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Code · REGISTER · 2007-02-22 · Food and Drug Administration, HHS · Notices

Notices. Notice

19,751 words·~90 min read·/register/2007/02/22/07-709

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

BILLING CODE 4184-01-M DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. 2006E-0252] Determination of Regulatory Review Period for Purposes of Patent Extension; LEVEMIR AGENCY: Food and Drug Administration, HHS. ACTION: Notice. SUMMARY: The Food and Drug Administration
(FDA)has determined the regulatory review period for LEVEMIR and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that human drug product. ADDRESSES: Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to *http://www.fda.gov/dockets/ecomments* . FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory Policy (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041. SUPPLEMENTARY INFORMATION: The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive. A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the human drug product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B). FDA recently approved for marketing the human drug product LEVEMIR (insulin determir (rDNA origin)). LEVEMIR is indicated for once or twice-daily subcutaneous administration in the treatment of adult patients with diabetes mellitus who require basal (long acting) insulin for the control of hyperglycemia. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for LEVEMIR (U.S. Patent No. 5,750,497) from Novo Nordisk A/S, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated July 24, 2006, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of LEVEMIR represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period. FDA has determined that the applicable regulatory review period for LEVEMIR is 2,896 days. Of this time, 1,971 days occurred during the testing phase of the regulatory review period, while 925 days occurred during the approval phase. These periods of time were derived from the following dates: 1. *The date an exemption under section 505(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355) became effective* : July 14, 1997. FDA has verified the applicant's claim that the date the investigational new drug application became effective was on July 14, 1997. 2. *The date the application was initially submitted with respect to the human drug product under section 505(b) of the act* : December 5, 2002. FDA has verified the applicant's claim that the new drug application
(NDA)for LEVIMIR (NDA 21-536) was initially submitted on December 5, 2002. 3. *The date the application was approved* : June 16, 2005. FDA has verified the applicant's claim that NDA 21-536 was approved on June 16, 2005. This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,496 days of patent term extension. Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments and ask for a redetermination by April 23, 2007. Furthermore, any interested person may petition FDA for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period by August 21, 2007. To meet its burden, the petition must contain sufficient facts to merit an FDA investigation. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41-42, 1984.) Petitions should be in the format specified in 21 CFR 10.30. Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Dated: February 3, 2007. Jane A. Axelrad, Associate Director for Policy, Center for Drug Evaluation and Research. [FR Doc. E7-3001 Filed 2-21-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency [FEMA-3271-EM] Colorado; Amendment No. 3 to Notice of an Emergency Declaration AGENCY: Federal Emergency Management Agency, DHS. ACTION: Notice. SUMMARY: This notice amends the notice of an emergency declaration for the State of Colorado (FEMA-3271-EM), dated January 7, 2007, and related determinations. EFFECTIVE DATE: February 12, 2007. FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472,
(202)646-2705. SUPPLEMENTARY INFORMATION: The notice of an emergency declaration for the State of Colorado is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared an emergency by the President in his declaration of January 7, 2007: Cheyenne, Huerfano, and Kiowa Counties for emergency protective measures (Category B), including snow removal, under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period. (The following Catalog of Federal Domestic Assistance Numbers
(CFDA)are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Counseling; 97.033, Disaster Legal Services Program; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and Households Housing; 97.049, Individuals and Households Disaster Housing Operations; 97.050 Individuals and Households Program-Other Needs, 97.036, Public Assistance Grants; 97.039, Hazard Mitigation Grant Program.) R. David Paulison, Under Secretary for Federal Emergency Management and Director of FEMA. [FR Doc. E7-2948 Filed 2-21-07; 8:45 am] BILLING CODE 9110-10-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency [FEMA-1680-DR] Florida; Major Disaster and Related Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Notice. SUMMARY: This is a notice of the Presidential declaration of a major disaster for the State of Florida (FEMA-1680-DR), dated February 8, 2007, and related determinations. EFFECTIVE DATE: February 8, 2007. FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472,
(202)646-2705. SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter dated February 8, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows: I have determined that the damage in certain areas of the State of Florida resulting from severe storms, tornadoes, and flooding on December 25, 2006, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Florida. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses. You are authorized to provide Individual Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. If Public Assistance is later warranted, Federal funds provided under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act. The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration. The Federal Emergency Management Agency
(FEMA)hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Jesse Munoz, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster. I do hereby determine the following areas of the State of Florida to have been affected adversely by this declared major disaster: Volusia County for Individual Assistance. All counties within the State of Florida are eligible to apply for assistance under the Hazard Mitigation Grant Program. (The following Catalog of Federal Domestic Assistance Numbers
(CFDA)are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Counseling; 97.033, Disaster Legal Services Program; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and Households Housing; 97.049, Individuals and Households Disaster Housing Operations; 97.050, Individuals and Households Program-Other Needs; 97.036, Public Assistance Grants; 97.039, Hazard Mitigation Grant Program.) R. David Paulison, Under Secretary for Federal Emergency Management and Director of FEMA. [FR Doc. E7-2935 Filed 2-21-07; 8:45 am] BILLING CODE 9110-10-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency [FEMA-1681-DR] Illinois; Major Disaster and Related Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Notice. SUMMARY: This is a notice of the Presidential declaration of a major disaster for the State of Illinois (FEMA-1681-DR), dated February 9, 2007, and related determinations. EFFECTIVE DATE: February 9, 2007. FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472,
(202)646-2705. SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter dated February 9, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows: I have determined that the damage in certain areas of the State of Illinois resulting from a severe winter storm during the period of November 30 to December 1, 2006, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Illinois. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses. You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act. The Federal Emergency Management Agency
(FEMA)hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Michael H. Smith, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster. I do hereby determine the following areas of the State of Illinois to have been affected adversely by this declared major disaster: Bond, Calhoun, Christian, DeWitt, Fayette, Jersey, Logan, Macon, Macoupin, Madison, McLean, Monroe, Montgomery, Piatt, Sangamon, Shelby, St. Clair, and Woodford Counties for Public Assistance. All counties within the State of Illinois are eligible to apply for assistance under the Hazard Mitigation Grant Program. (The following Catalog of Federal Domestic Assistance Numbers
(CFDA)are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Counseling; 97.033, Disaster Legal Services Program; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and Households Housing; 97.049, Individuals and Households Disaster Housing Operations; 97.050 Individuals and Households Program-Other Needs, 97.036, Public Assistance Grants; 97.039, Hazard Mitigation Grant Program.) R. David Paulison, Under Secretary for Federal Emergency Management and Director of FEMA. [FR Doc. E7-2954 Filed 2-21-07; 8:45 am] BILLING CODE 9110-10-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency [FEMA-1676-DR] Missouri; Amendment No. 2 to Notice of a Major Disaster Declaration AGENCY: Federal Emergency Management Agency, DHS. ACTION: Notice. SUMMARY: This notice amends the notice of a major disaster declaration for the State of Missouri (FEMA-1676-DR), dated January 15, 2007, and related determinations. EFFECTIVE DATE: February 9, 2007. FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472,
(202)646-2705. SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration for the State of Missouri is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of January 15, 2007: Barry, Camden, Christian, Crawford, Dade, Dallas, Franklin, Gasconade, Greene, Hickory, Jasper, Laclede, Lawrence, Maries, McDonald, Miller, Newton, Osage, Phelps, Polk, Pulaski, St. Clair, Stone, Webster, and Wright Counties for Public Assistance Categories C-G (already designated for Public Assistance Categories A and B [debris removal and emergency protective measures], including direct Federal assistance.) Benton, Boone, Cedar, and Texas Counties for Public Assistance. (The following Catalog of Federal Domestic Assistance Numbers
(CFDA)are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Counseling; 97.033, Disaster Legal Services Program; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and Households Housing; 97.049, Individuals and Households Disaster Housing Operations; 97.050 Individuals and Households Program-Other Needs, 97.036, Public Assistance Grants; 97.039, Hazard Mitigation Grant Program.) R. David Paulison, Under Secretary for Federal Emergency Management and Director of FEMA. [FR Doc. E7-2950 Filed 2-21-07; 8:45 am] BILLING CODE 9110-10-P DEPARTMENT OF THE INTERIOR Office of the Secretary Exxon Valdez Oil Spill Trustee Council; Notice of Meeting AGENCY: Office of the Secretary, Department of the Interior. ACTION: Notice of meeting. SUMMARY: The Department of the Interior, Office of the Secretary is announcing a public meeting of the Exxon Valdez Oil Spill Public Advisory Committee. DATES: March 2, 2007, at 9 a.m. ADDRESSES: Exxon Valdez Oil Spill Trustee Council Office, 441 West 5th Avenue, Suite 500, Anchorage, Alaska. FOR FURTHER INFORMATION CONTACT: Douglas Mutter, Department of the Interior, Office of Environmental Policy and Compliance, 1689 “C” Street, Suite 119, Anchorage, Alaska 99501,
(907)271-5011. SUPPLEMENTARY INFORMATION: The Public Advisory Committee was created by Paragraph V.A.4 of the Memorandum of Agreement and Consent Decree entered into by the United States of America and the State of Alaska on August 27, 1991, and approved by the United States District Court for the District of Alaska in settlement of *United States of America* v. *State of Alaska* , Civil Action No. A91-081 CV. The meeting agenda will include a discussion of the mission and vision for the restoration program, and a review of pending proposals for inclusion in the fiscal year 2007 work plan. Willie R. Taylor, Director, Office of Environmental Policy and Compliance. [FR Doc. E7-2942 Filed 2-21-07; 8:45 am] BILLING CODE 4310-RG-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Proposed Information Collection; OMB Control Number 1018-0093; Federal Fish and Wildlife License/Permit Applications, Management Authority, 50 CFR 13, 15, 17, 18, 21, and 23 AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; request for comments. SUMMARY: We (Fish and Wildlife Service) will ask the Office of Management and Budget
(OMB)to approve the information collection
(IC)described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC, which is scheduled to expire on June 30, 2007. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. DATES: You must submit comments on or before April 23, 2007. ADDRESSES: Send your comments on the IC to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); *hope_grey@fws.gov* (e-mail); or
(703)358-2269 (fax). FOR FURTHER INFORMATION CONTACT: To request additional information about this IC, contact Hope Grey by mail, fax, or e-mail (see ADDRESSES) or by telephone at
(703)358-2482. SUPPLEMENTARY INFORMATION: **I. Abstract** This IC covers permit applications that our Division of Management Authority uses to determine the eligibility of applicants for permits requested in accordance with the criteria in various Federal wildlife conservation laws and international treaties, including:
(1)Endangered Species Act (16 U.S.C. 1531 et seq.).
(2)Migratory Bird Treaty Act (16 U.S.C. 703 et seq.).
(3)Lacey Act (16 U.S.C. 3371 et seq.).
(4)Bald and Golden Eagle Protection Act (16 U.S.C. 668).
(5)Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (27 U.S.T. 1087).
(6)Marine Mammal Protection Act (16 U.S.C. 1361-1407).
(7)Wild Bird Conservation Act (16 U.S.C. 4901-4916). Service regulations implementing these statutes and treaties are in Chapter I, Subchapter B of Title 50, Code of Federal Regulations (CFR). These regulations stipulate general and specific requirements that when met allow us to issue permits to authorize activities that are otherwise prohibited. This revised IC includes:
(1)Modifications to the format and content of the currently approved application forms so that they are easier to understand and complete.
(2)FWS Forms 3-200-61, 3-200-69, and 3-200-70, which are currently approved under OMB control numbers 1018-0130 and 1018-0022.
(3)FWS Form 3-200-76, which is a new form for the export of caviar or meat of paddlefish or sturgeon from the wild. Applicants currently use FWS Form 3-200-27 for this activity. The new form will simplify the reporting requirements and reduce burden on the public. **II. Data** *OMB Control Number:* 1018-0093. *Title:* Federal Fish and Wildlife License/Permit Applications, Management Authority, 50 CFR 13, 15, 17, 18, 21, and 23. *Service Form Number(s):* 3-200-19 through 3-200-37, 3-200-39 through 3-200-53, 3-200-58, 3-200-61, 3-200-64 through 3-200-66, 3-200-69 to 3-200-70, 3-200-73, and 3-200-76. *Type of Request:* Revision of currently approved collection. *Affected Public:* Individuals, biomedical companies, circuses, zoological parks, botanical gardens, nurseries, museums, universities, scientists, antique dealers, exotic pet industry, hunters, taxidermists, commercial importers/exporters of wildlife and plants, freight forwarders/brokers, local, State, tribal, and Federal governments. *Respondent's Obligation:* Required to Obtain or Retain a Benefit. *Frequency of Collection:* On occasion. The following table lists the application forms and burden estimates. We have rounded the annual burden hours for each form to the nearest hour. Those applications with an asterisk (*) have a reporting requirement for the associated permit. Each permit specifies the required report information. Application Forms Number of annual respondents Number of annual responses Completion time per response Annual burden hours 3-200-19/ Import of Sport-hunted Trophies of Southern African Leopard, African Elephant, and Namibian Southern White Rhinoceros 1,031 1,078 20 minutes 359 3-200-20/ Import of Sport-Hunted Trophies (Appendix I of CITES and/or ESA) 15 21 1 hour 21 3-200-21/ Import of Sport-Hunted Trophies of Argali 134 182 45 minutes 137 3-200-22/ Import of Sport-Hunted Bontebok Trophies 70 95 20 minutes 32 3-200-23/ Export of Pre-Convention, Pre-Act, or Antique Specimens (CITES and/or ESA) 127 241 45 minutes 181 3-200-24/ Export of Live Captive-Born Animals (CITES) 171 483 45 minutes 362 3-200-25/ Export of Raptors 46 63 1 hour 63 3-200-26/ Export of skins/products of 7 native species: bobcat, lynx, river otter, American alligator, Alaskan brown bear, black bear, and gray wolf 618 843 20 minutes 281 3-200-27/ Export of Wildlife Removed from the Wild (CITES) 69 114 45 minutes 86 3-200-28/ Export/Re-Export of Trophies by Hunters or Taxidermists (CITES) 57 95 30 minutes 48 3-200-29/ Import/Export/Re-Export of Wildlife Samples and/or Biomedical Samples (CITES) 108 268 1 hour, 10 minutes 313 3-200-30/ Export/Reexport/Reimport of Circuses and Traveling Animal Exhibitions 73 80 1 hour 80 3-200-31/ Introduction from the Sea (CITES) 3 3 2 hours 6 3-200-32/ Export/Re-Export of Plants (CITES) 106 619 1 hour 619 3-200-33/ Export of Artificially Propagated Plants (Multiple Commercial Shipments) 20 303 2 hours 606 3-200-34/ Export of American Ginseng (Commercial only)* 41 107 20 minutes 36 3-200-35/ Import of Appendix-I Plants (CITES) 1 1 1 hour 1 3-200-36/ Export/Import/InterState and Foreign Commerce of Plants* 1 1 1 hour 1 3-200-37/ Export/Import/Interstate and Foreign Commerce/Take of Animals* 111 165 2 hours 330 3-200-39/ Certificate of Scientific Exchange (COSE)* 7 7 1 hour 7 3-200-40/ Export and Re-Import of Museum Specimens* 2 2 1 hour 2 3-200-41/ Captive-Bred Wildlife Registration* 87 87 2 hours 174 3-200-42/ Import/Acquisition/Transport of Injurious Wildlife 21 21 1 hour 21 3-200-43/ Take/Import/Transport/Export of Marine Mammals or Amendment of Existing Permit* 16 19 2 hours, 20 minutes 44 3-200-44/ Registration of An Agent/Tannery* 1 1 30 minutes 1 3-200-45/ Import of Polar Bear Trophies Sport-Hunted in Canada
(MMPA)78 78 30 minutes 39 3-200-46/ Import/Export of Personal Pets (WBCA and or CITES) 335 343 30 minutes 172 3-200-47/ Import of Birds for Scientific Research or Zoological Breeding and Display
(WBCA)7 16 2 hours 32 3-200-48/ Import of Birds Under an Approved Cooperative Breeding Program (WBCA)* 4 4 1 hours 4 3-200-49/ Approval, Amendment or Renewal of a Cooperative Breeding Program
(WBCA)4 4 3 hours 12 3-200-50/ Approval of Sustainable Use Management Plan Under the Wild Bird Conservation Act 1 1 10 hours 10 3-200-51/ Approval of a Foreign Breeding Facility Under the Wild Bird Conservation Act 1 1 8 hours 8 3-200-52/ Reissuance or Renewal of a Permit 147 200 15 minutes 50 3-200-53/ Export/Re-Export of Live Captive-Held Marine Mammals (CITES) 4 4 2 hours 8 3-200-58/ Supplemental Application for a Retrospective Document (CITES) 50 50 1 hour 50 3-200-61/ CITES Export Programs* 25 25 43 hours, 30 minutes 1,088 3-200-64/ Certificate of Ownership for Personally Owned Wildlife “Pet passport” (CITES) 115 137 30 minutes 69 3-200-65/ Registration of Appendix-I Commercial Breeding Operations (CITES) 2 2 40 hours 80 3-200-66/ Replacement Document (CITES) 50 50 30 minutes 25 3-200-69/ CITES Import/Export- Eagle Transport for Scientific or Exhibition Purposes 1 1 30 minutes 1 3-200-70/ CITES Import/Export- Eagle Transport for Indian Religious Purposes 16 16 30 minutes 8 3-200-73/ Re-Export of Wildlife (CITES) 3,985 5,433 30 minutes 2,717 3-200-76/ Export of Caviar or Meat of Paddlefish or Sturgeon Removed from the Wild (CITES)* 12 120 3 hours 360 Totals 7,773 11,384 8,544 **III. Request for Comments** We invite comments concerning this information collection on:
(1)whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2)the accuracy of our estimate of the burden for this collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record. We will include and/or summarize each comment in our request to OMB to approve this information collection. Dated: January 25, 2007 Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service. [FR Doc. E7-2959 Filed 2-21-07; 8:45 pm] Billing Code 4310-55-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Proposed Information Collection; OMB Control Number 1018-0132; Research to Support Analysis and Management Carrying Capacity at Lake Umbagog National Wildlife Refuge, Phase 2 AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; request for comments. SUMMARY: We (Fish and Wildlife Service) will ask the Office of Management and Budget
(OMB)to approve the information collection
(IC)described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC, which is scheduled to expire on May 31, 2007. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. DATES: You must submit comments on or before April 23, 2007. ADDRESSES: Send your comments on the IC to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); *hope_grey@fws.gov* (e-mail); or
(703)358-2269 (fax). FOR FURTHER INFORMATION CONTACT: To request additional information about this IC, contact Hope Grey by mail, fax, or e-mail (see ADDRESSES) or by telephone at
(703)358-2482. SUPPLEMENTARY INFORMATION: **I. Abstract** Lake Umbagog National Wildlife Refuge contains significant natural and recreational resources. We estimate that the area has over 50,000 visits per year, which can result in significant resource and social impacts. In 2006, we began a research study to gather information to help support application of visitor carrying capacity at the refuge. We conducted a survey of visitors to the refuge to determine relevant indicators of quality for the visitor experience. Indicators of quality are measurable, manageable variables that reflect the essence or meaning of management objectives. OMB approved this collection of information and assigned control number 1018-0132, which expires May 31, 2007. We plan to ask OMB to renew this information collection to include phase 2 of this study. During phase 2, we propose to survey visitors and nearby landowners to identify standards of quality for relevant indicator variables and determine attitudes toward management actions that we might use to ensure that the standards of quality are maintained. We will conduct two separate surveys. One survey will include a sample of visitors to Lake Umbagog National Wildlife Refuge and the second survey will include private landowners adjacent to the refuge. We will collect the same information in both surveys; however, we will ask adjacent landowners for additional information about their frequency of use of the refuge. **II. Data** *OMB Control Number:* 1018-0132. *Title:* Research to Support Analysis and Management Carrying Capacity at Lake Umbagog National Wildlife Refuge, Phase 2. *Service Form Number(s):* 3-2330 and 3-2330a. *Type of Request:* Revision of currently approved collection. *Affected Public:* Visitors to and landowners near Lake Umbagog National Wildlife Refuge. *Respondent's Obligation:* Voluntary. *Frequency of Collection:* One time per respondent. *Estimated Annual Number of Respondents:* 500. *Estimated Total Annual Responses:* 500. *Estimated Time per Response:* 15 minutes. *Estimated Total Annual Burden Hours:* 125. **III. Request for Comments** We invite comments concerning this information collection on:
(1)whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2)the accuracy of our estimate of the burden for this collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record. We will include and/or summarize each comment in our request to OMB to approve this information collection. Dated: January 22, 2007 Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service. [FR Doc. E7-2960 Filed 2-21-07; 8:45 pm] Billing Code 4310-55-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Proposed Information Collection; National Wildlife Refuge System Evaluation AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; request for comments. SUMMARY: We (Fish and Wildlife Service) will ask the Office of Management and Budget
(OMB)to approve the information collection described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this information collection. DATES: You must submit comments on or before April 23, 2007. ADDRESSES: Send your comments on the information collection to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); *hope_grey@fws.gov* (e-mail); or
(703)358-2269 (fax). FOR FURTHER INFORMATION CONTACT: To request additional information about this ICR, contact Hope Grey by mail, fax, or e-mail (see ADDRESSES) or by telephone at
(703)358-2482. SUPPLEMENTARY INFORMATION: **I. Abstract** We have contracted with Management Systems International to perform an independent evaluation of the National Wildlife Refuge System (NWRS). Although the NWRS has existed for more than 100 years, it has never undergone an independent evaluation of its overall effectiveness in achieving its conservation mission. We are now seeking such an evaluation to identify program strengths and weaknesses, as well as gaps in performance information. Such evaluations are an important element of the OMB Program Assessment Rating Tool
(PART)assessments, and this evaluation will satisfy the PART requirements. The evaluation includes two data collection components involving the public:
(1)An online survey of partners (e.g., volunteer groups, local and national conservation organizations, hunting and fishing groups, and other civic organizations).
(2)Individual and small group interviews of State fish and game officials and partners. The perspective and observations of NWRS partners and State fish and game officials are critical to fully understand the issues and questions that the independent evaluation will explore. During 2007, we plan to interview 40 State fish and wildlife officials and 110 individuals from partner organizations. The small number of individuals interviewed and the nature of the interview process do not allow for generalization of interview findings to the larger local partner target population, or for the development of broad, evidenced-based conclusions. The partners' survey addresses both of these shortcomings. By administering the web-based survey to a random sample of 500 partners, we will be able to identify important patterns (findings) across the population of partners and to develop conclusions to the key questions being examined by the evaluation. We plan to conduct the survey for a 2-week period during the first half of 2007. The partners' survey will collect data in three broad categories:
(1)Basic demographic data at the institutional level, including:
(a)Size of the partner organization.
(b)Length/duration of the partnership with the refuge.
(c)Type of organization (e.g., wildlife conservation, educational, etc.).
(2)Quality and characteristics of the relationship and interaction between partner organizations and the NWRS, including:
(a)Type of activities that the partner group conducts.
(b)Frequency and nature of interaction between the partner group and the refuge.
(c)Quality of the partnership between the partner organization and the refuge.
(3)Partners' perspective regarding the effectiveness and quality of NWRS programs and the progress being made towards the long-term goals of the NWRS. The survey data will help us identify important patterns and characteristics. However, the survey will not, in most cases, provide the depth of information necessary to explain the observed patterns. Indepth interviews will provide an opportunity to explore in detail the main factors that cause or contribute to the patterns observed from the survey. **II. Data** *OMB Control Number:* None. *Title:* National Wildlife Refuge System Evaluation. *Service Form Number(s):* None. *Type of Request:* New collection. *Affected Public:* Organizations that collaborate with national wildlife refuges, including, but not limited to, State fish and wildlife agencies, volunteer groups, local and national conservation organizations, hunting and fishing groups, and other civic organizations. *Respondent's Obligation:* Voluntary. *Frequency of Collection:* One time. Activity Number of annual respondents Number of annual responses Completion time per response Annual burden hours Partners' Survey 500 500 20 minutes 167 Personal Interviews 150 150 1 hour 150 Total 650 650 317 **III. Request for Comments** We invite comments concerning this information collection on:
(1)whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2)the accuracy of our estimate of the burden for this collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record. We will include and/or summarize each comment in our request to OMB to approve this information collection. Dated: January 17, 2007 Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service. [FR Doc. E7-2961 Filed 2-21-07; 8:45 pm] Billing Code 4310-55-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Information Collection Sent to the Office of Management and Budget
(OMB)for Approval; Export of Caviar or Meat of Paddlefish or Sturgeon from the Wild AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; request for comments. SUMMARY: We (Fish and Wildlife Service) have sent an Information Collection Request
(ICR)to OMB for review and approval. The ICR, which is summarized below, describes the nature of the collection and the estimated burden and cost. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. DATES: You must submit comments on or before March 26, 2007. ADDRESSES: Send your comments and suggestions on this ICR to the Desk Officer for the Department of the Interior at OMB-OIRA at
(202)395-6566
(fax)or *OIRA_DOCKET@OMB.eop.gov* (e-mail). Please provide a copy of your comments to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail);
(703)358-2269 (fax); or *hope_grey@fws.gov* (e-mail). FOR FURTHER INFORMATION CONTACT: To request additional information about this ICR, contact Hope Grey by mail, fax, or e-mail (see ADDRESSES ), or by telephone at
(703)358-2482. SUPPLEMENTARY INFORMATION: *OMB Control Number:* None. *Title:* Export of Caviar or Meat of Paddlefish or Sturgeon from the Wild. *Service Form Number(s):* 3-200-76. *Type of Request:* New collection. *Affected Public:* Fishers; commercial dealers/distributors/suppliers and importers/exporters of paddlefish and sturgeon caviar and meat; and freight forwarders/brokers. *Respondent's Obligation:* Required to obtain or retain a benefit. *Frequency of Collection:* On occasion. *Estimated Annual Number of Respondents:* 12. *Estimated Total Annual Responses:* 120. *Estimated Time Per Response:* 3 hours. *Estimated Total Annual Burden Hours:* 360 hours. *Abstract:* This information collection is associated with regulations implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES regulates international trade in listed species through a system of permits and certificates. The Service assesses permit requests according to criteria in CITES and Federal regulations for the issuance, suspension, revocation, or denial of permits. We have developed a new permit application form specific to permit requests for the export of caviar and/or meat of wild-origin paddlefish and/or U.S. native sturgeon species. In the past, we have used FWS Form 3-200-27 (Export of Wildlife Removed from the Wild) to collect the information necessary for us to evaluate these permit requests. When using that general form, applicants have had considerable difficulty understanding what information is necessary and how to supply it. The new form, FWS Form 3-200-76, clarifies these issues. *Comments:* On September 20, 2006, we published in the **Federal Register** (71 FR 55004) a notice of our intent to request that OMB approve this information collection. In that notice, we solicited comments for 60 days, ending on November 20, 2006. In addition, we conducted public outreach by sending a copy of the notice to members of the caviar community and asked for their comments. We received two comments. One commenter was a State fisheries coordinator who supported the new form. The second commenter stated that the proposed form has more focused information and would assist applicants in preparing applications. The second commenter also had two suggestions:
(1)That we increase the estimated time to complete the application. After considering this comment, we increased the estimated average time to complete an application to 3 hours and revised the estimated annual burden on the public.
(2)That we revise the wording in the application to more accurately reflect how caviar exporters work. Wholesalers and suppliers typically do not provide the fishermen information directly to the applicant because it may be considered proprietary information. Due to the concern, we are not requiring that the intermediary provide the information to the applicant who is responsible for submitting the application. Instead, the supplier may submit it directly to the Service provided that it is clear which application is being referenced. In such cases, if the supplier believes the information is proprietary, the supplier should identify it as proprietary and/or business confidential, as appropriate. The applicant is still responsible for providing a complete application to the Service. We again invite comments concerning this information collection on:
(1)whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2)the accuracy of our estimate of the burden for this collection of information;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record. Dated: January 22, 2007 Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service. [FR Doc. E7-2962 Filed 2-21-07; 8:45 pm] Billing Code 4310-55-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Receipt of Applications for Permit AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of receipt of applications for permit. SUMMARY: The public is invited to comment on the following applications to conduct certain activities with endangered species and marine mammals. DATES: Written data, comments or requests must be received by March 26, 2007. ADDRESSES: Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281. FOR FURTHER INFORMATION CONTACT: Division of Management Authority, telephone 703/358-2104. SUPPLEMENTARY INFORMATION: Endangered Species The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Written data, comments, or requests for copies of these complete applications should be submitted to the Director (address above). *Applicant:* Denver Zoological Gardens, Denver, CO, PRT-144259. The applicant requests a permit to import one male bred-in-captivity Malayan tapir ( *Tapirus indicus* ) from the Belfast Zoo, Belfast, Ireland, for the purpose of enhancement of the survival of the species. *Applicant:* Lincoln Park Zoo, Chicago, IL, PRT-144119. The applicant requests a permit to export hair from one male Bactrian camel ( *Camelus bactrianus* ) to the United Kingdom for the purpose of scientific research. *Applicant:* Zoological Society of San Diego, San Diego, CA, PRT-144258. The applicant requests a permit to export one male captive bred giant panda ( *Ailuropoda melanoleuca* ) born at the zoo in 2003 and owned by the Government of China, to the Wolong Nature Reserve, China under the terms of their loan agreement with the China Wildlife Conservation Association. This export is part of the approved loan program for the purpose of enhancement of the survival of the species through scientific research as outlined in the Zoological Society of San Diego's original permit. *Applicant:* Detroit Zoological Institute, Royal Oak, MI, PRT-135623. The applicant requests a permit to export one male captive bred Central American river turtle ( *Dermatemys mawii* ) to the Prague Zoo, Czech Republic, for the purpose of enhancement of the survival of the species through captive breeding. *Applicant:* Dort S. Bigg, Turner, ME, PRT-144848. The applicant requests a permit to import the sport-hunted trophy of one male bontebok ( *Damaliscus pygargus pygargus* ) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancement of the survival of the species. *Applicant:* John C. Knight, Howey in the Hills, FL, PRT-140177. The applicant requests a permit to import the sport-hunted trophy of one scimitar-horned oryx ( *Oryx dammah* ) culled from a captive herd in the Republic of South Africa, for the purpose of enhancement of the survival of the species. Marine Mammals The public is invited to comment on the following application for a permit to conduct certain activities with marine mammals. The application was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ), and the regulations governing marine mammals (50 CFR Part 18). Written data, comments, or requests for copies of the complete applications or requests for a public hearing on these applications should be submitted to the Director (address above). Anyone requesting a hearing should give specific reasons why a hearing would be appropriate. The holding of such a hearing is at the discretion of the Director. *Applicant:* Charles P. Kupfer, Millbury, MA, PRT-143853. The applicant requests a permit to import a polar bear ( *Ursus maritimus* ) sport hunted from the Northern Beaufort Sea polar bear population in Canada for personal, noncommercial use. Dated: January 19, 2007. Monica Farris, Senior Permit Biologist, Branch of Permits, Division of Management Authority. [FR Doc. E7-2939 Filed 2-21-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Final Determination for Federal Acknowledgment of the Mashpee Wampanoag Indian Tribal Council, Inc. of Massachusetts AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of final determination. SUMMARY: Pursuant to 25 CFR 83.10(l)(2), notice is hereby given that the Department of the Interior (Department) has determined that the Mashpee Wampanoag Indian Tribal Council, Inc., P.O. Box 1048, Mashpee, Massachusetts, 02649, is an Indian tribe within the meaning of Federal law. This notice is based on a determination that the petitioner satisfies all seven mandatory criteria set forth in 25 CFR 83.7, and thus meets the requirements for a government-to-government relationship with the United States. DATES: This determination is final and will become effective 90 days from publication of this notice in the **Federal Register** on May 23, 2007, pursuant to 25 CFR 83.10(l)(4), unless a request for reconsideration is filed pursuant to 25 CFR 83.11. ADDRESSES: Requests for a copy of the Summary Evaluation of the Criteria should be addressed to the Office of the Assistant Secretary—Indian Affairs, Attention: Office of Federal Acknowledgment, 1951 Constitution Avenue, NW., MS: 34B-SIB, Washington, DC 20240. FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of Federal Acknowledgment,
(202)513-7650. SUPPLEMENTARY INFORMATION: This notice is published in the exercise of authority delegated by the Secretary of the Interior to the ADS by Secretarial Order 3259, of February 8, 2005, as amended on August 11, 2005, and on March 31, 2006. This notice is based on a determination that the Mashpee Wampanoag Tribal Council, Inc.
(MWT)meets all of the seven mandatory criteria for acknowledgment in 25 CFR 83.7. The Department considered the Mashpee petition under slightly modified timeframes set by a July 22, 2005, Joint Settlement Agreement and Stipulated Dismissal (Agreement) resolving the case of *Mashpee Wampanoag Tribal Council, Inc.* v. *Norton* , 180 F. Supp. 2d 130 (D.D.C. 2001), rev'd, 336 F.3d 1094 (D.C. Cir. 2003), *on remand* , No. CA 01-111 JR (D.D.C.). A notice of the proposed finding
(PF)to acknowledge the petitioner was published in the **Federal Register** on April 6, 2006 (71 FR 17488). Publishing notice of the PF initiated a 180-day comment period during which time the petitioner, and interested and informed parties, could submit arguments and evidence to support or rebut the PF. The comment period ended on October 3, 2006. The regulations at 25 CFR 83.10(k) provide the petitioner a minimum of 60 days to respond to comments that interested and informed parties submitted on the PF during the 180-day comment period. The Agreement modified this timeframe, providing the petitioner a 30-day response period, which ended on November 1, 2006. This final determination
(FD)is made following a review of the petitioner's and public comments as well as the petitioner's response to the public comments. During the comment period, the petitioner submitted an updated membership list, supplemental genealogical and governmental materials, and historical documents, in response to requests for information made by the Department in the PF and in an informal technical assistance teleconference with the petitioner. These materials did not change the conclusions of the PF. The Department received several letters of support from the public for the Mashpee group. These letters did not provide substantive comment. The Department also received a letter from a former selectman of the Town of Mashpee pertaining to negotiations between the petitioner and the Town. This letter did not comment substantively on the PF. The only substantive comment by interested or informed parties came from the Office of the Massachusetts Attorney General (Massachusetts AG), to which the petitioner submitted a response on October 30, 2006. The Massachusetts AG's comments are discussed under criteria 83.7(b) and 83.7(c) below. Criterion 83.7(a) requires external identifications of the petitioner as an American Indian entity on a substantially continuous basis since 1900. The PF concluded external observers identified the petitioning group as an American Indian entity on a substantially continuous basis since 1900. However, it pointed out that the available identifications of the Mashpee in the record for 1900-1923 constituted sufficient but minimal evidence for substantially continuous identification for those years, and encouraged the petitioner to strengthen its evidence for criterion 83.7(a) by submitting additional identifications for that period. In response, the petitioner submitted a new argument concerning a 1907 document. As reevaluated for the FD, this document provides an additional identification of the Mashpee. When combined with the other identifications in the record for the PF for those years, the additional evidence is sufficient to show consistent identifications of the Mashpee from 1900 to 1923. The evidence submitted for both the PF and the FD demonstrates external observers identified the Mashpee as an Indian entity on a substantially continuous basis since 1900. Therefore, the petitioner meets the requirements of criterion 83.7(a). Criterion 83.7(b) requires that a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. The PF concluded that the petitioner presented sufficient evidence to satisfy this criterion. During the comment period, in response to the Department's request for information, the petitioner submitted a copy of the 1776 Gideon Hawley census of Mashpee. As part of an analysis of residential patterns of the Mashpee group for the colonial and Revolutionary periods, the PF described this document's details using only descriptions of it from both State reports and secondary sources. For the FD, Department researchers analyzed the newly-submitted 1776 Hawley census and found that it supported the PF's conclusions regarding the residential patterns of the group for the colonial and Revolutionary periods. In its comments on the PF dated October 2, 2006, the Massachusetts AG expressed concern that the PF did not adequately consider the evidence contained in the record of the lengthy jury trial in the Mashpee's land claim suit of 1977-1978. The jury concluded that the Mashpee group did not constitute an Indian tribe for purposes of the Indian Nonintercourse Act (25 U.S.C. 177). See *Mashpee Tribe* v. *Town of Mashpee* , 447 F. Supp. 940 (D. Mass. 1978), aff'd, *Mashpee Tribe* v. *New Seabury Corp.* , 592 F. 2d 575 (1st Cir. 1979). In particular, the Massachusetts AG cited the testimony of the defendants' two expert witnesses at specific sections of the trial transcript as examples of evidence that appeared to militate against Federal acknowledgment of the group. The Massachusetts AG then urged the Department to give the trial record of the case the fullest review before issuing the FD. In a follow-up letter dated October 3, 2006, the Massachusetts AG clarified that it was not taking a position on the recognition of the Mashpee in its October 2, 2006, comments, but was simply addressing those issues related to its concerns about adequate consideration of the evidence in the 1978 trial record. The Department gave the evidence from the trial record a thorough review at the time of the PF. The Department examined all of the transcripts of the testimony (over 7,300 pages) as part of its evaluation of the Mashpee petition before the PF's issuance. Although quality, not quantity, is critical, the Department also based the PF on considerably more evidence, over 10,100 documents totaling about 54,000 pages in the petition record. In contrast, there were only about 274 exhibits before the Court. None of these materials with the exception of the exhibits were available to the court at the time of the trial. In response to the Massachusetts AG's comments, the Department reviewed again the evidence from the trial record, particularly the cited testimony of the defendants' two expert witnesses. This review did not change the findings in the PF. The PF additionally examined the group's community and politics for the lengthy period since the suit, approximately 30 years, as well as the earlier periods. It also incorporated more in-depth evaluations of the evidence, including detailed marriage and residency analyses, as well as 31 interviews conducted by the Department's anthropologist during an on-site investigation in 2006. Criterion 83.7(b) requires that a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. The PF addressed the issues dealing with distinct community raised by the defendants' expert witnesses in the trial transcript pages cited by the Massachusetts AG. Generally, the two witnesses argued the Mashpee lacked cultural distinctiveness and economic autonomy from the wider society and therefore were not a tribe. The Federal acknowledgment regulations, however, do not require a petitioner to maintain cultural distinctiveness or economic autonomy to be an Indian community. Instead, the regulations require the petitioner to be a socially distinct group of people within the wider society. In the Mashpee case, the PF described at length their continued community cohesion and social distinction from non-Indian populations since first sustained contact. In sum, neither the comments of the Massachusetts Attorney General nor the evidence in the trial transcript it referenced changed the PF's conclusions that the Mashpee were a distinct community (criterion 83.7(b)). The Massachusetts AG raised concerns that the Department may not have fully considered the evidence and issues raised in the trial transcript. The PF was thorough in its review of the materials in the trial transcript and a larger body of evidence that the court did not have in the land claim suit. This FD reevaluated the evidence in the trial testimony. In response to the comments submitted by the Massachusetts AG citing the testimony of the two defendants' witnesses, the FD reviewed this testimony and finds that the standards and definitions of a tribe used by these witnesses differ substantially from the requirements in the seven mandatory criteria of the regulations. The FD also finds that the trial testimony did not provide any evidence or arguments not already discussed in the PF, and did not merit a change in the evaluation of the evidence under criterion 83.7(b) in the PF. Therefore this FD affirms the PF's conclusions. The petitioner meets the requirements of criterion 83.7(b). Criterion 83.7(c) requires that the petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present. The PF concluded that the petitioner presented sufficient evidence to satisfy this criterion. Neither the petitioner nor any third parties submitted new evidence related to the PF's conclusions regarding criterion 83.7(c). Several of the pages in the trial transcript of the 1977-1978 land claim suit that the Massachusetts AG cited in its comments dealt with issues related to criterion 83.7(c). The defendants' expert witnesses claimed, for instance, that the Mashpee were not a tribe because they lacked political autonomy from the wider society. The acknowledgment regulations only require political autonomy in relation to other Indian groups, defining autonomy as the exercise of political authority independent of any other Indian governing entity (See 25 CFR section 83.1). Participation in the political processes of the wider society, as in the Mashpee's case, is not evidence that a group does not exist as an Indian tribe exercising political influence or authority over its members. These witnesses also tended to ignore or minimize informal forms of leadership based on consensus and persuasion, and alternative forms of governance the Mashpee adopted in response to their unique history, geography, culture, and social organization, in favor of restrictive and limited notions of Indian leadership. Political influence over the group's members was demonstrated by a long line of Mashpee leaders. Since the colonial period, the Mashpee have had sachems, proprietors, spiritual leaders, informal leaders, district and town officials, and council members who influenced and were influenced by the members on political matters of importance. The PF also showed group members considered the actions of their leaders important and were highly involved in political processes. In sum, the reevaluation of the evidence in the trial transcript referenced in the comments of the Massachusetts AG did not result in a modification of the PF's conclusions that the Mashpee demonstrated political influence (criterion 83.7(c)). The PF dealt with the issues raised in the trial testimony affecting the evaluation of evidence under criterion 83.7(c) in its review of the materials in the trial transcript and a larger body of evidence that the court did not have in the land claim suit. This FD reevaluated the evidence in the trial testimony. In response to the comments submitted by the Massachusetts AG citing the testimony of the two defendants' witnesses, the FD reviewed this testimony and finds that the standards and definitions of a tribe used by these witnesses differ substantially from the requirements in the seven mandatory criteria of the regulations. The FD finds that this material did not provide any evidence or arguments not already discussed in the PF, and did not merit a change in the evaluation under criterion 83.7(c) that the Mashpee demonstrated political influence from first historical contact to the present. Therefore, the petitioner meets the requirements of criterion 83.7(c). The PF found that the petitioner met the requirements of criterion 83.7(d) by submitting its present governing document: a constitution dated September 28, 2004, which described the group's membership criteria and the current governing procedures. For the FD, the petitioner submitted a membership enrollment ordinance dated September 21, 2006, which clarifies certain sections of the constitution and provides additional evidence concerning the group's membership criteria. The FD affirms the PF's conclusion that the petitioner meets the requirements of criterion 83.7(d). Criterion 83.7(e) requires that the petitioner's membership consist of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity. The PF found that 88 percent of the petitioning group descended from the historical tribe and met the requirement for criterion 83.7(e). The PF advised the petitioner to submit evidence to document descent for the remaining 12 percent and to update its membership list. In response, the MWT submitted a properly certified membership list dated September 13, 2006, naming 1,453 members. The petitioner provided evidence acceptable to the Secretary demonstrating that about 97 percent of its members (1,403 of 1,453) descend from the historical Mashpee tribe as defined by the 1861 Earle Report. About 2 percent (41 members) descend from the two Christiantown Wampanoag Indian families, Peters-DeGrasse and Peters-Palmer, who did not document descent from the historical tribe as defined in the Earle Report, but who are defined as qualifying ancestors in the MWT constitution. One of these families settled in Mashpee shortly after 1861 and became part of the group by the early 1900's. Descendants of both families became part of Mashpee community socially and politically by the mid-20th century. Nine remaining members (about 1 percent), do not have complete birth records naming parents, but are expected to be able to provide the proper evidence. The new evidence for the FD modifies the PF's conclusions by changing the number of members in the MWT from 1,462 to 1,453 and the percentage of members who have documented descent from the historical tribe from about 88 percent to approximately 97 percent. The evaluation of additional documentation submitted strengthens the conclusion that the Mashpee petitioner meets the requirements of criterion 83.7(e). This FD concludes that the evidence is sufficient to meet the requirements of criterion 83.7(e). Criterion 83.7(f) requires that the membership of the petitioning group be composed principally of persons who are not members of any acknowledged North American Indian tribe. A review of the available documentation for the PF and the FD revealed that the membership is composed principally of persons who are not members of any acknowledged North American Indian tribe. Therefore, the petitioner meets the requirements of criterion 83.7(f). Criterion 83.7(g) requires that neither the petitioner nor its members be the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. A review of the available documentation for the PF and the FD showed no evidence that the petitioning group was the subject of congressional legislation to terminate or prohibit a Federal relationship as an Indian tribe. Therefore, the petitioner meets the requirements of criterion 83.7(g). A report summarizing the evidence, reasoning, and analyses that are the bases for the FD will be provided to the petitioner and interested parties, and is available to other parties upon written request. After the publication of notice of the FD, the petitioner or any interested party may file a request for reconsideration with the Interior Board of Indian Appeals
(IBIA)under the procedures set forth in section 83.11 of the regulations. The IBIA must receive this request no later than 90 days after the publication of the FD in the **Federal Register** . The FD will become effective as provided in the regulations 90 days from the **Federal Register** publication unless a request for reconsideration is received within that time. Dated: February 15, 2007. James E. Cason, Associate Deputy Secretary. [FR Doc. E7-2966 Filed 2-21-07; 8:45 am] BILLING CODE 4310-G1-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Issuance of Two Permits for Incidental Take of a Threatened Species to the Cedar City Corporation and the Paiute Indian Tribe in Iron County, UT AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; issuance of permit. SUMMARY: This document provides notice that we, the U.S. Fish and Wildlife Service, issued two permits for the incidental take of the Utah prairie dog, a threatened species, on the Cedar Ridge Golf Course and the Paiute Tribal Lands in Iron County, Utah. ADDRESSES: Documents and other information submitted with the permit application are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, from the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office, Fish and Wildlife Service, 2369 W. Orton Circle, Suite 50, West Valley City, Utah 84119. FOR FURTHER INFORMATION CONTACT: Elise Boeke, Fish and Wildlife Biologist, Utah Field Office (see ADDRESSES ), telephone
(801)975-3330. SUPPLEMENTARY INFORMATION: On May 15, 2006, we published a notice in the **Federal Register** (71 FR 28048) announcing that we had received an application from the Cedar City Corporation and the Paiute Indian Tribe (Applicants), for permits to incidentally take, under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), the Utah prairie dog on the Cedar Ridge Golf Course and the Paiute Tribal Lands in Iron County, Utah. On January 5, 2007, we issued permits (TE-125039-0, TE-143347-0) to the Applicants subject to certain conditions, which we listed on the permit. We issued the permits only after we determined that—(1) The Applicants applied in good faith,
(2)granting the permits will not be to the disadvantage of the Utah prairie dog, and
(3)issuing the permits will be consistent with the purposes and policy set forth in the Act. Authority: The action is authorized by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: January 5, 2007. Mike Stempel, Acting Regional Director, Region 6. [FR Doc. E7-2981 Filed 2-21-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [AK-1430-EU; A-033531, AA-086554] Notice of Realty Action: Direct Sale of Reversionary Interest of Recreation and Public Purposes Patent; Eagle River, AK AGENCY: Bureau of Land Management, Interior. ACTION: Notice of Realty Action. SUMMARY: Reversionary interest held by the United States in 3.9 acres of land located in Eagle River, Alaska, has been determined to be suitable for direct sale to the Corporation of Saint Andrew's Parish of the Archdiocese of Anchorage under the authority of Section 203 of the Federal Land Policy and Management Act of 1976 (90 Stat. 2750, 43 U.S.C. 1713) at not less than fair market value of $850,000. DATES: Comments must be received by 45 days from the date of publication of this Notice in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: Robert Lloyd, BLM Anchorage Field Office, 6881 Abbott Loop Road, Anchorage, Alaska 99507,
(907)267-1246. SUPPLEMENTARY INFORMATION: The lands, located in Eagle River, Alaska, are described as: Seward Meridian T. 14 N., R. 2 W. Sec. 11, Lots 7 and 10 (3.9 acres). The lands are currently owned by the Corporation of Saint Andrew's Parish of the Archdiocese of Anchorage and continue to be operated as Saint Andrew's Catholic Church. The patent for the lands is restricted by a reversionary clause. The lands are isolated, difficult and uneconomic for BLM to manage as part of the public lands and not needed for Federal purposes. The sale is consistent with BLM's land use planning for the area. The sale will further the original intent of the patent by facilitating the landowners' long-term growth and development goals. Title to these lands was transferred to the Corporation of the Catholic Bishop of Juneau on October 6, 1960 (Pat. 1213492), using the Act of Congress of June 14, 1926 (44 Stat. 741: 43 U.S.C. 869), as amended by the Recreation and Public Purpose Act of June 4, 1954 (68 Stat. 173), and September 21, 1959 (73 Stat. 751), (the Act) as the authority for the transfer. The patent is subject to a reversionary clause as required by the Act. The subject lands, lots 7 and 11, comprise two of the 13 lots owned by the church in this location. Lots 7 and 11 are the only lots that contain a reversionary clause. The church has fee title to the remaining properties that surround lots 7 and 11. The patent, when issued, will be for the reversionary interest only. All other terms and conditions of Patent No. 1213492 will continue to apply. For a period of 45 days from the date of publication of this Notice, interested parties may submit comments regarding the proposed direct sale of the reversionary interest to the BLM Anchorage Field Office Manager at the address above. Adverse comments will be evaluated and could result in the modification or vacation of this decision. The reversionary interest will not be offered for conveyance until at least 60 days after the date of this Notice. Any written comments received during this process, as well as the commenter's name and address, will be available to the public in the administrative record and/or pursuant to Freedom of Information Act requests. You may indicate for the record that you do not wish to have your name and/or address made available to the public. Any determination by the BLM to release or withhold the names and/or addresses of those who comment will be made on a case-by-case basis. A request from a commenter to have name or address withheld from public release will be honored to the extent permissible by law. Dated: January 22, 2007. Mike Zaidlicz, Acting Field Manager. [FR Doc. E7-2953 Filed 2-21-07; 8:45 am] BILLING CODE 4310-JA-P DEPARTMENT OF JUSTICE Antitrust Division United States et al. v. Dairy Farmers of America et al.; Response to Public Comments on the Proposed Final Judgment Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States hereby publishes the public comments received on the proposed Final Judgment in *United States of America et al.* v. *Dairy Farmers of America, Inc. et al.,* Civil Action No. 6:03-206-KSF and the responses to such public comments. On April 24, 2003, the United States and Commonwealth of Kentucky filed a Complaint alleging that the acquisition by Dairy Farmers of America (“DFA”) of an ownership interest in Southern Belle Dairy Co., LLC (“Southern Belle”), violated Section 7 of the Clayton Act, 15 U.S.C. 18. An Amended Complaint was filed on May 6, 2004. The proposed Final Judgment, filed on October 2, 2006, requires DFA to divest its interest in Southern Belle and use its best efforts to cause its partner, the Allen Family Limited Partnership, to divest its interest in Southern Belle. Public comment was invited within the statutory 60-day comment period. Copies of the Amended Complaint, proposed Final Judgment, Competitive Impact Statement, public comments and the United States' responses to such comments and other papers are currently available for inspection in Room 200 of the Antitrust Division, Department of Justice, 325 Seventh Street, NW., Washington, DC 20530, *telephone:*
(202)514-2481 and the Office of the Clerk of the United States District Court for the Eastern District of Kentucky, 310 South Main Street, London, Kentucky 40745. Copies of any of these materials may be obtained upon request and payment of a copying fee. J. Robert Kramer II, Director of Operations. United States District Court Eastern District of Kentucky Southern Division at London [Civil Action No.: 6:03-206-KSF] Pursuant to the requirements of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), the United States hereby files comments received from members of the public concerning the proposed Final Judgment in this civil antitrust suit and the responses by the United States to these comments. The United States and Commonwealth of Kentucky will move the Court for entry of the proposed Final Judgment after the public comments and this Response have been published in the **Federal Register** , pursuant to 15 U.S.C. 16(d). I. Background The United States and Commonwealth of Kentucky (the “government”) filed a civil antitrust Complaint under Section 15 of the Clayton Act, 15 U.S.C. 25, on April 24, 2003, alleging that the acquisition by Dairy Farmers of America, Inc. (“DFA”) of its interest in Southern Belle Dairy Co., LLC (“Southern Belle”) violated Section 7 of the Clayton Act, 15 U.S.C. 18. An Amended Complaint was filed on May 6, 2004. The Amended Complaint alleged that the acquisition will likely substantially lessen competition for the sale of milk to schools in one hundred school districts in eastern Kentucky and Tennessee. On August 31, 2004, the District Court granted summary judgment to DFA and Southern Belle. The government appealed, and on October 25, 2005, the Court of Appeals reversed the grant of summary judgment as to DFA and remanded the case for trial. The Court of Appeals affirmed the dismissal of Southern Belle, leaving DFA as the only defendant. *See United States* v. *Dairy Farmers of America, Inc.* , 426 F.3d 850 (6th Cir. 2005). On October 2, 2006, the government filed a proposed Final Judgment that requires DFA to divest its interest in Southern Belle and use its best efforts to require its partner, the Allen Family Limited Partnership (“AFLP”), to divest its interest in Southern Belle. DFA proposed divesting its interest and AFLP's interest in Southern Belle to Prairie Farms Dairy, Inc. (“Prairie Farms”), and the government approved Prairie Farms as a suitable buyer of DFA's and AFLP's interests in Southern Belle. The government and DFA have stipulated that the proposed Final Judgment may be entered after compliance with the Tunney Act. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof. 1 1 Prairie Farms and DFA executed a purchase agreement for Southern Belle's assets on October 2, 2006. In keeping with the United States' standard practice, the proposed Final Judgment does not prohibit the completion of the divestiture before it is entered. See ABA Section of Antitrust Law, *Antitrust Law Developments* 387 (5th ed. 2002) (noting that “[t]he Federal Trade Commission (as well as the Department of Justice) generally will permit the underlying transaction to close during the notice and comment period”). Such a prohibition could interfere with many time-sensitive deals, prevent or delay the realization of substantial efficiencies, and delay effective relief. II. Standard of Judicial Review Upon the publication of the public comments and this Response, the United States will have fully complied with the Tunney Act and will move for entry of the proposed Final Judgment as being “in the public interest.” 15 U.S.C. 16(e), as amended. In making the “public interest” determination, the Court should apply a deferential standard and should withhold its approval only under very limited conditions. *See, e.g., Mass. Sch. of Law at Andover, Inc.* v. *United States,* 118 F.3d 776, 783 (D.C. Cir. 1997). Specifically, the Court should review the proposed Final Judgment in light of the violations charged in the complaint. Id. (quoting *United States* v. *Microsoft Corp.* , 56 F.3d 1448, 1462 (D.C. Cir. 1995) (“Microsoft”)). Before entering the proposed Final Judgment, the Court is to determine whether the Judgment “is in the public interest.” 15 U.S.C. 16(e). The Tunney Act states that, in making that determination, the Court may consider:
(A)The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B)The impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial. 15 U.S.C. 16(e)(1). The United States described the courts' application of the Tunney Act public interest standard in the Competitive Impact Statement filed with the Court on October 2, 2006. III. Summary of Public Comments and Responses During the sixty-day comment period, the United States received four comments from dairy farmers in Kentucky, one comment from a former Southern Belle employee, one comment on behalf of a cooperative of dairy farmers in Kentucky, and one anonymous comment. These comments are attached in the accompanying Appendix. After reviewing the comments, the United States continues to believe that the proposed Final Judgment is in the public interest. A. Southeast Graded Milk Producers Association Southeast Graded Milk Producers Association (“SEGMPA”), a cooperative of dairy farmers in Kentucky, submitted a comment which both thanked the government for challenging DFA's acquisition of its interest in Southern Belle, and expressed concerns about DFA's raw milk procurement practices. SEGMPA has been a long-time supplier of raw milk to Southern Belle. When SEGMPA tried to re-negotiate its supply contract with Southern Belle in 2006, Southern Belle decided not to renew the contract. SEGMPA then negotiated an agreement to supply raw milk to the Flav-O-Rich dairy in London, Kentucky. Flav-O-Rich is owned by National Dairy Holdings (“NDH”), which itself is 50%-owned by DFA. Shortly after the contract negotiations with Flav-O-Rich concluded, Flav-O-Rich told SEGMPA that it could not go through with the supply contract, since DFA is the raw milk supplier to NDH's dairies, including Flav-O-Rich. According to SEGMPA, this left it with no outlet for its members' raw milk other than Southern Belle. SEGMPA went back to Southern Belle, and although it was able to negotiate a new raw milk supply contract, it was on much less favorable terms than it had previously negotiated. SEGMPA is concerned that in the future it will not be allowed to compete with DFA for raw milk supply contracts at Southern Belle, and urges that the government ensure that there is competition for raw milk as well as for school milk. SEGMPA acknowledges in its comment that these raw milk concerns are different from the harm to competition for school milk alleged in the Amended Complaint and addressed by the proposed Final Judgment. While the government brought this case to protect competition in the market for the sale of milk served by schools in Kentucky and Tennessee, SEGMPA's concerns are about a different market, *viz.* the sale of raw milk to dairy processors like Southern Belle and Flav-O-Rich. Under the Tunney Act, however, a court's public interest determination is limited to whether the government's proposed Final Judgment remedies the violations alleged in its Amended Complaint. A review of the market for raw milk, which was not at issue in this litigation, would be inappropriate because it would construct a “hypothetical case and then evaluate the decree against that case,” something the Tunney Act does not authorize. *Microsoft,* 56 F.3d at 1459. B. Carl Phelps A former Southern Belle employee, Carl Phelps, submitted a comment expressing concerns about the effect of the divestiture on the market for raw milk in Kentucky. As a Southern Belle employee, Mr. Phelps was the plant's contact with the dairy farmers that supplied Southern Belle with raw milk and the haulers that transported the milk from the farms to the Southern Belle plant in Somerset, Kentucky. When SEGMPA negotiated a milk supply contract with Flav-O-Rich as a result of Southern Belle's decision not to renew its raw milk supply contract with SEGMPA, Mr. Phelps resigned from Southern Belle and joined Flav-O-Rich as a liaison between the plant and SEGMPA's members. Shortly after the contract negotiations with Flav-O-Rich concluded, Mr. Phelps was told that the contract between Flav-O-Rich and SEGMPA would not be finalized. Mr. Phelps's first concern is that, in the future, Prairie Farms will not contract with SEGMPA for Southern Belle's raw milk, but instead choose to supply the plant with raw milk from its own members or DFA. This would effectively leave SEGMPA no customers for its members' raw milk, forcing SEGMPA to fold and its members to either join DFA or Prairie Farms. Mr. Phelps is concerned about these alternatives because he understands that SEGMPA's members have approached Prairie Fanns about joining that co-op, but have been turned down. If SEGMPA were to shut down, Mr. Phelps contends that DFA would be the only outlet for SEGMPA's farmer members and would be able to reduce prices paid to farmers because it would have no competition. This concern about competition in the market for raw milk is not related to competition in the markets for school milk at issue in this case. Mr. Phelps, like SEGMPA and other commentors expressing concerns about competition in the market for the sale of raw milk, does not argue that the proposed Final Judgment is not “within the reaches of public interest.” Nor do they contest that because of their concerns about the market for raw milk, the divestitures required by the proposed Final Judgment will not remedy the competitive harm alleged in the Amended Complaint. Rather, Mr. Phelps and these other commentators raise competitive issues in markets separate and distinct from those relevant to this matter. Mr. Phelps's second concern is that, despite the divestiture of Southern Belle to Prairie Farms, DFA still may be able to influence Southern Belle's behavior in the school milk markets at issue because DFA and Prairie Farms are joint venture partners in the Roberts Dairy, Hiland Dairy, and Turner Dairy. He suggests that a third party monitor Prairie Farms to ensure that its operation of Southern Belle is totally independent of DFA, and that Southern Belle will compete with dairies partially owned by DFA, such as Flav-O-Rich. Mr. Phelps's concern that joint ventures between Prairie Farms and DFA will affect Prairie Farms' operation of Southern Belle was considered by the government when evaluating Prairie Farms as a potential purchaser of Southern Belle. The government believes that the joint ventures will not undermine the proposed relief for several reasons. First, these joint ventures involve dairies located in completely different geographic markets than those in which Southern Belle competes for school milk contracts. The Roberts and Hiland dairies, both 50%-owned by Prairie Farms and DFA, are located in Arkansas, Iowa, Kansas, Missouri, Nebraska, and Oklahoma. In addition, Prairie Farms recently acquired a partial ownership interest in the Turner dairy, which has plants in Arkansas, Kentucky, and Tennessee, and is 20%-owned by DFA. Turner's Kentucky plant is in Fulton, on the far western edge of the state, and does not compete against Southern Belle for school milk contracts. Second, because these joint ventures involve different markets, Prairie Farms will not have the same incentive to lessen competition between Southern Belle and Flav-O-Rich (or any other DFA-affiliated dairy) that led to the filing of this case. The government challenged DFA's acquisition of a 50% ownership interest in Southern Belle because DFA's partial ownership of both Southern Belle and Flav-O-Rich created a substantial incentive to reduce competition between those two dairies. The acquisition of Southern Belle by Prairie Farms has eliminated that common ownership between those two dairies. In the future, Prairie Farms will have a strong incentive to compete to obtain school milk contracts for its Southern Belle dairy at the expense of Flav-O-Rich. The dairies jointly owned by Prairie Farms and DFA do not compete for school milk contracts with Southern Belle, so Prairie Farms will not be able to reduce competition for school milk between Southern Belle and any of those dairies. Third, the government evaluated and approved Prairie Farms as a buyer of Southern Belle because it has a demonstrated ability to operate dairy processors and compete for school milk contracts independent of any influence or control by DFA. Prairie Farms, as an agricultural cooperative of dairy farmers, has an economic incentive to supply its processing plants with raw milk from its members, so it is not dependent on DFA for its raw milk supply to its wholly owned processing plants. Its dairies compete for school milk contracts, and there is no evidence that it competes less effectively in geographic markets where it competes against processing plants partially owned by DFA. Finally, the proposed Final Judgment protects against DFA's ability to exert control over Southern Belle. Section XI of the proposed Final Judgment prohibits DFA from reacquiring, directly or indirectly, any ownership interest in Southern Belle. As a result, if Prairie Farms transferred the assets of Southern Belle to one of its joint ventures with DFA, DFA would be in violation of the proposed Final Judgment. The government reviewed the terms of the proposed sale to Prairie Farms, and is confident that DFA will not retain any control over Southern Belle. If the government learned of any agreement prohibited by the proposed Final Judgment, pursuant to Section X it could inspect DFA's records and request reports from DFA regarding its compliance. Similarly, this Court retains jurisdiction under Section XII of the proposed Final Judgment to enforce the proposed Final Judgment and punish any violations. For these reasons, the government believes that Mr. Phelps's suggested modification to the proposed Final Judgment is not warranted. C. William R. Sewell and Bill L. Guffey William R. Sewell and Bill Guffey, two dairy farmers from Kentucky, submitted comments raising the concern that the competition for raw milk in Kentucky could be lessened if SEGMPA is not able to supply Southern Belle with raw milk. As is the case with Carl Phelps's concerns about the market for raw milk, the concern expressed by Messrs. Sewell and Guffey does not address a violation alleged in the Amended Complaint, nor does their concern question whether the proposed Final Judgment remedies the harm alleged in the Amended Complaint. D. Bradley J. Marcum Bradley J. Marcum, a dairy farmer from Alpha, Kentucky, submitted a comment expressing concerns about the raw milk purchasing practices for Southern Belle after its divestiture to Prairie Farms. He notes that Prairie Farms has retained many of Southern Belle's key employees, and suggests that, therefore, DFA still influences Southern Belle's decisions. To the extent that Mr. Marcum's comment suggests that the adequacy of the divestiture of Southern Belle to Prairie Farms as a remedy to the Amended Complaint's allegations is undermined by Prairie Farms' retention of Southern Belle's employees, the government disagrees. Permitting Southern Belle's new owner to retain the plant's existing employees allows it to maintain the plant's customer accounts and keep its operations running smoothly with minimal interruption. The continued efficient operation of the Southern Belle dairy during the transition to a new owner was the reason why Section IV.F of the proposed Final Judgment was included. This section expressly allows a purchaser of Southern Belle to retain the plant's employees. Section IV.F also requires DFA to “not interfere with any negotiations by the Acquirer to employ any employee whose primary responsibility is the production, sale, marketing or distribution of products from the Southern Belle Dairy.” By retaining employees who have been responsible for Southern Belle's operations, marketing, and sales, but who no longer have any connection to DFA, Southern Belle is better able to compete against Flav-O-Rich and other processing plants for school milk and other accounts. E. Ronald Patton Ronald Patton, a dairy farmer and past-president of SEGMPA, submitted a comment expressing concerns that other parties were not allowed to purchase DFA's interest in Southern Belle, including a local group of potential investors who wished to operate the Southern Belle plant independent of DFA or any other processing company. Mr. Patton is concerned that Prairie Farms' purchase from DFA of Southern Belle and its 2006 purchase from DFA of Turner Dairies indicates that other parties were foreclosed from bidding on Southern Belle. As described in Section IV of the proposed Final Judgment, DFA was required to inform “any potentially qualified purchaser making inquiry regarding a possible purchase of the [Southern Belle dairy] that such assets are being offered for sale,” and provide information about Southern Belle to all potential purchasers. The government, pursuant to Section IX.B-E of the proposed Final Judgment, received periodic updates on the inquiries DFA received from parties interested in purchasing Southern Belle, and the status of DFA's negotiations with those interested parties. Based on these updates, the government is aware that DFA received multiple offers to buy Southern Belle. The proposed Final Judgment does not require DFA to accept a particular offer, only that any acquirer of Southern Belle meet the conditions set out in Section IV.H(1)-(2). These provisions require Southern Belle to be sold to a purchaser who “has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in school and fluid milk markets in Kentucky and Tennessee, * * * [and] that none of the terms of any agreement between [the purchaser] and DFA give DFA the ability to act unreasonably to raise the [purchaser's] costs, to lower the [purchaser's] efficiency, or otherwise to interfere with the ability of the [purchaser] to compete effectively.” The government reviewed information from both DFA and Prairie Farms regarding the purchase of Southern Belle and the presence of Prairie Farms in school milk markets in Kentucky and Tennessee. As noted earlier, Prairie Farms owns and operates multiple dairy processing plants elsewhere in the country, and has the knowledge and expertise to operate the Southern Belle Dairy efficiently, including the dairy's school milk business. It also has the capacity to supply its dairies with raw milk independent of DFA, whether through its own members or through other suppliers such as SEGMPA. The purchase agreement between Prairie Farms and DFA has no terms or conditions that would adversely affect the costs, efficiencies, or ability of Southern Belle to compete effectively for school and fluid milk sales. Based on this information, the government approved Prairie Farms as a buyer of Southern Belle because it met the requirements of Section IV.H(1)-(2) of the proposed Final Judgment. F. Anonymous The United States received an anonymous comment expressing the opinion that DFA agreed to sell Southern Belle to Prairie Farms because the sale would somehow allow DFA to eliminate SEGMPA as a competitor for raw milk contracts, and that Prairie Farms would refund the purchase price of the Southern Belle dairy back to DFA through some type of rebate mechanism. This commentor provides a lengthy history of Southern Belle, and suggests that DFA divested Southern Belle to Prairie Farms because it negotiated a side deal with Prairie Farms to have the new owner take steps to force SEGMPA out of business. The commentor, however, did not provide any evidence of such an agreement. This comment's concerns about the market for raw milk, like other comments discussed earlier, are not germane to the evaluation of the conduct alleged in the Amended Complaint and addressed by the proposed Final Judgment. The government has no evidence of a side agreement between Prairie Farms and DFA relating to the sale of Southern Belle. If there were credible evidence of such an agreement, the government could investigate any potential violations of the proposed Final Judgment pursuant to its inspection rights in Section X of the proposed Final Judgment, and if it believed any provisions of the proposed Final Judgment were violated, Section XII of the proposed Final Judgment allows this Court to fashion an appropriate remedy. IV. Conclusion After careful consideration of the public comments, the United States concludes that entry of the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violations alleged in the Amended Complaint and is therefore in the public interest. Accordingly, after publication of this Response in the **Federal Register** pursuant to 15 U.S.C. § 16(b) and (d), the United States will move this Court to enter the Final Judgment. Dated: February 7, 2007. Respectfully Submitted, Jon B. Jacobs, Ihan Kim *Attorneys, Litigation I Section, Antitrust Division, United States Department of Justice, City Center Building, 1401 H Street, NW., Suite 4000, Washington, DC 20530. 202-307-0001.
(f)202-307-5802. ihan.kim@usdoj.gov.* Certificate of Service This certifies that I caused a true and correct copy of the foregoing to be served on February 7, 2007, via electronic mail and first-class mail on the following: David A. Owen, Esq., Greenebaum Doll & McDonald, PLLC, 300 West Vine Street—Suite 1100, Lexington, KY 40507. *Telephone:* 859-231-9500. Counsel for Dairy Farmers of America, Inc. W. Todd Miller, Esq., Baker & Miller, PLLC, 2401 Pennsylvania Avenue, NW.—Suite 300, Washington, DC 20005. *Telephone:* 202-663-7820. Counsel for Dairy Farmers of America, Inc. R. Kenyon Meyer, Esq., Dinsmore & Shohl LLP, 1400 PNC Plaza, 500 West Jefferson Street, Louisville, KY 40202. *Telephone:* 502-540-2300. Counsel for Chicago Tribune Company. Charles E. Shivel, Jr., Esq., Stoll, Keenon & Park, LLP, 300 West Vine Street—Suite 2100, Lexington, KY 40507. *Telephone:* 859-231-3000. Counsel for Southern Belle Dairy Co., LLC J. Jackson Eaton, III, Esq., Gross, McGinley, LaBarre & Eaton, LLP, PO Box 4060—33 South Seventh Street, Allentown, PA 18105. *Telephone:* 610-820-5450. Counsel for Southern Belle Dairy Co., LLC. Maryellen B. Mynear, Esq., Assistant Attorney General, Consumer Protection Division, Office of the Kentucky Attorney General, 1024 Capital Center Drive, Suite 200. *Telephone:* 502-696-5389. Counsel for Commonwealth of Kentucky. Ihan Kim Appendix: Public Comments on the Proposed Final Judgment Comment Submitted by Southeast Graded Milk Producers Association Southeastern Graded Milk Producers Association P. O. Box 25, Somerset, Kentucky 42502 Phone
(606)679-3504, Fax
(606)678-4696 January 9, 2007 Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division U.S. Department of Justice 1401 H St. NW., Suite 4000 Washington, DC 20530 IN RE: United States of America, et al., vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Dear Mr. Botti: The Association wishes to express its thanks and appreciation to the Antitrust Division for its pursuit of the foregoing matter. Without that, this small association of milk producers would have been swallowed up by Dairy Farmers of America. As I am sure you are aware, there is much more to be done to reign in the antitrust activities of Dairy Farmers of America, and we hope you will pursue that just as you did the above-styled action. About a year ago, when DFA owned 50% of the National Dairy Holdings plant in London, Kentucky, and 50% of Southern Belle Dairy in Somerset, Kentucky, we were able to work out a contract to supply milk to the NDH plant at London, Kentucky, whereby our producers received twenty (.20¢) cents per hundredweight more for their milk. DFA killed the contract. We then had no choice except Southern Belle Dairy and since there was no competition for our milk our producers lost the twenty (.20¢) cents per hundredweight. Since DFA still owns 50% of the London plant, we still have no competition for our milk. In other words, the foregoing lawsuit provides for competition for school milk, but does not address the problem of competition in the procurement of raw milk. That competition is stifled by the exclusive contracts that DFA has to supply milk to numerous plants. It is just such a contract that shut our association out of the NDA plant at London, Kentucky, which reduced our choice of plants to one. Each independent producer or association needs at least two
(2)totally independent plants to which he could market his milk. Only then can the antitrust activities be controlled. Thanks again for what was done. Keep up the good work. Very truly yours, JOHN T. MANDT, *Secretary.* JTM: jlm Comment Submitted by Carl Phelps To: Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division, U.S. Department of Justice 1401 H St. NW, Suite 4000 Washington, DC 20530 RE: United States of America, et al. vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Dear Mr. Botti, I want to thank the DOJ's Antitrust Division for the interest you have shown regarding the ownership of Southern Belle Dairy. This is a step in the right direction but there is still more to do to ensure that the Southeastern Graded Milk Producers survive. I think a third party should be involved to make certain that Prairie Farms will not have contact with DFA because they do have joint ventures with them. I spent 30 years working at Southern Belle as a fieldman. I came to know and care deeply for the producers and always tried to make sure whatever I did was in their best interest. When Southern Belle was being run by the Shearer family, I didn't have a problem with this goal. When Southern Belle was purchased by DFA and Bob Allen, it seemed the best interest of the producers was of little concern. To my disappointment, I was told that I was not to get any more producers. I believe this was because they didn't want Southeastern to survive. I believe they wanted to control all of the raw milk supply and to force Southeastern producers to become DFA. When it came time to renew their contract with Southeastern, the producer board was told that they had a problem renewing their contract as it was. I feel that what it all boiled down to was they didn't really want to renew their contract which would have meant they had no where to sell their milk to and so would have been forced to become DFA members. Southeastern tried to find another place to market their milk. Southeastern negotiated with Charles Hyatt at Flav-O-Rich Dairy in London, Kentucky about supplying milk to that plant. An agreement was made with National Dairy Holdings which owns Flav-O-Rich to buy Southeastern's milk. Then, I was hired by Charles Hyatt as a fieldman for Flav-O-Rich Dairy to continue taking on producers for Southeastern and was told that I could take on all I could find to supply milk for the plant in London and a plant in Madisonville, Kentucky. I resigned from Southern Belle Dairy and was happy to do so, thinking the producers had a good deal and would be taken care of. Guess what? Flav-O-Rich Dairy is 50 percent owned by DFA. About a week after being hired, I was told the deal was off, that DFA wasn't going to furnish raw milk to the rest of their National Dairy Holdings plants if they let the Flav-O-Rich plant have Southeastern as their own raw milk supply. DFA got their way again. The producers wound up having to sign a contract that many were not happy with in order to have a place to sell their milk. After learning that Southern Belle had been purchased by Prairie Farms, I had high hopes for the producers and the milk haulers, as many have kept in contact with me. Producers and milk haulers have called me to tell me of their fear about their future with Southern Belle. Some employees were told their jobs would be moved to Illinois; this made them very nervous about losing their jobs. Some employees were even told not to associate with certain people such as myself, making them feel this could put their job in danger. The management at Southern Belle has known for a long time that I know the truth about their connection with DFA. Management seems to be troubled that I would try to help the producers. Since taking over Southern Belle on 10/01/06, producers and milk haulers have contacted Gary Lee, Vice President of Prairie Farms, about becoming Prairie Farms producers and they were turned down. Haulers also have talked to Gary Lee about taking on new members. Producers and haulers have been puzzled that they were not contacted about their future with the new owners, making them feel that they are of little concern. I wonder if there might have been a deal made under the table between DFA and Prairie Farms when Southern Belle was sold to them. Perhaps, Southern Belle was a gift to Prairie Farms. Raw milk credits could be part of the deal. If this deal is approved by the DOJ, I think DFA will have it made and the SEGMPA will be put in a situation that will eventually destroy them. After all, if they were gone, DFA would be the sole supplier to the Southern Belle plant owned by Prairie Farms with joint ventures with DFA and the Flav-O-Rich plant in London, Kentucky (50 percent owned by DFA and 50 percent by National Dairy Holdings). I think DFA would probably give up something now and if the DOJ approves this, it won't be long before another plan of action will start against the Southeastern Graded Milk Producer Association. Also, with Prairie Farms owning Southern Belle and having joint ventures with DFA, if the Federal Order System is voted out or changed in any way, SEGMPA producers would be better off selling their milk to Southern Belle with an owner who is not connected to DFA because there will be no competition and DFA can potentially pay producers whatever they want to. I hope that you will really think about what your decision will mean to the people who make up the Southeastern Graded Milk Producers Association. In my opinion, the only right way to resolve this is to make sure that whoever ends up with Southern Belle has no connection to DFA. Thank you, Carl Phelps, 6790 Hwy 1643, Somerset, KY 42501, 606-382-5836. If you have any questions, please feel free to contact me. Comment Submitted by William R. Sewell January 15, 2007 To: Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division, U.S. Department of Justice 1401 H St. NW., Suite 4000 Washington, DC 20530 RE: United States of America, et al. vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Dear Mr. Botti, I would like to express my concern about the future operation and working relationship between Southern Belle Dairy and the Southeastern Graded Milk Producers Association. I am in the third generation of my family as a producer of this operation. I have been told about things that have happened and directions that have been given that has caused me to ask the proper individuals to reinvestigate the situation. The future welfare of my family depends much on this ongoing operation. William R. Sewell, *Producer #107.* Comment Submitted by Bill L. Guffey Guffey Farms LLC Bill Guffey Rt 3 Box 301 Albany, KY 42602 January 12, 2007 Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division U.S. Department of Justice 1401 H St. NW. Suite 4000 Washington, DC 20530 IN RE: United States of America, et al Vs. Dairy Farmers of America, Inc., Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Mr. Botti: I am writing the letter to express my thanks for initiating the Civil Action Suite against Dairy Farmers of America, Inc. by the Antitrust Division. However, the speedy sale of DFA's percent of interest in Southern Belle Dairy to Prairie Farms has raised concerns that this may only a deploy to lessen the investigation by the Antitrust Division. I would hope that this would not be the case and the Antitrust Division would continue to investigate DFA. Being a Dairy farmer and a former Board of Education member and chairman, I understand the real need for competition for raw milk and the need for competition on bids for school milk also. With the continuing investigation by the Antitrust division this is assured to happen. Thanks for reading this and your work on this matter. Respectfully yours, Bill L. Guffey. Comment Submitted by Bradley J. Marcum Bradley J. Marcum HC-71 Box 454 Alpha, KY 42603 606.387.5193 January 10, 2007 Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division U.S. Department of Justice 1401 H St. NW. Suite 4000 Washington, DC 20530 IN RE: United States of America, et al vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Dear Mr. Botti: I personally would like to express my gratitude and appreciation to the Antitrust Division for its incomparable pursuit of the abovementioned matter. The Antitrust Division has been an asset to dairy owners, such as me. Although the action of the Antitrust Division was beneficial in alleviating symptomatic problems that were occurring, the predominant problem remains. Dairy Farmers of America, Inc. still have an affluent influence upon decision making concerning the new plant of Prairie Farms, formally known as Southern Belle Dairy. Recently, it has been rumored that Prairie Farms have been manipulating individual producer pay price on raw milk. Some producers are receiving more than the contract allocated amount for raw milk; while others only receive a percentage of what the other producers are paid. To the naked eye, it is difficult to understand why Prairie Farms would allow such a discrepancy between individual producers, yet when you begin to look closer, the picture becomes clear. Although the Dairy Farmers of America, Inc. were ordered to recede from the area and Southern Belle Dairy, many associates and “key” employees remain the same. To put it frankly, names on uniforms have changed to Prairie Farms, yet policies and business remain the same. Thanks again for what was done. Keep up the good work. Very truly yours, Bradley J. Marcum. Comment Submitted by Ronald Patton 5049 Hwy 490 East Bernstadt, KY 40729 January 12, 2007 Hon. Mark J. Botti, Chief, Litigation I Section Antitrust Division, U.S. Department of Justice 1401 H St., NW., Suite 4000 Washington, DC 20530 IN RE: United States of America, et al. vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF Dear Mr. Botti, I wish to express my gratitude to the Antitrust Division for their efforts in pursuing the above mentioned matter. Even though the sale of Southern Belle Dairy to Prairie Farms may appear to resolve the competition for school milk bids, several issues remain. My concern is that Dairy Farmers of America and Prairie Farms have made two transactions within the past year, The DFA sales of Turner Dairies and Southern Belle. Turner Dairies also has a milk processing plant in Kentucky. DFA's hasty sale of Southern Belle to Prairie Farms raises concerns that other interested parties were not allowed to make an offer for this plant. I am knowledgeable of at least one offer that was not acted upon by DFA. The offer was from a local group of business officials who desired to see the plant operate independently of DFA and its associated partners. The independent group would have assured competition for bids for school milk and retail sales, as well as ensuring a market through which local farmers could sell raw milk rather than to the mega-coops. It is imperative that the Antitrust Division investigate to ensure that the process under which Southern Belle Dairy was sold was fair and did not exclude other potential offers. It is my belief that the Antitrust Division has been lax regarding issues of the dairy industry, especially in area of raw milk procurement, which ultimately affects the price of school milk! Thank you for your attention to this matter. I look forward to discussing this matter further with you. Sincerely, Ronald Patton, *Past President, Southeastern Graded Milk Producers Assoc.* Comment Submitted by Anonymous To: Hon. Mark J. Botti Chief, Litigation I Section Antitrust Division, U.S. Department of Justice 1401 H St., NW., Suite 4000 Washington, DC 20530 RE: United States of America, et al. vs. Dairy Farmers of America, Inc., U.S. District Court, Eastern District of Kentucky, London Division, Civil Action No.: 6:03-206-KSF From: A VERY concerned citizen who would love to sign this comment but out of fear of being retaliated against it is probably in my best interest not to sign it. Dear Mr. Botti, Please consider this information before giving final approval to the Prairie Farms purchase of Southern Belle Dairy. It seems to me that Dairy Farmer of America
(DFA)and Robert Allen (Good Ole Bob) chose to sell to the entity that would serve their best interest * * * NOT the best interest of the public. I base this conclusion on the fact that at least one group that was interested was not even given the opportunity to submit a bid or make a proposal. Another interesting thing is I believe Prairie Farms would know exactly how that felt because I believe the very same thing happened to them when Suzia was forced to spin Southern Belle off in order to purchase Broughton Foods. Is it possible that Prairie Farms wasn't willing to play the DFA games at that time but for some reason they are willing to play those games now? The game plan DFA has for the Southern Belle Dairy case, I believe, is to see the Southeastern Graded Milk Producers Association (SEGMPA) disappear. SEGMPA is a group of dairy farmers that has supplied Southern Belle for many years. It seems DFA has viewed SEGMPA as a thorn in their side for a long, long time. You will see in the following history how DFA had played a role in going to great and expensive lengths to see that Prairie Farms did not take ownership of Southern Belle. I never could understand this because DFA and Prairie Farms had some joint ventures that Prairie Farms managed. It is my belief, and I think it could be backed up with financial information from the two organizations, that DFA should have been very happy with those joint ventures with Prairie Farms. I heard in the past that there were years that had it not been for those joint ventures with Prairie Farms, DFA would have seen red ink instead of black ink on their financials. The following history will show how DFA went to great lengths to keep Prairie Farms from owning Southern Belle yet now they seem to have pushed Southern Belle to Prairie Farms. Why? Maybe because Leonard Southwell and Roger Capps (two long-time leaders of Prairie Farms) both passed away within the last six months. Maybe they knew better than to play the DFA games. I hope you find the following history helpful and not too boring. Southern Belle History 1951-1997: Family owned company, that family being the Ralph Shearer family. Very early on, Mr. Shearer recognized that the relationship between SEGMPA was vital to the company for two reasons. 1.) From the get go, he felt a good, close relationship with these farmers and working together with them the dairy could have a raw supply with superior quality that would give Southern Belle an edge over its competition. 2.) Then in the 60's, when the larger Co-ops became prevalent, he felt the relationship with SEGMPA became even more vital to the company. He felt these larger Co-ops would get into the processing side of the business, which they did. This along with all of the hidden charges the larger Co-ops had meant that SEGMPA would be able to supply the company at a fair price to the producers but also at a price where Southern Belle could remain competitive in the market place. 1997: Because it became more and more difficult to survive as a stand alone dairy with Dean Foods and Suzia (a relatively young company but they were giving Dean Foods a run for their money to be the largest fluid milk processor in the country), both were buying every dairy they could get their hands on. Martin Shearer had replaced his father, Ralph, as president of Southern Belle back in the 80's and Ralph Shearer passed away in the early to mid 90's. It was at this time Martin felt the best thing for the company was to join other dairies in some type of merger or sell to someone who had other plants before Dean and Suzia owned every dairy in the country. This led to the Shearer family selling the dairy to Broughton Foods in Marietta, Ohio. Broughton had a plant in Marietta and a plant in Charleston, West Virginia and would later buy a milk plant in Port Huron, Michigan and an ice cream plant in Burton, Michigan. Broughton was owned by a group of investors headed up by Marshall Reynolds of Huntington, West Virginia. Mr. Reynolds' right hand man at that time was Kirby Taylor. Kirby was also a stockholder in Broughton Foods. Martin Shearer remained as president of the Southern Belle division of Broughton Foods. Martin, following in his father's footsteps, continued the relationship with SEGMPA. He believed that relationship was good for both parties. 1998: It became known in early April that Dean and Suzia were both interested in acquiring Broughton Foods. The winner of that bidding war was Suzia. The rest of 1998 was spent by Suzia and Broughton getting DOJ approval 1999: Finally, in the spring approval to the deal was given but with one stipulation * * * that was Suzia was given six months plus a possible one month extension, it was warranted, to spin Southern Belle off. At that time the DOJ feared there would be no competition for the school milk business in parts of Kentucky and Tennessee because Suzia already owned Flav-O-Rich, a dairy located in London, Kentucky, thirty miles from the Southern Belle plant. Tracy Noll, with Suzia, who had played a role in the purchase of Broughton Foods, now was playing a role in spinning Southern Belle off. It was my understanding that Prairie Farms was interested in purchasing Southern Belle but was not given an opportunity to make a proposal. I wonder why. DFA, an investor in Suzia at the time and partner in joint ventures with Prairie Farms * * * STRANGE * * * No, I believe Suzia and DFA knew Prairie Farms would do what was best for Prairie Farms and the farmers who owned them (something DFA certainly doesn't understand) without any consideration of what was best for DFA or Suzia. The spin off was completed just as time was running out. If time had run out, DOJ had a trustee standing by to complete the spin off. Maybe it would have been best had they missed the deadline. Nevertheless, Southern Belle was purchased by a group of investors, several of which were former Broughton Foods stockholders. The group was headed up by Marshall Reynolds. Tracy Noll, for Suzia, and Kirby Taylor, for the investor group, played a significant role in the spin off. The price tag was $6,500,000., a very good deal for the investors. Martin Shearer remained on as President of the company and there were virtually no changes. 2001: Marshall Reynolds decided it might be the right time to sell the company. Leonard Southwell and Roger Capps (two long-time leaders of Prairie Farms) visited the Southern Belle plant in Somerset, Kentucky and quickly made a $13,000,000. offer for the company. This seemed to be a fair price for Prairie Farms and a very nice return for the investors. Double your money in two years * * * not bad. So it looked like Prairie Farmers would own Southern Belle. Not so fast * * * Enter Tracy Noll, no longer with Suzia, now an owner in the newly born company called National Dairy Holdings
(NDH)* * * yep, the same Tracy Noll that negotiated the sale of Broughton Foods to Suzia for $80 plus million, then negotiated the spin off of Southern Belle for $6,500,000., now back on the scene and upped the offer for Southern Belle to $19,000,000. I'll bet that pissed Prairie Farmers off. You see by this time Suzia had bought Dean the number
(1)and number
(2)in size as far as fluid milk processors in the country. As part of the Dean-Suzia deal, DFA had to sell their stock in Suzia * * * not to worry * * * they could re-invest now and own 50 percent of the newly formed NDH, who just happened to be the recipient of the dairies the new Dean had to spin off to gain DOJ approval. How nice this was for DFA; they now had 100 percent supply agreements with many of the new Dean company dairies and were 50 percent owners in the newly formed NDH and held 100 percent supply agreements with most of the NDA plants. Sounds like a plan is coming together. By the way, if you're ever in a position to sell or buy a dairy, get Kirby Taylor, not Tracy Noll. 1.) Kirby negotiates to sell Broughton Foods to Suzia, represented by Tracy Noll for $80 plus million. Southern Belle went with the deal. 2.) Tracy Noll negotiates for Suzia to spin Southern Belle off to Kirby Taylor representing an investor group. The price: $6,500,000. 3.) Kirby Taylor negotiates for the investor group and sells Southern Belle to none other than Trace Noll, now representing NDH for $19,000,000. Good Job Kirby! I will have to commend Tracy Noll for having guts and a big set of you know what. Because you see * * * DOJ had required Suzia/Tracy Noll to spin off Southern Belle because they did not want the same company to own both Flav-O-Rich and Southern Belle. Guess what?? Flav-O-Rich was one of those plants spun off by the new Dean to NDH and part owner Tracy Noll and now he is about to buy Southern Belle. He must have figured because it was under the $50,000,000 threshold, DOJ couldn't stop it. Tracy Noll must have got nervous because on Friday before the Southern Belle Board was to meet to recommend the sale of NDH to stockholders, Kirby Taylor said, “The deal to NDH has been handed off to DFA.” If I were Prairie Farms, I would really be mad now. DFA, a partner to Prairie Farms, buys Southern Belle right out from under them. You now see what lengths DFA will go to keep Prairie Farms from having Southern Belle. On Tuesday before the Southern Belle Board meeting, enter Jerry Boss, representing DFA and Bob Allen. The next day Southern Belle voted to recommend the sale of the company to DFA. To no one's surprise, Bob Allen is going to be the managing partner for DFA. He invested $1,000,000. of his money to become a 50 percent owner in a $19,000,000. company. Good ole Bob, a perfect partner in the words of Gary Hanman (the head man of DFA). Good ole Bob must have seen $ signs, why not after walking away with $17,000,000. in a very short period of time in a deal very similar to this one and also with DFA that involved Tuscan and Lehigh Dairies up in the northeast. Most anyone would be a perfect partner for an easy and quick $17,000,000. After the deal was complete and DFA and good ole Bob took over Southern Belle, good ole Bob almost immediately began laying the groundwork to give the SEGMPA two wonderful options: 1.) Become a DFA producer or 2.) Go fly a kite. It was also apparent soon after Bob took over that he needed someone to be his yes man because Martin Shearer just did not fit the bill. The yes man suddenly appeared * * * why, it's Mike Chandler right out of the sales department. Mike is the kind of guy that gives all salespeople a bad name. People say he would climb a tree to tell a lie. However, he was lacking when it came to speech because he couldn't say shit with a mouthful. Now this is where DOJ gets a well deserved Pat On The Back. Much to the surprise of DFA and good ole Bob, DOJ filed a lawsuit asking DFA to divest itself of its ownership in Southern Belle. Good ole Bob had to put the brakes on his plan. After all, it wouldn't look good if he sent Martin Shearer home and kicked the producers right between the legs, at least not right now. DFA and good ole Bob put up a good fight and finally finagled a judge into giving them a Summary Judgment. Good ole Bob must have known he was going to get it, as he sent Martin Shearer home before the Summary Judgment was made public and he put his yes man in place. When the Summary Judgment in favor of DFA and good ole Bob was made public, celebrations broke out to honor the victory over DOJ. After all, who is the DOJ that would question DFA and the perfect partner, good ole Bob. Here is another well-deserved Pat-On The Back for DOJ. You didn't quit. DOJ filed an appeal. The judge who was tricked by DFA and good ole Bob had his decision overturned. This really made DFA and good ole Bob mad. But what could they do? * * * Give up and agree to sell it and quickly find someone to move it to that would finish the job for them. Why after going to great and expensive lengths to keep Prairie Farms from owning Southern Belle do they quickly sell it to them without even giving one group a chance to make a proposal? I know opinions are like assholes; every body has one. Here's my opinion—Whatever Prairie Farms might have given will be returned to them in some way, probably in credits toward raw milk purchases, making the price tag this time around $00. plus keep lying Mike Chandler in charge to oversee DFA's best interests of seeing SEGMPA die a slow but sure death. At last, mission accomplished for DFA. Please do whatever it takes to see Southern Belle end up in the hands of someone who has
(zero)connection to DFA. Thanks for listening. A very concerned citizen P.S. Something else you may need to take a look at. Remember the children and families and taxpayers you were trying to protect when you made the new Dean spin off those plants. 1.) The one in northern Alabama that needed to give Dean competition; you may not know but it's gone. Dean has North Alabama schools all to themselves now. Poor children. 2.) The one in Virginia that was supposed to give Dean competition in parts of Virginia; you may not know but it's gone. Poor children. 3.) The one in Indiana that was supposed to give Dean competition; you may not know it but it's gone. Poor children. You might ought to watch the rest that were spun off because some of them may soon disappear as well. Thanks again for listening. [FR Doc. 07-709 Filed 2-21-07; 8:45 am]
Connectionstraces to 21
Traces to 21 documents
17 references not yet in our index
  • Pub. L. 98-417
  • Pub. L. 100-670
  • 42 USC 5121-5206
  • 50 CFR 13
  • 16 USC 1361-1407
  • 16 USC 4901-4916
  • 50 CFR 18
  • 180 F. Supp. 2d 130
  • 336 F.3d 1094
  • 447 F. Supp. 940
  • 592 F.2d 575
  • 90 Stat. 2750
  • 68 Stat. 173
  • 73 Stat. 751
  • 426 F.3d 850
  • 118 F.3d 776
  • 56 F.3d 1448
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cites case law
Notices
Notice
U.S.C.§ 156
U.S.C.§ 355
C.F.R.§ 10.30
U.S.C.§ 5153
Fed. Reg.Notices
U.S.C.§ 1531
U.S.C.§ 703
U.S.C.§ 3371
U.S.C.§ 668
F. Supp.180 F. Supp. 2d 130
F. App'x336 F.3d 1094
F. Supp.447 F. Supp. 940
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