Notices. Notice of proposed directives; request for comment

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service RIN 0596-AC22 Predator Damage Management in Wilderness Areas AGENCY: Forest Service, USDA. ACTION: Notice of proposed directives; request for comment. SUMMARY: The Forest Service is proposing to revise its directives on predator damage management in wilderness areas. Guidance to Forest officers in the management of predator damage in wilderness areas is contained in the Forest Service Manual

(FSM)Title 2300, Recreation, Wilderness, and Related Resources Management and FSM 2600, Wildlife, Fish, and Sensitive Plant Habitat Management. These proposed directives would conform agency direction regarding predator damage with provisions in an interdepartmental Memorandum of Understanding

(MOU)between the USDA Animal and Plant Health Inspection Service, Wildlife Services Division and the USDA Forest Service. The MOU, first entered into in 1993, was renewed in 1998, and again in 2004, with minor revisions. Comments received in response to this notice will be considered in development of the final directives for predator damage management on National Forest System lands, including wilderness. DATES: Comments must be received in writing by August 7, 2006. ADDRESSES: Send written comments to Forest Service, USDA, Attn: Director, Wilderness and Wild and Scenic Rivers Resources, 201 14th Street, SW., Washington, DC 20250; by electronic mail to *PDM@fs.fed.us* ; or by fax to

(202)205-1145. Comments may also be submitted by following the instructions at the Federal e-Rulemaking portal, *http://www.regulations.gov* . If comments are sent by electronic mail or by fax, the public is requested not to send duplicate written comments via regular mail. Please confine written comments to issues pertinent to the proposed directives; explain the reasons for any recommended changes; and, where possible, reference the specific section or paragraph being addressed. The Forest Service may not include in the administrative record for the proposed directives those comments it receives after the comment period closes (see DATES ) or comments delivered to an address other than those listed in this ADDRESSES section. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received on these proposed directives in the Office of the Director, Wilderness and Wild and Scenic Rivers Staff, Forest Service, USDA, 4th Floor-Central, Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., Washington, DC, between the hours of 8:30 a.m. to 4 p.m. on business days. Those wishing to inspect comments are encouraged to call ahead to

(202)205-1706 to facilitate entry into the building. FOR FURTHER INFORMATION CONTACT: Don Fisher, Wilderness Program,

(202)205-1414, Forest Service, USDA. SUPPLEMENTARY INFORMATION: 1. Background The USDA Animal and Plant Health Inspection Service, Wildlife Service Division (APHIS-WS) and the Forest Service cooperate in wildlife damage management activities on National Forest System

(NFS)lands as provided for in the Animal Damage Control Act of 1931 (7 U.S.C. 426-426b). Processes and procedures between the two agencies were adopted in a Memorandum of Understanding

(MOU)signed June 18, 1993, and published in the **Federal Register** on July 13, 1993 (58 FR 37704). The MOU was renewed and slightly revised in 1998 and again in 2004. The 2004 version of the MOU is available from the Forest Service directives system in FSM 1543.13 and available from the World Wide Web at *http://www.fs.fed.us* . The purpose of the MOU is to:

(1)Identify responsibilities of the respective agencies and foster a partnership in discharging the Federal obligation under the Animal Damage Control Act of March 2, 1931 (7 U.S.C. 426-426b), for the management of wild vertebrates causing damage on NFS lands,

(2)establish general guidelines to assist field personnel in carrying out their wildlife damage management responsibilities consistent with policies of APHIS-WS and the Forest Service, and

(3)strengthen the cooperative approach to wildlife damage management on NFS lands through the exchange of information and mutual program support. The current MOU clarifies that the APHIS-WS is the responsible agency for developing, with the cooperation of the Forest Service, predator damage work plans that are in conformance with applicable Forest land management and wilderness plans. On May 4, 1995, the Forest Service revised agency direction in Forest Service Manual

(FSM)2651 (60 FR 22037) to clarify and conform agency directives with the MOU adopted in 1993. The changes to FSM 2323.33c and 2651 proposed in this notice are intended to further refine and clarify agency roles and procedures for wildlife damage management activities on NFS lands so that they are consistent with the 2004 revised MOU. 2. Summary of Proposed Revisions FSM 2323.33c—Predator Damage Management The title to FSM 2323.33c is changed from “Predator Control” to “Predator Damage Management.” The proposed revisions to this section are intended to strengthen the Forest Service's role in working with APHIS-WS and State fish and wildlife agencies in wildlife damage management activities, while recognizing that APHIS-WS and State fish and wildlife agencies have the authority and expertise to conduct wildlife damage management activities in wilderness on NFS lands. For this reason, the Forest Service is removing a provision in current policy that requires case-by-case Regional Forester approval for predator management activities in wilderness areas. In the proposed revision, predator management activities in wilderness areas may occur when they are conducted in accordance with an approved predator management plan and provisions in FSM 2651.6. Paragraph 1 establishes objectives for predator damage management activities in wilderness, such as the protection of public health and safety and the protection of threatened or endangered species; the achievement of management goals and objectives for wildlife populations as identified in forest or wilderness plans or through other collaborative processes; and the prevention of serious loss of domestic livestock. Paragraph 2 establishes policy for conducting predator damage management activities in wilderness by requiring minimal disturbance to wilderness visitors and resources, the protection of wilderness character, and coordination with other government entities involved in predator damage management activities. The policy also recognizes predators in the ecological integrity of wilderness and adjacent non-wilderness lands, and prohibits predator damage management activities that would jeopardize the continued viability of predator populations in the ecosystem. Paragraph 3 provides authority for the Regional Forester to permit the use of aircraft, motorized equipment and mechanical transport, and pesticides in wilderness areas under certain conditions. Paragraph 4 provides a framework for coordination and cooperation between APHIS-WS and the Forest Service, including agency roles and responsibilities for preparing predator management plans (para. 4a), NEPA documents (para. 4b) and provisions for conflict resolution (para. 4c). Paragraph 5 commits the Forest Service to coordinate and cooperate with States lawfully conducting predator management activities on National Forest wildernesses. FSM 2651.6—Wildlife and Fish Damage Management in Wilderness and Research Natural Areas The title and areas of applicability in this section is changed from “Wildlife and Fish Damage Management in Wilderness Areas” to “Wildlife and Fish Damage Management in Wilderness and Research Natural Areas.” The proposed revisions to this section removes the criterion authorizing animal damage management only when it was used prior to wilderness designation and also expands the criteria for allowing wildlife damage management activities in a wilderness or a Research Natural Area and clarifies that meeting only one criterion is necessary for those activities to proceed. 3. Regulatory Certifications Environmental Impact These proposed directives revise the administrative policies and procedures for conducting animal damage management activities on National Forest System lands. Section 31.1b of Forest Service Handbook

(FSH)1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The Agency's preliminary assessment is that these proposed directives fall within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. Regulatory Impact These proposed directives have been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this is not a significant action. The proposed directives would not have an annual effect of $100 million or more on the economy, or adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. The proposed directives would not interfere with an action taken or planned by another agency, or raise new legal or policy issues. Finally, these proposed directives would not alter the budgetary impacts of entitlements, grants, or loan programs or the rights and obligations of recipients of such programs. No Takings Implications These proposed directives have been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the proposed directives do not pose the risk of a taking of constitutionally protected private property. Civil Justice Reform These proposed directives have been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has not identified any State or local laws or regulations that are in conflict with these proposed directives or that would impede full implementation of the proposed directives. Nonetheless, in the event that such a conflict were to be identified, the proposed directives, if implemented, would preempt the State and local laws or regulations found to be in conflict. However, in that case,

(1)no retroactive effect would be given to these proposed directives; and

(2)the Department would not require the use of administrative proceedings before parties may file suit in court challenging its provisions. Unfunded Mandates Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Agency has assessed the effects of these proposed directives on State, local, and tribal governments and the private sector. These proposed directives would not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required. Federalism and Consultation and Coordination With Indian Tribal Governments The Agency has considered these proposed directives under the requirements of Executive Order 13132 on Federalism, and has made an assessment that the proposed directives conform with the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further assessment of Federalism implications is necessary at this time. Moreover, these proposed directives do not have tribal implications as defined by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and, therefore, advance consultation with tribes is not required. Energy Effects These proposed directives have been reviewed under Executive Order 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply.” It has been determined that these proposed directives do not constitute a significant energy action as defined in the Executive Order. Controlling Paperwork Burdens on the Public These proposed directives do not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) and its implementing regulations at 5 CFR part 1320 do not apply. Editorial Note: This document was received in the Office of the Federal Register on June 2, 2006. Dated: February 16, 2006. Sally Collins, Associate Chief, Forest Service. 4. Proposed Revisions to Predator Management in Wilderness Directives Note: The Forest Service organizes its Directive System by alphanumeric codes and subject headings. Only those sections of the Forest Service Manual and Handbook that are the subject of this notice are set out here. The intended audience for this direction is Forest Service employees engaged in wildlife damage management activities in wilderness and research natural areas. Forest Service Manual Chapter 2320—Wilderness Management 2323.33c—Predator Damage Management For further direction on predator damage management, see FSM 2651. For a copy of the Master Memorandum of Understanding between the Animal and Plant Health Inspection Service, Wildlife Services (APHIS-WS) and Forest Service, see FSM 1543.13. 1. *Objectives.* The objectives of predator damage management in wilderness are to: a. Protect public health and safety. b. Protect Federally listed threatened or endangered species. c. Achieve management goals and objectives for wildlife populations as identified for wilderness in forest or wilderness plans, or through other collaborative processes, such as Comprehensive Wildlife Conservation Strategies, memorandums of understanding with State fish and wildlife agencies, and so forth. d. Prevent serious loss of domestic livestock. 2. *Policy.* a. Predator damage management activities shall be conducted in a manner that protects wilderness character and minimizes disturbances to wilderness resources and visitors. b. Predator damage management control measures shall be directed at the offending animal or local population and shall not jeopardize the continued viability of predator populations in the ecosystem. c. Predator damage management work plans shall be developed in cooperation with the APHIS-WS for specific wildernesses or for a network of wildernesses and non-wilderness lands that connect them and reviewed annually in cooperation with APHIS-WS. d. When participating in the development and annual review of a predator damage management work plan in a wilderness area, Forest Service officers shall strongly discourage the use of poison baits, such as M-44 devices and livestock protection collars, except in specific cases where there is compelling evidence that other forms of predator damage management have proven to be ineffective. e. Forest Service officials shall coordinate and cooperate with other government entities who have responsibility and expertise for managing predator damage, such as the APHIS-WS and State fish and game agencies. f. The role of predator species in contributing to the ecological integrity of wilderness and adjacent non-wilderness lands shall be recognized in predator damage management work plans and National Environmental Policy Act

(NEPA)of 1969 (42 U.S.C. 4321 *et seq.* ) documents. 3. *Authorization Responsibility for Specific Uses:* a. Landing of aircraft and use of motorized equipment and mechanical transport to facilitate implementation of predator damage management activities in wilderness areas may only occur if authorized by the Regional Forester upon a determination that these uses are necessary to meet minimum requirements for the administration of the area. Determination of necessity is appropriate where:

(1)An emergency situation requires immediate, short-term relief, or

(2)An analysis indicates that one of these uses is the minimum tool necessary to accomplish the predator damage management activity. b. The Regional Forester may authorize use of pesticides for predator damage management activities when documented on Form FS-2100-2, Pesticide Use Proposal (FSM2150). 4. * Inter-Agency Coordination With the Animal and Plant Health Inspection Service, Wildlife Services. * The Forest Service recognizes APHIS-WS's authority and expertise for conducting predator damage management activities on National Forest System

(NFS)wildernesses. Forest Service employees shall, when coordinating with APHIS-WS on proposed predator damage management activities in wilderness, ensure that these activities support the Forest Service's objectives (para. 1) and policies (para. 2) for predator damage management in wilderness areas. a. *Predator Damage Management Plans.* The Forest Service shall participate with the APHIS-WS in preparation of their predator damage management work plans for wilderness areas. Predator damage management work plans shall be reviewed and updated annually. b. *Preparation of National Environmental Policy Act Documents.* The Forest Service shall cooperate with the APHIS-WS in the preparation of environmental analyses for predator damage management activities as required by the NEPA, Title 40, Code of Federal Regulations, section 1501.6, and the Memorandum of Understanding between the APHIS-WS and the Forest Service, dated June 4, 2004 (FSM 1543.13). As a cooperating agency, the Forest Service shall:

(1)Make agency expertise regarding wildlife, wilderness, range, and other staff areas available to the APHIS-WS during the NEPA process. As a minimum, Forest Service participation during the NEPA process shall involve agency experts knowledgeable in wilderness, wildlife, and range management.

(2)Assist in identifying issues; conducting and evaluating public scoping; developing alternatives; and disclosing environmental, economic, and social effects.

(3)Work with the APHIS-WS to ensure decision documents address Forest Service concerns when proposed actions would have an adverse effect upon the wilderness resource and/or the continued viability of native species.

(4)Seek expertise from State fish and wildlife agencies as appropriate. c. *Conflict Resolution.* When a Forest Service representative determines that a proposed management activity may have an adverse affect on wilderness resources or the continued viability of a native species, the Forest Service representative shall work with their APHIS-WS counterpart to resolve the Forest Service's concern. If the dispute cannot be resolved, the issue shall be elevated to the next organizational level within each agency. 5. *Coordination with State Governments and Private Individuals.* The Forest Service recognizes that State agencies have authority and expertise to conduct predator damage management on NFS lands, including wilderness, and that State agencies and private individual may perform predator damage management on NFS lands when conducted in accordance with applicable State and Federal laws, regulations, and policies. The Forest Service shall coordinate and cooperate with States and private individuals when predator damage management is conducted under State authority to ensure that wilderness resources on NFS lands are protected. Chapter 2650—Animal Damage Management 2651.6—Wildlife and Fish Damage Management in Wilderness and Research Natural Areas For additional direction of wildlife and fish management in wilderness and research natural areas, see FSM 2151, FSM 2323, and FSM 4063. Wildlife damage management, including predator damage management (FSM 2323.33c), is permitted in wilderness when consistent with direction in FSM 2323 and when needed to address one or more of the following issues: 1. Protect public health and safety. 2. Protect Federally listed threatened or endangered species. 3. Achieve management goals and objectives for wildlife populations as identified for wilderness in forest or wilderness plans, or through other collaborative processes, such as Comprehensive Wildlife Conservation Strategies, memorandums of understanding with State fish and wildlife agencies, and so forth. 4. Prevent serious loss of domestic livestock. Management of non-indigenous species is also permitted when consistent with the applicable Forest land management plan to reduce conflicts with indigenous species. [FR Doc. E6-8839 Filed 6-6-06; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service Sandy River, Kennebec River Watershed, Madison, ME AGENCY: Natural Resources Conservation Service, USDA. ACTION: Notice of availability of Finding of No Significant Impact. SUMMARY: The Natural Resources Conservation Service

(NRCS)has adopted the Environmental Assessment (EA), prepared by the Federal Energy Regulatory Commission

(FERC)in April, 2006, for the Sandy River Project, Madison, Maine (FERC Project No. 11433-016). Upon an independent review of the EA document, NRCS found that the removal of the Sandy River Project dam would not result in a significant impact on the quality of the human environment, particularly when focusing on the significant adverse effects that NEPA is intended to help decision makers avoid and mitigate against. Therefore, NRCS has prepared a Finding of No Significant Impact (FONSI) in compliance with the National Environmental Policy Act (NEPA), as amended, and gives notice that an environmental impact statement is not being prepared. FOR FURTHER INFORMATION CONTACT: Single copies of the EA and FONSI documents, may be obtained by contacting Mr. Kevin White, District Conservationist, USDA-NRCS, 12 High Street, Suite 3, Skowhegan, ME 04976-1998,

(207)474-8324. For additional information related to this notice, contact Joyce Swartzendruber, State Conservationist, Natural Resources Conservation Service, 967 Illinois Avenue, Suite 3, Bangor, ME 04401-2700; telephone

(207)990-9100, Ext. 3. Comments on the EA and FONSI must be received no later than 30 days after this notice is published. EFFECTIVE DATE: June 9, 2006. SUPPLEMENTARY INFORMATION: The sponsoring local organization, Madison Electric Works, concurs with this determination and agrees with carrying forward the proposed project. The objective of the sponsoring local organization is to remove a hydroelectric dam to provide passage for migrating anadromous fish, including Atlantic Salmon and Atlantic Shad. The FONSI has been forwarded to the Federal Energy Regulatory Agency and to various Federal, State and local agencies and interested parties. No administrative action on implementation of the proposed action will be taken until 30 days after the date of this publication in the **Federal Register** . Dated: May 31, 2006. Joyce A. Swartzendruber, State Conservationist. [FR Doc. E6-8842 Filed 6-6-06; 8:45 am] BILLING CODE 3410-16-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request DOC has submitted to the Office of Management and Budget

(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). *Agency:* U.S. Census Bureau. *Title:* 2007 Census of Governments Local Government Directory Survey. *Form Number(s):* G-30. *Agency Approval Number:* None. *Type of Request:* New collection. *Burden:* 9,000 hours. *Number of Respondents:* 36,000. *Avg. Hours Per Response:* 15 minutes. *Needs and Uses:* The U.S. Census Bureau requests Office of Management and Budget approval of the Local Government Directory Survey form G-30. This form will be used to update the universal list of public sector entities for the 2007 Census of Governments. Each of the 36,000 special district governments designated for the census will be sent an appropriate form. Respondents will be asked to verify or correct the name and mailing address of the government, answer the questions on the form, and return the form. The 2007 Census of Governments Local Government Directory Survey consists of two basic content areas: government organization and government employment. For government organization we will ask for authorizing legislation, composition of governing body, services provided, Web address, and corrections to the name and address of the government. For government employment we will ask for full-time employees, part-time employees, and annual payroll. A census of governments is taken at 5-year intervals as required by law under Title 13, United States Code. This form will be used for the following purposes:

(1)To produce the official count of state and local government units in the United States;

(2)to obtain descriptive information on the basic characteristics of governments;

(3)to identify and delete inactive units;

(4)to identify file duplicates and units that were dependent on other governments; and

(5)to update and verify the mailing addresses of governments. *Affected Public:* State, local, or Tribal governments. *Frequency:* Every 5 years. *Respondent's Obligation:* Voluntary. *Legal Authority:* Title 13 U.S.C., section 161. *OMB Desk Officer:* Susan Schechter,

(202)395-5103. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,

(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). *Agency:* U.S. Census Bureau. *Title:* 2007 Economic Census Covering Utilities; Transportation and Warehousing; Finance and Insurance; and Real Estate and Rental and Leasing Sectors. *Form Number(s):* The 36 report forms covered by this request are too numerous to list here. *Agency Approval Number:* None. *Type of Request:* New collection. *Burden:* 951,328 hours. *Number of Respondents:* 787,577. *Avg. Hours Per Response:* One and one half hours. *Needs and Uses:* The 2007 Economic Census covering the Utilities; Transportation and Warehousing; Finance and Insurance; and Real Estate and Rental and Leasing sectors will use a mail canvass, supplemented by data from Federal administrative records, to measure the economic activity of more than 1,230,000 establishments in these sectors of the economy as classified in the North American Industry Classification System (NAICS). The Utilities sector comprises establishments primarily engaged in the provision of utility services through a permanent infrastructure. The Transportation sector comprises establishments primarily engaged in transporting people and goods. The Warehousing sector comprises establishments primarily engaged in the warehousing and storage of goods. The Finance and Insurance sector comprises two types of establishments: Those engaged in financial transactions, that is, transactions involving the creation, liquidation, or change in ownership of financial assets, or in facilitating financial transactions; and those engaged in the intermediating as the consequence of pooling risks and facilitating such intermediation. The Real Estate subsector comprises establishments primarily engaged in leasing real estate to others, as well as real estate managers, agents, and brokers. The Rental and Leasing subsector comprises establishments primarily engaged in acquiring, owning, and making available a wide variety of tangible goods such as machinery, equipment, computers, and consumer goods to businesses or individuals, in return for a periodic rental or lease payment. The economic census will produce basic statistics by kind of business on number of establishments, revenue, payroll, and employment. It also will yield a variety of subject statistics, including revenue by product line, and other industry-specific measures, such as insurance benefits paid to policyholders, exported services, purchased transportation, and exported energy. Basic statistics will be summarized for the United States, states, metropolitan areas and, in some cases, for counties and places having 2,500 inhabitants or more. Tabulations of subject statistics also will present data for the United States and, in some cases, for states. The economic census is the primary source of facts about the structure and functioning of the Nation's economy and features unique industry and geographic detail. Economic census statistics serve as part of the framework for the national accounts and provide essential information for government, business, and the general public. The Federal Government uses information from the economic census as an important part of the framework for the national income and product accounts, input-output tables, economic indices, and other composite measures that serve as the factual basis for economic policy-making, planning, and program administration. Further, the census provides sampling frames and benchmarks for current surveys of business which track short-term economic trends, serve as economic indicators, and contribute critical source data for current estimates of gross domestic product. State and local governments rely on the economic census as a unique source of comprehensive economic statistics for small geographic areas for use in policy-making, planning, and program administration. Finally, industry, business, academia, and the general public use information from the economic census for evaluating markets, preparing business plans, making business decisions, developing economic models and forecasts, conducting economic research, and establishing benchmarks for their own sample surveys. If the economic census were not conducted, the Federal Government would lose vital source data and benchmarks for the national accounts, input-output tables, and other composite measures of economic activity, causing a substantial degradation in the quality of these important statistics. Further, the government would lose critical benchmarks for current sample-based economic surveys and an essential source of detailed, comprehensive economic information for use in policy-making, planning, and program administration. *Affected Public:* Business or other for-profit; Individuals or households; Not-for-profit institutions; State, local, or Tribal governments. *Frequency:* One time. *Respondent's Obligation:* Mandatory. *Legal Authority:* Title 13 U.S.C., sections 131 and 224. *OMB Desk Officer:* Susan Schechter,

(202)395-5103. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,

(202)482-0266, Department of Commerce, room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dhynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Susan Schechter, OMB Desk Officer either by fax (202-395-7245) or e-mail ( *susan_schechter@omb.eop.gov* ). Dated: June 1, 2006. Madeleine Clayton, Management Analyst, Office of the Chief Information Officer. [FR Doc. E6-8781 Filed 6-6-06; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Bureau of Industry and Security [Docket No. 05-BIS-18] In the Matter of: Swiss Telecom, 777 Bay the Wicket, P.O. Box 46070, Toronto, ON M5G 2P6, Respondent; Decision and Order On November 22, 2005, the Bureau of Industry and Security (“BIS” issued a charging letter alleging that Respondent, Swiss Telecom, committed nine violations of the Export Administration Regulations (Regulations). 1 The Regulations were issued pursuant to the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420 (2000)) (the Act). 2 1 The Regulations are currently codified at 15 C.F.R. Parts 730-774 (2006). The charged violations occurred in 2001 and 2002. The Regulations governing the violations at issue are found in the 2001 and 20002 versions of the Code of Federal Regulations (15 CFR Parts 730-774 (2001-2002)). The 2006 Regulations establish the procedures that apply to this matter. 2 From August 21, 1994 through November 12, 2000, the Act was in lapse. During that period, the President, through Executive Order 12924, which had been extended by successive Presidential Notices, the last of which was August 3, 2000 (3 C.F.R., 2000 Comp. 397 (2001)), continued the Regulation in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (“IEEPA”). On November 13, 2000, the Act was reauthorized and it remained in effect through August 20, 2001. Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 2, 2005 (70 FR 45273 (August 5, 2005)), has continued the Regulations in effect under IEEPA. Specifically, the charging letter alleged that Swiss Telecom conspired and acted in concert with others, known and unknown, to bring about an act that constitutes a violation of the Regulations, namely the export of telecommunications devices to Iran without the required licenses. BIS alleged that the goal of the conspiracy was to obtain telecommunications devices, including devices manufactured by a U.S. company, including an Adit 600 Chassis, FXO Channel Cards, and ABI FXO Ports (ECCN 5A991), 3 items subject to both the Regulations and the Iranian Transactions Regulations 4 of the Treasury Department's Office of Foreign Assets Control (OFAC), on behalf of an Iranian end-user and to export those telecommunications devices to Iran. In doing so, BIS charged that Swiss Telecom committed a violation of § 764.2(d) of the Regulations. 3 The term “ECCN” refers to Export Control Classification Number. *See* 15 CFR 772.1 (2006). 4 31 CFR Part 560 (2006). The charging letter filed by BIS also alleged that, on or about December 17, 2001, and on or about March 7, 2002, Swiss Telecom caused, aided or abetted the doing of an act that was prohibited by the Regulations. Specifically, BIS alleged that Swiss Telecom ordered the aforementioned telecommunications devices from a U.S. company for a project in Iran and told the U.S. company to export the items through the United Arab Emirates

(UAE)to Iran. The U.S. company then exported the devices through the UAE to Iran. These transactions were subject to the Iranian Transactions Regulations, and were done without authorization from OFAC as required by § 746.7 of the Regulations. BIS charged that Swiss Telecom committed two violations of § 764.2(b) of the Regulations. In addition, the BIS charging letter alleged that in connection with the two aforementioned transactions, Swiss Telecom ordered the telecommunications devices for a project in Iran with knowledge that they would be exported from the United States to Iran, via the UAE, without authorization from OFAC. In doing so, BIS charges that two violations of § 764.2(e) of the Regulations were committed. Finally, the BIS charging letter alleged that on four occasions between on or about September 14, 2001, and on or about March 19, 2002, Swiss Telecom caused the doing of an act prohibited by the Regulations by causing the export of technical information subject to the Regulations (ECCN 5E991) from a U.S. company to Iran. Specifically, BIS alleged that a Swiss Telecom employee caused a U.S. company to provide Swiss Telecom with technical data and customer support assistance for equipment in Iran, via telephone, e-mail and telnet. These transactions were subject to the Iranian Transactions Regulations, and were done without authorization from OFAC as required by § 746.7 of the Regulations. This activity was the basis for four charges under § 764.2(b) of the Regulations. In accordance with § 766.3(b)(1) of the Regulations, on November 22, 2005, BIS mailed the notice of issuance of the charging letter by registered mail to Swiss Telecom at its last known address. BIS has established that this charging letter was received by Swiss Telecom on or about December 9, 2005. In addition, BIS mailed notice of issuance of a charging letter by registered mail to counsel for Swiss Telecom. BIS has also established that this charging letter was received by counsel for Swiss Telecom on or about December 8, 2005. Section 766.6(a) of the Regulations provides, in pertinent part, that “[t]he respondent must answer the charging letter within 30 days after being served with notice of issuance of the charging letter” initiating the administrative enforcement proceeding. To date, Swiss Telecom has not filed an answer to the charging letter. Pursuant to the default procedures set forth in § 766.7 of the Regulations, BIS filed a Motion for Default Order on April 7, 2006. Under § 766.7(a) of the Regulations, “[f]ailure of the respondent to file an answer within the time provided constitutes a waiver of the respondent's right to appear,” and “on BIS's motion and without further notice to the respondent, [the ALJ] shall find the facts to be as alleged in the charging letter.” Based upon the record before him, the ALJ held Swiss Telecom in default. Accordingly, on May 12, 2006, the ALJ issued a Recommended Decision and Order in which he found the facts to be as alleged in the charging letter, and determined that those facts established that Swiss Telecom committed one violation of § 764.2(d), six violations of § 764.2(b) and two violations of § 764.2(e) of the Regulations. The ALJ recommended a penalty of denial of Swiss Telecom's export privileges for 10 years. The ALJ's Recommended Decision and Order, together with the entire record in this case, has been referred to me for final action under § 766.22 of the Regulations. I find that the record supports the ALJ's findings of fact and conclusions of law with respect to each of the above-referenced charges brought against Swiss Telecom. I also find that the penalty recommended by the ALJ is appropriate, given the nature of the violations, the importance of preventing future unauthorized exports, and the lack of any mitigating factors. Although the imposition of monetary penalties is an appropriate option, I agree with the ALJ that in this case such a penalty may not be effective, given the difficulty of collecting payment against a party outside the United States. Based on my review of the entire record, I affirm the findings of fact and conclusions of law in the ALJ's Recommended Decision and Order. Accordingly, *it is therefore ordered,* *First,* that, for a period of ten years from the date this Order is published in the **Federal Register** , Swiss Telecom, 777 Bay the Wicket, P.O. Box 46070, Toronto, ON M5G 2P6, and all of its successors and assigns, and, when acting for or on behalf of Swiss Telecom, its officers, representatives, agents, and employees (“Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to: A. Applying for, obtaining, or using any license, License Exception, or export control document; B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations. *Second,* that no person may, directly or indirectly, do any of the following: A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations; B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control; C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States; D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and that is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing. *Third,* that, after notice and opportunity for comment as provided in § 766.23 of the Regulations, any person, firm, corporation, or business organization related to the Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order. *Fourth,* that this Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology. *Fifth,* that this Order shall be served on the Denied Person and on BIS, and shall be published in the **Federal Register.** This Order, which constitutes the final agency action in this matter, is effective upon publication in the **Federal Register.** Dated: June 1, 2006. David H. McCormick, Under Secretary of Commerce for Industry and Security. Recommended Decision and Order On November 22, 2005, the Bureau of Industry and Security, U.S. Department of Commerce (“BIS”), issued a charging letter initiating this administrative enforcement proceeding against Swiss Telecom. The charging letter alleged that Swiss Telecom committed nine violations of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774 (2006)) (the “Regulations”), 1 issued under the Export Administration Act of 1979, as amended (50 U.S.C. App 2401-2420 (2000)) (the “Act”). 2 1 The charged violations occurred in 2001 and 2002. The Regulations governing the violations at issue are found in the 2001 and 2002 versions of the Code of Federal Regulations (15 CFR Parts 730-774 (2001-2002)). The 2006 Regulations establish the procedures that apply to this matter. 2 From August 21, 1994 through November 12, 2000, the Act was in lapse. During that period, the President, through Executive Order 12924, which was extended by successive Presidential Notices, the last of which was August 3, 2000 (3 CFR, 2000 Comp. 397 (2001)), continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-06 (2000)) (“IEEPA”). On November 13, 2000, the Act was reauthorized and it remained in effect through August 20, 2001. Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (34 CFR, 2001 Comp. 783 (2002)), as extended by the Notice of August 2, 2005 (70 FR 45273 (Aug. 5, 2005)), has continued the Regulations in effect under IEEPA. Specifically, the charging letter alleged that Swiss Telecom conspired and acted in concert with others, known and unknown, to bring about an act that constitutes a violation of the Regulations, namely the export of telecommunications devices to Iran without the required licenses. BIS alleged that the goal of the conspiracy was to obtain telecommunications devices, including devices manufactured by a U.S. company, including an Adit 600 Chassis, FXO Channel Cards, and ABI FXO Ports (ECCN 5A991 3 ), items subject to both the Regulations and the Iranian Transactions Regulations 4 of the Treasury Department's Office of Foreign Assets Control (OFAC), on behalf of an Iranian end-user and to export those telecommunications devices to Iran. (Charge 1). 3 The term “ECCN” refers to Export Control Classification Number. *See* 15 CFR 772.1 (2006). 4 31 CFR Part 560 (2006). The charging letter filed by BIS also alleged that, on or about December 17, 2001, and on or about March 7, 2002, Swiss Telecom caused, aided or abetted the doing of an act that was prohibited by the Regulations. Specifically, BIS alleged that Swiss Telecom ordered the aforementioned telecommunications devices from a U.S. company for a project in Iran and told the U.S. company to export the items through the United Arab Emirates

(UAE)to Iran. The U.S. company then exported the devices through the UAE to Iran. These transactions were subject to the Iranian Transactions Regulations, and were done without authorization from OFAC as required by Section 746.7 of the Regulations. (Charges 2 and 3). In addition, the BIS charging letter alleged that in connection with the two aforementioned transactions, Swiss Telecom ordered the telecommunications devices for a project in Iran with knowledge that they would be exported from the United States to Iran, via the UAE without authorization from OFAC. (Charges 4 and 5). Finally, the BIS charging letter alleged that on four occasions between on or about September 14, 2001, and or about March 19, 2002, Swiss Telecom caused the doing of an act prohibited by the Regulations by causing the export of technical information subject to the Regulations (ECCN 5E991) from a U.S. company to Iran. Specifically, BIS alleged that a Swiss Telecom employee caused a U.S. company to provide Swiss Telecom with technical data and customer support assistance for equipment in Iran, via telephone, email and telnet. These transactions were subject to the Iranian Transactions Regulations, and were done without authorization from OFAC as required by § 746.7 of the Regulations. (Charges 6, 7, 8, and 9). Section 766.3(b)(1) of the Regulations provides that notice of the issuance of a charging letter shall be served on a respondent by mailing a copy by registered or certified mail addressed to the respondent at the respondent's last address. In accordance with the Regulations, on November 22, 2005, BIS mailed the notice of issuance of a charging letter by registered mail to Swiss Telecom at its last known address: Swiss Telecom, 777 Bay The Wicket, P.O. Box 46070, Toronto, Ontario M5G 2P6. In addition, BIS mailed the notice of issuance of a charging letter by registered mail to counsel for Swiss Telecom, Mr. Kenneth H. Page, Page Arnold LLP, Suite 2200, 439 University Avenue, Toronto, Ontario, M5G 1Y8. BIS has submitted evidence that establishes that this charging letter was received by Swiss Telecom on or about December 9, 2005. BIS has also submitted evidence that establishes that this charging letter was received by Mr. Arnold Page on or about December 8, 2005. Section 766.6(a) of the Regulations provides, in pertinent part, that “[t]he respondent must answer the charging letter within 30 days after being served with notice of issuance of the charging letter” initiating the administrative enforcement proceeding. To date, Swiss Telecom has not filed an answer to the charging letter. Pursuant to the default procedures set forth in § 766.7 of the Regulations, I find the facts to be as alleged in the charging letter, and hereby determine that those facts establish that Swiss Telecom committed one violation of § 764.2(d), six violations of § 764.2(b), and two violations of § 764.2(e) of the Regulations. Section 764.3 of the Regulations sets forth the sanctions BIS may seek for violations of the Regulations. The applicable sanctions are:

(i)A monetary penalty,

(ii)suspension from practice before the Bureau of Industry and Security, and

(iii)a denial of export privileges under the Regulations. *See* 15 CFR § 764.3 (2001-2002). Because Swiss Telecom knowingly violated the Regulations by causing the export of technical information subject to the Regulations and by ordering telecommunications devices for delivery to Iran, with knowledge that a violation of the Regulations would occur, BIS requests that I recommend to the Under Secretary of Commerce for Industry and Security 5 that Swiss Telecom's export privileges be denied for ten years. 5 Pursuant to Section 13(c)(1) of the Export Administration Act and Section 766.17(b)(2) of the Regulations, in export control enforcement cases, the Administrative Law Judge makes recommended findings of fact and conclusions of law that the Under Secretary must affirm, modify or vacate. The Under Secretary's action is the final decision for the U.S. Commerce Department. BIS has suggested these sanctions because Swiss Telecom's knowing violation in causing the export of controlled technical information and telecommunications devices for delivery to Iran without prior authorization evidences a serious disregard for U.S. export control laws. Furthermore, BIS has noted that Iran is a country that the United States has designated as a state-sponsor of international terrorism. In addition, BIS believes that the imposition of a civil penalty in this case may be ineffective, given the difficulty of collecting payment against a party outside of the United States. In light of these circumstances, BIS believes that the denial of Swiss Telecom's export privileges for ten years is an appropriate sanction. On this basis, I concur with BIS and recommend that the Under Secretary of Commerce for Industry and Security enter an Order denying Swiss Telecom's export privileges for a period of ten years. Such a denial order is consistent with penalties imposed in past cases under the Regulations involving shipments to Iran. *See In the Matter of Petrom GmBH International Trade,* 70 FR 32743 (June 6, 2005) (affirming the recommendations of the Administrative Law Judge that a twenty year denial order and a civil monetary sanction of $143,000 were appropriate where knowing violations involved a shipment of EAR99 items to Iran); *In the Matter of Arian Transportvermittlungs, GmbH,* 69 FR 28120 (May 18, 2004) (affirming the recommendation of the Administrative Law Judge that a ten year denial order was appropriate where knowing violations involved a shipment of a controlled item to Iran); *In the Matter of Jabal Damavand General Trading Company,* 67 FR 32009 (May 13, 2002) (affirming the recommendation of the Administrative Law Judge that a ten year denial order was appropriate where knowing violations involved shipments of EAR99 items to Iran); *In the Matter of Adbulamir Mahdi,* 68 FR 57406 (Oct. 3, 2003) (affirming the recommendation of the Administrative Law Judge that a twenty year denial order was appropriate where knowing violations involved shipments of EAR99 items to Iran as a part of a conspiracy to ship such items through Canada to Iran). A ten year denial of Swiss Telecom's export privileges is warranted because Swiss Telecom's violations, like those of the defendants in the above-cited case, were deliberate acts done in violation of U.S. export control laws. The terms of the denial of export privileges against Swiss Telecom should be consistent with the standard language used by BIS in such orders. The language is: Recommended Order—[Redacted] This Order, which constitutes the final agency action in this matter, is effective upon publication in the **Federal Register.** Accordingly, I am referring this Recommended Decision and Order to the Under Secretary of Commerce for Industry and Security for review and final action for the agency, without further notice to the respondent, as provided in § 766.7 of the Regulations. Within 30 days after receipt of this Recommended Decision and Order, the Under Secretary shall issue a written order affirming, modifying, and vacating the Recommended Decision and Order. *See* 15 CFR 766.22(c). Dated; May 12, 2006. The Honorable Joseph N. Ingolia, *Chief Administrative Law Judge.* [FR Doc. 06-5142 Filed 6-6-06; 8:45 am]

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