Notices. Proposed rule; reopening of comment period

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BILLING CODE 4910-62-P 71 104 Wednesday, May 31, 2006 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 330 9 CFR Part 94 [Docket No. 05-002-3] Interstate Movement of Garbage From Hawaii; Municipal Solid Waste AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule; reopening of comment period. SUMMARY: We are reopening the comment period for our proposed rule that would amend the regulations pertaining to certain garbage to provide for the interstate movement of garbage from Hawaii subject to measures designed to protect against the dissemination of plant pests into noninfested areas of the continental United States.

This action will allow interested persons additional time to prepare and submit comments. DATES: We will consider all comments that we receive on or before June 5, 2006. ADDRESSES: You may submit comments by either of the following methods: Federal eRulemaking Portal: Go to *http://www.regulations.gov* and, in the lower “Search Regulations and Federal Actions” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2005-0047 to submit or view public comments and to view supporting and related materials available electronically.

Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 05-002-2, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 05-002-2. *Reading Room:* You may read any comments that we receive on Docket No. 05-002-2 in our reading room.

The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Ms. Shannon Hamm, Assistant Deputy Administrator, Policy and Program Development, APHIS, 4700 River Road Unit 20, Riverdale, MD 20737-1231;

(301)734-4957. SUPPLEMENTARY INFORMATION: On April 19, 2006, we published in the **Federal Register** (71 FR 20030-20041, Docket No. 05-002-2) a proposal to amend the regulations pertaining to certain garbage to provide for the interstate movement of garbage from Hawaii subject to measures designed to protect against the dissemination of plant pests into noninfested areas of the continental United States. Comments on the proposed rule were required to be received on or before May 19, 2006. We are reopening the comment period on Docket No. 05-002-2 until June 5, 2006. This action will allow interested persons additional time to prepare and submit comments. We will also consider all comments received between May 19, 2006, and the date of this notice. Authority: 7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, 371.3, and 371.4. Done in Washington, DC, this 25th day of May 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-8455 Filed 5-30-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 430 [Docket No. EE-2006-STD-0131] RIN 1904-AA92 Energy Conservation Standards for General Service Fluorescent Lamps, Incandescent Reflector Lamps, and General Service Incandescent Lamps: Public Meeting and Availability of the Framework Document AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of public meeting and availability of the Framework Document. SUMMARY: The Department of Energy (DOE or Department) will hold an informal public meeting to discuss and receive comments on issues it will address in this rulemaking proceeding. The Department is initiating the rulemaking process to amend energy conservation standards for general service fluorescent lamps, incandescent reflector lamps, and general service incandescent lamps. The Department also encourages written comments on these subjects. To inform stakeholders and facilitate this process, DOE has prepared a Framework Document, a draft of which is available at: *http://www.eere.energy.gov/buildings/appliance_standards/.* DATES: The Department will hold a public meeting on Thursday, June 15, 2006, from 9 a.m. to 5 p.m. in Washington, DC. Any person requesting to speak at the public meeting should submit a request to speak before 4 p.m., Thursday, June 8, 2006. The Department must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Thursday, June 8, 2006. Written comments are welcome, especially following the public meeting, and should be submitted by Thursday, June 29, 2006. ADDRESSES: The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW., Washington, DC 20585-0121. (Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures. If a foreign national wishes to participate in the workshop, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards-Jones at

(202)586-2945 so that the necessary procedures can be completed.) Stakeholders may submit comments, identified by docket number EE-2006-STD-0131 and/or RIN number 1904-AA92, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • E-mail: *fluorescent_and_incandescent_lamps.rulemaking@ee.doe.gov.* Include EE-2006-STD-0131 and/or RIN 1904-AA92 in the subject line of the message. • Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Framework Document for Fluorescent and Incandescent Lamps, EE-2006-STD-0131 and/or RIN 1904-AA92, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Please submit one signed paper original. • Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-2945. Please submit one signed paper original. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number

(RIN)for this rulemaking. *Docket:* For access to the docket to read background documents, a copy of the transcript of the public meeting, or comments received, go to the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC 20585-0121,

(202)586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information regarding visiting the Resource Room. FOR FURTHER INFORMATION CONTACT: Linda Graves, Esq., U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121,

(202)586-1851. E-mail: *linda.graves@ee.doe.gov.* Thomas B. DePriest, Esq., U.S. Department of Energy, Office of General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0121,

(202)586-9507. E-mail: *Thomas.DePriest@hq.doe.gov.* SUPPLEMENTARY INFORMATION: The Energy Policy and Conservation Act (EPCA or the Act) of 1975 (42 U.S.C. 6291-6309) established an energy conservation program for major household appliances. The National Energy Conservation Policy Act of 1978 (NECPA) amended EPCA to add Part C of Title III (42 U.S.C. 6311-6317), which established an energy conservation program for certain industrial equipment. Additional amendments to EPCA have given DOE the authority to regulate the energy efficiency of several products, including certain fluorescent and incandescent lamps, the products that are the focus of this rulemaking. Amendments to EPCA in the Energy Policy Act of 1992 (EPACT 1992), Public Law 102-486, established energy conservation standards for residential, commercial and industrial general service fluorescent lamps and incandescent reflector lamps, as well as requirements to conduct two cycles of rulemakings for determining whether these standards should be amended. 1 (42 U.S.C. 6295(i)(1), (3)-(4)) In addition, EPCA provides that within twenty-four months after the Federal Trade Commission's

(FTC)labeling requirements have become effective for general service fluorescent lamps and general service incandescent lamps, DOE must initiate a rulemaking to determine if the standards in effect for such lamps should be amended so that they would be applicable to additional general service fluorescent and general service incandescent lamps. (42 U.S.C. 6295(i)(5)) Furthermore, according to EPCA, DOE must publish a rule within eighteen months of initiating the rulemaking. (Id.) The FTC published its labeling requirements for covered lamps on May 13, 1994, which had an effective date of May 15, 1995. 59 FR 25176. Previously, the Department did not take action on the requirements of 42 U.S.C. 6295(i) because lamps were assigned low priority based on public comment and potential energy savings estimates in the priority setting process. 2 1 Although EPACT 1992 placed regulatory authority, standards, and definitions for fluorescent and incandescent lamps under the energy conservation program for consumer products (42 U.S.C. 6291-6309), those provisions also apply to general service fluorescent and incandescent reflector lamps distributed for commercial use. (42 U.S.C. 6291(1)). 2 See Appendix B to FY 2005 Preliminary Priority-Setting Summary Report on the DOE Web page at: *http://www.eere.energy.gov/buildings/appliance_standards/priority_setting.html.* Section 1.2 of the Framework Document provides detail on the distinction between fluorescent lamps and general service fluorescent lamps, and the differences among incandescent lamps, incandescent reflector lamps and general service incandescent lamps. The following paragraphs discuss the statutory requirements and actions that DOE is taking for each of the lamp types covered in this rulemaking. 3 3 This rulemaking addresses “backlog” rulemakings for incandescent general service lamps, fluorescent lamps, and incandescent reflector lamps that are identified in the report that DOE submitted to Congress on January 31, 2006, Energy Conservation Standards Activities, pursuant to section 141 of the Energy Policy Act of 2005 (Pub. L. 109-58) and to the Conference Report (109-275) to the Fiscal Year 2006, Energy and Water Development Appropriations Act. The report is available as a PDF file on the DOE Web page at: *http://www.eere.energy.gov/buildings/appliance_standards/2006_schedule_setting.html.* EPCA's standards for general service fluorescent lamps require that they meet prescribed minimum efficacy levels per given color rendering index

(CRI)levels. 4 In this rulemaking, DOE is conducting its first review, pursuant to 42 U.S.C. 6295(i)(3), to determine if these standards should be amended, while fulfilling the additional requirement, in 42 U.S.C. 6295(i)(5), to determine if the standards should be applicable to additional general service fluorescent lamps. 4 The Act defines “lamp efficacy” as “the lumen output of a lamp divided by its wattage, expressed in lumens per watt (LPW).” (42 U.S.C. 6291(30)(M)) It defines “color rendering index”

(CRI)as “the measure of the degree of color shift objects undergo when illuminated by a light source as compared with the color of those same objects when illuminated by a reference source of comparable color temperature.” (42 U.S.C. 6291(30)(J)). As with general service fluorescent lamps, EPCA establishes energy conservation standards for incandescent reflector lamps, requiring that certain lamps meet prescribed efficacy levels. In this rulemaking, the Department is conducting its first review, pursuant to 42 U.S.C. 6295(i)(3), to determine if the standards should be amended. The Department is also fulfilling the additional requirement in 42 U.S.C. 6295(i)(5) to determine whether the standards should cover additional general service incandescent lamps, including additional incandescent reflector lamps. To begin the required rulemaking process, the Department prepared the Framework Document to present the issues and explain the analyses and process it anticipates using to amend the energy conservation standards for general service fluorescent lamps, incandescent reflector lamps, and general service incandescent lamps. The focus of the public meeting will be to discuss the analyses and issues identified in various sections of the Framework Document. During the Department's presentation to stakeholders, the Department will discuss each item listed in the Framework Document as an issue for comment. The Department will also make a brief presentation on the rulemaking process for these products. The Department encourages those who wish to participate in the public meeting to obtain the Framework Document and be prepared to discuss its contents. A copy of the draft Framework Document is available at: *http://www.eere.energy.gov/buildings/appliance_standards/.* However, public meeting participants need not limit their discussions to the topics in the Framework Document. The Department is also interested in receiving views concerning other relevant issues that participants believe would affect energy conservation standards for these products. The Department also welcomes all interested parties, whether or not they participate in the public meeting, to submit in writing by Thursday, June 29, 2006, comments and information on the matters addressed in the Framework Document and on other matters relevant to consideration of standards for these lamps. The public meeting will be conducted in an informal, facilitated, conference style. A court reporter will be present to prepare a transcript of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by the U.S. antitrust laws. After the public meeting and the expiration of the period for submitting written statements, the Department will begin collecting data, conducting the analyses as discussed at the public meeting, and reviewing the comments received. Anyone who would like to participate in the public meeting, receive meeting materials, or be added to the DOE mailing list to receive future notices and information regarding fluorescent and incandescent lamps, should contact Ms. Brenda Edwards-Jones at

(202)586-2945. Issued in Washington, DC, on May 24, 2006. Douglas L. Faulkner, Principal Deputy Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. E6-8356 Filed 5-30-06; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF COMMERCE International Trade Administration 15 CFR Part 360 [Docket Number: 060316072-6072-01] RIN: 0625-AA70 Mexican Cement Import Licensing System AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Proposed rule and request for public comment. SUMMARY: The Department of Commerce (Commerce) requests public comment on a proposed rule to establish a Mexican Cement Import Licensing System in accordance with the Agreement Between the Office of the United States Trade Representative and the Department of Commerce of the United States of America and the Ministry of Economy of the United Mexican States (Secretaria de Economia) on Trade in Cement (Agreement), dated March 6, 2006. This cement licensing system is intended to enable Commerce to monitor the sub-regional export limits established by the Agreement for the three year duration of the Agreement. DATES: Written comments must be received on or before 5 p.m., Eastern daylight savings time on June 30, 2006. ADDRESSES: Written comments should be sent to Jonathan Herzog, Senior International Trade Policy Analyst, Import Administration, Room 1870, Department of Commerce, 14th and Constitution Ave., NW., Washington, DC 20230. FOR FURTHER INFORMATION CONTACT: Sally C. Gannon

(202)482-0162; Judith Wey Rudman

(202)482-0192; or Jonathan Herzog

(202)482-4271. SUPPLEMENTARY INFORMATION: On March 6, 2006, the Office of the United States Trade Representative (USTR), Commerce, and Secretaria de Economia signed a bilateral agreement concerning trade in cement between the United States and Mexico. A copy of the Agreement is available on the Commerce Web site: *http://www.ia.ita.doc.gov/download/mexico-cement/cement-final-agreement.pdf.* This Agreement settles ongoing litigation before the North American Free Trade Agreement (NAFTA) and World Trade Organization

(WTO)dispute resolution panels, and provides for export limits for three years. This Agreement applies only to cement from Mexico as defined in Section I.L. of the Agreement. The Agreement provides that Commerce shall establish an import licensing system in order to implement the terms of this Agreement. Consistent with Reorganization Plan No. 5 of 1950, effective May 24 (1950 15 FR 3174, 64 Stat. 1263), the Secretary of Commerce has delegated the authority for establishing and operating such a system, as provided under 13 U.S.C. 301(a) and 302, to the International Trade Administration

(ITA)under Delegation of Authority 10-3. In order to implement this authority, ITA is today publishing this proposed rule and request for comment to establish an internet-based cement licensing system called the Mexican Cement Import Licensing System. The Mexican Cement Import Licensing System is designed to allow Commerce to gain all of the real-time information it needs to meet its obligations under this important bilateral trade agreement with Mexico. The system would be comprised of two parts:

(1)An online registration system for cement importers; and

(2)An automatic cement license issuance system. All importers of cement products from Mexico would be required to obtain an import license and provide that license number to U.S. Customs and Border Protection

(CBP)on the entry summary (CBP Form 7501). In addition to the standard information required to be reported on CBP Form 7501, the Mexican Cement Import License application will require the importer of record to report the Sub-region of Final Destination, the Final Destination, and the Mexican Export License Number, and to state whether the shipment is being made for disaster relief, as defined in the Agreement. The information gathered by the Mexican Cement Import Licensing System will provide Commerce with specific, reliable, and real-time data which will be used to monitor imports pursuant to the Agreement. The Agreement is complex and involves sub-regional export limits which are in effect for a maximum of three years. Without access to import data on a real-time basis through the Mexican Cement Import Licensing System, Commerce will not be able to effectively monitor and administer the Agreement. If an allegation of circumvention of the Agreement is raised, Commerce may be required to conduct an accelerated changed circumstances review within 90 days. Currently, it can take up to 60 days to obtain from CBP and the Bureau of the Census the information necessary to determine whether Commerce needs to conduct such a review. In addition, certain of the information required by Commerce is not available from CBP ( *i.e.* , sub-region of final destination, statement of use for the purposes of disaster relief, and Mexican Export License number). To ensure that Commerce has the ability to fully monitor imports pursuant to this Agreement and to enable Commerce to make a timely determination as to whether a changed circumstances review is appropriate, it is necessary to have access to real-time information on imports of Mexican cement. Therefore, due to the relatively short duration of the Agreement, the level of detail of the monitoring requirements, and Commerce's obligations under the terms of the Agreement, it is essential that Commerce implement the Mexican Cement Import Licensing System. Mexican Cement Import Licensing System The Mexican Cement Import Licensing System would include both the online registration system for importers and the automatic cement import license issuance system. In order to obtain a cement import license, an importer, or the importer's agent or customs broker, must first register with Commerce and be assigned a user identification number. This identification number would be required to log on to the cement import license issuance system. A single user identification number would be issued to an importing company or brokerage house. Operating units within the company ( *e.g.* , individual branches, divisions or employees) would all use the same user identification code. The cement import license issuance system would be designed to allow multiple users of a single identification number from different locations within the company to enter information simultaneously. Any company or broker with a United States address may register and obtain a user identification number. There is no fee to register and a user identification number would be issued within two

(2)business days. As part of the registration process, the importer, agent or customs broker would be required to provide certain general information. Such information would include the applicant company name, Employer Identification Number

(EIN)or the CBP ID number (where no EIN is available), address, phone number, contact information and e-mail address for both the company headquarters and any branch offices that would be applying for cement import licenses. This information would be used solely for the purposes of administering the Mexican Cement Import Licensing System. The information would not be released by Commerce, except as permitted by U.S. law. Commerce would begin registering and issuing user identification numbers at least one week prior to the implementation date of the Mexican Cement Import Licensing System. The user ID would be needed to apply for the license. Cement import licenses would be issued to registered importers, customs brokers or their agents through an automatic Mexican Cement Import Licensing System. The separately-issued user identification number discussed above would be required to access the system. There would be no fee charged to apply for the import licenses. Cement import licenses would be issued automatically after the completion of the application form. In order to obtain a license, the applicant must report the following information about the cement import transaction:

(1)Applicant company name and address;

(2)Applicant contact name, phone number, fax number and e-mail address;

(3)Importer name;

(4)Exporter name;

(5)Manufacturer name;

(6)Country of origin;

(7)Country of exportation;

(8)Expected date of export;

(9)Expected date of import;

(10)Expected port of entry;

(11)*Sub-Region of Final Destination:* Indicate the Sub-region where either the Mexican Cement will be consumed by an affiliated company to make concrete or concrete products or the Sub-region of the first unaffiliated purchaser of the Mexican Cement.

(12)*Final Destination:* Indicate the complete name and address (including county) of either the affiliated company that will consume the Mexican Cement or the first unaffiliated purchaser of the Mexican Cement. If either is not known when the Import License is applied for, indicate the address (including county) where the Mexican Cement will be siloed/warehoused until the time of shipment to the first unaffiliated purchaser.

(13)CBP entry number, if known;

(14)Current Harmonized Tariff System of the United States (HTSUS) number (from Chapter 25 of the HTSUS);

(15)Quantity (in metric tons);

(16)Customs value (U.S. $);

(17)Whether the entry is made pursuant to the disaster relief provisions of the Agreement; and

(18)Mexican Export License Number. Much of the information requested on the application form will be filled out automatically based on information provided during the registration process ( *e.g.* , applicant company name and address) or will be self-generated from other information reported in the form ( *e.g.* , product description or average unit value). Other information will be available from drop-down lists in the application form ( *e.g.* , HTSUS numbers covered by the Agreement, country of origin, port of entry). A sample copy of the cement import license application form is available for viewing on Import Administration's Web site at *http://ia.ita.doc.gov/cement-agreement/index.html.* As currently proposed, a CBP entry number will not be required to be reported in order to obtain a license, but applicants would be encouraged to do so if the CBP entry number is known at the time of filing for the license. Upon completion of the application form, the importer, customs broker or the importer's agent would certify as to the accuracy and completeness of the information and submit the form electronically. After refreshing the page, the system will automatically issue a cement import license number. The refreshed form containing the submitted information and the newly issued import license number will appear on the screen (the “license form”). Applicants can print the import license form only at that time. For security purposes, users will not be able to retrieve licenses from the license system at a later date for reprinting. If needed, copies of completed license forms can be requested from Commerce during normal business hours. The cement import license will be required for every entry summary (CBP Form 7501) submitted for covered cement products. As currently envisioned, a single license could cover multiple products as long as the importer, exporter, manufacturer, first unaffiliated customer, sub-region, and final destination of the product, and country of origin and exportation are the same. However, separate licenses would be required if any of the above information differed with respect to a given set of covered imported cement products. As a result, a single CBP entry summary may require more than one cement import license. The applicable license number(s) must cover the total quantity of cement entered and should match the information provided on the CBP Form 7501. There is no requirement to present physical copies of the license forms at the time of submitting CBP Form 7501; however, parties must maintain copies in accordance with CBP's normal requirements. Certain aggregate information collected from the license application system will be posted on the Import Administration website. Only certain aggregate information will be available to the public. All other information, including copies of the licenses and the names of importers, exporters, and manufacturers, will be considered business proprietary information and will not be released to the public. The use of this information will be strictly limited to the administration of the Agreement and it will not be kept longer than the period of time legally required beyond the expiration or termination of the Agreement. Duration of the Cement Import License The cement import license can be applied for up to 30 days prior to the expected date of importation and until the date of filing of CBP Form 7501. The cement import license is valid for up to 60 days; however, import licenses that were valid on the date of importation but expired prior to the filing of CBP Form 7501 will be accepted. Special timing issues surrounding withdrawal of products from a warehouse, Foreign Trade Zone

(FTZ)issues, and temporary imports will be handled separately, as they arise. Handling of Cement to Foreign Trade Zones Commerce proposes to require a license for cement shipped into a United States FTZ. Because a CBP entry number would not be available for shipments entering the FTZ, the code “FTZ” would be entered on the license application. There is no requirement to present physical copies of the license forms at the time of the FTZ admission; however, copies must be maintained in accordance with CBP's normal requirements. FTZ admission documents submitted without the required license number(s) will be considered to be in circumvention of the Agreement. A further Mexican cement license will not be required for shipments from FTZs into the commerce of the United States. Mexican Export License Requirement Pursuant to Section IV.C. of the Agreement, each importer is required to submit a valid Mexican Export License to CBP with its 7501 entry summary. For multiple shipments at multiple ports, or multiple entries at one port, the original Mexican Export License shall be presented with the first entry summary and a copy of the Export License shall be presented with each subsequent entry summary. CBP Requirements CBP intends to publish a separate Notice of Proposed Rulemaking (NPRM), setting requirements for the timely filing of the cement import license information at entry. Hours of Operation As currently proposed, parties will be able to access the system 24 hours a day, 7 days a week. If the system is down for an extended period of time, parties will be able to obtain licenses from Commerce via fax during regular business hours. Duration The licensing program will be in effect for the duration of the Agreement only. The licenses, however, will be valid for 10 business days after the expiration or termination of the Agreement to allow for the final filing of required CBP documentation. Regulatory Flexibility Act The Chief Counsel for Regulation certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, will not have a significant impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.* A summary of the factual basis for this certification is below. Commerce is unable to determine the number of brokerage companies and importers that would be impacted by this rule as Commerce does not collect this information. However, based on historical data, Commerce estimates that there are few brokerage companies and importers that would be considered small entities under Small Business Administration's standard (5 U.S.C. 603(b)(3)). Typically, larger brokers handle Mexican cement shipments because of the capital that is needed upfront to handle bonds and other costs. Each importer or broker must fill out the license form for each entry of the subject merchandise. Based on CBP entry summary information, we estimate that 12,150 licenses will be issued each year. Of this number, only a small percentage of licenses would be requested by a small entity as a result of this rule. Even if this rule impacted a large number of small entities, these entities would not incur significant costs to comply with the proposed regulations. Most brokerage companies that are currently involved in filing required documentation for importing goods into the United States, specifically CBP documentation, are accustomed to CBP's automated systems. Today, more than 99 percent of the CBP filings are handled electronically. Therefore, the web-based nature of this simple license application should not impose a significant cost to any firm in completing this new requirement. However, should a company prefer or need to apply for an ID or license by other than electronic means, a fax/phone option will be available at Commerce during regular business hours. There is no cost to register for a company-specific user identification number and no cost to file for the license. Each license form is expected to take at most about 10 minutes to complete using much of the same information the brokers will use to complete their CBP entry summary documentation. The response time should not vary widely because the same information is used to fill out other required CBP documents. The estimated average cost to private sector respondents is $20.00 per hour. Based on the estimated 12,150 licenses that will be issued each year, the total cost to respondents as a result of this rule is $40,500.00. Based on historic CBP information, there are few small entities that would be affected by this rule. Therefore, of this amount, only a small percentage of the total cost would be incurred by small entities. Based on this factual basis, this action will not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval. The public reporting burden for these collections of information is estimated at 10 minutes. Parties must maintain copies in accordance with CBP's existing requirements. The licensing system requests information already required of an importer, approval is automatic, and the importer will have ample opportunity and time to apply. These estimates of time required to complete an application include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments on the reporting burden estimate or any other aspect of the requirements in this proposed rule to ITA Office of Policy at the addresses above and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 (Attention: ITA Desk Officer). Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act unless that collection displays a valid OMB Control Number. Executive Order 12866 It has been determined that this rule is significant for purposes of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”) (58 FR 51735 (October 4, 1993)). Executive Order 13132 This rule does not contain policies with federalism implications as that term is defined in Section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)). List of Subjects in 19 CFR Part 360 Customs duties and inspection, Imports, Reporting and recordkeeping requirements, Textiles. Q P='02'> For the reasons set out in the preamble, 19 CFR part 360 is proposed to be added to read as follows: PART 360—MEXICAN CEMENT IMPORT LICENSING SYSTEM Sec. 360.201 Mexican Cement Import Licensing System. 360.202 Online registration. 360.203 Automatic issuance of import licenses. 360.204 Fees. 360.205 Hours of operation. Authority: 13 U.S.C. 301(a) and 302. § 360.201 Mexican Cement Import Licensing System.

(a)*In general.*

(1)On March 6, 2006, the Agreement Between the Office of the United States Trade Representative and the Department of Commerce of the United States of America and the Ministry of Economy of the United Mexican States (Secretaria de Economia) on Trade in Cement (Agreement) was signed. Pursuant to the Agreement, the United States has agreed to implement an import licensing system that covers imports of merchandise covered by the scope of the antidumping duty order on Cement from Mexico. Some of the data to be collected is in addition to data currently collected by U.S. Customs and Border Patrol. The data collected by the Mexican Cement Import Licensing system will be used by the Department of Commerce to monitor imports of Mexican Cement, as the imports occur.

(2)Mexican Cement is defined as gray portland cement and clinker from Mexico. Gray portland cement is a hydraulic cement and the primary component of concrete. Clinker, an intermediate material produced when manufacturing cement, has no use other than being ground into finished cement. Specifically included within the scope of this definition are pozzolanic blended cements and oil well cements. Specifically excluded are white cement and Type “S” masonry cement. Gray portland cement is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item number 2523.29 and cement clinker is currently classifiable under HTSUS item number 2523.10. Gray portland cement has also been entered under HTSUS item number 2523.90 as “other hydraulic cements.” These HTSUS subheadings are provided for convenience and USCBP purposes; the written definition is controlling for purposes of this Agreement.

(3)The Mexican Cement Import Licensing System includes an online registration system. All imports of Mexican cement, are subject to the Mexican Cement Import Licensing requirements. Information gathered from these licenses will be used to ensure that the terms of the Agreement are complied with and enforced.

(4)A single license may cover multiple products as long as certain information on the license ( *e.g.* , importer, exporter, manufacturer, and sub-region of final destination) remains the same. However, separate licenses for Mexican cement entered under a single entry will be required if the information differs. As a result, a single CBP entry summary may require more than one Mexican cement import license. The applicable license(s) must cover the total quantity of Mexican cement entered and should cover the same information provided on CBP Form 7501.

(b)*Entries for consumption.* All entries for consumption of covered Mexican cement products will require an import license prior to the filing of CBP Form 7501. The license(s) number must be reported on CBP Form 7501 at the time of filing. There is no requirement to present physical copies of the license forms at the time of filing CBP Form 7501; however, copies must be maintained in accordance with CBP's existing requirements. If CBP Form 7501 is submitted without the required license number(s) it will be considered circumvention of the Agreement.

(c)*Foreign Trade Zone entries.* All shipments of covered Mexican cement into FTZs, known as FTZ admissions, will require an import license prior to the filing of FTZ admission documents. The license number(s) must be reported on the application for FTZ admission and/or status designation (CBP Form 214) at the time of filing. There is no requirement to present physical copies of the license forms at the time of FTZ admission; however, copies must be maintained in accordance with CBP's existing requirements. FTZ admission documents submitted without the required license number(s) will be considered to be in circumvention of the Agreement. A further Mexican cement license will not be required for shipments from FTZs into the commerce of the United States.

(d)*Mexican Export License Requirement.* Each importer is required to submit a valid Mexican Export License to CBP with its 7501 entry summary. For multiple shipments at multiple ports, or multiple entries at one port, the original Mexican Export License shall be presented with the first 7501 entry summary and a copy of the Export License shall be presented with each subsequent 7501 entry summary. § 360.202 Online registration.

(a)*In General.*

(1)Any importer, importing company, customs broker or importer's agent with a U.S. street address may register and obtain the user identification number necessary to log on to the automatic Mexican cement import license issuance system. Foreign companies may obtain a user identification number if they have a U.S. address through which they may be reached; P.O. Boxes will not be accepted. A user identification number normally will be issued within two business days. Companies will be able to register online through the import licensing Web site. However, should a company prefer to apply for a user identification number non-electronically, a phone/fax option will be available at Commerce during regular business hours.

(2)This user identification number will be required in order to log on to the Mexican cement import license issuance system. A single user identification number will be issued to an importing company, brokerage house or importer's agent. Operating units within the company ( *e.g.* , individual branches, divisions, or employees) will all use the same company user identification number. The Mexican cement import license issuance system will be designed to allow multiple users of a single identification number from different locations within the company to enter information simultaneously.

(b)*Information required to obtain a user identification number.* In order to obtain a user identification number, the importer, importing company, customs broker or importer's agent will be required to provide general information. This information will include: The filer's company name, employer identification number

(EIN)or CBP ID number (where no EIN is available), U.S. street address, telephone number, contact information and e-mail address for both the company headquarters and any branch offices that will be applying for Mexican cement import licenses. This information will not be released by Commerce, except as required by U.S. law. § 360.203 Automatic issuance of import licenses.

(a)*In general.* Mexican cement import licenses will be issued to registered importers, customs brokers or their agents through an automatic Mexican cement import license issuance system. The licenses will be issued automatically after the completion of the form.

(b)*CBP entry number.* Filers are not required to report a CBP entry number to obtain an import license but are encouraged to do so if the CBP entry number is known at the time of filing for the license.

(c)*Information required to obtain an import license.*

(1)The following information is required to be reported in order to obtain an import license (if using the automatic licensing system, some of this information will be provided automatically from information submitted as part of the registration process):

(i)Applicant company name and address;

(ii)Applicant contact name, phone number, fax number and e-mail address;

(iii)Importer name;

(iv)Exporter name;

(v)Manufacturer name;

(vi)Country of origin;

(vii)Country of exportation;

(viii)Expected date of export;

(ix)Expected date of import;

(x)Expected port of entry;

(xi)Sub-Region of Final Destination: Indicate the Sub-region where either the Mexican Cement will be consumed by an affiliated company to make concrete or concrete products or the Sub-region of the first unaffiliated purchaser of the Mexican Cement.

(xii)Final Destination: Indicate the complete name and address (including county) of either the affiliated company that will consume the Mexican Cement or the first unaffiliated purchaser of the Mexican Cement. If either is not known when the Import License is issued, indicate the address (including county) where the Mexican Cement will be siloed/warehoused until the time of shipment to the first unaffiliated purchaser.

(xiii)CBP entry number, if known;

(xiv)Current Harmonized Tariff System of the United States (HTSUS) number (from Chapter 25 of the HTSUS);

(xv)Quantity (in metric tons);

(xvi)Customs value (U.S. $);

(xvii)Whether the entry is made pursuant to the disaster relief provisions of the Agreement; and (xviii) Mexican Export License Number.

(2)Certain fields will be automatically filled out by the automatic license system based on information submitted by the filer ( *e.g.* , product category, unit value). Filers should review these fields to help confirm the accuracy of the submitted data.

(3)Upon completion of the form, the importer, customs broker or the importer's agent will certify as to the accuracy and completeness of the information and submit the form electronically. After submitting the completed form, the system will automatically issue a Mexican cement import license number. The refreshed form containing the submitted information and the newly issued license number will appear on the screen (the “license form”). Filers can print the license form only at that time. For security purposes, users will not be able to retrieve licenses from the license system at a later date for reprinting. If needed, copies of completed license forms can be requested from Commerce during normal business hours.

(d)*Duration of the Mexican cement import license.* The Mexican cement import license can be applied for up to 30 days prior to the expected date of importation and until the date of filing of CBP Form 7501, or in the case of FTZ entries, the filing of CBP Form 214. The Mexican cement import license is valid for 60 days; however, import licenses that were valid on the date of importation but expired prior to the filing of CBP Form 7501 will be accepted.

(e)*Correcting submitted license information.* Due to data security issues, it will not be possible to alter an existing license electronically once it has been issued. However, prior to the entry date listed on CBP Form 7501, filers will be able to cancel previously issued licenses and file for a new license with the correct information. If the filer prefers to have Commerce personnel change the license, there will be a telephone/fax option. § 360.204 Fees. No fees will be charged for obtaining a user identification number, issuing a Mexican cement import license. § 360.205 Hours of operation. The automatic licensing system will generally be accessible 24 hours a day, 7 days a week but may be down at selected times for server maintenance. If the system is down for an extended period of time, parties will be able to obtain licenses from Commerce directly via fax during regular business hours. Dated: May 22, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E6-8402 Filed 5-30-06; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 734 and 772 [Docket No. 050316075-6122-03] RIN 0694-AD29 Revisions and Clarification of Deemed Export Related Regulatory Requirements AGENCY: Bureau of Industry and Security, Commerce. ACTION: Withdrawal of advance notice of proposed rulemaking. SUMMARY: The Bureau of Industry and Security

(BIS)has reviewed the public comments received in response to the “ *Advance Notice of Proposed Rulemaking: Revision and Clarification of Deemed Export Related Regulatory Requirements* ”

(ANPR)published in the **Federal Register** on March 28, 2005. The ANPR identified recommendations contained in the U.S. Department of Commerce Office of Inspector General

(OIG)Report entitled “ *Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S.* ” (Final Inspection Report No. IPE-16176—March 2004). This action discusses concerns raised by the OIG and summarizes public comments received in response to the ANPR. This document also states that the current BIS licensing policy related to deemed exports is appropriate and confirms that the existing definition of “use” adequately reflects the underlying export controls policy rationale in the Export Administration Regulations (EAR). As such, BIS is withdrawing the ANPR. In addition, this action addresses comments on the scope of the fundamental research provisions in the EAR. ADDRESSES: Although there is no official comment period for this document, you may submit comments, identified by Docket No. 050316075-6122-03, by any of the following methods: • E-mail: *publiccomments@bis.doc.gov.* Include “050316075-6122-03” in the subject line of the message. • Fax:

(202)482-3355. • Mail or Hand Delivery/Courier: U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: Docket No. 050316075-6122-03. FOR FURTHER INFORMATION CONTACT: Alexander Lopes, Director of the Deemed Exports and Electronics Division, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, telephone:

(202)482-4875 or e-mail: *alopes@bis.doc.gov* or Marcus Cohen, Bureau of Industry and Security, telephone:

(202)482-2440 or e-mail: *mcohen@bis.doc.gov.* Copies of the referenced OIG Report are available at: *http://www.oig.doc.gov/oig/reports/2004/BIS-IPE-16176-03-2004.pdf.* Public comments received by BIS in response to the ANPR are available at: *http://efoia.bis.doc.gov/.* SUPPLEMENTARY INFORMATION: Background The Bureau of Industry and Security

(BIS)has reviewed public comments received in response to the “ *Advance Notice of Proposed Rulemaking: Revision and Clarification of Deemed Export Related Regulatory Requirements* ”

(ANPR)published in the **Federal Register** on March 28, 2005 (70 FR 15607; comment period extended, 70 FR 30655). The ANPR described recommendations contained in the U.S. Department of Commerce Office of Inspector General

(OIG)Report entitled “ *Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S.* ” (Final Inspection Report No. IPE-16176-March 2004). In its report, the OIG concluded that existing BIS policies under the Export Administration Regulations

(EAR)could enable foreign nationals from countries and entities of concern to access otherwise controlled technology. These concerns prompted the OIG to recommend the following:

(1)Base the requirement for a deemed export license on a foreign national's country of birth and not on country of citizenship or permanent residency;

(2)Revise the definition of “use” in Section 772.1 of the EAR; and

(3)Modify regulatory guidance in Supplement No. 1 to Part 734 regarding licensing of technology to foreign nationals involved with academic research and government-sponsored research projects. Adopting certain of the OIG's recommendations would entail regulatory changes to the EAR. Accordingly, the ANPR requested comments from industry, the academic community, and U.S. government agencies involved in research on the potential impact the proposed revisions would have on their activities. In response to the ANPR, BIS received 311 comments from 88 academic institutions (many academic institutions submitted more than one comment), 22 companies, 25 trade associations, 14 individuals, 20 academic associations, 6 law firms and legal associations, 4 U.S. national laboratories, 4 U.S. agencies, 3 members of Congress, and 2 foreign governments. All public comments received by BIS in response to the ANPR are currently posted on the EFOIA page of the BIS Web site. Based upon a thorough review of the public comments and a review of foreign immigration requirements, BIS has determined that the current licensing requirement based upon a foreign national's country of citizenship or permanent residency is appropriate. The current deemed export licensing policy, based on a foreign national's most recent country of citizenship or permanent residency, recognizes the significance of declarative assertion of affiliation over the mere geographical circumstances of birth. BIS has also concluded that the existing definition of “use” in Section 772.1 of the EAR should remain unchanged. The existing definition of “use” appropriately implements the underlying export control policy rationale in the EAR. Finally, BIS intends to expand outreach to help the regulated community understand the questions and answers in Supplement 1 to Part 734 of the EAR. Moreover, the public should be aware that BIS provides guidance on fundamental research on its Web site. ( *See* Deemed Export FAQ's at *http://www.bis.doc.gov/policiesandregulations/index.htm* ). In sum, BIS is not adopting those recommendations of the OIG which would have required regulatory changes to the EAR and, accordingly, is withdrawing the ANPR. A review of the public comments, as well as BIS's response to the recommendations of the OIG and to certain issues raised in the public comments, follows. Scope of Agency Action The current review focused on recommendations made by the OIG, and was not intended to address broader issues related to the operation of the deemed export rule. For example, some comments suggested that the deemed export rule should simply be abolished. Others suggested reforms of U.S. export control policies that would extend far beyond the deemed export rule, while still others questioned the constitutionality of the deemed export rule. Such criticisms and suggested reforms were beyond the scope of the review of the public comments related to this notice, but like all issues of deemed export policy, they will be subject to review by the Deemed Export Advisory Committee (DEAC). For further information related to the establishment of the DEAC, see the notice entitled “ *Establishment of Advisory Committee and Clarification of Deemed Export-Related Regulatory Requirements,* ” published in the **Federal Register** on May 22, 2006 (71 FR 29301). All of the public comments received in response to the ANPR, including those public comments that raised issues beyond the scope of review related to this notice, will be made available to members of the Deemed Export Advisory Committee (DEAC). All aspects of the deemed export policy will be subject to review by the DEAC. In general, the comments focused on the OIG's recommendations regarding the proposal that deemed export license requirements be based on a foreign national's country of birth and a proposed revision to the definition of “use.” While few of the public comments received directly addressed the OIG's recommendation to revise the regulatory guidance in Supplement No. 1 to Part 734 of the EAR, many comments indirectly discussed the potential effect of such regulatory modifications on fundamental research. The general themes expressed in the public comments, as well as BIS's response to the recommendations of the OIG and to certain issues raised in the public comments, are described in more specificity below. A. Public Comments Received in Response to the ANPR Country of Birth Almost without exception, the comments stated clear opposition to the OIG's recommendation that deemed export licenses be based on a foreign national's country of birth rather than country of citizenship. (See 15 CFR 734.2(b)(2)(ii)) Comments from all sources stressed that deemed export controls must take into account the integral and critical contribution of foreign nationals to U.S. fundamental research. Numerous comments expressed concern that excessive and bureaucratic requirements will foster a perception among foreign students and researchers that the United States does not welcome foreign nationals in its high-technology research community. Many comments observed that the decrease in the number of foreign nationals in U.S. academic institutions and U.S. industry has already been detrimental to the economy of the United States. These comments argued that a change in the deemed export licensing policy from country of citizenship to country of birth would further adversely impact the United States. Various comments discussed other methods by which prospective foreign national students and employees are screened. Comments from both academia and industry noted that their organizations rely on existing U.S. visa requirements as a means of guarding against the unlawful release of technology. Many of these comments recommended that the deemed export licensing policy should operate in conjunction with other established systems of screening foreign nationals. Comments also expressed concerns related to potential conflicts of laws. Some comments noted that if forced to apply a country of birth criteria to their employees, companies might run afoul of both U.S. and foreign anti-discrimination and privacy laws. Comments from companies that operate on a global scale stated that the recommendation by the OIG would present formidable legal and operational hurdles. Another trend among the comments was a concern about the fundamental unfairness of the change recommended by the OIG. Many comments suggested that the current deemed export licensing policy which focuses on a foreign national's country of citizenship is more appropriate because obtaining citizenship demonstrates an affirmative declaration of affiliation and loyalty toward a particular sovereign entity in ways that the circumstance of a person's birth does not. Further, many comments argued that the OIG failed to present any evidence to support the recommended change in licensing policy and that the envisioned improvements to national security have not been persuasively presented. Definition of “Use” The OIG recommended that BIS revise the definition of “use” in Section 772.1 of the EAR. The OIG effectively recommended replacing the word “and” with the word “or,” as follows: “ ‘Use’ (All categories and General Technology Note)—Operation, installation (including on-site installation), maintenance (checking), repair, overhaul, *or* refurbishing.” ( *Emphasis added* ) The public comments voiced general opposition to this recommendation as well. Many comments stated that revising the definition with the disjunctive “or” would capture too many routine operations carried out by students/employees, and thus constitute a large (and generally unnecessary) compliance burden on organizations. In addition, many comments argued that the OIG failed to proffer any evidence to support the recommended change in licensing policy and, further, that envisioned improvements to national security have not been satisfactorily presented in the OIG's report. The general theme among comments from the academic community was that the conjunctive reading of the “use” definition properly reflects the policy rationale that currently underlies the controls on the transfer of use technology to foreign national students and researchers. These comments argued that the current “use” definition correctly requires the presence of technology relating to all six activities ( *i.e.* , operation, installation, maintenance, repair, overhaul, and refurbishing) because it is the totality of those activities that triggers the requirement for a deemed export license. Many comments asserted that by changing “and” to “or” in the definition, mere operation of a controlled item by a foreign national would trigger a requirement for a deemed export license. Numerous comments stressed that the proposed revision would thus result in a large expansion of deemed export license applications submitted to BIS. They claim that this will impose a substantial financial and administrative burden on their respective organizations and will also increase the licensing burden on BIS. While many comments cited the number or percentage of foreign nationals in the commenters' organizations, the comments generally do not provide the actual number of items for which “use” technology is controlled within their respective organizations. Some of the comments from industry suggested that OIG's recommended change would have little practical impact. Those comments reflect that many companies already interpret the definition of “use” in the disjunctive and, further, that the current definition could reasonably be interpreted to be an illustrative list of activities constituting use. As such, they stated that the suggested definition revision would have minimal, if any, effect on business operations. However, organizations from all sectors appear concerned that a change in the definition would restrict the scope of fundamental research by capturing more routine activities that are currently not subject to the EAR. Many public comments noted that such narrowing of the scope of fundamental research would have a chilling effect on U.S. research efforts conducted by industry and universities alike. In addition, several comments note that although the OIG speculated in its report that many academic and Federal laboratories might need to seek deemed export licenses, the OIG failed to offer evidence in support of this claim. These comments pointed out that the report contained no findings that controlled “use” technology has been illegally transferred to foreign nationals, either in Federal laboratories, university facilities, or within industry. Regulatory Guidance Related to Fundamental Research Supplement No. 1 to Part 734 of the EAR provides guidance in the form of questions and answers to further elucidate the deemed export regulations. In its report, the OIG found two of the answers therein may be inaccurate or unclear. The OIG recommended modification to guidance (answers to Questions A(4) and D(1), respectively) covering the following topics:

(1)Whether prepublication clearance by a government sponsor would void the publishability exemption in the EAR and trigger the deemed export rule; and

(2)Whether a license would be required for a foreign graduate student to work in a laboratory. A large percentage of public comments addressed the OIG's proposed revisions to the answers provided in the deemed export guidance. Although less than 2% of the public comments received directly addressed the OIG's recommended modifications, a significant number of comments discussed the suggested revisions in relation to the possible effect such guidance would have on the scope of fundamental research as discussed in Section 734.8 of the EAR. Only a few of the comments focused on the impact of prepublication clearance by a government sponsor as it relates to Section 734.7(a)(4)(iii) of the EAR. Even within that small number, there was no unanimity of opinion. Some agreed with the OIG that research results that are subject to prepublication clearance of a government agency are subject to the EAR. However, other comments noted that Section 734.11 should itself be understood as an exemption to the EAR and, as such, the answer to Question A(4) is correct as currently stated. Still other comments noted that while the answer to Question A(4) is essentially correct, slight modification of the answer is required for purposes of clarification. With regard to the OIG's suggested revision of the answer to Question D(1), the comments highlighted a theme of serious concern about the effect as it relates to the jurisdictional scope of fundamental research. While only a handful of comments addressed Question D(1) directly, those that did so noted that the apprehension regarding the OIG's revision stems in large part from the OIG's proposed change in the definition of “use.” It appears that many in the research community view the revised answer to Question D(1) as a codification that mere operation of a piece of controlled laboratory equipment by a foreign national student will trigger the requirement for a deemed export license. Thus, comments from all sectors appeared to reflect concern that the OIG's recommended modification to the guidance in Supplement No. 1 to Part 734 in conjunction with a disjunctive reading of the “use” definition will either significantly erode or abolish the exemption for fundamental research in the academic laboratory environment. B. BIS Response to the Recommendations of the OIG and the Public Comments Received in Response to the ANPR As a result of the extensive nature of the public comments, BIS is establishing a Deemed Export Advisory Committee

(DEAC)under the terms of the Federal Advisory Committee Act

(FACA)(Pub. L. 92-463, 5 U.S.C., App. 2). The DEAC will serve as forum to address complex questions related to an evolving deemed export control policy. Specifically, the DEAC will be charged with reviewing the current deemed export policy and determining whether to recommend any changes to that policy. For further information related to the establishment of the DEAC, see the notice entitled “Establishment of Advisory Committee and Clarification of Deemed Export-Related Regulatory Requirements,” published in the **Federal Register** on May 22, 2006 (71 FR 29301). Country of Birth While the deemed export rule plays a crucial role in preventing foreign nationals from countries of concern from obtaining controlled U.S. technology, BIS also recognizes that export controls must take into account the integral and critical contribution of foreign nationals to U.S. fundamental research. U.S. research institutions play a vital role in advancing science and technology for future generations. Part of the vitality of the research enterprise is the contribution made by foreign national students, faculty, and visiting scientists. There are substantial concerns associated with the OIG's recommendation to adopt the “country of birth” of foreign nationals as policy for deemed export license determinations. Due in large measure to the concerns raised in the public comments received in response to the ANPR, BIS has determined that the current licensing requirement related to deemed exports is appropriate. BIS recognizes that many individuals may have ethnic ties to a particular nation, but bear no loyalty towards states where they were born. Further, BIS notes that an individual's act of obtaining citizenship or permanent residency adequately demonstrates affiliation and allegiance to the adoptive nation. Thus, the current deemed export licensing requirement, based on a foreign national's most recent country of citizenship or permanent residency, recognizes the importance of declarative assertion of affiliation over the mere geographical circumstances of birth. BIS recognizes concerns that may arise in instances where a foreign national maintains dual citizenship or multiple permanent residence relationships. The deemed export rule accounts for the possibility of a foreign national maintaining dual citizenship and specifies that a release of technology or source code subject to the EAR to a foreign national is “deemed to be an export to the home country *or countries* of the foreign national.” ( *Emphasis added* ) (15 CFR 734.2(b)(2)(ii)) Under existing interpretations of this provision, a home country is a country in which a foreign national is a citizen or permanent resident. If the status of a foreign national is not certain, exporters can request the assistance of BIS to determine where the stronger ties lie, based on the facts of the specific case. In response to such a request, BIS will look at the foreign national's country, family, professional, financial, and employment ties. Based upon the recommendations of the OIG, a thorough review of the public comments, and a detailed analysis of the deemed export rule and its impact on the regulated community, BIS has determined that the current licensing requirement based upon a foreign national's country of citizenship or permanent residency is appropriate. Definition of “Use” After thorough review, BIS has concluded that the existing definition of “use” in Section 772.1 of the EAR should remain in the conjunctive. As such, the word “and” is appropriate and the definition of “use” remains unchanged: All six activities in the definition of “use” must be present to trigger a license requirement. Changing “and” to “or” in the definition, as suggested by the OIG, would lead to a situation in which mere operation of a controlled item by a foreign national could trigger the requirement for a deemed export license. Consequently, BIS has determined that revision to the existing definition would result in an expansion of deemed export license applications imposing a substantial licensing burden on the regulated community, without a corresponding benefit to national security. Hence, the definition of “use” remains unchanged. Moreover, the conjunctive word “and” in the current “use” definition reflects the policy rationale that underlies the controls on the release of controlled “use” technology to foreign nationals. The current “use” definition lists all six activities (i.e., operation, installation, maintenance, repair, overhaul, & refurbishing) because the totality of those activities would provide the foreign national with enough knowledge to replicate or improve the performance capabilities of the controlled item. As such, all of the activities listed in the definition of “use” are required to trigger a license requirement. “Use” controls are predicated on Cold War-era reverse-engineering concerns. Under the Coordinating Committee on Multilateral Export Controls (COCOM), the multilateral organization that cooperated in restricting strategic exports (conventional and dual use items) to Eastern Bloc (communist-governed) countries, export controls on technology were based on the concern that the release of technical information to a foreign national of an Eastern Bloc country would enable a controlled item to be replicated by an Eastern Bloc country. The Wassenaar Arrangement (WA), the successor to COCOM, was established to address post-Cold War security concerns. However, the Cold War-inspired “use” definition was adopted by WA without revision and subsequently included in Part 772 of the EAR. The OIG highlighted inconsistent interpretations of “use” that exist throughout industry, academia, and within BIS. However, a regulatory revision of the definition of “use” from the conjunctive to the disjunctive is not the most appropriate vehicle for resolving disparate interpretations. Instead, BIS is clarifying that the definition of “use” is properly read in the conjunctive. This clarification resolves the inconsistency suggested by the OIG Report and restates a coherent, bright line rule, which will resolve any misunderstanding and increase compliance with the regulations. Regulatory Guidance Related to Fundamental Research As noted in many of the comments, there has been some misapprehension as to the scope of the existing regulations as they relate to academic and research institutions. While the domain of items subject to the EAR is large, it is not infinite. There are four broad classes of items that are not subject to the EAR:

(1)Items controlled for export exclusively by another agency of the U.S. government,

(2)products such as books, movies, magazines, and recordings;

(3)publicly available technology and software; and

(4)foreign-made items that have less than a *de minimis* percentage of controlled U.S. content. Although the OIG Report refers to an “exemption” for fundamental research, the EAR generally does not refer to items or activities that are not subject to the EAR as “exemptions.” As outlined in Part 734, items and activities are either subject to the EAR or they are not subject to the EAR. (See 15 CFR 734.2 & 734.3) In Part 734, the EAR addresses the jurisdictional scope of fundamental research and sets forth specific parameters and limitations that would take such activities and products resulting from fundamental research outside of the scope of the EAR. Section 734.8 states that the information resulting from fundamental research is usually not subject to the EAR if the intent is to make the information resulting from the fundamental research publicly available. As such, a product of basic and applied fundamental research would often be captured within the broader category of items that are “publicly available,” and thus is not subject to the EAR. Such research can be distinguished from proprietary research and from research related to industrial development, design, and production, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. (See 15 CFR 734.8(a) & 734.11(b)). It is essential to distinguish the information or product (which may be in the form of a scientific paper or publication that describes and/or details the results of the fundamental research) that results from fundamental research from the conduct that occurs within the context of the fundamental research. While the product of the fundamental research is not subject to the EAR because the results of that research are intended for publication and dissemination within the scientific community, authorization may be required if during the conduct of the research controlled technology is released to a foreign national. The regulated community has expressed concern that the deemed export rule is inconsistent with National Security Decision Directive 189 (NSDD-189). The stated purpose of NSDD-189 is as follows: “This directive establishes national policy for controlling the flow of science, technology and engineering information produced in federally funded fundamental research at colleges, universities, and laboratories. Fundamental research is defined as follows: ‘Fundamental research’ means basic and applied research in science and engineering, the *results of which ordinarily are published and shared broadly* within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.” ( *Emphasis added* ) (NSDD-189, section II, Policy) The description of fundamental research found in Section 734.8 of the EAR closely mirrors this section of NSDD-189. Further, the directive clarifies that the product that results from fundamental research is distinct from the conduct involved in the research itself. NSDD-189 also distinguishes proprietary research from basic and applied research. The regulated community has expressed concerns that license requirements within the EAR for the release of controlled technologies to foreign nationals from countries of concern are in opposition to the Administration's stated policy with respect to fundamental research. However, NSDD-189 expressly notes that the United States government may place restrictions on the release of controlled information. The pertinent section of NSDD-189 states as follows: “No restriction may be placed upon the conduct or reporting of federally funded fundamental research that has not received national security classification, *except as provided in applicable U.S. Statutes.* ” ( *Emphasis added* ) (NSDD-189, section II, Policy) The Export Administration Act

(EAA)and the International Emergency Economic Powers Act (IEEPA), the principal statutes authorizing dual-use export controls, constitute applicable U.S. statutes within the meaning of NSDD-189. Pursuant to the EAA, the EAR implement U.S. government restrictions related to fundamental research when the conduct of the research involves the transfer of controlled technologies to foreign nationals. As such, there is no inconsistency between the technology controls listed in the EAR and the type of restrictions on fundamental research specified in NSDD-189. Based on the extensive and varied public comments received, BIS has concluded that expanded outreach is required to clarify the guidance provided in the questions and answers in Supplement 1 to Part 734 of the EAR. Furthermore, as indicated by the findings of the OIG, the extensive and varied response to the ANPR, and the number of questions and issues that have been raised in recent outreach efforts, it is apparent that an expanded outreach program must be supplemented by a collaborative effort between BIS and the regulated community to ensure that the deemed export policy is consistent with evolving technologies and national security concerns. Dated: May 24, 2006. Matthew Borman, Deputy Assistant Secretary of Commerce for Export Administration. [FR Doc. E6-8370 Filed 5-30-06; 8:45 am] BILLING CODE 3510-33-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [R06-OAR-2005-NM-0003; FRL-8175-5] Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve two separate State Implementation Plan

(SIP)revisions submitted by the Governor of New Mexico. The first submittal, dated September 7, 2004, adopts local Ambient Air Quality Standards

(AAQS)and incorporates by reference the Federal National AAQS for the Albuquerque/Bernalillo County, New Mexico area. The second submittal, dated July 28, 2005, revises the Variance Procedure for the Albuquerque/Bernalillo County, New Mexico area. We are proposing to approve these two separate SIP revisions in accordance with the requirements of the Clean Air Act, section 110. DATES: Written comments must be received on or before June 30, 2006. ADDRESSES: Comments may be mailed to Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the Addresses section of the direct final rule located in the rules section of this **Federal Register** . FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733 at

(214)665-6691, or *shar.alan@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this **Federal Register** . Dated: May 19, 2006. Richard E. Greene, Regional Administrator, Region 6. [FR Doc. 06-4920 Filed 5-30-06; 8:45 am]

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