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Code · REGISTER · 2007-02-20 · Pension Benefit Guaranty Corporation · Proposed Rules

Proposed Rules. Proposed rule

16,109 words·~73 min read·/register/2007/02/20/07-781

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

BILLING CODE 3410-02-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4006 and 4007 RIN 1212-AB10 Premium Rates; Payment of Premiums; Flat Premium Rates, Variable-Rate Premium Cap, and Termination Premium; Deficit Reduction Act of 2005; Pension Protection Act of 2006 AGENCY: Pension Benefit Guaranty Corporation. ACTION: Proposed rule. SUMMARY: This is a proposed rule to amend PBGC's regulations on Premium Rates and Payment of Premiums to implement certain provisions of the Deficit Reduction Act of 2005 (Pub. L. 109-171) and the Pension Protection Act of 2006 (Pub. L. 109-280) that are effective beginning in 2006 or 2007.
The provisions that would be implemented by this rule change the flat premium rate, cap the variable-rate premium in some cases, and create a new “termination premium” that is payable in connection with certain distress and involuntary plan terminations. This rule does not address other provisions of the Pension Protection Act of 2006 that deal with PBGC premiums. DATES: Comments must be submitted on or before April 23, 2007. ADDRESSES: Comments, identified by RIN number 1212-AB10, may be submitted by any of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* .
Follow the Web site instructions for submitting comments. • *E-mail* : *reg.comments@pbgc.gov* . • *Fax* : 202-326-4224. • *Mail or Hand Delivery* : Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026. All submissions must include the Regulatory Information Number for this rulemaking (RIN 1212-AB10). Comments received, including personal information provided, will be posted to *www.pbgc.gov* . Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington DC 20005-4026, or calling 202-326-4040 during normal business hours.
(TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.) FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, Legislative and Regulatory Department; or Catherine B. Klion, Manager, or Deborah C. Murphy, Attorney, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington DC 20005-4026; 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.
) SUPPLEMENTARY INFORMATION: Background Pension Benefit Guaranty Corporation
(PBGC)administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Pension plans covered by Title IV must pay premiums to PBGC. Section 4006 of ERISA deals with premium rates, and section 4007 of ERISA deals with the payment of premiums, including premium due dates, interest and penalties on premiums not timely paid, and persons liable for premiums. On February 8, 2006, the President signed into law the Deficit Reduction Act of 2005, Pub. L. 109-171 (DRA 2005). Section 8101 of DRA 2005 amends section 4006 of ERISA. Section 8101(a) changes the per-participant flat premium rate for plan years beginning in 2006 from $19 to $30 for single-employer plans and from $2.60 to $8 for multiemployer plans and provides for inflation adjustments to the flat rates for future years. Section 8101(b) creates a new “termination premium” (in addition to the flat-rate and variable-rate premiums under section 4006(a)(3)(A) and
(E)of ERISA) that is payable for three years following certain distress and involuntary plan terminations that occur after 2005. On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Pub. L. 109-280 (PPA 2006). Sections 401(b) and 402(g)(2)(B) of PPA 2006 make changes to the termination premium rules of DRA 2005. Section 405 of PPA 2006 amends section 4006 of ERISA to cap the variable-rate premium for plans of certain small employers beginning in 2007. (PPA 2006 also makes other changes affecting PBGC premiums that are not addressed in this rule.) This rule would amend PBGC's regulations on Premium Rates (29 CFR Part 4006) and Payment of Premiums (29 CFR Part 4007) to conform to these requirements of DRA 2005 and PPA 2006 and to clarify how the requirements apply. Flat-Rate Premium Until the enactment of DRA 2005, the flat-rate premium had remained unchanged for single-employer plans since 1991 and for multiemployer plans since 1989. Section 8101(a) of DRA 2005 amends section 4006(a)(3)(A) of ERISA and adds new subparagraphs
(F)and
(G)to the end of section 4006(a)(3) of ERISA to raise the flat premium rates for 2006 for both single- and multiemployer plans and to provide for inflation indexing for future years. Applicability Before amendment by DRA 2005, section 4006(a)(3)(A) of ERISA provided (in part) that “* * * the annual premium rate * * * is * * * in the case of a single-employer plan, for plan years beginning after December 31, 1990, an amount equal to the sum of $19 plus the [per-participant variable-rate premium] under subparagraph
(E)for each * * * participant * * *” Section 8101(a)(1)(A) of DRA 2005 changes “$19” to read “$30.” Thus, the amended text of ERISA, read literally, makes it appear that the $30 single-employer flat-rate premium applies to plan years beginning after 1990. However, section 8101(d)(1) of DRA 2005 (which does not amend ERISA) says that this change applies to plan years beginning after December 31, 2005. Accordingly, PBGC considers single-employer flat premium rates for plan years beginning before 2006 to be unaffected by DRA 2005. Participant Count Section 8101(a)(2)(A)(ii) of DRA 2005 adds a new clause
(iv)to section 4006(a)(3)(A) of ERISA providing that the flat premium rate for a multiemployer plan for a post-2005 plan year is “$8.00 for each individual who is a participant in such plan during the applicable plan year.” PBGC interprets this to mean that the participant count is to be taken as of the premium snapshot date described in the premium rates regulation and PBGC's premium instructions (generally the last day of the plan year preceding the premium payment year). This is consistent with PBGC's interpretation of the nearly identical language in existing section 4006(a)(3)(A)(i) of ERISA. Inflation Adjustments Section 8101(a)(1)(B) and (2)(B) of DRA 2005 add to section 4006(a)(3) of ERISA substantially identical new subparagraphs
(F)and
(G)providing for inflation adjustments to the $30 and $8 flat rates for plan years beginning after 2006. The adjustments are based on changes in the national average wage index as defined in section 209(k)(1) of the Social Security Act, with a two-year lag—for example, for 2007, it will be the 2005 index that will be compared to the baseline (the 2004 index). However, new subparagraphs
(F)and
(G)are written in such a way that the premium rate can never go down; if the change in the national average wage index is negative, the premium rate remains the same as in the preceding year. Also, under new subparagraphs
(F)and (G), premium rates are rounded to the nearest whole dollar. PBGC interprets this to mean that if the adjustment formula would produce an unrounded premium rate of some number of dollars plus 50 cents, the premium rate will be rounded up. Regulatory Provisions This rule would amend § 4006.3 of the premium rates regulation to reflect the changes to the flat-rate premium made by section 8101(a) of DRA 2005. Existing paragraphs (a)(1) and (a)(2) of § 4006.3 (setting forth the $19 and $2.60 flat rates) would be removed, and a cross-reference to new § 4006.3(c) would be provided instead. Paragraph
(1)of new § 4006.3(c) provides pre-2006 rates ($19 and $2.60); paragraph
(2)provides 2006 rates ($30 and $8); and paragraph
(3)provides post-2006 rates (the greater of the preceding year's rate or the inflation-adjusted rate). The inflation adjustment is described in new § 4006.3(d). Variable-Rate Premium Section 405 of PPA 2006 amends section 4006(a)(3)(E)(i) of ERISA and adds new subparagraph
(H)to the end of section 4006(a)(3) to cap the variable-rate premium for certain plans, effective for plan years beginning after 2006. Plans Covered Clause
(i)of new section 4006(a)(3)(H) of ERISA says that the new variable-rate premium cap applies “[i]n the case of an employer who has 25 or fewer employees on the first day of the plan year.” But clause
(ii)of new section 4006(a)(3)(H) of ERISA makes clear that the applicability of the new cap does not necessarily depend on the size of a single employer, but rather depends on the size of a plan's controlled group, that is, the aggregate size of “all contributing sponsors and their controlled groups.” (See the definition of “controlled group” in § 4001.2 of PBGC's regulation on Terminology (29 CFR Part 4001), which provides that “[a]ny reference to a plan's controlled group means all contributing sponsors of the plan and all members of each contributing sponsor's controlled group”). Since a plan maintained by one contributing sponsor may or may not also be maintained by one or more other contributing sponsors that are not in the first sponsor's controlled group, the applicability of the cap must be determined plan by plan, not employer by employer. Meaning of “employee” New section 4006(a)(3)(H) of ERISA does not give guidance as to the meaning of the term “employee.” PBGC proposes to define “employee” for this purpose by reference to section 410(b)(1) of the Internal Revenue Code, which deals with minimum coverage requirements for qualified plans and requires that employees be counted to evaluate the breadth of coverage of a plan. For this purpose, certain individuals may be counted as “employees” although they might not be considered common law employees of the employer—for example, affiliated service group employees (under Code section 414(m)) and leased employees (under Code section 414(n)). PBGC considers this approach appropriate to prevent an employer from qualifying for the cap by artificially lowering its employee count through the use of sophisticated business structuring devices. In addition, in order to ensure that all employees are counted, PBGC proposes that the employee count be determined without regard to Code section 410(b)(3), (4), and (5), which might be considered to exclude from the count collective bargaining employees, employees not meeting a plan's age and service requirements, and employees in separate lines of business. Cap Amount Under new section 4006(a)(3)(H)(i) of ERISA, the per-participant variable-rate premium is capped at “$5 multiplied by the number of participants in the plan as of the close of the preceding plan year.” PBGC interprets this to mean that the participant count is to be taken as of the premium snapshot date described in the premium rates regulation and PBGC's premium instructions (generally the last day of the plan year preceding the premium payment year). This is consistent with PBGC's interpretation of the nearly identical language in existing section 4006(a)(3)(E)(i) of ERISA. This participant count is the same as the count used as a multiplier under section 4006(a)(3)(A)(i) of ERISA for purposes of both the flat- and variable-rate premiums. Thus, an eligible plan's total variable-rate premium is capped at an amount equal to $5 multiplied by the square of the participant count. Regulatory Provisions This rule would revise § 4006.3(b) of the premium rates regulation to reflect the new cap on the variable-rate premium added by section 405 of PPA 2006. The existing variable-rate premium is described in new paragraph (b)(1) of § 4006.3. The cap is described in new paragraph (b)(2); plans eligible for the cap in new paragraph (b)(3); and the meaning of the term “employee” in new paragraph (b)(4). Paragraph (b)(2) includes an example of the computation of the cap taken from page 95 of the Technical Explanation of H.R. 4, the “Pension Protection Act of 2006,” as Passed by the House on July 28, 2006, and as Considered by the Senate on August 3, 2006, Prepared by the Staff of the Joint Committee on Taxation (August 3, 2006) ( *http://www.house.gov/jct/x-38-06.pdf* ). Termination Premium Section 8101(b) of DRA 2005 adds a new paragraph
(7)to the end of section 4006(a) of ERISA, creating a new “termination premium” that applies only where certain distress and involuntary terminations occur and then only for three years. However, although only section 4006 of ERISA is amended, subparagraph
(D)of new paragraph
(7)in effect modifies section 4007 of ERISA as well. Sections 401(b) and 402(g)(2)(B) of PPA 2006 make changes to the termination premium rules of DRA 2005. Termination Dates Covered Section 8101(d)(2)(A) of DRA 2005 (which does not amend ERISA) restricts the new termination premium to “plans terminated after December 31, 2005.” (Section 401(b)(1) of PPA 2006 repeals new section 4006(a)(7)(E) of ERISA, added by DRA 2005, which provided that the termination premium would not apply “with respect to any plan terminated after December 31, 2010.”) Section 8101(d)(2)(B) of DRA 2005 further restricts the application of the new termination premium in certain bankruptcy situations. If a plan “is terminated during the pendency of any bankruptcy reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State),” the new premium does not apply “if the proceeding is pursuant to a bankruptcy filing occurring before October 18, 2005.” Under section 402(g)(2)(B)(ii) of PPA 2006, this limitation does not apply to an “eligible plan” under section 402(c)(1) of PPA 2006 (generally a plan of a commercial passenger airline or airline catering service) while a funding election under section 402(a)(1) of PPA 2006 is in effect for the plan. These time restrictions on the applicability of the new premium turn on when a plan is “terminated.” PBGC believes that the most natural reading of these provisions is that the date to look to is the termination date under section 4048 of ERISA. Focusing on the section 4048 termination date is also consistent with other provisions of DRA 2005 and implementing regulations discussed below. Types of Terminations Covered Under new section 4006(a)(7)(A) of ERISA, the termination premium applies where “there is a termination of a single-employer plan under clause
(ii)or
(iii)of section 4041(c)(2)(B) [of ERISA] or section 4042 [of ERISA].” Section 4041(c) of ERISA provides for distress terminations; ERISA section 4042 provides for involuntary terminations. Under ERISA section 4041(c)(1), a distress termination of a plan may occur only if each contributing sponsor and each member of any contributing sponsor's controlled group meets one of the “distress tests” in clauses (i), (ii), and
(iii)of section 4041(c)(2)(B). The tests are that the person is the subject of a bankruptcy liquidation proceeding (clause (i)), that the person is the subject of a bankruptcy reorganization proceeding (clause (ii)), or that the person is suffering business hardship (clause (iii)). Although typically all contributing sponsors and controlled group members meet the same distress test, that is not required for a distress termination under section 4041(c). Thus, while terminations where all contributing sponsors and controlled group members meet the test in clause
(i)seem to be excluded from applicability of the termination premium, it is not clear from the statutory language whether the termination premium is to apply to terminations where one or more contributing sponsors and/or controlled group members meet the clause
(i)test but others meet the tests in clauses
(ii)and/or (iii). Examples of such situations would be where there are two contributing sponsors, one liquidating and one reorganizing; where the sole contributing sponsor is liquidating but there are controlled group members that are reorganizing; and where the sole contributing sponsor is reorganizing but the controlled group members are liquidating. The statutory language provides no basis for distinguishing among these examples or others that might be cited. All contributing sponsors and controlled group members are liable for plan underfunding under ERISA section 4062 and (as discussed below) for the termination premium (if it applies), and they must all satisfy one or another distress test under ERISA section 4041(c)(2)(B) for a distress termination to take place. This suggests that all these entities should be considered responsible as a group for the consequences of plan termination and that the fact that one entity among several is liquidating should not shield the others from liability. PBGC thus interprets new section 4006(a)(7)(A) of ERISA as applying the termination premium in any distress termination case where at least one contributing sponsor or controlled group member meets the distress test in either clause
(ii)or
(iii)of section 4041(c)(2)(B) (i.e., is not liquidating). Payers Section 4007(a) of ERISA places responsibility for paying PBGC premiums on the “designated payor” of a plan, and section 4007(e)(1)(A) of ERISA identifies the designated payor of a single-employer plan as the contributing sponsor or plan administrator. However, new section 4006(a)(7)(D)(i)(II) of ERISA, as added by section 8101(b) of DRA 2005, provides that notwithstanding section 4007, the designated payor of the new termination premium is “the person who is the contributing sponsor as of immediately before the termination date.” It thus appears that the designated payor is to be identified as of the day before the termination date under section 4048 of ERISA. Similarly, this rule provides for identification of members of the contributing sponsor's controlled group (which are jointly and severally liable for premiums under section 4007(e)(2) of ERISA) as of the same day. Participants Under new section 4006(a)(7)(A) of ERISA, the termination premium is based on the number of “participants in the plan immediately before the termination date.” It thus appears that participants are to be counted—for purposes of computing the termination premium—as of the day before the termination date under section 4048 of ERISA (the same day on which the contributing sponsor and controlled group members are determined). Section 4006.6 of the premium rates regulation already includes a definition of “participant” (which is used in computing the flat-rate premium), and DRA 2005 suggests no reason to depart from that definition for purposes of the termination premium. Due Dates The termination premium is payable each year for three years. Under new section 4006(a)(7)(D)(i)(I) of ERISA, as added by section 8101(b) of DRA 2005, the new premium is due within 30 days after the beginning of each of three “applicable 12-month periods,” which are in turn described in new section 4006(a)(7)(C). New section 4006(a)(7)(C)(i)(I) provides that in general, the first applicable 12-month period starts with “the first month following the month in which the termination date occurs.” (From this it is evident that calendar months are meant.) Under new section 4006(a)(7)(C)(i)(II), the second and third applicable 12-month periods are simply the two 12-month periods that follow the first applicable 12-month period. But new section 4006(a)(7)(C)(ii) of ERISA defers the beginning of the first applicable 12-month period (and thus the due dates) in certain bankruptcy reorganization cases. This deferral rule comes into play where “the requirements of subparagraph
(B)[of new section 4006(a)(7) of ERISA] are met in connection with the termination of the plan * * *.” (Section 401(b)(2) of PPA 2006 corrected an erroneous reference to “subparagraph (B)(i)(I)” in new section 4006(a)(7)(C)(ii) of ERISA.) Subparagraph
(B)of new section 4006(a)(7)(B) of ERISA defers the applicability of the termination premium for distress or involuntary plan terminations that occur when bankruptcy reorganization proceedings are pending for terminations “under section 4041(c)(2)(B)(ii) [of ERISA] or under section 4042 [of ERISA].” Following the same reasoning discussed above regarding new section 4006(a)(7)(A) of ERISA (the general termination premium applicability provision), PBGC concludes that the bankruptcy reorganization deferral provision in new section 4006(a)(7)(B) of ERISA is meant to apply to a distress termination only when at least one contributing sponsor or controlled group member satisfies the bankruptcy reorganization test in section 4041(c)(2)(B)(ii). In order for the due date deferral rule in new section 4006(a)(7)(C)(ii) of ERISA to apply, the requirements of subparagraph
(B)of section 4006(a)(7) of ERISA must be met “with respect to 1 or more persons described in such subparagraph” (that is, one or more persons must be reorganizing in bankruptcy as described in subparagraph (B)). If so, then the first applicable 12-month period begins with “the first month following the month which includes the earliest date as of which each such person is discharged or dismissed in the case described in such clause [sic] in connection with such person.” (The only clause mentioned in section 4006(a)(7)(C)(ii) of ERISA is clause (i)(I) of section 4006(a)(7)(C), which describes the first applicable 12-month period that applies if the special bankruptcy rule does not. Thus the reference to “such clause” appears to be intended to refer to “such subparagraph”—that is, subparagraph (B)—and PBGC so interprets the reference.) However, although subparagraph
(B)of new section 4006(a)(7) of ERISA describes a case—a bankruptcy case—it does not describe a person. The only person mentioned in subparagraph
(B)is “such person,” with no cross-reference to another place where the person is described. Nonetheless, it seems clear that the person referred to must be a person that has a relationship to both the plan and the bankruptcy proceeding mentioned in subparagraph (B). Subparagraph
(B)contains parenthetical language that is essentially identical to parenthetical language that appears in section 4041(c)(2)(B)(ii) of ERISA (which describes the bankruptcy reorganization test for distress terminations). In section 4041(c)(2)(B)(ii), the words “such person” in the parenthetical language refer to a contributing sponsor or member of a contributing sponsor's controlled group. PBGC infers that “such person” in new section 4006(a)(7)(B) of ERISA is meant to refer likewise to a contributing sponsor of the terminated plan or member of a contributing sponsor's controlled group—determined (consistent with the designated payor provision in new section 4007(a)(7)(D)(i)(II)) as of the day before the termination date under section 4048 of ERISA. This inference is supported by the observation that these same persons—contributing sponsors and controlled group members—are the persons liable for the termination premium. It appears that Congress' intent was to defer the due date for the termination premium until the persons liable to pay it were not in bankruptcy proceedings. Accordingly, where the special bankruptcy rule for due dates applies, it is necessary to identify every contributing sponsor and controlled group member that was involved in bankruptcy reorganization proceedings on the termination date and determine the date when each one left bankruptcy—through dismissal of or discharge from the proceeding—or ceased to exist. (If an entity ceases to exist, its failure to emerge from bankruptcy should not postpone the termination premium due date.) Under new section 4006(a)(7)(C)(ii), the first applicable 12-month period for the termination will then begin with the calendar month that next begins following the last such date. One due date issue not addressed by the statute is that the agreement or court action establishing a plan's termination date under ERISA section 4048 may occur well after the termination date so established. Where a termination date is thus “retroactively” set, one or more statutory due dates for the termination premium may already have passed when the termination date becomes known. Thus, termination premium payments could be overdue before it was determined that they were owed. In cases of that kind, PBGC considers it appropriate to provide that where the termination date is set retroactively, the first applicable 12-month period does not begin immediately after the month in which the termination date falls, but rather begins immediately after the month in which the termination date is established. Where the special bankruptcy rule for due dates applies, this rule would come into play if the termination date was established after all contributing sponsors and controlled group members were out of bankruptcy reorganization proceedings, and would defer the beginning of the first applicable 12-month period until immediately after the month in which the termination date was established. Other Bankruptcy Issues The parenthetical language in new section 4006(a)(7)(B) of ERISA—“(or a case described in section 4041(c)(2)(B)(i) filed by or against such person has been converted, as of such date, to such a case in which reorganization is sought)”—shows that Congress focused on the fact that bankruptcy proceedings can be converted back and forth between liquidation and reorganization proceedings. But neither section 4006(a)(7)(B) nor section 4006(a)(7)(C)(ii) (which describes the special first applicable 12-month period) mentions conversion of a reorganization case to a liquidation case as being sufficient to trigger the beginning of the first applicable 12-month period. It thus appears that even after such a conversion, the first applicable 12-month period would be postponed until the (liquidation) bankruptcy proceeding were dismissed or the contributing sponsor or controlled group member discharged. This could be of significance where there were other persons liable for the termination premium that were not (or were no longer) in bankruptcy. Section 8101(d)(2)(B) of DRA 2005 (which, as discussed above, excludes from the termination premium terminations that occur during the pendency of bankruptcy reorganization proceedings pursuant to a filing before October 18, 2005) says nothing about the persons involved in such proceedings. Following the reasoning above, PBGC concludes that section 8101(d)(2)(B) is intended to apply only where the subject of a pending bankruptcy proceeding is a contributing sponsor of the terminated plan or a member of a contributing sponsor's controlled group (and that these persons are to be identified as of the day before the termination date under section 4048 of ERISA). Section 8101(d)(2)(B) also does not mention conversion of a bankruptcy case from a liquidation proceeding to a reorganization, as new section 4006(a)(7)(B) of ERISA does. But the language of section 8101(d)(2)(B) is consistent with the interpretation that—like section 4006(a)(7)(B)—it covers bankruptcy proceedings begun as liquidation proceedings and converted to reorganization proceedings before the termination date under section 4048 of ERISA. Termination Premium Rate Under new section 4006(a)(7) of ERISA as added by section 8101(b) of DRA 2005, the termination premium is $1,250 per participant per year for three years. But under section 402(g)(2)(B) of PPA 2006 (which does not amend ERISA), the rate is increased from $1,250 to $2,500 where a commercial passenger airline or airline catering service elects funding relief (an extended underfunding amortization period and lenient assumptions for valuing liabilities) for a frozen plan under section 402(a)(1) of PPA 2006, if the plan terminates during the first five years of the funding relief period, unless the Secretary of Labor determines that the termination resulted from extraordinary circumstances such as a terrorist attack or other similar event. Regulatory Provisions This rule would add a new § 4006.7 to the premium rates regulation providing that the amount of the termination premium with respect to each applicable 12-month period is the premium rate (generally $1,250) times the number of participants, determined as of the day before the termination date, with a cross-reference from § 4006.3 (where the flat and variable premium rates are set forth). New § 4006.7(b) also explains the circumstances in which the termination premium rate is $2,500 rather than $1,250. In addition, the rule would add a new § 4007.13 to the premium payment regulation (with a cross-reference from § 4006.7), where the rest of the provisions about the termination premium are found. New § 4007.13 contains provisions specific to the termination premium, and it supplements provisions in existing sections of Part 4007 that also apply to the termination premium. Section 4007.13(a) describes when the termination premium applies; § 4007.13 (d), (e), and
(f)deal with due dates; § 4007.13(g) deals with what persons are liable for the termination premium. The provisions on these three topics reflect the discussions above. Section 4007.13(b) makes each contributing sponsor and controlled group member (determined as of the day before the termination date under section 4048 of ERISA) responsible for filing required termination premium information and payments, and (where there is more than one such person) provides that any one can file on behalf of all of them. This provision ensures that, so long as there is at least one person still in existence that is liable for the termination premium, there will be at least one identifiable entity with responsibility to file. This provision is similar to § 4010.3 of PBGC's regulation on Annual Financial and Actuarial Information Reporting (Part 4010 of PBGC's regulations) and § 4043.3(a) of PBGC's regulation on Reportable Events and Certain Other Notification Requirements (Part 4043 of PBGC's regulations). Thus, only a single filing of the premium and required premium information is required, but if it is not timely made, PBGC could seek enforcement against any or all contributing sponsors and controlled group members. Section 4007.13(c) provides for a discretionary “facts-and-circumstances” penalty for failure to pay the termination premium timely, instead of the automatic 1 percent or 5 percent penalty that applies to late payment of flat- and variable-rate premiums under § 4007.8(a). PBGC wants to preserve flexibility in penalizing failures to pay the new premium in full and on time while it gains experience with the new premium. The penalty is limited to 100 percent of the amount of termination premium not timely filed. In addition, this rule would amend several sections in the existing premium payment regulation to eliminate inconsistencies or potential inconsistencies between existing language in those sections and the termination premium provisions. Technical Changes PBGC is taking this opportunity to make some technical changes (unrelated to DRA 2005 or PPA 2006) to its regulations on Premium Rates and Payment of Premiums. Section 4006.3 of the premium rates regulation refers to basic benefits guaranteed under section 4022(a) of ERISA (which relates only to single-employer plans) and omits mention of section 4022A(a) of ERISA (which relates to multi-employer plans). This rule would add a reference to section 4022A(a). Section 4007.11(d) of the premium payment regulation states that where proration of the flat- and variable-rate premiums is available under § 4006.5(f) of the premium rates regulation, the un-prorated premium must be paid in full (even if the plan would be entitled to a refund). This provision is anachronistic: PBGC now permits payment of the prorated amount under § 4006.5(f), rather than requiring that a filer pay the un-prorated amount and request a refund. This rule would remove the outdated provision. Section 4007.11(e) of the premium payment regulation permits PBGC to return improper filings and consider them not made. PBGC is not exercising this authority, and the provision is unnecessary; PBGC has authority to assess penalties under ERISA section 4071 for failure to submit material information under the premium payment regulation. This rule would remove § 4007.11(e). Applicability The regulatory changes made by this rule to implement the provisions of section 8101 of DRA 2005 would apply (as section 8101 of DRA 2005 does) to plan years beginning after 2005 and to terminations with termination dates after 2005 (subject to the special rule for bankruptcies filed before October 18, 2005). The regulatory changes made by this rule to implement the provisions of section 405 of PPA 2006 would apply (as section 405 of PPA 2006 does) to plan years beginning after 2006. Compliance With Rulemaking Guidelines The PBGC has determined, in consultation with the Office of Management and Budget, that this proposed rule is a “significant regulatory action” under Executive Order 12866. The Office of Management and Budget, therefore, has reviewed the rule under Executive Order 12866. PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this rule will not have a significant economic impact on a substantial number of small entities. This rule implements statutory changes made by Congress. It provides guidance on how to calculate, pay, and substantiate the premiums prescribed by statute and imposes no significant burden beyond the burden imposed by statute. Furthermore: • The statutorily imposed increase in the flat-rate premium is at most $11 per participant per year, which does not constitute a significant economic impact where a plan has a small number of participants. Although the flat-rate premium will increase as the number of participants increases, the economic impact of the flat-rate premium relative to the size of the entity will remain fairly constant and will not be significant for a substantial number of entities of any size. • The statutorily imposed cap on the variable-rate premium will save qualifying plans money. The rule simply interprets the statutory provisions. • The statutorily imposed termination premium will not affect a substantial number of entities of any size. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), sections 603 and 604 do not apply. The information requirements relating to the flat-rate and variable-rate premiums have been approved by the Office of Management and Budget under the Paperwork Reduction Act (OMB control number 1212-0009, expires April 30, 2008). PBGC is submitting the information requirements relating to the termination premium to the Office of Management and Budget for review and approval under the Paperwork Reduction Act. Copies of PBGC's request may be obtained free of charge by contacting the Disclosure Division of the Office of the General Counsel of PBGC, 1200 K Street, NW., Washington, DC 20005, 202-326-4040. PBGC needs this information to identify the plan for which a termination premium is paid to PBGC, to verify the determination of the premium, and to identify the persons liable for the premium. PBGC expects that it will receive termination premium filings from about 30 contributing sponsors or controlled group members annually and that the total annual burden of the collection of information will be about 40 hours and $264,000. Comments on the paperwork provisions under this proposed rule should be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, Washington, DC 20503. Although comments may be submitted through April 23, 2007, the Office of Management and Budget requests that comments be received on or before March 22, 2007 to ensure their consideration. Comments may address (among other things)— • Whether the proposed collection of information is needed for the proper performance of PBGC's functions and will have practical utility; • The accuracy of PBGC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhancement of the quality, utility, and clarity of the information to be collected; and • Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. List of Subjects 29 CFR Part 4006 Pension insurance, Pensions. 29 CFR Part 4007 Penalties, Pension insurance, Pensions, Reporting and recordkeeping requirements. For the reasons given above, PBGC is amending 29 CFR parts 4006 and 4007 as follows. PART 4006—PREMIUM RATES 1. The authority citation for part 4006 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1306, 1307. 2. In § 4006.3: a. The introductory text is amended by removing the words “§ 4006.5 (dealing with exemptions and special rules)” and adding in their place the words “§ 4006.5 (dealing with exemptions and special rules) and § 4006.7 (dealing with premiums for certain terminated single-employer plans)”; and by removing the words “section 4022(a)” and adding in their place the words “section 4022(a) or section 4022A(a)”. b. Paragraph
(a)introductory text is amended by removing the words “multiplied by—” and adding in their place the words “multiplied by the applicable flat premium rate determined under paragraph
(c)of this section.”. c. Paragraphs (a)(1) and (a)(2) are removed. d. Paragraph
(b)is revised, and new paragraphs
(c)and
(d)are added, to read as follows: § 4006.3 Premium rate.
(b)*Variable-rate premium.*
(1)*In general.* Subject to the limitation in paragraph (b)(2) of this section, the variable-rate premium is $9 for each $1,000 of a single-employer plan's unfunded vested benefits, as determined under § 4006.4.
(2)*Cap on variable-rate premium.* If a plan is described in paragraph (b)(3) of this section for the premium payment year, the variable-rate premium does not exceed $5 multiplied by the square of the number of participants in the plan on the last day of the plan year preceding the premium payment year. For example, if the number of participants in the plan on the last day of the plan year preceding the premium payment year is 20, the variable-rate premium does not exceed $2,000 ($5 × 20 2 = $5 × 400 = $2,000).
(3)*Plans eligible for cap.* A plan is described in this paragraph (b)(3) for the premium payment year if the aggregate number of employees of all employers in the plan's controlled group on the first day of the premium payment year is 25 or fewer.
(4)*Meaning of “employee.”* For purposes of paragraph (b)(3) of this section, the aggregate number of employees is determined in the same manner as under section 410(b)(1) of the Code, taking into account the provisions of section 414(m) and
(n)of the Code, but without regard to section 410(b)(3), (4), and
(5)of the Code.
(c)*Applicable flat premium rate.* The applicable flat premium rate is:
(1)For a premium payment year beginning before 2006—
(i)For a single-employer plan, $19, and
(ii)For a multiemployer plan, $2.60.
(2)For a premium payment year beginning in 2006—
(i)For a single-employer plan, $30, and
(ii)For a multiemployer plan, $8.
(3)For a premium payment year beginning after 2006, the greater of—
(i)The applicable flat premium rate for plan years beginning in the calendar year preceding the calendar year in which the premium payment year begins, or
(ii)The adjusted flat rate determined under paragraph
(d)of this section for the premium payment year.
(d)*Adjusted flat rate.* The adjusted flat rate for a premium payment year beginning after 2006 is determined by—
(1)Multiplying the applicable flat premium rate for 2006 by the ratio of—
(i)The national average wage index (as defined in section 209(k)(1) of the Social Security Act) for the first of the two calendar years preceding the calendar year in which the premium payment year begins, to
(ii)The national average wage index (as so defined) for 2004; and
(2)Rounding the result to the nearest multiple of $1 (rounding up any unrounded result that equals some whole number of dollars plus 50 cents). 3. New § 4006.7 is added to read as follows: § 4006.7 Premium rate for certain terminated single-employer plans.
(a)The premium under this section (“termination premium”) applies to a DRA 2005 termination described in § 4007.13 of this chapter.
(b)The amount of the premium under this section that is payable with respect to each applicable 12-month period (as described in § 4007.13 of this chapter) is the number of participants in the plan, determined as of the day before the termination date under section 4048 of ERISA, multiplied by the termination premium rate. In general, the termination premium rate is $1,250. However, the termination premium rate is $2,500 for an “eligible plan” under section 402(c)(1) of the Pension Protection Act of 2006 (dealing with certain plans of commercial passenger airlines and airline catering services) while an election under section 402(a)(1) of the Pension Protection Act of 2006 (dealing with alternative funding schedules) is in effect for the plan if the plan terminates during the five-year period beginning on the first day of the first applicable plan year (as defined in section 402(c)(2) of that Act) with respect to the plan, unless the Secretary of Labor determines that the plan terminated as a result of extraordinary circumstances such as a terrorist attack or other similar event.
(c)The premium under this section is in addition to any other premium under this part.
(d)See § 4007.13 of this chapter for further rules about termination premiums. PART 4007—PAYMENT OF PREMIUMS 4. The authority citation for part 4007 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1303(a), 1306, 1307. 5. Section 4007.3 is amended by removing the words “The plan administrator” and adding in their place the words “Subject to the provisions of § 4007.13, the plan administrator”; and by removing “§ 4007.11” and adding in its place the words “this part”. 6. In § 4007.7, paragraph
(a)is amended by removing “§ 4007.11” and adding in its place the words “this part”. 7. In § 4007.8: a. Paragraph
(a)introductory text is amended by removing the words “If any premium payment due” and adding in their place the words “Subject to the provisions of § 4007.13, if any premium payment due”; and by removing “§ 4007.11” and adding in its place the words “this part”. b. Paragraph (a)(1)(i) is amended by removing the word “plan's”. c. Paragraph (a)(1) introductory text is revised to read as follows: § 4007.8 Late payment penalty charges.
(a)*Penalty charge.* * * *
(1)*Penalty rate; in general.* Except as provided in paragraph (a)(2) of this section, the penalty rate is— 8. In § 4007.9, paragraph
(a)is amended by removing the words “by a plan administrator”; and by removing the words “that plan's” and adding in their place the words “a plan's”. 9. In § 4007.10: a. Paragraph (a)(1) is amended by removing the words “plan administrator” and adding in their place the words “designated recordkeeper under paragraph (a)(3) of this section”. b. Paragraph (a)(2) is amended by removing the words “The plan administrator” and adding in their place the words “A designated recordkeeper”. c. Paragraph
(b)is amended by removing the words “for any premium payment year”. d. Paragraph (c)(1) is amended by removing the words “The plan administrator” and adding in their place the words “A designated recordkeeper”. e. Paragraph (c)(2) is amended by removing the words “the plan administrator” and adding in their place the words “a designated recordkeeper”. f. Paragraph (c)(2)(ii) is amended by removing the words “plan administrator” and adding in their place the words “designated recordkeeper”. g. New paragraph (a)(3) is added to read as follows: § 4007.10 Recordkeeping; audits; disclosure of information.
(a)*Retention of records to support premium payments.*
(3)*Designated recordkeepers.*
(i)With respect to the flat-rate and variable-rate premiums described in § 4006.3 of this chapter, the plan administrator is the designated recordkeeper.
(ii)With respect to the premium for certain terminated single-employer plans described in § 4006.7 of this chapter, each person who was a contributing sponsor of such a plan, or was a member of a contributing sponsor's controlled group, as of the day before the plan's termination date is a designated recordkeeper. 10. In § 4007.11: a. Paragraph
(a)introductory text is amended by removing the words “The premium filing due date for small plans” and adding in their place the words “For flat-rate and variable-rate premiums, the premium filing due date for small plans”. b. Paragraph (a)(3) introductory text is amended by removing the words “the premium form or forms and payment or payments for the short plan year shall be filed by” and adding in their place the words “the due date or dates for the flat-rate premium and any variable-rate premium for the short plan year are”; and by removing the words “for the premium forms and payments”. c. Paragraph
(c)introductory text is amended by removing the words “the premium form and all premium payments due for the first plan year of coverage of any new plan or newly covered plan shall be filed on or before” and adding in their place the words “the due date for the flat-rate premium and any variable-rate premium for the first plan year of coverage of any new plan or newly covered plan shall be”. d. Paragraph
(d)is amended by removing the words “to file the forms or forms prescribed by this part and to pay any premiums due” and adding in their place the words “to make flat-rate and (as applicable) variable-rate premium filings and payments under this part”; and by removing the last sentence of the paragraph (beginning “The entire * * *” and ending “* * * § 4006.5(f).”). e. Paragraph
(e)is removed. 11. In § 4007.12, paragraph
(a)is amended by removing the words “to file the applicable forms and to submit the premium payment” and adding in their place the words “to make flat-rate and variable-rate premium filings and payments under this part”; and by removing the words “liable for premium payments” and adding in their place “liable for flat-rate and variable-rate premium payments”. 12. New § 4007.13 is added to read as follows: § 4007.13 Premiums for certain terminated single-employer plans.
(a)*Applicability.*
(1)*In general.* This section applies where there is a “DRA 2005 termination” of a plan. Subject to paragraph (a)(2) of this section, there is a DRA 2005 termination where a single-employer plan's termination date under section 4048 of ERISA is after 2005 and either—
(i)The plan terminates under section 4042 of ERISA, or
(ii)The plan terminates under section 4041(c) of ERISA and at least one contributing sponsor or member of a contributing sponsor's controlled group meets the requirements of section 4041(c)(2)(B)(ii) or
(iii)of ERISA.
(2)*Plans terminated during reorganization proceedings.* Except as provided in paragraph (a)(3) of this section, a DRA 2005 termination of a plan does not occur where as of the plan's termination date under section 4048 of ERISA—
(i)A bankruptcy proceeding has been filed by or against any person that was a contributing sponsor of the plan on the day before the plan's termination date or that was on that day a member of any controlled group of which any such contributing sponsor was a member,
(ii)The proceeding is pending as a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State),
(iii)The person has not been discharged from the proceeding, and
(iv)The proceeding was filed before October 18, 2005.
(3)*Special rule for certain airline-related plans.* Paragraph (a)(2) of this section does not apply to an “eligible plan” under section 402(c)(1) of the Pension Protection Act of 2006 (dealing with certain plans of commercial passenger airlines and airline catering services) while an election under section 402(a)(1) of the Pension Protection Act of 2006 (dealing with alternative funding schedules) is in effect for the plan.
(4)*Termination premium.* A premium as described in § 4006.7 of this chapter is payable to PBGC with respect to a DRA 2005 termination each year for three years after the termination (the “termination premium”).
(b)*Filing requirements; method of filing.* Notwithstanding § 4007.3, in the case of a DRA 2005 termination of a plan, each person that was a contributing sponsor of the plan on the day before the plan's termination date or that was on that day a member of any controlled group of which any such contributing sponsor was a member is responsible for filing prescribed termination premium information and payments. Any such person may file on behalf of all such persons.
(c)*Late payment penalty charges.* Notwithstanding § 4007.8(a), if any required termination premium payment is not filed by the due date under paragraph
(d)of this section, PBGC may assess a late payment penalty charge based on the facts and circumstances, subject to waiver under § 4007.8(b), (c), (d), or (e). The charge will not exceed the amount of termination premium not timely filed.
(d)*Due dates.* Notwithstanding § 4007.11, the due date for the termination premium is the 30th day of each of three applicable 12-month periods. The three applicable 12-month periods with respect to a DRA 2005 termination of a plan are—
(1)*First applicable 12-month period.* Except as provided in paragraph
(e)or
(f)of this section, the period of 12 calendar months beginning with the first calendar month following the calendar month in which occurs the plan's termination date under section 4048 of ERISA, and
(2)*Subsequent applicable 12-month periods.* Each of the first two periods of 12 calendar months that immediately follow the first applicable 12-month period.
(e)*Certain reorganization cases.*
(1)This paragraph
(e)applies with respect to a DRA 2005 termination of a plan if the conditions in both paragraph (e)(2) and paragraph (e)(3) of this section are satisfied.
(2)The condition of this paragraph (e)(2) is that either—
(i)The plan terminates under section 4042 of ERISA, or
(ii)The plan terminates under section 4041(c) of ERISA and at least one contributing sponsor or member of a contributing sponsor's controlled group meets the requirements of section 4041(c)(2)(B)(ii) of ERISA.
(3)The condition of this paragraph (e)(3) is that as of the plan's termination date under section 4048 of ERISA—
(i)A bankruptcy proceeding has been filed by or against any person that was a contributing sponsor of the plan on the day before the plan's termination date or that was on that day a member of any controlled group of which any such contributing sponsor was a member,
(ii)The proceeding is pending as a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State), and
(iii)The person has not been discharged from the proceeding.
(4)If this paragraph
(e)applies with respect to a DRA 2005 termination of a plan, then except as provided in paragraph
(f)of this section, the first applicable 12-month period with respect to the plan is the period of 12 calendar months beginning with the first calendar month following the calendar month in which occurs the earliest date when, for every person that was a contributing sponsor of the plan on the day before the plan's termination date under section 4048 of ERISA, or that was on that day a member of any controlled group of which any such contributing sponsor was a member, either—
(i)There is not pending any bankruptcy proceeding that was filed by or against such person and that was, as of the plan's termination date under section 4048 of ERISA, a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State), or
(ii)The person has been discharged from any such proceeding, or
(iii)The person no longer exists.
(f)*Retroactive plan termination date.* If a plan's termination date under section 4048 of ERISA is in the past when it is established by agreement or court action as described in section 4048 of ERISA, then the first applicable 12-month period for determining the due dates of the termination premium begins with the later of—
(1)The first calendar month following the calendar month in which the termination date is established by agreement or court action as described in section 4048 of ERISA, or
(2)The first calendar month specified in paragraph (d)(1) of this section or (if paragraph
(e)of this section applies) paragraph (e)(4) of this section.
(g)*Liability for termination premiums.* In the case of a DRA 2005 termination of a plan, each person that was a contributing sponsor of the plan on the day before the plan's termination date, or that was on that day a member of any controlled group of which any such contributing sponsor was a member, is jointly and severally liable for termination premiums with respect to the plan. Issued in Washington, DC, this 13th day of February, 2007. Vincent K. Snowbarger, Interim Director, Pension Benefit Guaranty Corporation. [FR Doc. E7-2812 Filed 2-16-07; 8:45 am] BILLING CODE 7709-01-P 72 33 Tuesday, February 20, 2007 Notices AMERICAN BATTLE MONUMENTS COMMISSION SES Performance Review Board AGENCY: American Battle Monuments Commission. ACTION: Notice. SUMMARY: Notice is hereby given of the appointment of members of the ABMC Performance Review Board. FOR FURTHER INFORMATION CONTACT: Theodore Gloukhoff, Director of Personnel and Administration, American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon Boulevard, Arlington, Virginia, 22201-3367, *Telephone Number:*
(703)696-6908. American Battle Monuments Commission SES Performance Review Board Dr. Susan L. Duncan, Director, Human Resources, US Army Corps of Engineers; Mr. Joseph Tyler, Chief, Program Management Division, US Army Corps of Engineers; Mr. Wesley C. Miller, Director, Resource Management, US Army Corps of Engineers. Theodore Gloukhoff, Director, Personnel and Administration. [FR Doc. E7-2853 Filed 2-16-07; 8:45 am] BILLING CODE 6120-01-P DEPARTMENT OF COMMERCE International Trade Administration (A-570-803) Heavy Forged Hand Tools from the People's Republic of China: Notice of Court Decision Not In Harmony With Final Results of Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On January 9, 2007, the United States Court of International Trade (“CIT”) sustained the final remand redetermination made by the Department of Commerce (“the Department”) pursuant to the CIT's remand of the final results of the eleventh administrative review of the antidumping duty orders on heavy forged hand tools from the People's Republic of China. *See Shandong Huarong Machinery Co. v. United States and Ames True Temper* , Slip Op. 2007-3 (CIT, 2007) (“ *Shandong Huarong II* ”). This case arises out of the Department's final results in the administrative review covering the period February 1, 2001, through January 31, 2002. *See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Final Results of Antidumping Duty Administrative Review of the Order on Bars and Wedges* , 68 FR 53347 (September 10, 2003) (“ *Final Results* ”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in *Timken Co. v. United States* , 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that *Shandong Huarong II* is not in harmony with the Department's *Final Results* . EFFECTIVE DATE: February 20, 2007 FOR FURTHER INFORMATION CONTACT: Thomas Martin or Mark Manning; AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., N.W., Washington, DC 20230; telephone:
(202)482-3936 or
(202)482-5253, respectively. SUPPLEMENTARY INFORMATION: In *Shandong Huarong Machinery Co. v. United States* , No. 03-00676 (CIT, 2005) (“ *Shandong Huarong I* ”), the CIT remanded the underlying final results to the Department to:
(1)reopen the record in order to afford Shandong Huarong Machinery Co. (“Huarong”) a second opportunity to provide a scrap offset in which its scrap sales are allocated to the production of bars/wedges;
(2)explain why its methodology of including distances greater than the distance from the nearest port to the factory, when calculating the weighted-average freight distance for multiple suppliers of one particular factor of production (“FOP”), satisfies the reasoning in *Sigma Corp. v. United States* , 117 F.3d 1401 (Fed. Cir. 1997) (“ *Sigma* ”) and *Lasko Metal Products Inc. v. United States* , 43 F.3d 1442, 1446 (Fed. Cir. 1994) (“ *Lasko* ”), or adjust its methodology;
(3)explain its decision to disregard the effect of subsidies from the United States and other countries, in light of *Fuyao Glass Indus. Group Co. v. United States* , Slip Op. 2003-169 (CIT, 2003) (“ *Fuyao I* ”) and *Fuyao Glass Indus. Group Co. v. United States* , Slip Op. 2005-06 (CIT, 2005) (“ *Fuyao II* ”);
(4)supply a more complete explanation to support its determination that labor costs and other factor inputs for making steel pallets are included in the cost of brokerage and handling; and
(5)provide a more complete explanation to support its decision that the cost of movement from the truck to the container yard, demurrage and storage charges, and other port charges are included in the brokerage and handling cost. The Department released the Draft Results of Redetermination Pursuant to Court Remand (“Draft Redetermination”) to Huarong and Ames True Temper 1 (“Ames”) for comment on October 7, 2005. The Department received timely filed comments from both Huarong and Ames on October 14, 2005, and rebuttal comments from Huarong on October 19, 2005. On October 16, 2006, the Department issued to the CIT its final results of redetermination pursuant to remand on November 30, 2005. In the remand redetermination the Department did the following:
(1)reopened the record, and applied a steel scrap offset in its calculation of normal value to adjust for sales of steel scrap that was generated from the production of the subject bars and wedges;
(2)applied the *Sigma* cap in its analysis and capped the distance for each supplier before calculating the weighted-average inland freight distance;
(3)explained its decision in the *Final Results* to not exclude U.S. export data from the Indian import statistics used as the surrogate value because it would have resulted in an insignificant adjustment to normal value;
(4)revised its FOP methodology to include labor costs and other factor inputs for making steel pallets in normal value; and
(5)explained its reasoning for finding that movement expenses incurred at the port of export were included in the calculation of brokerage and handing expenses. The Department recalculated the antidumping duty rate applicable to Huarong, and included the changes noted above. On January 9, 2007, the CIT sustained all aspects of the remand redetermination made by the Department pursuant to the CIT's remand of the *Final Results* . 1 Ames True Temper is a domestic interested party to the proceeding, and was the petitioner in the underlying review. In its decision in *Timken* , 893 F.2d at 341, the Federal Circuit held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (“the Act”), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination, and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's decision in this case on January 9, 2007, constitutes a final decision of the court that is not in harmony with the Department's *Final Results* . This notice is published in fulfillment of the publication requirements of *Timken* . Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the CIT's ruling is not appealed or, if appealed, upheld by the Federal Circuit, the Department will instruct U.S. Customs and Border Protection to revise the cash deposit rates covering the subject merchandise. This notice is issued and published in accordance with section 516A(c)(1) of the Act. Dated: February 13, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-2836 Filed 2-19-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration (A-201-822) Stainless Steel Sheet and Strip in Coils from Mexico; Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: February 20, 2007 FOR FURTHER INFORMATION CONTACT: Maryanne Burke, Deborah Scott or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone:
(202)482-5604,
(202)482-2657 or
(202)482-0649, respectively. SUPPLEMENTARY INFORMATION: Background On July 3, 2006, the Department of Commerce (the Department) published a notice of opportunity to request administrative review of the antidumping duty order on, *inter alia* , stainless steel sheet and strip in coils from Mexico. *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review* , 71 FR 37890 (July 3, 2006). On July 31, 2006, the Department received a timely request from Allegheny Ludlum Corporation, United Auto Workers Local 3303, Zanesville Armco Independent Organization, Inc. and the United Steelworkers (collectively, petitioners) to conduct an administrative review of the antidumping duty order on stainless steel sheet and strip in coils from Mexico. Also on July 31, 2006, the Department received a timely request from the respondent in this review, ThyssenKrupp Mexinox S.A. de C.V. (Mexinox S.A.) and Mexinox USA, Inc. (Mexinox USA) (collectively, Mexinox) for revocation of the antidumping order on stainless steel sheet and strip in coils from Mexico. On August 30, 2006, the Department published a notice of initiation of this administrative review, covering the period July 1, 2005, to June 30, 2006. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part* , 71 FR 51573 (August 30, 2006). The preliminary results are currently due no later than April 2, 2007. Extension of Time Limits for Preliminary Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) allow the Department to extend the time limit for the preliminary results to a maximum of 365 days after the last day of the anniversary month of an order for which a review is requested. The Department has determined it is not practicable to complete this review within the statutory time limit because further analysis is needed with respect to Mexinox's affiliated party transactions and its cost of production data used in the margin calculation programs. We require additional information from Mexinox in order to complete our analysis and will not have time to analyze this information prior to the current deadline for the preliminary results. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than July 31, 2007, which is 365 days from the last day of the anniversary month. We intend to issue the final results no later than 120 days after publication of the preliminary results notice. This extension is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act. Dated: February 13, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-2835 Filed 2-19-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 070207025-7025-01; I.D. 051906D] RIN 0648-ZB55 FY 2007 Broad Agency Announcement Request for Extramural Research, Innovative Projects, and Sponsorships AGENCY: National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of the availability of Federal assistance. SUMMARY: NOAA announces the availability of Federal assistance under the Broad Agency Announcement
(BAA)for fiscal year 2007. The purpose of this notice is to request proposals for special projects and programs associated with the Agency's strategic plan and mission goals, as described in the SUPPLEMENTARY INFORMATION section, and to provide the general public with information and guidelines on how NOAA will select proposals and administer discretionary Federal assistance under this BAA. NOAA issued approximately $1 billion in Federal assistance funds in fiscal year 2006. Approximately 81 percent was for discretionary funding and 19 percent non-discretionary. This BAA is a mechanism to encourage research, technical projects, or sponsorships (e.g., conferences, newsletters, etc.) that are not normally funded through our competitive discretionary programs. DATES: Proposals will be accepted on a rolling basis up to 5 p.m. ET September 28, 2007. Applications shall be evaluated for funding generally within 3 to 6 months of receipt. ADDRESSES: All proposals should be submitted through Grants.Gov. For those applicants without internet access, hard copy applications may be submitted to the individuals listed below under FOR FURTHER INFORMATION CONTACT . FOR FURTHER INFORMATION CONTACT: This announcement, the Federal Funding Opportunity
(FFO)announcement, and application forms will be available through Grants.Gov: *http://www.grants.gov* . For those applicants without internet access, the above information can be acquired by contacting the following individuals: National Marine Fisheries Service (NMFS), Joanna Grable, Route: F/MB2, Bldg: SSMC3 Rm: 14359, 1315 East-West Hwy, Silver Spring, MD 20910-3282, Phone: 301-713-1364. National Ocean Service (NOS), Jane Piercy, Route: N/MB3, Bldg: SSMC4 Rm: 13250, 1305 East-West Hwy, Silver Spring MD 20910-3281, Phone: 301-713-3050. Office of Atmospheric Research (OAR), Sharon Schroeder, Route: R/OM61, Bldg: SSMC3 Rm: 11464, 1315 East-West Hwy, Silver Spring, MD 20910-3282, Phone: 301-713-2474. National Weather Service (NWS), Youngnan Cohan, Route: W/CFO2, Bldg: SSMC2 Rm: 18394, 1325 East-West Hwy, Silver Spring MD 20910-3283, Phone: 301-713-0420. National Environmental Satellite Data Information Service (NESDIS), Ingrid Guch, Route: E/RA1, Bldg: WWBG RM: 701, 5200 Auth RD, Camp Springs, MD 20746-4304, Phone: 301-763-8282. NOAA, Office of Education, Carrie McDougall, Bldg: HCHB Suite: M6863, 1401 Constitution Ave., NW, Washington, DC 20230-0001, Phone: 202-482-0875. SUPPLEMENTARY INFORMATION: As an agency with responsibilities for maintaining and improving the viability of marine and coastal ecosystems, for delivering valuable weather, climate, and water information and services, for understanding the science and consequences of climate change, and for supporting the global commerce and transportation upon which we all depend, NOAA must remain current and responsive in an ever-changing world. We do this in concert with our partners and stakeholders in federal, state, and local governments and private organizations, applying a systematic approach that links our strategic goals through multi-year plans to the daily activities of our employees. Every year we are committed to re-evaluate our progress and priorities, look for efficiencies, and take advantage of new opportunities to improve our information, products, and services. In furtherance of this objective, NOAA issues this BAA for extramural research, innovative projects, and sponsorships that address one or more of the following five mission goal descriptions contained in the NOAA Strategic Plan: 1. Protect, Restore, and Manage the Use of Coastal and Ocean Resources through an Ecosystem Approach to Management; 2. Understand Climate Variability and Change to Enhance Society's Ability to Plan and Respond; 3. Serve Society's Needs for Weather and Water Information; 4. Support the Nation's Commerce with Information for Safe, Efficient, and Environmentally Sound Transportation; and 5. Provide Critical Support for NOAA's Mission. A detailed description for each mission goal can be found in the FFO that can be accessed via the Grants.gov Web site, by contacting the program official identified in the FOR FURTHER INFORMATION CONTACT section, or by accessing the following: *http://www.spo.noaa.gov/pdfs/STRATEGIC%%20PLANS/Strategic_Plan_2006_FINAL_04282005.pdf* . Proposals that fall within the scope of a separate competitive program initiative or are duplicative of a nondiscretionary project/program will not be accepted under this BAA and will be rejected by the Line/Program Office. In addition, non-responsive applications, i.e., those not meeting the mission goals of NOAA or the intent of this notice, will not be considered. It should be noted that specific competitive program initiatives may have already been announced and those unanticipated at the time of the publication of this notice may be announced through future **Federal Register** notices. This announcement also provides guidelines and details for the application process, eligibility, evaluation criteria, and selection procedures. Selected applicants will either enter into a grant or receive a cooperative agreement depending upon the amount of NOAA's involvement in the project - substantial involvement means a cooperative agreement. Electronic Access The full text of the full funding opportunity announcement for this BAA can be accessed via the Grants.gov Web site: *http://www.grants.gov* . The announcement will also be available by contacting the program officials identified under FOR FURTHER INFORMATION CONTACT . Applicants must comply with all requirements contained in the FFO. This **Federal Register** notice is available through the NOAA home page at: *http://www.noaa.gov* . You will be able to access, download and submit electronic grant applications for this announcement at *http://www.grants.gov* . The closing dates will be the same as for the paper submissions noted in this announcement. NOAA strongly recommends that you do not wait until the application deadline date to begin the application process through Grants.gov. Getting started with Grants.gov is easy! Go to *http://www.grants.gov* . There are two key features on the site: Find Grant Opportunities and Apply for Grants. Everything else on the site is designed to support these two features and your use of them. While you can begin searching for grant opportunities for which you would like to apply immediately, it is recommended that you complete the remaining Get Started steps sooner rather than later, so that when you find an opportunity for which you would like to apply, you are ready to go. Individuals do not need a DUNS number to register to submit applications. The system will generate a default value in that field. Individuals who plan to submit a grant application using Grants.gov are required to register with the Credential Provider (Step 3 B) and register with Grants.gov (Step 4 B). Get Started, Step 1 B: Find Grant Opportunity for Which You Would Like To Apply Start your search for Federal government-wide grant opportunities and register to receive automatic e-mail notifications of new grant opportunities or any modifications to grant opportunities as they are posted to the site by clicking the Find Grant Opportunities tab at the top of the page. Get Started, Step 2 B: Organizations Must Register With Central Contractor Registry
(CCR)Your organization will also need to be registered with Central Contractor Registry. You can register with them online. This will take about 30 minutes. You should receive your CCR registration within 3 business days. Important: You must have a DUNS number from Dun & Bradstreet before you register with CCR. Many organizations already have a DUNS number. To determine if your organization already has a DUNS number or to obtain a DUNS number, contact Dun & Bradstreet at 1-866-705-5711. This will take about 10 minutes and is free of charge. Be sure to complete the Marketing Partner ID
(MPIN)and Electronic Business Primary Point of Contact fields during the CCR registration process. These are mandatory fields that are required when submitting grant applications through Grants.gov. Get Started, Step 3 B: Register With the Credential Provider You must register with a Credential Provider to receive a username and password. This will be required to securely submit your grant application. Get Started, Step 4 B: Register With Grants.gov The final step in the Get Started process is to register with Grants.gov. This will be required to submit grant applications on behalf of your organization. After you have completed the registration process, you will receive e-mail notification confirming that you are able to submit applications through Grants.gov. Get Started, Step 5: B Log on to Grants.gov After you have registered with Grants.gov, you can log on to Grants.gov to verify if you have registered successfully, to check application status, and to update information in your applicant profile, such as your name, telephone number, e-mail address, and title. In the future, you will have the ability to determine if you are authorized to submit applications through Grants.gov on behalf of your organization. In the interim, only the authorized representative can submit an application to Grants.gov. Please ensure your organization makes an authorized representative designation. Electronic Application File Format and Naming Conventions After the initial grant application package has been submitted to NOAA (e.g., via Grants.gov), requests for additional or modified forms may be requested by NOAA. Applicants should resubmit forms in Portable Document File
(PDF)format and follow the following file naming convention to name resubmitted forms. For example: 98042—SF-424-mm-dd-yy—v2.pdf.
(1)98042 = Proposal (provided to applicant by Grants.gov & NOAA)
(2)SF-424 = Form Number
(3)mm-dd-yy = Date
(4)v2 = Version Number To learn how to convert documents to PDF go to: *http://www.grants.gov/assets/PDFConversion.pdf* . The above is suggested in order to obtain consistency and have the documents readily identifiable to the appropriate program and/or grants office staff personnel responsible for the application. The Grants.gov website provides specific instructions regarding conversion. However, in FY2007 applicants can still submit the requested additional documents through the mail or facsimile as a last resort if needed. Eligibility Criteria and Prescreening Process Eligible Applicants Eligible applicants may be institutions of higher education, non-profits, commercial organizations, international or foreign organizations, governments, individuals, state, local and Indian tribal governments. Eligibility also depends on the statutory authority that permits NOAA to fund the proposed activity. Eligible applicants should go to the Catalog of Federal Domestic Assistance
(CFDA)to see if they are eligible. A current listing of the CFDA programs that may be eligible for funding can be found in the FFO posted at Grants.gov that accompanies this BAA. Prescreening Process/Minimum Requirements Review Upon receipt of a full application by NOAA, an initial administrative review will be conducted to determine eligibility for award, compliance with requirements and completeness of the application. This review includes determining whether or not: 1. Statutory authority exists to provide financial assistance for the project or organization; 2. A complete application package has been submitted; 3. The Project Description/Narrative is consistent with one or more of NOAA's mission goals; 4. The proposal falls within the scope of an existing NOAA competitive announcement or duplicates an existing nondiscretionary project (if it does, it cannot be funded under this announcement); and 5. The work in the proposal will directly benefit NOAA (if it will, it should be supported by a procurement contract, not a financial assistance award which cannot be funded under this announcement, as provided in 31 U.S.C. 6303). Applications not passing this initial review will be returned to the applicant. Evaluation Criteria and Selection Procedures All proposals submitted in response to this BAA shall be evaluated and selected in accordance with the following procedures. Proposal Review and Selection Process NOAA will evaluate proposal(s) determined to be eligible under this BAA individually (i.e., proposals will be not compared to each other). Proposals are judged and awarded based on the evaluation factors described below so long as funds, if any, are available. The merit review is conducted by mail reviewers and/or peer panel reviewers. Each reviewer will individually evaluate the proposal(s) using the evaluation criteria provided below. A minimum of three merit reviewers per proposal is required. The reviewers may be any combination of Federal and/or non-federal personnel. The proposal(s) will be individually scored (i.e., a consensus is not reached) unless all reviewers are Federal employees. Only then can a consensus be reached by the Federal reviewers, at the discretion of the selection official. NOAA selects evaluators on the basis of their professional qualifications and expertise as related to the unique characteristics of the proposal. The NOAA Program Officer will assess the evaluations and make a fund or do not fund recommendation to the Selecting Official based on the evaluations of the reviewers. The Selecting Official selects proposal(s) after considering the reviews and recommendations of the Program Officer. Any application considered for funding may be required to address the issues raised in the evaluation of the proposal by the reviewers, Program Officer, Selecting Official, and/or Grants Officer before an award is issued. Applications not selected for funding under this announcement in FY2007 may be considered for funding from FY2008 funds but, in response to NOAA's request, may be required to revalidate the terms of the original application or resubmit in the next BAA cycle if one is published for the next fiscal year. Proposals not selected for funding will be destroyed. The Program Officer, Selecting Official and/or Grants Officer may negotiate the final funding level of the proposal with the intended applicant. The Selecting Official makes the final recommendation for award to the NOAA Grants Officer who is authorized to commit the Federal Government and obligate the funds. Evaluation Criteria for BAA Projects NOAA has standardized evaluation criteria for all competitive assistance announcements. The criteria as applied to this BAA are listed below. Since proposals responding to this BAA may vary significantly in their activities/objectives, assigning a set weight for each evaluation criterion is not feasible but is based on a total possible score of 100. The Program Office and/or Selection Official will determine which of the following criteria and weights will be applied. Some proposals, for example sponsorships, may not be able to be evaluated against all the criteria like technical/scientific merit. However, it is in your best interest to prepare a proposal that can be easily evaluated against these five criteria. 1. Importance and/or Relevance and Applicability of Proposed Project to the Mission Goals This ascertains whether there is intrinsic value in the proposed work and/or relevance to NOAA, federal, regional, state, or local activities: i.e., How does the proposed activity enhance NOAA's strategic plan and mission goals? Proposals should also address significance/possibilities of securing productive results: i.e., Does this study address an important problem?; If the aims of the application are achieved, how will scientific knowledge be advanced?; What will be the effect of these studies on the concepts or methods that drive this field?; What effect will the project have on improving public understanding of the role the ocean, coasts, and atmosphere in the global ecosystem? Proposals will also be scored for innovation: i.e., Does the project employ novel concepts, approaches or methods?: Are the aims original and innovative?: Does the project challenge existing paradigms or develop new methodologies or technologies? 2. Technical/Scientific Merit This assesses whether the approach is technically sound and if the methods are appropriate, and whether there are clear project goals and objectives. Proposals should address the approach/soundness of design: i.e., Are the conceptual framework, design, methods, and analyses adequately developed, well-integrated, and appropriate to the aims of the project?; Does the applicant acknowledge potential problem areas and consider alternative tactics? This criterion should also address the applicant's proposed methods for monitoring, measuring, and evaluating the success or failure of the project: i.e., What are they? Are they appropriate? 3. Overall Qualifications of Applicants This ascertains whether the applicant possesses the necessary education, experience, training, facilities, and administrative resources to accomplish the project. If appropriate, proposals should also address the physical environment and collaboration, if any: i.e., Does the environment in which the work will be done contribute to the probability of success? Do the proposed experiments or activities take advantage of unique features of the intended environment or employ useful collaborative arrangements? 4. Project Costs The Budget is evaluated to determine if it is realistic and commensurate with the project needs and time-frame. 5. Outreach and Education NOAA assesses whether this project provides a focused and effective education and outreach strategy regarding NOAA's mission to protect the Nation's environmental resources. For example, how will the outcomes of the project be communicated to NOAA and the interested public to ensure it has met the project objectives over the short, medium or long term? Does the project address any of the goals or employ any of the strategies of the NOAA Education Plan ( *http://www.oesd.noaa.gov/NOAA_Ed_Plan.pdf* )? Statutory Authority: The specific program authority will vary depending on the nature of the proposed project. A list of the most prevalent assistance authorities are 15 U.S.C. 1540; 15 U.S.C. 2901 *et seq.* ; 16 U.S.C. 661; 16 U.S.C. 1456c; 33 U.S.C. 883a-d; 33 U.S.C. 1442; 49 U.S.C. 44720(b). Catalog of Federal Domestic Assistance
(CFDA)Number: The CFDA number will vary depending on the nature of the proposed project. The applicant should consult the Catalog of Federal Domestic Assistance series 11.400 - 11.481 and review the subset of CFDA's applicable to this BAA to select the most accurate program for the proposed project. The link to the catalog for NOAA programs is as follows: *http://12.46.245.173/pls/portal30/CATALOG.BROWSE_SUBAGENCY_PROGRAM_RPT.SHOW?p_arg_names=agency_id&p_arg_values=206* . Funding Availability: There is no direct level of Congressional funding available for this BAA. Funding of a project is completely at the discretion of the program office willing to support the proposed activities. Appropriations from FY2007 or FY2008 (if and when available) may be used to fund applications in response to this BAA. Application Deadline: Full applications can be submitted on a rolling basis up to 5 p.m. Eastern Time September 28, 2007. Applications received after this time will be returned without review. Applications shall be evaluated for funding generally within 3 to 6 months of receipt. An applicant can expect to receive either a rejection notice, request for additional information, and/or award within that timeframe. Cost Sharing Requirements: Cost sharing is not required unless it is determined that a project can only be funded under an authority that requires matching funds. Application Requirements: Full applications will be required to submit the standard forms as posted in the FFO, in addition to a project narrative (which must include a synopsis which is not to exceed one page), budget narrative, and project timeline. Intergovernmental Review: Applications under this program may be subject to Executive Order (E.O.) 12372, “Intergovernmental Review of Federal Programs.” Refer to the appropriate CFDA number listed on your application for the applicability of this E.O. to your proposal. Limitation of Liability Funding for potential projects in this notice is contingent upon the availability of fiscal year 2007 appropriations. Applicants are hereby given notice that funds have not yet been appropriated for any proposed activities in this notice. In no event will NOAA or the Department of Commerce be responsible for proposal preparation costs. Publication of this announcement does not oblige NOAA to award any specific project or to obligate any available funds. Universal Identifier Applicants should be aware that, for programs which have deadline dates on or after October 1, 2003, they may be required to provide a Dun and Bradstreet Data Universal Numbering System
(DUNS)number during the application process. See the October 30, 2002 **Federal Register** (67 FR 66177) for additional information. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free DUNS Number request line at 1-866-705-5711 or via the internet ( *http://www.dunandbradstreet.com* ). National Environmental Policy Act
(NEPA)NOAA must analyze the potential environmental impacts, as required by the National Environmental Policy Act (NEPA), for applicant projects or proposals which are seeking NOAA federal funding opportunities. Detailed information on NOAA compliance with NEPA can be found at the following NOAA NEPA Web site: *http://www.nepa.noaa.gov/* , including our NOAA Administrative Order 216-6 for NEPA, *http://www.nepa.noaa.gov/NAO216--6--TOC.pdf* , NEPA Questionnaire, *http://www.nepa.noaa.gov/questionnaire.pdf* , and the Council on Environmental Quality implementation regulations, *http://ceq.eh.doe.gov/nepa/regs/ceq/toc--ceq.htm* . Consequently, as part of an applicant's package, and under their description of their program activities, applicants are required to provide detailed information on the activities to be conducted, locations, sites, species and habitat to be affected, possible construction activities, and any environmental concerns that may exist (e.g., the use and disposal of hazardous or toxic chemicals, introduction of non-indigenous species, impacts to endangered and threatened species, aquaculture projects, and impacts to coral reef systems). In addition to providing specific information that will serve as the basis for any required impact analyses, applicants may also be requested to assist NOAA in drafting of an environmental assessment, if NOAA determines an assessment is required. Applicants will also be required to cooperate with NOAA in identifying feasible measures to reduce or avoid any identified adverse environmental impacts of their proposal. The failure to do so shall be grounds for not selecting an application. In some cases if additional information is required after an application is selected, funds can be withheld by the Grants Officer under a special award condition requiring the recipient to submit additional environmental compliance information sufficient to enable NOAA to make an assessment on any impacts that a project may have on the environment. Compliance with Department of Commerce Bureau of Industry and Security Export Administration Regulations a. This section applies to the extent that this BAA results in financial assistance awards involving access to export-controlled information or technology. b. In performing a financial assistance award, the recipient may gain access to export-controlled information or technology. The recipient will then be responsible for compliance with all applicable laws and regulations regarding export-controlled information and technology, including deemed exports. The recipient shall establish and maintain throughout performance of the financial assistance award effective export compliance procedures at non-NOAA facilities. At a minimum, these export compliance procedures must include adequate controls of physical, verbal, visual, and electronic access to export-controlled information and technology. c. Definitions 1. *Deemed export.* The Export Administration Regulations
(EAR)define a deemed export as any release of technology or source code subject to the EAR to a foreign national, both in the United States and abroad. Such release is “deemed” to be an export to the home country of the foreign national. 15 CFR 734.2(b)(2)(ii). 2. *Export-controlled information and technology.* Export-controlled information and technology is information and technology subject to the EAR (15 CFR parts 730 *et seq.* ), implemented by the DOC Bureau of Industry and Security, or the International Traffic I Arms Regulations
(ITAR)(22 CFR parts 120-130), implemented by the Department of State, respectively. This includes, but is not limited to, dual-us items, defense articles and any related assistance, services, software or technical data as defined in the EAR and ITAR. d. The recipient shall control access to all export-controlled information and technology that it possesses or that comes into its possession in performance of a financial assistance award, to ensure that access is restricted, or licensed, as required by applicable Federal laws, Executive Orders, and/or regulations. e. Nothing in the terms of this section is intended to change, supersede, or waive any of the requirements of applicable Federal laws, Executive Orders or regulations. f. The recipient shall include this clause, including this paragraph (f), in all lower tier transactions (subawards, contracts, and subcontracts) under the financial assistance award that may involve access to export-controlled information technology. NOAA implementation of Homeland Security Presidential Directive - 12 If the performance of a financial assistance award, if approved by NOAA, requires recipients to have physical access to Federal premises for more than 180 days or access to a Federal information system, any items or services delivered under a financial assistance award shall comply with the Department of Commerce personal identity verification procedures that implement Homeland Security Presidential Directive - 12, FIPS PUB 201, and the Office of Management and Budget Memorandum M-05-24. The recipient shall insert this clause in all subawards or contracts when the subaward recipient or contractor is required to have physical access to a Federally controlled facility or access to a Federal information system. The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the **Federal Register** notice of December 30, 2004 (69 FR 78389) are applicable to this solicitation. Paperwork Reduction Act This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424 and 424A, 424B, 424C, 424D, SF-LLL, and CD-346 has been approved by OMB under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046, and 0605-0001. 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 requirements of the PRA unless that collection of information displays a currently valid OMB control number. Executive Order 12866 This notice has been determined to be not significant for purposes of Executive Order 12866. Executive Order 13132 (Federalism) It has been determined that this notice does not contain policies with Federalism implications as that term is defined in Executive Order 13132. Administrative Procedure Act/ Regulatory Flexibility Act Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act or any other law for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared. Dated: February 12, 2007. Daniel L. Clever, Deputy Director, Acquisition and Grants Office, National Oceanic and Atmospheric Administration. [FR Doc. E7-2833 Filed 2-19-07; 8:45 am] BILLING CODE 3510-12-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 021207B] Endangered and Threatened Species; Take of Anadromous Fish AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Applications for three scientific research permits and one modification. SUMMARY: Notice is hereby given that NMFS has received four scientific research permit application requests relating to Pacific salmon. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act
(ESA)and to help guide management and conservation efforts. DATES: Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see ADDRESSES ) no later than 5 p.m. Pacific standard time on March 22, 2007. ADDRESSES: Written comments on the applications should be sent to the Protected Resources Division, NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. Comments may also be sent via fax to 503-230-5441 or by e-mail to *resapps.nwr@NOAA.gov.* FOR FURTHER INFORMATION CONTACT: Garth Griffin, Portland, OR (ph.: 503-231-2005, Fax: 503-230-5441, e-mail: *Garth.Griffin@noaa.gov* ). Permit application instructions are available from the address above. SUPPLEMENTARY INFORMATION: Species Covered in This Notice The following listed species are covered in this notice: Chinook salmon ( *Oncorhynchus tshawytscha* ): threatened lower Columbia River (LCR), endangered upper Columbia River (UCR), threatened Snake River
(SR)spring/summer-run (spr/sum), threatened SR fall-run, threatened Puget Sound (PS). Chum salmon ( *O. keta* ): threatened Columbia River (CR), threatened Hood Canal (HC). Steelhead ( *O. mykiss* ): threatened LCR, threatened middle Columbia River (MCR), threatened Snake River (SR), threatened UCR, proposed threatened PS. Coho salmon ( *O. kisutch* ): threatened LCR. Sockeye salmon ( *O. nerka* ): threatened Ozette Lake (OL), endangered SR. Authority Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 *et. seq* ) and regulations governing listed fish and wildlife permits (50 CFR 222-226). NMFS issues permits based on findings that such permits:
(1)are applied for in good faith;
(2)if granted and exercised, would not operate to the disadvantage of the listed species that are the subject of the permit; and
(3)are consistent with the purposes and policy of section 2 of the ESA. The authority to take listed species is subject to conditions set forth in the permits. Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see ADDRESSES ). Such hearings are held at the discretion of the Assistant Administrator for Fisheries, NMFS. Applications Received Permit 1339 The Columbia River Inter-tribal Fish Commission (CRITFC) is currently authorized to annually take adult, threatened, SR spr/sum Chinook salmon and adult, threatened, SR steelhead while conducting research in a number of the tributaries to the Imnaha River in Oregon. Their permit to do so is expiring this year and they desire to renew it for another five years. The purpose of the research is to acquire information on the status (escapement abundance, genetic structure, life history traits) of steelhead in the Imnaha River Basin. The research will continue to benefit the listed species by providing information that fisheries managers can use to determine if recovery actions are helping increase wild Snake River salmonid populations. Baseline information on steelhead populations in the Imnaha River Basin would also be used to help guide future management actions. Adult salmon and steelhead would be observed/harassed during spawning ground surveys and snorkeling activities. They would also be collected using temporary/portable picket weirs, sampled for biological information, sampled for fin tissues and scales, marked with opercule punches, tagged with Tyvek disc tags, and released. Adult steelhead carcasses would also be collected and sampled for tissues and/or scales and biological information. The CRITFC does not intend to kill any of the fish being captured but a small number may die as an unintended result of the activities. Permit 1379 — Modification 2 For a number of years, CRITFC has been permitted to annually take UCR Chinook salmon, UCR steelhead, SR spr/sum Chinook salmon, SR fall Chinook salmon, SR sockeye salmon, LCR Chinook salmon, and LCR coho salmon while conducting three studies designed to increase what we know about the status and productivity of various fish populations, collect data on migratory and exploitation (harvest) patterns, and develop baseline information on various population and habitat parameters in order to guide salmonid restoration strategies. The studies are: Project 1 Juvenile Upriver Bright Fall Chinook Sampling at the Hanford Reach; Project 2 Adult Chinook, Sockeye, and Coho Sampling at Bonneville Dam; and Project 3 Adult Sockeye Sampling at Tumwater Dam, Wenatchee River. This year, CRITFC is seeking to add three new aspects to their currently allowed research:
(1)They wish add adult tagging as a permitted activity for all species sampled at Bonneville Dam;
(2)they are seeking to add adult steelhead sampling at Bonneville Dam to their permit rather than having it covered by a separate permit (this action would necessitate adding MCR steelhead to the permit); and
(3)they seek to increase their allowable take for the Hanford project as it appears likely they will receive funding for a new project which would increase the number of UCR and SR spring-run Chinook salmon they catch. The research would benefit listed fish by helping managers set in-river and ocean harvest regimes so that they have minimal impacts on listed populations. It would also help managers prioritize projects in a way that gives maximum benefit to listed species including projects designed to help the listed fish recover. The CRITFC does not intend to kill any of the fish being captured but a small number may die as an unintended result of the activities. Permit 1590 The U.S. Army Corps of Engineers (USACE) is requesting a permit to annually take juvenile PS Chinook salmon and HC chum salmon over the next five years. The research would also affect the PS steelhead (currently proposed for listing as “threatened”). The purpose of the research is to study the marine phase of “resident” Chinook salmon, a life-history type that rears to adulthood in the Puget Sound marine zone foregoing the typical ocean migration of the species. The goals are to describe the behavior and life history of resident Chinook salmon, and determine whether the proportion of PS Chinook salmon adopting this resident pattern varies among populations and hatchery stocks. Research activities would be conducted throughout the marine zone of Puget Sound and Hood Canal, Washington. The information gathered by this research would be used to develop a conceptual model of the life history of resident PS Chinook. The research would benefit PS Chinook by helping managers develop a better understanding of the abundance, distribution, and habitat requirements of this life history strategy. The USACE proposes to capture fish using shoreline and boat angling, beach seining, and purse-seining. Captured fish would be anesthetized, measured, checked for fin clip or CWT, tagged with acoustic or archival loggers, and fin clipped for tissue samples. Additionally, stomach content samples would be collected from a portion of the captured fish. The USACE does not intend to kill any of the fish being captured but a small number may die as an unintended result of the activities. Permit 1598 The Washington Department of Transportation (WSDOT) is requesting a 5-year research permit to annually take all fish species identified in this notice while conducting research throughout the State of Washington. The purpose of the research is determine the distribution and diversity of anadromous fish species in waterbodies crossed by or adjacent to the state transportation systems (highways, railroads, and/or airports). The surveys would help establish presence of listed salmon and steelhead in waterbodies about which we currently have little data. That information would be used to assess the impacts proposed projects may have on listed species. The research would benefit the listed species by helping WSDOT develop best management practices and in-water work window timing so they can minimize the harm their projects may do to listed fish. Survey methods would depend on the size of the stream system and may include snorkel surveys, dip nets, stick seines, baited gee minnow traps and electrofishing. Fish would be captured, identified, and released in the same location. The WSDOT does not intend to kill any of the fish being captured but a small number may die as an unintended result of the activities. This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the application, associated documents, and comments submitted to determine whether the application meets the requirements of section 10(a) of the ESA and Federal regulations. The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the **Federal Register** . Dated: February 14, 2007. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-2847 Filed 2-19-07; 8:45 am] BILLING CODE 3510-22-S FEDERAL ELECTION COMMISSION Sunshine Act Notices DATE AND TIME: Wednesday, February 21, 2007 at 10 a.m. PLACE: 999 E. Street, NW., Washington, DC. STATUS: This meeting will be closed to the public. ITEMS TO BE DISCUSSED: Compliance matters pursuant to 2 U.S.C. 437g. Audits conducted pursuant to 2 U.S.C. 437g, § 438(b), and Title 26, U.S.C. Matters concerning participation in civil actions or proceedings or arbitration. Internal personnel rules and procedures or matters affecting a particular employee. PERSON TO CONTACT FOR INFORMATION: Mr. Robert Biersack, Press Officer, Telephone:
(202)694-1220. Mary W. Dove, Secretary of the Commission. [FR Doc. 07-781 Filed 2-15-07; 3:42 pm]
Connectionstraces to 17
9 references not yet in our index
  • Pub. L. 109-171
  • Pub. L. 109-280
  • 29 CFR 4006
  • 29 CFR 4007
  • 29 CFR 4001
  • 893 F.2d 337
  • 117 F.3d 1401
  • 43 F.3d 1442
  • 50 CFR 222
Citation graph
cites case law
Proposed Rules
Proposed rule
Fed. Reg.Notices
U.S.C.§ 601
U.S.C.§ 1302
C.F.R.§ 351.213
U.S.C.§ 6303
U.S.C.§ 1540
U.S.C.§ 2901
U.S.C.§ 661
U.S.C.§ 1456c
F. App'x893 F.2d 337
F. App'x117 F.3d 1401
F. App'x43 F.3d 1442
Cites 26 · showing 12Cited by 0 across 0 sources
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