting process’’ in Changes: We have added a new required in § 200.1(e)(1). These proposed § 200.1(e)(1) and have added a § 200.20(g) specifying that the Secretary commenters stated that the process new § 200.1(e)(1)(iv) to require that may provide a State that is moving should include broad stakeholder input. modified academic achievement expeditiously to adopt and administer One commenter requested that the standards be developed through a alternate assessments based on modified regulations require a State to explain to academic achievement standards the public how it proposes to change its 1 AERA, APA, & NCME. (1999). (American flexibility in accounting for the content standards to coincide with Educational Research Association, American achievement of students with modified academic achievement Psychological Association, & National Council on Measurement in Education) Joint Committee on disabilities in AYP determinations that standards. A few commenters requested Standards for Educational and Psychological are based on assessments administered that the regulations specify the persons Testing. Standards for educational and in school years 2007–08 and 2008–09. who should define the standards and psychological testing. Washington, DC: AERA.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17755

documented and validated standards- use would likely result in lowered achievement standards must be setting process that includes broad expectations. challenging for eligible students, but stakeholder input, including persons Changes: None. may be less difficult than grade-level knowledgeable about the State’s Comment: Many commenters academic achievement standards. We academic content standards and requested specific guidance on how a also have added a new § 200.1(e)(1)(iii) experienced in standards setting and State could appropriately reduce the to require modified academic special educators who are most breadth or depth of grade-level achievement standards to include at knowledgeable about children with standards, as proposed in least three achievement levels. disabilities. § 200.1(e)(1)(i). One commenter Comment: One commenter stated that Comment: A number of commenters requested that the regulations clarify modified academic achievement disagreed with the requirement in that reducing breadth or depth would standards should be designed to allow § 200.1(e)(1)(i) that modified academic permit the assessment of prerequisite a student, over time, to reach grade-level achievement standards be aligned with skills that are needed to master grade- academic achievement standards. Many the State’s academic content standards level content standards. commenters stated that the regulations for the grade in which the student is Discussion: Modified academic should include protections so that the enrolled. Several commenters stated achievement standards are intended to regulations do not result in lowered that this requirement excludes students be challenging for a small group of expectations for students with students whose disability has thus far who need to be assessed against a truly disabilities. prevented them from attaining grade- modified set of learning standards. Discussion: We added a number of level proficiency. However, while the These commenters argued that modified safeguards to the safeguards that were modified academic achievement academic achievement standards should already included in the proposed standards may be less demanding than be for students with learning goals that regulations to ensure that a student with grade-level academic achievement are substantively different from the disabilities who is assessed based on standards, these students must have general education standards, but not as modified academic achievement access to a curriculum based on grade- standards has access to grade-level different as the learning goals for level content standards so that they can content so that the student has the students with the most significant move closer to grade-level achievement. opportunity, over time, to reach grade- cognitive disabilities who are assessed This means that an alternate assessment level academic achievement standards. based on alternate academic based on modified academic The safeguards for students that are achievement standards. achievement standards must cover the included in these final regulations Several commenters stated that same grade-level content, but may include the following: § 200.1(e)(1)(i) modified academic achievement include less difficult questions overall. requires that modified academic standards should focus on the We agree that the phrase ‘‘breadth or achievement standards be aligned with individual needs of a student with depth’’ in the context of developing a State’s academic content standards for disabilities and be aligned with modified academic achievement the grade in which a student is enrolled; standards that are appropriate for the standards is not clear and does not new § 200.1(e)(2)(iii) requires that a student’s instructional level, not grade sufficiently convey that only the student’s IEP include goals that are level. A few commenters stated that the academic achievement standards for based on the academic content criteria for modified academic students, not the content on which they standards for the grade in which the achievement standards are too are assessed, are to be modified. In student is enrolled and be designed to prescriptive and that States should have addition, the terms ‘‘breadth’’ and monitor a student’s progress in the flexibility to develop modified ‘‘depth’’ are descriptive, rather than achieving the student’s standards-based academic achievement standards in technical, and do not have consistent goals; new § 200.1(f)(2)(ii) requires a ways that meet their needs. meanings for the different stakeholders State to establish and monitor Discussion: We disagree with the involved in developing and using implementation of clear and appropriate commenters. Modified academic student assessments. Therefore, we have guidelines for an IEP Team to apply in achievement standards are intended for removed the reference to reduced developing and implementing the IEP of a small group of students who, by virtue breadth or depth from § 200.1(e)(1)(i). a student assessed based on modified of their disability, are not likely to meet Section 200.1(e)(1)(i) continues to academic achievement standards; new grade-level academic achievement require modified academic achievement § 200.1(f)(2)(iii) requires that a State’s standards in the year covered by their standards to be aligned with the State’s guidelines for IEP Teams ensure that a IEPs even with appropriate instruction. academic content standards for the student who is assessed based on These students need the benefit of grade in which the student is enrolled. modified academic achievement access to instruction in grade-level We have added a new paragraph standards has access to the curriculum, content so that they can move closer to (e)(1)(ii) clarifying that modified including instruction, for the grade in grade-level achievement. We believe academic achievement standards must which the student is enrolled; and new that allowing modified academic be challenging for eligible students, but § 200.1(f)(2)(iv) requires a State to achievement standards to focus on may be less difficult than grade-level ensure that a student who takes an something other than grade-level academic achievement standards. alternate assessment based on modified content standards (e.g., allowing them to Consistent with section 1111(b)(1)(D)(i) academic achievement standards is not be based on a student’s instructional of the ESEA, we also have clarified that precluded from attempting to complete level) would lower expectations and modified academic achievement the requirements, as defined by the limit opportunities for these students to standards must include at least three State, for a regular high school diploma. access grade-level content and meet achievement levels. Changes: None. grade-level achievement standards. We Changes: The phrase ‘‘reflect reduced Comment: We received several also believe that allowing States to breadth or depth of grade level content’’ comments regarding proposed develop modified academic has been removed from § 200.1(e)(1)(i). § 200.1(e)(1)(iii), which requires that achievement standards without placing A new § 200.1(e)(1)(ii) has been added modified academic achievement any parameters or restrictions on their specifying that modified academic standards not preclude a student from

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17756 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

earning a regular high school diploma. regarding the development of modified IDEA regulations already require public Several commenters stated that it would academic achievement standards. agencies to include parents of children be an intrusion into State graduation Discussion: The Department with disabilities in decisions regarding standards if a State was required to recognizes the need to provide States their child’s special education, diminish its standards for a regular with additional guidance on the including how the child will participate diploma to include students who are development and implementation of in State and district-wide assessments. assessed on modified academic modified academic achievement Section 300.321(a) of the IDEA achievement standards. standards and will provide regulations requires public agencies to Discussion: The intent of proposed nonregulatory guidance, along with include parents of children with § 200.1(e)(1)(iii) was not to require technical assistance and support to disabilities as members of the IEP Team. States to alter their graduation States on modified academic If a child’s parent and the other requirements or to provide a regular achievement standards following the members of the child’s IEP Team high school diploma to a student who release of these final regulations. determine that the child will take an scores proficient on an alternate Changes: None. alternate assessment based on alternate assessment based on modified academic Criteria for Defining Eligible Students or modified academic achievement achievement standards. Rather, we (§ 200.1(e)(2)) standards, § 300.320(a)(6)(i), consistent wanted to ensure that a student is not with section 614(d)(1)(A)(i)(VI) of the Comment: Several commenters automatically precluded from IDEA, requires that the child’s IEP recommended that the regulations include a statement of why the attempting to earn a regular high school clearly state that a student’s IEP Team diploma simply because the student was particular assessment is appropriate for is responsible for determining whether the child. assessed based on modified academic the student should be assessed based on achievement standards. For example, if We agree with the commenters that it modified academic achievement is important for parents to be informed a State requires students to pass a State standards. One commenter added that graduation test in order to obtain a of any effects on their child’s education LEAs should not be able to unilaterally that may result from the child regular high school diploma, we did not change an IEP Team’s decision. Many want the fact that a student was participating in an alternate assessment commenters recommended requiring based on modified or alternate academic assessed based on modified academic that parents be included in this decision achievement standards to automatically achievement standards. In addition to and informed in writing of any potential parents, we believe it is important for all prevent the student from attempting to consequences of such decisions. Several pass the State’s graduation test. IEP Team members to have knowledge commenters stated that the information about modified or alternate academic An important requirement for should be provided to parents in the achievement standards and any effects modified academic achievement parent’s native language and in language that may result from a child standards is that they be aligned with that is easily understandable. participating in such assessments. the State’s grade-level academic content Discussion: We agree that it would be Therefore, we have added language to standards and provide access to grade- helpful to clarify that the State require States to provide IEP Teams, level curriculum. Therefore, we believe guidelines are for IEP Teams to use in which include the parent, with a clear it is reasonable that students assessed determining which students with explanation of the differences between based on modified academic disabilities are eligible to be assessed assessments based on grade-level achievement standards have the based on modified academic academic achievement standards and opportunity to attempt to earn a regular achievement standards and have made those based on modified or alternate high school diploma. We recognize that this change in § 200.1(e)(2) and academic achievement standards, proposed § 200.1(e)(1)(iii) could be (e)(2)(ii)(A). Consistent with including any effects of State or local misconstrued and, therefore, have § 200.1(f)(1)(i), States have an important policies on the student’s education changed the language to make clear that role in providing clear and appropriate resulting from taking an alternate States may not prevent a student from guidelines for IEP Teams to use in assessment based on alternate or attempting to complete the determining who will be assessed based modified academic achievement requirements, as defined by the State, on modified academic achievement standards, such as whether only for a regular high school diploma standards and in monitoring the satisfactory performance on a regular simply because the student participates implementation of these guidelines by assessment would qualify a student for in an alternate assessment based on IEP Teams. We also agree that an LEA a regular high school diploma. modified academic achievement cannot unilaterally change an IEP We do not believe, however, that it is standards. Team’s decision regarding whether a necessary to require States to inform a Changes: Proposed § 200.1(e)(1)(iii) child will be assessed based on parent in writing, in addition to the IEP has been removed. A new modified academic achievement process, that his or her child will not be § 200.1(f)(2)(iv) has been added to standards. Section 300.320(a)(6), assessed based on the same academic require a State to ensure that students consistent with section achievement standards as other who take alternate assessments based on 614(d)(1)(A)(i)(VI) of the IDEA, already children. Parents are integral members modified academic achievement provides that it is the child’s IEP Team, of the IEP Team and participate in the standards are not precluded from not the LEA, that is responsible for decision regarding the type of attempting to complete the determining how the child will assessment in which their child will requirements, as defined by the State, participate in State and district-wide participate. We expect that, in the for a regular high school diploma. assessments. course of determining the appropriate Comment: Many commenters We do not believe it is necessary to assessment in which a student will requested additional guidance on the add language to the Title I regulations participate, there will be a discussion of development of modified academic ensuring that parents are included in how alternate or modified academic achievement standards. A few decisions regarding whether their child achievement standards differ from commenters requested guidance on will be assessed based on modified grade-level academic achievement addressing the technical issues academic achievement standards. The standards and any possible

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17757

consequences of participating in disability has precluded the student education and related services if the alternate assessments based on those from achieving grade-level proficiency determinant factor is lack of appropriate standards. should not be based solely on a instruction in reading or mathematics. Finally, we do not believe it is student’s performance on State Schools use current, data-based necessary to add language to the Title I assessments because State assessments evidence to examine whether a student regulations requiring public agencies to may not allow the accommodations a responds to appropriate instruction provide explanations to parents in the student needs to demonstrate what the before determining that the student parent’s native language and in language student knows and can do. The needs special education and related that is easily understandable, as commenters recommended changing the services. State and local officials are suggested by the commenters. Section ‘‘or’’ between paragraphs (e)(2)(i)(A) and responsible for determining what 300.322(e) of the IDEA regulations (e)(2)(i)(B) in § 200.1 to ‘‘and.’’ constitutes appropriate instruction. (See already requires public agencies to take Discussion: We do not believe that the 71 FR 46646 (Aug. 14, 2006).) State and whatever action is necessary to ensure determination of a student’s progress local officials, therefore, have that parents understand the proceedings always must include consideration of a experience and knowledge in making of IEP Team meetings, including student’s performance on State judgments about the instruction that a arranging for an interpreter for parents assessments and, therefore, decline to student has received and whether it has with deafness or whose native language make the change requested by the been appropriate. Accordingly, we have is other than English. commenters. Other objective changed the language in Changes: We have changed assessments may be necessary, for § 200.1(e)(2)(ii)(A) to ensure that § 200.1(e)(2) to require that the example, for students who are new to students are not identified for an guidelines that a State establishes under the State or for younger students who alternate assessment based on modified § 200.1(f)(1) include criteria for IEP have not yet taken a State assessment. academic achievement standards if they Teams to use in determining which What is important is that the IEP Team have not been receiving appropriate students with disabilities are eligible to consider multiple measurements over a instruction. be assessed based on modified academic period of time that are valid for the Changes: We have replaced ‘‘high- achievement standards. We also have subjects being assessed, as specified in quality instruction’’ with ‘‘appropriate rewritten paragraph (e)(2)(ii)(A) to state § 200.1(e)(2)(ii)(B). These measures may instruction’’ in § 200.1(e)(2)(ii)(A). We that the IEP Team must be ‘‘reasonably include evidence from a State also have added ‘‘to date’’ following certain’’ that the student will not assessment or other assessments that ‘‘progress’’ for clarity. achieve grade-level proficiency within can validly document the student’s Comment: Several commenters the year covered by the student’s IEP, achievement. recommended requiring instruction by ‘‘even if significant growth occurs.’’ Changes: None. highly qualified teachers, as defined in We have added a new paragraph Comment: Several commenters the ESEA and the IDEA, before (f)(1)(iii) to require the State guidelines requested a definition of ‘‘high-quality determining that a student should be for IEP Teams to provide a clear instruction,’’ as used in proposed assessed based on modified academic explanation of the differences between § 200.1(e)(2)(ii)(A), stating that, without achievement standards. assessments based on grade-level a definition, the requirement that IEP Discussion: Both the ESEA and the academic achievement standards and Teams consider the student’s response IDEA already require teachers to meet those based on modified or alternate to high-quality instruction in the highly qualified teacher standards academic achievement standards, determining whether the student should and we do not believe it is necessary to including any effect of State and local be assessed based on modified academic reiterate this requirement in these policies on the student’s education achievement standards is not regulations. Furthermore, while we resulting from taking an alternate meaningful. One commenter stated that expect that the vast majority of students assessment based on alternate or the proposed regulation assumes that will receive instruction from highly modified academic achievement students with disabilities receive high- qualified teachers, we do not want a standards (such as whether only quality instruction, but stated that this student who may not have received satisfactory performance on a regular is not always the case. instruction from a highly qualified assessment would qualify a student for Discussion: The purpose of teacher in the past to be precluded from a regular high school diploma). § 200.1(e)(2)(ii)(A) is to ensure that being assessed based on modified We also have reorganized paragraph students are not identified for an academic achievement standards if that (f) regarding State guidelines into two alternate assessment based on modified alternate assessment is most appropriate paragraphs: paragraph (f)(1) lists the academic achievement standards if they for that student. requirements for students who are have not been receiving high-quality Changes: None. assessed based on either alternate or instruction and services. We agree that Comment: One commenter asked if modified academic achievement it is difficult to establish objective the number of years a student with standards; and paragraph (f)(2) lists standards that could be used to disabilities’ performance was below additional requirements for students determine whether this criterion has grade level could be used to identify the who are assessed based on modified been met and will, therefore, remove student as eligible to be assessed based academic achievement standards. With this requirement. However, we continue on modified academic achievement this reorganization, proposed to believe that safeguards are needed to standards. § 200.1(e)(3), has been redesignated as ensure that IEP Teams consider whether Discussion: Section 200.1(e)(2)(ii) new § 200.1(f)(1)(ii); proposed a student has had an opportunity to requires a student’s IEP Team to § 200.1(e)(5) has been rewritten and learn grade-level content before consider the student’s progress to date redesignated as § 200.1(f)(2)(v); and determining that the student should be in response to appropriate instruction proposed § 200.1(e)(1)(ii) has been assessed based on modified academic and to be reasonably certain that, even rewritten and redesignated as achievement standards. if significant growth occurs, the student § 200.1(f)(2)(iii). Under § 300.306(b) of the IDEA will not achieve grade-level proficiency Comment: Several commenters stated regulations, a student may not be within the year covered by the student’s that determining whether a student’s determined to be eligible for special IEP. Data documenting that a student

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17758 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

has been performing below grade level determine whether a student is making content before they are assessed based for a number of years could be one progress. on modified academic achievement factor in determining if a student should Changes: None. standards, and receive instruction in be assessed based on modified academic Comment: Several commenters grade-level content after they are achievement standards. supported the proposed requirement assessed based on modified academic Changes: None. that a student be receiving instruction in achievement standards, is to require IEP Comment: One commenter requested grade-level content in order to be Teams to include goals that are based on examples of multiple measures over assessed based on modified academic grade-level content standards in the time that may be used to determine a achievement standards and asked what IEPs of these students. Such an student’s progress under documentation would be required to approach focuses the IEP Team and the § 200.1(e)(2)(ii)(B). Another commenter ensure that students with disabilities student on grade-level content and the asked whether States are required to use have the opportunity to learn grade- student’s achievement level relative to response to intervention procedures to level content. Other commenters stated those content standards. Therefore, we demonstrate student progress over a that the proposed regulations did not have added a requirement that the IEP period of time. address the broad continuum of of a student to be assessed based on Discussion: In order to determine cognitive functioning and, instead, modified academic achievement focused on the wrong group of students. whether a student may be eligible for an standards include goals that are based Many commenters stated that modified alternate assessment based on modified on the academic content standards for academic achievement standards should academic achievement standards, an IEP the grade in which the student is be for students who are closer in Team may examine results from a enrolled and that the IEP be designed to achievement to students with the most variety of measures that indicate a monitor a student’s progress in significant cognitive disabilities rather student’s progress over time. These may achieving the student’s standards-based than students who are close to grade- be either criterion-referenced tests (i.e., goals. To further emphasize the level achievement. tests that assess skill mastery and importance of ensuring that students Discussion: The requirement that a who participate in an alternate compare a student’s performance to student be receiving grade-level assessment based on modified academic curricular standards, such as State and instruction was intended to ensure that achievement standards receive district-wide tests) or norm-referenced students identified to be assessed based instruction in grade-level content, we tests (i.e., tests that compare a student’s on modified academic achievement also make clear in new § 200.1(f)(2)(iii) performance to that of students of the standards have access to grade-level that States must ensure that these same age or grade). The format of the content. We did not want students to be students have access to the curriculum, multiple measures may include assessed based on modified academic including instruction, for the grade in performance assessments (i.e., an achievement standards merely because which the student is enrolled. assessment that focuses on specific they did not have access to grade-level Incorporating State content standards objectives and enables the student to content or solely because their actively demonstrate knowledge and achievement was one or two grades in IEP goals is not a new idea. Because understanding, such as direct writing below their enrolled grade. However, the reauthorization of IDEA in 1997 and math assessments); portfolio based on the comments we received, we required States to provide students with assessments (i.e., a collection of student believe this requirement was disabilities access to the general work samples); curriculum-based misinterpreted to mean that only curriculum, the field has been working measures (i.e., repeated measures from students achieving close to grade level toward incorporating State standards in the student’s curriculum that assess the could potentially be assessed based on IEP goals. Some States already require specific skills being taught in the modified academic achievement IEP Teams to select the grade-level classroom and the effectiveness of standards. That was not our intent. content standards that the student has instruction and instructional changes); Rather, we anticipated that students not yet mastered and to develop goals and teacher-developed assessments (i.e., assessed based on modified academic on the basis of the skills and knowledge assessments developed by individual achievement standards could include that the student needs to acquire in teachers for use in their own students from any of the disability order to meet those standards. In classrooms). categories under the IDEA and represent addition, some States have developed Section 200.1(e)(2)(ii)(B) does not a fairly wide spectrum of abilities. extensive training materials and require States to use response to Therefore, we have removed the professional development opportunities intervention procedures; nor does it requirement in § 200.1(e)(2)(iii) that for staff to learn how to write IEP goals specify the procedures or measures that students identified to be assessed based that are tied to State standards.2 must be used to determine a student’s on modified academic achievement We appreciate that States that have progress over time. We believe that IEP standards be receiving grade-level not moved in this direction may need Teams should have as much flexibility instruction. technical assistance and support to as possible to use objective data to However, we continue to believe that institute this change for students who determine whether a student is eligible it is critical to ensure that students who are assessed based on modified for an alternate assessment based on participate in an alternate assessment academic achievement standards. The modified academic achievement based on modified academic Department’s Office of Special standards. The purpose of achievement standards receive Education Programs (OSEP) is preparing § 200.1(e)(2)(ii)(B) is to clarify that IEP instruction in grade-level content so that such technical assistance, which will be Teams must not rely on a single they are prepared to demonstrate their disseminated and available upon measure to determine whether it is mastery of grade-level content on an publication of these final regulations. appropriate to assess a student based on alternate assessment based on modified modified academic achievement academic achievement standards and 2 Ahearn, E. (2006). Standards-based IEPs: Implementation in Selected States. National standards. So long as the measures are can move closer to grade-level Association of State Directors of Special Education, objective and valid for the subjects achievement. One way to help ensure 1800 Diagonal Road, Suite 320, Alexandria, VA being assessed, they may be used to that students have access to grade-level 22314.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17759

We believe that requiring IEP Teams Changes: None. academic achievement standards in to incorporate grade-level content Comment: One commenter stated that reading, for example, and a regular standards in the IEP of a student who is another alternate assessment is needed assessment in mathematics. However, assessed based on modified academic for students with mild cognitive we agree that the regulations should achievement standards and to monitor impairments. Several commenters stated state more clearly that a student’s IEP the student’s progress in achieving the that, because a student’s performance Team is responsible for making a standards-based goals will focus IEP would not be based on grade-level determination for each subject assessed Teams on identifying the educational academic achievement standards, the whether the student participates in an supports and services that the student requirements for participation in an alternate assessment based on modified needs to reach those standards. This alternate assessment based on modified academic achievement standards. will align the student’s instruction with academic achievement standards should Therefore, we have added a new the general education curriculum and be stricter to ensure that students are § 200.1(f)(2)(i) clarifying that States the assessment that the IEP Team not inappropriately assessed. must inform IEP Teams that a student determines is most appropriate for the Discussion: We do not believe that may be assessed based on modified student. another alternate assessment is needed academic achievement standards in one Changes: We have removed the for students with mild cognitive or more subjects. We also have added requirement in § 200.1(e)(2)(iii) that a disabilities. These final regulations give language to new § 200.1(f)(1)(i)(B) student be receiving grade-level States the flexibility to develop and (proposed § 200.1(f)(1)(ii)) and instruction in order to be assessed based implement modified academic § 200.1(f)(2)(v) (proposed § 200.1(c)(5)) on modified academic achievement achievement standards in ways that fit to make this clear. standards, and replaced it with a within their existing assessment Changes: We have added a new requirement that, if a student identified systems, while ensuring that students § 200.1(f)(2)(i) requiring States to inform for an alternate assessment based on with disabilities are not inappropriately IEP Teams that a student may be modified academic achievement assessed based on modified academic assessed based on modified academic standards has an IEP that includes goals achievement standards. We believe that achievement standards in one or more for a subject assessed under § 200.2, the criteria for modified academic subjects for which assessments are those goals must be based on the achievement standards in § 200.1(e), administered under § 200.2. We also content standards for the grade in which along with the safeguards provided by have added ‘‘These students may be the student is enrolled. We have added the requirements for State guidelines in assessed based on modified academic ‘‘the’’ before ‘‘curriculum’’ and § 200.1(f), are adequate to ensure that achievement standards in one or more ‘‘including instruction,’’ before ‘‘for the students are not inappropriately subjects for which assessments are grade in which the students are assessed based on modified academic administered under § 200.2’’ at the end enrolled’’ in § 200.1(f)(2)(iii). For achievement standards. Depending on of new § 200.1(f)(1)(i)(B) (proposed consistency with these changes, we the nature of a State’s grade-level and § 200.1(f)(1)(ii)). With this addition, have added this requirement as new alternate academic achievement proposed § 200.1(e)(4) is no longer § 200.1(f)(2)(ii)(A) to the list of standards, a State may wish to tailor its necessary and has been removed. requirements for States to include in alternate assessment based on modified Finally, we have added ‘‘for each their guidelines for IEP Teams. We also academic achievement standards to a subject’’ following ‘‘Ensure that each have added § 200.1(f)(2)(ii)(B) to require more narrowly defined group of IEP Team reviews annually’’ in new that a student’s IEP be designed to students. We, therefore, have made clear § 200.1(f)(2)(v) (proposed § 200.1(c)(5)). monitor the student’s progress in that the criteria for students to be Comment: Several commenters achieving the standards-based goals. assessed based on modified academic requested that the decision to assess a Comment: Some commenters stated achievement standards in § 200.1(e)(2) student based on modified academic that requiring a student to be receiving are only a minimum threshold and that achievement standards be reviewed instruction in grade-level content in States may add additional criteria if annually. order to be assessed based on modified they choose to do so. Discussion: New § 200.1(f)(2)(v) academic achievement standards would Changes: We have added ‘‘Those (proposed § 200.1(e)(5)) already requires encourage social promotion or retention. criteria must include, but are not that the decision to assess a student Discussion: As noted above, we limited to, each of the following:’’ to the based on modified academic removed the requirement that a student end of § 200.1(e)(2). achievement standards be reviewed be receiving instruction in grade-level Comment: Several commenters annually for each subject by the content in order to be assessed based on requested that the regulations clarify student’s IEP Team to ensure that those modified academic achievement that an IEP Team must make a standards remain appropriate. standards because it was misinterpreted determination of eligibility for each Changes: None. to mean that only students achieving subject assessed. Other commenters Comment: One commenter stated that close to grade-level could potentially be added that a student who has difficulty a student should not be eligible for an assessed based on modified academic in only one subject area should be alternate assessment based on modified achievement standards. However, we allowed to take an alternate assessment academic achievement standards unless continue to believe that it is critical to in that one area and take a regular the student had been provided with all ensure that students who participate in assessment in the other subject(s). the appropriate accommodations for the an alternate assessment based on Discussion: If a State chooses to grade-level assessment. modified academic achievement develop modified academic Discussion: We believe that a standards receive instruction in grade- achievement standards, proposed student’s IEP Team is in the best level content. We believe that students § 200.1(e)(4) would have required that a position to determine whether the who are not exposed to grade-level student be allowed to take an alternate student should be assessed on the content will not learn the content, assessment based on modified academic regular assessment with which will delay their learning and achievement standards in one or more accommodations before participating in increase the likelihood of being retained subjects. Thus, a student could take an an alternate assessment based on or socially promoted. alternate assessment based on modified modified academic achievement

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17760 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

standards and, therefore, decline to recommended that the regulations Inclusion of All Students (§ 200.6) make the requested change. require the State to implement Changes: None. Students Eligible Under IDEA and requirements that are enforceable by Section 504 (§ 200.6(a)) law. State Guidelines (§ 200.1(f)) Comment: One commenter Comment: Several commenters Discussion: It is unnecessary to add a recommended that the regulations recommended that the regulations regulation requiring States to implement permit students with disabilities to use require a State to provide training to IEP requirements that are enforceable by law modifications, as well as Teams so that the guidelines are because, regardless of the legal accommodations, in State assessments. implemented in a manner that ensures mechanism a State uses to implement The commenter stated that an that students can progress to grade-level guidelines for IEP Teams, those accommodation in one State (e.g., a achievement standards. The guidelines must meet the requirements calculator) may be considered a commenters also recommended of these regulations in order for the modification in another State and that requiring a State to collect and review State to be in compliance with part A of this variation is unfair to students and data from LEAs on how the guidelines Title I and to continue to receive funds schools. are being implemented and investigate under this part. Discussion: A ‘‘modification’’ used in LEAs when proficiency rates are higher an assessment is generally regarded as a Changes: None. on alternate assessments than on the change in test administration that alters regular assessment. Comment: Several commenters stated what is being measured and, therefore, Discussion: Proposed § 200.1(f)(1) that the regulations should include results in an invalid test score. Whether already requires a State that defines additional guidelines to ensure that a particular support, such as use of a alternate or modified academic States use similar criteria to identify calculator, is considered a modification achievement standards to establish and students to be assessed based on or an accommodation can only be ensure implementation of clear and modified academic achievement determined by considering the intended appropriate guidelines for IEP Teams to standards. One commenter stated that purpose and content of an assessment. apply in determining whether a student the guidelines should draw a ‘‘bright States vary in terms of the purposes and will be assessed based on modified or line’’ between students with the most content of their assessments and, alternate academic achievement significant cognitive disabilities and therefore, may vary in terms of whether standards. Furthermore, the general students assessed based on modified a particular support provided to a supervision requirements in section academic achievement standards. student during an assessment is 612(a)(11) of the IDEA require a State to Specifically, the commenter considered a modification or an monitor the implementation of State accommodation. States determine guidelines for the participation of recommended clarifying that students with the most significant cognitive whether a particular testing procedure students with disabilities in State and or support, such as use of a calculator, district-wide assessments. The specific disabilities are those who will never be able to demonstrate progress on grade- invalidates the results. States must ways in which a State conducts its provide evidence for the Department’s level academic achievement standards monitoring are best left to the State to peer review of Statewide assessment even if provided with the very best determine based on State and local systems under Title I of the ESEA that needs. Therefore, we decline to require possible education and their State assessments are valid and a State to investigate when proficiency accommodations. reliable for the purposes for which the rates are higher on alternate assessments Discussion: Section 200.1(d), assessments are used, and are consistent as compared with regular assessments. regarding alternate academic with relevant, nationally recognized We also do not believe it is necessary to achievement standards, and § 200.1(e), professional and technical standards. duplicate monitoring requirements regarding modified academic Therefore, we decline to make the under Title I that would generate achievement standards, leave to each change requested by the commenter. additional and unnecessary paperwork. State the responsibility to define the Changes: None. However, we do believe that it is students with disabilities who may be Comment: Several commenters important to emphasize that a State is assessed based on alternate or modified recommended that States develop and responsible for monitoring, as well as disseminate information on, and establishing and implementing State academic achievement standards. These final regulations set certain parameters promote the use of, appropriate guidelines, and have made this change accommodations for alternate that a State must meet, but we do not in the regulations. assessments based on modified and believe it is the proper role of the Changes: We have changed ‘‘establish alternate academic achievement and ensure implementation of clear and Federal government to specifically set standards, in addition to assessments appropriate guidelines’’ to ‘‘establish forth a ‘‘bright line’’ between the based on grade-level standards. and monitor implementation of clear students who should participate in an Discussion: Section and appropriate guidelines’’ in new alternate assessment based on alternate 1111(b)(3)(C)(ix)(II) of the ESEA and § 200.1(f)(1)(i) (proposed § 200.1(f)(1)). academic achievement standards versus section 612(a)(16) of the IDEA already We also have added a new an alternate assessment based on require a State to provide appropriate § 200.1(f)(2)(ii), which reiterates the modified academic achievement accommodations for students to responsibility of a State to establish and standards. Moreover, such a distinction participate in a State’s assessment monitor implementation of clear and may vary from one State to the next system. This includes accommodations appropriate guidelines for IEP Teams to depending on how States have for alternate assessments. Therefore, the apply for students who are assessed organized their State content standards change recommended by the based on modified academic and established their academic commenters is unnecessary. achievement standards. achievement standards. Changes: None. Comment: One commenter argued Comment: None. that a State’s guidelines for IEP Teams Changes: None. Discussion: In reviewing the proposed would not have the force of law and regulations, we noted that

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17761

§ 200.6(a)(1)(ii)(A) referred to ‘‘grade- administer assessments and use Therefore, we do not believe it is level academic achievement standards.’’ appropriate accommodations. necessary to repeat this requirement in We wanted to be clear that Discussion: Section 200.6(a)(1)(ii)(B) § 200.6(a)(2)(iii). However, in preparing § 200.6(a)(1)(ii)(A) refers to the already requires States to ensure that these final regulations, we noted an academic achievement standards for the ‘‘other appropriate staff,’’ in addition to error in current § 200.6(a)(2)(iii) 3 in the grade in which the student is enrolled. regular and special education teachers, NPRM. Current § 200.6(a)(2)(iii) requires Therefore, we have made this change in know how to administer assessments that, if a State permits the use of § 200.6(a)(1)(ii)(A). and make appropriate use of alternate assessments based on alternate Changes: Section 200.6(a)(1)(ii)(A) has accommodations. We believe State and academic achievement standards, the been changed by adding ‘‘for the grade local authorities are in the best position State must document that students with in which a student is enrolled’’ to determine the other appropriate staff, the most significant cognitive following ‘‘academic achievement which could include related services disabilities are, to the extent possible, standards’’ and removing ‘‘grade-level’’ providers, who must know how to included in the general curriculum. In before ‘‘academic achievement administer assessments and make use of the NPRM for these final regulations on standards.’’ appropriate accommodations. Therefore, modified academic achievement Comment: One commenter we decline to make the change standards, ‘‘maximum’’ was recommended requiring a State to (A) requested by the commenter. inadvertently added before ‘‘extent develop assessments that are universally Changes: None. possible.’’ We have corrected this error designed and valid for the widest Comment: A few commenters in the final regulations. It is important possible range of students; (B) study the recommended requiring a State to to correct this error because the effect of accommodations on the develop personnel standards and provision could be interpreted as validity of the State’s assessment in provide professional development in extending authority beyond the IDEA, order to identify which order to ensure that all educators are which requires each student’s IEP to accommodations are valid for each skilled in administering assessments include a statement of the special assessment; and (C) document the and providing appropriate education and related services and extent to which universal design accommodations. supplementary aids and services to be principles are not used. Discussion: Section 200.6(a)(1)(ii)(B) provided to the child to be involved in Discussion: We decline to make the requires States to ensure that regular and make progress in the general changes requested by the commenter. and special educators, as well as other education curriculum.4 The IDEA regulations already require a appropriate staff, know how to With regard to the comment that the State (or in the case of a district-wide administer assessments and make use of regulations be changed to require assessment, an LEA), to the extent appropriate accommodations. Whether a students with the most significant feasible, to use universal design State ensures that this occurs through cognitive disabilities to be included in principles in developing and developing personnel standards or assessments that are aligned to the administering assessments. (See new professional development is best left for curriculum for the grade in which the § 300.160(g) (proposed § 300.160(f)) and each State to determine. student is enrolled, the Department’s section 612(a)(16)(E) of the IDEA.) Changes: None. non-regulatory guidance on alternate Comment: One commenter The Department’s peer review of academic achievement standards for recommended changing § 200.6(a)(2)(iii) Statewide assessment systems under students with the most significant to require that students with the most Title I of the ESEA requires a State to cognitive disabilities states that, if a significant cognitive disabilities be provide evidence that its State State chooses to establish alternate involved in and make progress in the assessments are valid and reliable for academic achievement standards, such general curriculum, consistent with the the purposes for which they are used standards must be aligned with the IDEA. The commenter also and are consistent with relevant, State’s academic content standards for recommended that the regulations be nationally recognized professional and the grade in which the student is changed to require students with the technical standards. In order to ensure enrolled (or in the case of students in most significant cognitive disabilities to that assessments are valid and reliable un-graded classrooms, the grade level be included in assessments that are and meet the technical quality commensurate to the student’s age). (See aligned to the content standards for the requirements of the peer review, a State C–3 of the guidance.) 5 must study the effect of grade in which the student is enrolled. Substantive changes to existing Discussion: Section 200.6(a)(2)(iii) accommodations on the validity of the regulations cannot be made without already requires a State to document State’s assessment. publishing an NPRM and providing an that students with the most significant We believe that implementing the opportunity for the public to comment cognitive disabilities are included in the commenter’s recommendation to require on proposed regulations. The NPRM general curriculum. Further, as the States to document the extent to which published on December 15, 2005 commenter notes, the IDEA requires universal design principles are not used regarding modified academic students with disabilities to be involved (e.g., defining ‘‘universal design achievement standards did not include in the general curriculum. Specifically, principles’’) would require significant the recommended change to the section 614(d)(1)(A)(i)(IV)(bb) of the resources and time and be a burden for regulations governing alternate IDEA requires each student’s IEP to a State to report. Therefore, we decline assessments based on alternate to make the changes requested by the include a statement of the special commenters. education and related services and 3 Current § 200.6(a)(2)(iii) was finalized in the Changes: None. supplementary aids and services to be December 9, 2003 regulations for students with the Comment: One commenter provided to the child to be involved in most significant cognitive disabilities (68 FR recommended changing and make progress in the general 68698). § 200.6(a)(1)(ii)(B) to require a State to education curriculum. This requirement 4 See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA. 5 Alternate Achievement Standards for Students ensure that related services providers, in applies to all students with disabilities, with the Most Significant Cognitive Disabilities addition to regular and special including students with the most (August, 2005) is available at http://www.ed.gov/ education teachers, know how to significant cognitive disabilities. policy/elsec/guid/altguidance.doc.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17762 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

academic achievement standards. § 200.6(a)(3)(i)). One commenter An alternate assessment based on Therefore, we cannot make the requested that the regulations include modified academic achievement requested change in these final the criteria that will be used to standards should be aligned with grade- regulations. determine whether there is sufficient level content standards in the same Changes: We have deleted coverage of grade-level content manner as the general test, with the ‘‘maximum’’ before ‘‘extent possible’’ in standards. One commenter possible exception of a reduced level of § 200.6(a)(2)(iii). recommended requiring alternate cognitive demand, sometimes referred Alternate Assessments that Measure assessments based on modified to as depth of knowledge. This is a Performance Based on Modified academic achievement standards to critical difference between an alternate Academic Achievement Standards assess the core objectives of a State’s assessment based on modified academic achievement standards and an alternate (§ 200.6)(a)(3)) grade-level academic content standards. Discussion: We decline to include a assessment based on alternate academic Comment: Many commenters definition of ‘‘alignment’’ in these achievement standards, which is viewed recommended requiring that an regulations because it is a term of art in as aligned with grade-level content assessment based on modified academic the assessment field. However, the standards even though the content has achievement standards be referred to as Department’s standards and assessment been simplified or represented as pre- an alternate assessment. peer review guidance for Title I includes requisite skills that are an essential part Discussion: We did not describe several characteristics of alignment that of the grade-level content. assessments based on modified are considered by peer reviewers in The assumption underlying the academic achievement standards as determining whether assessments are requirement for alignment is that many alternate assessments in the NPRM aligned with content standards. First, students eligible for an alternate because we wanted to distinguish such reviewers consider the range of content, assessment based on modified academic assessments from alternate assessments meaning that all of the standards are achievement standards are in a regular based on alternate academic represented in the assessment and that classroom with children of the same achievement standards. However, we the assessment is as cognitively chronological age; they are receiving agree with the commenter that it would challenging as the standards (depth/ instruction in the grade-level be clearer to refer to such assessments difficulty). This is the single aspect of curriculum but because of their as alternate assessments and have made alignment that may differ between the disability are not likely to meet grade- this change in the regulations. regular grade-level assessment and an level academic achievement standards Changes: Where appropriate, we have alternate assessment based on modified in the year covered by their IEPs. These inserted ‘‘alternate’’ before academic achievement standards. students may need a less difficult test in ‘‘assessment’’ throughout the Second, reviewers look for evidence that order to effectively demonstrate their regulations to make clear that an the assessment represents both the knowledge of the grade-level content assessment based on modified academic content knowledge and the process standards. achievement standards is an alternate We do not agree with the skills evident in the content standards. assessment. recommendation that an alternate Third, reviewers consider whether the Comment: Many commenters assessment based on modified academic assessment reflects the same degree and suggested that terminology be clarified achievement standards be required to pattern of emphasis as the content to differentiate among various alternate assess only the ‘‘core objectives’’ of a standards (balance). Generally, an assessments using ‘‘modified State’s grade-level academic content alternate assessment based on modified assessment’’ to refer to an assessment standards. Modified academic academic achievement standards should based on modified academic achievement standards must represent achievement standards and ‘‘adapted be aligned with grade-level content the full array of content standards, assessment’’ to refer to an alternate standards in the same manner as the including factual knowledge and assessment based on alternate academic regular assessment. That is, it should application of skills, with the same achievement standards. represent the full array of content pattern of emphasis that is evident in Discussion: Precise use of terminology standards, including factual knowledge the content standards. This is so, to avoid confusion in the development and application skills, with the same regardless of how a State structures its and use of alternate assessments for pattern of emphasis that is evident in academic content standards. The students with disabilities is desirable. the content standards. The Department’s approach taken by a State to ensure the However, the particular terms suggested peer review guidance further states ‘‘[i]f alignment of modified academic by the commenters would not likely a State’s assessments do not adequately achievement standards to grade-level accomplish this goal. In the measure the knowledge and skills content standards will depend on how measurement community ‘‘modified specified in the State’s academic the State has structured its academic assessment’’ has a restricted meaning content standards, or if they measure content standards. Content standards that is not consistent with the intent of something other than what these may be grade specific or may cover the assessment permitted under these standards specify, it will be difficult to more than one grade if grade-level regulations, and we believe ‘‘adapted determine whether students have content expectations are provided for assessment’’ does not accurately convey achieved the intended knowledge and each grade. Ultimately, a State that that an alternate assessment is based on skills. As a result, it will be difficult to chooses to develop and implement alternate academic achievement make appropriate policy, program, and modified academic achievement standards. Therefore, we decline to instructional decisions meant to standards must demonstrate during the make the changes recommended by the improve students’ achievement.’’ (page Department’s peer review of State 6 commenters. 41) assessments that its alternate assessment Changes: None. based on modified academic Comment: Several commenters 6 Standards and assessment peer review achievement standards is aligned with guidance: Information and examples for meeting requested that the regulations define requirements of the No Child Left Behind Act of challenging grade-level academic ‘‘aligned,’’ as used in new 2001, (April 28, 2004). Available at http:// content standards in the same manner § 200.6(a)(3)(ii)(A) (proposed www.ed.gov/policy/elsec/guid/saaprguidance.doc. as is required for the approval of the

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17763

State’s regular assessment. The §§ 200.2(b) and 200.3(a)(1) make clear whether these accommodations are Department acknowledges that that an alternate assessment based on helping students achieve. measuring the academic achievement of modified academic achievement Discussion: Section 200.6(a)(4) students with disabilities, particularly standards must meet the requirements already requires a State to report on the those who will be eligible to be assessed for high technical quality, including number and percentage of students with based on modified academic validity, reliability, accessibility, disabilities taking regular assessments; achievement standards, is an area in objectivity, and consistency with regular assessments with which there is much to learn and nationally recognized professional and accommodations; alternate assessments improve. We welcome information from technical standards. Merely changing based on grade-level academic States and others on ways to improve the cut-score on a regular assessment achievement standards; alternate the assessment of students with would not be sufficient to meet these assessments based on modified disabilities. As data and research on requirements. academic achievement standards; and assessments for students with Changes: None. alternate assessments based on alternate disabilities improve, the Department Comment: Many commenters academic achievement standards. We may decide to issue additional requested additional guidance on believe that requiring a State to report regulations or guidance. developing an alternate assessment the additional data requested by the Changes: None. based on modified academic commenters would place a significant Comment: Several commenters argued achievement standards. burden on the State. In addition, such that the regulations should permit the Discussion: Grade-level content data would not, by itself, provide use of out-of-level assessments. Another standards serve as the foundation of an information regarding whether students commenter questioned whether out-of- are receiving appropriate alternate assessment based on modified level assessments would be as valid as accommodations and whether those academic achievement standards. alternate assessments based on modified accommodations are helping students Beyond this essential requirement, a academic achievement standards. achieve. Therefore, we decline to make State may construct a unique Discussion: Alternate assessments the change requested by the assessment or adapt its regular based on modified academic commenters. achievement standards are intended for assessment. We have added this We have, however, changed the order a small group of students who, by virtue language to the regulations to make this of the list of assessments in § 200.6(a)(4) of their disability, are not likely to meet clear. In addition, the Department will so that ‘‘alternate assessments based on grade-level achievement standards in be issuing nonregulatory guidance and the grade-level academic achievement the year covered by their IEPs, despite providing technical assistance to assist standards’’ follows ‘‘regular assessments appropriate instruction. These students States in developing alternate with accommodations.’’ This will need the benefit of access to grade-level assessments based on modified appropriately keep the three types of content so that they can move closer to academic achievement standards. assessments based on grade-level grade-level achievement. Therefore, Changes: We have simplified academic achievement standards alternate assessments based on modified proposed § 200.6(a)(3) by deleting together in the list, to be followed by academic achievement standards must references to paragraphs (a)(1) and (a)(2) ‘‘alternate assessments based on the be aligned with grade-level content and including a new paragraph (a)(3)(i) modified academic achievement standards. to permit a State that chooses to assess standards,’’ and ‘‘alternate assessments Out-of-level testing means assessing students with disabilities based on based on the alternate academic students enrolled in a specific grade modified academic achievement achievement standards.’’ with tests designed for students at lower standards to develop a new alternate Changes: We have redesignated grades. By definition, an out-of-level assessment or adapt an assessment proposed paragraph (a)(4)(iv), regarding assessment does not cover the same based on grade-level academic alternate assessments based on grade- content as an assessment based on achievement standards. We also have level academic achievement standards, grade-level content standards. Out-of- added a new paragraph (a)(3)(ii) that as new paragraph (a)(4)(iii), and level testing is often associated with lists the requirements for an alternate proposed (a)(4)(iii), regarding alternate lower expectations for students with assessment based on modified academic assessments based on modified disabilities, tracking such students into achievement standards. Proposed academic achievement standards, as lower-level curricula with limited paragraphs (a)(3)(i) through (a)(3)(iv) new paragraph (a)(4)(iv). opportunities. Therefore, an out-of-level have been redesignated as new Comment: One commenter assessment cannot be used as an paragraphs (a)(3)(ii)(A) through recommended requiring the Department alternate assessment based on modified (a)(3)(ii)(D), respectively. to provide an annual report to Congress on the implementation of the academic achievement standards. Reporting (§ 200.6(a)(4)) Changes: None. regulations regarding modified Comment: One commenter Comment: Several commenters academic achievement standards. One recommended requiring an alternate recommended requiring a State to report commenter asked who receives the data assessment based on modified academic the number and percentage of students required under § 200.6(a)(4). Another achievement standards to be using accommodations who take commenter expressed concern that distinguished from the regular alternate assessments based on modified reporting the data in § 200.6(a)(4) could assessment by more than a lower cut academic achievement standards, violate a student’s right to privacy under score or a change in administration or alternate assessments based on grade- the Family Educational Rights and format. level academic achievement standards, Privacy Act (FERPA) if there were small Discussion: New § 200.1(e)(1)(iv) and alternate assessments based on numbers of students taking any of the makes clear that modified academic alternate academic achievement assessments. achievement standards must be standards. The commenters stated that Discussion: Section 200.6(a)(4) developed through a documented and these data are necessary to measure pertains to the requirements in part A of validated standards setting process that whether students are receiving Title I for reporting data to the Secretary includes broad stakeholder input, and appropriate accommodations and and ensures that the data reported in

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17764 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

accordance with section 1111(h) of the regulations on modified academic 2007–08 school year,’’ at the beginning ESEA include data on assessments achievement standards, a State had of the sentence in § 200.7(a)(2)(ii). based on alternate academic limited flexibility in measuring the Comment: Some commenters achievement standards and modified achievement of students with recommended changing § 200.7(a)(2)(ii) academic achievement standards. We disabilities for AYP purposes. Because to require a State to set group sizes have added language to § 200.6(a)(4) to of ongoing concerns about how consistent with the smallest of its make this clear. These data are also accurately State assessments measure existing subgroups. reported to Congress and, therefore, we the achievement of a very heterogeneous Discussion: States that need to adjust do not believe that an additional report subgroup of students (many of whom their group sizes in order to comply to Congress is necessary, as suggested by were assessed with a range of with § 200.7(a)(2)(ii) must do so by one commenter. With regard to the accommodations to the regular amending their accountability plans commenter who expressed concern with assessment), some States requested with the approval of the Department. the data reporting requirements and a permission to use a larger group size for The Department will consider each student’s right to privacy, a State is not their students with disabilities and State’s rationale for its proposed group required to report data that would limited English proficient subgroups. In size (consistent across all groups). We violate FERPA (20 U.S.C. 1232g). support of their requests, States argued do not believe it is appropriate to Changes: We have added ‘‘to the that a larger group size for these mandate a particular group size or to Secretary’’ following ‘‘A State must subgroups of students would take into require a specific process by which a report separately’’ to make clear that the consideration the challenges of State establishes its group size and, assessment data referred to in measuring their achievement. therefore, decline to make the § 200.6(a)(4) are reported separately to With the implementation of these recommended change. the Secretary. final regulations on modified academic Changes: None. Comment: One commenter achievement standards and the Title I Comment: One commenter agreed regulations on assessment and recommended requiring LEAs and SEAs with the decision to prohibit different accountability for recently arrived and to collect data on the disability and race group sizes for subgroups, but did not former limited English proficient (LEP) of students who are assessed based on agree that the group size for the school students (71 FR 54187 (Sept. 13, 2006)), modified academic achievement as a whole should be the same as that we believe that States now have standards. of each subgroup. Discussion: We believe that requiring sufficient flexibility to measure the LEAs and SEAs to collect data on the achievement of students with Discussion: Section 200.7(a)(2)(ii) was disability and race of students who are disabilities and LEP students intended to require the minimum group assessed based on modified academic appropriately and, therefore, no longer size for a school as a whole (the ‘‘all achievement standards would place an need a different group size for these students’’ group) to be the same as that unnecessary burden on SEAs and LEAs subgroups. In addition, all States now of each subgroup. Therefore, we have and, therefore, decline to implement the test in grades 3 through 8 and once in changed § 200.7(a)(2)(ii) to make this commenter’s recommendation. high school, as opposed to just once per clear. Changes: None. grade span, thereby decreasing the There may be instances where the sampling error associated with smaller number of students in a school is less Disaggregation of Data (§ 200.7) group sizes. With these additional test then a State’s minimum group size. A Comment: Several commenters scores to include in AYP State must have a policy in place to supported proposed § 200.7(a)(2) that determinations, the argument for a determine AYP for every school, even in would prohibit a State from establishing larger group size for these two these cases. Given that requirement, a a different minimum number (group subgroups is no longer statistically State may choose to have a minimum size or ‘‘n size’’) of students for some justified. Setting a different subgroup group size of zero for the ‘‘all students’’ subgroups, regardless of whether a State size also may lead to unintended group. However, a State may not choose chooses to implement modified consequences, such as manipulating the a minimum group size for the ‘‘all academic achievement standards. The number of students with disabilities in students’’ group, other than zero, that is commenters stated that having the same a particular school to ensure that the different than that of its subgroups. group size for all subgroups would school will not be held accountable for Changes: Section 200.7(a)(2)(ii) has ensure transparency and greater those students. We believe that, in order been revised by adding ‘‘or for the accountability. to ensure that schools are held school as a whole’’ at the end of the However, one commenter stated that accountable for the achievement of sentence. the same group size across all subgroups students with disabilities (as well as for Adequate Yearly Progress in General should be required only for States that students with limited English (§ 200.13) develop modified academic proficiency), the use of differentiated achievement standards. The commenter subgroup sizes for purposes of Comment: Many commenters stated also expressed concern that requiring measuring AYP must end. that there is no extant research to the same group size across all subgroups Given the timing of these regulations, support establishing a 2.0 percent cap could reduce the desire by some schools we do not expect States with on the number of proficient and and districts to accept out-of-area differentiated subgroup sizes to make advanced scores based on modified students due to concerns that adding this change for the 2006–07 school year. academic achievement standards that more students in a subgroup would Therefore, we have added language to may be included in AYP affect their accountability status. make clear that this provision takes determinations. Many commenters Discussion: Prior to the effect for AYP determinations based on stated that the research cited in the implementation of the final regulations assessments administered in the 2007– NPRM excludes IDEA-eligible students, on alternate academic achievement 08 school year. is based only on reading interventions standards for students with the most Changes: We have added ‘‘Beginning for early elementary-age students, and significant cognitive disabilities and the with AYP decisions that are based on does not include research on math or on announcement of the proposed the assessments administered in the older students.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17765

Some commenters stated that the 2.0 State of Kansas 8 referred to by the that 22 percent of the group remained percent cap is too low. However, many commenters, recognizing that there may two standard deviations below average commenters expressed concern that the be variability among States in the on an outcome reading assessment cap is too high, stating that the 2.0 number of students who meet the following reading intervention. percent cap on modified academic requirements to be assessed based on Torgensen et al. (2001) indicated that 15 achievement standards and the 1.0 modified academic achievement to 20 percent of students with severe percent cap on alternate academic standards. We do not expect that every reading disabilities remained below achievement standards translates to 3.0 State will use the full 2.0 percent cap. average in reading comprehension percent of all students or 30 percent of Therefore, rather than relying on following intervention. Finally, students with disabilities counted as incidence data or data from a single literature reviewed and reported by proficient for AYP purposes on alternate State or study to establish the cap for Lyon et al. (in press) indicates that a 2.0 assessments that are not based on grade- modified academic achievement percent cap is appropriate, based on the level academic achievement standards. standards, we relied on multiple sources percent of students who may not reach A few commenters stated this is of data from research and State grade-level achievement standards considerably higher than data reported experiences. We believe that these within the same time frame as other by the National Center on Educational multiple sources of data, when students, even after receiving the best- Outcomes (NCEO) in its report on the considered together, provide a sound designed instructional interventions participation of students with and legitimate basis for establishing the from highly trained teachers. disabilities in 2002–03 and the 2003 2.0 percent cap, while at the same time Ideally, we would have preferred to data from the State of Kansas. protecting students from being base the 2.0 percent cap on a greater inappropriately assigned to take an number of studies across a greater age Discussion: To ensure that modified alternate assessment based on modified range and encompassing more math, as academic achievement standards are academic achievement standards. well as reading, scores. However, we used appropriately, these regulations set Because our major concern is holding believe that, given the available a cap of 2.0 percent on the proficient students with disabilities to high evidence, and our desire to protect and advanced scores of students who standards, we have taken a conservative students with disabilities from being are assessed based on modified approach to estimating the cap. As a inappropriately assessed based on academic achievement standards that matter of policy, we believe this to be modified academic achievement may be included in AYP the right approach. standards, the 2.0 percent cap is determinations. Together with the State The Department reviewed several appropriate, particularly considering guidelines required in § 200.1(f), we studies that indicate 2.0 percent is an that the cap is not a limit on the number believe that a numeric cap of 2.0 percent appropriate cap when States, districts, of students who may participate in an will discourage schools from and schools work to ensure that alternate assessment based on modified inappropriately holding students with students receive appropriate academic achievement standards, and disabilities to lower standards. educational services and interventions. the numerous safeguards that we We acknowledge that it is difficult to The studies cited in the preamble to the included in the regulations. However, determine a numerical limit on the NPRM included students with the Department also desires to maintain disabilities, but excluded students with high standards and accountability for number of proficient and advanced 9 scores based on modified academic the most severe cognitive impairments. the achievement of all students with achievement standards to be included in For example, McMaster et al. (2005) disabilities and, therefore, welcomes AYP determinations. Unlike the 1.0 defined a group of low-performing comments and data from States and others about how the regulations are percent cap on proficient and advanced students who were persistent non- working and may consider revising the scores based on alternate academic responders to reading interventions. The regulations in the future should the achievement standards for students with group included both students identified comments indicate a need to do so. In the most significant cognitive as students with disabilities and addition, the Department intends to disabilities, we cannot rely on disability students not identified to receive special issue a report on the implementation of incidence rates because students who education services, but did not include these regulations after two years of would be appropriately assessed based students with the most severe cognitive implementation. As data and research on modified academic achievement disabilities. McMaster et al. reported on assessing students with disabilities standards are less likely to be 8 improve, the Department may decide to predominately from a few disability Posny, A. (2004). Clash of the titans: No child left behind and students with disabilities. Paper issue regulations or guidance on other categories, as is the case with students presented at the Center on Education Policy’s forum related issues in the future. with the most significant cognitive on ideas to improve the NCLB accountability Changes: None. disabilities. In fact, we anticipate that provisions for students with disabilities and English language learners, September 14, 2004, Washington, Comment: A few commenters stated students who are assessed based on DC. Available at: http://www.cep-c.org/pubs/ that the 2.0 percent cap violates the modified academic achievement Forum14September2004/PochowskiPaper.pdf. IDEA requirement that students with standards will be from most, if not all, 9 McMaster, K.L., Fuchs, D., Fuchs, L.S., & disabilities receive a free appropriate the different disability categories listed Compton, D.L. (2005). Responding to non- public education (FAPE). The in the IDEA. responders: An experimental field trial of identification and intervention methods. commenters acknowledged that the cap We also considered data from States, Exceptional Children, 71, 445–463; Torgensen, J.K., imposes a limit on the number of including the data from NCEO 7 and the Alexander, A.W., Wagner, R.K., Rashotee, C.A., proficient and advanced scores that may Voeller, K.K.S., & Conway, T. (2001). Intensive remedial instruction for children with severe be counted as proficient for purposes of 7 Clapper, A.T., Morse, A.B., Lazarus, S.S., reading disabilities: Immediate and long-term calculating AYP and is not a limit on Thompson, S.J., & Thurlow, M.L. (2005). 2003 State outcomes from two instructional approaches. the number of students who may be policies on assessment participation and Journal of Learning Disabilities, 34, 33–58; Lyon, assessed based on modified academic accommodations for students with disabilities G.R., Fletcher, J.M., Fuchs, L.S., & Chhabra, V. (in (Synthesis Report 56). Minneapolis, MN: University press). Learning Disabilities. In E. Mash & R. achievement standards. However, the of Minnesota, National Center on Educational Barkley (Eds.), Treatment of Childhood Disorders commenters stated that LEAs will put Outcomes. (2nd ed.) New York: Guilford Press. pressure on IEP Teams to

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17766 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

inappropriately include students in the cannot make the change requested by cap or the 2.0 percent cap. Some regular assessment when an LEA is the commenter. commenters stated that, by not allowing close to reaching the 2.0 percent cap, With regard to the commenter’s exceptions, the Department was which would be a violation of FAPE. second recommendation to give a State eliminating the distinction between Discussion: Section 200.1(f) of these the authority to take corrective action to students with the most significant final regulations requires States to prevent an LEA from exceeding the 1.0 cognitive disabilities and students for establish and monitor guidelines for IEP percent and 2.0 percent caps, under whom modified academic achievement Teams to apply in determining which § 200.13(c)(3), an LEA may exceed the standards are appropriate and asked students with disabilities will be 2.0 percent cap only if the number of what would happen to the scores of assessed based on alternate and proficient and advanced scores on the students in a State that had previously modified academic achievement alternate assessment based on alternate received an exception to exceed the 1.0 standards. In addition, § 300.160(c), academic achievement standards is less percent cap. Commenters also were consistent with section 612(a)(16) of the than 1.0 percent, and the number of concerned about rural States and the IDEA, requires a State (or in the case of proficient and advanced scores based on need for exceptions for very small a district-wide assessment, an LEA) to modified and alternate academic school districts. Other commenters develop and implement alternate achievement standards combined does supported not allowing exceptions. One assessments and guidelines for the not exceed 3.0 percent of all students commenter stated that there should be participation of students who cannot assessed. Likewise, a State may grant an a lower cap, and that exceptions should participate in the regular assessment exception to an LEA and permit the LEA be permitted based on a lower cap. even with accommodations. These to exceed the 1.0 percent cap under the Discussion: The final regulations on guidelines are intended to increase the conditions listed in § 200.13(c)(5). If an alternate academic achievement options for IEP Teams regarding LEA does not abide by these provisions standards permitted a State to request appropriate assessments. The and exceeds the 1.0 and 2.0 percent an exception to the 1.0 percent cap to guidelines, however, cannot guarantee caps inappropriately, § 200.13(c)(7) account for extraordinary circumstances that all IEP Team decisions are the most already requires a State to count as non- in the State that warranted an exception, appropriate. proficient the proficient and advanced or for a rural State with small numbers Under the general supervision scores that exceed the caps and of students. Since the final regulations requirements in § 300.149, consistent determine which scores to count as non- were issued in December 2003, the with section 612(a)(11) of the IDEA, we proficient in the schools and LEAs Department has granted exception anticipate that a State will exercise its responsible for students who are requests to four States. Two requests assessed based on alternate or modified were for statistical reasons due to the authority to ensure that LEAs and IEP academic achievement standards. rural nature of the State. The other two Teams follow the State guidelines and Changes: None. requests were for very small increments give thoughtful, careful consideration to Comment: One commenter asked if a over 1.0 percent. In both of the latter the assessment that is most appropriate State would be allowed to assess cases neither State has used the for an individual student so that the students on alternate assessments based exception because less than 1.0 percent situation described by the commenters on alternate academic achievement of students tested scored proficient or does not occur. standards if the State chose not to assess advanced on the alternate assessment Changes: None. students based on modified academic based on alternate academic Comment: One commenter achievement standards. achievement standards. recommended that the regulations allow Discussion: The development of Based on the requests submitted to a State to determine the number of modified academic achievement date, we believe that there is no real students in an LEA who may take an standards and assessments based on need to have an exception to the 1.0 alternate assessment based on alternate those standards is voluntary and does percent cap at the State level. When or modified academic achievement not affect a State’s implementation of there are truly unique circumstances standards. The commenter also alternate assessments based on alternate within an LEA, such as a hospital with recommended giving a State the academic achievement standards. special services, the LEA exception authority to take corrective action to Therefore, a State that already provides process should suffice. In addition, as prevent an LEA from exceeding the 1.0 an alternate assessment based on we stated in the preamble to the and 2.0 percent caps. alternate academic achievement proposed regulations on modified Discussion: Permitting a State to standards may choose not to provide an academic achievement standards, we do impose numeric limits on the number of alternate assessment based on modified not believe that it is appropriate or students to whom an LEA may academic achievement standards. necessary to permit more than 3.0 administer alternate assessments, Changes: None. percent of proficient and advanced thereby excluding a student whose IEP Comment: Several commenters scores on alternate assessments based Team determines that an alternate opposed the prohibition on a State on alternate or modified academic assessment is the most appropriate requesting an exception to the 1.0 achievement standards to be included in assessment for the student, would be percent cap on the number of proficient AYP determinations. inconsistent with the IDEA. Section and advanced scores on alternate We do not agree with the commenters 614(d)(1)(A)(i)(VI) of the IDEA gives a assessments based on alternate who proposed an absolute cap of 3.0 student’s IEP Team the authority to academic achievement standards that percent while allowing a State to exceed determine how a student with a may be included in AYP the 1.0 or 2.0 percent caps. Section disability will participate in State and determinations. Some commenters 200.13(c)(3) permits a State’s or LEA’s district-wide assessments. IEP Team recommended permitting a State to number of proficient and advanced decisions should be consistent with exceed a combined total of 3.0 percent; scores based on modified academic State guidelines, including guidelines other commenters supported a ‘‘dotted achievement standards to exceed the 2.0 for alternate assessments based on line’’ approach that would set an cap only if the number of proficient and alternate or modified academic absolute cap of 3.0 percent, but would advanced scores based on alternate achievement standards. Therefore, we permit a State to exceed the 1.0 percent academic achievement standards is less

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17767

than 1.0 percent. We believe that this of current § 200.20(c)(3) permits multiple administrations of an may encourage the participation of multiple test administrations for all assessment will motivate students, students who are currently assessed students. parents, schools, and States to continue based on alternate academic Changes: None. working to attain grade-level achievement standards to be assessed Comment: Most commenters achievement and thereby result in based on the more challenging modified supported removing current greater student success. academic achievement standards. A § 200.20(c)(3), which requires a State to Changes: None. State may not exceed the 1.0 percent use a student’s results from the first Comment: A few commenters cap when there are less than 2.0 percent administration of the State assessment recommended allowing a student’s IEP of proficient and advanced scores on to determine AYP. However, a number Team to determine the number of times modified academic achievement of commenters opposed this change and the student may retake an assessment. standards because we do not want to requested that the regulations continue Discussion: The IEP Team is create an incentive to identify more to require a State to use the results from responsible for determining how a students for alternate assessments based the first administration of a test. A few student will participate in State and on the less challenging alternate commenters stated that the results from district-wide assessments. (See academic achievement standards. only the first administration of an § 300.320(a)(6) of the IDEA regulations.) Changes: None. assessment should be used because Determining the number of times a Comment: One commenter these scores provide a more accurate student retakes an assessment is not the recommended changing measure of school accountability. The role of the IEP Team. IEP Teams do not § 200.13(c)(5)(i)(C) to require an LEA to commenters stated that accountability have the authority to override a State document that it is ‘‘fully and determinations based on the first policy regarding the number of times a effectively’’ implementing the State’s assessment administered reflect the student may take an assessment. guidelines for IEP Teams before it is effectiveness of a school’s core academic Changes: None. granted an exception to the 1.0 percent program, while scores from subsequent Including Scores of Students Previously cap on proficient and advanced scores administrations improve a school’s AYP Identified Under IDEA in AYP based on alternate academic and give credit for successful Calculations for the Students With achievement standards. remediation. Disabilities Subgroup (§ 200.20(f)) Discussion: Section 200.13(c)(5) One commenter expressed concern permits a State to grant an exception to that administering an assessment Comment: A number of commenters an LEA to exceed the 1.0 percent cap on multiple times compromises the supported proposed § 200.20(f)(1), proficient and advanced scores based on reliability of accountability which permits a State, in calculating alternate academic achievement determinations because students learn AYP for the students with disabilities standards if the LEA demonstrates that the test. Another commenter requested subgroup, to include, for up to two the incidence of students with the most additional guidance regarding how years, the scores of students who were significant cognitive disabilities exceeds many times a State may administer an previously identified under section 1.0 percent of all students in the assessment and whether different forms 602(3) of the IDEA but who no longer combined grades assessed, and if the of the assessment must be used. Some receive special education services. LEA explains why the incidence of such commenters suggested limiting retests to These commenters applauded this students exceeds 1.0 percent of all one additional test administration each section as acknowledging students’ students in the combined grades year to avoid excessive testing and academic achievement and recognizing assessed. delays in releasing AYP data. the positive impact of schools, teachers, We do not believe it is necessary to One commenter suggested changing and parents in facilitating that success. add the requirement suggested by the the regulations to prevent retesting a A number of other commenters, commenter that an LEA demonstrate student with a different type of however, disagreed. These commenters that it has fully and effectively assessment or in a different manner expressed concern that allowing a State implemented the State’s guidelines. A (e.g., with an accommodation) for the to include former students with State must seriously consider whether sole purpose of obtaining a proficient disabilities in the students with to grant an exception to an LEA to score. Several commenters expressed disabilities subgroup would mask the exceed the 1.0 percent cap because the concern that the removal of current true performance of students with State may not exceed the 1.0 percent § 200.20(c)(3) would result in excessive disabilities and shift the focus away cap. We believe that, in the course of testing. Other commenters stated that from improving instruction for those determining whether to grant an allowing a State to use the best score students. One commenter stated that exception to an LEA, a State will from multiple administrations of a test including former students with consider whether the LEA has followed might result in teachers concentrating disabilities in the disabilities subgroup the State’s guidelines and appropriately on test preparation instead of improving would ensure that the disability label identified students to participate in an instruction. would continue to follow the students. alternate assessment based on alternate Discussion: A State that permits Discussion: We recognize that the academic achievement standards. multiple administrations of its students with disabilities subgroup is Changes: None. assessment must ensure that the one whose membership can change assessment continues to be reliable and from year to year as students who were Making Adequate Yearly Progress valid and provides an accurate measure once identified as needing services and (§ 200.20) of school accountability. an IEP exit the subgroup. Because these Comment: One commenter stated that We understand that permitting students have exited the subgroup, multiple assessment administrations multiple administrations of an school assessment results for the should be permitted for all students, not assessment may raise concerns about students with disabilities subgroup just for students with disabilities. over-testing and focusing on test would not reflect the gains the exiting Discussion: Current § 200.20(c)(3) preparation, rather than instruction. students have made in academic applies to all students, not just students However, we continue to believe that achievement. Recognizing this situation, with disabilities. Therefore, the removal allowing a State to use the best score of the final regulations allow a State to

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17768 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

include ‘‘former students with to the State’s annual measurable students with disabilities subgroup, disabilities’’ within the students with objective for AYP. For reporting AYP by respectively. We have not detailed all disabilities subgroup in making AYP subgroup, former students with these changes in the discussion that determinations for up to two AYP disabilities may be included in the follows because, while the structure of determination cycles after they no students with disabilities subgroup. In new § 200.20(f)(2) differs from proposed longer receive special education this way, a school’s and district’s § 200.20(f), the content regarding former services. accountability status will reflect their students with disabilities is the same as At the same time, however, we good work in successfully enabling proposed § 200.20(f), with one recognize that it is important that students with disabilities to make exception, which is noted in the parents and the public have a clear progress so that they no longer need ‘‘Changes’’ section in the next comment. picture of the academic achievement of special education services while Changes: We have incorporated the those students with disabilities who providing parents and the public clear provisions in proposed § 200.20(f) into remain identified under section 602(3) information on how the subgroup of current § 200.20(f)(2). With these of the IDEA. Thus, the final regulations students with disabilities who are still changes, proposed paragraphs (a)(1), (b), distinguish between including former receiving services is performing. and (c)(1) are no longer needed and students with disabilities in the We note, of course, that former have been removed. subgroup for reporting assessment data students with disabilities, because they Comment: Several commenters noted and including them in the subgroup are no longer receiving services under that the proposed regulations could when reporting AYP on State and LEA section 602(3) of the IDEA, would not be permit a State to include only the scores report cards. eligible to be assessed based on either of some students who have exited the Under section 1111(h)(1)(C) and alternate or modified academic students with disabilities subgroup. The section 1111(h)(2)(B) (as that section achievement standards. commenters recommended that the applies to an LEA and each school With regard to the commenter who regulations be amended to clarify that served by the LEA) of the ESEA, expressed concern that including the the scores of all former students with information on subgroups is reported in scores of former students with disabilities must be included in two distinct ways. Under section disabilities in the students with determining AYP if the scores of any 1111(h)(1)(C)(i), (iii), (iv), (v), and (vi) disabilities subgroup would ensure that former students with disabilities are and section 1111(h)(2)(B) (as that the disability label would follow the included. The commenters reasoned section applies to an LEA and each student, we do not agree. Students who that a State should not have the option school served by the LEA) of the ESEA, no longer receive special education to include only the proficient and information is reported for all students services are not ‘‘labeled’’ as such. The advanced scores of former students with and the students in each subgroup, inclusion of their scores in the students disabilities in order to raise the regardless of whether a student’s with disabilities subgroup is for AYP achievement level of the students with achievement is used in determining if purposes only. disabilities subgroup. the subgroup has made AYP (i.e., Since the publication of the NPRM on Discussion: We agree with the reporting includes students who have modified academic achievement commenters. Whether to include the not been enrolled for a full academic standards, the Department published scores of former students with year, as defined by the State, and final regulations on the accountability disabilities in the students with students in subgroups too small to meet for recently-arrived and former limited disabilities subgroup for up to two years the State’s minimum group size for English proficient (LEP) students (71 FR is a discretionary decision of each State. determining AYP). For reporting under 54187 (Sept. 13, 2006)) (referred to in However, if a State makes the decision these provisions, former students with this notice as the LEP regulations). The to include the scores of former students disabilities may not be included in the final LEP regulations permit a State, in with disabilities for AYP calculations, it students with disabilities subgroup determining AYP for the subgroup of must include the scores of all such because it is important that parents and LEP students, to include, for up to two students; it may not include just the the public have a clear picture of the AYP determination cycles, the scores of scores of some students—for example, academic achievement of students with students who were LEP, but who no those who scored proficient or disabilities who are currently identified longer meet the State’s definition of advanced—and exclude the scores of under section 602(3) of the IDEA and limited English proficiency. The final others. Of course, former students with are receiving services. On the other regulations regarding including the disabilities must be included in each hand, section 1111(h)(1)(C)(ii) and scores of former students with other subgroup to which they belong— section 1111(h)(2)(B) (as that section disabilities in AYP determinations that e.g., economically disadvantaged, applies to an LEA and each school are a part of this notice mirror the final Hispanic, etc. We have changed the within the LEA) provide for a LEP regulations in current § 200.20(f)(2). regulations to require a State to use the comparison between the achievement Therefore, we have incorporated the scores of all former students with levels of subgroups and the State’s provisions from proposed § 200.20(f)(1), disabilities for AYP calculations if the annual measurable achievement regarding former students with State decides to include the scores of objectives for AYP in reading/language disabilities, into current § 200.20(f)(2). any former student with a disability. arts and mathematics (for all students Incorporating these provisions into Changes: New § 200.20(f)(2)(ii) has and disaggregated by race/ethnicity, current § 200.20(f)(2) has resulted in been changed by adding ‘‘must include disability status, English proficiency, several changes to the structure of the scores of all such students, but’’ at and status as economically current § 200.20(f)(2) and the provisions the end of the sentence. disadvantaged). For this section of State in proposed § 200.20(f)(1). For example, Comment: One commenter and LEA report cards, a State and its current § 200.20(f)(2) has been organized recommended that proposed LEAs are reporting on how students into paragraphs (f)(2)(i)(A) and § 200.20(f)(1) be amended to clarify that whose assessment scores were used in (f)(2)(i)(B) to include provisions former students with disabilities also determining AYP (i.e., students enrolled regarding the scores of former LEP may be included in calculating the for a full academic year) for reading/ students and former students with participation rate for the students with language arts and mathematics compare disabilities in the LEP subgroup and disabilities subgroup.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17769

Discussion: We do not believe it is determining whether a school or LEA are included in State and district-wide appropriate to permit a State to include has a sufficient number of students to assessment programs. Neither the IDEA former students with disabilities in yield statistically reliable information nor these regulations permit categorical calculating the participation rate for the under § 200.7(a) from doing so. exceptions to this requirement. students with disabilities subgroup. Changes: None. Changes: None. Those students will be counted as Definitions (§ 200.103) Comment: One commenter expressed participants in the ‘‘all students’’ group concern that LEAs would have difficulty and in any other subgroup to which Comment: A few commenters developing alternate assessments for they belong. These final regulations recommended including a definition of district-wide assessments and requested permit a State to include the scores of ‘‘universal design’’ in these regulations. assistance in identifying ways for LEAs former students with disabilities to Discussion: We do not believe it is to meet the requirements in section determine AYP for the students with appropriate to include a definition of 612(a)(16)(A) of the IDEA. disabilities subgroup so that a school ‘‘universal design’’ in these regulations Discussion: Section 612(a)(16)(A) of and LEA receive the benefits of their because it is a term of art with different the IDEA is clear that all children must efforts in providing special education meanings when applied to different participate in State as well as district- and related services that enabled products and services. As applied to wide assessments. This has been a students with disabilities to no longer assessments, universal design generally requirement since the 1997 need special education services. There means that assessments are developed reauthorization of the IDEA. LEAs that is no similar justification for including to be accessible for the widest possible conduct district-wide assessments must former students with disabilities in range of students. provide an alternate assessment for calculating the participation rate of the Changes: None. children who cannot participate in the students with disabilities subgroup. In Comment: A few commenters district-wide assessment even with fact, it is important for the public to recommended defining ‘‘pupil services’’ accommodations. Identifying the know the participation rate of just to mean ‘‘related services,’’ as defined in manner in which an LEA meets this students with disabilities because section 602(26) of the IDEA. requirement, however, is a matter that is historically they have been excluded Discussion: Equating ‘‘pupil services’’ best determined by State and local from Statewide assessments. with ‘‘related services’’ would be officials. Changes: None. inconsistent with the ESEA. Section Changes: None. Comment: Several commenters 9101(36) of the ESEA already defines Comment: One commenter recommended that proposed ‘‘pupil services’’ as including ‘‘related recommended requiring benchmarks or § 200.20(f)(2) be amended to require that services.’’ Therefore, we decline to make short-term objectives to be developed the number of former students with the change requested by the commenter. for students with disabilities disabilities whose scores are used for Changes: None. AYP must also be included in the participating in alternate assessments subgroup size for all purposes for which Part 300—Assistance to States for the based on modified academic the scores are used. The commenters Education of Children With Disabilities achievement standards. reasoned that the only reason to permit Discussion: Section This summary includes comments inclusion of the scores of former 614(d)(1)(A)(i)(I)(cc) of the IDEA made in response to the Title I NPRM students with disabilities in requires benchmarks or short-term published in the Federal Register on determining AYP without adding those objectives to be included only in the December 15, 2005 (70 FR 74624), as students to the number of students who IEPs of children with disabilities who well as comments made in response to make up the subgroup is to keep those participate in alternate assessments the proposed IDEA regulations students from increasing the subgroup based on alternate academic published in the Federal Register on beyond the minimum group size and achievement standards. Alternate thereby making it visible in AYP. June 21, 2005 (70 FR 35839) to assessments based on modified Discussion: The regulations are implement the IDEA as reauthorized by academic achievement standards are not designed to assist schools and LEAs that the Individuals with Disabilities alternate assessments based on alternate have a students with disabilities Education Improvement Act of 2004, academic achievement standards. subgroup of sufficient size (without Public Law No. 108–446, enacted on Therefore, we do not believe that including former students with December 3, 2004, regarding the benchmarks or short-term objectives disabilities) to yield statistically reliable inclusion of children with disabilities in should be required for children with information to demonstrate their State and district-wide assessment disabilities who participate in alternate progress with that subgroup by enabling systems in accordance with section assessments based on modified those schools and LEAs to include the 612(a)(16) of the IDEA. academic achievement standards. scores of former students with Participation in Assessments (§ 300.160) Congress specifically limited the disabilities in AYP calculations for up requirement for benchmarks and short- to two years after the students no longer General (§ 300.160) term objectives to the IEPs of children need special education services. Comment: A few commenters with the most significant cognitive Therefore, we decline to require a State requested that the regulations clearly disabilities who participate in alternate or LEA that takes advantage of this state that all students must participate assessments based on alternate flexibility also to include former in a State’s assessment program except academic achievement standards. As the students with disabilities in for a child with a disability who is Senate Committee on Health, Education, determining whether the students with medically fragile and cannot tolerate the Labor, and Pensions noted in Sen. Rep. disabilities subgroup meets the State’s stress of participating in an assessment. No. 108–185 (p. 28), ‘‘Short-term minimum group size. Nothing in these Discussion: We cannot make the objectives and benchmarks can focus regulations would prevent a State or requested change. Section 300.160(a), too much on minor details and distract LEA that wishes to include former consistent with section 612(a)(16)(A) of from the real purpose of special students with disabilities in the the IDEA, is clear that a State must education, which is to ensure that all students with disabilities subgroup in ensure that all children with disabilities children and youth with disabilities

VerDate Aug<31>2005 22:53 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17770 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

achieve high educational outcomes and Comment: One commenter number of students, and to ensure that are prepared to participate fully in the recommended requiring States and accommodations are provided, when social and economic fabric of their LEAs to have methodologies in place to necessary, to measure the academic communities.’’ determine that the accommodations achievement of students with We believe that students participating provided are valid and reliable and can disabilities. in alternate assessments based on be objectively determined. A few Changes: Section 300.160(b)(2)(i) has modified academic achievement commenters recommended requiring a been changed to require a State’s standards will benefit more when IEP State to submit proposed guidelines (or in the case of a district- Teams focus on goals that are based on accommodations for review and wide assessment, an LEA’s guidelines) grade-level content standards, rather approval by a panel of peer reviewers. to identify the accommodations for each than on short-term objectives or Discussion: The Department’s peer assessment that do not invalidate the benchmarks. In the discussion of review of Statewide assessment systems score. comments under § 200.1(e)(2)(iii) in this under Title I of the ESEA already Comment: One commenter noted that notice, we explain why we are requiring requires a State to provide evidence that the regulations must continue to allow that the IEPs of children taking alternate the State’s assessments are valid and IEP Teams to select accommodations assessments based on modified reliable for the purposes for which the based on the needs of their students, academic achievement standards assessments are used, and are consistent without regard to whether the include goals based on the academic with relevant, nationally recognized accommodation could yield a valid content standards for the grade in which professional and technical standards. A score. Discussion: Several sections of the the student is enrolled and that the IEP State must also provide evidence that IDEA must be considered to evaluate the be designed to monitor the student’s appropriate accommodations are proper role of a State in identifying progress in achieving the student’s available to students with disabilities. accommodations that do not invalidate standards-based goals. For State and LEA assessments that are not part of a State’s assessment the scores of children with disabilities Changes: None. system under Title I of the ESEA, a State (and result in children being counted as Accommodation Guidelines and its LEAs also have an obligation, nonparticipants) and the responsibility (§ 300.160(b)) under the IDEA, to ensure that children of individual IEP Teams to select with disabilities have available the accommodations for individual Comment: A few commenters accommodations that are necessary to children. Under section 612(a)(16) of the requested that the regulations clarify measure the academic achievement and IDEA, a State has a responsibility to that accommodations that invalidate a functional performance of the child. In ensure that all children with disabilities score when used in an assessment may order to do this, States and LEAs need are included in State and district-wide continue to be used in classroom to determine, for each particular assessments. Under section instruction. Other commenters assessment, the accommodations that 614(d)(1)(A)(i)(VI) of the IDEA and recommended that the regulations will not result in invalid scores and § 300.320(a)(6)(i) of the IDEA clarify that the accommodation identify those accommodations in their regulations, a child’s IEP must include guidelines are to be used by IEP Teams accommodation guidelines. We have the individual appropriate to recommend necessary and reasonable revised § 300.160(b)(2)(i) to make this accommodations that are necessary to accommodations to enable a student to clear. measure the academic achievement and participate both in the instructional The IDEA does not dictate a specific functional performance of the child. program and in the assessment. process to be followed in determining A State’s role in this regard is thus Discussion: The requirements in allowable accommodations, and, twofold—it must ensure that children § 300.160(b) pertain to guidelines for the therefore, we decline to adopt the with disabilities are included in the use of accommodations in assessments, recommendations that we do so at this assessments and that the and do not speak to the use of time. We will continue to evaluate accommodations that are offered to accommodations in the classroom. whether States are ensuring that individual children with disabilities are However, there is nothing in the IDEA accommodations that would not result ones that allow a child’s academic or these regulations that would prohibit in invalid scores are available and achievement to be measured. This the use of accommodations in classroom revisit this decision if the need to do so carries with it, we believe, a instruction that, if used in a State becomes apparent. responsibility for each State to clearly assessment, would invalidate a The commenters who recommended identify for IEP Teams those student’s score. Likewise, there is requiring a State to submit proposed accommodations that, if used, will not nothing in the IDEA or these regulations accommodations for review and result in an invalid score, so that that would prohibit a State from approval by a panel of peer reviewers children with disabilities will be encouraging IEP Teams to use the seem to be proposing a review to appropriately included in assessments. accommodation guidelines for determine the appropriateness of Therefore, as noted earlier, we have assessments to determine the accommodations that would be changed § 300.160(b)(2)(i) to require instructional supports to be provided in divorced from any review of the State and LEA guidelines to identify the the classroom. Such instructional technical qualities of the State’s accommodations for each assessment supports are generally referred to as assessments. Since decisions about that do not result in invalid scores. We supplementary aids and services. whether a particular accommodation is also believe that, to meet its Section 300.320(a)(4)(i), consistent with or is not allowed depend on how a test responsibility to ensure that children section 614(d)(1)(A)(i)(IV)(aa) of the is constructed and validated, we are not with disabilities are included in IDEA, requires the IEP Team to identify making the requested change. As assessments, a State needs to instruct the supplementary aids and services to required by §§ 200.2(b)(2) and IEP Teams to select only be provided to a child to enable the 200.6(a)(1), a State already is under the accommodations that do not result in child to advance appropriately toward obligation to ensure that its assessments invalid scores. The child’s IEP Team, meeting the child’s annual IEP goals. under Title I of the ESEA are designed though, remains the primary Changes: None. to be used by the widest possible decisionmaker for the accommodations

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17771

that will be made available to the child. accommodations guidelines need to decision regarding a child’s Therefore, we have changed include. participation in State and district-wide § 300.160(b)(2)(ii) to make clear that Changes: None. assessments; how parents will be State and LEA guidelines must instruct Comment: One commenter requested notified when decisions regarding the IEP Teams to select only that the regulations require a State and child’s participation in assessments will accommodations that do not result in its LEAs to provide research-based be made; and when reports will be invalid scores. decision-making tools for IEP Team distributed to parents and the public. A Changes: We have changed members to determine appropriate few commenters requested that the § 300.160(b)(2)(ii) to require that State testing accommodations. A few regulations require the IEP to include and LEA guidelines instruct IEP Teams commenters recommended that the the accommodations to be provided to to select, for each assessment, only Department provide guidance regarding a child. those accommodations that do not accommodations for children with Discussion: The requirements invalidate a score. disabilities and require States and LEAs recommended by the commenters are Comment: Several commenters stated to provide professional development to already addressed in these and other that a State’s accommodation guidelines school personnel regarding the existing regulations. Section 300.160(a), should focus on ‘‘appropriate participation of students with consistent with section 612(a)(16) of the accommodations’’ and not require disabilities in State and district-wide IDEA, requires each State to have in ‘‘valid accommodations.’’ These assessments. effect policies and procedures to ensure commenters stated that the focus should Discussion: We do not believe that that all children with disabilities in the be on universally-designed assessments additional regulations are necessary to State are included in State and district- that allow many more accommodations, address the commenters’ concerns. wide assessments, with appropriate rather then denying children with Section 300.160(b) already requires each accommodations and alternate disabilities the right to use the State (or in the case of a district-wide assessments where necessary. Section accommodations that are necessary to assessment, an LEA) to develop 300.320(a)(6), consistent with section meet the child’s needs. Another guidelines for IEP Teams to use 614(d)(1)(A)(i)(VI) of the IDEA, requires commenter recommended defining regarding the provision of appropriate a child’s IEP Team, which includes the ‘‘appropriate accommodations’’ and accommodations. Section parent, to include in the IEP any ‘‘individually appropriate 200.6(a)(1)(ii)(B) of the Title I individual appropriate accommodations accommodations’’ as accommodations regulations also requires each State to that are necessary to measure the that are needed to meet a child’s unique ensure that regular and special academic achievement and functional needs that maintain and preserve test education teachers, and other performance of the child on State and validity, reliability, and technical appropriate staff know how to district-wide assessments. If the IEP testing standards. administer assessments, including Team determines that a child will take Discussion: Tests administered with making appropriate use of an alternate assessment, the IEP Team accommodations that do not maintain accommodations for students with must explain why the child cannot test validity are not measuring academic disabilities. participate in the regular assessment achievement and functional The Department has devoted and why the particular alternate performance. Therefore, providing these considerable resources to provide assessment selected is appropriate for accommodations would be inconsistent technical assistance to States regarding the child. Section 300.322(b) requires with § 300.320(a)(6)(i) and section the appropriate use of accommodations that the notice to the parent regarding 614(d)(1)(A)(i)(VI)(aa) of the IDEA, for children with disabilities. For an IEP Team meeting indicate the which require each IEP to include the example, the Office of Special purpose of the meeting, in addition to appropriate accommodations that are Education Programs supports the the time and location of the meeting. necessary to measure the academic and National Center on Educational Finally, new § 300.160(f) (proposed functional performance of a child on Outcomes (See http:// § 300.160(e)) requires that reports on the State and district-wide assessments. www.education.umn.edu/nceo/) and the performance of children with With regard to the recommendation that Office of Elementary and Secondary disabilities on State and district-wide a State focus on universally designed Education supports a Comprehensive assessments be available to the public assessments, new § 300.160(g) Center on Accountability and with the same frequency and in the (proposed § 300.160(f)) already Assessments (See http:// same detail as reports on the assessment incorporates the requirement in section www.aacompcenter.org/). In addition, of nondisabled children. 612(a)(16)(E) of the IDEA that a State, in the Department’s Institute of Education Changes: None. the case of Statewide assessments, and Sciences supports research to address Comment: One commenter stated that an LEA, in the case of district-wide questions of how assessments for the requirement for valid assessments, to the extent possible, use accountability can best be designed and accommodations will lead to increased universal design in developing and used to capture and represent litigation because it violates section implementing assessments. Moreover, proficiency and growth for children 607(a) and (b) of the IDEA. § 200.2(b)(2) of the Title I regulations with disabilities (See http://ies.ed.gov/ Discussion: We disagree with the requires a State’s assessment system to ncser/). commenter. Section 607(a) of the IDEA ‘‘[b]e designed to be valid and accessible Changes: None. states that the Secretary shall issue for use by the widest possible range of Comment: One commenter regulations only to the extent that such students, including students with recommended requiring a State to have regulations are necessary to ensure disabilities.’’ in effect policies and procedures that compliance with the specific It is not necessary to provide specific explain how children with disabilities requirements of the IDEA. Section definitions of the terms ‘‘appropriate are included in assessments. The 607(b) of the IDEA provides that the accommodations’’ and ‘‘individually commenter stated that the policies and Secretary cannot publish final appropriate accommodations’’ because procedures related to assessments must regulations that would procedurally or we have revised the provisions in include a clear statement that the IEP substantively lessen the protections § 300.160(b) to clarify what the Team, including the parent, makes the provided to children with disabilities in

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17772 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

the regulations that were in effect on saaguidance03.doc. We do not believe be based on grade-level academic July 20, 1983, except to the extent that additional clarification is needed in achievement standards, modified such regulations reflect the clear and these regulations. academic achievement standards, or unequivocal intent of Congress in Changes: None. alternate academic achievement legislation. We believe that § 300.160(a) Comment: Several commenters standards. Modified academic is necessary to ensure that the requested that definitions of achievement standards under § 200.1(e) requirements in sections 612(a)(16) and ‘‘accommodations’’ and ‘‘modifications’’ and alternate academic achievement 614(d)(1)(A)(i)(VI)(aa) of the IDEA are be included in these regulations because standards under § 200.1(d) are optional. met, does not lessen protections for definitions of these two terms vary However, having an alternate children with disabilities that were in across States. assessment is not optional if there are regulations in effect in 1983 (the 1983 Discussion: The terms children with disabilities who cannot be regulations did not address ‘‘accommodations’’ and ‘‘modifications’’ appropriately assessed with the regular assessments), and reflects the clear and are terms of art and have different assessment. Therefore, if a State chooses unequivocal intent of Congress. Section meanings depending on the context in not to develop an alternate assessment 614(d)(1)(A)(i)(VI)(aa) of the IDEA which they are used. The terms are used based on modified or alternate academic requires each IEP Team to include in an in a number of ways, for example, to achievement standards, the State must IEP the appropriate accommodations refer to changes to a test or testing have an alternate assessment based on that are necessary to measure the environment, or to adaptations to an grade-level academic achievement academic and functional performance of educational environment, the standards, unless all children with a child on State and district-wide presentation of educational material, the disabilities can be appropriately assessments. Tests administered with method of response, or the educational assessed using the regular assessment. accommodations that do not maintain content. We do not believe it is Section 612(a)(16)(A) of the IDEA and test validity are not measuring academic appropriate to define such terms of art § 300.160(a) of these regulations require achievement. Moreover, the importance in these regulations. We also note that a State to ensure that all children with of identifying valid accommodations the term ‘‘modifications’’ is not used in disabilities are included in general State was recognized on page 97 of the House the IDEA amendments of 2004 or the and district-wide assessments. Section Committee Report No. 108–77 (2003): ESEA, as amended by NCLB. 612(a)(16)(C)(i) of the IDEA and new Changes: None. § 300.160(c) (proposed § 300.160(d)) * * * States have an affirmative obligation Comment: One commenter stated that to determine what types of accommodations further require that a State (or in the can be made to assessments while special accommodations should be case of a district-wide assessment, an maintaining their reliability and validity given for children with the most LEA) develop and implement alternate * * *. The Committee is intent on ensuring significant cognitive disabilities. assessments and guidelines for children that each child with a disability receives Discussion: Section with disabilities who cannot participate appropriate accommodations, but is equally 1111(b)(3)(C)(ix)(II) of the ESEA and in regular assessments even with intent that these accommodations not section 612(a)(16) of the IDEA already accommodations. Under §§ 200.1(e) and invalidate the particular assessment. require a State to provide appropriate 200.6(a)(3) of the Title I regulations Similarly, the Senate Committee accommodations for students with published in this notice and new Report No. 108–185 (2003) on page 30 disabilities to participate in State § 300.160(c), a State has the option of acknowledges that appropriate assessment systems. This includes developing alternate assessments based accommodations will not affect the accommodations for alternate on modified academic achievement test’s validity. Accordingly, we disagree assessments. standards. For clarity, we have that the validation requirement violates Changes: None. redesignated proposed § 300.160(c) as section 607(a) or (b) of the IDEA. Alternate Assessments (New new § 300.160(c)(2)(ii) so that it is clear Changes: None. § 300.160(c)) (Proposed § 300.160(d)) that an assessment based on modified Comment: One commenter requested academic achievement standards is an a definition of ‘‘valid.’’ Another Comment: One commenter stated that alternate assessment. commenter stated that the regulations the regulations must specify that States Because a State has options regarding should make clear that accommodations and LEAs are required to develop two the type of alternate assessments that it that alter the construct being assessed alternate assessments—one measuring will provide for students with are not allowed. the same academic achievement disabilities, a State would not Discussion: As used in § 300.160(a), a standards as all other students and the necessarily report on the number of ‘‘valid’’ accommodation is an other based on alternate academic students who participated in each of the accommodation that does not alter the achievement standards for students with alternate assessments. To acknowledge construct that the test is intended to the most significant cognitive this and for clarity, we have made clear measure. Accommodations that affect disabilities. A few commenters in new § 300.160(f)(2) through (f)(4) test validity do not measure a child’s requested clarification as to whether (proposed § 300.160(e)(2) through (e)(4)) academic achievement. We believe the alternate assessments are based on high that a State must report the number of requirement for valid accommodations academic achievement standards or children with disabilities, if any, who is sufficient to guide IEP Teams and, alternate academic achievement are assessed, using an Alternate therefore, decline to add the suggested standards. One commenter stated that a assessment based on grade-level, language to the regulation. State should be required to provide a modified, or alternate academic The Department’s nonregulatory definition of what constitutes an achievement standards, respectively. guidance on standards and assessment alternate assessment. We also have removed the regulatory defines validity (See question F–4.) and Discussion: Section 612(a)(16)(C)(i) of citations for the different academic further clarifies a State’s responsibilities the IDEA is clear that a State must achievement standards (e.g., ‘‘described for the validity and reliability of develop and implement alternate in paragraph (d)(2)(i)’’) and added the assessments under Title I. This assessments and guidelines for children name of the particular achievement document can be found at http:// with disabilities, but does not specify standard to which we are referring (e.g., www.ed.gov/policy/elsec/guid/ whether the alternate assessments must ‘‘grade-level’’) in new § 300.160(f)(2)

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17773

through (f)(4) (proposed § 300.160(e)(2) achievement standards. We also believe resulting from taking an alternate through (e)(4)). that it is important that parents, as well assessment based on alternate or With regard to the request to clarify as other IEP Team members, are modified academic achievement whether alternate assessments are based informed about any effects of State or standards (such as whether only on high achievement standards or local policies on their student’s satisfactory performance on a regular alternate academic achievement education that may result from taking an assessment would qualify the student standards, this will depend on the type alternate assessment based on alternate for a regular high school diploma). We of alternate assessment. We believe that or modified academic achievement also have added a new paragraph (e) the regulations are clear that there are standards. As the commenters point out, requiring a State to ensure that parents three types of alternate assessments this information is particularly of students selected to be assessed based permitted under Title I and the IDEA: important in a State where students on alternate or modified academic alternate assessments based on grade- must pass a particular assessment to be achievement standards are informed level academic achievement standards; eligible to receive a regular high school that their child’s achievement will be Alternate assessments based on diploma. Therefore, we have added a measured based on alternate or modified academic achievement regulation requiring a State to provide modified academic achievement standards; and alternate assessments IEP Teams, which include the parent, standards. The subsequent paragraph based on alternate academic with a clear explanation of the has been redesignated as new paragraph achievement standards. differences between assessments based (f). We do not believe it is necessary for on grade-level academic achievement Reports (New § 300.160(f)) (Proposed a State to provide a definition of what standards and those based on modified § 300.160(e)) constitutes an alternate assessment, as or alternate academic achievement requested by one commenter. New standards, including any effects of State Comment: One commenter strongly § 300.160(c)(2) (proposed or local policies on the student’s disagreed with reporting on the number § 300.160(d)(2)) clearly lays out that education resulting from taking an of students with disabilities who receive alternate assessments under Title I of alternate assessment based on alternate accommodations. The commenter stated the ESEA must be aligned with a State’s or modified academic achievement that, since accommodations do not challenging academic content standards standards (such as whether only change the outcome or alter the and challenging academic achievement satisfactory performance on a regular knowledge measured by the test, it is standards and, if a State has adopted assessment would qualify a student for inappropriate to maintain this modified academic achievement a regular high school diploma). We also information. standards or alternate academic have required a State to ensure that Discussion: This is a statutory achievement standards, measure student parents of students selected to be requirement and therefore cannot be achievement against those standards. assessed based on alternate or modified deleted. Section 612(a)(16)(D)(i) of the Changes: We have (1) redesignated academic achievement standards are IDEA requires a State (or in the case of proposed § 300.160(c) as new informed that their child’s achievement a district-wide assessment, an LEA) to § 300.160(c)(2)(ii) and renumbered the will be measured based those standards. make available to the public information subsequent paragraph; (2) added ‘‘if This also is consistent with on the number of children with any’’ following ‘‘number of children § 200.1(f)(1)(iii) and (iv) of the Title I disabilities participating in regular with disabilities’’ in new paragraphs regulations. assessments and the number of these (f)(2) through (f)(4) (proposed We do not believe it is necessary to children who were provided paragraphs (e)(2) through (e)(4)); and (3) add an additional requirement that such accommodations in order to participate replaced the regulatory citation in new parental notification be provided in in those assessments. paragraphs (f)(2) through (f)(4) writing, as suggested by several Changes: None. (proposed (e)(2) through (e)(4)) with the commenters. Parents are integral Comment: A few commenters stated name of the particular academic members of the IEP Team and, as such, that accommodations that invalidate a achievement standards to which we are are involved in decisions about how test score should not be used and, referring. their child will participate in the therefore, it is unnecessary to qualify in Comment: Several commenters Statewide assessment system. Section new § 300.160(f)(1) (proposed recommended requiring public agencies 300.320(a)(6)(ii) of the IDEA regulations § 300.160(e)(1)) that the number of to notify parents in writing when a already provides that, if an IEP Team children participating in regular child’s IEP Team determines that the determines that a child will not assessments who were provided with child will participate in an alternate participate in a particular regular State accommodations refers to the number of assessment. A few commenters or district-wide assessment, the child’s children participating in regular recommended requiring parents to be IEP must include a statement of why the assessments who were provided with informed in writing of the consequences child cannot participate in the regular accommodations ‘‘that did not result in of their child taking an alternate assessment and how that child will be an invalid score.’’ assessment, including any effect on the assessed. Under § 300.322(f), a copy of Discussion: We agree that child’s eligibility for graduation with a the child’s IEP must be provided to the accommodations that invalidate a test regular high school diploma. The parents. score should not be used. However, commenters stated that providing this Changes: We have added new given the lack of consistency in the field information to parents is particularly paragraph (d) to § 300.160 requiring a regarding the use of the term important in a State that requires State to provide IEP Teams with a clear ‘‘accommodations,’’ we believe it is students to pass a State exam in order explanation of the differences between important to be clear and to qualify in to receive a regular high school assessments based on grade-level new § 300.160(f)(1) (proposed diploma. academic achievement standards and § 300.160(e)(1)) that reports on the Discussion: We agree that it is those based on modified or alternate assessment of children with disabilities important for parents to be informed academic achievement standards, who participate in regular assessments that their child will be assessed based including any effects of State or local with accommodations include only on alternate or modified academic policies on the student’s education those children who were provided with

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17774 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

accommodations that did not result in § 300.160(e)(5)) to separately identify therefore subject to the requirements of an invalid score. For clarity, we also regular assessments, alternate the Executive Order and subject to have reordered the sequence in which assessments based on grade-level review by OMB. Section 3(f) of the alternate assessments are listed in academic achievement standards, Executive Order 12866 defines a new paragraph (f) (proposed paragraph alternate assessments based on modified ‘‘significant regulatory action’’ as an (e)) to be consistent with the order in academic achievement standards, and action likely to result in a rule that may new § 300.160(c)(2) (proposed alternate assessments based on alternate (1) have an annual effect on the § 300.160(d)(2)). academic achievement standards. We economy of $100 million or more, or Changes: We have redesignated also have added an introductory phrase adversely affect a sector of the economy, proposed § 300.160(e)(3), regarding requiring comparison with assessment productivity, competition, jobs, the alternate academic achievement results for all children, including environment, public health or safety, or standards, as new § 300.160(f)(4) and children with disabilities. State, local, or tribal governments or redesignated proposed § 300.160(e)(4)), Comment: One commenter communities in a material way (also regarding modified academic recommended requiring a State to referred to as an ‘‘economically achievement standards, as new widely distribute information about the significant’’ rule); (2) create serious § 300.160(f)(3). reports required in new § 300.160(f) inconsistency or otherwise interfere Comment: A few commenters (proposed § 300.160(e)) by posting the with an action taken or planned by recommended requiring a State to report reports on Web sites, making the reports another agency; (3) materially alter the on the number of children with available in schools and libraries, and budgetary impacts of entitlement grants, disabilities who participated in the providing parents with notices that the user fees, or loan programs or the rights regular assessment with information is available. and obligations of recipients thereof; or accommodations that invalidated their Discussion: New § 300.160(f) (4) raise novel legal or policy issues test scores. One commenter (proposed § 300.160(e)), consistent with arising out of legal mandates, the recommended requiring a State to report section 612(a)(16)(D)(i) of the IDEA, President’s priorities, or the principles on the number of children who received requires a State (or in the case of a set forth in the Executive order. The accommodations that invalidated their district-wide assessment, an LEA) to Secretary has determined that this test scores on alternate assessments make available to the public, and report regulatory action is significant under based on alternate academic to the public, with the same frequency section 3(f)(4) of the Executive Order. achievement standards and alternate and in the same detail as it reports on 1. Costs and Benefits assessments based on modified the assessment of nondisabled children, academic achievement standards. the information outlined in new Under Executive Order 12866, we Discussion: Children taking an § 300.160(f) (proposed § 300.160(e)) have assessed the potential costs and assessment with accommodations that regarding the participation and benefits of this regulatory action. invalidate their score should not be performance of children with Summary of Public Comments: reported as participants. We specify in disabilities on State and district-wide Several commenters suggested that the § 300.160(b)(2)(ii) that a State must assessments. The manner in which the cost of implementing an alternate instruct IEP Teams to select only those information is provided to the public assessment based on modified academic accommodations for each assessment (e.g., via Web sites, parent notices) is a achievement standards would be that do not result in invalid scores. matter that is best left to State and local significant and that the Federal Therefore, we decline to make the officials to determine. government should fund new changes requested by the commenters. Changes: None. assessments, including universally Changes: None. designed assessments. Some Comment: One commenter requested Universal Design (New § 300.160(g)) commenters disagreed with the figures that a State be required to report on the (Proposed § 300.160(f)) from a study by the Government performance of children with Comment: One commenter Accountability Office (GAO) cited in the disabilities for each assessment, not just recommended requiring a State to NPRM, regarding the amount of funds for regular assessments and alternate document where universal design spent on assessments in several States. assessments. principles are not used. These comments were considered in Discussion: We agree that the Discussion: New 300.160(g) (proposed conducting the analysis of the costs and regulation would be clearer if it § 300.160(f)), consistent with section benefits of the final regulations. The identified separately alternate 612(a)(16)(E) of the IDEA, requires a Department’s estimates and assessments based on grade-level State (or in the case of a district-wide assumptions on which they are based academic achievement standards, assessment, an LEA), to the extent are described below. alternate assessments based on modified feasible, to use universal design academic achievement standards, and Summary of Potential Costs and principles in developing and Benefits alternate assessments based on alternate administering assessments. We believe academic achievement standards. We that implementing the commenter’s These regulations provide States with have made this change in new recommendation (e.g., documenting additional flexibility in implementing § 300.160(f)(5) (proposed ‘‘universal design principles’’) would the accountability requirements in Title § 300.160(e)(5)). In addition, we have require significant resources and time I and the IDEA with respect to students added the language inadvertently and be a burden for a State to report. with disabilities. Specifically, the final omitted requiring the performance Therefore, we decline to make the regulations permit States to develop and results for children with disabilities to change requested by the commenter. implement alternate assessments based be compared to the achievement of all Changes: None. on modified academic achievement children, including children with standards for the group of students with disabilities, as specified in section Executive Order 12866 disabilities, for whom, according to 612(a)(16)(D)(iv) of the Act. Under Executive Order 12866, the recent research and the experience of Changes: We have changed Secretary must determine whether this many States, these alternate assessments § 300.160(f)(5) (proposed regulatory action is ‘‘significant’’ and are appropriate, and then to use their

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17775

results in making AYP determinations. are to be assessed based on modified If we assume that GAO’s category of Implementation of these alternate academic achievement standards have ongoing development, which includes assessments and standards would be a access to grade-level content so that question writing and review, involves component of State and local efforts to they can work toward grade-level the kinds of activities that States would improve educational outcomes for this achievement. The Secretary has undertake in developing alternate group of students, consistent with the concluded that the educational benefits assessments based on modified principles and objectives of NCLB. of assessing a large number of students academic achievement standards, the The primary impact of the regulations whose disabilities have prevented them GAO data can be used as a basis for is on the students with disabilities who from achieving grade-level proficiency projecting the possible costs of are eligible to be assessed based on using more appropriate assessments and developing assessments based on modified academic achievement standards will outweigh any potential modified academic achievement standards. The regulations provide harm associated with assessing children standards. For example, we can estimate educational benefits to students by based on modified academic an upper limit on the total costs of permitting States and LEAs to assess achievement standards who might have developing these alternate eligible students with disabilities using been able to reach grade-level assessments—$169 million—by using assessments that are appropriately proficiency in the same time frame as the GAO data reported for challenging but better designed to other students. In addition to these Massachusetts 13 and assuming that 52 measure their educational strengths and benefits to children, these regulations jurisdictions would choose to develop weaknesses and evaluate their will give teachers and schools credit for alternate assessments based on modified achievement of grade-level content, and work that they do with these students to academic achievement standards for to provide information that would be help them progress toward grade-level each of the 17 assessments required by helpful to teachers to guide instruction achievement, even if they are unable to Title I to be administered in 2008–2009. to meet the academic needs of these reach grade-level proficiency. Although this upper-bound estimate students so they can work toward grade- Although States are not required to represents the best information available level achievement. Based on an actual take advantage of the flexibility to us at this point in time, we believe enrollment of 26.3 million students 10 in provided in these regulations, States it may significantly overstate the costs grades 3 through 8 and 10 in school year may elect to do so, and, as a result, may of developing these alternate 2004–2005, we estimate that as many as incur additional administrative costs assessments insofar as the estimate GAO 530,000 children with disabilities could associated with the development of included for Massachusetts, which was be affected by, and benefit from, this modified academic achievement more than 2.4 times as large as the change in the assessment and standards and assessments based on estimates included for 5 of the other accountability structure in school year those standards. However, little States, may not be indicative of the costs 2008–2009. information is available for estimating of assessment development in other The potential costs to students would these costs; we have used the limited States using different types of questions be the harm associated with including information available to us to develop a or approaches to assessment. the ‘‘wrong’’ children in the group to be rough estimate of the development costs In addition, this estimate does not assessed based on modified academic for States that choose to take advantage reflect the reduced costs for the 4 States achievement standards. Given the of this flexibility. that already have alternate assessments history of inappropriately low This analysis is based on a 2003 based on modified academic expectations for children with report, issued by the GAO, ‘‘Title I: achievement standards in place under disabilities, the potential harm relates to Characteristics of Tests Will Influence the interim flexibility policy. States that finding students to be eligible for Expenses: Information Sharing May adopted alternate assessments based on alternate assessments based on modified Help States Realize Efficiencies,’’ that modified academic achievement academic achievement standards who, examined the costs of developing standards under the interim flexibility in fact, with appropriate instruction and assessments based on grade-level policy would still be required to high quality special education services, academic achievement standards and undergo peer review once the final might be able to achieve at the same provides estimates for the ongoing regulations are in effect. However, if the high level as their non-disabled peers. development expenditures for existing peer review determines that no 11 The risk is that low expectations could assessments for 7 States. We have adjustments are needed to any of the impede the ability of these students to some concerns about the accuracy of assessments in these States, the perform to their potential. The Secretary this information, its generalizibility, and estimated cost of producing alternate believes that the risk of including the its direct relevance to estimating the assessments in the other 48 jurisdictions ‘‘wrong’’ students in the group to be costs of developing alternate would be reduced to $155 million. assessed based on modified academic assessments based on modified In addition, we do not know the achievement standards is not high academic achievement standards. With extent to which States would elect to because of the central role that IEP those caveats, we believe the report does develop alternate assessments based on Teams play in determining how provide some indication of the variation modified academic achievement individual children will be assessed. in costs among States in developing standards for each grade and subject, Moreover, any harm would be minimal assessments and represents the best since States that choose to take because the regulations require the information available to us at this point advantage of the flexibility are not 12 assessment determinations to be made in time. required to develop modified academic on an annual basis by the IEP Team and achievement standards in every grade or they also include a number of 11 U.S. Government Accountability Office, Report every subject. However, in light of what 03–389, pg. 17. safeguards to ensure that students who we know about the performance of 12 We received a comment from one State students with disabilities on State indicating that the cost of developing its 10 Common Core of Data (CCD), ‘‘State Nonfiscal assessments was approximately $250,000. However, assessments and AYP determinations, Survey of Public Elementary/Secondary Education, we do not have any information about how that 2004–05 v.1c, National Center for Education figure was derived and have, therefore, declined to 13 GAO reported test development expenditures Statistics, U.S. Department of Education. use that estimate in this analysis. of $190,870 for the State of Massachusetts.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17776 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

we think it is highly unlikely that all State has implemented assessments appropriation for IDEA Grants to States States would elect to develop alternate based on alternate academic is $10.8 billion, and States could reserve assessments based on modified achievement standards and whether the more than $900 million for such academic achievement standards for all assessments are adaptable to a wide activities as the development and of the required 17 assessments. If we range of abilities, and the extent to provision of appropriate assume that typically States would which students with disabilities are able accommodations and assessments of develop only 8 assessments (e.g., to participate appropriately in the children with disabilities under Title I. reading/language arts and mathematics State’s general assessments. It also will For State Assessment Grants, the assessments for grades 6, 7, 8, and a depend, in part, on the extent to which appropriation is $408 million. The high school grade), which may be a the scores for the 2.0 percent of students Department believes that the regulations more accurate estimate of the impact of affected by these regulations increase will not impose a financial burden that the rule based on the available enough to meet the AYP goals for States and LEAs will have to meet from information, the total costs would be schools currently in need of non-Federal sources. estimated to be $79 million for 52 improvement. Testing data for the 2003– For purposes of the Unfunded jurisdictions and $73 million for 48 2004 school year for 33 States for the Mandates Reform Act of 1995, these jurisdictions. Department’s ‘‘Study of State regulations do not include a Federal Since the regulations would not Implementation of Accountability and mandate that might result in increased require that States adopt separate test Teacher Quality Under NCLB,’’ expenditures by State, local, and tribal administration or scoring procedures, published in the ‘‘National Assessment governments, or increased expenditures we assume that no additional costs of Title I Interim Report: Volume I; by the private sector of more than $100 would be incurred in administering Implementation of Title I,’’ indicates million in any one year. assessments based on modified that 13.0 percent of schools missed AYP academic achievement standards. In solely due to the achievement of the Regulatory Flexibility Act Certification addition, although many States choose students with disabilities subgroup. The Secretary certifies that these to create new assessments or revise Under Title I, LEAs are required to regulations will not have a significant parts of assessments at regular intervals, spend an amount equal to 20.0 percent economic impact on a substantial this is not required by these regulations of their Title I allocations to fund number of small entities. These so these estimates assume that supplemental services and choice- development costs are nonrecurring. provisions require States and LEAs to related transportation in schools that take certain actions only if States choose States that elect to develop modified fail to make AYP for two or more academic achievement standards would to implement the flexibility these consecutive years and are identified for regulations afford. The Department also incur minimal costs for the improvement. LEAs will have greater development and implementation of believes that these activities will be flexibility in the use of their Title I guidelines for IEP Teams to apply in financed through the appropriations for allocations if fewer schools miss AYP determining whether these modified Title I and the IDEA and that the goals and are subject to consequences as academic achievement standards are responsibilities encompassed in these a school in need of improvement. appropriate for particular students with laws and regulations will not impose a disabilities. The Department will States that decide to adopt modified financial burden that States and LEAs provide non-regulatory guidance academic achievement standards and will have to meet from non-Federal regarding alternate assessments and implement alternate assessments based sources. modified academic achievement on those standards will be able to use Paperwork Reduction Act of 1995 standards that States can use in funds from Title I, Title VI State developing their IEP Team guidelines. Assessment Grants, and IDEA programs There are several sections of the We assume States that elect to take to finance those activities. The costs of revised Title I regulations (§§ 200.1, advantage of this new flexibility to use developing and implementing 200.6, and 200.20) and one section of modified academic achievement assessments vary considerably but are the revised IDEA regulations (§ 300.160) standards and assessments based on modest when compared to the amounts that require collection of information these standards will do so because they available under Federal programs that under the Paperwork Reduction Act. believe they will realize net benefits, States can draw on for test development The following chart describes those primarily because of the benefits to and implementation. The fiscal year regulatory sections, the information students of being more appropriately 2007 appropriation for Title I Grants to being collected, and the collections the assessed and, secondarily, because of Local Educational Agencies is Department will submit to the Office of the effect on AYP determinations. The approximately $12.8 billion, and States Management and Budget for approval benefits to States from adopting could reserve approximately 1 percent and public comment. Separate notices assessments based on modified of this amount for administrative will be published in the Federal academic achievement standards expenses, including paying the costs of Register requesting comment on these depend on such factors as whether the developing assessments. The collections.

Regulatory section Collection information Collection

§ 200.1(f) ...... Requires SEAs opting for the flexibility offered Information collection 1810–0576, ‘‘Consoli- by these regulations to develop and monitor dated State Application.’’ the implementation of clear guidelines for IEP Teams to apply in determining students who will be assessed based on modified academic achievement standards.

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17777

Regulatory section Collection information Collection

§ 200.6(a)(4) and § 300.160(f)(3) ...... Requires SEAs to report in their annual State Information collection 1875–0240, ‘‘Annual performance reports the total number and Mandatory Collection of Elementary and percentage of students tested in math and Secondary Education Data for EDFacts.’’ reading with alternate assessments based on modified academic achievement stand- ards. § 200.20 ...... Permits SEAs and LEAs to include the scores Information collection 1810–0581, ‘‘State Edu- of former students with disabilities in the cational Agency and Local Educational students with disabilities subgroup when re- Agency and School Data Collection and Re- porting AYP on SEA and LEA report cards. porting under ESEA, Title I, Part A.’’

Federalism would be an intrusion into State commenters with respect to Executive Executive Order 13132 requires us to graduation standards if a State was Order 13132. ensure meaningful and timely input by required to diminish its standards for a Electronic Access to This Document State and local elected officials in the regular diploma to include students You may view this document, as well development of regulatory policies that who are assessed based on modified as all other Department of Education have Federalism implications. academic achievement standards. As we documents published in the Federal ‘‘Federalism implications’’ means have stated elsewhere in this preamble, Register, in text or Adobe Portable substantial direct effects on the States, the intent of proposed § 200.1(e)(1)(iii) Document Format (PDF) on the Internet on the relationship between the was not to require States to alter their at the following site: http://www.ed.gov/ National Government and the States, or graduation requirements or to provide a regular high school diploma to a student news/fedregister. on the distribution of power and To use PDF, you must have Adobe who scores proficient on an alternate responsibilities among the various Acrobat Reader, which is available free assessment based on modified academic levels of government. at this site. If you have questions about The need for the NPRM was raised to achievement standards. Rather, we using PDF, call the U.S. Government wanted to ensure that a student is not the Department by State and LEA Printing Office (GPO), toll free, at 1– assessment professionals who were automatically precluded from 888–293–6498; or in the Washington, concerned that the assessment attempting to earn a regular high school DC, area at (202) 512–1530. alternatives contemplated in the diploma simply because the student was existing Title I regulations (regular assessed based on modified academic Note: The official version of this document assessments based on grade-level achievement standards. To clarify our is the document published in the Federal Register. Free Internet access to the official academic achievement standards and intent, we have removed proposed edition of the Federal Register and the Code alternate assessments for students with § 200.1(e)(1)(iii) and replaced it with of Federal Regulations is available on GPO the most significant cognitive § 200.1(f)(2)(iv), which requires a State Access at: http://www.gpoaccess.gov/nara/ disabilities), and reflected in the IDEA, to ensure that students who take index.html. did not recognize that there was a group alternate assessments based on modified (Catalog of Federal Domestic Assistance of students with disabilities who were academic achievement standards are not Numbers: 84.010 Improving Programs not the most significantly cognitively precluded from attempting to complete Operated by Local Educational Agencies; disabled, but who could not achieve to the requirements, as defined by the 84.027 Assistance to States for the Education grade-level academic achievement State, for a regular high school diploma. of Children with Disabilities). standards. Based on the concerns raised, Second, a few commenters stated that List of Subjects the Department convened several the criteria we proposed for modified meetings with State and LEA officials, 34 CFR Part 200 academic achievement standards were parents of students with disabilities, too prescriptive and that States should Administrative practice and and researchers to learn more about the have the flexibility to develop modified procedure, Adult education, Children, issues involved in assessing students academic achievement standards in Education of children with disabilities, with disabilities, the concerns of parents ways that meet their needs. As we stated Education of disadvantaged children, and advocates for ensuring that all elsewhere in this preamble, we do not Elementary and secondary education, students with disabilities be held to agree with these commenters. We Eligibility, Family-centered education, high academic achievement standards, believe that allowing States to develop Grant programs—education, Indians— and about how some States were modified academic achievement education, Institutions of higher designing assessments for students with standards without placing any education, Local educational agencies, disabilities. In issuing the NPRM, Nonprofit private agencies, Private however, we did not believe that the parameters or restrictions on their use would likely result in lowered schools, Public agencies, Reporting and proposed regulations had Federalism recordkeeping requirements, State- implications as defined in the Executive expectations for this group of students and limit opportunities for these administered programs, State order. educational agencies. We received several comments on students to access grade-level content Federalism issues. First, several and meet grade-level achievement 34 CFR Part 300 commenters stated that proposed standards. Administrative practice and § 200.1(e)(1)(iii), which would require Taking into account these comments, procedure, Education of individuals that modified academic achievement and these final regulations, we believe with disabilities, Elementary and standards not preclude a student from that we have sufficiently addressed any secondary education, Equal educational earning a regular high school diploma, Federalism concerns raised by the opportunity, Grant programs—

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17778 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

education, Privacy, Private Schools, (iv) Are developed through a (B) Students with disabilities who Reporting and recordkeeping documented and validated standards- meet the criteria in paragraph (e)(2) of requirements. setting process that includes broad this section who will be assessed based Dated: April 2, 2007. stakeholder input, including persons on modified academic achievement Margaret Spellings, knowledgeable about the State’s standards. These students may be academic content standards and assessed based on modified academic Secretary of Education. experienced in standards setting and achievement standards in one or more I For the reasons discussed in the special educators who are most subjects for which assessments are preamble, the Secretary amends parts knowledgeable about students with administered under § 200.2; 200 and 300 of title 34 of the Code of disabilities. (ii) Inform IEP teams that students Federal Regulations as follows: (2) In the guidelines that a State eligible to be assessed based on alternate establishes under paragraph (f)(1) of this or modified academic achievement PART 200—TITLE I—IMPROVING THE section, the State must include criteria standards may be from any of the ACADEMIC ACHIEVEMENT OF THE for IEP teams to use in determining disability categories listed in the IDEA; DISADVANTAGED which students with disabilities are (iii) Provide to IEP teams a clear I 1. The authority citation for part 200 eligible to be assessed based on explanation of the differences between continues to read as follows: modified academic achievement assessments based on grade-level standards. Those criteria must include, academic achievement standards and Authority: 20 U.S.C. 6301 through 6578, those based on modified or alternate unless otherwise noted. but are not limited to, each of the following: academic achievement standards, I 2. Section 200.1 is amended by: (i) The student’s disability has including any effects of State and local I A. Revising paragraphs (a)(1) and precluded the student from achieving policies on the student’s education (a)(2). grade-level proficiency, as demonstrated resulting from taking an alternate I B. Redesignating paragraphs (e) and (f) by such objective evidence as the assessment based on alternate or as paragraphs (g) and (h), respectively. modified academic achievement I C. Adding new paragraphs (e) and (f). student’s performance on— (A) The State’s assessments described standards (such as whether only The revisions and additions read as satisfactory performance on a regular follows: in § 200.2; or (B) Other assessments that can validly assessment would qualify a student for § 200.1 State responsibilities for document academic achievement. a regular high school diploma); and developing challenging academic (ii)(A) The student’s progress to date (iv) Ensure that parents of students standards. in response to appropriate instruction, selected to be assessed based on (a) * * * including special education and related alternate or modified academic (1) Be the same academic content and services designed to address the achievement standards under the State’s academic achievement standards that student’s individual needs, is such that, guidelines in this paragraph are the State applies to all public schools even if significant growth occurs, the informed that their child’s achievement and public school students in the State, IEP team is reasonably certain that the will be measured based on alternate or including the public schools and public student will not achieve grade-level modified academic achievement school students served under subpart A proficiency within the year covered by standards. of this part, except as provided in the student’s IEP. (2) For students who are assessed paragraphs (d) and (e) of this section, (B) The determination of the student’s based on modified academic which apply only to the State’s progress must be based on multiple achievement standards, the State must— (i) Inform IEP teams that a student academic achievement standards; measurements, over a period of time, may be assessed based on modified (2) Include the same knowledge and that are valid for the subjects being academic achievement standards in one skills expected of all students and the assessed. or more subjects for which assessments same levels of achievement expected of (iii) If the student’s IEP includes goals all students, except as provided in are administered under § 200.2; for a subject assessed under § 200.2, (ii) Establish and monitor paragraphs (d) and (e) of this section; those goals must be based on the implementation of clear and appropriate and academic content standards for the guidelines for IEP teams to apply in * * * * * grade in which the student is enrolled, developing and implementing IEPs for (e) Modified academic achievement consistent with paragraph (f)(2) of this students who are assessed based on standards. (1) For students with section. modified academic achievement disabilities under section 602(3) of the (f) State guidelines. If a State defines standards. These students’ IEPs must— Individuals with Disabilities Education alternate or modified academic (A) Include IEP goals that are based Act (IDEA) who meet the State’s criteria achievement standards under paragraph on the academic content standards for under paragraph (e)(2) of this section, a (d) or (e) of this section, the State must the grade in which a student is enrolled; State may define modified academic do the following— and achievement standards, provided those (1) For students who are assessed (B) Be designed to monitor a student’s standards— based on either alternate or modified progress in achieving the student’s (i) Are aligned with the State’s academic achievement standards, the standards-based goals; academic content standards for the State must— (iii) Ensure that students who are grade in which the student is enrolled; (i) Establish and monitor assessed based on modified academic (ii) Are challenging for eligible implementation of clear and appropriate achievement standards have access to students, but may be less difficult than guidelines for IEP teams to apply in the curriculum, including instruction, the grade-level academic achievement determining— for the grade in which the students are standards under paragraph (c) of this (A) Students with the most significant enrolled; section; cognitive disabilities who will be (iv) Ensure that students who take (iii) Include at least three achievement assessed based on alternate academic alternate assessments based on modified levels; and achievement standards; and academic achievement standards are not

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17779

precluded from attempting to complete achievement standards, the State must I A. Revising paragraph (c). the requirements, as defined by the document that students with the most I B. Adding an appendix at the end of State, for a regular high school diploma; significant cognitive disabilities are, to the section. and the extent possible, included in the The revisions and addition read as (v) Ensure that each IEP team reviews general curriculum. follows: annually for each subject, according to (3) Alternate assessments that are the criteria in paragraph (e)(2) of this based on modified academic § 200.13 Adequate yearly progress in section, its decision to assess a student achievement standards. (i) To assess general. based on modified academic students with disabilities based on * * * * * achievement standards to ensure that modified academic achievement (c)(1) In calculating AYP for schools, those standards remain appropriate. standards, a State may develop a new LEAs, and the State, a State must, * * * * * alternate assessment or adapt an consistent with § 200.7(a), include the scores of all students with disabilities. I 3. Section 200.6 is amended by: assessment based on grade-level (2) With respect to scores based on I A. Revising paragraph (a)(1) and academic achievement standards. (ii) An alternate assessment under alternate or modified academic (a)(2)(iii). paragraph (a)(3)(i) of this section must— achievement standards, a State may I B. Adding paragraphs (a)(3) and (a)(4). (A) Be aligned with the State’s grade- include— The revisions and additions read as level academic content standards; follows: (i) The proficient and advanced scores (B) Yield results that measure the of students with the most significant § 200.6 Inclusion of all students. achievement of those students cognitive disabilities based on the * * * * * separately in reading/language arts and alternate academic achievement (a) Students eligible under IDEA and mathematics relative to the modified standards described in § 200.1(d), Section 504—(1) Appropriate academic achievement standards; provided that the number of those accommodations. (i) A State’s academic (C) Meet the requirements in §§ 200.2 scores at the LEA and at the State levels, assessment system must provide— and 200.3, including the requirements separately, does not exceed 1.0 percent (A) For each student with a disability, relating to validity, reliability, and high of all students in the grades assessed in as defined under section 602(3) of the technical quality; and reading/language arts and in IDEA, appropriate accommodations that (D) Fit coherently in the State’s mathematics; and the student’s IEP team determines are overall assessment system under (ii) The proficient and advanced necessary to measure the academic § 200.2. scores of students with disabilities achievement of the student relative to (4) Reporting. A State must report based on the modified academic the State’s academic content and separately to the Secretary, under achievement standards described in academic achievement standards for the section 1111(h)(4) of the Act, the § 200.1(e)(1), provided that the number grade in which the student is enrolled, number and percentage of students with of those scores at the LEA and at the consistent with § 200.1(b)(2), (b)(3), and disabilities taking— State levels, separately, does not exceed (c); and (i) Regular assessments described in 2.0 percent of all students in the grades (B) For each student covered under § 200.2; assessed in reading/language arts and in section 504 of the Rehabilitation Act of (ii) Regular assessments with mathematics. 1973, as amended (Section 504), accommodations; (3) A State’s or LEA’s number of (iii) Alternate assessments based on appropriate accommodations that the proficient and advanced scores of the grade-level academic achievement student’s placement team determines students with disabilities based on the standards described in § 200.1(c); are necessary to measure the academic modified academic achievement (iv) Alternate assessments based on achievement of the student relative to standards described in § 200.1(e)(1) may the modified academic achievement the State’s academic content and exceed 2.0 percent of all students in the standards described in § 200.1(e); and academic achievement standards for the grades assessed if the number of (v) Alternate assessments based on the grade in which the student is enrolled, proficient and advanced scores based on alternate academic achievement consistent with § 200.1(b)(2), (b)(3), and the alternate academic achievement standards described in § 200.1(d). (c). standards described in § 200.1(d) is less (ii) A State must— * * * * * than 1.0 percent, provided the number (A) Develop, disseminate information I 4. Section 200.7 is amended by of proficient and advanced scores based on, and promote the use of appropriate redesignating paragraph (a)(2) as (a)(2)(i) on modified and alternate academic accommodations to increase the number and adding a new paragraph (a)(2)(ii) to achievement standards combined does of students with disabilities who are read as follows: not exceed 3.0 percent of all students in tested against academic achievement the grades assessed. § 200.7 Disaggregation of data. standards for the grade in which a (4) A State may not request from the student is enrolled; and (a) * * * Secretary an exception permitting it to (B) Ensure that regular and special (2)(i) * * * exceed the caps on proficient and education teachers and other (ii) Beginning with AYP decisions advanced scores based on alternate or appropriate staff know how to that are based on the assessments modified academic achievement administer assessments, including administered in the 2007–08 school standards under paragraph (c)(2) and (3) making appropriate use of year, a State may not establish a of this section. accommodations, for students with different minimum number of students (5)(i) A State may grant an exception disabilities and students covered under under paragraph (a)(2)(i) of this section to an LEA permitting it to exceed the 1.0 Section 504. for separate subgroups under percent cap on proficient and advanced (2) * * * § 200.13(b)(7)(ii) or for the school as a scores based on the alternate academic (iii) If a State permits the use of whole. achievement standards described in alternate assessments that yield results * * * * * paragraph (c)(2)(i) of this section only based on alternate academic I 5. Section 200.13 is amended by: if—

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 17780 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

(A) The LEA demonstrates that the (6) A State may not grant an exception proficient in schools and LEAs incidence of students with the most to an LEA to exceed the 2.0 percent cap responsible for students who are significant cognitive disabilities exceeds on proficient and advanced scores based assessed based on alternate or modified 1.0 percent of all students in the on modified academic achievement academic achievement standards. standards under paragraph (c)(2)(ii) of combined grades assessed; (iv) Include non-proficient scores that this section, except as provided in (B) The LEA explains why the exceed the caps in paragraph (c) of this incidence of such students exceeds 1.0 paragraph (c)(3) of this section. (7) In calculating AYP, if the section in each applicable subgroup at percent of all students in the combined the school, LEA, and State level. grades assessed, such as school, percentage of proficient and advanced community, or health programs in the scores based on alternate or modified (v) Ensure that parents of a child who LEA that have drawn large numbers of academic achievement standards under is assessed based on alternate or families of students with the most § 200.1(d) or (e) exceeds the caps in modified academic achievement significant cognitive disabilities, or that paragraph (c) of this section at the State standards are informed of the actual the LEA has such a small overall or LEA level, the State must do the academic achievement levels of their student population that it would take following: child. (i) Consistent with § 200.7(a), include only a few students with such all scores based on alternate and * * * * * disabilities to exceed the 1.0 percent modified academic achievement cap; and Appendix to § 200.13—When May a standards. (C) The LEA documents that it is State or LEA Exceed the 1% and 2% (ii) Count as non-proficient the Caps? implementing the State’s guidelines proficient and advanced scores that under § 200.1(f). exceed the caps in paragraph (c) of this The following table provides a summary of (ii) The State must review regularly section. the circumstances in which a State or LEA whether an LEA’s exception to the 1.0 (iii) Determine which proficient and may exceed the 1% and 2% caps described percent cap is still warranted. advanced scores to count as non- in § 200.13.

WHEN MAY A STATE OR LEA EXCEED THE 1% AND 2% CAPS?

Alternate academic achievement Modified academic achievement Alternate and modified academic standards—1% cap standards—2% cap achievement standards—3%

State ...... Not permitted ...... Only if State is below 1% cap, but Not permitted. cannot exceed 3%. LEA ...... Only if granted an exception by the Only if LEA is below 1% cap, but Only if granted an exception to the SEA. cannot exceed 3%. 1% cap by the SEA, and only by the amount of the exception.

I 6. Section 200.20 is amended by: (B) Students who were previously students and former students with I A. Revising paragraph (c)(3). identified under section 602(3) of the disabilities as part of the limited English I B. Revising paragraph (f)(2). IDEA but who no longer receive special proficient and students with disabilities I C. Adding a new paragraph (g). education services. subgroups, respectively, for the purpose The revisions and addition read as (ii) If a State, in determining AYP for of reporting AYP at the State level under follows: the subgroup of limited English section 1111(h)(1)(C)(ii) of the Act; proficient students and the subgroup of (B) An LEA may include the scores of § 200.20 Making adequate yearly progress. students with disabilities, includes the former limited English proficient * * * * * scores of the students described in students and former students with (c) * * * paragraph (f)(2)(i) of this section, the disabilities as part of the limited English (3) To count a student who is assessed State must include the scores of all such proficient and students with disabilities based on alternate or modified academic students, but is not required to— subgroups, respectively, for the purpose achievement standards described in (A) Include those students in the of reporting AYP at the LEA and school § 200.1(d) or (e) as a participant for limited English proficient subgroup or levels under section 1111(h)(2)(B) of the purposes of meeting the requirements of in the students with disabilities Act; but (C) A State or LEA may not include this paragraph, the State must have, and subgroup in determining if the number the scores of former limited English ensure that its LEAs adhere to, of limited English proficient students or proficient students or former students guidelines that meet the requirements of students with disabilities, respectively, with disabilities as part of the limited § 200.1(f). is sufficient to yield statistically reliable information under § 200.7(a); or English proficient or students with * * * * * (B) With respect to students who are disabilities subgroup, respectively, in (f) * * * no longer limited English proficient— reporting any other information under (2)(i) In determining AYP for the (1) Assess those students’ English section 1111(h) of the Act. subgroup of limited English proficient language proficiency under (g) Transition provision regarding students and the subgroup of students § 200.6(b)(3); or modified academic achievement with disabilities, a State may include, (2) Provide English language services standards. The Secretary may provide a for up to two AYP determination cycles, to those students. State that is moving expeditiously to the scores of— (iii) For the purpose of reporting adopt and administer alternate (A) Students who were limited information on report cards under assessments based on modified English proficient but who no longer section 1111(h) of the Act— academic achievement standards meet the State’s definition of limited (A) A State may include the scores of flexibility in accounting for the English proficiency; and former limited English proficient achievement of students with

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17781

disabilities in AYP determinations that children with disabilities in alternate (f) Reports. An SEA (or, in the case of are based on assessments administered assessments for those children who a district-wide assessment, an LEA) in 2007–08 and 2008–09. To be eligible cannot participate in regular must make available to the public, and for this flexibility, a State must meet assessments, even with report to the public with the same criteria, as the Secretary determines accommodations, as indicated in their frequency and in the same detail as it appropriate, for each year for which the respective IEPs, as provided in reports on the assessment of flexibility is available. paragraph (a) of this section. nondisabled children, the following: I 7. Section 200.103 is amended by (2) For assessing the academic (1) The number of children with adding a new paragraph (c) to read as progress of students with disabilities disabilities participating in regular follows: under Title I of the ESEA, the alternate assessments, and the number of those assessments and guidelines in § 200.103 Definitions. children who were provided paragraph (c)(1) of this section must accommodations (that did not result in * * * * * provide for alternate assessments that— an invalid score) in order to participate (c) Student with a disability means (i) Are aligned with the State’s in those assessments. child with a disability, as defined in challenging academic content standards section 602(3) of the IDEA. and challenging student academic (2) The number of children with achievement standards; disabilities, if any, participating in PART 300—ASSISTANCE TO STATES (ii) If the State has adopted modified alternate assessments based on grade- FOR THE EDUCATION OF CHILDREN academic achievement standards level academic achievement standards. WITH DISABILITIES permitted in 34 CFR 200.1(e), measure (3) The number of children with disabilities, if any, participating in I 8. The authority citation for part 300 the achievement of children with alternate assessments based on modified is revised to read as follows: disabilities meeting the State’s criteria under § 200.1(e)(2) against those academic achievement standards. Authority: 20 U.S.C. 1221e–3, 1406, 1411– standards; and 1419, unless otherwise noted. (4) The number of children with (iii) If the State has adopted alternate disabilities, if any, participating in I 9. A new § 300.160 is added to read academic achievement standards alternate assessments based on alternate as follows: permitted in 34 CFR 200.1(d), measure academic achievement standards. § 300.160 Participation in assessments. the achievement of children with the (5) Compared with the achievement of (a) General. A State must ensure that most significant cognitive disabilities all children, including children with all children with disabilities are against those standards. disabilities, the performance results of included in all general State and (d) Explanation to IEP Teams. A State children with disabilities on regular district-wide assessment programs, (or in the case of a district-wide assessments, alternate assessments including assessments described under assessment, an LEA) must provide IEP based on grade-level academic section 1111 of the ESEA, 20 U.S.C. Teams with a clear explanation of the achievement standards, alternate 6311, with appropriate accommodations differences between assessments based assessments based on modified and alternate assessments, if necessary, on grade-level academic achievement academic achievement standards, and as indicated in their respective IEPs. standards and those based on modified alternate assessments based on alternate (b) Accommodation guidelines. (1) A or alternate academic achievement academic achievement standards if— State (or, in the case of a district-wide standards, including any effects of State or local policies on the student’s (i) The number of children assessment, an LEA) must develop participating in those assessments is guidelines for the provision of education resulting from taking an alternate assessment based on alternate sufficient to yield statistically reliable appropriate accommodations. information; and (2) The State’s (or, in the case of a or modified academic achievement district-wide assessment, the LEA’s) standards (such as whether only (ii) Reporting that information will guidelines must— satisfactory performance on a regular not reveal personally identifiable (i) Identify only those assessment would qualify a student for information about an individual student accommodations for each assessment a regular high school diploma). on those assessments. that do not invalidate the score; and (e) Inform parents. A State (or in the (g) Universal design. An SEA (or, in (ii) Instruct IEP Teams to select, for case of a district-wide assessment, an the case of a district-wide assessment, each assessment, only those LEA) must ensure that parents of an LEA) must, to the extent possible, accommodations that do not invalidate students selected to be assessed based use universal design principles in the score. on alternate or modified academic developing and administering any (c) Alternate assessments. (1) A State achievement standards are informed assessments under this section. (or, in the case of a district-wide that their child’s achievement will be (Authority: 20 U.S.C. 1412(a)(16)) assessment, an LEA) must develop and measured based on alternate or implement alternate assessments and modified academic achievement [FR Doc. 07–1700 Filed 4–4–07; 8:45 am] guidelines for the participation of standards. BILLING CODE 4000–01–P

VerDate Aug<31>2005 22:13 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR3.SGM 09APR3 rwilkins on PROD1PC63 with RULES_3 Monday, April 9, 2007

Part V

The President Proclamation 8120—Pan American Day and Pan American Week, 2007 Proclamation 8121—National Former Prisoner of War Recognition Day, 2007

VerDate Aug<31>2005 22:15 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09APD0.SGM 09APD0 rwilkins on PROD1PC63 with RULES_3 VerDate Aug<31>2005 22:15 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4717 Sfmt 4717 E:\FR\FM\09APD0.SGM 09APD0 rwilkins on PROD1PC63 with RULES_3 17785

Federal Register Presidential Documents Vol. 72, No. 67

Monday, April 9, 2007

Title 3— Proclamation 8120 of April 5, 2007

The President Pan American Day and Pan American Week, 2007

By the President of the United States of America

A Proclamation

Each year on Pan American Day and during Pan American Week, we under- score our commitment to supporting the citizens in the Pan American com- munity, strengthening democracy in the Western Hemisphere, and advancing the cause of peace worldwide. In 1890, the International Union of American Republics was established to promote cooperation among the Americas. Today, the United States and our neighbors in the Western Hemisphere are a community linked by com- mon values, shared interests, and the close bonds of family and friendship. As the expansion of freedom continues in our region, the democratic nations of the Western Hemisphere are working together to build a safer and more prosperous society and to ensure that all the people of the Americas have the opportunity to achieve their dreams. My Administration is working to advance the cause of social justice in the Pan American region, and we are committed to supporting our neighbors’ efforts to meet the needs of their citizens. In 2004, we created the Millennium Challenge Corporation to provide increased aid to nations that govern justly, invest in the education and health of their people, and promote economic freedom. We are working with the citizens of the Pan American community to expand economic opportunity through debt relief and to encourage reforms through such mechanisms as the North America Free Trade Agreement, the Chile Free Trade Agreement, and the Dominican Republic-Central Amer- ica-United States Free Trade Agreement. These agreements facilitate the flow of trade and help establish market economies. We have also recently notified the Congress of our intention to enter into a free trade agreement with Panama and signed free trade agreements with Peru and Colombia. These agreements will generate export opportunities for the United States and benefit the people of Panama, Peru, and Colombia by providing economic opportunity and helping to strengthen democratic institutions. By working with our democratic neighbors to build strong and vibrant economies, we are helping the citizens of the Western Hemisphere realize the promise of a free and just society. The ties between the democratic nations of the Western Hemisphere are deep and lasting, and together we can continue our great strides toward freedom and prosperity for people everywhere. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim April 14, 2007, as Pan American Day and April 8 through April 14, 2007, as Pan American Week. I urge the Governors of the 50 States, the Governor of the Commonwealth of Puerto Rico, and the officials of other areas under the flag of the United States of America to honor these observances with appropriate ceremonies and activities.

VerDate Aug<31>2005 22:15 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\09APD0.SGM 09APD0 rwilkins on PROD1PC63 with RULES_3 17786 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Presidential Documents

IN WITNESS WHEREOF, I have hereunto set my hand this fifth day of April, in the year of our Lord two thousand seven, and of the Independence of the United States of America the two hundred and thirty-first.

[FR Doc. 07–1775 Filed 4–6–07; 8:47 am] Billing code 3195–01–P

VerDate Aug<31>2005 22:15 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4705 Sfmt 4790 E:\FR\FM\09APD0.SGM 09APD0 rwilkins on PROD1PC63 with RULES_3 GWBOLD.EPS Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Presidential Documents 17787 Presidential Documents

Proclamation 8121 of April 5, 2007

National Former Prisoner of War Recognition Day, 2007

By the President of the United States of America

A Proclamation The men and women of the United States Armed Forces have made great sacrifices to defend our Nation. They have triumphed over brutal enemies, liberated continents, and answered the prayers of millions around the globe. On National Former Prisoner of War Recognition Day, we honor the brave individuals who put service above self and were taken captive while pro- tecting America and advancing the cause of freedom. Throughout our Nation’s conflicts, American prisoners of war have defied ruthless enemies and endured tremendous hardships as they braved captivity. Their strength showed the power and resilience of the American spirit and the indomitable character of our men and women in uniform. Their sacrifices are a great example of courage, devotion, and love of country. Our Nation’s former prisoners of war have helped secure the priceless gift of freedom for all our citizens, and we will always be grateful to them and their families. On National Former Prisoner of War Recognition Day and throughout the year, we honor the American heroes who have been taken as prisoners of war and remember their legacy of bravery and selfless- ness. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim April 9, 2007, as National Former Prisoner of War Recognition Day. I call upon the people of the United States to join me in honoring the service and sacrifices of all American prisoners of war. I call upon Federal, State, and local government officials and private organizations to observe this day with appropriate ceremonies and activities.

VerDate Aug<31>2005 22:17 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4790 Sfmt 4790 E:\FR\FM\09APD1.SGM 09APD1 rwilkins on PROD1PC63 with RULES_3 17788 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Presidential Documents

IN WITNESS WHEREOF, I have hereunto set my hand this fifth day of April, in the year of our Lord two thousand seven, and of the Independence of the United States of America the two hundred and thirty-first.

[FR Doc. 07–1776 Filed 4–6–07; 8:47 am] Billing code 3195–01–P

VerDate Aug<31>2005 22:17 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4790 Sfmt 4790 E:\FR\FM\09APD1.SGM 09APD1 rwilkins on PROD1PC63 with RULES_3 GWBOLD.EPS i

Reader Aids Federal Register Vol. 72, No. 67 Monday, April 9, 2007

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 573...... 16875 Presidential Documents 3 CFR 716...... 16875 Executive orders and proclamations 741–6000 Proclamations: 915...... 15627 The United States Government Manual 741–6000 8119...... 16255 8120...... 17785 13 CFR Other Services 8121...... 17787 102...... 17367 Electronic and on-line services (voice) 741–6020 Administrative Orders: 14 CFR Privacy Act Compilation 741–6064 Notices: Public Laws Update Service (numbers, dates, etc.) 741–6043 Notice of March 30, 39 ...... 15603, 15812, 15814, TTY for the deaf-and-hard-of-hearing 741–6086 2007 ...... 15803 15816, 15818, 15820, 15822, Notice of April 1, 16699, 16701, 16703, 16990, 16998, 17376, 17379 ELECTRONIC RESEARCH 2007 ...... 16259 71 ...... 15824, 15825, 16707, World Wide Web 5 CFR 16708, 16709, 16710 91...... 16710 Full text of the daily Federal Register, CFR and other publications 2634...... 16985 97...... 15825 is located at: http://www.gpoaccess.gov/nara/index.html 2635...... 16985 2636...... 16985 331...... 17381 Federal Register information and research tools, including Public 401...... 17001 Inspection List, indexes, and links to GPO Access are located at: 6 CFR 404...... 17001 l http://www.archives. gov/federal register 27...... 17688 405...... 17001 E-mail 406...... 17001 7 CFR 413...... 17001 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 301...... 15597 415...... 17001 an open e-mail service that provides subscribers with a digital 319...... 15805 420...... 17001 form of the Federal Register Table of Contents. The digital form 762...... 17353 431...... 17001 of the Federal Register Table of Contents includes HTML and 915...... 16261 437...... 17001 PDF links to the full text of each document. 922...... 16263 Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 926...... 16265 25...... 17441 Online mailing list archives, FEDREGTOC-L, Join or leave the list 959...... 17360 39 ...... 15633, 15635, 15850, (or change settings); then follow the instructions. 989...... 17362 16287, 16289, 16741, 16744, 16747, 16749, 17042, 17045, PENS (Public Law Electronic Notification Service) is an e-mail 1207...... 16267 17443 service that notifies subscribers of recently enacted laws. Proposed Rules: 71...... 17445 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 959...... 17037 and select Join or leave the list (or change settings); then follow 3560...... 16730 15 CFR the instructions. 10 CFR 303...... 16712 FEDREGTOC-L and PENS are mailing lists only. We cannot 300...... 15598 16 CFR respond to specific inquiries. Proposed Rules: Proposed Rules: Reference questions. Send questions and comments about the 50...... 16731 313...... 16875 Federal Register system to: [email protected] 73...... 17440 The Federal Register staff cannot interpret specific documents or 17 CFR 11 CFR regulations. 140...... 16269 104...... 16695 145...... 16269 111...... 16695 FEDERAL REGISTER PAGES AND DATE, APRIL 200...... 16934 232...... 16934 12 CFR 15597–15804...... 2 240...... 16934 15805–16260...... 3 204...... 16987 249...... 16934 611...... 16699 16261–16694...... 4 Proposed Rules: 612...... 16699 16695–16984...... 5 1...... 15637 614...... 16699 16985–17352...... 6 3...... 15637 615...... 16699 4...... 15637 17353–17788...... 9 618...... 16699 15...... 15637 619...... 16699 160...... 16875 620...... 16699 166...... 15637 630...... 16699 248...... 16875 652...... 15812 655...... 15812 18 CFR 915...... 15600 40...... 16416 Proposed Rules: 101...... 16716, 17393 40...... 16875 216...... 16875 20 CFR 332...... 16875 404...... 16720

VerDate Aug 31 2005 23:11 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\09APCU.LOC 09APCU hsrobinson on PROD1PC76 with PROPOSALS3 ii Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids

416...... 16720 28 CFR 21...... 16962 44 CFR 500...... 16271 67...... 17413, 17426 21 CFR 501...... 16271 39 CFR Proposed Rules: 179...... 17394 20...... 16604 67...... 17463 520...... 16270 30 CFR 558...... 16270 Proposed Rules: 46 CFR 803...... 17397 291...... 17047 40 CFR 501...... 15613 814...... 17397 946...... 17449, 17452 52...... 15839 820...... 17397 62...... 17025 47 CFR 821...... 17397 31 CFR 174...... 16277 822...... 17397 538...... 15831 180...... 16281 73...... 16283 866...... 15828 560...... 15831 261...... 17027 Proposed Rules: 874...... 17397 Proposed Rules: 73...... 16315 33 CFR 886...... 17397 52...... 17461 1002...... 17397 100...... 15832, 17024 62...... 17068 49 CFR 1005...... 17397 160...... 17409 63...... 16636 23...... 15614 1020...... 17397 165 ...... 15834, 15837, 16275, 92...... 15938 26...... 15614 1300...... 17401 16726, 17024 94...... 15938 211...... 17433 1313...... 17401 Proposed Rules: 152...... 16312 571...... 17236 Proposed Rules: 100...... 17062, 17456 156...... 16312 585...... 17236 179...... 16291 117 ...... 15852, 16752, 17065 167...... 16312 1002...... 17032 165...... 16754, 17458 168...... 16312 Proposed Rules: 22 CFR 169...... 16312 34 CFR 544...... 17465 126...... 15830 172...... 16312 1300...... 16316 200...... 17748 174...... 16312 1313...... 16316 23 CFR 300...... 17748 180...... 17068 1033...... 15938 Proposed Rules: 36 CFR 50 CFR 1039...... 15938 637...... 17447 17...... 16284 Proposed Rules: 1042...... 15938 622...... 15617 261...... 15641 1065...... 15938 24 CFR 679...... 15848 1068...... 15938 92...... 16678 37 CFR Proposed Rules: 234...... 16688 Proposed Rules: 17...... 15857, 16756 41 CFR 202...... 16306 300...... 17071 26 CFR 302-17...... 17410 635...... 16318 1...... 16878 38 CFR Proposed Rules: 648...... 17076, 17085 11...... 16878 4...... 16728 102-38...... 15854 660...... 17469

VerDate Aug 31 2005 23:11 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\09APCU.LOC 09APCU hsrobinson on PROD1PC76 with PROPOSALS3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids iii

REMINDERS Airbus; published 3-5-07 Northeastern United States Wisconsin; comments due The items in this list were Columbia Aircraft fisheries— by 4-16-07; published 3- editorially compiled as an aid Manufacturing; published Monkfish; comments due 16-07 [FR E7-04771] to Federal Register users. 4-3-07 by 4-19-07; published Hazardous waste program Inclusion or exclusion from Eurocopter Deutschland 3-20-07 [FR E7-05051] authorizations: this list has no legal GmbH; published 3-23-07 West Coast States and Vermont; comments due by significance. General Electric Co.; Western Pacific 4-16-07; published 3-16- published 3-5-07 fisheries— 07 [FR E7-04774] McDonnell Douglas; Bigeye and yellowfin tuna; Toxic substances: RULES GOING INTO published 3-5-07 EFFECT APRIL 9, 2007 comments due by 4-16- Lead; renovation, repair, Mooney Airplance Co., Inc.; 07; published 2-15-07 and painting program; published 3-5-07 [FR E7-02677] hazard exposure EDUCATION DEPARTMENT SOCATA - Groupe COMMERCE DEPARTMENT reduction; studies Innovation and improvement: AEROSPATIALE; availability; comments due Patent and Trademark Office Magnet Schools Assistance published 3-5-07 by 4-16-07; published 3- Program; published 3-9-07 Practice and procedure: TRANSPORTATION 16-07 [FR E7-04869] ENVIRONMENTAL DEPARTMENT Trademark cases; filing FEDERAL PROTECTION AGENCY Federal Railroad requests for COMMUNICATIONS Air programs; approval and Administration reconsideration of final COMMISSION promulgation; State plans office actions; Practice and procedure: Television broadcasting: for designated facilities and requirements; comments Emergency Relief Dockets pollutants: due by 4-16-07; published Cable Communications establishment and Florida; published 2-8-07 2-14-07 [FR E7-02519] Policy Act; emergency safety implementation— Air quality implementation DEFENSE DEPARTMENT regulations waiver Local franchising authority plans; approval and petitions handling Army Department promulgation; various decisions; application procedures; published 4-9- Law enforcement and criminal States: filing requirement; 07 investigations: comments due by 4-20- West Virginia; published 2- TREASURY DEPARTMENT 8-07 Law enforcement reporting; 07; published 3-21-07 Alcohol and Tobacco Tax comments due by 4-16- [FR E7-05118] FEDERAL and Trade Bureau 07; published 3-15-07 [FR COMMUNICATIONS FEDERAL TRADE Alcohol; viticultural area E7-04513] COMMISSION COMMISSION designations: Radio stations; table of DEFENSE DEPARTMENT Appliances, consumer; energy Snake River Valley, ID and Federal Acquisition Regulation consumption and water use assignments: OR; published 3-9-07 Texas; published 3-14-07 (FAR): information in labeling and VETERANS AFFAIRS Contractor code of ethics advertising: GENERAL SERVICES DEPARTMENT ADMINISTRATION and business conduct; Appliance labeling rule; Medical benefits: comments due by 4-16- Federal travel: comments due by 4-17- Informed consent; 07; published 2-16-07 [FR 07; published 2-13-07 [FR Relocation income tax designated health care 07-00698] 07-00613] allowance tax tables; professionals; published 3- published 4-9-07 ENERGY DEPARTMENT GENERAL SERVICES 8-07 ADMINISTRATION HEALTH AND HUMAN Federal Energy Regulatory SERVICES DEPARTMENT Commission Federal Acquisition Regulation COMMENTS DUE NEXT (FAR): Food and Drug WEEK Electric utilities (Federal Power Administration Act): Contractor code of ethics Medical devices: Qualifying small power and business conduct; AGENCY FOR comments due by 4-17- Technical amendments; production and INTERNATIONAL 07; published 2-16-07 [FR published 4-9-07 DEVELOPMENT cogeneration facilities; exemptions; comments 07-00698] HOMELAND SECURITY Acquisition regulations: DEPARTMENT due by 4-17-07; published HEALTH AND HUMAN Personal services direct 3-27-07 [FR E7-05285] SERVICES DEPARTMENT Coast Guard contracts; comments due Food and Drug Drawbridge operations: by 4-16-07; published 2- ENVIRONMENTAL Administration New Jersey; published 3-20- 13-07 [FR E7-02311] PROTECTION AGENCY Medical devices: 07 AGRICULTURE Air pollution control: Navigation and navigable DEPARTMENT State operating permits Orthopedic devices— waters: Agricultural Marketing programs— Non-invasive bone growth Technical, organizational Service New Jersey; comments stimulator; reclassification; and conforming Mushroom promotion, due by 4-19-07; comments due by 4-17- amendments; correction; research, and information published 3-20-07 [FR 07; published 1-17-07 published 4-9-07 order; amendment; E7-05026] [FR E7-00476] NATIONAL CREDIT UNION comments due by 4-18-07; Air pollution; standards of ADMINISTRATION published 3-19-07 [FR 07- performance for new HOMELAND SECURITY Credit unions: 01315] stationary sources: DEPARTMENT Share insurance appeals; Walnuts grown in California; Large municipal waste Coast Guard NCUA Board clarification comments due by 4-16-07; combustors; Regattas and marine parades: of enforcement authority; published 3-27-07 [FR E7- reconsideration; comments 7th Annual Escape from published 3-9-07 05312] due by 4-19-07; published Fort Delaware Triathlon; TRANSPORTATION COMMERCE DEPARTMENT 3-20-07 [FR E7-05022] comments due by 4-20- DEPARTMENT National Oceanic and Air quality implementation 07; published 3-21-07 [FR Federal Aviation Atmospheric Administration plans; approval and E7-05144] Administration Fishery conservation and promulgation; various Ocean City Maryland Airworthiness directives: management: States: Offshore Challenge;

VerDate Aug 31 2005 23:11 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\09APCU.LOC 09APCU hsrobinson on PROD1PC76 with PROPOSALS3 iv Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids

comments due by 4-20- Contractor code of ethics TRANSPORTATION Register but may be ordered 07; published 3-21-07 [FR and business conduct; DEPARTMENT in ‘‘slip law’’ (individual E7-05142] comments due by 4-17- Federal Motor Carrier Safety pamphlet) form from the Sail Virginia 2007; 07; published 2-16-07 [FR Administration Superintendent of Documents, comments due by 4-18- 07-00698] Motor vehicle safety U.S. Government Printing 07; published 3-19-07 [FR TRANSPORTATION standards: Office, Washington, DC 20402 E7-04937] DEPARTMENT Parts and accessories (phone, 202–512–1808). The text will also be made HOMELAND SECURITY Federal Aviation necessary for safe available on the Internet from DEPARTMENT Administration operation— GPO Access at http:// Transportation Security Electronic on-board Air carrier certification and www.gpoaccess.gov/plaws/ Administration recorders; hours-of- operations: index.html. Some laws may Agency information collection service compliance; Digital flight data recorders; comments due by 4-18- not yet be available. activities; proposals, filtered flight data; submissions, and approvals; 07; published 1-18-07 comments due by 4-16- [FR 07-00056] H.R. 1129/P.L. 110–16 comments due by 4-16-07; 07; published 2-6-07 [FR published 2-14-07 [FR E7- E7-01834] TRANSPORTATION To provide for the 02552] DEPARTMENT construction, operation, and Airworthiness directives: INTERIOR DEPARTMENT Federal Transit maintenance of an arterial Airbus; comments due by 4- Fish and Wildlife Service Administration road in St. Louis County, 16-07; published 3-15-07 Charter service: Missouri. (Mar. 28, 2007; 121 Endangered and threatened [FR E7-04535] species: Federal financial assistance Stat. 71) Boeing; comments due by Critical habitat recipients; negotiated 4-20-07; published 3-6-07 Last List March 27, 2007 designations— rulemaking [FR E7-03842] Peck’s Cave amphipod recommendations for and Comal Springs British Aerospace; improving unauthorized dryopid beetle and riffle comments due by 4-16- competition; comments Public Laws Electronic beetle; comments due 07; published 3-15-07 [FR due by 4-16-07; published E7-04739] 2-15-07 [FR E7-02715] Notification Service by 4-16-07; published (PENS) 7-17-06 [FR 06-06182] Dornier Luftfahrt GmbH; Peck’s cave amphipod, comments due by 4-16- LIST OF PUBLIC LAWS etc.; comments due by 07; published 3-16-07 [FR PENS is a free electronic mail 4-16-07; published 3-16- E7-04850] This is a continuing list of notification service of newly 07 [FR E7-04802] General Electric Co.; public bills from the current enacted public laws. To Findings on petitions, etc.— comments due by 4-16- session of Congress which subscribe, go to http:// 07; published 2-15-07 [FR have become Federal laws. It Jollyville Plateau listserv.gsa.gov/archives/ E7-02625] may be used in conjunction salamander; comments publaws-l.html due by 4-16-07; Saab; comments due by 4- with ‘‘PLUS’’ (Public Laws Update Service) on 202–741– published 2-13-07 [FR 16-07; published 3-16-07 Note: This service is strictly 6043. This list is also E7-02289] [FR E7-04862] for E-mail notification of new available online at http:// NATIONAL AERONAUTICS Schools and other certificated laws. The text of laws is not www.archives.gov/federal- AND SPACE agencies: available through this service. register/laws.html. ADMINISTRATION Repair stations; comments PENS cannot respond to Federal Acquisition Regulation due by 4-16-07; published The text of laws is not specific inquiries sent to this (FAR): 2-27-07 [FR E7-03331] published in the Federal address.

VerDate Aug 31 2005 23:11 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\09APCU.LOC 09APCU hsrobinson on PROD1PC76 with PROPOSALS3 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids v

CFR CHECKLIST Title Stock Number Price Revision Date *900–End ...... (869–062–00038–3) ...... 50.00 Jan. 1, 2007 This checklist, prepared by the Office of the Federal Register, is 13 ...... (869–060–00039–9) ...... 55.00 Jan. 1, 2006 published weekly. It is arranged in the order of CFR titles, stock 14 Parts: numbers, prices, and revision dates. 1–59 ...... (869–060–00040–2) ...... 63.00 Jan. 1, 2006 An asterisk (*) precedes each entry that has been issued since last 60–139 ...... (869–060–00041–1) ...... 61.00 Jan. 1, 2006 week and which is now available for sale at the Government Printing 140–199 ...... (869–060–00042–9) ...... 30.00 Jan. 1, 2006 Office. 200–1199 ...... (869–060–00043–7) ...... 50.00 Jan. 1, 2006 A checklist of current CFR volumes comprising a complete CFR set, 1200–End ...... (869–062–00044–8) ...... 45.00 Jan. 1, 2007 also appears in the latest issue of the LSA (List of CFR Sections 15 Parts: Affected), which is revised monthly. 0–299 ...... (869–062–00045–6) ...... 40.00 Jan. 1, 2007 The CFR is available free on-line through the Government Printing *300–799 ...... (869–062–00046–4) ...... 60.00 Jan. 1, 2007 Office’s GPO Access Service at http://www.gpoaccess.gov/cfr/ *800–End ...... (869–062–00047–2) ...... 42.00 Jan. 1, 2007 index.html. For information about GPO Access call the GPO User 16 Parts: Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 0–999 ...... (869–060–00048–8) ...... 50.00 Jan. 1, 2006 The annual rate for subscription to all revised paper volumes is *1000–End ...... (869–062–00049–9) ...... 60.00 Jan. 1, 2007 $1389.00 domestic, $555.60 additional for foreign mailing. 17 Parts: Mail orders to the Superintendent of Documents, Attn: New Orders, 1–199 ...... (869–060–00051–8) ...... 50.00 Apr. 1, 2006 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 200–239 ...... (869–060–00052–6) ...... 60.00 Apr. 1, 2006 accompanied by remittance (check, money order, GPO Deposit 240–End ...... (869–060–00053–4) ...... 62.00 Apr. 1, 2006 Account, VISA, Master Card, or Discover). Charge orders may be telephoned to the GPO Order Desk, Monday through Friday, at (202) 18 Parts: 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your 1–399 ...... (869–060–00054–2) ...... 62.00 Apr. 1, 2006 charge orders to (202) 512-2250. 400–End ...... (869–060–00055–1) ...... 26.00 7 Apr. 1, 2006 Title Stock Number Price Revision Date 19 Parts: 1–140 ...... (869–060–00056–9) ...... 61.00 Apr. 1, 2006 1 ...... (869–062–00001–4) ...... 5.00 4 Jan. 1, 2007 141–199 ...... (869–060–00057–7) ...... 58.00 Apr. 1, 2006 2 ...... (869–062–00002–2) ...... 5.00 Jan. 1, 2007 200–End ...... (869–060–00058–5) ...... 31.00 Apr. 1, 2006 3 (2005 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–060–00059–3) ...... 50.00 Apr. 1, 2006 102) ...... (869–060–00003–8) ...... 35.00 1 Jan. 1, 2006 400–499 ...... (869–060–00060–7) ...... 64.00 Apr. 1, 2006 4 ...... (869–062–00004–9) ...... 10.00 5 Jan. 1, 2007 500–End ...... (869–060–00061–5) ...... 63.00 Apr. 1, 2006 5 Parts: 21 Parts: 1–699 ...... (869–062–00005–7) ...... 60.00 Jan. 1, 2007 1–99 ...... (869–060–00062–3) ...... 40.00 Apr. 1, 2006 700–1199 ...... (869–060–00006–2) ...... 50.00 Jan. 1, 2006 100–169 ...... (869–060–00063–1) ...... 49.00 Apr. 1, 2006 1200–End ...... (869–062–00007–3) ...... 61.00 Jan. 1, 2007 170–199 ...... (869–060–00064–0) ...... 50.00 Apr. 1, 2006 200–299 ...... (869–060–00065–8) ...... 17.00 Apr. 1, 2006 6 ...... (869–060–00008–9) ...... 10.50 Jan. 1, 2006 300–499 ...... (869–060–00066–6) ...... 30.00 Apr. 1, 2006 7 Parts: 500–599 ...... (869–060–00067–4) ...... 47.00 Apr. 1, 2006 1–26 ...... (869–062–00009–0) ...... 44.00 Jan. 1, 2007 600–799 ...... (869–060–00068–2) ...... 15.00 Apr. 1, 2006 27–52 ...... (869–062–00010–3) ...... 49.00 Jan. 1, 2007 800–1299 ...... (869–060–00069–1) ...... 60.00 Apr. 1, 2006 53–209 ...... (869–062–00011–1) ...... 37.00 Jan. 1, 2007 1300–End ...... (869–060–00070–4) ...... 25.00 Apr. 1, 2006 210–299 ...... (869–060–00012–7) ...... 62.00 Jan. 1, 2006 22 Parts: 300–399 ...... (869–062–00013–8) ...... 46.00 Jan. 1, 2007 1–299 ...... (869–060–00071–2) ...... 63.00 Apr. 1, 2006 400–699 ...... (869–062–00014–6) ...... 42.00 Jan. 1, 2007 300–End ...... (869–060–00072–1) ...... 45.00 8 Apr. 1, 2006 700–899 ...... (869–062–00015–4) ...... 43.00 Jan. 1, 2007 900–999 ...... (869–062–00016–2) ...... 60.00 Jan. 1, 2007 23 ...... (869–060–00073–9) ...... 45.00 Apr. 1, 2006 1000–1199 ...... (869–062–00017–1) ...... 22.00 Jan. 1, 2007 24 Parts: 1200–1599 ...... (869–060–00018–6) ...... 61.00 Jan. 1, 2006 0–199 ...... (869–060–00074–7) ...... 60.00 Apr. 1, 2006 *1600–1899 ...... (869–062–00019–7) ...... 64.00 Jan. 1, 2007 200–499 ...... (869–060–00075–5) ...... 50.00 Apr. 1, 2006 1900–1939 ...... (869–062–00020–1) ...... 31.00 Jan. 1, 2007 500–699 ...... (869–060–00076–3) ...... 30.00 Apr. 1, 2006 1940–1949 ...... (869–062–00021–9) ...... 50.00 5 Jan. 1, 2007 700–1699 ...... (869–060–00077–1) ...... 61.00 Apr. 1, 2006 1950–1999 ...... (869–062–00022–7) ...... 46.00 Jan. 1, 2007 1700–End ...... (869–060–00078–0) ...... 30.00 Apr. 1, 2006 2000–End ...... (869–062–00023–5) ...... 50.00 Jan. 1, 2007 25 ...... (869–060–00079–8) ...... 64.00 Apr. 1, 2006 8 ...... (869–060–00024–1) ...... 63.00 Jan. 1, 2006 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–060–00080–1) ...... 49.00 Apr. 1, 2006 1–199 ...... (869–062–00025–1) ...... 61.00 Jan. 1, 2007 §§ 1.61–1.169 ...... (869–060–00081–0) ...... 63.00 Apr. 1, 2006 200–End ...... (869–062–00026–0) ...... 58.00 Jan. 1, 2007 §§ 1.170–1.300 ...... (869–060–00082–8) ...... 60.00 Apr. 1, 2006 10 Parts: §§ 1.301–1.400 ...... (869–060–00083–6) ...... 47.00 Apr. 1, 2006 1–50 ...... (869–062–00027–8) ...... 61.00 Jan. 1, 2007 §§ 1.401–1.440 ...... (869–060–00084–4) ...... 56.00 Apr. 1, 2006 51–199 ...... (869–060–00028–3) ...... 58.00 Jan. 1, 2006 §§ 1.441–1.500 ...... (869–060–00085–2) ...... 58.00 Apr. 1, 2006 200–499 ...... (869–060–00029–1) ...... 46.00 Jan. 1, 2006 §§ 1.501–1.640 ...... (869–060–00086–1) ...... 49.00 Apr. 1, 2006 500–End ...... (869–066–00030–8) ...... 62.00 Jan. 1, 2007 §§ 1.641–1.850 ...... (869–060–00087–9) ...... 61.00 Apr. 1, 2006 §§ 1.851–1.907 ...... (869–060–00088–7) ...... 61.00 Apr. 1, 2006 11 ...... (869–062–00031–6) 41.00 Jan. 1, 2007 §§ 1.908–1.1000 ...... (869–060–00089–5) ...... 60.00 Apr. 1, 2006 12 Parts: §§ 1.1001–1.1400 ...... (869–060–00090–9) ...... 61.00 Apr. 1, 2006 1–199 ...... (869–062–00032–4) ...... 34.00 Jan. 1, 2007 §§ 1.1401–1.1550 ...... (869–060–00091–2) ...... 58.00 Apr. 1, 2006 200–219 ...... (869–062–00033–2) ...... 37.00 Jan. 1, 2007 §§ 1.1551–End ...... (869–060–00092–5) ...... 50.00 Apr. 1, 2006 220–299 ...... (869–062–00034–1) ...... 61.00 Jan. 1, 2007 2–29 ...... (869–060–00093–3) ...... 60.00 Apr. 1, 2006 300–499 ...... (869–062–00035–9) ...... 47.00 Jan. 1, 2007 30–39 ...... (869–060–00094–1) ...... 41.00 Apr. 1, 2006 500–599 ...... (869–062–00036–7) ...... 39.00 Jan. 1, 2007 40–49 ...... (869–060–00095–0) ...... 28.00 Apr. 1, 2006 *600–899 ...... (869–062–00037–5) ...... 56.00 Jan. 1, 2007 50–299 ...... (869–060–00096–8) ...... 42.00 Apr. 1, 2006

VerDate Aug 31 2005 23:12 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4721 Sfmt 4721 E:\FR\FM\09APCL.LOC 09APCL hsrobinson on PROD1PC76 with PROPOSALS2 vi Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids

Title Stock Number Price Revision Date Title Stock Number Price Revision Date 300–499 ...... (869–060–00097–6) ...... 61.00 Apr. 1, 2006 63 (63.6580–63.8830) .... (869–060–00150–6) ...... 32.00 July 1, 2006 500–599 ...... (869–060–00098–4) ...... 12.00 6 Apr. 1, 2006 63 (63.8980–End) ...... (869–060–00151–4) ...... 35.00 July 1, 2006 600–End ...... (869–060–00099–2) ...... 17.00 Apr. 1, 2006 64–71 ...... (869–060–00152–2) ...... 29.00 July 1, 2006 27 Parts: 72–80 ...... (869–060–00153–1) ...... 62.00 July 1, 2006 1–399 ...... (869–060–00100–0) ...... 64.00 Apr. 1, 2006 81–85 ...... (869–060–00154–9) ...... 60.00 July 1, 2006 400–End ...... (869–060–00101–8) ...... 18.00 Apr. 1, 2006 86 (86.1–86.599–99) ...... (869–060–00155–7) ...... 58.00 July 1, 2006 86 (86.600–1–End) ...... (869–060–00156–5) ...... 50.00 July 1, 2006 28 Parts: ...... 87–99 ...... (869–060–00157–3) ...... 60.00 July 1, 2006 0–42 ...... (869–060–00102–6) ...... 61.00 July 1, 2006 100–135 ...... (869–060–00158–1) ...... 45.00 July 1, 2006 43–End ...... (869–060–00103–4) ...... 60.00 July 1, 2006 136–149 ...... (869–060–00159–0) ...... 61.00 July 1, 2006 29 Parts: 150–189 ...... (869–060–00160–3) ...... 50.00 July 1, 2006 0–99 ...... (869–060–00104–2) ...... 50.00 July 1, 2006 190–259 ...... (869–060–00161–1) ...... 39.00 July 1, 2006 100–499 ...... (869–060–00105–1) ...... 23.00 July 1, 2006 260–265 ...... (869–060–00162–0) ...... 50.00 July 1, 2006 500–899 ...... (869–060–00106–9) ...... 61.00 July 1, 2006 266–299 ...... (869–060–00163–8) ...... 50.00 July 1, 2006 900–1899 ...... (869–060–00107–7) ...... 36.00 July 1, 2006 300–399 ...... (869–060–00164–6) ...... 42.00 July 1, 2006 1900–1910 (§§ 1900 to 400–424 ...... (869–060–00165–4) ...... 56.00 July 1, 2006 1910.999) ...... (869–060–00108–5) ...... 61.00 July 1, 2006 425–699 ...... (869–060–00166–2) ...... 61.00 July 1, 2006 1910 (§§ 1910.1000 to 700–789 ...... (869–060–00167–1) ...... 61.00 July 1, 2006 end) ...... (869–060–00109–3) ...... 46.00 July 1, 2006 790–End ...... (869–060–00168–9) ...... 61.00 July 1, 2006 1911–1925 ...... (869–060–00110–7) ...... 30.00 July 1, 2006 41 Chapters: 1926 ...... (869–060–00111–5) ...... 50.00 July 1, 2006 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1927–End ...... (869–060–00112–3) ...... 62.00 July 1, 2006 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 30 Parts: 3–6 ...... 14.00 3 July 1, 1984 1–199 ...... (869–060–00113–1) ...... 57.00 July 1, 2006 7 ...... 6.00 3 July 1, 1984 200–699 ...... (869–060–00114–0) ...... 50.00 July 1, 2006 8 ...... 4.50 3 July 1, 1984 700–End ...... (869–060–00115–8) ...... 58.00 July 1, 2006 9 ...... 13.00 3 July 1, 1984 10–17 ...... 9.50 3 July 1, 1984 31 Parts: 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 0–199 ...... (869–060–00116–6) ...... 41.00 July 1, 2006 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 200–499 ...... (869–060–00117–4) ...... 46.00 July 1, 2006 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 500–End ...... (869–060–00118–2) ...... 62.00 July 1, 2006 19–100 ...... 13.00 3 July 1, 1984 32 Parts: 1–100 ...... (869–060–00169–7) ...... 24.00 July 1, 2006 1–39, Vol. I ...... 15.00 2 July 1, 1984 101 ...... (869–060–00170–1) ...... 21.00 9 July 1, 2006 1–39, Vol. II ...... 19.00 2 July 1, 1984 102–200 ...... (869–060–00171–9) ...... 56.00 July 1, 2006 1–39, Vol. III ...... 18.00 2 July 1, 1984 201–End ...... (869–060–00172–7) ...... 24.00 July 1, 2006 ...... 1–190 (869–060–00119–1) 61.00 July 1, 2006 42 Parts: 191–399 ...... (869–060–00120–4) ...... 63.00 July 1, 2006 1–399 ...... (869–060–00173–5) ...... 61.00 Oct. 1, 2006 400–629 ...... (869–060–00121–2) ...... 50.00 July 1, 2006 400–413 ...... (869–060–00174–3) ...... 32.00 Oct. 1, 2006 630–699 ...... (869–060–00122–1) ...... 37.00 July 1, 2006 414–429 ...... (869–060–00175–1) ...... 32.00 Oct. 1, 2006 700–799 ...... (869–060–00123–9) ...... 46.00 July 1, 2006 430–End ...... (869–060–00176–0) ...... 64.00 Oct. 1, 2006 800–End ...... (869–060–00124–7) ...... 47.00 July 1, 2006 43 Parts: 33 Parts: 1–999 ...... (869–060–00177–8) ...... 56.00 Oct. 1, 2006 1–124 ...... (869–060–00125–5) ...... 57.00 July 1, 2006 1000–end ...... (869–060–00178–6) ...... 62.00 Oct. 1, 2006 125–199 ...... (869–060–00126–3) ...... 61.00 July 1, 2006 200–End ...... (869–060–00127–1) ...... 57.00 July 1, 2006 44 ...... (869–060–00179–4) ...... 50.00 Oct. 1, 2006 34 Parts: 45 Parts: 1–299 ...... (869–060–00128–0) ...... 50.00 July 1, 2006 1–199 ...... (869–060–00180–8) ...... 60.00 Oct. 1, 2006 300–399 ...... (869–060–00129–8) ...... 40.00 July 1, 2006 200–499 ...... (869–060–00181–6) ...... 34.00 Oct. 1, 2006 400–End & 35 ...... (869–060–00130–1) ...... 61.00 9 July 1, 2006 500–1199 ...... (869–060–00182–4) ...... 56.00 Oct. 1, 2006 1200–End ...... (869–060–00183–2) ...... 61.00 Oct. 1, 2006 36 Parts: 1–199 ...... (869–060–00131–0) ...... 37.00 July 1, 2006 46 Parts: 200–299 ...... (869–060–00132–8) ...... 37.00 July 1, 2006 1–40 ...... (869–060–00184–1) ...... 46.00 Oct. 1, 2006 300–End ...... (869–060–00133–6) ...... 61.00 July 1, 2006 41–69 ...... (869–060–00185–9) ...... 39.00 Oct. 1, 2006 70–89 ...... (869–060–00186–7) ...... 14.00 Oct. 1, 2006 37 ...... (869–060–00134–4) ...... 58.00 July 1, 2006 90–139 ...... (869–060–00187–5) ...... 44.00 Oct. 1, 2006 38 Parts: 140–155 ...... (869–060–00188–3) ...... 25.00 Oct. 1, 2006 0–17 ...... (869–060–00135–2) ...... 60.00 July 1, 2006 156–165 ...... (869–060–00189–1) ...... 34.00 Oct. 1, 2006 18–End ...... (869–060–00136–1) ...... 62.00 July 1, 2006 166–199 ...... (869–060–00190–5) ...... 46.00 Oct. 1, 2006 ...... 39 ...... (869–060–00137–9) ...... 42.00 July 1, 2006 200–499 (869–060–00191–3) 40.00 Oct. 1, 2006 500–End ...... (869–060–00192–1) ...... 25.00 Oct. 1, 2006 40 Parts: 47 Parts: 1–49 ...... (869–060–00138–7) ...... 60.00 July 1, 2006 ...... 50–51 ...... (869–060–00139–5) ...... 45.00 July 1, 2006 0–19 (869–060–00193–0) 61.00 Oct. 1, 2006 ...... 52 (52.01–52.1018) ...... (869–060–00140–9) ...... 60.00 July 1, 2006 20–39 (869–060–00194–8) 46.00 Oct. 1, 2006 ...... 52 (52.1019–End) ...... (869–060–00141–7) ...... 61.00 July 1, 2006 40–69 (869–060–00195–6) 40.00 Oct. 1, 2006 ...... 53–59 ...... (869–060–00142–5) ...... 31.00 July 1, 2006 70–79 (869–060–00196–4) 61.00 Oct. 1, 2006 ...... 60 (60.1–End) ...... (869–060–00143–3) ...... 58.00 July 1, 2006 80–End (869–060–00197–2) 61.00 Oct. 1, 2006 60 (Apps) ...... (869–060–00144–7) ...... 57.00 July 1, 2006 48 Chapters: 61–62 ...... (869–060–00145–0) ...... 45.00 July 1, 2006 1 (Parts 1–51) ...... (869–060–00198–1) ...... 63.00 Oct. 1, 2006 63 (63.1–63.599) ...... (869–060–00146–8) ...... 58.00 July 1, 2006 1 (Parts 52–99) ...... (869–060–00199–9) ...... 49.00 Oct. 1, 2006 63 (63.600–63.1199) ...... (869–060–00147–6) ...... 50.00 July 1, 2006 2 (Parts 201–299) ...... (869–060–00200–6) ...... 50.00 Oct. 1, 2006 63 (63.1200–63.1439) .... (869–060–00148–4) ...... 50.00 July 1, 2006 3–6 ...... (869–060–00201–4) ...... 34.00 Oct. 1, 2006 63 (63.1440–63.6175) .... (869–060–00149–2) ...... 32.00 July 1, 2006 7–14 ...... (869–060–00202–2) ...... 56.00 Oct. 1, 2006

VerDate Aug 31 2005 23:12 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4721 Sfmt 4721 E:\FR\FM\09APCL.LOC 09APCL hsrobinson on PROD1PC76 with PROPOSALS2 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Reader Aids vii

Title Stock Number Price Revision Date 15–28 ...... (869–060–00203–1) ...... 47.00 Oct. 1, 2006 29–End ...... (869–060–00204–9) ...... 47.00 Oct. 1, 2006 49 Parts: 1–99 ...... (869–060–00205–7) ...... 60.00 Oct. 1, 2006 100–185 ...... (869–060–00206–5) ...... 63.00 Oct. 1, 2006 186–199 ...... (869–060–00207–3) ...... 23.00 Oct. 1, 2006 200–299 ...... (869–060–00208–1) ...... 32.00 Oct. 1, 2006 300–399 ...... (869–060–00209–0) ...... 32.00 Oct. 1, 2006 400–599 ...... (869–060–00210–3) ...... 64.00 Oct. 1, 2006 600–999 ...... (869–060–00211–1) ...... 19.00 Oct. 1, 2006 1000–1199 ...... (869–060–00212–0) ...... 28.00 Oct. 1, 2006 1200–End ...... (869–060–00213–8) ...... 34.00 Oct. 1, 2006 50 Parts: 1–16 ...... (869–060–00214–6) ...... 11.00 10 Oct. 1, 2006 17.1–17.95(b) ...... (869–060–00215–4) ...... 32.00 Oct. 1, 2006 17.95(c)–end ...... (869–060–00216–2) ...... 32.00 Oct. 1, 2006 17.96–17.99(h) ...... (869–060–00217–1) ...... 61.00 Oct. 1, 2006 17.99(i)–end and 17.100–end ...... (869–060–00218–9) ...... 47.00 10 Oct. 1, 2006 18–199 ...... (869–060–00219–7) ...... 50.00 Oct. 1, 2006 200–599 ...... (869–060–00220–1) ...... 45.00 Oct. 1, 2006 600–659 ...... (869–060–00221–9) ...... 31.00 Oct. 1, 2006 660–End ...... (869–060–00222–7) ...... 31.00 Oct. 1, 2006 CFR Index and Findings Aids ...... (869–060–00050–0) ...... 62.00 Jan. 1, 2006 Complete 2007 CFR set ...... 1,389.00 2007 Microfiche CFR Edition: Subscription (mailed as issued) ...... 332.00 2007 Individual copies ...... 4.00 2007 Complete set (one-time mailing) ...... 332.00 2006 Complete set (one-time mailing) ...... 325.00 2005 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2005, through January 1, 2006. The CFR volume issued as of January 1, 2005 should be retained. 5 No amendments to this volume were promulgated during the period January 1, 2006, through January 1, 2007. The CFR volume issued as of January 6, 2006 should be retained. 6 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2006. The CFR volume issued as of April 1, 2000 should be retained. 7 No amendments to this volume were promulgated during the period April 1, 2005, through April 1, 2006. The CFR volume issued as of April 1, 2004 should be retained. 8 No amendments to this volume were promulgated during the period April 1, 2005, through April 1, 2006. The CFR volume issued as of April 1, 2005 should be retained. 9 No amendments to this volume were promulgated during the period July 1, 2005, through July 1, 2006. The CFR volume issued as of July 1, 2005 should be retained. 10 No amendments to this volume were promulgated during the period October 1, 2005, through October 1, 2006. The CFR volume issued as of October 1, 2005 should be retained.

VerDate Aug 31 2005 23:12 Apr 06, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4721 Sfmt 4721 E:\FR\FM\09APCL.LOC 09APCL hsrobinson on PROD1PC76 with PROPOSALS2