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Code · REGISTER · 2007-06-04 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce · Rules and Regulations

Rules and Regulations. Final rule

70,427 words·~320 min read·/register/2007/06/04/07-2738

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BILLING CODE 4165-16-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 070215036-7107-02; I.D. 012307A] RIN 0648-AU79 International Fisheries; Pacific Tuna Fisheries; Restrictions for 2007 Purse Seine and Longline Fisheries in the Eastern Tropical Pacific Ocean AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Final rule. SUMMARY: NMFS publishes this final rule to implement the 2007 management measures to reduce overfishing of the eastern tropical Pacific Ocean
(ETP)tuna stocks in 2007, consistent with recommendations by the Inter-American Tropical Tuna Commission (IATTC) that have been approved by the Department of State
(DOS)under the Tuna Conventions Act. The U.S. purse seine fishery for yellowfin, bigeye, and skipjack tunas in the ETP will be closed for a 6-week period beginning August 1, 2007, through September 11, 2007. The longline fishery for bigeye tuna will close when a 500 metric ton
(mt)limit has been reached. These actions are taken to limit fishing mortality caused by purse seine fishing and longline fishing in the ETP and contribute to long-term conservation of the tuna stocks at levels that support healthy fisheries. DATES: The 2007 purse seine fishery closure for yellowfin, bigeye, and skipjack tunas is effective on 12:00 a.m. Pacific Time, August 1, 2007, through 11:59 p.m. Pacific Time, September 11, 2007. For 2007, NMFS will close the bigeye longline fishery through appropriate procedures to ensure that the bigeye longline tuna catch does not exceed 500 mt. ADDRESSES: Copies of the regulatory impact review/final regulatory flexibility analysis
(FRFA)may be obtained from the Southwest Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213. FOR FURTHER INFORMATION CONTACT: J. Allison Routt, Sustainable Fisheries Division, Southwest Region, NMFS,
(562)980-4030. This **Federal Register** document is also accessible via the Internet at the Office of the **Federal Register** 's website at *http://www.gpoaccess.gov/* SUPPLEMENTARY INFORMATION: The United States is a member of the IATTC, which was established by international agreement through the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), which was signed in 1949. The IATTC was established to ensure the effective international conservation and management of highly migratory species of fish in the ETP. For the purposes of these closures, the ETP is defined to include the waters bounded by the coast of the Americas, the 40° N. and 40° S. parallels, and the 150° W. meridian. The IATTC has maintained a scientific research and fishery monitoring program for many years and annually assesses the status of stocks of tuna and the fisheries to determine appropriate harvest limits or other measures to prevent overexploitation of the stocks and promote viable fisheries. In June 2006, the IATTC adopted a *Resolution for a Program on the Conservation of Tuna in the Eastern Pacific Ocean for 2007* . The June 2006 resolution is a 1-year program on the conservation of tuna in the ETP for 2007. This resolution offers a choice for closing the purse seine fishery: either a 6-week closure beginning August 1, 2007, or a 6-week closure beginning November 20, 2007. The resolution of June 2006 incorporated flexibility for nations to administer the purse seine closure in accordance with national legislation and national sovereignty. The selected measure should reduce overfishing in a manner that is fair, equitable, and readily enforceable. A proposed rule to carry out the IATTC-recommended and DOS-approved closures for the ETP purse seine and longline tuna fisheries for 2007 was published in the **Federal Register** on February 26, 2007 (72 FR 8333). Under the Tuna Conventions Act, 16 U.S.C. 951-961 and 971 *et seq.* , NMFS must publish regulations to carry out IATTC recommendations and resolutions that have been approved by DOS. For the target tuna stocks (yellowfin, bigeye, and skipjack) of this resolution, NMFS believes there may be a modest biological advantage for choosing one closure period over the other because the summer closure would foreclose opportunistic fishing by the southern California small purse seine fleet. This fleet does not fish for the target tuna stocks during the winter months when the target tuna stocks are not available within the range of the fleet's smaller vessels. NMFS also looked at possible economic advantages for determining which closure period to select. As discussed in response to comment 2, NMFS believes there may be value in evaluating whether a summer closure may be less of an economic burden to U.S. interests than a winter closure. For 2007, NMFS has selected the closure beginning August 1, 2007, through September, 11, 2007. All purse seine gear used to target yellowfin, bigeye, and skipjack tunas must be out of the water in the ETP and no yellowfin, bigeye, or skipjack tunas may be retained for the 6-week period beginning August 1, 2007, through September 11, 2007. This final rule also provides that the U.S. longline fishery for bigeye tuna in the ETP will close for the remainder of the calendar year 2007 after the catch of bigeye by U.S. longline vessels reaches 500 mt. This closure will prohibit deep-set longline gear from being deployed and retaining bigeye tuna in the ETP. Longline vessels will not be subjected to this closure if the permit holder declares to NMFS under the Fishery Management Plan
(FMP)for the Pelagic Fisheries of the Western Pacific Region that they intend to shallow-set to target swordfish (50 CFR 665.23). NMFS will close the longline fishery through appropriate procedures so that the 500 mt limit is not exceeded. These actions ensure that U.S. vessels fish in accordance with the conservation and management measures that the IATTC recommended in June 2006. Comments and Responses During the comment period for the proposed rule, NMFS received four comments. Comments were received from tuna vessel owners, tuna industry organizations, and a member of the public. Key issues and concerns are summarized below and responded to as follows: Timing of the Closures *Comment 1:* Comments supporting the closure period of August 1, 2007, through September 11, 2007, were received from U.S. large-scale purse seine vessel owners. They noted that in past years, they chose not to fish during the winter as inclement weather on the normal fishing grounds makes fishing difficult and there was an expectation that they could secure dockyard space and conduct vessel repairs during this period. However, during the winter closures in the ETP for years 2004-2006, vessel owners wasted much time in securing dockyard space due to competition for space with other nations. They expressed an interest in using the summer closure for one year to determine if vessel repairs could be conducted more efficiently during the summer closure period relative to past experience. *Response:* NMFS understands that the U.S. large-scale purse seine vessel owners prefer the summer closure for 2007 as they envision that this choice may have economic benefits that have not been realized during the past three years when U.S. purse seine vessels were subject to a winter closure. In addition to the potential for a modest conservation benefit, discussed above, adopting the summer closure option for 2007 would allow NMFS to evaluate whether an economic benefit can be realized. *Comment 2:* Two commenters expressed a preference for the winter closure for 2007. These comments stated that their ETP operations are based in Ecuador, and Ecuador in past years has chosen the summer closure. Assuming Ecuador's preferred closure will again be the summer period and the United States chooses the winter closure, this will provide some consistent distribution of their fish supply throughout the year. If the United States chooses the summer closure and Ecuador chooses the summer closure for 2007, their concern is that their fish supply opportunities will be limited. *Response:* In the years 2004 - 2006, nations party to the IATTC evenly choose the summer and winter closure periods. NMFS believes as in years past, nations party to the IATTC will again evenly choose the summer and winter closure periods and that the global supply of tuna will be balanced and available for purchase to market. At this time, the United States cannot anticipate the closure period Ecuador will select for 2007. Consequently, the U.S. closure period may or may not coincide with Ecuador's. 2007 U.S. Longline Catch *Comment 3:* A commenter stated that longlines should be banned permanently and totally forever, but noted that the longline season, as outlined, should be closed at a minimum of August 1 through December 1. The commenter added that the failure to adequately stem overfishing is reflected by this paucity of closure. *Response:* The longline tuna fishery closure in the ETP was negotiated on a multilateral basis and strikes a balance between the many competing interests. The nations party to the IATTC prefer to set national quotas rather than time/area closures for this gear type. This final rule provides that the U.S. longline fishery for bigeye tuna in the ETP will close for the remainder of the calendar year 2007 when the catch by U.S. longline vessels reaches 500 mt. Classification This action is consistent with the Tuna Conventions Act and with the regulations governing the Pacific Tuna Fisheries at 50 CFR 300.25. This final rule has been determined to be not significant for the purposes of Executive Order 12866. An FRFA was prepared that describes the economic impacts of this final rule. A copy of this analysis is available from NMFS (see ADDRESSES ). Responses to comments received on the economic impact of the proposed rule were provided above. A summary of the FRFA follows. A description of the need for and objectives of this rule is included in the preamble and not repeated here. The purse seine closure applies to the U.S. tuna purse seine fleet that targets yellowfin, bigeye, and skipjack tunas. The fleet consists of five to ten small vessels (carrying capacity below 400 short tons (363 mt)) and one to two large vessels (carrying capacity 400 short tons (363 mt) or greater). The large vessels usually fish outside U.S. waters and deliver their catch to foreign ports or transship to processors outside the mainland United States. The large vessels are categorized as large business entities (revenues in excess of $4 million per year). A large purse seine vessel typically generates 4,000 to 5,000 mt of tuna valued at between $4 and $5 million per year. The closure should not significantly affect the operations of the one to two large vessels because they are capable of fishing, and do fish, in other areas that would remain open. The small vessels are categorized as small business entities (average annual revenues below $4 million per year). They fish out of California in the U.S. EEZ most of the year for small pelagic fish (Pacific sardine, Pacific mackerel) and for market squid in summer. Some small vessels harvest yellowfin and skipjack tunas seasonally when they are available. The southern California purse seine fishery opportunistically fishes for tropical tunas when the tropical tunas migrate further north and within range of these vessels, which are not equipped for long-range excursions. Specifically, yellowfin and skipjack tunas intermittently migrate within range of these vessels. However, predicting their movements is uncertain. Tuna landings reported by the Pacific States Marine Fisheries Commission show that since 2001, yellowfin and skipjack tunas can be landed by this southern California purse seine fishery during the months of August, September, and October, although the bulk of these landings occur in September. However, this is not always the case. For example, neither yellowfin nor skipjack tunas ventured close enough to the range of the southern California small purse seine fleet in 2006 resulting in zero landings. For the summer purse seine fishery closure option, this fishery would be precluded from fishing in August and for 11 days in September which still provides the fishery the opportunity to operate for the remainder of September as well as the month of October. In addition, the southern California small purse seine fleet periodically lands albacore and bluefin tunas which are not covered under the IATTC resolution of June 2006 and therefore can be fished during either closure option. It appears that bluefin tuna may also be the preferred species targeted by this fleet as bluefin provide a higher ex-vessel value than either yellowfin or skipjack tunas. The existing California based longline fishery, which consists of one vessel, targets bigeye tuna. For the tuna longline fleet operating out of Hawaii, there is a maximum of 164 permits available, and 125 active longline vessels participated in the fishery in 2005. The California and Hawaii longline fleets are categorized as small business entities (average annual revenues below $4 million per year). The Hawaii longline fleet, which targets bigeye tuna and swordfish, has traditionally operated outside the boundaries of the ETP. However, in recent years, some vessels of the tuna longline fleet operating out of Hawaii have operated within the boundaries of the ETP. In 2004, 2005, and 2006, the California and Hawaii based longline fishery was limited to 150 mt of bigeye tuna in the ETP. For each of these three years, the 150 mt limit was reached in the ETP and the longline fishery for bigeye tuna was closed. A closure would affect operations of both longline fleets. However, the California based longline fleet is capable of fishing for other species of fish with other gear types in the ETP which should mitigate the effects of any closure. For example, the closure has occurred in the past several years beginning in the summer months when North Pacific albacore tuna appear on the west coast and vessels can switch to surface troll gear to participate in that fishery. Similarly, the Hawaii based longline fleet also fishes for swordfish and can also direct its efforts at bigeye tuna outside the ETP. Because both fleets are capable of fishing for other species, or in the case of the Hawaii longline fleet, in other areas outside the ETP that would remain open, they have the opportunity to continue to fish during the closure. This rule does not impose reporting or recordkeeping requirements, and the compliance requirements for the closure areas are as described at the outset of this summary. NMFS considered three alternatives for this final rule: a 6-week summer closure of the purse seine fishery from August 1 through September 20 of 2007, a 6-week winter closure of the purse seine fishery from November 20 through December 31, 2007, or no closures at all. The summer closure best satisfies the objectives of the resolution and the statute to conserve tuna stocks by prohibiting purse seine fishing for the target tuna stocks during the only time when the small purse seine fleet out of southern California might engage in opportunistic fishing for yellowfin, bigeye, and skipjack tuna. The opportunistic chance for the southern California small purse seine fleet to target yellowfin, bigeye, and skipjack tunas is not available in the winter as the tropical tunas do not migrate within the range of these vessels, which are not equipped for long-range excursions, during the winter season. While such fishing is only a very small portion of the overall catch of these species, NMFS believes that by foreclosing this additional fishing opportunity, the summer closure may provide a slightly greater conservation benefit than the winter closure. The August 1 - September 11 closure alternative may have a slightly greater economic impact on small entities than the November 20 December 31 closure because the additional fishing opportunity for the southern California small purse seine fleet will not be available during the closure period, though this impact is not expected to be significant. The southern California small purse seine fishery normally fishes for coastal pelagic species such as Pacific sardines, Pacific mackerel and market squid. Fishing for these species of fish is not affected by this closure. In recent years, the seasonal tuna harvest has amounted to no more than 5-7% of the total catch for these vessels. The seasonal tuna catch is also intermittent - as stated previously, neither yellowfin nor skipjack tunas ventured close enough to the range of the southern California small purse seine fleet in 2006 resulting in zero landings. Based on an average since 2001, the economic impact on small entities in the California small purse seine fleet who opportunistically are able to target yellowfin, bigeye, and skipjack tunas is less than $0.5 million. Because the opportunity to fish seasonally for yellowfin, bigeye, and skipjack tuna will be available after the closure, during the latter half of September and for the month of October, the economic impact is likely to be less than $0.5 million on average. The ex-vessel value of all small purse seine vessels fishing for coastal pelagic species was $43.5 million in 2005. Therefore NMFS does not believe that the summer closure and an average of less than $0.5 million not realized for the southern California small purse seine fleet will be significant. NMFS considered the option of a 6-week closure during the winter season beginning on November 20, 2007. Given that NMFS believes the summer closure may provide a slightly greater conservation benefit than the winter closure, and that NMFS believes it is reasonable to evaluate whether the winter closure will allow fishery participants to realize an economic benefit pertaining to vessel operations, NMFS did not choose this alternative. NMFS also considered the alternative of not implementing the 2006 IATTC Tuna Conservation Resolution. This alternative would have imposed no economic costs on small entities. However, failure to implement measures that have been agreed to pursuant to the Convention would violate the United States' obligations under the Convention, and would violate the Tuna Conventions Act. Authority: 16 U.S.C. 951-961 and 971 *et seq.* Dated: May 29, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-10718 Filed 6-1-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 070326070-7110-02; I.D. 032107A] RIN 0648-AV47 Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues a final rule to restrict the harvest of halibut by persons fishing on a guided sport charter vessel in International Pacific Halibut Commission
(IPHC)Regulatory Area 2C. The current sport fishing catch or bag limit of two halibut per day is changed for a person sport fishing on a charter vessel in Area 2C. The final rule would require at least one of the two fish taken in a day to be no more than 32 inches (81.3 cm) in length. This regulatory change is necessary to reduce the halibut harvest in the charter vessel sector while minimizing negative impacts on this sector, its sport fishing clients, and the coastal communities that serve as home ports for the fishery. The intended effect of this action is a reduction in the poundage of halibut harvested by the guided sport charter vessel sector in Area 2C. DATES: Effective June 1, 2007. ADDRESSES: Copies of the Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action are available from: NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; NMFS, Alaska Region, 709 West 9th Street, Room 420, Juneau, AK; or NMFS Alaska Region Website at *http://www.fakr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Jay Ginter, telephone
(907)586-7228, e-mail *jay.ginter@noaa.gov* ; or Jason Gasper, telephone
(907)586-7228, e-mail *jason.gasper@noaa.gov* . SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific halibut ( *Hippoglossus stenolepis* ) through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the Pacific halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed in Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention signed at Washington, D.C., on March 29, 1979. The IPHC's regulations are subject to approval by the Secretary of State with concurrence of the Secretary of Commerce (Secretary). Approved regulations developed by the IPHC are published as annual management measures pursuant to 50 CFR 300.62. The annual management measures for 2007 were published on March 14, 2007 (72 FR 11792). The Halibut Act provides the Secretary with the authority and general responsibility to carry out the requirement of the Convention and Halibut Act. Regulations that are not in conflict with approved IPHC regulations may be recommended by the North Pacific Fishery Management Council (Council) and implemented by the Secretary through NMFS to allocate harvesting privileges among U.S. fishermen in and off of Alaska. The Council has exercised this authority, most notably in the development of its Individual Fishing Quota
(IFQ)Program, codified at 50 CFR part 679, and subsistence halibut fishery management measures, codified at 50 CFR 300.65. The Council also has been developing a regulatory program to manage the guided sport charter vessel fishery for halibut and is continuing this work. This program could include harvest restrictions in regulatory Area 2C and 3A for 2008, and a moratorium on new entry into the Area 2C and Area 3A charter vessel fishery. Background and Need for Action The background and need for this action were described in the preamble of the proposed rule published in the **Federal Register** on April 6, 2007 (72 FR 17071). In summary, this final rule will reduce sport fishing mortality of halibut in the Area 2C charter vessel sector to a level comparable to the level that would have been achieved by the one-fish bag limit recommended by the IPHC. Of the alternatives analyzed in the EA/RIR/FRFA, the alternative selected for the final rule is expected to provide the necessary level of harvest reduction while also reducing adverse impacts on the charter fishery, its sport fishing clients, the coastal communities served by the charter sector, and on the fisheries for other species. The harvest of halibut occurs in three basic fisheries the commercial, sport, and subsistence fisheries. An additional amount of fishing mortality occurs as bycatch, wastage, and incidental catch while targeting other species. The IPHC annually determines the amount of halibut that may be removed from a regulatory area without causing biological conservation concerns for the entire Pacific halibut stock. In Convention waters in and off Alaska, the IPHC sets an annual catch limit specific for the commercial fishery. Thus, to maintain conservation goals, the IPHC reduces commercial catch when other sources of fishing mortality (e.g., sport fishing) grow. Although most of the non-commercial uses of halibut have been stable, growth in the charter vessel fishery in recent years, particularly in Area 2C, has resulted in a shift of the halibut resource away from the commercial fishery to the charter fishery. Moreover, the rate of growth in the charter vessel sector in Area 2C has made it difficult for the IPHC to forecast future removals of halibut in the charter vessel sector and set appropriate commercial harvest limits. The IPHC addressed the increase in the harvest of halibut by the charter vessel fishery at its annual meeting in January 2007. The IPHC adopted a motion to reduce the daily bag limit for anglers fishing on charter vessels in Areas 2C and 3A from two halibut to one halibut per day during certain time periods. Specifically, the IPHC recommended a one-fish bag limit apply to guided anglers in Area 2C from June 15 through July 30, and in Area 3A from June 15 through June 30. In Area 3A, the one-fish bag limit would reduce the charter vessel harvest of halibut by an estimated 326,000 lb (147.9 mt). In Area 2C, the one-fish bag limit restriction would reduce the charter vessel harvest of halibut by an amount estimated to range from 397,000 lb (180.1 mt) to 432,000 lb (195.9 mt). In a letter to the IPHC on March 1, 2007, the Secretary of State, with concurrence from the Secretary of Commerce, rejected the IPHC-recommended one-fish bag limit in Areas 2C and 3A, and indicated that appropriate reduction in the charter vessel harvest in these areas would be achieved by a combination of State of Alaska Department of Fish and Game (ADF&G) and NMFS regulatory actions. Prior to Secretarial rejection of the IPHC-recommended harvest measures, ADF&G promulgated regulations for Area 3A that prohibited skipper and crew from harvesting halibut onboard a charter vessel and limited the number of lines that could be fished from a charter vessel. ADF&G estimates that its action in Area 3A would reduce harvest the charter halibut harvest to or close to the Area 3A guideline harvest level (GHL). Thus, NMFS believed this level of harvest reduction was sufficient to meet management goals for the halibut fishery in Area 3A. The one-fish bag limit recommended by the IPHC would have had negative economic impacts on the charter vessel industry. Comments from charter vessel guides before, during, and after the IPHC meeting in January 2007 indicated that changing the bag limit for anglers on charter vessels from two fish to one fish per day for the six-week period in Area 2C would have an adverse impact on charter vessel bookings that had been or were in the process of being made for the 2007 charter fishing season. Charter vessel operators and representatives stated that the ability to offer an opportunity to harvest more than one fish was important for their charter business. To reduce potential negative impacts on the charter fishing sector, NMFS considered regulatory alternatives for analysis that reduced the charter vessel fishery's amount of halibut harvest in Area 2C to a level comparable to the level that would have been achieved by the IPHC recommended one-fish bag limit while preserving a two-fish bag limit. The preamble to the proposed rule provides a detailed description of these analytical alternatives (March 14, 2007, 72 FR 11792). Current Federal halibut fishing regulations published in the annual management measures (March 14, 2007, 72 FR 11792) allow sport anglers to retain two halibut of any size, per calender day. This action will amend those regulations to allow a daily bag limit of two halibut per sport fishing client on a charter vessel operating in Area 2C provided that at least one of the two halibut retained is no longer than 32 in (81.3 cm) with its head on. If only one halibut is retained by the sport fishing client, it could be of any length. The regulations in this final action would apply for the entire fishing season. This action will require enforcement officers to determine the size of some halibut caught during a charter vessel trip. To accommodate this enforcement need, halibut must remain in measurable form until all halibut fillets are offloaded from the charter vessel. Thus, persons onboard a charter vessel are prohibited from possessing halibut that have been mutilated or disfigured in a way that prevents determining the size or number of halibut. Charter operators may fillet halibut onboard their vessels if the entire carcass is retained as a single piece until all fillets are offloaded. This requirement also is expected to improve the quality of data collected on the length composition of halibut harvested in the sport fishery. This requirement may increase the number of carcasses brought back to a port which may lead to disposal problems at some ports. NMFS strongly encourages charter operators to properly dispose of carcasses, including following all port-specific policies. Expected Harvest Reduction The draft EA/RIR/IRFA and the proposed rule (April 6, 2007, 72 FR 17071) indicated that the IPHC-recommended one fish bag limit would result in a harvest reduction by the charter vessel sector in Area 2C of between 397,000 lb (180.1 mt) and 432,000 lb (195.9 mt). The best scientific information available when these documents were prepared included an ADF&G estimate that the proposed regulation would reduce the charter vessel fishery harvest in Area 2C by 425,000 lb (192.8 mt). The proposed action appeared to be the best of several alternatives considered in the EA/RIR/IRFA, in part because the estimated reduction in poundage of halibut taken by the charter vessel sector was about 98 percent of the poundage range estimated for the IPHC-recommended action. After publication of the proposed rule, however, ADF&G discovered a calculation error and corrected its harvest estimates. The correction changed the harvest reduction estimate for the proposed regulation from 425,000 lb (192.8 mt) to 518,000 lb (235.0 mt). This ADF&G correction increased the estimated poundage reduction of the proposed regulation by 93,000 lb (42.2 mt). The revised poundage reduction estimate based on the ADF&G correction does not change the preferred alternative selected by NMFS. That preferred alternative published as a proposed rule on April 6 2007 (72 FR 17071), and implemented by this final rule, will achieve a harvest reduction that is comparable to the IPHC-recommended action while maintaining the traditional two-fish bag limit and reducing negative impacts on the charter vessel sector. NMFS is not changing its preferred alternative in light of the ADF&G correction for several reasons. First, the additional 93,000 lb (42.2 mt) reduction of charter vessel halibut harvest in Area 2C based on the revised estimates amounts to about four percent of the estimated 2,113,000 lb (958.4 mt) of halibut harvested by the charter vessel fishery in Area 2C in 2006. Second, changing the preferred alternative to the next more lenient alternative of a 35-inch (88.9-cm) maximum size limit would result in a difference of only 46,000 lb (20.9 mt) or about two percent of the Area 2C charter vessel harvest in 2006. Although the revised ADF&G estimates of predicted halibut poundage reductions are based on the best scientific information available, they are based on confidence ranges that have not been calculated, but are believed to be high based on the type of data available. Therefore, no change is made in the preferred alternative and no change is made from the proposed rule to this final rule. Summary of Comments The proposed rule was published in the **Federal Register** on April 6, 2007 (72 FR 17071), and invited public comments until April 23, 2007. NMFS received 477 comments in 128 letters and e-mail messages. Comments Supporting the Proposed Rule NMFS received 23 letters that supported, either in whole or in part, the adoption of the proposed rule to restrict the size of one of two harvested halibut caught by anglers fishing from a charter vessel in Area 2C. Of these letters, 18 were from the commercial fishing sector, including two commercial fishing associations. Comments in support of the proposed rule from the commercial fishing industry generally indicated a preference that halibut harvest in the charter halibut fishery be reduced to the GHL, but believed the NMFS action was a first step towards managing the level of halibut harvest in the charter sector. These letters indicated that a long term solution is needed to manage the charter vessel sector to the GHL. Several letters, including two from the charter industry, indicated partial support of the action and that the chosen preferred alternative was better than Alternative 2, which would require one of two harvested halibut to be at least 45 inches (114.3 cm), 50 inches (127.0 cm), 55 inches (139.7 cm), or 60 inches (152.4 cm) in head-on length. The principle reasons given for supporting the proposed rule were that it would accomplish the following:
(1)Provide a necessary first step in reducing the charter halibut harvest to the GHL;
(2)Be the best choice for lessening the impact on the charter industry and associated sport mortality of the halibut resource by handling larger halibut;
(3)Reduce the erosion of the commercial quota by halibut harvested in the charter fishery; and
(4)Improve data collection and enforcement because charter operators would be required to keep the entire carcass until fillets are offloaded. Comments Opposing the Proposed Rule NMFS received a total of 103 letters opposed to the proposed rule. Of these letters, 11 were from the commercial fishing industry, 33 were from the charter industry, 54 were from recreational anglers, and 5 letters were of other origin. Many of the letters from commercial fishermen did not explicitly indicate disapproval of the NMFS action. These letters indicated that charter fishery harvest should be limited to the GHL instead of a level comparable to the IPHC-recommended action and requested that NMFS promulgate a rule to maintain charter harvest of halibut within the GHL. Several letters from the commercial industry indicated that the proposed rule did not provide a long-term solution to manage the charter fishery to the GHL. Several letters indicated that a one-fish bag limit should have been included in the EA/RIR/IRFA because the amount of harvest reduction and assumptions associated with bycatch mortality are easier to predict with a bag limit than with any size limit. Two letters indicated that NMFS should support continued efforts by the Council to develop market-based allocation solutions for the charter fishery. Two letters indicated the Council should identify and NMFS should implement management measures that can be annually adjusted to control charter harvest. Several letters from the commercial and charter sectors indicated support for the moratorium adopted by the Council. One letter from a commercial fisherman indicated he would not be satisfied until an IFQ program is implemented for the charter fishery. The majority of letters from the commercial sector noted the substantial investment made by the commercial industry to obtain halibut quota shares and how the lack of controls on the charter vessel fishery will compromise their investment, negatively impact coastal communities, crew, and the processing sector, and reduce the surplus for seafood consumers. Other letters noted that localized depletion of halibut and other species caused by the guided recreational vessels and commercial vessels is a concern that must be controlled. Several letters suggested that NMFS needs to manage the fishery to the GHL to prevent over harvesting the halibut resource. Two letters indicated that NMFS should enhance current data collection methods to include an electronic monitoring program. Three letters recommended that NMFS increase enforcement effort in the charter fishery. Several commercial operators expressed that NMFS should have taken action in Area 3A to reduce charter halibut harvest because of confusion associated with the accounting of skipper and crew fish in the ADF&G postal survey and whether skipper and crew fish were included in the calculation of the original GHL. These letters also indicated that NMFS' decision to take no action in Area 3A will lead to a GHL overage in 2007; especially if anglers substitute Area 2C halibut trips with those in Area 3A. Several letters indicated that halibut harvest above the GHL has a negative impact on subsistence users, non-guided anglers, and other resource users that rely on a healthy halibut stock, and indicated that the problem statement should have included these groups. Three letters also expressed concerns about increased mortality of demersal shelf rockfish (DSR), lingcod, and halibut. These letters indicated that the regulation would likely increase discards of these species, which would create more allocative concerns, result in local depletion, and increase conservation concerns. Several letters from the commercial industry supported the preferred alternative over Alternative 2 because of concerns associated with harvesting and handling large halibut, which may lead to increased mortality rates. These letters also supported the requirement to retain carcasses because it would improve data quality and enforcement efforts. Many of the letters from charter operators indicated the proposed rule would harm their business because charter trips in Area 2C will be less desirable to anglers. The majority of letters indicated that charter clients would be disappointed and confused when they learned that the daily bag limit for halibut had changed. Several letters indicated general support for the Council process and believed NMFS should not implement the final action because the Council is currently developing long-term management measures for the charter fishery. Three letters were received from travel agents that sell charter vessel trips in Alaska. These letters all indicated that the proposed rule would reduce tourism and disappoint charter clients. One letter indicated that they were obligated under Arizona State law to refund trips if clients were not satisfied because of the harvest regulation. Twelve letters from charter vessel operators indicated that a fishery management plan for the halibut fishery should be developed by the Council and approved by the Secretary to comply with the Magnuson Stevens Fishery Conservation and Management Act. Most letters from the charter industry indicated support for the NMFS decision to disapprove the IPHC-recommended bag limit. Several letters suggested NMFS create slot limits to allow anglers to harvest two fish, but maintain the opportunity to harvest two large halibut. Eight letters from charter vessel operators and several letters from the commercial industry expressed concerns for increased catch-and-release mortality of halibut and other species. Authors of thirteen letters believed the rule would increase the number of halibut caught and released, and four letters believed the rule would increase the mortality of species other than halibut. Most of the letters from recreational anglers were form letters. The majority of these letters indicated that the current GHL was not a fair allocation for the sport fishing sector for the following reasons:
(1)The GHL fails to account for recent growth in the charter industry and is set too low;
(2)The sport fishery harvests much less of the exploitable biomass than the commercial fishery (including bycatch and wastage) and should thus be allowed to increase its allocation;
(3)The GHL discriminates between guided and non-guided anglers and should be the same for both angling groups; and
(4)The GHL should increase stepwise if the abundance of halibut also increases. Letters from recreational anglers generally indicated their disappointment in a reduction in the amount of halibut they may harvest. These anglers provided a description of their angling experience and indicated they may not return to Area 2C for halibut fishing if the harvest regulation is approved. The majority of letters indicated that the halibut harvest by charter anglers should not be restricted because the commercial fishery accounts for a large portion of the halibut removals, including bycatch and wastage. The letters also indicated that the proposed rule should reduce commercial harvest and bycatch, that the sport fishery should not be restricted because the data used to determine sport harvest for 2006 is preliminary, the rule discriminates based on the state of residency, and that the proposed rule will limit growth in the charter sector. Twenty-one letters indicated that the Council should develop a fishery management plan for halibut to protect the halibut resource and fairly allocate between the commercial and sport sectors. Many letters indicated that NMFS should not reallocate halibut from the sport sector to the commercial sector with this action. NMFS received 10 comments that could not be categorized as having a commercial, charter, or recreational angler perspective. Three of these comments were from government agencies. Of the non-government comments, two supported the NMFS action, but believed harvest should be reduced to the GHL, and five did not support the action because it did not reduce harvest to the GHL. A detailed response to the comments is provided in the following section entitled “Comments and Responses.” Comments and Responses Of the 477 comments NMFS received on the proposed rule and EA/RIR/IRFA, 60 were considered unique and are summarized and responded to as follows: *Comment 1:* The EA/RIR/IRFA underestimates the expected landed catch (and therefore overestimates the reduction in catch) by the sport charter sector by using an inappropriate average weight for the retained halibut less than 32 inches (81.3 cm). The analysis uses an average weight of 9.0 lbs (4.05 kg, net weight) to estimate the landed catch under the preferred alternative. The average weight of the smaller halibut will be closer to the weight of 32-inch (81.3 cm) halibut because anglers will highgrade to keep the largest fish possible. *Response:* A considerable amount of highgrading occurred in the 2006 charter halibut fishery under a two-fish bag limit with no size limits. The Area 2C length distribution of halibut 32 inches or under that were harvested in the 2006 charter vessel fishery is strongly skewed, presumably as a result of highgrading. Although additional highgrading would increase the skewness towards the 32-inch (81.3 cm) size limit, no information exists to indicate whether or to what degree highgrading would increase beyond the level observed in 2006. A substantial portion of the 2006 charter halibut harvest consisted of halibut under 29 inches (73.4 cm) even without size limits imposed on the charter fishery. The size distribution of halibut also varies by port, with halibut smaller than 32 inches (81.3 cm) halibut composing a large portion of the total harvest in some ports. Hence, the analysis assumes that anglers highgrade smaller halibut to the greatest extent possible. This assumption is believed to be reasonable because very small halibut generally are less desirable than larger halibut, and the abundance of halibut and amount of time available for fishing is often limited (especially for charter vessel anglers who are cruise ship passengers). This action also may change fishing behavior such that anglers increase their ability or desire to highgrade halibut. However, the harvest selection process for anglers in the Area 2C halibut fishery is poorly understood and NMFS believes the 9 lb (4.1 kg) average used reflects the best available data. *Comment 2:* The proposed rule is a violation of the Halibut Act, Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the Convention because it changes allocation between the commercial and sport sectors without a re-allocation recommendation from the Council. *Response:* This rule does not violate the Halibut Act, MSA, or Convention. As discussed in the preamble to this action, the Secretary has the general authority and responsibility to carry out the Convention and Halibut Act. This includes the authority to promulgate regulations without Council consultation. This final rule is necessary to address management concerns expressed by the IPHC and NMFS about the magnitude of the charter halibut harvest and its impact on the IPHC's ability to set the appropriate commercial catch limits that are necessary to maintain the sustainability of the halibut stock. *Comment 3:* The EA/RIR/IRFA fails to consider local depletion of demersal shelf rockfish assemblage
(DSR)and lingcod stocks, which results in an incorrect conclusion that the proposed rule will not have a significant impact on these species. *Response:* The EA/RIR/IRFA references current management practices by ADF&G and NMFS that establish harvest limits for DSR and lingcod. In establishing these harvest limits, both agencies rely on scientific information and solicit public comment through their respective processes, including the Gulf of Alaska Plan Team, State of Alaska Board of Fish, Council, and the Federal regulatory process. The analysis indicates that an increase in sport harvest of these species may lead to increased allocation problems between the sport and commercial sectors. However, these allocation problems occur within the confines of the management measures established by each government to maintain sustainable stocks. *Comment 4:* The sport charter fleet should be required to contribute money to the research of the halibut biomass. *Response:* The purpose of this final rule is not to collect fees from the charter vessel fishery. However, the State of Alaska (State) currently collects fees from charter businesses and recreational anglers to support management and research of the halibut biomass. Charter businesses and charter vessel operators are required to pay business and guide license fees, which are used in part to fund the State's charter logbook program. Businesses and guides paid over a quarter-million dollars in license fees in 2006. Charter vessel operators and clients, as well as unguided anglers, also are required to purchase State fishing licenses. The sport fishing license money is used by the State to match Federal Aid in Sport Fish Restoration funds to pay for creel surveys that estimate fishery statistics for halibut and other species such as rockfish and salmon. The State's survey information is used by the Council and NMFS to develop management policy for the charter halibut fishery. *Comment 5:* The preamble to the proposed rule incorrectly uses ten and three year averages to estimate halibut harvest in the charter and commercial sectors. The proposed rule should have compared harvest that occurred two years prior to the GHL implementation (2003 and 2002), with two years under the GHL (2004 and 2005). This would have shown the magnitude of the commercial harvest increase when compared with the increase of harvest in the charter vessel sector and would not have included a partial year under the GHL. *Response:* The years selected in the preamble were used to provide a general example of the difference in the proportion of the total amount of halibut removals in the commercial and charter sectors, and the difference in harvests between the charter and non-charter sport fisheries. The preamble to the proposed rule is not an analytical document. However, the numbers used in the preamble accurately illustrate recent removals in the charter sector, and recent quota levels for the commercial IFQ fishery. Using the three most recent years provides a more robust average. Moreover, the GHL does not impose a harvest restriction on the charter fishery and thus would not likely be directly responsible for changes in charter harvest during pre-GHL and post-GHL periods. The 10-year average was used to illustrate the general long-term ratio of harvest between the non-guided and guided fishing sectors; not the commercial fishing sector in comparison with the sport fishing sector. *Comment 6:* This action will interfere with the progress of the Council's Charter Halibut Stakeholders Committee. *Response:* This action does not change charter management measures currently being developed by the Charter Halibut Stakeholder Committee (CHSC), nor does it prevent the Council from adopting management measures currently being considered by the CHSC. The intent of this action is to implement a harvest reduction for the 2007 Area 2C charter fishing season. Management options developed by the Council and CHSC to reduce halibut harvested in Area 2C could not be implemented in time for the 2007 fishing season. However, the Council is considering management measures for the Area 2C charter sector that would reduce charter vessel harvest of halibut to the Area 2C GHL. If adopted, the Council's Area 2C management measures would likely replace this action. In addition, the Council and CHSC are developing measures for the long-term management of the charter and commercial halibut sectors. *Comment 7:* The proposed rule will increase the number of halibut harvested that are under 32 inches (81.3 cm) which will reduce the number of larger halibut available for the recreational and commercial fisheries, and potentially endanger recruitment. *Response:* The final rule is expected to increase the harvest of halibut that are 32 inches (81.3 cm) and smaller. Under the previous two-fish bag limit, some charter vessel anglers likely would have released more halibut that are 32 inches (81.3 cm) or under in favor of a larger halibut. However, the number of these halibut that would have been released, survived to a large size, and would have been available for the commercial and sport fisheries in Area 2C is unknown. To grow beyond 32 inches (81.3 cm) in length and be available for the Area 2C sport and commercial fisheries, a halibut must survive to an older age and reside in Area 2C. Natural mortality, fishing mortality (including catch-and- release mortality in the sport and commercial fisheries), migration rates, and immigration rates complicate any attempt to estimate the probability of a halibut under 32 inches (81.3 cm) being caught in Area 2C several years later. Further, the management methods used by the IPHC carefully consider age structure in the halibut stock to ensure the long-term sustainability of the halibut stock. Hence, the EA/RIR/FRFA concludes that this action will not have a significant impact on the halibut stock. *Comment 8:* The proposed rule violates Executive Order (E.O.) 12962 because it reduces the amount of halibut recreational anglers may harvest, resulting in a loss of angling opportunity. *Response:* This final rule does not violate E.O. 12962. To the extent permitted by law, E.O. 12962 directs Federal agencies to improve the quality, function, sustainability, productivity, and distribution of aquatic resources for increased recreational fishing opportunities. Although this rule is designed to reduce the poundage of halibut harvested in Area 2C by the charter vessel fishery, it maintains the opportunity of charter vessel anglers to harvest two halibut per day, and has no effect on recreational anglers not fishing from a charter vessel. In addition, this final rule is promulgated to meet the management goals set forth in the Halibut Act and Convention and implemented by the Secretary. These management goals include setting annual limits on the amount of halibut that may be removed without endangering the long-term sustainability of the halibut stock, including the achievement of maximum sustainable yield for halibut fisheries including commercial and subsistence, as well as recreational. This final rule does not diminish that productivity or violate E.O. 12962. *Comment 9:* A two-fish bag limit with no size limit should be maintained because the 2006 ADF&G mail survey estimates are preliminary and thus not likely to be accurate. *Response:* This action is designed to achieve a harvest reduction that is comparable to the IPHC-recommended one-fish bag limit. In making its recommendation, the IPHC used a preliminary estimate from the ADF&G mail survey in conjunction with ADF&G weight data collected from the creel survey to predict the amount of halibut harvested in 2006. The IPHC relies on preliminary estimates from the ADF&G mail survey because final mail survey results for the year immediately prior to the IPHC's annual meeting in January are typically not available. During its January meeting, the IPHC must determine the commercial catch limit using the best available information that includes the preliminary ADF&G mail survey estimate. Hence, the 2006 mail survey numbers were used by the IPHC to set the commercial halibut catch limit in 2007. The analysis also uses the mail survey data, as well as logbook and creel data to estimate potential impacts from this action. These data sources represent the best available scientific information. The use of the projected mail survey estimate is consistent with the goal of this action, which is to achieve a comparable reduction to the IPHC-recommended action. *Comment 10:* The proposed rule should not be adopted because the current composition of the Council does not represent recreational fishing interests. *Response:* This final rule was not developed by the Council nor does it affect membership of the Council or that of its Scientific and Statistical Science Committee and Advisory Panel. The final rule was initiated in response to a recommendation by the IPHC to reduce the harvest of halibut in Area 2C by the charter vessel fishery. In making its recommendation, the IPHC Commissioners highlighted their preference for the Council to resolve allocation issues between the commercial and sport fishing sectors. However, an action could not be approved by the Council and promulgated by the Secretary in time for the 2007 fishing season. Therefore, consistent with his responsibility under the Convention and Halibut Act, the Secretary is taking action to manage the halibut resource for 2007. This final rule may be replaced by regulations developed by the Council and approved by the Secretary. *Comment 11:* It is unlikely that charter vessel logbook records will accurately reflect catch and discards. Reported discards are likely to be less than those reported under the current two-fish bag limit, because charter skippers and anglers will know that discard mortality will decrease the amount of catch available to them in the future. An alternate method of estimating discards, instead of self-reporting in logbooks, will be required. That method could be based on IPHC survey of length frequencies, since those data would likely be a minimum estimate of the size frequency encountered by anglers. *Response:* The ADF&G resumed mandatory collection of halibut harvest data in its charter logbooks in 2006 to gather data on harvest that is specific to individual businesses and vessels. Data required to be reported in ADF&G charter vessel logbooks include the number of halibut retained and released by individual anglers. Additional data collection measures implemented by ADF&G include
(1)validation of the numbers of halibut offloaded by creel survey technicians whenever possible,
(2)increased logbook inspections by deputized ADF&G staff,
(3)increased review of submitted logbooks and follow-up calls to charter operators to resolve missing or misreported information, and
(4)a mail survey of a random sample of clients to compare their reported harvest to logbook data recorded by operators. The evaluation of logbook data quality is ongoing. The ADF&G can also directly or indirectly estimate the numbers of released halibut through logbooks, the statewide sport fish mail survey, and creel survey interviews. Therefore, alternate methods of estimating discards exist; however, uncertainties exist in estimating discards by any method, including the use of the IPHC length frequency data. *Comment 12:* The proposed rule will confuse anglers that booked charter trips that thought the daily bag limit is two-halibut of any size. *Response:* Disapproval of the IPHC one-fish bag limit was described in the annual management measures for the Pacific halibut fishery, which published on March 14, 2007 (72 FR 11792). NMFS indicated in the annual management measures that the IPHC-recommended reduced bag limits for the charter vessel halibut fishery in Area 2C were rejected in favor of alternative restrictions that would be implemented through a separate domestic action. The proposed rule for this final action published in the **Federal Register** on April 6, 2007, with a public comment period that closed on April 23, 2007 (72 FR 17071). Thus, the public was notified about this action as required by law. In addition, NMFS published an information bulletin on its website and press release notifying the charter industry about the proposed regulation changes. Further public outreach will be conducted by NMFS and ADF&G when this final rule is published. *Comment 13:* The proposed rule fails to consider the need for increased halibut harvest in the charter fishery to accommodate growth. *Response:* Growth in the charter vessel fishery for halibut would be at the expense of other resource users, principally the commercial fishery. The question of what is the right proportion of the allowable halibut harvest to allocate between the commercial and sport fishing sectors is a fundamental question that will be answered later with Council involvement. The purpose of this action is to prevent further *defacto* reallocation to the charter vessel sector to allow the Council time to develop the fundamental resource allocation policies. The Council process is appropriate to determine whether and how much growth in the charter vessel fishery should be accommodated. *Comment 14:* The proposed rule should discriminate between non-Alaska residents and Alaska residents by requiring that the harvest limit only be applied to non-Alaska residents. *Response:* Federal law prohibits discrimination based on state residency. This rule applies to all anglers who harvest halibut on charter vessels regardless of their state of residency. *Comment 15:* The language in the proposed rule fails to acknowledge that the total Constant Exploitation Yield
(CEY)is threatened because of the overharvest of halibut by the sport fishery. *Response:* The proposed rule describes the IPHC process in determining the total CEY, including a discussion about how it may be exceeded. In summary, the IPHC considers removals from all directed fisheries, including the sport and subsistence fisheries and removals resulting from bycatch and wastage, when setting the commercial harvest limit. This process allows an increase of harvest from one removal source to be balanced against other sources of removals. For example, an increase of halibut harvest in the charter fishery may result in a decline in the commercial catch limit. With this method, the IPHC attempts to maintain fishery removals within biological conservation limits. Only halibut bycatch in directed commercial fisheries for other species (prohibited species catch limits, (PSC)) and the directed commercial fishery for halibut have an allocation that requires the fishery to be closed, or IFQ holders to stop fishing, when PSC or IFQ limits are reached. The charter halibut fishery is not restricted to an annual amount of halibut that when reached closes the fishery. Thus, the amount of halibut harvested in the charter fishery increases with increases in angling effort on charter vessels. As discussed in the preamble to the proposed rule, the IPHC must predict the annual growth of charter harvest, bycatch, subsistence, and wastage based on the previous year's level. The proposed rule states that “this method has worked well for many years to conserve the halibut-resource, provided that the other non-commercial uses of the resource have been relatively stable.” If any of the removal categories grow beyond the IPHC's annual prediction, the total CEY may be exceeded, which occurred in 2006 and may occur again in 2007. Generally, bycatch, wastage, and subsistence harvests of halibut have been relatively stable, while charter halibut harvest has increased in recent years. To compensate for the increase in charter harvest, the IPHC has reduced the commercial set line catch limit and recommended a catch reduction in the charter sport fishery. *Comment 16:* The problem statement was not properly defined because it did not include a statement about protecting resource health by managing to the CEY and preventing disruptive impacts to all sectors by reducing halibut harvest in the charter sector to the GHL. *Response:* This rule is not designed to manage the halibut fishery to either the CEY or GHL. The CEY is a biological conservation objective of the IPHC and the GHL is an allocation objective of the Council. Those resource management institutions make regulatory recommendations as needed to achieve their respective objectives. This action is not intended to usurp these functions, and consequently, the problem statement did not include the goals of achieving the CEY or GHL. The problem statement in the preamble to the proposed rule for this final action indicates the alternatives in the EA/RIR/IRFA were developed to reduce the amount of halibut harvested in the Area 2C charter halibut fishery to a comparable level that would have been achieved by the IPHC-recommended one-fish bag limit. The problem statement also requires that the harvest reduction occur in a manner that, when compared to the one-fish bag limit, reduces negative impacts on the charter fishery, its sport fishing clients, the coastal communities that serve as home ports for this fishery, and fisheries for other species. Of the alternatives considered, this action met the goals described in the problem statement, including protecting resource health by meeting the harvest reduction the IPHC indicated was necessary for its management and limiting the negative economic impacts associated with the IPHC-recommended level of harvest reduction. *Comment 17:* The proposed action should not be implemented until NMFS and the Council implement a fishery management plan for Pacific halibut. *Response:* A fishery management plan for halibut developed under the Magnuson-Stevens Fishery Conservation and Management Act is not necessary because the Halibut Act provides sufficient authority to the Secretary to implement regulations for the conservation and management of the halibut resource. *Comment 18:* NOAA Fisheries should implement regulations in Area 3A because the data are not certain as to the actual harvest level and the GHL is likely to be exceeded in future years. *Response:* The preamble of the proposed rule for this final action provides a detailed discussion about why NMFS decided not to impose additional harvest restrictions in Area 3A. In summary, on January 26, 2007, ADF&G issued an Emergency Order (2-R-3-02-07) for the 2007 charter halibut season that prohibited the retention of halibut by skipper and crew and limited the number of lines that could be fished on a charter vessel. The State estimates its action will reduce charter harvest by 7.7 to 10.6 percent of the 2006 harvest or 306,000 lb (138.8 mt) to 421,000 lb (191.0 mt). Assuming the 2007 charter halibut fishery is similar to the 2006 fishery, this reduction in charter harvest is expected to be at or near the Area 3A GHL. In 2006, the GHL was predicted to be exceeded by nine percent, or 297,000 lb (134.7 mt). The amount of harvest in the 2006 charter fishery is based on preliminary estimates of charter fishery halibut harvests from the State. These preliminary estimates have been used historically by the IPHC in determining the most recent year's sport harvest and represent the best information available. The Council recognizes the potential for growth in the charter fishery in Area 3A and currently is developing alternatives to allocate halibut between the commercial and the charter vessel sport fishery. NMFS supports the Council's continued progress in developing long-term management policies for the halibut fisheries. *Comment 19:* The proposed rule will reduce the number of charter anglers in Area 2C and encourage them to fish in Canada or Area 3A. An increase of halibut anglers in Area 3A would exacerbate that area's GHL overage. *Response:* Data are not available to predict the number of clients that will choose to not take a charter vessel trip in Area 2C as a direct result of this rule. Likewise, no data exist on the portion of clients that would choose to maximize their experience with some other type of fishing experience. For example, some anglers may value the opportunity to catch a large halibut more than the need to harvest a large amount of halibut, or a segment of anglers may value harvesting halibut more than the experience of catching and releasing halibut. Other than acknowledging these possibilities, as was done in the EA/RIR/IRFA, NMFS cannot forecast their probability. *Comment 20:* Because halibut that are 32 inches (81.3 cm) or under are not included as part of the set-line commercial quota limit, they should not be included in the charter vessel sport harvest estimate. *Response:* The annual management measures (72 FR 11792, March 14, 2007) prohibit the harvest of halibut less than 32 inches (81.3) in the commercial set line fishery. These halibut are not counted towards a person's IFQ because they are not landed and do not enter commerce. The sport fishery does not have a minimum size limit. Thus, halibut that are 32 inches (81.3 cm) or under in total length are targeted and retained by sport anglers and are not required to be discarded as they would be in the commercial fishery. Therefore, it is reasonable to include halibut 32 inches (81.3 cm) and under in the charter vessel harvest estimate. *Comment 21:* The proposed rule should not be adopted by NMFS until the Council develops and approves an allocation solution to the commercial and charter vessel halibut fisheries. *Response:* As explained in the preamble to this final action, NMFS is taking this action because of concerns by the IPHC that its management goals were in danger by the unpredictable growth of halibut harvest in the charter fishery. In making its recommendation, the IPHC expressed its desire for the Council to manage the harvest of halibut in the charter fishery, but believed a harvest reduction was needed for the 2007 charter fishing season. A Council action to reduce charter halibut harvest could not be implemented for the 2007 fishing season. Hence, NMFS is promulgating this regulation in response to the recommendation by the IPHC that its management goals were thwarted by the magnitude of charter halibut harvest in excess of the GHL. The Council is considering harvest reduction measure for Area 2C and management measures that would resolve the allocation issues between the commercial and charter vessel sectors. Future Council actions to manage the charter fishery may replace the regulations in this final rule. *Comment 22:* The EA/RIR/IRFA incorrectly states that the preferred alternative will have a similar level of discard (catch and release) mortality as the current (two fish of any size) regulation. The release mortality associated with the proposed rule will be higher than the status quo, if for no other reason than the preferred alternative requires discard of fish above the 32-inch (81.3 cm) maximum size limit. In addition, it is reasonable to expect that anglers will catch and release a number of small fish in order to take home the largest fish possible under the 32-inch (81.3 cm) size limit. *Response:* The EA/RIR/IRFA discusses the potential impacts of this rule on the number of halibut that may die soon after release. Only a qualitative discussion was provided in the analysis, however, because of limited information about how anglers may respond to changes in the traditional two-fish bag limit. All available data were collected under the traditional two fish bag limit, and information about size distribution of halibut released in the sport fishery was not available. The analysis provided a qualitative discussion about the relative impact the final rule may have on the number of halibut released, including the impact local catch rates may have on the number of fish released, the type of charter trip taken (half-day or full-day), and the amount of catch and release and high grading of fish that currently occurs in the fishery. Based on differences in the length composition of the charter halibut harvest among Area 2C ports, it is reasonable to assume that the size composition of discarded fish also varies among ports. For Area 2C overall, however, halibut under 32 inches comprised nearly half of the charter harvest in 2006. Therefore the analysis assumed that the majority of discarded fish were under 32 inches in length because, under the traditional two-fish bag limit, anglers were highgrading to the maximum extent possible or optimizing the size of harvested halibut based on individual preferences. While some larger halibut may be released in pursuit of a fish under 32 inches (81.3 cm) (“lowgrading”) in areas where halibut under 32 inches (81.3 cm) are less common, size data from the 2006 charter fishery indicated that in most areas halibut that are 32 inches or under in length would be more readily available than larger halibut. Under the preferred alternative, many of the smaller fish that would have been released in pursuit of larger halibut would be retained, reducing some highgrading that occurred under the traditional two-fish bag limit. Anglers could continue to highgrade. Therefore, it was assumed that on balance, reductions in discard mortality from highgrading would offset discard mortality from lowgrading, although NMFS has no data to test this assumption. In addition, the selection process used by anglers under the each of the options is poorly understood. The analysis relies on gross assumptions regarding highgrading and angler responses to management. Some anglers likely prefer to harvest large fish, while others select a halibut based on other attributes such as perceived differences in the taste of the fish, the amount of halibut they may transport home, the amount of fishing time is limited, the local catch rates, discards, and other factors. Thus, a high degree of uncertainty exists on the amount of discard that occurred in the fishery in the past and the amount of discard that may occur under this rule. The conclusions reached in the analysis represent the best qualitative estimate based on assumptions regarding highgrading and angler behavior. *Comment 23:* There was no discussion or analysis in the EA/RIR/IRFA of the amount of halibut discards. While size composition data on discards have not been collected, an analysis using the size composition of the landed catch or from IPHC survey data could have been used for illustrative purposes to describe the relative differences between the alternatives. *Response:* The EA/RIR/IRFA discussed problems associated with estimating the amount of discards, including the lack of information about the size composition of halibut released in the sport fishery and a lack of information about angler preferences concerning the size of fish caught. The analysis also provided a qualitative discussion about whether discards from this action were likely to increase or decrease in comparison to the traditional two-fish bag limit. Data were not available for the EA/RIR/IRFA to quantitatively evaluate the magnitude of changes in the size composition of halibut released in the sport fishery under the final rule. Length data collected in the IPHC survey and ADF&G creel survey represent halibut harvested in the charter fishery under the traditional two-fish bag limit. Given that anglers highgrade the size of halibut harvested under the traditional two-fish bag limit, the size composition of released fish is likely smaller than harvested halibut. Hence, the IPHC length frequency data may not provide a baseline representation of fish released under the traditional two fish bag limit. The lack of an accurate baseline from which to compare the size frequency is further compounded by unknown behavioral responses to the rule. For these reasons, the EA/RIR/IRFA did not provide a point estimate for the number of halibut discarded in the charter fishery. *Comment 24:* The EA/RIR/IRFA is not adequate because it does not contain an analysis for a one-fish bag limit. *Response:* In formulating alternatives for the EA/RIR/IRFA, NMFS considered and rejected options that reduced the daily bag limit for anglers fishing from a charter vessel. The preamble to the proposed rule provides a detailed explanation about why the one-fish bag limit was rejected as an alternative for analysis. In summary, a reduced bag limit would impose a considerable economic burden on the charter sector that could be mitigated by maintaining the traditional two-fish bag limit. Charter operators commenting on the IPHC recommended action indicated that it was important for their business to maintain a two-fish bag limit. NMFS rejected an alternative for one-fish bag limit because:
(1)it likely would not reduce the economic burden on the charter industry; and
(2)a comparable harvest reduction could be achieved with alternatives that maintained a two-fish bag limit in the charter fishery. *Comment 25:* Failure to reduce halibut harvest to the GHL will result in overfishing of the halibut resource and is thus in violation of the Convention and Halibut Act. *Response:* This rule is designed to reduce the charter vessel harvest of halibut in Area 2C to a level comparable to the IPHC-recommended one-fish bag limit. The IPHC recommended a reduction in the harvest of halibut by the charter vessel sector to achieve its conservation and management goals pursuant to the Halibut Act and Convention. The EA/RIR/FRFA concludes that the expected level of halibut removals from the charter vessel fishery after this rule is implemented will not significantly impact the sustainability of the halibut stock. Therefore, a reduction of the Area 2C charter vessel halibut harvest to a level comparable to the IPHC-recommended action is not likely to result in overfishing of the halibut resource, regardless of whether the GHL is achieved or exceeded. *Comment 26:* The final rule introduces management complexity to the charter fishery without a reliable catch accounting program. *Response:* The final rule does not require additional data collection. ADF&G currently has an extensive data collection program for Alaska recreational fisheries including halibut. Because sport fishery landings happen over long periods, throughout most hours of the day, and at hundreds of access points including private lodges, ADF&G uses a variety of assessment methods including on-site creel surveys, and offsite methods including logbooks and postal surveys. In 2006, the ADF&G resumed collection of halibut harvest data in charter logbooks to gather data on halibut harvest specific to individual businesses and vessels. In addition, several measures were implemented to ensure accurate reporting of halibut harvest. These measures included
(1)requiring reporting of fishing license numbers and numbers of halibut kept and released by individual anglers,
(2)validation of the numbers of halibut offloaded by creel survey technicians whenever possible,
(3)increased logbook inspections by deputized ADF&G staff,
(4)increased review of submitted logbooks and follow-up calls to charter operators to resolve missing or misreported information, and
(5)a mail survey of a random sample of clients to compare their reported harvest to logbook data recorded by operators. The evaluation of logbook data quality is ongoing. *Comment 27:* The EA/RIR/IRFA does not analyze the impact the final rule will have on crews, processors, and coastal communities. *Response:* The EA/RIR/IRFA provides an analysis of the potential socioeconomic impacts on commercial fishermen, charter guides, their customers, and other parties. This information is summarized in table 22 of the analysis. *Comment 28:* The problem statement fails to identify impacts on commercial fishermen, subsistence users, non-guided sport anglers, the non-angler public, and coastal communities that result from the charter sector's harvest of halibut in excess of the GHL. *Response:* The goal of this action is reduce halibut harvest in the Area 2C charter fishery to a level that is comparable to the IPHC-recommended action while lessening the negative impacts of that action on the charter industry, its sport fishing clients, the coastal communities that serve as home ports for this fishery, and on fisheries for other species. This goal does not include lessening the impact on subsistence users, non-guided sport anglers, or commercial fishermen, although that may be an indirect effect. This rule is not designed to change current regulations that govern the subsistence fishery or non-guided sport fishery, including personal bag and harvest limits. Commercial fishermen were not included in the problem statement because this action does not change the regulations associated with the commercial fishery nor does it establish an annual allocation of halibut for the commercial and sport fisheries. While a harvest reduction in the charter sport fishery may benefit the commercial fishery in the future, this rule is intended to meet the management goals of the IPHC, and in doing so, the charter sport fishery is the entity directly regulated by this final rule. *Comment 29:* The creel survey, postal survey, and logbook data collected by ADF&G and used in the EA/RIR/IRFA do not accurately estimate halibut removals or the average weight of halibut harvested in the charter fishery. *Response:* The EA/RIR/IRFA for this final action uses sport fishing data collected by ADF&G through its postal survey, logbook program, and creel survey program. These data comprise the best scientific information available for the EA/RIR/IRFA and are appropriate for use in estimating the impact of the final rule on the charter halibut and commercial sectors. These data collection programs all use statistical methods accepted by the scientific community to collect and extrapolate sport fishing information, including the disclosure of known statistical biases and verification of data collection methodology. *Comment 30:* The preferred alternative will not result in a level of savings that is comparable to the IPHC-recommended action because the second fish harvested by most anglers is not 32 inches (81.3 cm). *Response:* The 32-inch (81.3 cm) maximum size limit proposed in the final action applies to persons who harvest two halibut regardless of the order in which those fish are caught. If a person harvests only one halibut, it may be of any size. Thus, a person may choose whether the first or second halibut harvested is 32 inches (81.3 cm) or less. The reduction in guided sport harvests described in the EA/RIR/IRFA was determined by multiplying the proportion of halibut taken as a second fish by the proportion of harvest weight associated with halibut that would have been under the 32-inch (81.3 cm) size restriction in this final rule. The analysis did not predict the probability of harvesting one or two fish and instead assumed persons would maximize the size of their first halibut and harvest the smaller 32-inch (81.3 cm) halibut as their second fish. Using this assumption, the analysis shows that approximately 518,000 lb (233,100 kg) of halibut would not be harvested in the Area 2C charter vessel fishery under this rule. *Comment 31:* The weight estimates for the Area 2C charter fishery are not accurate and should not be used in the EA/RIR/IRFA because they do not represent a random sample of harvested halibut. *Response:* See response to comment 29. *Comment 32:* The proposed rule is misleading because it insinuates growth in the charter vessel sector without providing supporting information. *Response:* The preamble of the proposed rule on page 1073 under the heading “Recent Harvests of Halibut in Areas 3A and 2C” states: “ In Area 2C, based on ADF&G sport fishing survey data, the charter vessel harvest in 2003 was one percent under the GHL, but in 2004 and 2005, it was 22 percent and 36 percent over the GHL, respectively. In 2006, based on sport fishing survey data [,] the GHL for Area 2C was projected to be exceeded by 42 percent, or 596,000 lb (270.3 mt).” The preamble does not discuss the average annual increase of charter harvest since 1995. However, information that is provided in the background section of the EA/RIR/IRFA shows that the guided sport harvest of halibut in Area 2C has increased from approximately 0.986 million lb (443,700 kg) in 1995 to 2.028 million lbs (912,600 kg) in 2007. In addition to increased harvests in the charter fishery for halibut, the number of trips, businesses, vessels, and the number of second trips per day has increased since 2004. *Comment 33:* The description of the fishery CEY in the preamble to the proposed rule as it relates to the commercial catch limit is incorrect because the commercial catch limit is not equal to the fishery CEY and bycatch and wastage are commercial removals. *Response:* The preamble to the proposed rule states that the IPHC subtracts estimates of all non-commercial removals (sport, subsistence, bycatch, and wastage) from the total CEY. The remaining CEY, after removals are subtracted, is the maximum catch or “fishery CEY” for an area's directed commercial fixed gear fishery. The description in the preamble is not accurate because while the commercial catch limit for the fixed gear fishery may be set below the fishery CEY, it may exceed the fishery CEY. IPHC staff recommendations are based on estimates for the fishery CEY, but may be higher or lower depending on a number of biological, statistical, and policy considerations. Similarly, the IPHC commissioners final quota decisions for the commercial fishery may be higher or lower than the fishery CEY. In addition, the description in the preamble of the proposed rule does not accurately indicate that bycatch and wastage are non-commercial removals. These removal categories are a result of commercial fisheries operating in Convention waters. *Comment 34:* The description of the relationship between the total CEY and halibut removals in the preamble to the proposed rule is not correct. The preamble incorrectly states that: “As conservation of the halibut resource is the overarching goal of the IPHC, it attempts to include all sources of fishing mortality of halibut within the total CEY.” The preamble is not correct because the IPHC accounts for commercial wastage and bycatch of halibut 32 inches (81.3 cm) or smaller in the exploitation rate, which is applied before the total CEY is calculated. *Response:* NMFS agrees that halibut under 32 inches (81.3 cm) caught as bycatch and wastage are accounted for in the exploitation rate that is used to determine the total CEY. On an annual basis, the IPHC deducts projected halibut removals resulting from bycatch, wastage, sport fishing, and subsistence from the total CEY. The total CEY is the product of an area-specific harvest rate and the exploitable (recruited) biomass. Only the bycatch and wastage of halibut 32 inches (81.3 cm) or greater are deducted from the total CEY. *Comment 35:* The proposed rule should not be adopted because it will not achieve the GHL or result in a long-term solution to the allocation issues between the commercial sector and charter halibut sector. *Response:* The purpose and need for this final rule is to reduce halibut harvest in the charter vessel sector in Area 2C to levels that are comparable to the IPHC-recommended one-fish bag limit. Based on the 2006 harvest level for the charter vessel sector in Area 2C, the IPHC-recommended action was determined to result in a reduction between 397,000 lb (180.1 mt) and 432,000 lb (195.9 mt). This level of reduction would not reduce harvest to the GHL, which was exceeded by approximately 596,000 lb (270.3 mt) in 2006. Management measures designed to achieve the GHL and resolve long-term allocation issues are being developed currently by the Council. NMFS supports the Council's continued efforts to develop a long-term solution to the allocation issues between the commercial and charter vessel sectors. *Comment 36:* The proposed rule is a misuse of the GHL because downward adjustments to the GHLs are only to be taken when there is a decline in Pacific halibut abundance. The GHL should stair-step with increases in halibut abundance. *Response:* This rule was not designed to change either the 2007 GHL published in the **Federal Register** (72 FR 12771, March 19, 2007) or the GHL regulations at 50 CFR 300.65. The GHL “stair steps” down only during periods when the CEY established by the IPHC falls below benchmark levels in the GHL regulation. To change the GHL regulations would require separate rulemaking. *Comment 37:* The proposed rule discriminates between Alaska resident and non-Alaska resident anglers because a large portion of anglers fishing from a charter vessel in Area 2C are not Alaska residents. Discriminating between residents of different states violates the Halibut Act Section 773c and the Magnuson-Stevens Act National Standard 4. *Response:* This final rule does not discriminate between U.S. citizens based on their state of residence because the regulations apply equally to Alaska residents and non-Alaska residents who harvest halibut from a charter vessel in Area 2C. This action is consistent with the Halibut Act, based upon rights and obligations in existing Federal law, and reasonably calculated to promote conservation. *Comment 38:* The proposed regulation is in violation of the Halibut Act and Convention because it treats recreational halibut anglers fishing from a charter vessel differently than halibut anglers not fishing from a charter vessel. *Response:* The Halibut Act and Convention does not prevent the Secretary from tailoring a management action so that it addresses the concern that prompted action in a reasonable manner. This management action was designed to address the current allocation problem between the halibut charter fishery and the commercial fishery and does not directly address other user groups, i.e., non-guided anglers and subsistence users. The reason for this action is clearly indicated in the preamble to the proposed and final rules. Therefore, this rule is consistent with the Halibut Act and Convention. *Comment 39:* The EA/RIR/IRFA incorrectly concludes that impacts from the final action on groundfish stocks, notably the Demersal Shelf Rockfish Assemblage
(DSR)and lingcod, will not be significant. The proposed action will increase the mortality on species other than halibut because anglers will catch these species while targeting halibut. *Response:* The EA/RIR/IRFA indicated that this action is not expected to significantly increase the mortality of DSR and lingcod over that which would have been experienced under the traditional two-fish bag limit for halibut. Moreover, the EA/RIR/IRFA indicates that these groundfish stocks are managed by the State of Alaska and Federal governments using biological benchmarks that prompt agency response to constrain harvest to maintain sustainable stocks. *Comment 40:* The EA/RIR/IRFA fails to note that the preliminary catch estimate for DSR harvested in the charter fishery that is provided in the analysis has been updated by ADF&G. *Response:* The EA/RIR/IRFA used a preliminary estimate in the December 2006 Stock Assessment and Fishery Evaluation Report of 64 mt of directed harvest and 7 mt of discard mortality in the Area 2C sport fishery. In January 2007 ADF&G updated its discard estimate for the sport fishery from about 7 mt to 9 mt. The EA/RIR/IRFA has been corrected to reflect the ADF&G correction for DSR harvest in the sport fishery. *Comment 41:* The EA/RIR/IRFA incorrectly states that overall lingcod harvest has been stable for the sport fishery in Area 2C. *Response:* The EA/RIR/IRFA states that lingcod harvests in recent years have remained stable under strict regulations on the sport fishery imposed by the State. Table 4 in the draft EA/RIR/IRFA did not include harvest estimates for 2005. Table 4 has been updated in the EA/RIR/FRFA to show that 16,281 lingcod were harvested in 2005. Inclusion of the 2005 lingcod harvest data show that lingcod harvest in the sport fishery has increased since 2002. *Comment 42:* The EA/RIR/IRFA did not analyze a sufficient range of alternatives, including length limits, slot limits, or boat limit on the number of halibut harvested. *Response:* The EA/RIR/IRFA analyzed a range of reasonable alternatives that would achieve the purpose and need of the action in this final rule. As stated in the preamble to the proposed rule, the purpose and need for this action is to reduce harvest in the charter vessel halibut fishery in Area 2C to level that is comparable to the IPHC-recommended one-fish bag limit, but in a manner that produces smaller adverse impacts on the charter fishery, its sport fishing clients, the coastal communities that serve as home ports for this fishery, and on fisheries for other species. The alternatives considered provide a range tailored to the purpose and need for this final action, which focused on maintaining the opportunity for a sport angler to harvest two halibut per day. The alternatives also provide a wide range of limits on the size of halibut harvested, including length limits that span the distribution of halibut currently caught in the sport fishery. *Comment 43:* The retention requirement associated with the proposed rule will create pollution problems at the dock where charter operators offload fish and clients. It will also increase the burden on charter operators because of an increase in the amount of time to properly dispose of carcasses. *Response:* This rule would require charter operators to retain halibut carcasses intact onboard the charter vessel until fillets are offloaded. This regulation will likely increase the number of carcasses brought back to the dock in some ports and may thus increase the burden on ports and charter operations to dispose of carcasses. The current carcass disposal practices by charter operators is largely unknown. Anecdotal information suggests that some ports require charter operators to properly dispose of carcasses on land or at sea. In addition, it may be common practice for charter operators to bring whole halibut back to ports that do not have a port offal policy. The EA/RIR/IRFA concludes that the costs associated with carcass disposal may be placed on charter operators if discard is prohibited by the port authority or such casts may be spread more widely if the port authority provides discard services. *Comment 44:* The proposed action will increase the harvest of large female halibut because anglers will attempt to maximize the size of one of their two halibut. An increase in the harvest of halibut that have a higher fecundity will endanger the halibut stock. *Response:* The EA/RIR/IRFA considers the IPHC catch accounting and stock assessment process and concludes, based on the IPHC management measures, that the final action would not have a significant impact on the halibut stock. The comment presumes that harvesting large female halibut will substantially decrease egg production and the resultant abundance of juvenile halibut. In 1999, the IPHC reviewed options for a maximum size limit of 60 inches (150 cm) in the commercial fishery and concluded that, based on the research at the time, it did not add substantial production to the stock. Applying the limit to the sport fishery would show even smaller production benefits given the harvest attained by the sport fishery is substantially smaller than the level of commercial harvest and this action only applies to Area 2C. The halibut stock is managed as a single population throughout its entire range. *Comment 45:* The proposed action does not address the potential for the near-shore depletion of halibut. *Response:* The best scientific information available is not clear whether nearshore depletions exists and, if so, about the causes, magnitude, and geographical distribution of nearshore depletion of halibut. This final rule is not expected to significantly impact the sustainability of the halibut stock. As discussed in the EA/RIR/IRFA, the IPHC sets catch limits for the commercial fishery in proportion to the amount of halibut that may be sustainably removed. This harvest philosophy protects against overharvest and spreads fishing effort over the entire range for halibut to prevent regional depletion. Small scale local depletion is not expected to have a significant biological effect on the resource as a whole. Egg and larval drift and subsequent migration by young halibut cause significant mixing within the population. Ultimately, counter migration and local movement tend to fill in areas with low halibut density, although continued high exploitation may maintain or cause small, but temporary, localized depletions. However, information about local biomass, immigration and emigration rates, seasonal changes, and the relationship of these factors with environmental characteristics are not available on a geographical resolution that would provide information about small areas that may experience local depletion in Area 2C. *Comment 46:* The EA/RIR/IRFA did not discuss enforcement and data collection issues associated with this final action. *Response:* The RIR analysis provides a detailed discussion about enforcement issues associated with this final action. The analysis indicates that enforcement of this action would require on-the-water or dockside counting and measurement of harvested halibut by enforcement officers. For these reasons, enforcement of the bag and size limit would require regular visits by enforcement officers to areas where halibut harvested on charter vessels are landed. These include remote areas such as lodges as well as urbanized areas such as Sitka, Ketchikan, and Juneau. No reporting requirements are associated with this action. *Comment 47:* The final regulation will be difficult to enforce in situations with multiple anglers because enforcement cannot attribute individual halibut harvested on a charter vessel to a specific person. *Response:* Determining the number of halibut harvested by a person fishing from a charter vessel is difficult because halibut may be distributed among anglers, resulting in more successful anglers harvesting more than two halibut to maximize the collective daily bag limit for licensed anglers onboard the charter vessel. This practice is often referred to as a “boat limit” and is not legal because anglers are harvesting more halibut than their bag limit. The RIR analysis discusses this issue and indicates that these situations require NOAA Office of Law Enforcement
(OLE)or the U.S. Coast Guard to investigate allegations of bag limit violations through interviews, direct observation of fishing or other techniques. Enforcing the two-fish bag limit in this rule will be no more difficult than enforcing the previous two-fish bag limit. *Comment 48:* The proposed rule should not be adopted because the minimum size limit and associated harvest reduction in this final action will negatively impact the charter industry, including non-charter businesses that rely on revenue generated from the charter industry. *Response:* An important objective of this action is to reduce the Area 2C guided sport halibut harvest to a level comparable to the IPHC-recommended action in a manner that has less adverse impact than the IPHC-recommended one-fish bag limit would have had on the charter fishery, its sport fishing clients, the coastal communities that serve as home ports for the charter fishery, and on fisheries for other species. The RIR/IRFA provides a detailed discussion on the potential economic impacts of this action. In summary, this rule is expected to reduce the charter vessel harvest of halibut, but may also reduce short run profit levels or create short run losses for operators when compared with the previous two-fish bag limit. The charter industry may lose revenue if the number of clients declines as a result of the regulation. Charter operators also may incur increased costs associated with disposing of halibut carcasses, due to the requirement of retaining carcasses until fillets are offloaded from the charter vessel. Guides may pass carcass disposal costs to their clients, depending on market conditions. In selecting a preferred alternative, NMFS considered the economic impacts of all alternatives in the RIR/IRFA. Three alternatives resulted in harvest reduction that was comparable to the IPHC-recommended action:
(1)a minimum size limit of 45 inches (114.3 cm) on one of two harvested halibut;
(2)the action in this final rule; and
(3)a maximum size limit of 35 inches (88.9 cm) on one of two harvested halibut. The economic impacts from alternative
(1)were expected to be greater than the action in alternative
(2)because halibut greater than 45 inches (114.3 cm) are not abundant in some geographical areas. A maximum size limit of 35 inch (88.9 cm) on one of two harvested halibut also resulted in the appropriate level of harvest reduction. However, the difference between the 32 inch and 35 inch (88.9 cm) maximum size limit is relatively small and subject to statistical confidence ranges of unknown size and therefore did not justify changing the preferred alternative. Thus, this final rule achieves the stated objectives for the action, while simultaneously recognizing potential adverse economic impacts that may accrue to directly affected small entities and taking all practicable steps to reduce impacts. *Comment 49:* The proposed rule should impose restrictions on the commercial fishing sector, including reducing commercial bycatch levels and the commercial set-line quota. *Response:* This rule is not designed to impose further restrictions on commercial fisheries that take halibut. The commercial fishery for halibut and the commercial fishery for groundfish that take halibut as bycatch to the harvest of other species are strictly limited to a specified amount of halibut mortality. Unlike the charter vessel fishery for halibut, these commercial fisheries are closed when their limits are reached. *Comment 50:* The IPHC-recommended action for the Area 2C and Area 3A charter fishery should have been approved by the Secretary of State in concurrence with the Secretary. *Response:* A detailed explanation of the reasons for disapproval of the IPHC-recommended one-fish bag limit in the preamble to the proposed rule (72 FR 17071, April 6, 2007) and the annual management measures for the halibut fishery (72 FR 11792, March 14, 2007). In brief, the IPHC-recommended action was disapproved because control of the charter vessel harvests of halibut is more appropriately done by domestic agencies and could be achieved by a combination of ADF&G and NMFS regulatory actions. *Comment 51:* This final action will not address harvest by “self-guided” anglers that are provided a vessel and fishing knowledge by a fishing operation, but do not have a hired operator. *Response:* This final rule will apply only to anglers fishing from a charter vessel. A charter vessel is defined at 50 CFR 300.61 as a vessel used for hire in sport fishing for halibut, but not including a vessel without a hired operator. Self-guided trips do not have a hired operator and are thus not subject this final rule. The harvest of halibut by independent anglers has been relatively stable in recent years. It has not demonstrated the growth rates of the charter vessel sector. Therefore, self-guided anglers were not considered part of the problem addressed by this rule. *Comment 52:* The EA/RIR/IRFA indicates that DSR harvest could be managed under the overfishing level
(OFL)even if harvest exceeded the allowable biological catch (ABC). *Response:* The EA/RIR/IRFA does not imply that the DSR stocks should be managed to OFL, in fact, it states that removals of DSR because of this rule would likely not exceed the ABC or OFL. The purpose of an EA is to determine the potential impacts the alternatives may have on the human environment and if those impact are significant. The EA/RIR/IRFA indicates that in 2006, DSR stocks were well under their harvest and biological benchmarks for the sport and commercial fisheries. The biological benchmarks are the ABC and the OFL. The ABC is an annual sustainable target harvest (or range of harvests) for a stock complex, determined by the Council's Plan Team and the Scientific and Statistical Committee during the assessment process. It is derived from the status and dynamics of the stock, environmental conditions, and other ecological factors, given the prevailing technological characteristics of the fishery. The target reference point is set below the limit reference point for overfishing and is precautionary. The OFL is a limit reference point set annually for a stock or stock complex during the assessment process. Overfishing occurs whenever a stock or stock complex is subjected to a rate or level of fishing mortality that jeopardizes the capacity of a stock or stock complex to produce maximum sustained yield
(MSY)on a continuing basis. Operationally, overfishing occurs when the harvest exceeds the OFL. Thus, the OFL is a valid biological reference point indicating that the stock cannot maintain long-term sustainability without a reduction in harvest. *Comment 53:* The five-percent discard mortality estimate in the EA/RIR/IRFA does not account for halibut that were caught and released multiple times. *Response:* The discard estimate in Appendix A of the EA/RIR/FRFA is based on a survey of the scientific literature about discard mortality rates in the charter fishery, harvest data from the Area 2C, and anecdotal information about the prevalence of circle hooks in the charter fishery. This information in the EA/RIR/IRFA is based on the best available scientific information. Data is not available that would provide a reliable estimate about the number of times a halibut is caught in the halibut fishery and the amount of time between capture. . *Comment 54:* In calculating the estimated harvest reduction, the EA/RIR/IRFA inappropriately uses the average weight of halibut harvested in the recreational fishery in 2006 rather than an average weight calculated using multiple years. *Response:* The principle goal of this rule is to achieve a harvest reduction that is comparable to the IPHC-recommended action. In making its recommendation, the IPHC used the average weight of halibut harvested in the charter fishery in 2006 to predict the level of harvest that may occur in 2007. Thus, the EA/RIR/IRFA used the same weight measurement as used by the IPHC to predict removals in the sport fishery. Use of the 2006 average weight is consistent with the goal of the analysis. *Comment 55:* The final rule should require the use of circle hooks on halibut charter vessels because this hook type has been shown in the scientific literature to reduce the mortality of discarded fish. *Response:* NMFS considered requiring the use of circle hooks in the halibut charter vessel fishery for halibut. A circle hook requirement was considered not practical for several reasons:
(1)NMFS has the authority to regulate the methods used to harvest halibut but not other species commonly caught on a charter vessel;
(2)the requirement would apply only to halibut because it would be impossible to determine whether a person was targeting halibut or a different species (e.g., lingcod, shark, or rockfish); and
(3)halibut that would ordinarily be harvested using non-circle hook gear while targeting other species would need to be released. Hence, this may increase the discard mortality of halibut. In addition, anecdotal evidence described in the EA/RIR/IRFA suggests that the use of circle hooks is already prevalent in the charter fishery. In an effort to improve its discard morality estimate, ADF&G will be collecting information about the prevalence of circle hook use in the 2007 charter fishery. *Comment 56:* The proposed rule should provide notice to the public that NMFS may annually adjust harvest control measures to prevent charter harvest from exceeding the GHL. *Response:* This rule is not designed to manage the charter vessel fishery halibut in Area 2C to its GHL on an annual basis. NMFS believes it is important that management measures for the charter halibut fishery be developed by the Council. This final rule was developed by NMFS independent of the Council because management measures developed by the Council to reduce harvest in the charter vessel halibut fishery could not be implemented in time for the 2007 fishing season. NMFS does not anticipate that this final rule would be adjusted on an annual basis. *Comment 57:* The proposed rule should not be implemented because ADF&G regulations prohibiting skipper and crew fish in Area 2C have not had time to reduce harvest. *Response:* The prohibition on skipper and crew fishing in Area 2C was first implemented in 2006. This measure resulted in a harvest reduction estimated to be approximately 84,000 lb (381 mt), which reduced the amount that the GHL was exceeded from 47 percent to 42 percent. The same level of reduction is expected for the 2007 charter fishery. Thus, the prohibition in Area 2C of skipper and crew fishing on charter vessels was not considered sufficient to control charter vessel harvest of halibut in 2007 to the level recommended by the IPHC. *Comment 58:* The proposed rule is arbitrary and capricious because the Secretary must have a recommendation from the Council to promulgate a rule that determines an allocation for a sector. The Council's policy is that harvest of halibut by the charter vessel sector may not exceed the GHL. The proposed rule selected a new allocation for the charter vessel fishery for halibut without Council input or technical and public review and is thus in violation of Federal law. *Response:* See response to comment 2. *Comment 59:* The EA/RIR/IRFA does not discuss the management history of the GHL, including the Council intent to trigger management measures when exceeded. *Response:* The EA/RIR/IRFA does provide a detailed discussion about the management history of the GHL on page 3. *Comment 60:* The proposed rule fails to mention the economic effect on the commercial industry when halibut in excess of the GHL is harvested by the charter vessel sector. *Response:* This action is not designed to reduce halibut harvest in the charter sector to the GHL. The purpose of this action is to reduce the harvest of halibut in the charter vessel sector to a level that is comparable to the IPHC-recommended action. The impacts of that action was analyzed and the economic impacts of exceeding the GHL was not because it was not relevant to this rulemaking. Changes From the Proposed Rule No changes are made in this final rule from the proposed rule. Classification This final rule does not require recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules. This final rule has been determined to be not significant for the purposes of Executive Order 12866. This final rule complies with the Halibut Act and the Secretary's authority to implement allocation measures for the management of the halibut fishery. Included in this final rule is a Final Regulatory Flexibility Analysis
(FRFA)that contains the items specified in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the comments and responses to the proposed rule, and the analysis completed in support of this action. A copy of the FRFA is available from the NMFS Alaska Region Office (see ADDRESSES ). The preamble of the proposed rule for this action includes a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated in its entirety here. Statement of Objective and Need A description of the reasons why this action is being considered as well as the objectives and legal basis for the action are contained in the preamble to this final rule and are not repeated here. Summary of Significant Issues Raised in Public Comments Comments received prior to the close of the comment period for the proposed rule focused on a range of issues. Specifically, the majority of comments from the charter industry that did not support the action indicated that the action would cause economic hardship on the charter vessel industry. These comments indicated that the action would result in a reduction of revenue (reduced clients) for Area 2C charter operators and businesses that rely on the charter industry. Comments received from the commercial sector generally indicated that halibut harvest above the GHL would reduce the amount of halibut available to the commercial industry and this reduction would cause economic hardship for IFQ quota holders, their crew, seafood consumers, processors, and the communities that rely on the commercial fishing industry. For detailed summary of the comments received, refer to the section of this final rule titled “Comments and Responses.” Description and Estimate of Number of Small Entities to Which the Rule Will Apply A description and estimate of the number of small entities to which the final rule will apply is provided in the FRFA (SEE ADDRESSES ) and the IRFA summary contained in the Classification section of the proposed rule for this action (72 FR 17071, April 6, 2007) and is not repeated here. Steps Taken to Minimize Economic Impacts on Small Entities This final rule limits the harvest of halibut by sport anglers fishing from a charter vessel in Area 2C to a daily limit of two halibut, except one halibut shall not be larger than 32 inches (81 cm) as measured from the head to the middle of the caudal fin. This final rule is expected to achieve the level of harvest reduction needed by the IPHC to meet its management goals while reducing potential adverse impacts on the charter fishery, its sport fishing clients, the coastal communities that serve as home ports for this fishery, and on fisheries for other species. This final rule is expected to reduce the halibut harvest in the Area 2C charter fishery by approximately 518,000 lb (235.0 mt), which is comparable to a harvest reduction of between 397,000 lb (180.1 mt) and 432,000 lb (195.9 mt) that is associated with the IPHC-recommended action. This final rule also requires charter vessel operators to retain intact carcasses of halibut until all fillets are offloaded from the charter vessel. The potential economic impacts of these measures are described in detail in the IRFA and the IRFA summary contained in the Classification section of the proposed rule. In summary, this final rule will have different effects on the charter and commercial sectors, and persons relying on those industries. This regulation is expected to reduce the overall harvests in the charter fishery, and may reduce growth of the charter sector. In the short run, the charter industry may experience a reduction in revenues and profit levels due to a reduction in the demand for charter services, although the extent of this outcome is unknown. In the medium to long term, charter businesses are likely to exit the industry, so the prices and profits of the remaining operations may tend to recover towards previous levels, although the equilibrium level cannot be estimated at present. Charter operations may incur costs if they are required by port authorities to change current disposal methods for halibut offal. The extent of these costs are unknown. In some situations, the costs may be borne by the charter operator and in others the cost may be distributed by the port authority. This regulation will also impose a burden on charter vessel operators to measure some halibut before landing. While not directly regulated by this action, the commercial industry may realize positive economic benefit from this action. For the commercial industry, this action is expected to reduce the amount of halibut harvested by the charter sector, which may increase future commercial quota levels and associated revenues generated from the quota. An increase in revenue in the commercial fishery also may increase consumer surplus for seafood consumers, and have a positive economic impact on persons and communities that are relatively more involved with the commercial sector than charter sector. This action incorporates several provisions specifically intended to reduce the potential economic and operational burden on small entities, relative to the other alternatives considered. Other alternatives considered for this action that would have resulted in a comparable reduction to the IPHC-recommended action include a regulation that would allow anglers to harvest two halibut if one halibut was greater than 45 inches (114.3 cm) in head-on length. This provision was rejected for two primary reasons:
(1)operators may be required to incur physical risk associated with measuring a large halibut;
(2)some locations in Southeast Alaska may have a small abundance of larger fish that would result in the regulation effectively being a one-fish bag limit. Another alternative that would have met the harvest reduction goal is a regulation that would have allowed anglers to harvest two halibut, except one must be smaller than 35 inches (88.9 cm), in head-on length. This alternative was rejected for the reasons explained in the preamble to this final rule. NMFS also considered and rejected a one-fish bag limit for inclusion in the EA/RIR/IRFA. However, for the reasons explained in the preamble to the proposed rule, this option was not considered reasonable because it would defeat part of the purpose of this action to reduce economic impacts on the charter vessel and related businesses. The no action alternative would have no direct impact on small entities. Under this alternative, current regulations for the charter sport fishery would not be changed. This would not meet the objectives of this action which were to achieve a harvest reduction that is comparable to the one-fish bag limit recommended for Area 2C. For the previous described reasons, this final rule meets the objectives of this action while recognizing the potential adverse economic impacts that may accrue to directly regulated small entities, and taking all practical means to limit these impacts. NMFS is not aware of any alternatives in addition to those considered for this action that would practicably achieve a harvest reduction comparable to the IPHC-recommended action while limiting the potential negative economic impacts on the charter industry, its sport fishing clients, and coastal communities that serve as home ports for this fishery, and on fisheries for other species. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 state that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with the rule or group of rules. NMFS will post a small entity compliance guide on the Internet at *https://www.fakr.noaa.gov* and provide the compliance guide to sport anglers through ADF&G. The guide and this final rule will be available upon request (see ADDRESSES ). This final rule is effective on filing with the Office of the **Federal Register** . The 30-day delayed effectiveness period required by the Administrative Procedure Act, if applied to this final rule, would substantially reduce it ability to fulfill its conservation and management objectives. These objectives are NOAA Fisheries' attempt to fulfill its international treaty obligations regarding the management of Pacific halibut. This action is intended to achieve a reduction in Area 2C charter halibut harvest that is comparable to the reduction that would have resulted from the bag limit reduction recommended by the IPHC, the international body authorized to make recommendations to the domestic parties (United States and Canada) of the Convention. Estimates of halibut poundage reduction in the Area 2C charter vessel fishery were based on an assumption that this final rule would be effective for the full charter fishing season of June, July, and August. Furthermore, the determination by the Secretaries of State and Commerce to implement these management measures by domestic regulations did not occur until March 1, 2007. NOAA Fisheries published a proposed rule on April 6, 2007, with a public comment period that closed on April 23, 2007. NOAA Fisheries received a large number of detailed comments from the public representing divergent points of view. The need to provide meaningful analysis and responses to these comments prevented NOAA Fisheries from publishing the final rule with enough time to allow for a 30-day delayed effectiveness period and a June 1 effective date. As stated above, if this final rule is not effective by June 1, 2007, the conservation and management objectives of this action will be jeopardized. The analysis indicates that approximately 25 percent of the halibut harvested by the charter sector occurs in June. Therefore, if this rule is not effective during the month of June, approximately 25 percent of the reduction that this rule was designed to achieve will not occur, frustrating the IPHC and NOAA Fisheries' conservation and management objectives in Area 2C and resulting in potential economic harm to the commercial halibut sector. Therefore, the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). List of Subjects in 50 CFR Part 300 Fisheries, Fishing, Reporting and recordkeeping requirements, Treaties. Dated: May 30, 2007. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, NMFS amends 50 CFR part 300 as follows: PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart E—Pacific Halibut Fisheries 1. The authority citation for 50 CFR part 300, subpart E, continues to read as follows: Authority: 16 U.S.C. 773-773k. 2. In § 300.61, definitions for “Area 2C” and “Head-on length” are added, in alphabetical order, to read as follows: § 300.61 Definitions. *Area 2C* includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58° 11′ 54″ N. lat., 136° 38′ 24″ W. long.) and south and east of a line running 205° true from said light. *Head-on length* means a straight line measurement passing over the pectoral fin from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail. 3. In § 300.65, paragraphs
(d)through
(k)are redesignated as paragraphs
(e)through (l), respectively, and new paragraph
(d)is added to read as follows: § 300.65 Catch sharing plan and domestic management measures in waters in and off Alaska.
(d)In Commission Regulatory Area 2C, halibut harvest on a charter vessel is limited to no more than two halibut per person per calendar day provided that at least one of the harvested halibut has a head-on length of no more than 32 inches (81.3 cm). If a person sport fishing on a charter vessel in Area 2C retains only one halibut in a calendar day, that halibut may be of any length. 4. In § 300.66, paragraph
(m)is added to read as follows: § 300.66 Prohibitions.
(m)Possess halibut onboard a charter vessel in Area 2C that has been mutilated or otherwise disfigured in a manner that prevents the determination of size or number of fish, notwithstanding the requirements of the Annual Management Measure 25(2) and
(7)(as promulgated in accordance with § 300.62 and relating to Sport Fishing for Halibut). Filleted halibut may be possessed onboard the charter vessel provided that the entire carcass, with the head and tail connected as single piece, is retained onboard until all fillets are offloaded. [FR Doc. E7-10736 Filed 6-1-07; 8:45 am] BILLING CODE 3510-22-S 72 106 Monday, June 4, 2007 Proposed Rules DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA-2007-0003] RIN 1218-AC22 Power Presses AGENCY: Occupational Safety and Health Administration (OSHA), DOL. ACTION: Advance notice of proposed rulemaking. SUMMARY: Mechanical power press safety is regulated under OSHA's mechanical power presses standard. OSHA adopted the standard in 1971, basing it upon the 1971 edition of American National Standards Institute
(ANSI)B11.1, the industry consensus standard for mechanical power presses. This ANSI standard has been updated a number of times since OSHA adopted the 1971 version. The most recent edition was issued in 2001. Hydraulic and pneumatic power presses are not covered by OSHA's current standard. The original standard also did not address the use of presence-sensing-device initiation
(PSDI)systems. When a press is equipped with PSDI, the press cycle will not initiate until the PSDI system senses that the danger zone is clear. OSHA updated the mechanical power presses standard on March 14, 1988, (53 FR 8353), to permit the use of PSDI systems. However, it requires an OSHA-approved third party to validate the PSDI system at installation and annually thereafter. Since the adoption of this provision, no third party has sought OSHA's approval. Consequently, PSDI systems are not being used with mechanical power presses. OSHA is seeking comments on whether and how the mechanical power presses standard should be amended, including whether the requirements pertaining to the use of PSDI systems should be revised and whether the scope of the standard should be expanded to cover other types of presses. DATES: Comments must be submitted by the following dates: • Hard copy: Submit (postmark or send) comments by regular mail, express delivery, hand delivery, and courier service by August 3, 2007. • Electronic transmission and facsimile: Submit comments by August 3, 2007. ADDRESSES: You may submit comments by any of the following methods: *Electronically:* You may submit comments and attachments electronically at *http://www.regulations.gov* , which is the Federal eRulemaking Portal. Follow the instructions on-line for submitting comments. *Fax:* If your comments, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at
(202)693-1648. *Mail, hand delivery, express mail, messenger or courier service:* You must submit three copies of your comments and attachments to the OSHA Docket Office, Docket No. OSHA-2007-0003, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t. *Instructions:* All submissions must include the Agency name and the OSHA docket number for this rulemaking (OSHA Docket No. OSHA-2007-0003). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at *http://www.regulations.gov* . For further information on submitting comments, plus additional information on the rulemaking process, see the “Public Participation” heading in the SUPPLEMENTARY INFORMATION section of this document. *Docket:* To read or download comments or other material in the docket, go to *http://www.regulations.gov* or the OSHA Docket Office at the address above. All documents in the docket are listed in the *http://www.regulations.gov* index, however, some information ( *e.g.* , copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. FOR FURTHER INFORMATION CONTACT: *Press Inquiries:* Kevin Ropp, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:
(202)693-1999. *General and Technical Information:* David M. Wallis, OSHA Directorate of Standards and Guidance, Office of Engineering Safety, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:
(202)693-2277. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. OSHA's Existing Mechanical Power Presses Standard B. OSHA's Section 610 Review of the PSDI Requirements II. Request for Data, Information, and Comments A. The Scope of the Power Press Standard B. Consensus Standards Related to Mechanical Power Presses C. Technical Issues D. Cost Issues E. Training Requirements F. Reporting and Recordkeeping Requirements III. Public Participation IV. Authority and Signature I. Background A. OSHA's Existing Mechanical Power Presses Standard OSHA promulgated § 1910.217, the standard for mechanical power presses, in 1971. The standard was based on the 1971 edition of American National Standards Institute
(ANSI)B11.1, the industry consensus standard on mechanical power presses. See 39 FR 23732 (June 27, 1974). Hydraulic and pneumatic power presses are not covered by the standard. See § 1910.217(a)(5). A mechanical power press is a two-part system, with a stationary bed or anvil and a movable upper part, the ram. A die or punch is placed on the ram and the ram descends into a die block, which is attached to the anvil. The punch and die block are known as the die set. A mechanical power press can be either full revolution or part revolution. A full-revolution press cannot be stopped once the cycle begins. A part-revolution press has a brake that can stop the press in mid cycle. Mechanical power presses are used in a number of industries, including fabricated metal, industrial machinery, and transportation vehicle parts. These industries all require metal parts, which are formed in presses, to create finished products. If employees are not clear of power presses when their cycles are initiated, serious injuries can occur. The mechanical power presses standard contains numerous provisions for protecting employees who work with and around the presses. In particular, the standard contains requirements for safeguarding the “point of operation” of the press, the area of the press between the punches and the die block. These requirements help ensure that employees are clear of this “danger zone” when the press is in operation. The standard requires employers to ensure “the usage of ‘point of operation guards’ or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.” See § 1910.217(c)(1)(i). Point of operation guards on mechanical power presses prevent entry of hands or fingers into the point of operation. Under the standard, employers can utilize a number of different types of guard systems: die enclosure guards, fixed barrier guards, interlock press barrier guards, and adjustable barrier guards. See § 1910.217(c)(2). Point of operation devices, on the other hand, are systems that protect employees by preventing or stopping the press cycle when hands or other objects are inadvertently placed in the point of operation. Examples of point of operation devices are Type A gates 1 or movable barrier devices, or Type B gates 2 or movable barrier devices, and presence-sensing devices. See § 1910.217(c)(3). A presence-sensing device is basically a light curtain or other sensing device that prevents or stops the slide motion of the press if the operator's hand or other part of the body is within the sensing field of the device during the downstroke of the press slide. 1 A Type A gate is a movable barrier device designed to be held in position during the entire press cycle (stroke) so that the operator cannot easily open the movable barrier during the cycle. It is designed to prevent reentry into the point of operation in the event of a failure of the press or its related control equipment when there may be a repeat cycle of the press. 2 A Type B gate is a movable barrier device designed for use on part-revolution presses so that it is held closed during the closing portion of the cycle (stroke). Point of operation devices also include certain systems that limit how a press cycle may be initiated. For example, the standard allows for two-hand initiation devices. See § 1910.217(c)(3)(e). The two-hand devices require the operator to press two buttons simultaneously in order to initiate the press cycle; the buttons must be far enough apart that they cannot be pressed with one hand. In addition, the controls must be a certain distance from the point of operation so that the controller cannot enter the danger zone after activating the press. While the two-hand controls help protect the employees operating the presses, they can be uncomfortable, may increase worker fatigue, and can increase the time between press cycles. The existing standard also includes requirements for inspecting, maintaining, and modifying mechanical power presses to ensure that they are operating safely. See § 1910.217(e). It requires operators and maintenance personnel to be trained in how to use or inspect power presses safely. See § 1910.217(e)(3) and (f)(2). And, it includes provisions for power press operation to ensure that there is sufficient clearance around the machines for them to operate safely, among other things. See § 1910.217(f)(4). These provisions, along with the point of operation protections above, work to protect employees working with and around mechanical power presses. In 1988, OSHA added paragraph
(h)to § 1910.217 to allow the use of presence-sensing-device initiation on part-revolution mechanical power presses. PSDI systems initiate press cycles when the systems indicate that no objects are within the danger zone. These systems differ from presence sensing point of operation devices in that these systems initiate the press cycles; presence sensing point of operation devices, as stated above, stop or prevent the cycles from occurring if an operator's hand or other body parts are in the danger zone. PSDI systems had been used on mechanical power presses in Europe for decades and on an experimental basis for a 1-year period beginning on August 31, 1976, at one United States facility under a temporary variance (Interlake Stamping Corporation (41 FR 36702)). PSDI systems were also used on non-mechanical power presses and other types of equipment. When paragraph
(h)was added in 1988, OSHA imposed a number of requirements for the use of PSDI systems based upon its analysis of the rulemaking record, which included comments from industry, union, and academic experts. See 53 FR 8322 (March 14, 1988). OSHA required that every PSDI system be initially validated by an OSHA-certified third party and re-validated by a certified third party annually. See § 1910.217(h)(11). The third-party validation was based on existing systems in Sweden and Germany, where the government certified this type of equipment. OSHA believed that national testing laboratories and industry organizations would conduct the third-party validation. In its 1988 rulemaking, OSHA analyzed the impact of paragraph
(h)on employers as part of its economic impact analysis. At that time, OSHA estimated that approximately 73,000 employees would be affected by the requirements. These employees are primarily punch and stamping press operators and job and die setters. OSHA estimated that 40 percent of the former group and 20 percent of the latter were operating mechanical power presses. OSHA estimated that PSDI would increase productivity an average of 24.3 percent per press, resulting in industry savings of about $162 million a year. See 53 FR 8351 (March 14, 1988). OSHA also believed, and continues to believe, that mechanical power presses equipped with PSDI, if properly designed, installed, and used, could reduce the likelihood of accidents. B. OSHA's Section 610 Review of the PSDI Requirements OSHA is required by Section 610 of the Regulatory Flexibility Act (5 U.S.C. 610) and Executive Order 12866 to conduct periodic reviews of rules (“Section 610 Reviews”). The purpose of these reviews is to determine whether such rules should be continued without change, amended, or rescinded, consistent with the objectives of applicable statutes, to minimize any significant economic impact of the rules on a substantial number of small entities. In doing so, the agency takes into consideration the continued need for the rule, comments and complaints received regarding the rule, the complexity of the rule, whether the rule is duplicative, and changes in technology and economic conditions since the issuance of the rule. The reviews also examine whether the rules are compatible with other regulations, duplicative or inappropriately burdensome in the aggregate, and whether and how they could be made more effective. OSHA conducted a Section 610 review to determine why PSDI has not been implemented, and to identify how the standard could be changed to facilitate PSDI use in a manner that protects worker safety. In its August 28, 2002, **Federal Register** notice (67 FR 55181) informing the public about the review and soliciting comments, OSHA presented four options for revising the standard: Option 1—Update all of § 1910.217 to be consistent with ANSI B11.1-2001 or something similar. Option 2—Revise the third-party validation requirements. Option 3—Eliminate all requirements for third-party validation and possibly replace them with a self-certification requirement; leave the other PSDI requirements intact. Option 4—Replace OSHA's current PSDI requirements with the PSDI requirements in the new ANSI B11.1. The Agency published its final report on the review in May 2004 and notified the public of its availability on June 8, 2004 (69 FR 31927). The review includes information on the main industry categories using mechanical power presses and estimates of injury trends. The review states that there were 194,891 presses of all types in use in 1996. Mechanical power presses are used mainly in the following manufacturing industry categories: fabricated metal, industrial machinery, electrical machinery, transportation vehicle parts, and precision instruments. The review also included information about injuries caused by mechanical power presses. It found that there were 774 mechanical power press accidents reported to OSHA from 1995-2000 under 29 CFR 1910.217(g), which requires employers to report to OSHA all point of operation injuries. It also cited BLS data that approximately 6,000 injuries per year occurred on nonprinting presses (including mechanical power presses and other types of presses) from 1992 to 1999. Based on analyses and information obtained during the Section 610 review, OSHA committed to pursuing Option 1, to update all of § 1910.217 to be consistent with ANSI B11.1-2001 or something similar [Ex. OSHA-2007-0003-0002]. Option 1 addressed concerns that the mechanical power presses standard as a whole is out-of-date and could be made safer. While PSDI system technology has not changed since paragraph
(h)was adopted in 1988, the technology used to control and guard mechanical power presses has changed considerably since § 1910.217 was adopted. For instance, some mechanical power presses now use operational modes not addressed in § 1910.217 (such as computer controls), which introduce hazards also not addressed by the standard. Five of the nine commenters who responded to OSHA's August 28, 2002, **Federal Register** notice recommended that OSHA replace the entire mechanical power press standard with ANSI B11.1-2001. They argued that PSDI is an integral part of that ANSI standard, which has no validation requirement. Furthermore, they argued that an update is overdue, would create a range of benefits, and would lead to implementation of PSDI [Ex. OSHA-2007-0003-0002]. OSHA agrees with these commenters and believes that such an update would result in improved safety and health protections for operators of mechanical power presses as well as for other employees in the machine area. II. Request for Data, Information, and Comments The Agency is considering a broad range of issues in its development of a proposed update to the mechanical power presses standard. The issues to be considered go beyond those of the current mechanical power presses standard and include broadening the scope of the standard to include other types of presses, equipment, and processes not previously addressed. OSHA invites comments on the questions below. The questions are grouped into six broad categories: The scope of the standard; industry consensus standards related to mechanical power presses; technical issues; training requirements; reporting requirements; and employer responsibilities. However, commenters are encouraged to address any aspect of power presses, including pneumatic, hydraulic, and other presses, which would assist the Agency in its consideration of what action is appropriate. The Agency is particularly interested in ways to incorporate flexibility into its standard to make it more protective as well as easier to comply with. Please provide a detailed response to the questions, as well as any supporting information or data, to better assist the Agency in its consideration of these matters. A. The Scope of the Power Press Standard 1. As stated above, the current OSHA standard covers only mechanical power presses. OSHA is considering changing the scope of the standard to include other types of power presses, such as hydraulic presses and pneumatic presses. Do the existing general machine guarding requirements in § 1910.212 adequately protect employees operating non-mechanical power presses, and do they provide adequate flexibility to employers who use such presses? Should OSHA regulate all power presses under one standard or under multiple standards? Should OSHA address non-mechanical power presses in this rulemaking action to update § 1910.217? Are there general requirements that should apply broadly to all types of power presses? 2. If OSHA does broaden the scope of the standard to include other types of presses, what other types of power presses should OSHA specifically include? Why? 3. The current OSHA standard specifically excludes press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses, forging presses and hammers, riveting machines, and similar types of fastener applicators. The ANSI B11.1-2001 standard excludes these as well; however, it also excludes cold headers and formers, eyelet machines, high-energy-rate presses, iron workers and detail punches, metal shears, powdered metal presses, press welders, turret and plate-punching machines, wire termination machines, and welding machines. If OSHA updates the standard to be consistent with the provisions of ANSI B11.1-2001 or its equivalent, should OSHA exclude all of the machines that are excluded in ANSI B11.1-2001? Why? Should OSHA exclude any other machines that are not specifically excluded in ANSI B11.1-2001? Why? 4. Since it has been more than 30 years since OSHA's adoption of its mechanical power press standard, OSHA realizes that changes in technology may have affected the way industry sectors operate. Are there mechanical power presses in use today that—due to their unique characteristics—are not covered by OSHA's current standard? Please supply OSHA with information about these presses. Does the current standard cover any equipment that is no longer in use? Would adoption of ANSI B11.1-2001 or something similar render equipment currently in use obsolete? Is there equipment that is currently in use that should be grandfathered into a revised OSHA standard that would otherwise restrict the use of such equipment? Why? B. Consensus Standards Related to Mechanical Power Presses 5. As stated above, OSHA intends to update the mechanical power press standard to be consistent with ANSI B11.1-2001 or something similar. Are there any obstacles to complying with a new standard that is based on ANSI B11.1-2001 or its equivalent? 6. Are there provisions in the current ANSI standard that should not be the basis for provisions in the revised OSHA standard? Should OSHA include any provisions that are not covered by the ANSI standard? If so, what are the provisions? 7. Should the Agency include information from the appendices or the explanatory information columns contained in the ANSI B11.1 standard in the revised OSHA standard? If so, what information in particular should OSHA consider? 8. Are there other consensus standards, international standards, or other references OSHA should consider in updating its mechanical power presses standard? If so, which ones should OSHA consider in drafting a proposed rule? 9. Some of the technical definitions and requirements in the ANSI standard, including those for the reliability and classes of control systems, are not contained within the standard itself but are instead found in technical reports to the ANSI B11.1 committee. Should these reports serve as one of the bases for a revised OSHA standard? If so, what specific information from these reports should OSHA consider? C. Technical Issues 10. During the Section 610 review, OSHA found that there has been some decline in mechanical power press use in the United States in the last 20 years. Please provide any information you have on current mechanical power press use. 11. Are there other developments in the use of mechanical power presses that are relevant for OSHA's development of a proposal? For example, the Section 610 review indicated that computer-controlled presses are increasingly common. How has the increased use of computer-controlled presses—as well as other technological developments—affected safety and productivity in the workplace? 12. The current OSHA standard permits any person to reconstruct or modify a mechanical power press as long as the reconstruction or modification is performed in accordance with § 1910.217(b). The ANSI B11.1-2001 standard permits only suppliers to reconstruct or modify a mechanical power press, as in ANSI B11.1-2001 paragraphs 4.1 through 4.1.3 [Ex. OSHA-2007-0003-0003]. Should OSHA similarly limit press reconstruction and modification to the supplier of the equipment? Why? Should a revised OSHA standard address the qualifications of persons who reconstruct or modify mechanical power press equipment? 13. OSHA's current standard requires third-party validation for PSDI such that a single failure or single operating error may not cause injury to personnel from a point-of-operation hazard. Appendix A, Certification/Validation Requirements. Should OSHA retain some form of third-party validation, but remove this aspect of the validation criteria? 14. If the Agency does not require third-party validation, would the certification requirements found in the following paragraphs be necessary: § 1910.217(h)(5)(i) (adjusting brake monitoring during installation certification); (h)(9)(ii)(B) (certification of alternatives to photo-electric light curtains); and (h)(11)(i)(B), (h)(11)(ii), (h)(11)(iii), (h)(11)(v) (safety system certification/validation)? Why or why not? 15. OSHA's current PSDI provisions include requirements for brakes and clutches that are not found in the ANSI B11.1-2001 standard. See § 1910.217(h)(2). Should OSHA retain these or similar requirements in a revised standard? Why? Should OSHA remove the provisions entirely? Why? Would removing these provisions adversely impact employee safety or are these provisions unnecessary given the PSDI systems currently available? 16. OSHA's current PSDI standard includes provisions for flywheels and bearings that are not included in the ANSI B11.1-2001 standard. See § 1910.217(h)(4). Should OSHA retain these requirements or something similar? Why? Would removing these provisions adversely impact employee safety or are these provisions unnecessary given the PSDI systems currently available? 17. OSHA currently limits PSDI systems to normal production operations (and not die-setting or maintenance procedures). See § 1910.217(h)(1)(v). Should OSHA continue this limitation? Why? 18. Are there any guarding methods or safety equipment in use today not covered by OSHA's current standard? Please supply OSHA with information about them. Does the current standard cover any guarding method or safety equipment no longer in use? 19. Are there any guarding methods or safety equipment in use today that the current ANSI standard does not address? Does the current ANSI standard cover any guarding method or safety equipment no longer in use? 20. OSHA's current standard has no specific provisions covering computer-controlled mechanical power presses. To what extent are employers using computer-controlled mechanical power presses? Are these types of presses becoming more common? What procedures, guarding methods, and safety considerations are used when using these types of presses? Are there any special hazards or concerns when using computer-controlled mechanical power presses of which the Agency should be aware? 21. OSHA's current mechanical power press standard has no specific provisions covering servo-actuated presses. To what extent are employers using servo-actuated presses? Are these types of presses becoming more common? What procedures, guarding methods, and safety considerations are used when using these types of presses? Are there any special hazards or concerns when using servo-actuated presses of which the Agency should be aware? D. Cost Issues 22. What has been the experience of PSDI systems on mechanical power presses and other machines internationally, particularly in Europe? What additional costs have been involved in integrating them into manufacturing operations? What have been the benefits in terms of safety and productivity? 23. What has been the experience of PSDI systems with regard to other types of machines in the United States (i.e., those not covered by the mechanical power press rule)? 24. Are there estimates of the cost savings of using PSDI systems more widely? Are there mechanical power presses where PSDI would provide few or no cost savings? 25. OSHA's Section 610 review of the mechanical power press rule indicated that in many cases mechanical power presses are being replaced with hydraulic presses. How widespread is this trend and what are the reasons for it? How much of this is related to underlying technological and economic trends? E. Training Requirements 26. OSHA's current standard at § 1910.217(f) requires employers to train employees on safe methods of work. However, the standard does not spell out specific training or retraining requirements. Should OSHA change its existing performance-oriented approach with specific training and retraining provisions? Why? 27. The ANSI B11.1-2001 standard includes more detailed training requirements than the OSHA standard [Ex. OSHA-2007-0003-0003]. Should OSHA adopt ANSI's approach to training? Why? 28. Are there any training or retraining requirements that are not found in the OSHA or ANSI standards that OSHA should include in the updated standard? If so, what are they and why should OSHA include them? Are there any training or retraining requirements that are found in the ANSI standard that OSHA should not include in the updated standard? If so, what are they and why should OSHA not include them in the updated standard? 29. OSHA's current standard does not specify how often training should occur. Should OSHA specifically require annual or semiannual training? Should retraining only be required when employees are observed improperly operating equipment, or are there other times when employees should be retrained? 30. When OSHA adopted the PSDI provisions, it also added specific training requirements for employers using PSDI systems. See § 1910.217(h)(13). Are those requirements sufficient to ensure operators are effectively trained in PSDI operation? Should OSHA expand or reduce the training requirements for PSDI systems? 31. The current standard requires at § 1910.217(h)(13)(ii) that employers certify employee training for PSDI. Should OSHA retain this requirement, or require other training documentation? Why or why not? F. Reporting and Recordkeeping Requirements 32. The current standard requires at § 1910.217(h)(9)(ii)(B) that employers notify OSHA 3 months before the operation of any alternative system to photo-electric light curtains. The notification must include “the name of the system to be installed, the manufacturer and the OSHA-recognized third-party validation organization immediately.” Should OSHA retain this requirement or a similar requirement in a revised standard? 33. Paragraph § 1910.217(g) requires employers to report to OSHA within 30 days any point of operation injury to operators or other employees. Do employers also use this information for their own purposes? If so, how? Should OSHA eliminate this requirement? Why or why not? 34. Under paragraph (e)(1)(i), employers must maintain a certification record of periodic and regular inspections of power presses. This certification must contain: The date of the inspection; the signature of the person who performed the inspection; and the serial number or other identifier of the power press inspected. Similarly, paragraph (e)(2)(ii) requires employers to maintain a record of required inspections, tests, and maintenance on the clutch/brake mechanism, antirepeat feature and single stroke mechanism; these inspections and tests must occur at least once a week. As with the certification required by paragraph (e)(1)(i), the record must contain: The date of the inspection, test or maintenance; the signature of the person performing the inspection, test, or maintenance; and the serial number or other identifier of the press. Should OSHA include these requirements in a revised standard? Why? Should OSHA require employers to maintain any additional information in the records, such as the types of repairs made, or is there information that should not be specifically required? Is a signature of the person performing the inspection, test, or maintenance necessary or would the name suffice for the record? 35. Currently, ANSI B11.1-2001 specifies that an inspection program be established with “regular” inspection of presses, but does not specify the time frames for such inspections [Ex. OSHA-2007-0003-0003]. Also, ANSI B11.1-2001 does not specify what information employers should maintain in inspection records [Ex. OSHA-2007-0003-0003]. Should OSHA adopt ANSI's performance-oriented approach in a revised standard? Why? If OSHA were to adopt provisions similar to the ANSI provisions, how could the Agency determine whether an employer's inspections were conducted at a reasonable frequency? 36. OSHA's current standard specifies that each employer inspect and test each press at least once a week to determine the condition of the clutch/brake mechanism, antirepeat feature and single stroke mechanism. Should OSHA expand or reduce the time interval between these inspections and tests? Should any other elements be inspected or tested this frequently? Do any of these elements need less frequent inspection or testing? 37. ANSI B11.1-2001 permits users to determine the content of inspections and testing [Ex. OSHA-2007-0003-0003]. Should OSHA adopt this type of performance-based approach in the revised standard? How would OSHA enforce such a requirement? Would adopting ANSI's approach lead to more press failures? Why? III. Public Participation Submission of Comments and Access to Docket You may submit comments in response to this document
(1)electronically at *http://www.regulations.gov,* which is the Federal eRulemaking Portal;
(2)by facsimile (FAX); or
(3)by hard copy. All comments, attachments and other material must identify the Agency name and the OSHA docket number for this rulemaking (OSHA Docket No. OSHA-2007-0003). You may supplement electronic submissions by uploading document files electronically. If, instead, you wish to mail additional materials in reference to an electronic or fax submission, you must submit three copies to the OSHA Docket Office (see ADDRESSES section). The additional materials must clearly identify your electronic comments by name, date, and docket number so OSHA can attach them to your comments. Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at
(202)693-2350 (TTY
(877)889-5627). Comments and submissions are posted without change at *http://www.regulations.gov.* Therefore, OSHA cautions commenters about submitting personal information such as social security numbers and date of birth. Although all submissions are listed in the *http://www.regulations.gov* index, some information (e.g., copyrighted material) is not publicly available to read or download through *http://www.regulations.gov.* All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the *http://www.regulations.gov* Web site to submit comments and access the docket is available at the Web site's User Tips link. Contact the OSHA Docket Office for information about materials not available through the Web site and for assistance in using the internet to locate docket submissions. Electronic copies of this **Federal Register** document are available at *http://www.regulations.gov.* This document, as well as news releases and other relevant information, also are available at OSHA's Web page at *http://www.osha.gov.* IV. Authority and Signature This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210. This action is taken pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order No. 5-2002 (67 FR 65008), and 29 CFR part 1911. Signed at Washington, DC, this 29th day of May 2007. Edwin G. Foulke, Jr., Assistant Secretary of Labor. [FR Doc. E7-10655 Filed 6-1-07; 8:45 am] BILLING CODE 4510-26-P OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE 32 CFR Chapter XVII Freedom of Information Act Regulations AGENCY: Office of the Director of National Intelligence. ACTION: Notice of proposed rulemaking. SUMMARY: This proposed regulation will provide the public the guidelines under which the Office of the Director of National Intelligence will implement the Freedom of Information Act, 5 U.S.C. 552. DATES: Submit comments on or before July 5, 2007. ADDRESSES: You may submit comments by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *Mail:* Chief FOIA Officer c/o Director of Intelligence Staff, Office of the Director of National Intelligence, Washington, DC 20511. FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett,
(703)482-1707. SUPPLEMENTARY INFORMATION: The Office of the Director of National Intelligence
(ODNI)was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638. The first Director of National Intelligence, Ambassador John D. Negroponte, was sworn into Office on April 21, 2005, and the ODNI began operations on April 22, 2005. Because the majority of documents held by the ODNI at its inception were previously maintained by the Central Intelligence Agency (CIA), and because the ODNI did not have a FOIA staff upon stand-up, the CIA agreed to handle the administrative aspects of the ODNI's FOIA processing. Through this arrangement, the ODNI makes all legal decisions regarding the handling of FOIA requests for ODNI records and the CIA assists with the administrative tasks associated with processing FOIA requests, including the intake and tracking of requests, as well as drafting correspondence to requesters. The ODNI has gradually built up its FOIA program and is now proposing its own FOIA regulations. The proposed regulations address all aspects of FOIA processing, including how and where to submit FOIA requests, fees for record services, procedures for handling business information, requests for expedited processing and the right to appeal denials of information. Therefore, as discussed in the preamble, and under the authority of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638, the ODNI proposes to establish 32 CFR Chapter XVII and add part 1700 to read as follows: CHAPTER XVII—OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE PART 1700—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Sec. 1700.1 Authority and purpose. 1700.2 Definitions. 1700.3 Contact for general information and requests. 1700.4 Suggestions and complaints. 1700.5 Preliminary information. 1700.6 Requirements as to form and content. 1700.7 Fees for records services. 1700.8 Processing of requests for records. 1700.9 Action on the request. 1700.10 Payment of fees, notification of decision, and right of appeal. 1700.11 Procedures for business information. 1700.12 Procedures for information concerning other persons. 1700.13 Allocation of resources. 1700.14 Requests for expedited processing. 1700.15 Right of appeal and appeal procedures. 1700.16 Action by appeals authority. Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub L. 108-458, 188 Stat. 3638. § 1700.1 Authority and purpose.
(a)*Authority:* This part is issued under the authority of and in order to implement the Freedom of Information Act, as amended, 5 U.S.C. 552; the National Security Act of 1947, as amended, 50 U.S.C. 401-442; and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638.
(b)*Purpose in general.* This part prescribes procedures for:
(1)ODNI administration of the FOIA;
(2)Requesting records pursuant to the FOIA; and
(3)Filing an administrative appeal of an initial adverse decision under the FOIA. § 1700.2 Definitions. For purposes of this part, the following terms have the meanings indicated:
(a)*Days* means calendar days when ODNI is operating and specifically excludes Saturdays, Sundays, and legal public holidays;
(b)*Control* means actual possession and ownership or the authority of ODNI pursuant to federal statute or privilege to regulate official or public access to a particular record or records. It does not establish an obligation to create any record or data compilation, although ODNI reserves the right to offer production of a compilation as an alternative to production of records;
(c)*Direct costs* means those expenditures which ODNI actually incurs in the processing of a FOIA request; it does not include overhead factors such as space;
(d)*Pages* means paper copies of standard office size or the dollar value equivalent in other media;
(e)*Reproduction* means generation of a copy of a requested record in a form appropriate for release;
(f)*Review* means all time expended in examining a record to determine whether any portion must be withheld pursuant to law and in effecting any required deletions but excludes personnel hours expended in resolving general legal or policy issues; it also means personnel hours of professional time;
(g)*Search* means all time expended in looking for and retrieving material that may be responsive to a request utilizing available paper and electronic indices and finding aids; it also means personnel hours of professional time or the dollar value equivalent in computer searches;
(h)*Employee* or *staff member* means any employee, detailee, assignee, employee of a contracting organization or independent contractor of the ODNI or any of its component organizations, unless otherwise excepted;
(i)*Expression of interest* means a written or electronic communication submitted by any person requesting information on or concerning the FOIA program, the availability of documents from ODNI, or both;
(j)*Fees* means those direct costs which may be assessed a requester considering the categories established by the FOIA; requesters should submit information to assist the ODNI in determining the proper fee category and the ODNI may draw reasonable inferences from the identity and activities of the requester in making such determinations; the fee categories include:
(1)*Commercial:* A request in which the disclosure sought is primarily in the commercial interest of the requester and which furthers such commercial, trade, income or profit interests;
(2)*Non-commercial educational or scientific institution:* A request from an accredited United States educational institution at any academic level or institution engaged in research concerning the social, biological, or physical sciences or an instructor or researcher or member of such institutions; it also means that the information will be used in a specific scholarly or analytical work, will contribute to the advancement of public knowledge, and will be disseminated to the general public;
(3)*Representative of the news media:* Any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but components shall also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.
(4)*All other:* A request from an individual not within paragraphs (j)(1), (2), or
(3)of this section;
(k)*Freedom of Information Act,* “FOIA,” or “the Act” means the statute as codified at 5 U.S.C. 552;
(l)*Interested party* means any official in the executive, military, congressional, or judicial branches of government, United States or foreign, or U.S. Government contractor who, in the sole discretion of the ODNI, has a subject matter or physical interest in the documents or information at issue;
(m)*ODNI* means the Office of the Director of National Intelligence and its component organizations. It does not include members of the Intelligence Community as defined by the National Security Intelligence Reform Act of 2004, section 1073, or other federal entities subsequently designated in accordance with this authority, unless specifically designated as included in this Part or in the notice of a system of records;
(n)*Originator* means the U.S. Government official who originated the document at issue or successor in office or such official who has been delegated release or declassification authority pursuant to law;
(o)*Potential requester* means a person, organization, or other entity who submits an expression of interest;
(p)*Reasonably described record* means a description of a record by unique identification number or descriptive terms that permits an ODNI staff member familiar with the subject matter area to locate documents with reasonable effort given existing indices and finding aids;
(q)*Records* means all documents, irrespective of physical or electronic form, under the control of ODNI pursuant to federal law or in connection with the transaction of public business at the time ODNI accepts an expression of interest as a formal request or initiates a search, whichever is later, and appropriate for preservation by the ODNI as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the ODNI or because of the informational value of the data contained therein; it does not include:
(1)Commercially available materials or materials made available in electronic or other public reading rooms, except to the extent that such materials are incorporated into any form of analysis or otherwise distributed or published by ODNI;
(2)Personal records maintained by ODNI staff that have not been created, used, disseminated or maintained in a manner inconsistent with their characterization as private;
(3)Objects or items, such as equipment, machinery or material, whatever the historical or evidentiary value; and
(4)Anything that is not a tangible reduction of information to accessible electronic or paper media, such as an individual's memory or oral communications.
(r)*Responsive records* means those records that ODNI has determined to be within the scope of a formal request. § 1700.3 Contact for general information and requests. For general information on this Part, to inquire about the FOIA program at ODNI, or to file a FOIA request (or expression of interest), please direct communication in writing to the Office of the Director of National Intelligence, Chief FOIA Officer c/o Director, Information Management Office, Washington, DC 20511 by mail or by facsimile at
(703)482-2144. For general information or status information on pending cases only, call the ODNI FOIA Customer Service Center at
(703)482-1707. Collect calls cannot be accepted. § 1700.4 Suggestions and complaints. ODNI welcomes suggestions or complaints with regard to its administration of the FOIA. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. ODNI will not respond to all communications but will take such actions as determined feasible and appropriate. § 1700.5 Preliminary information. Members of the public shall address all communications to the point of contact specified in § 1700.3 and clearly delineate the communication as a request under the FOIA. ODNI staff who receive a FOIA request shall expeditiously forward the request to the Director, Information Management Office. Requests and appeals (as well as referrals and consultations) received from FOIA requesters who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on all pending requests shall be terminated in such circumstances. § 1700.6 Requirements as to form and content.
(a)*Required information.* No particular form is required. A request must reasonably describe the record or records of interest and be submitted in accordance with this regulation. Documents must be described sufficiently to enable a staff member familiar with the subject to locate the documents with a reasonable amount of effort. In most cases, documents must be locatable through the indexing of ODNI systems. Extremely broad or vague requests, or requests requiring research in order to ascertain meaning may require further clarification before they are accepted as formal requests.
(b)*Additional information for fee determination.* A requester must provide sufficient personally identifying information to allow staff to determine the appropriate fee category and to contact the requester easily. A requester must agree to pay all applicable fees or fees not to exceed a certain amount or must request a fee waiver in connection with a request.
(c)*Otherwise.* Communications that do not meet the above requirements will be considered an expression of interest. ODNI staff should attempt to help a potential requester define a request properly. Although staff will take reasonable measures to clarify vague or broad requests, ODNI is not required to clarify an expression of interest that does not meet the requirements of a formal request. § 1700.7 Fees for records services.
(a)*In general.* Search, review, and reproduction fees will be charged in accordance with the provisions below relating to schedule, limitations, and category of requester. Applicable fees will be due even if a subsequent search locates no responsive records or some or all of the responsive records must be denied under one or more of the exemptions of the FOIA.
(b)*Fee waiver requests.* Records will be furnished without charge or at a reduced rate when ODNI determines:
(1)As a matter of administrative discretion, the interest of the United States Government would be served, or
(2)It is in the public interest to provide responsive records because the disclosure is likely to contribute *significantly* to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester.
(c)*Fee waiver appeals.* Denials of requests for fee waivers or reductions may be appealed to the Director of the Intelligence Staff, or his functional equivalent, through the ODNI Chief FOIA Officer. A requester is encouraged to provide any explanation or argument as to how his or her request satisfies the requirements of this regulation and the Act. See § 1700.15 for further details on appeals.
(d)*Time for fee waiver requests and appeals.* Appeals should be resolved prior to the initiation of processing and the incurring of costs. However, fee waiver requests will be accepted at any time prior to an agency decision regarding the request, except when processing has been initiated, in which case the requester must agree to be responsible for costs in the event of an adverse administrative or judicial decision.
(e)*Agreement to pay fees.* In order to protect requesters from large and/or unanticipated charges, ODNI will request a payment commitment when staff estimate that fees will exceed $100.00, not including charges associated with the first 100 pages of production and two hours of search (when applicable). ODNI will hold in abeyance for 45 days requests requiring such agreement and will thereafter deem the request closed. A request deemed closed may be reopened upon receipt of an appropriate fee commitment or a requester may limit the scope of his or her request.
(f)*Advance payment.* The ODNI may require an advance payment of up to 100 percent of the estimated fees when projected fees exceed $250.00, not including charges associated with the first 100 pages of production and two hours of search (when applicable), or when the requester previously failed to pay fees in a timely fashion, for fees of any amount. ODNI will hold in abeyance for 45 days those requests where advance payment has been requested.
(g)*Schedule of fees.*
(1)*In general.* The schedule of fees for services performed in responding to requests for records is as follows: Personnel Search and Review Clerical/Technical Quarter hour $5.00 Professional/Supervisory Quarter hour 10.00 Manager/Senior Professional Quarter hour 18.00 Computer Search and Production Search (on-line) Flat rate 10.00 Search (off-line) Flat rate 30.00 Other activity Per minute 10.00 Tapes (mainframe cassette) Each 9.00 Tapes (mainframe cartridge) Each 9.00 Tapes (mainframe reel) Each 20.00 Tapes (PC 9mm) Each 25.00 Diskette (3.5″) Each 4.00 CD (bulk recorded) Each 10.00 CD (recordable) Each 20.00 Telecommunications Per minute .50 Paper (mainframe printer) Per page .10 Paper (PC b&w laser printer) Per page .10 Paper (PC color printer) Per page 1.00 Paper Production Photocopy (standard or legal) Per page .10 Microfiche. Per frame .20 Pre-printed (if available) Per 100 pages 5.00 Published (if available) Per item NTIS
(2)*Application of schedule.* Personnel search time includes time expended in manual paper records searches, indices searches, review of computer search results for relevance, personal computer system searches, and various reproduction services. In any event where the actual cost to ODNI of a particular item is less than the above schedule (e.g., a large production run of a document resulting in a cost less than $5.00 per hundred pages), then the actual lesser cost will be charged. Items published and available at the National Technical Information Service
(NTIS)are also available from ODNI pursuant to this part at the NTIS price as authorized by statute.
(3)*Other services.* For all other types of output, production, or reproduction (e.g., photographs, maps, or published reports), ODNI will charge actual cost or amounts authorized by statute. Determinations of actual cost shall include the commercial cost of the media, the personnel time expended in making the item to be released, and an allocated cost of the equipment used in making the item, or, if the production is effected by a commercial service, then that charge shall be deemed the actual cost for purposes of this regulation.
(h)*Limitations on collection of fees.*
(1)*In general.* No fees will be charged if the cost of collecting the fee is equal to or greater than the fee itself. That cost includes the administrative costs to ODNI of billing, receiving, recording, and processing the fee for deposit to the Treasury Department and, as of the date of these regulations, is deemed to be $10.00.
(2)[Reserved]
(i)*Fee categories.* There are four categories of FOIA requesters for fee purposes: Commercial use requesters, educational and non-commercial scientific institution requesters, representatives of the news media requesters, and all other requesters. The categories are defined in § 1700.2 and applicable fees will be assessed as follows:
(1)Commercial use requesters: Charges which recover the full direct costs of searching for, reviewing, and duplicating responsive records (if any);
(2)Educational and non-commercial scientific institution requesters, and representatives of the news media requesters: Only charges for reproduction beyond the first 100 pages;
(3)All other requesters: Charges which recover the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be furnished without charge.
(j)*Associated requests.* If it appears a requester or a group of requesters acting in concert have requested portions of an apparently unitary request for the purpose of avoiding the assessment of fees, ODNI may aggregate any such requests and charge accordingly. Requests from multiple requesters will not be aggregated without clear evidence. ODNI will not aggregate multiple unrelated requests. § 1700.8 Processing of requests for records.
(a)*In general.* Requests meeting the requirements of § 1700.3 through § 1700.7 shall be accepted as formal requests and processed under the FOIA and these regulations. A request will not be considered received until it reaches the Information Management Office. Ordinarily upon its receipt a request will be date-stamped as received. It is this date that establishes when your request is received for administrative purposes, not any earlier date such as the date of the letter or its postmark date. For the quickest possible handling, both the request letter and the envelope should be marked “Freedom of Information Act Request.”
(b)*Electronic Reading Room.* ODNI maintains an online FOIA Reading Room on the ODNI Web site which contains the information that the FOIA requires be routinely made available for public inspection and copying as well as other information determined to be of general public interest.
(c)*Confirming the existence of certain documents.* In processing a request, ODNI shall decline to confirm or deny the existence of responsive records whenever the fact of their existence or nonexistence is itself classified under Executive Order 12958 and its amending orders, reveals intelligence sources and methods protected pursuant to 50 U.S.C. 403-1(i)(1), or would be an invasion of the personal privacy of third parties. In such circumstances, ODNI, in its final written response, shall so inform the requester and advise of his or her right to file an administrative appeal.
(d)*Time for response.* Whenever the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component determines to extend the time limits on that basis, ODNI will inform the requester in writing and advise the requester of the right to narrow the scope of his or her request or agree to an alternative time frame for processing.
(e)*Multitrack processing.* ODNI may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request, including through limits based on the number of pages involved. ODNI may provide requesters in its slower track with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of its faster track. § 1700.9 Action on the request.
(a)*Initial action for access.* ODNI staff identified to search for records pursuant to a FOIA request shall search all relevant record systems within their cognizance as of the date the search is commenced. A staff member tasked to conduct a search shall:
(1)Determine whether records exists;
(2)Determine whether and to what extent any FOIA exemptions apply;
(3)Make recommendations for withholding records or portions of records that originated in the staff member's organization and for which there is a legal basis for denial or make a recommendation in accordance with § 1700.8(c). In making recommendations, ODNI staff shall be guided by the procedures specified in § 1700.11 regarding confidential commercial information and § 1700.12 regarding third party information; and
(4)Forward to the Director, Information Management Office, all records responsive to the request.
(b)*Referrals and consultations.* ODNI records containing information originated by other ODNI components shall be forwarded to those entities for action in accordance with paragraph
(a)of this section and returned. Records originated by other federal agencies or ODNI records containing other federal agency information shall be forwarded to such agencies for processing and direct response to the requester or for consultation and return to the ODNI. ODNI will notify the requester if it makes a referral for direct response.
(c)*Release of information.* When the Director, Information Management Office (or Appeals Authority) makes a final determination to release records, the records will be forwarded to the requester in an appropriate format promptly upon compliance with any preliminary procedural requirements, including payment of fees. If any portion of a record is withheld initially or upon appeal, the Director, Information Management Office (or Appeals Authority) will provide a written response that shall include, at a minimum:
(1)The basis for the withholding, citing the specific statutory exemption or exemptions invoked under the FOIA with respect to each portion withheld, unless documents are withheld in accordance with § 1700.8(c);
(2)When the withholding is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order;
(3)When the denial is based on 5 U.S.C. 552(b)(3), the statute relied upon; and
(4)Notice to the requester of the right to judicial review. § 1700.10 Payment of fees, notification of decision, and right of appeal.
(a)*Fees in general.* Fees collected under this Part do not accrue to ODNI and shall be deposited immediately to the general account of the United States Treasury.
(b)*Notification of decision.* Upon completion of all required review and the receipt of accrued fees (or promise to pay such fees), ODNI will promptly inform the requester in writing of those records or portions of records that will be released and those that will be denied.
(1)For documents to be released, ODNI will provide paper copies or documents on electronic media, if requested and available;
(2)For documents not released or partially released, ODNI shall explain the reasons for any denial and give notice of a right of administrative appeal. For partial releases, redactions will be made to ensure requesters can see the placement and general length of redactions with the applicable exemption or exemptions clearly with respect to each redaction. § 1700.11 Procedures for business information.
(a)*In general.* Business information obtained by ODNI from a submitter shall not be disclosed pursuant to a FOIA request except in accordance with this section. For purposes of this section, the following definitions apply:
(1)*Business information* means commercial or financial information in which a legal entity has a recognized property interest;
(2)*Confidential commercial information* means such business information provided to the United States Government by a submitter which is reasonably believed to contain information exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm; and
(3)*Submitter* means any person or entity who provides confidential commercial information to the United States Government; it includes, but is not limited to, corporations, businesses (however organized), State governments, and foreign governments.
(b)*Designation of confidential commercial information.* A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be confidential commercial information and hence protected from required disclosure pursuant to Exemption 4 of the FOIA. Such designations shall expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(c)*Process in event of FOIA request* —(1) *Notice to submitters.* ODNI shall provide a submitter with prompt written notice of receipt of a FOIA request encompassing business information whenever:
(i)The submitter has in good faith designated the information as confidential commercial information, or
(ii)ODNI staff believe that disclosure of the information could reasonably be expected to cause substantial competitive harm, and
(iii)The information was submitted within the last 10 years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration.
(2)*Form of notice.* Communication to a submitter of commercial information shall either describe the exact nature of the confidential commercial information at issue or provide copies of the responsive records containing such information.
(3)*Response by submitter.*
(i)Within seven days of the notice described in paragraph (c)(1) of this section, all claims of confidentiality by a submitter must be supported by a detailed statement of any objection to disclosure. Such statement shall:
(A)Affirm that the information has not been disclosed to the public;
(B)Explain why the information is a trade secret or confidential commercial information;
(C)Explain in detail how disclosure of the information will result in substantial competitive harm;
(D)Affirm that the submitter will provide ODNI and the Department of Justice with such litigation support as requested; and
(E)Be certified by an officer authorized to legally bind the submitter.
(ii)It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA.
(4)*Decision and notice of intent to disclose.*
(i)ODNI shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to its final determination. If the Director, Information Management Office, decides to disclose a document over the objection of a submitter, ODNI shall provide the submitter a written notice that shall include:
(A)A statement of the reasons for which the submitter's disclosure objections were not sustained;
(B)A description of the information to be disclosed; and
(C)A specified disclosure date that is seven days after the date of the instant notice.
(ii)When notice is given to a submitter under this section, the ODNI shall also notify the requester and, if the ODNI notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure.
(5)*Notice of FOIA lawsuit.* If a requester initiates legal action seeking to compel disclosure of information asserted to be within the scope of this section, ODNI shall promptly notify the submitter. The submitter, as specified above, shall provide such litigation assistance as required by ODNI and the Department of Justice.
(6)*Exceptions to notice requirement.* The notice requirements of this section shall not apply if ODNI determines that:
(i)The information should not be disclosed, pursuant to Exemption 4 and/or any other exemption of the FOIA;
(ii)The information has been published lawfully or has been officially made available to the public;
(iii)The disclosure of the information is otherwise required by law or federal regulation; or
(iv)The designation made by the submitter under this section appears frivolous, except that, in such a case, the ODNI will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information. § 1700.12 Procedures for information concerning other persons.
(a)*In general.* Personal information concerning individuals other than the requester shall not be disclosed under the FOIA if the proposed release would constitute a clearly unwarranted invasion of personal privacy, or, if the information was compiled for law enforcement purposes, it could reasonably be expected to constitute an unwarranted invasion of personal privacy. *See* 5 U.S.C. 552(b)(6) and (b)(7)(C). For purposes of this section, the following definitions apply:
(1)*Personal information* means any information about an individual that is not a matter of public record, or easily discernible to the public, or protected from disclosure because of the implications that arise from Government possession of such information.
(2)*Public interest* means the public interest in understanding the operations and activities of the United States Government and not simply any matter that might be of general interest to the requester or members of the public.
(b)*Determination to be made.* In making the required determination under this section and pursuant to Exemptions 6 and 7(C) of the FOIA, ODNI will balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.
(c)*Otherwise.* A requester seeking information on a third party is encouraged to provide a signed affidavit or declaration from the third party consenting to disclosure of the information. However, any such statements shall be narrowly construed and the Director, Information Management Office, in the exercise of that officer's discretion and administrative authority, may seek clarification from the third party prior to any or all releases. § 1700.13 Allocation of resources.
(a)*In general.* ODNI shall devote such personnel and other resources to the responsibilities imposed by the FOIA as may be appropriate and reasonable considering:
(1)The totality of resources available;
(2)The demands imposed on ODNI in fulfillment of its statutory responsibilities or otherwise by law;
(3)The demand imposed upon ODNI component organizations by the ODNI or otherwise by law;
(4)The information review and release demands imposed by Congress or other governmental authority; and
(5)The rights of all members of the public under the various information review and disclosure laws.
(b)*Discharge of FOIA responsibilities.* ODNI and its components shall exercise due diligence in their responsibilities under FOIA and must allocate a reasonable level of resources to requests under the Act on a strictly “first-in, first-out” basis and utilizing two or more processing queues to ensure that complex and simple requests receive equitable attention. The ODNI Chief FOIA Officer is responsible for management of the ODNI-wide program defined by this Part and for establishing priorities for cases consistent with established law. The Director, Information Management Office, shall provide policy and resource direction as necessary. § 1700.14 Requests for expedited processing.
(a)*In general.* All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this rule will only be made in accordance with the following procedures.
(b)*Procedure* . Requests for expedited processing will be approved only when a requester establishes compelling need for records to the satisfaction of the Director, Information Management Office, and it appears to him or her that substantive records relevant to the stated needs may exist and be deemed releasable. A requester may make a request with a certification of “compelling need” and the Director, Information Management Office, will decide whether to grant expedited processing and will notify the requester of his or her decision. The certification shall set forth with specificity the relevant facts upon which the requester relies and will attest that the statement is true and accurate. A “compelling need” is deemed to exist:
(1)When failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2)With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. § 1700.15 Right to appeal and appeal procedures.
(a)*Right to appeal.* Individuals who disagree with a decision not to produce a document or parts of a document, to deny a fee category request, to deny a request for a fee waiver or fee reduction, to deny expedited processing, or a decision regarding a fee estimate or a determination that no records exist, should submit a written request for review to the *Chief FOIA Officer c/o Director, Information Management Office* , Office of the Director of National Intelligence, Washington, DC 20511. The words “FOIA APPEAL” should be written on the letter and the envelope. The appeal must be signed by the individual or his legal counsel.
(b)*Requirements as to time and form.* Appeals of adverse decisions must be received within 45 days of the date of the ODNI's initial decision. Requesters should include a statement of the reasons supporting the request for reversal of the initial decision.
(c)*Exceptions* . No appeal shall be accepted if the requester has outstanding fees for information services at this or another federal agency. In addition, no appeal shall be accepted if the information in question has been the subject of an administrative review within the previous two years or is the subject of pending litigation in the Federal courts. § 1700.16 Action by appeals authority.
(a)The Director of the Intelligence Staff, after consultation with any ODNI component organization involved in the initial decision as well as with the Office of General Counsel, will make a final determination on the appeal. Appeals of denials of requests for expedited processing shall be acted on expeditiously.
(b)The Director, Information Management Office, will ordinarily be the initial deciding official on FOIA requests to the ODNI. However, in the event the Director of the Intelligence Staff makes an initial decision that is later appealed, the Principal Deputy Director for National Intelligence will decide the appeal in accordance with the procedures in this section. Dated: May 17, 2007. David Shedd, Acting Director of the Intelligence Staff. [FR Doc. E7-10420 Filed 6-1-07; 8:45 am] BILLING CODE 3910-A7-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA-2007-28103] Federal Motor Vehicle Safety Standards for School Bus Passenger Protection AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Notice of public meeting, request for comments. SUMMARY: NHTSA is having a public meeting to bring together a roundtable of State and local government policymakers, school bus and seat manufacturers, pupil transportation associations, and public interest groups to discuss the issue of seat belts on large school buses. The discussion on how best to provide safety during a crash, by compartmentalization or through the use of seat belts, has been ongoing for many years. This public meeting is an opportunity for an exchange among interested parties, as well as the public, on the safety, policy and economic issues related to the use of seat belts on school buses. The date, time, location, and framework for this public meeting are announced in this notice. DATES: *Public Meeting:* The public meeting will be held on July 11, 2007, from 8:30 a.m. to 4:30 p.m. at L'Enfant Plaza Hotel, 480 L'Enfant Plaza, SW., Washington, DC. *Comments:* Written comments may be submitted to the agency and must be received no later than September 10, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Harriett Fitzgerald, Office of Crashworthiness Standards, NHTSA, telephone 202-366-3269, e-mail *Harriett.Fitzgerald@dot.gov,* or Mr. John Hinch, Director, Office of Human Vehicle Performance Research, NHTSA, telephone 202-366-5195, e-mail *John.Hinch@dot.gov.* Both officials may also be reached at 1200 New Jersey Ave., SE., Washington, DC 20590. ADDRESSES: *Public meeting:* The public meeting will be held at L'Enfant Plaza Hotel, 480 L'Enfant Plaza, SW., Washington, DC 20024, telephone: 202-484-1000. *Written comments:* Written comments on this meeting and topic must refer to the docket number of this notice and be submitted by any of the following methods: • Web Site: *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1-202-493-2251. • Mail: Docket Management Facility; U.S. DOT, 1200 New Jersey Ave., SE., West Building, Room W12-140, Washington, DC 20590. Hand Delivery: 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • Federal eRulemaking Portal: Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. You may call Docket Management at 202-366-9317 and visit the Docket from 10 a.m. to 5 p.m., Monday through Friday. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act discussion under the heading “How do I prepare and submit comments?” at the end of this notice. Please see also the discussion there of confidential business information. SUPPLEMENTARY INFORMATION: Background In the School Bus Safety Amendments of 1974, Congress indicated that school transportation should be held to the highest level of safety, since such transportation involves the Nation's most precious resource—children who represent our future. During the mid 1970's, to address the safety of school bus passengers in a crash, NHTSA established Federal Motor Vehicle Safety Standards (FMVSS's) to increase the strength of school buses and to improve occupant protection. Three standards addressing rollover protection, body joint strength, and passenger seating and crash protection are unique to school buses. Another six standards have additional requirements that specifically provide for the protection of school bus passengers. Still other standards, such as brakes, tires, fuel system integrity and other safety related systems, ensure that school buses meet rigorous requirements for safety when it comes to avoiding a crash in the first place, or enhancing survivability in the event of a crash. Under existing regulation, the primary means of occupant protection for large school buses is a safety concept known as compartmentalization. Compartmentalization protects occupants by using strong, closely spaced seats equipped with high, absorbing seat backs. Compartmentalization provides passive protection, meaning that the protection is there when needed without the need for passengers to take any action such as buckling a seat belt. This system has proven very effective at preventing serious injuries and fatalities for school aged passengers. Current data collected by NHTSA show that every year, approximately 482,000 public school buses transporting 25.5 million students to and from school and school-related activities 1 travel an estimated 4.3 billion miles. 2 The school bus occupant fatality rate of 0.2 fatalities per 100 million vehicle miles traveled
(VMT)is much lower than the overall rate for motor vehicles, which is 1.5 per 100 million VMT. An average of 21 school age passengers die in school transportation-related crashes each year: 6 school bus passengers and 15 pedestrians. NHTSA estimates that there are approximately 8,000 crash related injuries in the school buses each year. Approximately half of both the crashes and fatalities occur in frontal collisions. 3 1 School Transportation News, Buyers Guide 2005. 2 School Bus Fleet 2005 Fact Book. 3 DOT HS 810 626 Traffic Safety Facts 2005, School Transportation-Related Crashes. U.S. Department of Transportation, National Highway Traffic Safety Administration. Seat Belts on School Buses NHTSA published the final rule establishing FMVSS No. 222, “School bus seating and crash protection,” on January 28, 1976 (41 FR 4016). This regulation became effective for all newly manufactured school buses on and after April 1, 1977. In the rulemaking leading to the 1976 final rule, four notices of proposed rulemaking
(NPRM)were published. 4 Throughout the course of that rulemaking, the issue of requiring seat belts and/or belt anchorages on large school buses was considered. Although the agency ultimately decided not to require safety belts or anchorage systems because compartmentalization provided very effective safety protection for school children, the final rule did not prohibit State and local jurisdictions from installing seat belts. Providing seat belts on buses will not, by itself, improve safety for school bus passengers. If seat belt systems are to be effective, States and local jurisdictions would need to ensure that they are worn properly by all passengers. 4 February 22, 1973 (38 FR 4776), July 30, 1974 (39 FR 27586), April 23, 1975 (40 FR 17855) and October 8, 1975 (40 FR 47141). Since the implementation of their respective State laws, New York (1987), New Jersey
(1994)and Florida
(2001)have required lap belts, and California
(2005)has required lap and shoulder belts, on all newly purchased school buses. NHTSA does not maintain a record of local school districts that also may require seat belts on buses. However, a 1994 University of South Florida
(USF)study 5 found that many districts might require such systems even though it was not mandatory in their State at the time of the study. At the time of the USF study, only New York required seat belts in all school buses. 5 “To Belt or Not To Belt, Experiences of School Districts that Operate Large School Buses Equipped with Seat Belts,” Final Report, August 1994, Center for Urban Transportation Research, College of Engineering, University of South Florida. In 1987, the National Transportation Safety Board
(NTSB)reported on a study of forty-three post-standard school bus crashes investigated by the Safety Board. 6 NTSB concluded that most fatalities and injuries in school bus crashes occurred because the occupant seating positions were directly in line with the crash forces, and that seat belts would not have prevented those injuries and fatalities. In 1999, NTSB reported on six school bus accidents it investigated in which passenger fatalities or serious injuries occurred away from the area of vehicle impact. 7 NTSB again found compartmentalization to be an effective means of protecting passengers in school bus crashes. However, because many of those passengers injured in the six crashes were believed to have been thrown from their compartments, NTSB believed other means of occupant protection should be examined. A 1989 National Academy of Sciences
(NAS)study 8 concluded that the overall potential benefits of requiring seat belts on large school buses were insufficient to justify a Federal mandate for installation. The NAS also stated that funds used to purchase and maintain seat belts might be better spent on other school bus safety programs with the potential to save more lives and reduce more injuries. 6 Safety Study—Crashworthiness of Large Post standard School Buses; National Transportation. Safety Board Report No. NTSB/SS-86/03, Washington, DC, 1987. 7 Highway Special Investigation Report—Bus Crashworthiness Issues; National Transportation. Safety Board Report No. NTSB/SIR-99/04, Washington, DC, 1999. 8 Special Report 222: Improving School Bus Safety, National Research Council, Washington, DC, 1989. In laboratory simulations of a severe frontal impact crash, NHTSA determined that adding lap belts on large school buses would have little, if any, benefit in reducing serious-to-fatal injuries in severe frontal crashes, and could raise the potential risk for head injury. 9 But at the same time, lap belts have been on large school buses for over 30 years without any documented serious injuries resulting from the use of the seat belt restraint systems. NHTSA's laboratory simulations also showed that the use of combination lap/shoulder belts, if properly worn, could provide some safety benefit to both large and small school bus occupants regardless of their size. However, incorporation of lap/shoulder belts can significantly reduce the seating capacity of school buses. 9 School Bus Safety: Crashworthiness Research, National Highway Traffic Safety Administration, April 2002. Upon completion of the laboratory simulations, NHTSA issued a press release stating that as a result of research findings, the agency was considering the following changes to the existing Federal safety standards: • Increasing the seat back height from 508 mm (20 inches) to 610 mm (24 inches) to reduce the potential for passenger override 10 in the event of a crash. 10 Override means an occupants head or torso translates forward beyond the forward seat back providing compartmentalization. • Requiring school buses with a gross vehicle weight rating
(GVWR)of 4,536 kg (10,000 pounds) or less to have lap/shoulder restraints. (Currently, seats on these buses must be equipped with lap belts only.) • Developing standardized test procedures for voluntarily installed lap/shoulder belts. Subsequently, the agency has developed performance requirements to support a notice of proposed rulemaking that would upgrade the school buses Federal safety standards accordingly. School Transportation Safety Risks In July 2002, NAS published Special Report 269, “The Relative Risks of School Travel: A National Perspective and Guidance for Local Community Risk Assessment, National Research Council.” 11 The study analyzed the safety of various transportation modes used by school children to get to and from school and school-related activities. The report concluded that each year there are approximately 800 school-aged children killed in motor vehicle crashes during normal school drive time hours in the various modes of transportation. 12 About 2 percent were school bus-related, and 11 percent were children walking or bicycling; the majority of the fatalities were children in passenger cars, especially those with teen drivers. The report stated that the risk factors associated with these modes are complex and highly interrelated. Changes in any one characteristic of school travel can lead to dramatic changes in the overall risk to the student population. For example, anything that would reduce the number of school bus riders (including reduced seating capacity) could lead to more students seeking a less safe alternative form of transportation for getting to and from school. Thus, it is important for school transportation decisions to take into account all potential aspects of changes to requirements to school transportation. 11 Special Report 269: The Relative Risks of School Travel: A National Perspective and Guidance for Local Community Risk Assessment, National Research Council, Washington, DC, September 2002. 12 These 800 fatalities were not necessarily transportation to and from school as the destination of the trip was not recorded. Public Meeting There is continuing public interest and discussion of on whether seat belts should be required on large school buses. NHTSA is having this public meeting to discuss the safety, policy and economic issues associated with the use of seat belts in large school buses. The meeting will bring together State and local government policy makers, industry associations, school bus and equipment manufacturers, consumer advocates, and school transportation providers. The meeting will be open to the public, but participation in the panels will be by invitation only. Time will be designated for open floor discussion by the general audience. Meeting participants and the public are also invited to submit comments on this issue to the docket. The sections below describe the panels for the roundtable meeting. *State and Local Policy:* State and local policy perspectives regarding seat belts on school buses will be discussed. Panelists will address the requirements for providing school transportation, their considerations in determining whether or not to require seat belts, and the challenges faced in implementing the use of belts on school buses. Panelists will discuss studies or surveys that contributed to their decisions regarding whether or not to require belts on large school buses. Also, the type of seat belt system (lap or lap shoulder) selected for use, if applicable, how that selection was made, the effects of reduced seating capacity in lap/shoulder belt-equipped school buses and any adverse effects resulting from the need to provide transportation for the same number of students after the installation of belt systems will be discussed. *Seat Belt Systems for Buses:* Information related to the type of seat belt system designs that are currently being offered in large school buses, and technologies with seats or seat belts will be presented in this panel. Discussion during this panel will also focus on costs of buses with and without belts, sales, the performance specification for seat belts used on buses, experience with manufacturing of belts for buses, and lessons learned from installation of belts on buses. Manufacturers' perspective regarding retrofitting existing school buses with new seat belts will also be discussed. *Economics of Belts on Buses:* This panel will focus on the economic impact that implementation of seat belt requirements for school buses have on States and local school districts. Discussion will include the purchase and maintenance costs associated with the seat belts in large school buses, consequences or implications of increased costs for belt-equipped buses, and how school districts handle the effects caused by the increased cost. Discussion will also include the service life cycle of school buses, any changes resulting from incorporating seat belts, and whether there are State laws/regulations that mandate a maximum life cycle for either the belts or buses. *Seat Belt Usage—Experience, Education and Enforcement:* For schools and States that use seat belts on school buses, the final panel will discuss their experiences in training and educating children, parents, and drivers, including the impact on emergency evacuation training and procedures. Experience in actual belt usage and enforcement will also be included. Finally, it has often been argued that not requiring seat belt use on school buses sends a mixed message about the importance of using seat belts and establishing a habit of buckling up. Studies or other data to support this will be discussed. Procedural Matters The meeting will be open to the public with advanced registration for seating on a space-available basis. Individuals wishing to register to assure a seat in the public seating area should provide their name, affiliation, phone number and e-mail address to Ms. Fitzgerald using the contact information at the beginning of this notice. Should it be necessary to cancel the meeting due to an emergency or some other reason, NHTSA will take all available means to notify registered participants by e-mail or telephone. The meeting will be held at a site accessible to individuals with disabilities. Individuals who require accommodations such as sign language interpreters should contact Ms. Fitzgerald by June 30, 2007. A transcript of the meeting and other information received by NHTSA at the meeting will be placed in the docket for this notice at a later date. Tentative Agenda 8:30-9:15 a.m. Welcome and Opening Remarks 9:15-9:45 a.m. Safety of School Buses ~ NHTSA overview 9:45-10 a.m. Break 10-11:15 a.m. Panel I. State and Local Policy 11:15-12 p.m. Panel II. Seat Belt Systems for Buses 12-12:30 p.m. Roundtable discussion and questions from floor 12:30-1:30 p.m. Lunch on your own 1:30-2 p.m. Panel III. Economics of Belts on Buses 2-2:15 p.m. Roundtable discussion 2:15-2:30 p.m. Break 2:30-3:30 p.m. Panel IV. Seat Belt Usage—Experience, Education and Enforcement 3:30-3:45 p.m. Roundtable discussion 3:45-4:15 p.m. Open discussion and questions from the floor 4:15-4:30 p.m. Closing Remarks—Administrator Nason How can I submit comments on this subject? It is not necessary to attend or to speak at the public meeting to be able to comment on the issues. NHTSA invites readers to submit written comments which the agency will consider in its deliberations on seat belts on school buses. How do I prepare and submit comments? Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your primary comments must not be more than 15 pages long (49 CFR 553.21). However, you may attach additional documents to your primary comments. There is no limit on the length of the attachments. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* How can I be sure that my comments were received? If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. How do I submit confidential business information? If you wish to submit any information under a claim of confidentiality, send three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Ave., SE., Washington, DC 20590. Include a cover letter supplying the information specified in our confidential business information regulation (49 CFR part 512). In addition, send two copies from which you have deleted the claimed confidential business information to Docket Management, 1200 New Jersey Ave. SE., West Building, Room W12-140, Washington, DC 20590, or submit them electronically, in the manner described at the beginning of this notice. Will the agency consider late comments? We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the docket for new material. How can I read the comments submitted by other people? You may read the comments by visiting Docket Management in person at 1200 New Jersey Ave., SE., West Building, Room W12-140, Washington, DC from 10 a.m. to 5 p.m., Monday through Friday. You may also see the comments on the Internet by taking the following steps: Go to the Docket Management System
(DMS)Web page of the Department of Transportation ( *http://dms.dot.gov* ). On that page, click on “Simple Search.” On the next page ( *http://dms.dot.gov/search/searchFormSimple.cfm* /) type in the five-digit docket number shown at the beginning of this notice. Click on “Search.” On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may also download the comments. Authority: 49 U.S.C. 30111, 30168; delegation of authority at 49 CFR 1.50 and 501.8. Nicole R. Nason, Administrator. [FR Doc. E7-10568 Filed 6-1-07; 8:45 am] BILLING CODE 4910-59-P 72 106 Monday, June 4, 2007 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [FDMS Docket No. FSIS-2007-0006] International Standard-Setting Activities AGENCY: Food Safety and Inspection Service, USDA. ACTION: Notice. SUMMARY: This notice informs the public of the sanitary and phytosanitary standard-setting activities of the Codex Alimentarius Commission (Codex), in accordance with section 491 of the Trade Agreements Act of 1979, as amended, and the Uruguay Round Agreements Act, Public Law 103-465, 108 Stat. 4809. This notice also provides a list of other standard-setting activities of Codex, including commodity standards, guidelines, codes of practice, and revised texts. This notice, which covers the time periods from June 1, 2006, to May 31, 2007, and June 1, 2007, to May 31, 2008, seeks comments on standards under consideration and recommendations for new standards. ADDRESSES: Comments may be submitted by any of the following methods: • *Federal eRulemaking Portal:* This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. FSIS prefers to receive comments through the Federal eRulemaking Portal. Go to *http://www.regulations.gov* and, in the “Search for Open Regulations” box, select “Food Safety and Inspection Service” from the agency drop-down menu, and then click on “Submit.” In the Docket ID column, select FDMS Docket Number FSIS-2007-0006 to submit or view public comments and to view supporting and related materials available electronically. After the close of the comment period, the docket can be viewed using the “Advanced Search” function in Regulations.gov. • *Mail, including floppy disks or CD-ROM's, and hand- or courier-delivered items:* Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250. All submissions must include the Agency name and docket number FSIS-2007-0006. Please state that your comments refer to Codex and, if your comments relate to specific Codex committees, please identify those committees in your comments and submit a copy of your comments to the delegate from that particular committee. All comments submitted in response to this proposal will be posted to the regulations.gov Web site. The comments also will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday. The comments also will be posted on the Agency's Web site at *http://www.fsis.usda.gov/regulations_&_policies/2007_Notices_Index/index.asp* . FOR FURTHER INFORMATION CONTACT: F. Edward Scarbrough, PhD, United States Manager for Codex, U.S. Department of Agriculture, Office of the Under Secretary for Food Safety, Room 4861, South Agriculture Building, 1400 Independence Avenue, SW., Washington, DC 20250-3700;
(202)205-7760. For information pertaining to particular committees, the delegate of that committee may be contacted. (A complete list of U.S. delegates and alternate delegates can be found in Attachment 2 to this notice.) Documents pertaining to Codex are accessible via the World Wide Web at the following address: *http://www.codexalimentarius.net/current.asp.* The U.S. Codex Office also maintains a Web site at *http://www.fsis.usda.gov/Regulations_&_Policies/Codex_Alimentarius/index.asp.* SUPPLEMENTARY INFORMATION: Background The World Trade Organization
(WTO)was established on January 1, 1995, as the common international institutional framework for the conduct of trade relations among its members in matters related to the Uruguay Round Trade Agreements. The WTO is the successor organization to the General Agreement on Tariffs and Trade (GATT). U.S. membership in the WTO was approved and the Uruguay Round Agreements Act was signed into law by the President on December 8, 1994. The Uruguay Round Agreements became effective, with respect to the United States, on January 1, 1995. Pursuant to section 491 of the Trade Agreements Act of 1979, as amended, the President is required to designate an agency to be “responsible for informing the public of the sanitary and phytosanitary
(SPS)standard-setting activities of each international standard-setting organization.” The main organizations are Codex, the World Organisation for Animal Health, and the International Plant Protection Convention. The President, pursuant to Proclamation No. 6780 of March 23, 1995 (60 FR 15845), designated the U.S. Department of Agriculture as the agency responsible for informing the public of SPS standard-setting activities of each international standard-setting organization. The Secretary of Agriculture has delegated to the Administrator, Food Safety and Inspection Service (FSIS), the responsibility to inform the public of the SPS standard-setting activities of Codex. The FSIS Administrator has, in turn, assigned the responsibility for informing the public of the SPS standard-setting activities of Codex to the U.S. Codex Office, FSIS. Codex was created in 1962 by two U.N. organizations, the Food and Agriculture Organization
(FAO)and the World Health Organization (WHO). Codex is the principal international organization for encouraging fair international trade in food and protecting the health and economic interests of consumers. Through adoption of food standards, codes of practice, and other guidelines developed by its committees and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers, ensure fair trade practices in the food trade, and promote coordination of food standards work undertaken by international governmental and non-governmental organizations. In the United States, the United States Department of Agriculture (USDA); the Food and Drug Administration (FDA), Department of Health and Human Services (HHS); and the Environmental Protection Agency
(EPA)manage and carry out U.S. Codex activities. As the agency responsible for informing the public of the SPS standard-setting activities of Codex, FSIS publishes this notice in the **Federal Register** annually. Attachment 1 (Sanitary and Phytosanitary Activities of Codex) sets forth the following information: 1. the SPS standards under consideration or planned for consideration; and 2. for each SPS standard specified: a. a description of the consideration or planned consideration of the standard; b. whether the United States is participating or plans to participate in the consideration of the standard; c. the agenda for United States participation, if any; and d. the agency responsible for representing the United States with respect to the standard. *To obtain copies of those standards listed in Attachment 1 that are under consideration by Codex, please contact the Codex delegate or the U.S. Codex Office.* This notice also solicits public comment on those standards that are currently under consideration or planned for consideration and recommendations for new standards. The delegate, in conjunction with the responsible agency, will take the comments received into account in participating in the consideration of the standards and in proposing matters to be considered by Codex. The United States delegate will facilitate public participation in the United States Government's activities relating to Codex Alimentarius. The United States delegate will maintain a list of individuals, groups, and organizations that have expressed an interest in the activities of the Codex committees and will disseminate information regarding United States delegation activities to interested parties. This information will include the status of each agenda item; the United States Government's position or preliminary position on the agenda items; and the time and place of planning meetings and debriefing meetings following Codex committee sessions. In addition, the U.S. Codex Office makes much of the same information available through its Web page, *http://www.fsis.usda.gov/Regulations_&_Policies/Codex_Alimentarius/index.asp.* Please visit the web page or notify the appropriate U.S. delegate or the Office of U.S. Codex Alimentarius, Room 4861, South Agriculture Building, 1400 Independence Avenue, SW., Washington, DC 20250-3700, if you would like to access or receive information about specific committees. The information provided in Attachment 1 describes the status of Codex standard-setting activities by the Codex Committees for the time periods from June 1, 2006, to May 31, 2007, and June 1, 2007, to May 31, 2008. Attachment 2 provides the list of U.S. Codex Officials (includes U.S. delegates and alternate delegates). A list of forthcoming Codex sessions may be found at: *http://www.codexalimentarius.net/web/current.jsp?lang=en.* Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations_&_policies/2007_Notices_Index/index.asp* . The Regulations.gov Web site is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at *http://www.regulations.gov.* FSIS also will make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS Web page. Through Listserv and the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/* . Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done at Washington, DC on: May 23, 2007. F. Edward Scarbrough, United States Manager for Codex. Attachment 1 Sanitary and Phytosanitary Activities of Codex Alimentarius Commission and Executive Committee The Codex Alimentarius Commission will hold its Thirtieth Session July 2-7, 2007, in Rome, Italy. At that time, it will consider procedural matters, and the standards, codes of practice, and related matters brought to its attention by the general subject committees, commodity committees, *ad hoc* Task Forces and member delegations. It will also consider options to implement recommendations from the review of Codex committee structure and mandates of Codex committees and task forces, as well as budgetary and strategic planning issues. At this Session, the Commission will elect a Chair and three Vice Chairs. Prior to the Commission meeting, the Executive Committee will have met at its Fifty-ninth Session on June 26-30, 2007. It is composed of the chairperson, vice-chairpersons, and seven members elected from the Commission, one from each of the following geographic regions: Africa, Asia, Europe, Latin America and the Caribbean, Near East, North America, and South-West Pacific. Additionally, regional coordinators from the six regional committees serve as members of the Executive Committee. It will consider the Codex Strategic Plan 2008-1013; review the Codex committee structure and mandate of Codex committees and task forces; review matters arising from reports of Codex Committees, proposals for new work, and standards management issues; and review the Trust Fund for the Participation of Developing Countries and Countries in Transition in the Work of the Codex Alimentarius. *Responsible Agency:* USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Residues of Veterinary Drugs in Foods The Codex Committee on Residues of Veterinary Drugs in Foods determines priorities for the consideration of residues of veterinary drugs in foods and recommends Maximum Residue Limits
(MRLs)for veterinary drugs. A veterinary drug is defined as any substance applied or administered to a food producing animal, such as meat or dairy animals, poultry, fish or bees, for therapeutic, prophylactic or diagnostic purposes or for modification of physiological functions or behavior. A Codex Maximum Limit for Veterinary Drugs (MRLVD) is the maximum concentration of residue resulting from the use of a veterinary drug (expressed in mg/kg or ug/kg on a fresh weight basis) that is adopted by the Codex Alimentarius Commission to be permitted or recognized as acceptable in or on a food. An MRLVD is based on the Acceptable Daily Intake
(ADI)and indicates the amount of residue in food that is considered to be without appreciable toxicological hazard. An MRLVD also takes into account other relevant public health risks as well as food technological aspects. When establishing an MRLVD, consideration is also given to residues that occur in food of plant origin and/or the environment. Furthermore, the MRLVD may be reduced to be consistent with good practices in the use of veterinary drugs and to the extent that practical analytical methods are available. Acceptable Daily Intake (ADI): An estimate by the Joint FAO/WHO Expert Committee on Food Additives (JECFA) of the amount of a veterinary drug, expressed on a body weight basis, that can be ingested daily over a lifetime without appreciable health risk (standard man = 60 kg). The Committee will meet in the United States on September 3-7, 2007. The Committee will continue work on the following: The Committee worked on: • Draft MRLs for Flumequine, Melengestrol acetate, Colistin, Ractopamine, Erithromycin, Triclabendazole. • Proposed Draft Guidelines for the Design and Implementation of National Regulatory Food Safety Assurance Programmes Associated with the Use of Veterinary Drugs in Food Producing Animals. • Risk Analysis Principles Applied by the Codex Committee on Residues of Veterinary Drugs in Foods. • Risk Assessment Policy for the Setting of MRLs in Food. • Priority List of Veterinary Drugs Requiring Evaluation or Reevaluation. • Compendium of Methods of Analysis Identified as Suitable to Support Codex MRLs. • Discussion Paper on Risk Management Topics and Options for the CCRVDF. • Report of the Working Group on Residues of Veterinary Drugs without ADI/MRL. *Responsible Agencies:* HHS/FDA; USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Contaminants in Foods The Codex Committee on Contaminants in Foods
(CCCF)was established by the 29th Session of the Commission when it decided to split the former Codex Committee on Additives and Contaminants into two committees. The CCCF establishes or endorses permitted maximum levels for contaminants and naturally occurring toxicants in food and feed, prepares priority lists of contaminants and naturally occurring toxicants for risk assessment by the Joint FAO/WHO Expert Committee on Food Additives (JECFA), considers methods of analysis and sampling for the determination of contaminants and naturally occurring toxicants in food and feed, considers and elaborates standards or codes of practice for related subjects, and considers other matters assigned to it by the Commission in relation to contaminants and naturally occurring toxicants in food and feed. The Committee held its first session in Beijing, China, on April 16-20, 2007. The relevant document is ALINORM 07/30/41. The following items will be considered by the 30th Session of the Commission on July 2-7, 2007. To be considered at Step 8: • Proposed Draft Maximum Levels for Tin in Canned Foods (other than beverages) and in Canned Beverages. To be considered at Step 5/8: • Proposed Draft Code of Practice for the Prevention and Control of Ochratoxin A Contamination in Wine. To be considered at Step 5: • Proposed Draft Maximum Level for 3-MCPD in Liquid Condiments Containing Acid-HVP (excluding naturally fermented soya sauce). • Proposed Draft Code of Practice for the Reduction of Chloropropanols During the Production of Acid-Hydrolysed Vegetable Proteins
(HVPs)and Products That Contain Acid-HVPs. To be considered for New Work: • Elaboration of a Code of Practice on the Prevention and Reduction of Aflatoxin Contamination in Dried Figs. The Committee is continuing to work on: • Consideration of the Codex General Standard for Contaminants and Toxins in Foods. • Proposed Draft Levels for Total Aflatoxins in Almonds, Hazelnuts and Pistachios “For further processing” and “Ready-to-eat”. • Proposed Draft Sampling Plan for Aflatoxin Contamination in Almonds, Brazil Nuts, Hazelnuts and Pistachios. • Discussion Paper on Maximum Levels for Total Aflatoxins in “Ready-to-eat” Almonds, Hazelnuts and Pistachios. • Discussion Paper on Aflatoxin Contamination in Brazil Nuts. • Discussion Paper on Ochratoxin A in Coffee. • Discussion Paper on Ochratoxin A in Cocoa. • Proposed Draft Code of Practice for the Reduction of Acrylamide in Food. • Proposed Draft Code of Practice for the Reduction of Contamination of Foods with PAH from Smoking and Direct Drying. General Issues: • Priority List of Contaminants and Naturally Occurring Toxicants Proposed for Evaluation by JECFA. *Responsible Agencies:* HHS/FDA; USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Food Additives The Codex Committee on Food Additives was re-established by the 29th Session of the Commission, which split the former Codex Committee on Additives and Contaminants into two committees. The Committee is to establish or endorse permitted maximum levels for individual food additives, prepare a priority list of food additives for risk assessment by JECFA, assign functional classes to individual food additives, recommend specifications of identity and purity for food additives for adoption by the Commission, consider methods of analysis for the determination of additives in food, and to consider and elaborate standard codes for related subjects such as the labeling of food additives when sold as such. The Committee met in Beijing, China, on April 24-28, 2007. The relevant document is ALINORM 7/30/12. The following items will be considered by the 30th Session of the Commission in July 2007. The Committee worked on: • Revision to the Procedural Manual: Terms of Reference. • Revision to the Procedural Manual: Risk Analysis Principles Applied by the Codex Committee on Food Additives and Contaminants. • Revision to the Procedural Manual: Format for Codex Commodity Standards. • Revision to the Procedural Manual: Relations between Commodity Committees and General Committees: Food Additives. • Endorsement and/or Revision of Maximum Levels for Food Additives and Processing Aids in Codex Standards. • Inclusion of Food Additive Provisions of Commodity Standards into the Codex General Standard for Food Additives. • General Standard for Food Additives: Draft Food Additive Provisions (in Tables 1, 2 and 3). • Revisions to the General Standard for Food Additives' Food Category System: Project Document. • Guidelines for the Use of Flavourings. • Inventory of Processing Aids. • International Numbering System and Harmonization of Terms Used by Codex and JECFA. • Revision of the Class Names and International Numbering System for Food Additives. • Specifications for the Identity and Purity of Food Additives. • Priority List of Food Additives Proposed for Evaluation by JECFA. *Responsible Agency:* HHS/FDA. *U.S. Participation:* Yes. Codex Committee on Pesticide Residues The Codex Committee on Pesticide Residues recommends to the Codex Alimentarius Commission establishment of maximum limits for pesticide residues for specific food items or in groups of food. A Codex Maximum Residue Limit for Pesticide
(MRLP)is the maximum concentration of a pesticide residue (expressed as mg/kg), recommended by the Codex Alimentarius Commission to be legally permitted in or on food commodities and animal feeds. Foods derived from commodities that comply with the respective MRLPs are intended to be toxicologically acceptable, that is, consideration of the various dietary residue intake estimates and determinations both at the national and international level in comparison with the ADI*, should indicate that foods complying with Codex MRLPs are safe for human consumption. Codex MRLPs are primarily intended to apply in international trade and are derived from reviews conducted by the Joint Meeting on Pesticide Residues (JMPR).
(a)Review of residue data from supervised trials and supervised uses including those reflecting national good agricultural practices (GAP). Data from supervised trials conducted at the highest nationally recommended, authorized, or registered uses are included in the review. In order to accommodate variations in national pest control requirements, Codex MRLPs take into account the higher levels shown to arise in such supervised trials, which are considered to represent effective pest control practices.
(b)Toxicological assessments of the pesticide and its residue. The following items will be considered by the Commission at its 30th Session in July 2007. The relevant document is ALINORM 07/30/24. To be considered at Step 8: • Draft and Draft Revised Maximum Residue Limits. To be considered at Step 5/8 : • Proposed Draft Maximum Residue Limits. To be considered at Step 5: • Proposed Draft and Proposed Draft Revised Maximum Residue Limits. To be considered for Revocation: • Codex CLX-Ds. To be considered for New Work: • Priority List of Pesticides for review by JMPR. The committee is continuing work on: • Draft and Proposed Draft MRLs. • Revision of the List of Recommended Methods on Analysis for Pesticide Residues. • Revision of the Codex Priority List of Pesticides for review by JMPR. • Discussion paper on the how Codex MRLs are used at the national level. • Discussion paper on the establishment of MRLs for Processed or Ready-to-Eat Foods. • Extended Revision of the Codex Classification of foods and animal feeds. *Acceptable Daily Intake
(ADI)of a chemical is the daily intake which, during an entire lifetime, appears to be without appreciable risk to the health of the consumer on the basis of all the known facts at the time of the evaluation of the chemical by the Joint FAO/WHO Meeting on Pesticide Residues. It is expressed in milligrams of the chemical per kilogram of body weight. *Responsible Agencies:* EPA; USDA/AMS. *U.S. Participation:* Yes. Codex Committee on Methods of Analysis and Sampling The Codex Committee on Methods of Analysis and Sampling:
(a)Defines the criteria appropriate to Codex Methods of Analysis and Sampling;
(b)Serves as a coordinating body for Codex with other international groups working in methods of analysis and sampling and quality assurance systems for laboratories;
(c)Specifies, on the basis of final recommendations submitted to it by the other bodies referred to in
(b)above, Reference Methods of Analysis and Sampling appropriate to Codex Standards which are generally applicable to a number of foods;
(d)Considers, amends, if necessary, and endorses, as appropriate, methods of analysis and sampling proposed by Codex (Commodity) Committees, except that methods of analysis and sampling for residues of pesticides or veterinary drugs in food, the assessment of microbiological quality and safety in food, and the assessment of specifications for food additives do not fall within the terms of reference of this Committee;
(e)Elaborates sampling plans and procedures, as may be required;
(f)Considers specific sampling and analysis problems submitted to it by the Commission or any of its Committees; and
(g)Defines procedures, protocols, guidelines or related texts for the assessment of food laboratory proficiency, as well as quality assurance systems for laboratories. The 28th Session of the Committee met in Budapest, Hungary, on March 5-9, 2007. The relevant document is ALINORM 07/30/23. For endorsement at the 30th Commission in 2007: • Proposed Amendment to the Principles for the Establishment of Codex Sampling Procedures (Procedural Manual). • Endorsement of methods of analysis in Draft Standards and existing standards. • Reference to IUPA/ISO/AOAC Protocols (amendment to references). The Committee will continue to work on: • Draft Guidelines for Evaluating Acceptable Methods of Analysis. • Draft Guidelines for Settling of Disputes on Analytical
(Test)Results. • Proposed Draft Guideline on *Analytical Terminology.* • Conversion of methods for trace elements into criteria. • Criteria for methods of analysis for foods derived from biotechnology. • Guidance on measurement uncertainty and uncertainty of sampling. • Discussion paper on role and terms of reference of CCMAS. • Discussion paper on the reliability of analytical data. *Responsible Agencies:* HHS/FDA; USDA/GIPSA. *U.S. Participation:* Yes. Codex Committee on Food Import and Export Inspection and Certification Systems The Codex Committee on Food Import and Export Inspection and Certification Systems is charged with developing principles and guidelines for food import and export inspection and certification systems to protect consumers and to facilitate trade. Additionally, the Committee develops principles and guidelines for the application of measures by competent authorities to provide assurance that foods comply with essential requirements, especially statutory health requirements. This encompasses work on equivalence of food inspection systems, including equivalence agreements, processes and procedures to ensure that sanitary measures are implemented; guidelines on food import control systems; and guidelines on food product certification and information exchange. The development of guidelines for the appropriate utilization of quality assurance systems to ensure that foodstuffs conform to requirements and to facilitate trade also are included in the Committee's terms of reference. The Committee met November 6-10, 2006. The reference document is ALINORM 07/30/30. The following will be considered for adoption by the Commission at its 30th Session in July 2007. To be considered at step 5/8 : • Proposed Draft Guidelines for Generic Official Certificate Formats and the Design, Production, Issuance and use of Certificates. The committee is continuing work on: • Proposed Draft Appendix to the *Guidelines on the Judgment of Equivalence of Sanitary Measures Associated with Food Inspection and Certification.* • Discussion paper on the reply to the question raised by the 22nd Session of the Codex Committee on General Principles regarding the revision of the Codex Code of Ethics for International Trade of Foods. • Discussion Paper on the consistency of the draft *Model Export Certificate for Milk and Milk Products* with the proposed draft *Guidelines for Generic Official Certificate Formats and the Design, Production, Issuance and Use of Certificates.* • Discussion Paper identifying areas for guidance for national food inspection systems. • Discussion Paper on the development of *Guidelines for the Conduct of Foreign Audit Team Inspections.* • Discussion Paper on the need of guidance on traceability/product tracing. *Responsible Agencies:* HHS/FDA; USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on General Principles The Codex Committee on General Principles deals with procedure and general matters as are referred to it by the Codex Alimentarius Commission. The 24th Session was held on April 2-6, 2006, in Paris, France. The relevant document is ALINORM 07/30/33. Matters to be considered for adoption by the 29th Commission in July 2007: • Proposed Draft Working Principles for Risk Analysis for Food Safety (Guidance to National Governments) for adoption at Step 5/8 . • Amendments to the Codex *Procedural Manual* clarifying the roles of Members elected to the Codex Executive Committee on a geographic basis and Regional Coordinators as members of the Executive Committee. • Amendments to the Codex *Procedural Manual* dealing with the revision and amendment of Codex standards. • Amendments to the *General Principles of the Codex Alimentarius.* • Amendments to the *Principles Concerning the Participation of International Non-Governmental Organizations in the Work of Codex.* • Risk Analysis Principles Applied by the Committee on Pesticide Residues for inclusion in the *Procedural Manual.* • Risk Management Methodologies, including Risk Assessment Policies in the Codex Committee on Residues of Veterinary Drugs in Foods for inclusion in the Procedural Manual. • Amendment to the *Principles for the Establishment or Selection of Codex Sampling Procedures (Codex Procedural Manual).* • Procedure for Consideration of the Entry and Review of Food Additive Provisions in the General Standard for Food Additives for inclusion in the *Procedural Manual.* The Committee continued work on: • Code of Ethics for International Trade in Food (returned to Step 3). • Consideration of the structure, content and presentation of the *Procedural Manual.* • New definitions of risk analysis terms related to food safety. *Responsible Agency:* USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Food Labelling The Codex Committee on Food Labelling is responsible for drafting provisions on labelling issues assigned by the Codex Alimentarius Commission. The reference document is ALINORM 07/30/22. The Committee held its 35th Session in Ottawa, Canada, on April 30-May 4, 2007. It considered the following items: • Matters Referred by FAO and WHO: Draft Action Plan for Implementation of the Global Strategy on Diet, Physical Activity and Health. • Guidelines for the Production, Processing, Labelling and Marketing of Organically Produced Foods Proposed Revised Sections: Annex 2—Table 3 (Other substances); Table 1 (Natural Sodium Nitrate). • Draft Amendment to the General Standard (Draft Recommendations for the Labelling of Foods obtained through certain techniques of GM/GE): Definitions. • Report of the Working Group on Labelling of Foods and Food Ingredients Obtained through Certain Techniques of Genetic Modification/Genetic Engineering. • Proposed Draft Amendment to the General Standard for the Labelling of Prepackaged Foods: Quantitative Declaration of Ingredients. • Proposed Draft Amendment to the Guidelines for Organically Produced Foods (Addition of Ethylene). • Proposed Draft Definition of Advertising in relation to nutrition and health claims. *Responsible Agencies:* HHS/FDA; USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Food Hygiene The Codex Committee on Food Hygiene has four primary responsibilities. First, to draft basic provisions on food hygiene applicable to all food. These provisions normally take the form of Codes of Hygienic Practice for a specific commodity (e.g. bottled water) or group of commodities (e.g., milk and milk products). Second, to suggest and prioritize areas where there is a need for microbiological risk assessment at the international level and to consider microbiological risk management matters in relation to food hygiene and in relation to the risk assessment activities of FAO and WHO. Third, to consider, amend if necessary, and endorse food hygiene provisions that are incorporated into specific Codex commodity standards by the Codex commodity committees. Fourth, to provide such other general guidance to the Commission on matters relating to food hygiene as may be necessary. The 38th Session of the Committee met in Houston, TX, on December 4-8, 2006. The relevant document is ALNORM 07/30/13. The following items will be considered by the Commission at its 30th Session in July 2007. To be considered at Step 8: • Draft Guidelines on the Application of the General Principles of Food Hygiene to the Control of *Listeria monocytogenes* in Ready-to-Eat Foods. • Draft Code of Hygienic Practice for Eggs and Egg Products. • Draft Principles and Guidelines for the Conduct of Microbiological Risk Management. New Work: • Proposed Draft Guidelines for the Control of *Campylobacter* and *Salmonella* spp. in Broiler (Young Bird) Chicken Meat. • CCHF Risk Analysis Policies. The committee will continue to work on: • Proposed Draft Guidelines for Validation of Food Hygienic Control Measures. • Proposed Draft Code of Hygienic Practice for Powdered Formulae for Infants and Children. • Endorsement of Hygiene Provisions in Codex Standards and Codes of Practice. • Annex: Application of Food Safety Metrics in Risk Management Decision Making. • Annex: Application of Food Safety Metrics in Risk Management Decision Making—Pasteurized Liquid Whole Egg. • Microbiological Criteria for *Listeria monocytogenes* in Ready-to-Eat Foods. *Responsible Agencies:* HHS/FDA; USDA/FSIS. *U.S. Participation:* Yes. Codex Committee on Fresh Fruits and Vegetables The Codex Committee on Fresh Fruits and Vegetables is responsible for elaborating world-wide standards and codes of practice for fresh fruits and vegetables. The Committee met in Mexico City, Mexico, on September 25-29, 2006. The relevant document is ALINORM 07/30/35. The following items will be considered by the Commission at its 30th Session in July 2007. To be considered at Step 8: • Draft Codex Standard for Table Grapes including proposed draft Sections 2.1.2—Maturity Requirements and 3.1—Minimum Bunch Weight (at Step 5/8 ). To be considered at Step 5: • Proposed draft Codex Standard for Bitter Cassava. • Proposed draft Guidelines for the Inspection and Certification of Fresh Fruits and Vegetables for Conformity to Quality Standards. The Committee continues to work on: • Draft Codex Standard for Tomatoes—Section 3 Provisions concerning sizing. • Proposed Draft Standard for Apples. • Standard Layout for Codex Standards for Fresh Fruits and Vegetables. • Priority List for the Standardization of Fresh Fruits and Vegetables. *Responsible Agencies:* USDA/AMS; HHS/FDA. *U.S. Participation:* Yes. Codex Committee on Nutrition and Foods for Special Dietary Uses The Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU) is responsible for studying nutritional issues referred by the Codex Alimentarius Commission. The Committee also drafts general provisions, as appropriate, on nutritional aspects of all foods and develops standards, guidelines, or related texts for foods for special dietary uses. The Committee met October 30-November 3, 2006. The relevant document is ALINORM 07/30/26. The following items will be considered by the 30th Session of the Commission in July 2007. To be adopted at Step 8: • Draft Revised Codex Standard for Infant Formula and Formulas for Special Medical Purposes Intended for Infants. To be adopted at Step 5: • Draft Revised Advisory List of Nutrient Compounds for Use in Foods for Special Dietary Uses Intended for Infants and Young Children. New Work: • Application of Risk Analysis to the Work of the CCNFSDU. The Committee continues work on: • Draft Revised Standard for Gluten-Free Foods. • Guidelines for Use of Nutrition Claims—Draft Table of Conditions for Nutrient Content Claims (Part B containing Provisions on Dietary Fibre). • Proposed Draft Recommendations on the Scientific Basis of Health Claims. • Discussion Paper on Proposals for Additional or Revised Nutrient Reference Values (NRVs). *Responsible Agencies:* HHS/FDA; USDA/ARS. *U.S. Participation:* Yes. Codex Committee on Fish and Fishery Products The Fish and Fishery Products Committee is responsible for elaborating standards for fresh, frozen and otherwise processed fish, crustaceans and molluscs. The Committee met on September 18-22, 2006. The relevant document is ALINORM 07/30/18. The following items will be considered by the Commission at its 30th Session in July 2007. To be considered at Step 5/8: • Proposed Draft Code of Practice for Fish and Fishery Products (Quick Frozen Coated Products, Salted Fish). To be considered at Step 5: • Proposed Draft Amendment to the Standard for Canned Sardines and Sardine-Type Products. • Proposed Draft Code of Practice for Fish and Fishery Products (Live and Raw Bivalve Molluscs, Lobsters and Crabs). • Proposed Draft Standard for Live and Raw Bivalve Molluscs. New work: • Revision of the Procedure for the Inclusion of Additional Species in Standards for Fish and Fishery Products. • Proposed Draft Standard for Fish Sauce. • Amendment to the Standard for Quick Frozen Fish Sticks (Fish Fingers), Fish Portions and Fish Fillets—Breaded or in Batter (Nitrogen Factors). • Proposed Draft Standard for Fresh/Live and Frozen Abalone. The Committee continues work on the following: • Proposed Draft Code of Practice for fish and fishery products (other sections). • Draft Standard for Sturgeon Caviar. • Proposed Draft Standard for Smoked Fish. • Proposed Draft Standard for Quick Frozen Scallop Adductor Muscle Meat. • Proposed Draft Code of Practice for the Processing of Scallop Meat. *Responsible Agencies:* HHS/FDA; USDC/NOAA/NMFS. *U.S. Participation:* Yes. Codex Committee on Milk and Milk Products The Codex Committee on Milk and Milk Products is responsible for establishing international codes and standards for milk and milk products. The Committee will hold its 8th Session in 2008 in New Zealand. The Committee is working on: • Proposed Draft Model Export Certificate for Milk and Milk Products. • Proposed Draft Amendment to the Codex Standard for Fermented Milks pertaining to Fermented Milk Drinks. • Proposed Draft Standard for Processed Cheese. • Amendment to the List of Additives of the Codex Standard for Creams and Prepared Creams. • Food Additive Listings for the Codex Standard for Fermented Milks (flavoured fermented milks). • Methods of Analysis and Sampling for Milk and Milk Products Standards. • Discussion paper on sampling plans for milk products in presence of significant measurement error. *Responsible Agencies:* USDA/AMS; HHS/FDA. *U.S. Participation:* Yes. Codex Committee on Fats and Oils The Codex Committee on Fats and Oils is responsible for elaborating standards for fats and oils of animal, vegetable, and marine origin. The Committee met February 19-23, 2007. The relevant document is ALINORM 07/30/17. To be considered by the Commission at Step 8: • Draft Standard for Fat Spreads and Blended Spreads. New Work: • Proposed Draft Amendments to the Standard for Named Vegetable Oils: inclusion of palm kernel olein and palm kernel stearin. The Committee continues work on: • Draft List of Acceptable Previous Cargoes. • Proposed Draft List of Acceptable Previous Cargoes. • Proposed Draft Amendments to the Standard for Named Vegetable Oils: Rice Bran Oil. • Proposed Draft Amendments to the Standard for Named Vegetable Oils. • Unbleached palm oil: total carotenoids. • Proposed Draft Amendment to the Standard for Olive Oils and Olive Pomace Oils: linolenic acid. *Responsible Agencies:* HHS/FDA; USDA/ARS. *U.S. Participation:* Yes. Codex Committee on Processed Fruits and Vegetables The Codex Committee on Processed Fruits and Vegetables is responsible for elaborating standards for Processed Fruits and Vegetables. The Committee met on October 16-21, 2006. The relevant document is ALINORM 07/30/27. The following items will be considered by the Commission at its 30th Session in July 2007. To be considered at Step 8: • Draft Codex Standard for Pickled Fruits and Vegetables. • Draft Codex Standard for Processed Tomato Concentrates. • Draft Codex Standard for Preserved (Canned) Tomatoes. • Draft Codex Standards for Certain Canned Citrus Fruits. To be considered at Step 5: • Proposed Draft Codex Standard for Jams, Jellies, and Marmalades. • Proposed Draft Codex Standard for Certain Canned Vegetables. The Committee continues to work on: • Annexes to the Proposed Draft Standard for Canned Vegetables and the Guidelines for Packing Media for Canned Vegetables. • Standard Layout for Processed Fruits and Vegetables, Methods of Analysis for Processed Fruits and Vegetables. • Priority List for the Standardization of Processed Fruits and Vegetables. *Responsible Agencies:* USDA/AMS; HHS/FDA. *U.S. Participation:* Yes. Certain Codex Commodity Committees Several Codex Alimentarius Commodity Committees have adjourned *sine die.* The following Committees fall into this category: • *Cocoa Products and Chocolate.* *Responsible Agency:* HHS/FDA. *U.S. Participation:* Yes. • *Meat Hygiene.* *Responsible Agency:* USDA/FSIS. *U.S. Participation:* Yes. *• Natural Mineral Water.* *Responsible Agency:* HHS/FDA. *U.S. Participation:* Yes. *• Sugars.* *Responsible Agencies:* USDA/ARS; HHS/FDA. *U.S. Participation:* Yes. *• Vegetable Proteins.* *Responsible Agencies:* USDA/ARS; HHS/FDA. *U.S. Participation:* Yes. *• Cereals, Pulses and Legumes.* *Responsible Agencies:* HHS/FDA; USDA/GIPSA. *U.S. Participation:* Yes. *Ad hoc Intergovernmental Task Force on Antimicrobial Resistance.* The *ad hoc* Intergovernmental Task Force on Antimicrobial Resistance was created by the 29th Session of the Commission. The Task Force, hosted by the Republic of Korea, would have a time-frame of four sessions starting with its first meeting scheduled for October 2007. Its objective is to develop science-based guidance to assess the risks to human health associated with the presence in food and feed, including aquaculture, of antimicrobial resistant microorganisms and antimicrobial resistance genes and to develop appropriate risk management advice based on that assessment to reduce such risk. A Circular Letter was issued requesting proposals for new work for the Committee to discuss at its first session. Ad Hoc Intergovernmental Task Force on Foods Derived from Biotechnology The Commission established this task force to develop standards, guidelines, or recommendations, as appropriate, for foods derived from biotechnology or traits introduced into foods by biotechnology, on the basis of scientific evidence, risk analysis and having regard, where appropriate, to other legitimate factors relevant to the health of consumers and the promotion of fair trade practices. The Task Force, established by the 23rd Session of the Codex Alimentarius Commission for a four year period of time, completed its work, but was re-established at the 27th Session of the Commission. The relevant document is ALINORM 07/30/34. The Committee will hold its 7th Session in Japan on November 26-30, 2007. The Task Force will discuss the following items: • Proposed Draft Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Animals. • Proposed Draft Annex to the Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants: Food Safety Assessment of Foods Derived from Recombinant DNA-Plants Modified for Nutritional or Health Benefits. • Proposed Draft Annex to the Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants on Low-Level Presence of Recombinant-DNA Plant Material. *Responsible Agencies:* HHS/FDA; USDA/APHIS. *U.S. Participation:* Yes. Ad Hoc Intergovernmental Task Force on the Processing and Handling of Quick Frozen Foods The *Ad hoc* Intergovernmental Task Force on the Processing and Handling of Quick Frozen Foods was created by the 29th Session of the Commission to resolve all outstanding issues including the quality and safety provisions of the *Code of Practice for the Processing and Handling of Quick Frozen Foods.* The Task Force, hosted by Thailand, was given two years to finalize the Code. Thailand and the United States prepared a Circular Letter requesting comments on a revised Code. The resulting document prepared from these comments will serve as the basis for discussion at the Session of the Task Force that will take place in early 2008. FAO/WHO Regional Coordinating Committees The Codex Alimentarius Commission is made up of an Executive Committee, as well as approximately 30 subsidiary bodies. Included in these subsidiary bodies are coordinating committees for groups of countries located in proximity to each other who share common concerns. There are currently six Regional Coordinating Committees: • Coordinating Committee for Africa. • Coordinating Committee for Asia. • Coordinating Committee for Europe. • Coordinating Committee for Latin America and the Caribbean. • Coordinating Committee for the Near East. • Coordinating Committee for North America and the South-West Pacific. The United States participates as an active member of the Coordinating Committee for North America and the South-West Pacific, and is informed of the other coordinating committees through meeting documents, final reports, and representation at meetings. Each regional committee: • Defines the problems and needs of the region concerning food standards and food control; • Promotes within the committee contacts for the mutual exchange of information on proposed regulatory initiatives and problems arising from food control and stimulates the strengthening of food control infrastructures; • Recommends to the Commission the development of world-wide standards for products of interest to the region, including products considered by the committee to have an international market potential in the future; and • Serves a general coordinating role for the region and performs such other functions as may be entrusted to it by the Commission. Codex Coordinating Committee for North America and the South-West Pacific The Coordinating Committee is responsible for defining problems and needs concerning food standards and food control of all Codex member countries of the region. Items on the agenda for the next meeting may include: • Draft new Strategic Plan for NASWP. • Report of the Electronic Working Group on Objective 6 of the Strategic Plan for CCNASWP. • Discussion Paper on the Development of a Standard for Kava. • Discussion Paper on the Development of a Standard for Nonu
(Noni)Products. • Progress Report: Joint FAO/WHO Evaluation of the Codex Alimentarius and other FAO and WHO Work on Food Standards. • Evaluation of the effectiveness of the Trust Fund for the participation of developing countries in Codex. • Nomination of regional coordinator. *Responsible agency:* USDA/FSIS. *U.S. Participation:* Yes. Attachment 2 U.S. Codex Alimentarius Officials Codex Committee Chairpersons Codex Committee on Food Hygiene Dr. Karen Hulebak, Chief Scientist, Office of Public Health Science, Food Safety and Inspection Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Room 3130, South Building, Washington, DC 20250-3700, Phone:
(202)720-5735, Fax:
(202)720-2980, E-mail: *karen.hulebak@fsis.usda.gov.* Codex Committee on Processed Fruits and Vegetables Mr. Terry Bane, Branch Chief, Processed Products Branch, Fruit and Vegetable Programs, AMS, Room 0709, South Building, Stop 9247, 1400 Independence Avenue, SW., Washington, DC 20250-0247, Phone:
(202)720-4693, Fax:
(202)690-1087, E-mail: *terry.bane@usda.gov.* Codex Committee on Residues of Veterinary Drugs in Foods Dr. Stephen F. Sundlof, Director, Center for Veterinary Medicine, Food and Drug Administration, 7500 Standish Place (HFV-1), Rockville, MD 20855, Phone:
(301)827-2950, Fax:
(301)827-8401, E-mail: *ssundlof@cvm.fda.gov.* Codex Committee on Cereals, Pulses and Legumes (adjourned sine die) Mr. Steven N. Tanner, Director, Technical Services Division, Grain Inspection, Packers & Stockyards Administration, U.S. Department of Agriculture, 10383 N. Executive Hills Boulevard, Kansas City, MO 64153-1394, Phone:
(816)891-0401, Fax:
(816)891-0478, E-mail: *Stephen.n.tanner@gipsa.usda.gov.* Listing of U.S. Delegates and Alternates Worldwide General Subject Codex Committees Codex Committee on Residues of Veterinary Drugs in Foods (Host Government—United States) U.S. Delegate Steven D. Vaughn, D.V.M., Director, Office of New Animal Drug Evaluation, Center for Veterinary Medicine, FDA, 7500 Standish Place, Rockville, MD 20855, Phone:
(301)827-1796, Fax:
(301)594-2297, E-mail: *SVaughn@cvm.fda.gov.* Alternate Delegate Emilio Esteban, PhD, Director, Western Laboratory, Food Safety and Inspection Service, U.S. Department of Agriculture, 620 Central Avenue, Building 2-A, Alameda, CA 95501, Phone:
(510)337-5031, ext. 3004, Fax:
(510)337-5036, *Emilio.Esteban@fsis.usda.gov.* Codex Committee on Food Additives (Host Government—China) U.S. Delegate Dennis M. Keefe, PhD, Office of Premarket Approval, Center for Food Safety and Applied Nutrition, FDA (HFS-200), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(202)418-3113, Fax:
(202)418-3131, E-mail: *dennis.keefe@fda.hhs.gov.* Alternate Delegate Susan E. Carberry, PhD, Supervisory Chemist, Division of Petition Review, Office of Food Additive Safety (HFS-265), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Parkway, College Park, MD 20740, Phone:
(301)436-1269, Fax:
(301)436-2972, E-mail: *Susan.Carberry@fda.hhs.gov.* Codex Committee on Contaminants in Foods (Host Government—the Netherlands) U.S. Delegate Nega Beru, PhD, Director, Office of Plant and Dairy Foods, (HFS-300), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Parkway, College Park, MD 20740, Phone:
(301)436-1700, Fax:
(301)436-2651, E-mail: *Nega.Beru@fda.hhs.gov.* Alternate Delegate Kerry Dearfield, PhD, Scientific Advisor for Risk Assessment, Office of Public Health Science, Food Safety and Inspection Service, U.S. Department of Agriculture, 1400 Independence Ave. SW., Room 380, Aerospace Center, Washington, DC 20250, Phone:
(202)690-6451, Fax:
(202)690-6337, E-mail: *Kerry.Dearfield@fsis.usda.gov.* Codex Committee on Pesticide Residues (Host Government—China) U.S. Delegate Lois Rossi, Director of Registration Division, Office of Pesticide Programs, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Phone:
(703)305-5035, Fax:
(703)305-5147, E-mail: *rossi.lois@epa.gov.* Alternate Delegate Robert Epstein, PhD, Associate Deputy Administrator, Science and Technology, Agricultural Marketing Service, USDA, P.O. Box 96456, Room 3522S, Mail Stop 0222, 1400 Independence Avenue, SW., Washington, DC 20090, Phone:
(202)720-2158, Fax:
(202)720-1484, E-mail: *robert.epstein@usda.gov.* Codex Committee on Methods of Analysis and Sampling (Host Government—Hungary) U.S. Delegate Gregory Diachenko, PhD, Director, Division of Product Manufacture and Use, Office of Premarket Approval, Center for Food Safety and Applied Nutrition (CFSAN), FDA (HFS-300), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2387, Fax:
(301)436-2364, E-mail: *gregory.diachenko@fda.hhs.gov.* Alternate Delegate Donald C. Kendall, Technical Services Division, Grain, Inspection, Packers & Stockyards Administration, U.S. Department of Agriculture, 10383 N. Ambassador Drive, Kansas City, MO 64153-1394, Phone:
(816)891-0463, Fax:
(816)891-0478, E-mail: *Donnald.C.Kendall@usda.gov.* Codex Committee on Food Import and Export Inspection and Certification Systems (Host Government—Australia) U.S. Delegate Catherine Carnevale, D.V.M, Director, International Affairs Staff, Center for Food Safety and Applied Nutrition, FDA (HFS-550), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2380, Fax:
(301)436-2612, E-mail: *catherine.carnevale@fda.hhs.gov.* Alternate Delegate Mary Stanley, Director, Office of International Affairs, Food Safety and Inspection Service, U.S. Department of Agriculture, Room 2147-South Building, 1400 Independence Ave. SW., Washington, DC 20250, Phone:
(202)720-0287, Fax:
(202)720-6050, E-mail: *Mary.Stanley@fsis.usda.gov.* Codex Committee on General Principles (Host Government—France) U.S. Delegate Note: A member of the Steering Committee heads the delegation to meetings of the General Principles Committee. Codex Committee on Food Labeling (Host Government—Canada) U.S. Delegate Barbara O. Schneeman, PhD, Director, Office of Nutritional Products, Labelling and Dietary Uses, Center for Food Safety and Applied Nutrition, FDA, 5100 Paint Branch Parkway (HFS-800), College Park, MD 20740, Phone:
(301)436-2373, Fax:
(301)436-2636, E-mail: *barbara.schneeman@fda.hhs.gov.* Alternate Delegate Robert Post, PhD, Director, Labeling and Consumer Protection Staff, Food Safety and Inspection Service, USDA, 1400 Independence Avenue, SW. (602 Annex), Washington, DC 20250, Phone:
(202)205-0279, Fax:
(202)205-3625, E-mail: *Robert.post@fsis.usda.gov.* Codex Committee on Food Hygiene (Host Government—United States) U.S. Delegate Robert L. Buchanan, PhD, Lead Scientist, Food Safety Initiative, Center for Food Safety and Applied Nutrition, FDA (HFS-006), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2369, Fax:
(301)436-2360, E-mail: *robert.buchanan@fda.hhs.gov.* Alternate Delegates Daniel Engeljohn, PhD, Deputy Assistant Administrator, Office of Policy, Program, and Employee Development, Food Safety and Inspection Service, USDA, Room 350-E, Jamie L. Whitten Building, 1400 Independence Avenue, SW., Washington, DC 20250, Phone:
(202)205-0495, Fax:
(202)401-1760, E-mail: *daniel.engeljohn@fsis.usda.gov.* Rebecca Buckner, PhD, Consumer Safety Officer, Center for Food Safety and Applied Nutrition, FDA, Room 3B-0033, Harvey Wiley Building, 5100 Paint Branch Parkway, College Park, MD 10740, Phone:
(301)436-1486, Fax:
(301)436-2632, E-mail: *rebecca.buckner@fda.hhs.gov.* Codex Committee on Nutrition and Food for Special Dietary Uses (Host Government—Germany) U.S. Delegate Barbara O. Schneeman, PhD, Director, Office of Nutritional Products, Labeling and Dietary Supplements, Center for Food Safety and Applied Nutrition, FDA, 5100 Paint Branch Highway (HFS-800), College Park, MD 20740, Phone:
(301)436-2373, Fax:
(301)436-2636, E-mail: *barbara.schneeman@fda.hhs.gov.* Alternate Delegate Allison Yates, PhD, Director, Beltsville Human Nutrition Research Center, Agricultural Research Service, U.S. Department of Agriculture, 10300 Baltimore Avenue, Bldg 307C, Room 117, Beltsville, MD 20705, Phone:
(301)504-8157, Fax:
(301)504-9381, E-mail: *Allison.Yates@ars.usda.gov.* Worldwide Commodity Codex Committees Codex Committee on Fresh Fruits and Vegetables (Host Government—Mexico) U.S. Delegate Dorian LaFond, International Standards Coordinator, Fruit and Vegetables Program, Agricultural Marketing Service, USDA, Room 2086, South Building, 1400 Independence Avenue, SW., Washington, DC 20250, Phone:
(202)690-4944, Fax:
(202)720-4722, E-mail: *dorian.lafond@usda.gov.* Alternate Delegate Michelle Smith, PhD, Interdisciplinary Scientist, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, Food and Drug Administration (HFS-306), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2024, Fax:
(301)436-2651, E-mail: *Michelle.Smith@fda.hhs.gov.* Codex Committee on Fish and Fishery Products (Host Government—Norway) U.S. Delegate Donald Kraemer, Acting Director, Office of Seafood, Center for Food Safety and Applied Nutrition, Food and Drug Administration, Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2300, Fax:
(301)436-2599, E-mail: *donald.kraemer@fda.hhs.gov.* Alternate Delegate Timothy Hansen, Director, Seafood Inspection Program, National Oceanic and Atmospheric Administration, Department of Commerce, Room 10837, 1315 East West Highway, Silver Spring, MD 20910, Phone:
(301)713-2355, Fax:
(301)713-1081 E-mail: *Timothy.Hansen@noaa.gov.* Codex Committee on Cereals, Pulses and Legumes (Host Government—United States) U.S. Delegate Henry Kim, PhD, Supervisory Chemist, Division of Plant Product Safety, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, FDA, 5100 Paint Branch Parkway, College Park, MD 20740, Phone:
(301)436-2023, Fax:
(301)436-2651, E-mail: *henry.kim@fda.hhs.gov.* Codex Committee on Milk and Milk Products (Host Government—New Zealand) U.S. Delegate Duane Spomer, Food Defense Advisor, Agricultural Marketing Service, U.S. Department of Agriculture, Room 2750, South Building, 1400 Independence Ave., SW., Washington, DC 20250, Phone:
(202)720-1861, Fax:
(202)205-5772, E-mail: *duane.spomer@usda.gov.* Alternate Delegate John F. Sheehan, Director, Division of Dairy and Egg Safety, Office of Plant and Dairy Foods and Beverages, Center for Food Safety and Applied Nutrition, FDA (HFS-306), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740, Phone:
(301)436-1488, Fax:
(301)436-2632, E-mail: *john.sheehan@fda.hhs.gov.* Codex Committee on Fats and Oils (Host Government—United Kingdom) U.S. Delegate Dennis M. Keefe, PhD, Office of Food Additive Safety, Center for Food Safety and Applied Nutrition, FDA (HFS-200), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-1284, Fax:
(301)436-2972, E-mail: *dennis.keefe@fda.hhs.gov.* Alternate Delegate Kathleen Warner, Agricultural Research Service, USDA, 1815 N. University Street, Peoria, IL 61604, Phone:
(309)681-6584, Fax:
(309)681-6668, E-mail: *warnerk@ncaur.usda.gov.* Codex Committee on Cocoa Products and Chocolate (Host Government—Switzerland) U.S. Delegate Michelle Smith, PhD, Food Technologist, Office of Plant and Dairy Foods and Beverages, Center for Food Safety and Applied Nutrition, FDA (HFS-306), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-2024, Fax:
(301)436-2651, E-mail: *michelle.smith@fda.hhs.gov.* Codex Committee on Sugars (Host Government—United Kingdom) U.S. Delegate Martin Stutsman, J.D., Office of Plant and Dairy Foods and Beverages, Center for Food Safety and Applied Nutrition, FDA (HFS-306), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-1642, Fax:
(301)436-2651, E-mail: *martin.stutsman@fda.hhs.gov.* Codex Committee on Processed Fruits and Vegetables (Host Government—United States) U.S. Delegate Dorian LaFond, International Standards Coordinator, Fruit and Vegetable Division, Agricultural Marketing Service, USDA, Room 2086, South Building, 1400 Independence Avenue, SW., Washington, DC 20250, Phone:
(202)690-4944, Fax:
(202)720-0016, E-mail: *dorian.lafond@usda.gov.* Alternate Delegate Paul South, PhD, Division of Plant Product Safety, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, FDA, 5100 Paint Branch Parkway, College Park, MD 20740, Phone:
(301)436-1640, Fax:
(301)436-2561, E-mail: *paul.south@fda.hhs.gov.* Codex Committee on Vegetable Proteins (Host Government—Canada) U.S. Delegate Dr. Wilda H. Martinez, Area Director, ARS North Atlantic Area, Agricultural Research Service, USDA, 600 E. Mermaid Lane, Wyndmoor, PA 19038, Phone:
(215)233-6593, Fax:
(215)233-6719, E-mail: *wmartinez@ars.usda.gov* . Codex Committee on Meat Hygiene (Host Government—New Zealand) U.S. Delegate Perfecto Santiago, D.V.M., Deputy Assistant Administrator, Office of Food Security and Emergency Preparedness, Room 3130, South Building, Food Safety and Inspection Service, USDA, 1400 Independence Avenue, SW., Washington, DC 20250, Phone:
(202)205-0452, Fax:
(202)690-5634, E-mail: *perfecto.santiago@fsis.usda.gov.* Codex Committee on Natural Mineral Waters (Host Government—Switzerland) U.S. Delegate Lauren Robin, PhD, Review Chemist, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, Food and Drug Administration, Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-1639, Fax:
(301)436-2651, E-mail: *Lauren.Robin@fda.hhs.gov.* Ad Hoc Intergovernmental Task Forces Ad Hoc Intergovernmental Task Force on Foods Derived From Modern Biotechnology (Host Government—Japan) U.S. Delegate Eric Flamm, PhD, Senior Advisor, Office of the Commissioner, Food and Drug Administration, Room 1561, Parklawn Building, Rockville, MD 20857, Phone:
(301)827-0591, Fax:
(301)827-4774, E-mail: *EFLAMM@OC.FDA.GOV* . Alternate Delegate Cindy Smith, Deputy Administrator, Biotechnology Regulatory Services, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, Unit 98 Ste. 5B05, 4700 River Road, Riverdale, MD 20737, Phone:
(301)734-7324, Fax:
(301)734-6352, E-mail: *Cindy.J.Smith@aphis.usda.gov* . Ad Hoc Intergovernmental Task Force on Antimicrobial Resistance (Host Government—Republic of Korea) Delegate David G. White, D.V.M., Director, National Antimicrobial Resistance Monitoring System (NARMS), U.S. Food and Drug Administration, Center for Veterinary Medicine, Office of Research, 8401 Muirkirk Rd., Laurel, MD 20708, Phone:
(301)210-4181, Fax:
(301)210-4685, E-mail: *David.White@fda.hhs.gov* . Alternate Delegate Neena Anandaraman, D.V.M., Veterinary Medical Officer, Zoonotic Diseases & Residue Surveillance Division, Office of Public Health Science, Food Safety and Inspection Service, U.S. Department of Agriculture, Room 343, Aerospace Center, Washington, DC 20250, Phone:
(202)690-6429, Fax:
(202)690-6565, E-mail: *neena.anandaraman@fsis.usda.gov* . Ad Hoc Intergovernmental Task Force on Quick Frozen Foods (Host Government—Thailand) Delegate Donald Zink, Ph.D., Senior Scientist, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, Food and Drug Administration (HFS-302), Harvey W. Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740-3835, Phone:
(301)436-1692, Fax:
(301)436-2632, E-mail: *Donald.Zink@fda.hhs.gov* . There are six regional coordinating committees: Coordinating Committee for Africa. Coordinating Committee for Asia. Coordinating Committee for Europe. Coordinating Committee for Latin America and the Caribbean. Coordinating Committee for the Near East. Coordinating Committee for North America and the South-West Pacific. Contact Paulo Almeida, Associate Manager for Codex, U.S. Codex Office, Food Safety and Inspection Service, Room 4861, South Building, 1400 Independence Avenue, SW., Washington, DC 20250-3700, Phone:
(202)205-7760, Fax:
(202)720-3157, E-mail: *paulo.almeida@fsis.usda.gov* . [FR Doc. E7-10327 Filed 6-1-07; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF COMMERCE International Trade Administration [A-560-820] Coated Free Sheet Paper from Indonesia: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The U.S. Department of Commerce (the Department) preliminarily determines that coated free sheet paper
(CFS)from Indonesia is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: Brian Smith, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone
(202)482-1766. SUPPLEMENTARY INFORMATION: Background On November 27, 2006, the Department initiated an antidumping duty investigation of CFS from Indonesia. See Initiation of Antidumping Duty Investigations: Coated Free Sheet Paper from Indonesia, the People's Republic of China, and the Republic of Korea , 71 FR 68537 (Nov. 27, 2006) (Initiation Notice). The petitioner in this investigation is NewPage Corporation. The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice. See Initiation Notice* , 71 FR at 68538; *see also Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19,1997). On December 18, 2006, the two largest known producers/exporters of CFS from Indonesia, PT. Pabrik Kertas Tjiwi Kimia Tbk.
(TK)and PT. Pindo Deli Pulp and Paper Mills (PD), submitted timely comments, in which they requested that the Department exclude cast-coated CFS from the scope of the investigation. On December 22, 2006, the United States International Trade Commission
(ITC)preliminarily determined that there is a reasonable indication that imports of CFS from Indonesia, the People's Republic of China (PRC), and the Republic of Korea (Korea) are materially injuring the U.S. industry and the ITC notified the Department of its findings. *See Coated Free Sheet Paper from China, Indonesia, and Korea Investigation Nos. 701-TA-444-446 and 731-TA-1107-1109 (Preliminary)* , 71 FR 78464 (Dec. 29, 2006). Also on December 22, 2006, we selected PD and TK as the mandatory respondents in this proceeding. See Memorandum from James Maeder, Office Director, to Stephen J. Claeys, Deputy Assistant Secretary, entitled: “Antidumping Duty Investigation of Coated Free Sheet Paper from Indonesia - Selection of Respondents,” dated December 22, 2006. We subsequently issued the antidumping questionnaire to these companies on December 22, 2006. On January 12, 2007, the Department requested that PD and TK file their December 18, 2006, scope comments on the administrative record of the companion LTFV and countervailing duty
(CVD)investigations of CFS from the PRC and Korea. *See* Memorandum from Alice Gibbons to The File, dated January 12, 2007. PD and TK did so on the same date. On January 17, 2007, the petitioner made a country-wide allegation that sales of CFS in the home market were made below the cost of production
(COP)during the period of investigation (POI). On January 19, 2007, the petitioner objected to the respondents' request to exclude cast-coated paper from the scope of the investigation. For further discussion, see the “Scope Comments” section of this notice, below. On January 26, 2007, PD and TK submitted a consolidated response to section A of the questionnaire ( *i.e.* , the section involving general information). In this submission, PD and TK indicated that, not only are they affiliated with each other, but they are also affiliated with a third company that produces CFS in Indonesia, PT. Indah Kiat Pulp and Paper Tbk (IK). Based on an analysis of this information, as well as additional information obtained during the course of this proceeding ( *see* below), we find that it is appropriate to treat these three companies as a single entity, hereinafter referred to as PD/TK. Nonetheless, we did not require PD/TK to report sales and cost data related to IK's POI sales of CFS because: 1) these sales were made only in the home market; 2) the quantity of the sales was insignificant; and 3) these sales would not be the most similar matches to products sold in the United States by PD or TK. For further discussion, see the “Collapsing IK, PD, and TK” section of this notice, below. On February 2, 2007, the Department initiated a country-wide sales-below-cost investigation to determine whether PD/TK's sales of CFS in the home market were made at prices below the COP during the POI. *See* the Memorandum from The Team to James Maeder, Office Director, Office 2, Office of AD/CVD Operations, entitled, “The Petitioner's Allegation of Country-Wide Sales Below the Cost of Production” ( *Below-Cost Allegation* ), dated February 2, 2007. On February 5, 2007, the Department instructed PD/TK to respond to section D of the questionnaire with respect to its home market sales of CFS in order to acquire the necessary information to determine whether such sales were made at prices below the companies' COP. On February 16, 2007, the Department requested that PD/TK provide additional information with respect to its affiliation with IK. On February 20 and 23, 2007, respectively, PD/TK responded to sections B and C of the questionnaire ( *i.e.* , the sections involving sales to the home and U.S. markets), as well as the Department's February 16, 2007, supplemental questionnaire. On March 2, 2007, the petitioner made a timely request pursuant to 19 CFR 351.205(e) for a 50-day postponement of the preliminary determination in this investigation. On March 19, 2007, pursuant to section 733(c)(1)(A) of the Act, the Department postponed the preliminary determination until no later than May 29, 2007. *See Postponement of Preliminary Determinations of Antidumping Duty Investigations of Coated Free Sheet Paper from the People's Republic of China, Indonesia, and the Republic of Korea* , 72 FR 12757 (Mar. 19, 2007). From March through May 2007, the Department requested additional information from PD/TK regarding its responses to sections A through D of the questionnaire. PD/TK provided this information during the same months. On May 15, 2007, PD/TK requested that in the event of an affirmative preliminary determination in this investigation, the Department: 1) postpone its final determination by 60 days in accordance with 19 CFR 351.210(2)(ii) and 735(a)(2)(A) of the Act; and 2) extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to a six-month period. For further discussion, see the “Postponement of Final Determination and Extension of Provisional Measures” section of this notice, below. Period of Investigation The POI is October 1, 2005, to September 30, 2006. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of Investigation The merchandise covered by this investigation includes coated free sheet paper and paperboard of a kind used for writing, printing or other graphic purposes. Coated free sheet paper is produced from not-more-than 10 percent by weight mechanical or combined chemical/mechanical fibers. Coated free sheet paper is coated with kaolin (China clay) or other inorganic substances, with or without a binder, and with no other coating. Coated free sheet paper may be surface-colored, surface-decorated, printed (except as described below), embossed, or perforated. The subject merchandise includes single- and double-side-coated free sheet paper; coated free sheet paper in both sheet or roll form; and is inclusive of all weights, brightness levels, and finishes. The terms “wood free” or “art” paper may also be used to describe the imported product. Excluded from the scope are:
(1)coated free sheet paper that is imported printed with final content printed text or graphics;
(2)base paper to be sensitized for use in photography; and
(3)paper containing by weight 25 percent or more cotton fiber. Coated free sheet paper is classifiable under subheadings 4810.13.1900, 4810.13.2010, 4810.13.2090, 4810.13.5000, 4810.13.7040, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.7040, 4810.19.1900, 4810.19.2010, and 4810.19.2090 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Scope Comments In accordance with the preamble to the Department's regulations ( *see Antidumping Duties; Countervailing Duties; Final rule* , 62 FR 27296, 27323 (May 19, 1997)), in our *Initiation Notice* we set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice* . On December 18, 2006, PD/TK submitted timely scope comments in this proceeding, as well as in the companion CVD investigation on CFS from Indonesia. On January 12, 2007, the Department requested that PD/TK also file these comments on the administrative records of the companion LTFV and CVD investigations of CFS from the PRC and Korea. *See* Memorandum from Alice Gibbons to The File, dated January 12, 2007. PD/TK did so on the same date, and at this time it also re-filed its comments on the instant administrative record. On January 19, 2007, the petitioner responded to these comments. In its comments, PD/TK requested that the Department exclude from the scope of its investigations cast-coated free sheet paper. The Department analyzed this request, together with the comments from the petitioner, and determined that it is not appropriate to exclude cast-coated free sheet paper from the scope of these investigations. The Department's analysis is set forth in a memorandum dated March 22, 2007. For further discussion, see the Memorandum from Barbara Tillman, Office Director, Office 6, Office of AD/CVD Operations, to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, entitled, “Request to Exclude Cast-Coated Free Sheet Paper from the Antidumping Duty and Countervailing Duty Investigations on Coated Free Sheet Paper.” Collapsing of IK, PD, and TK On January 26, 2007, PD and TK submitted a consolidated questionnaire response, based on a claim that they are producers of subject merchandise in Indonesia that are affiliated via common ownership and membership in the companies' Boards of Directors. In this response, PD and TK claimed that they are also affiliated with an additional producer of CFS in Indonesia, IK, by reason of a common parent company, as well as certain common Board members. In supplemental submissions made on February 23, March 19, and May 9, 2007, PD, TK, and IK provided additional information regarding their relationship during the POI. After an analysis of this information, we preliminarily determine that, in accordance with 19 CFR 351.401(f), it is appropriate to collapse these entities for purposes of this investigation because: 1) these entities are affiliated pursuant to section 771(33)(F) of the Act because they are under control of a common parent company, PT. Purinusa Ekapersada (Purinusa), which owns a majority of the shares in each company; 2) IK, PD, and TK have the facilities to produce identical or similar products, such that substantial retooling would not be required to restructure manufacturing priorities; and 3) we find that there exists a significant potential for manipulation of price or production if IK, PD, and TK do not receive the same antidumping duty rate. With respect to the significant potential for manipulation, we find, in accordance with 19 CFR 351.401(f)(2), that: 1) there is common ownership through the shared parent, Purinusa; 2) IK, PD, and TK share members on their Boards of Directors and other employees; and 3) these companies have intertwined operations. For further discussion, see the Memorandum from The Team to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, entitled, “Treatment of Data Reported by Affiliated Parties in the Antidumping Duty Investigation of Coated Free Sheet Paper from Indonesia,” dated May 29, 2007. In each of the submissions noted above, PD/TK requested that the Department not require it to report sales or cost data related to IK's sales of CFS during the POI. After analyzing the information on the record of this investigation, we granted PD/TK's request because: 1) IK's sales of CFS were made only in the home market; 2) the quantity of these sales was insignificant; and 3) these sales would not be the most similar matches to U.S. products sold by PD and TK during the POI. *Id* . Fair Value Comparisons To determine whether sales of CFS from Indonesia to the United States made by PD/TK were made at LTFV, we compared the export price
(EP)to NV, as described in the “Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EP to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade for PD/TK's EP sales. *See* discussion below. Export Price Section 772(a) of the Act defines EP as the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter outside of the United States to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). During the POI, a portion of PD/TK's U.S. sales were made either: 1) directly to unaffiliated customers in the United States; or 2) to unaffiliated customers in the United States via an affiliated trading company located in Malaysia, but shipped directly from the producer. In accordance with section 772(a) of the Act, we have applied the EP methodology for these sales because they were produced by the respondent and exported from Indonesia to the first unaffiliated purchaser in the United States prior to importation. Regarding the second channel of distribution noted above, PD/TK claimed that it was affiliated with the trading company because PD/TK: 1) was involved in an agreement legally binding the trading company to buy all products it sells from PD/TK and its affiliates; and 2) exercised almost total control of the trading company's day-to-day operations, including establishing all prices and sales agreements with the U.S. customers. We have analyzed the information on the record with respect to this affiliation claim and preliminarily find that the trading company is affiliated with PD/TK pursuant to section 771(33)(G) of the Act given that it is, in essence, an agent relationship in which PD/TK controls the trading company. Evidence on the record indicates that, among other things, PD/TK establishes all prices and sales agreements with the U.S. customer, the affiliated trading company does not inventory subject merchandise, and the merchandise is shipped directly from the respondent to the U.S. customer. *See Notice of Final Determination of Sales at Less Than Fair Value: Engineered Process Gas Turbo-Compressor Systems, Whether Assembled or Unassembled, and Whether Complete or Incomplete, from Japan* , 62 FR 24394 (May 5, 1997). We intend to examine the trading company's involvement in the sales process and affiliation claim further at verification. In its response, PD/TK reported that certain of the EP transactions noted above also involved an additional trading company, unaffiliated with the respondent, which is located in a third country. PD/TK maintains that this trading company was not involved in making sales of subject merchandise, and its only role in the transactions in question was to invoice PD/TK's affiliated trading company. Based on these assertions, PD/TK claims that it is not appropriate to: 1) treat the unaffiliated trading company as the U.S. customer; or 2) make an adjustment to the starting price for the amount paid to this unaffiliated party. We have analyzed the information on the record with respect to these sales and, consistent with the Department's practice, we preliminarily find that the transaction with the unaffiliated trading company is not the relevant sale, given that: 1) the respondent does not negotiate the sales price with the unaffiliated trading company; 2) the role of the unaffiliated trading company in the sales process is unclear; and 3) PD/TK knows that the next party in the sales process is a party we find to be affiliated with the respondent. *See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From Korea* , 67 FR 62124 (Oct. 3, 2002). Moreover, we also preliminarily find that the evidence on the record of this proceeding is insufficient to establish that the amounts paid to the trading company are unrelated to sales of subject merchandise. As a result, we have made an adjustment to the starting price for the amount paid to the trading company. We, however, intend to examine the trading company's role in the sales process further at verification. Regarding the remainder of PD/TK's U.S. sales, PD/TK claimed that it made these sales through an affiliated U.S. importer. According to PD/TK, the U.S. importer was affiliated by reason of an exclusive distributor arrangement with PD/TK and PD/TK's affiliates during the POI. After analyzing the data on the record with respect to this affiliation claim, we preliminarily find that the U.S. importer is not affiliated with PD/TK because: 1) there is no written agreement between PD/TK and this company establishing the exclusive nature of the relationship; and 2) the U.S. importer is not precluded from selling merchandise produced by other manufacturers. *See e.g., Notice of Final Determination of Sales at Less Than Fair Value: Carbon and Certain Alloy Steel Wire Rod From Mexico* , 67 FR 55800 (Aug. 30, 2002), and accompanying Issues and Decision Memorandum at *Comment 1c* . We will examine PD/TK's claim further at verification. We based EP on the packed price to unaffiliated purchasers in the United States. We adjusted the starting price by the amount paid to the unaffiliated trading company noted above. In accordance with section 772(c)(2)(A) of the Act, we made deductions, where appropriate, for foreign inland freight from plant to the port of exportation, foreign inland insurance, foreign brokerage and handling, U.S. brokerage and handling, international freight, and marine insurance. Normal Value A. Home Market Viability and Comparison Market Selection To determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV ( *i.e.* , the aggregate volume of home market sales of the foreign like product is equal to or greater than five percent of the aggregate volume of U.S. sales), we compared PD/TK's volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Based on this comparison, we determined that PD/TK had a viable home market during the POI. Consequently, we based NV on home market sales. B. Level of Trade In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade
(LOT)as the EP or constructed export price (CEP). Pursuant to 19 CFR 351.412(c)(1), the NV LOT is that of the starting-price sales in the comparison market or, when NV is based on constructed value (CV), that of the sales from which we derive selling, general and administrative expenses (SG&A) and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually from exporter to importer. For CEP, it is the level of the constructed sale from the exporter to the importer. To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. *See* 19 CFR 351.412(c)(2). If the comparison-market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP-offset provision). S *ee Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from South Africa* , 62 FR 61731,61732 (Nov. 19, 1997). In this investigation, we obtained information from PD/TK regarding the marketing stages involved in making its reported home market and U.S. sales, including a description of the selling activities performed by the respondent for each channel of distribution. PD/TK reported that it made EP sales in the U.S. market through the following channels of distribution: 1) sales through an affiliated Malaysian trading company; 2) direct sales to U.S. customers; and 3) sales to financiers. PD/TK stated that its U.S. sales were made at the same LOT, regardless of distribution channel. We examined the selling activities performed for all three channels and found that PD/TK performed the following selling functions for each: sales forecasting, strategic/economic planning, personnel training/exchange, order input/processing, providing direct sales personnel, packing, and freight and delivery services. Regarding sales through the PD/TK's affiliated Malaysian trading company, we find that, in addition to the selling functions performed by PD/TK on these sales, the trading company further performed the following selling functions: order input/processing and payment of commissions. These selling activities can be generally grouped into three core selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; and 3) warranty and technical support. Accordingly, based on the core selling functions, we find that PD/TK performed sales and marketing, freight and delivery services, and warranty and technical services for U.S. sales. Although PD/TK's affiliated Malaysian trading company performed additional sales and marketing functions for PD/TK's sales through it that were not performed for PD/TK's direct sales or sales to financiers, we did not find these differences to be material selling function distinctions significant enough to warrant a separate LOT in the U.S. market. Therefore, we preliminarily determine that there is one LOT in the U.S. market because PD/TK performed essentially the same selling functions for all U.S. sales. With respect to the home market, PD/TK made sales through a single channel of distribution ( *i.e.* , sales to unaffiliated customers through an affiliated reseller). We examined the selling activities performed for this channel and found that PD/TK performed the following selling functions: sales forecasting, strategic/economic planning, personnel training/exchange, packing, inventory maintenance, order input/processing, providing direct sales personnel, providing technical assistance, providing after-sales services, and freight and delivery services. In addition, PD/TK's affiliated reseller performed the following additional sales functions: sales forecasting, strategic/economic planning, personnel training/exchange, advertising, sales promotion, distributor/dealer training, inventory maintenance, order input/processing, providing direct sales personnel, sales/marketing support, market research, providing technical assistance, and providing after-sales services. Accordingly, based on the core selling functions, we find that PD/TK and its affiliated reseller performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and warranty and technical services in the home market. Because all sales in the home market are made through a single distribution channel, we preliminarily determine that there is one LOT in the home market. Finally, we compared the EP LOT to the home market LOT and found that the home market selling functions differ from the U.S. selling functions with respect to: 1) inventory maintenance and warehousing performed in the home market that are not performed on sales to the United States; and 2) the additional layer of selling functions performed in the home market by PD/TK's affiliated reseller that are not performed on certain sales to the United States. However, given that PD/TK sold at only one LOT in the home market, and there is no additional information on the record that would allow for an LOT adjustment, no LOT adjustment is possible for PD/TK. C. Cost of Production Analysis Based on our analysis of the petitioner's allegation, we found that there were reasonable grounds to believe or suspect that PD/TK's sales of CFS in the home market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a sales-below-cost investigation to determine whether PD/TK's sales were made at prices below their respective COPs. *See* the *Below-Cost Allegation* for further discussion. 1. Calculation of Cost of Production In accordance with section 773(b)(3) of the Act, we calculated the respondent's COP based on the sum of its costs of materials and conversion for the foreign like product, plus amounts for general and administrative (G&A) expenses and financial expenses ( *see* the “Test of Comparison Market Sales Prices” section below for the treatment of home market selling expenses). The Department relied on PD/TK's producer-specific COP data submitted by PD/TK in its May 1, 2007, supplemental section D questionnaire response for the COP calculation, except for the following instances where the information was not appropriately quantified or valued: 1. We applied the major input rule under section 773(f)(3) of the Act to pulp purchases from PD/TK's affiliated supplier, PT Lontar Papyrus Pulp and Pater Industry (Lontar). As a result, we adjusted the reported cost of PD/TK to the higher of transfer price, market price or COP. Regarding Lontar's COP, we currently have outstanding requests for information concerning affiliated log purchases by Lontar and will consider this information for the final determination. 2. We eliminated the inter-company profit arising from the affiliated pulp transactions between IK and PD/TK. We currently have outstanding requests for information concerning affiliated log purchases by IK used in the production of pulp and will consider this information for the final determination. 3. While TK requested a startup adjustment for new production lines, TK did not provide supporting documentation or a proposed adjustment amount for a startup adjustment. Thus, we did not allow a startup adjustment for the preliminary determination. 4. PD offset its financial expense by including miscellaneous income. Miscellaneous income is not an element of financial expense; therefore, we have excluded the offset. 5. PD/TK did not exclude packing costs from the cost of goods sold used as the denominator in the calculation of G&A and financial expense rates. Thus, we applied the G&A and financial expense rates to the product-specific total cost of manufacturing plus the product-specific packing expense. Because product-specific packing expenses were not available for certain products produced by PD prior to the POI, we used PD's weighted-average packing expenses for these products. Our revisions to PD/TK's COP data are discussed in the Memorandum from Ji Oh, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - PT. Pabrik Kertas Tjiwi Kimia Tbk. and PT. Pindo Deli Pulp and Paper Mills,” dated May 29, 2007. 2. Test of Comparison Market Sales Prices On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, to determine whether the sale prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses. 3. Results of the COP Test Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of the respondent's sales of a given product were at prices less than the COP, we do not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of the respondent's sales of a given product during the POI were at prices less than COP, we determine that such sales have been made in “substantial quantities.” *See* section 773(b)(2)(C) of the Act. Further, the sales were made within an extended period of time, in accordance with section 773(b)(2)(B) of the Act, because we examine below-cost sales occurring during the entire POI. In such cases, because we compare prices to POI-average costs, we also determine that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. We found that, for certain specific products, more than 20 percent of PD/TK's sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act. For those U.S. sales of subject merchandise for which there were no home market sales within the 20 percent difference in merchandise adjustment, we compared EP to CV, in accordance with section 773(a)(4) of the Act. *See* the “Calculation of Normal Value Based on Constructed Value” section below. D. Calculation of Normal Value Based on Comparison Market Prices We based NV for PD/TK on delivered prices to unaffiliated customers in the home market. We made deductions, where appropriate, from the starting price for inland freight expenses and inland insurance expenses, under section 773(a)(6)(B)(ii) of the Act. Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(b), we made circumstance-of-sale adjustments for imputed credit expenses, bank charges, courier expenses, and commissions. Regarding commissions, PD/TK incurred commissions only in relation to U.S. sales. Therefore, pursuant to 19 CFR 351.410(e), we offset U.S. commissions by the lesser of the commission amount or home market indirect selling expenses. Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. Finally, we deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and
(B)of the Act. E. Calculation of Normal Value Based on Constructed Value Section 773(a)(4) of the Act provides that, where NV cannot be based on comparison market sales, NV may be based on CV. Accordingly, for sales of CFS for which we could not determine the NV based on comparison market sales, we based NV on CV. Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&A expenses, profit, and U.S. packing costs. We calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above. We based SG&A, interest expense, and profit on the actual amounts incurred and realized in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act. For comparison with EP sales, we made adjustments to CV for differences in circumstances of sale in accordance with section 773(a)(6)(C)(iii) and 773(a)(8) of the Act and 19 CFR 351.410. Specifically, we deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and
(B)of the Act. Currency Conversion We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. All Others Rate Because there is only one respondent in this investigation for which the Department has calculated a company-specific rate, consistent with our practice, its rate serves as the “all others” rate. *See e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils From Italy* , 64 FR 30750, 30755 (June 8, 1999); and *Final Affirmative Countervailing Duty Determination: Pure Magnesium From Israel* , 66 FR 49351, 49353 (Sept. 27, 2001). Verification As provided in section 782(i) of the Act, we intend to verify all information relied upon in making our final determination for PD/TK. Suspension of Liquidation In accordance with section 733(d)(2) of the Act, we are directing CBP to suspend liquidation of all entries of CFS from Indonesia that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the **Federal Register** . We are also instructing CBP to require a cash deposit or the posting of a bond equal to the weighted-average dumping margins, as indicated in the chart below. These suspension-of-liquidation instructions will remain in effect until further notice. The weighted-average dumping margins are as follows: Manufacturer/Exporter Weighted-Average Margin (percent) PT. Pabrik Kertas Tjiwi Kimia Tbk, PT. Pindo Deli Pulp and Paper Mills, and PT. Indah Kiat Pulp and Paper Tbk (collectively, PD/TK) 10.85 All Others 10.85 Disclosure We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b). ITC Notification In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of CFS from Indonesia are materially injuring, or threaten material injury to, the U.S. industry. Because we have postponed the deadline for our final determination to 135 days from the date of the publication of this preliminary determination ( *see* below), the ITC will make its final determination within 45 days of our final determination. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the final verification report in this proceeding. Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline date for the submission of case briefs. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette. In accordance with section 774 of the Act, the Department will hold a public hearing, if timely requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a timely request for a hearing is made in this investigation, we intend to hold the hearing two days after the rebuttal brief deadline date at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain:
(1)The party's name, address, and telephone number;
(2)the number of participants; and
(3)a list of the issues to be discussed. At the hearing, oral presentations will be limited to issues raised in the briefs. Postponement of Final Determination and Extension of Provisional Measures Pursuant to section 735(a)(2) of the Act, on May 15, 2007, PD/TK requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, PD/TK requested that the Department extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to a six-month period. In accordance with section 733(d) of the Act and 19 CFR 351.210(b), because
(1)our preliminary determination is affirmative,
(2)the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and
(3)no compelling reasons for denial exist, we are granting this request and are postponing the final determination until no later than 135 days after the publication of this notice in the **Federal Register** . Suspension of liquidation will be extended accordingly. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: May 29, 2007. David Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-10704 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-906] Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Coated Free Sheet Paper from the People's Republic of China AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: June 4, 2007. SUMMARY: The Department of Commerce (the “Department”) preliminarily determines that coated free sheet paper (“CFS”) from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“Act”). The estimated dumping margins are shown in the “Preliminary Determination” section of this notice. FOR FURTHER INFORMATION CONTACT: Magd Zalok or Drew Jackson, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone:
(202)482-4162 or 482-4406, respectively. SUPPLEMENTARY INFORMATION: Background On October 31, 2006, the Department received petitions concerning imports of CFS from the PRC, Indonesia, and the Republic of Korea (“Korea”) filed in proper form by NewPage Corporation (“petitioner”) on behalf of the domestic industry. The Department initiated antidumping duty investigations of CFS from the above-mentioned countries on November 20, 2006. *See Initiation of Antidumping Duty Investigations: Coated Free Sheet Paper from Indonesia, the People's Republic of China, and the Republic of Korea* , 71 FR 68537 (November 27, 2006) (“ *Initiation Notice* ”). On December 22, 2006, the International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of CFS from the PRC, Indonesia, and Korea are materially injuring the U.S. industry. *See Coated Free Sheet Paper From China, Indonesia, and Korea, Investigation Nos. 701-TA-444-446 and 731-TA-1107-1109 (Preliminary)* , 71 FR 78464 (December 29, 2006). On November 29, 2006, the Department requested quantity and value (“Q&V”) information from 14 companies identified in the petition as potential producers or exporters of CFS from the PRC. *See* Exhibit 5, Volume I, of the October 31, 2006 Petition for the Imposition of Antidumping and Countervailing Duties. On December 27, 2006, the Department received Q&V responses from four interested parties. Additionally, on January 3, 2007, the Department received an untimely Q&V response from UPM-Kymmene (Changshu) Paper Industry Co., Ltd. (“UPM”), which we rejected. *See* letter to UPM concerning “Return of Untimely Submission of Quantity and Value Information” dated January 11, 2007. On December 27, 2006, the Department received a separate-rate application from Yanzhou Tianzhang Paper Industry Co. Ltd. (“Yanzhou Tianzhang”), a producer and exporter not named in the petition. Additionally, on January 26, 2007, the Department received a separate-rate application from UPM, which we rejected. *See* letter to UPM concerning “Submissions by UPM-Kymmene (Changshu) Paper Industry Co., Ltd.” dated February 8, 2007. 1 1 *See also* the submissions to the Department from UPM dated January 29, 2007, February 1, 2007, and February 5, 2007, and from the petitioner dated February 2, 2007. On January 10, 2007, the Department selected Gold East Paper (Jiangsu) Co. Ltd, (“GE”), and Shandong Chenming Paper Holdings Limited (“Chenming”) as mandatory respondents. *See* memorandum regarding “Selection of Respondents for the Antidumping Investigation of Coated Free Sheet Paper from the People's Republic of China,” dated January 10, 2007 (“Respondent Selection Memorandum”). On January 11, 2007, we issued the Department's antidumping questionnaire to the mandatory respondents. GE and Chenming submitted timely responses to the Department's questionnaire during February and March 2007. The Department issued supplemental questionnaires to, and received responses from, GE and Chenming from February to May 2007. The petitioner submitted comments to the Department regarding GE's and Chenming's questionnaire and supplemental questionnaire responses from February to April 2007. On January 24, 2007, the Department released a memorandum in which it listed potential surrogate countries and invited interested parties to comment on surrogate country and factor value selection. No party responded to the Department's invitation to comment on surrogate country selection. However, from March to May, 2007, both the petitioner and the respondents submitted surrogate values, including surrogate financial statements, for use in this investigation. All of the submitted surrogate data are from India. On February 15, 2007, the respondent in the antidumping duty investigation of CFS from Korea submitted comments to the Department regarding the appropriate model matching criteria. The Department received no rebuttal comments on model matching. On March 1, 2007, the petitioner made a timely request, pursuant to 19 CFR 351.205(e), for a fifty-day postponement of the preliminary determination in this investigation. On March 19, 2007, pursuant to section 733(c)(1)(A) of the Act, the Department postponed the preliminary determination until no later than May 29, 2007. *See Postponement of Preliminary Determinations in the Antidumping Duty Investigations of Coated Free Sheet Paper from the People's Republic of China, Indonesia, and the Republic of Korea* , 72 FR 12757 (March 19, 2007). On May 11, 2007, the petitioner, the respondents, and the Bureau of Fair Trade, Ministry of Commerce, People's Republic of China (“BOFT”), submitted comments to the Department regarding issues they would like addressed in the preliminary determination. In addition, on May 11, 2007, UPM filed a submission with the Department in which it requested that the Department reconsider its decision not to accept the company's untimely Q&V response. For the reasons given in the Department's January 11, and February 8, 2007 letters to UPM, the Department has not reversed its earlier decision to reject UPM's separate-rate application and untimely Q&V response. Also, on May 11, 2007, GE requested that, in the event of an affirmative preliminary determination in this investigation, the Department:
(1)postpone its final determination by 60 days in accordance with 19 CFR 351.210(2)(ii) and 735(a)(2)(A) of the Act; and
(2)extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a 4-month period to a 6-month period. Finally, on May 18, 2007, the petitioner responded to the BOFT's May 11, 2007 comments. Period of Investigation The period of investigation (“POI”) is April 1, 2006, through September 30, 2006. This period comprises the two fiscal quarters immediately prior to the month in which the petition was filed (October 31, 2006). *See* 19 CFR 351.204(b)(1). Scope of the Investigation The merchandise covered by this investigation includes coated free sheet paper and paperboard of a kind used for writing, printing or other graphic purposes. Coated free sheet paper is produced from not-more-than 10 percent by weight mechanical or combined chemical/mechanical fibers. Coated free sheet paper is coated with kaolin (China clay) or other inorganic substances, with or without a binder, and with no other coating. Coated free sheet paper may be surface-colored, surface-decorated, printed (except as described below), embossed, or perforated. The subject merchandise includes single- and double-side-coated free sheet paper; coated free sheet paper in both sheet or roll form; and is inclusive of all weights, brightness levels, and finishes. The terms “wood free” or “art” paper may also be used to describe the imported product. Excluded from the scope are:
(1)Coated free sheet paper that is imported printed with final content printed text or graphics;
(2)base paper to be sensitized for use in photography; and
(3)paper containing by weight 25 percent or more cotton fiber. Coated free sheet paper is classifiable under subheadings 4810.13.1900, 4810.13.2010, 4810.13.2090, 4810.13.5000, 4810.13.7040, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.7040, 4810.19.1900, 4810.19.2010, and 4810.19.2090 of the Harmonized Tariff Schedule of the United States (“HTSUS”). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Scope Comments The Department set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of the Initiation Notice. *See Initiation Notice* , 71 FR at 68538; *see also Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19, 1997). On January 12, 2007, the respondents in the antidumping duty investigation of CFS from Indonesia submitted timely comments on the record of this proceeding, in which they requested that the Department exclude cast-coated CFS from the scope of the investigation. On January 19, 2007, the petitioner responded to these comments. The Department has analyzed these comments and rebuttal comments and determined that it is not appropriate to exclude cast-coated CFS from the scope of the CFS investigations. *See* memorandum regarding “Request to Exclude Cast-Coated Free Sheet Paper from the Antidumping Duty and Countervailing Duty Investigations on Coated Free Sheet Paper,” dated March 22, 2007, on file in the Central Records Unit (“CRU”) of the main Department building. Non-Market-Economy (“NME”) Treatment The Department considers the PRC to be an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination that a country is an NME country shall remain in effect until revoked by the administering authority. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, (“TRBs”) From the People's Republic of China: Preliminary Results of 2001-2002 Administrative Review and Partial Rescission of Review* , 68 FR 7500 (February 14, 2003), unchanged in *TRBs from the People's Republic of China: Final Results of 2001-2002 Administrative Review* , 68 FR 70488 (December 18, 2003). In its May 11, 2007 comments, the BOFT argues that recent findings by the Department in the countervailing duty (“CVD”) investigation of CFS from the PRC require the Department to treat the PRC as a market-economy country. Absent revocation of the PRC's NME status, the BOFT argues that those recent findings require the Department to immediately modify its NME methodology by instituting:
(1)a presumption that all PRC exporters are independent from government control and entitled to separate rates; and
(2)a provision for granting market economy treatment to certain respondents. Additionally, the BOFT requests that, in the instant investigation, the Department:
(1)exercise its discretion, under the statute, and base normal value (“NV”) on home market or third country prices (given that home market values were used in the companion CVD investigation); and
(2)adopt measures to avoid imposing both antidumping and countervailing duties to compensate for the same unfair trade practice (“double-remedy”). In its May 11, 2007, comments Chenming also argues that the Department must adjust its antidumping duty calculation to avoid a “double remedy.” The petitioner urges the Department to reject the BOFT's and Chenming's arguments. According to the petitioner, the Department should reject the BOFT's proposal for treating the PRC as a market economy country because the proposal was submitted too late to be considered in this investigation and does not address the statutory and regulatory criteria for granting market economy or market-oriented industry status. With respect to the double-remedy, the petitioner makes the following points:
(1)adjusting the dumping margin for domestic subsidies is contrary to the statute;
(2)the BOFT has not supported its assertion that domestic subsidies reduce export prices;
(3)the NME methodology was designed to calculate NV in antidumping cases, not provide a remedy for subsidization;
(4)the BOFT's presumption that surrogate values result in a subsidy-free restatement of the NME producer's costs misconstrues the operation and purpose of surrogate values (surrogate values do not exactly replicate the NME producer's costs);
(5)during its accession to the World Trade Organization (“WTO”), the PRC agreed to be bound by the disciplines in the WTO Agreement on Subsidies and Countervailing Measures and the WTO Agreement on the Implementation of Article VI (the “Antidumping Agreement”), neither of which include provisions about adjustments to be made for domestic subsidies; and
(6)there is no basis for adjusting PRC companies' dumping margins for domestic subsidies when no other U.S. trading partner is granted such an adjustment (in fact, the Government Accountability Office stated that granting special concessions to the PRC to correct an alleged double remedy would be “wholly inappropriate.”). The Department has not revoked its determination that the PRC is a NME country, nor has it altered in this determination its NME methodology as requested by the BOFT. With respect to market-economy treatment of certain entities, we note that on May 25, 2007, the Department published a notice in the **Federal Register** requesting comments on whether it should consider granting market-economy treatment to individual respondents in antidumping proceedings involving China, the conditions under which individual firms should be granted market-economy treatment, and how such treatment might affect our antidumping calculation for such qualifying respondents. *See Antidumping Methodologies in Proceedings Involving Certain Non-Market Economies: Market-Oriented Enterprise* , 72 FR 29302 (May 25, 2007). The Department will address market-economy treatment of individual respondents after considering the comments submitted within that process. We further note that the question of whether a double remedy has been or could be applied, or whether the Department has the authority to adjust for such a situation, involves complex factual, methodological and legal issues that will require additional time to analyze. In this regard, we note that the comments we have received to date do not address with sufficient specificity the analytical and computational methods by which one might attempt to determine the existence and extent of any alleged double remedy. Therefore, the Department cannot at this time determine whether an adjustment is necessary nor, if so, calculate an appropriate adjustment. However, the Department will analyze comments regarding the double remedy that are submitted by interested parties during the course of this investigation, and may seek additional information on the topic. Therefore, in this preliminary determination, we have treated the PRC as an NME country and applied our current NME methodology. Selection of a Surrogate Country In antidumping proceedings involving NME countries, the Department, pursuant to section 773(c)(1) of the Act, will generally base NV on the value of the NME producer's factors of production. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of merchandise comparable to the subject merchandise. The Department has determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries that are at a level of economic development comparable to that of the PRC. *See* memorandum regarding “Antidumping Duty Investigation of Coated Free Sheet Paper from the People's Republic of China (PRC): Request for a List of Surrogate Countries,” dated January 22, 2007 (“Policy Memorandum”). From among these economically comparable countries, the Department has preliminarily selected India as the surrogate country for this investigation because it determined that:
(1)India is a significant producer of merchandise comparable to the subject merchandise and
(2)reliable Indian data for valuing the factors of production are readily available. See memorandum regarding “Coated Free Sheet Paper from the People's Republic of China: Selection of Surrogate Country” dated May 2, 2007. Treating GE and Certain Other Companies as a Single Entity Based on record evidence, the Department has preliminarily determined that GE, Gold Huasheng Paper Co., Ltd. (“GHS”), a paper producer capable of producing subject merchandise, and China Union (Macao Commercial Offshore) Company Limited (“CU”), a company that plays a role in GE's operations involving subject merchandise, are affiliated pursuant to section 771(33)(F) and
(G)of the Act (affiliation by virtue of control). Moreover, the Department has preliminarily determined that it is appropriate to treat GE, GHS, and CU as a single entity for antidumping duty purposes. GE and GHS produce similar merchandise and would not require substantial retooling to restructure manufacturing priorities. 2 Additionally, after considering the following criteria, the Department determined that there exists a significant potential for the manipulation of price or production:
(1)the level of common ownership;
(2)the extent to which managerial employees or board members of one firm sit on the Board of Directors of an affiliated firm; and
(3)whether the companies' operations are intertwined. *See* 19 CFR 351.401(f). Thus, the Department has preliminarily collapsed GE, GHS, and CU (collectively “GE”). For details regarding this decision, see memorandum regarding “Whether to Collapse Gold East Paper (Jiangsu) Co., Ltd. with Gold Huasheng Paper Co., Ltd. and China Union (Macao Commercial Offshore) Company Limited,” dated concurrently with this notice. 2 While CU is not a producer of CFS, we note that where companies are affiliated, and there exists a significant potential for manipulation of prices and/or export decisions, the Department has found it appropriate to treat those companies as a single entity. The CIT upheld the Department's decision to include export decisions in its analysis of whether there was a significant potential for manipulation. *See Hontex Enterprises v. United States* , 248 F. Supp. 2d 1323, 1343 (CIT 2003). Separate Rates In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to investigation involving an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. GE, Chenming, and Yanzhou Tianzhang provided company-specific information to demonstrate that they operate independently of *de jure* and *de facto* government control, and therefore are entitled to a separate rate. The Department's separate-rate test is not concerned, in general, with macroeconomic/border-type controls, *e.g.* , export licenses, quotas, and minimum export prices, particularly if these controls are imposed to prevent dumping. *See Notice of Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from the People's Republic of China* , 63 FR 72255, 72256 (December 31, 1998). The test focuses, rather, on controls over the investment, pricing, and output decision-making process at the individual firm level. *See Notice of Final Determination of Sales at Less than Fair Value: Certain Cut-to-Length Carbon Steel Plate From Ukraine* , 62 FR 61754, 61758 (November 19, 1997), and *Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Final Results of Antidumping Duty Administrative Review* , 62 FR 61276, 61279 (November 17, 1997). To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the *Notice of Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China* , 56 FR 20588 (May 6, 1991) (“ *Sparklers* ”), as further developed in *Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China* , 59 FR 22585 (May 2, 1994) (“ *Silicon Carbide* ”). In accordance with the separate-rates criteria, the Department assigns separate rates in NME cases only if respondents can demonstrate the absence of both de jure and de facto governmental control over export activities. Absence of De Jure Control The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate:
(1)an absence of restrictive stipulations associated with an individual exporter's business and export licenses;
(2)any legislative enactments decentralizing control of companies; and
(3)other formal measures by the government decentralizing control of companies. *See Sparklers* , 56 FR at 20589. Information submitted by GE, Chenming, and Yanzhou Tianzhang indicates that there are no restrictive stipulations associated with their exporter and/or business licenses; and there are legislative enactments decentralizing control of the companies. Therefore, the Department has preliminarily found a *de jure* absence of government control over these companies' export activities. *See* memorandum regarding “Separate Rates” dated concurrently with this notice (“Separate Rates Memorandum”). Absence of De Facto Control Typically the Department considers four factors in evaluating whether each respondent is subject to *de facto* governmental control of its export functions:
(1)whether the export prices are set by, or are subject to the approval of, a governmental agency;
(2)whether the respondent has authority to negotiate and sign contracts and other agreements;
(3)whether the respondent has autonomy from the government in making decisions regarding the selection of management; and
(4)whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. *See Silicon Carbide* , 59 FR at 22586-87; *see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From the People's Republic of China* , 60 FR 22544, 22545 (May 8, 1995). The Department considers an analysis of *de facto* control to be critical in determining whether a respondent is, in fact, subject to a degree of governmental control that would preclude the Department from assigning the respondent a separate rate. GE, Chenming, and Yanzhou Tianzhang have each provided information indicating that they:
(1)set export prices independent of the government and without the approval of a government authority;
(2)have the authority to negotiate and sign contracts and other agreements;
(3)have autonomy from the government regarding the selection of management; and
(4)retain proceeds from sales and make independent decisions regarding the disposition of profits or financing of losses. Therefore, the Department has preliminarily found a *de facto* absence of government control over these companies' export activities. Based on the foregoing, 3 the Department has preliminarily granted the two mandatory respondents, and Yanzhou Tianzhang, separate, company-specific dumping margins. *See* Separate Rates Memorandum. The Department calculated company-specific dumping margins for GE, and Chenming and assigned Yanzhou Tianzhang a dumping margin equal to the weighted-average of the dumping margins calculated for GE and Chenming. 3 Record information submitted regarding GHS and CU, companies which the Department collapsed with GE, also supports granting the collapsed entity a separate rate. *See* Separate Rates Memorandum. The PRC-Wide Entity Although all PRC exporters of subject merchandise to the United States were given an opportunity to provide Q&V information to the Department, not all exporters responded to the Department's request for Q&V information. 4 Based upon our knowledge of the volume of imports of subject merchandise from the PRC, we have concluded that the companies that responded to the Q&V questionnaire do not account for all U.S. imports during the POI of subject merchandise from the PRC. We have treated the non-responsive PRC producers/exporters as part of the PRC-wide entity because they did not qualify for a separate rate. 4 The Department received only four timely responses to the requests for Q&V information that it sent to the 14 potential exporters identified in the petition. Section 776(a)(2) of the Act provides that, if an interested party
(A)withholds information that has been requested by the Department,
(B)fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and
(e)of the Act,
(C)significantly impedes a proceeding under the antidumping statute, or
(D)provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. As noted above, the PRC-wide entity withheld information requested by the Department. As a result, pursuant to section 776(a)(2)(A) of the Act, we find it appropriate to base the PRC-wide dumping margin on facts available. *See Notice of Preliminary Determination of Sales at Less Than Fair Value, Affirmative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam* , 68 FR 4986 (January 31, 2003), unchanged in *Notice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam* , 68 FR 37116 (June 23, 2003). Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information. *See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation* , 65 FR 5510, 5518 (February 4, 2000); *see also “Statement of Administrative Action* ,” accompanying the URAA, H.R. Rep. No. 103-316, 870
(1994)(“ *SAA* ”). Because the PRC-wide entity did not respond to the Department's request for information, the Department has concluded that it has failed to cooperate to the best of its ability. Therefore, the Department preliminarily finds that, in selecting from among the facts available, an adverse inference is appropriate. Section 776(b) of the Act authorizes the Department to use, as adverse facts available (“AFA”), information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate for AFA, the Department selects one that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” *See Notice of Final Determination of Sales at Less Than Fair Value: Static Random Access Memory Semiconductors From Taiwan* , 63 FR 8909, 8932 (February 23, 1998). It is the Department's practice to select, as AFA, the higher of the
(a)highest margin alleged in the petition, or
(b)the highest calculated rate for any respondent in the investigation. *See Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon Quality Steel Products From the People's Republic of China* , 65 FR 34660 (May 21, 2000) and accompanying *Issues and Decision Memorandum* , at “Facts Available” section. Because the dumping margin derived from the petition is higher than the calculated weighted-average margins for the mandatory respondents, we examined whether it was appropriate to base the PRC-wide dumping margin on the secondary information in the petition. When the Department relies on secondary information, rather than information obtained in the course of an investigation, section 776(c) of the Act requires it to, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. 5 The *SAA* also states that the independent sources may include published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. See SAA at 870. 5 Secondary information is described in the *SAA* as “information derived from the petition that gave rise to the investigation or review, the final determination concerning subject merchandise, or any previous review under section 751 concerning the subject merchandise.” *See SAA* at 870. The *SAA* also clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. *See SAA* at 870. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information used. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews* , 61 FR 57391, 57392 (November 6, 1996), unchanged in *Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan: Final Results of Antidumping Duty Administrative Reviews and Termination in Part* , 62 FR 11825 (March 13, 1997). To corroborate the petition margin, we compared the range of control number-specific dumping margins calculated for the preliminary determination to the dumping margin alleged in the petition. Based on this comparison, we have preliminarily corroborated the 99.65 percent dumping from the petition. See memorandum regarding “Corroboration of the PRC-Wide Facts Available Rate for the Preliminary Determination in the Antidumping Duty Investigation of Coated Free Sheet Paper from the People's Republic of China,” dated concurrently with this notice. This PRC-wide dumping margin applies to all entries of the merchandise under investigation except for entries of subject merchandise from GE, Chenming, and Yanzhou Tianzhang. Fair Value Comparisons To determine whether GE or Chenming sold CFS to the United States at LTFV, we compared the weighted-average export price (“EP”) or constructed export price (“CEP”), as appropriate, of the CFS to the NV of the CFS, as described in the “U.S. Price,” and “NV” sections of this notice. U.S. Price EP In accordance with section 772(a) of the Act, we based the U.S. price for certain sales on EP because the first sale to an unaffiliated purchaser was made prior to importation, and the use of CEP was not otherwise warranted. In accordance with section 772(c) of the Act, we calculated EP by deducting, where applicable, the following expenses from the starting price (gross unit price) charged to the first unaffiliated customer in the United States: rebates, foreign movement expenses, marine insurance, international freight, and foreign and U.S. brokerage and handling expenses. We based these movement expenses on surrogate values where a PRC company provided the service and was paid in Renminbi (“RMB”). If market-economy service providers, who were paid in a market economy currency, provided movement services for over 33 percent of subject merchandise shipments, by volume, we based the movement expenses on the actual price charged by the service provider. If market-economy service providers, who were paid in a market economy currency, provided movement services for less than 33 percent of subject merchandise shipments, by volume, we calculated the movement expenses by weight-averaging surrogate values with the actual price charged by the service provider. *See Antidumping Methodologies: Market Economy Inputs, Expected Non-Market Economy Wages, Duty Drawback; and Request for Comments* , 71 FR 61716 (October 19, 2006) (“ *Notice for Antidumping Methodologies* ”). For details regarding our EP calculation, see analysis memoranda for GE and Chenming dated concurrently with this notice. CEP In accordance with section 772(b) of the Act, we based the U.S. price for certain sales on CEP because these sales were made by GE's and Chenming's U.S. affiliates. In accordance with section 772(c)(2)(A) of the Act, we calculated CEP by deducting, where applicable, the following expenses from the starting price (gross unit price) charged to the first unaffiliated customer in the United States: early payment discounts, billing adjustments, rebates, foreign movement expenses, international freight, marine insurance, and U.S. movement expenses, including brokerage and handling. Further, in accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), where appropriate, we deducted from the starting price the following selling expenses associated with economic activities occurring in the United States: credit expenses, warranty expenses, other direct selling expenses, and indirect selling expenses. In addition, pursuant to section 772(3) of the Act, we made an adjustment to the starting price for CEP profit. We based movement expenses on either surrogate values, actual expenses, or an average of the two as explained above in the “EP” section of this notice. NV In accordance with section 773(c) of the Act, we constructed NV from the factors of production employed by the respondents to manufacture subject merchandise during the POI. Specifically, we calculated NV by adding together the value of the factors of production, general expenses, profit, and packing costs. We valued the factors of production using prices and financial statements from the surrogate country, India, or, where appropriate, the market economy prices paid for the factor ( *see* further discussion below). In selecting surrogate values, we followed, to the extent practicable, the Department's practice of choosing values which are non-export average values, contemporaneous with, or closest in time to, the POI, product-specific, and tax-exclusive. *See e.g.* , *Notice of Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam* , 69 FR 42672, 42682 (July 16, 2004), unchanged in *Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam* , 69 FR 71005 (December 8, 2004) (“ *Shrimp from Vietnam* ”). We also considered the quality of the source of surrogate information in selecting surrogate values. We valued material inputs and packing by multiplying the amount of the factor consumed in producing subject merchandise by the average unit value of the factor. We derived the average unit value of the factor from Indian import statistics. In addition, we added freight costs to the surrogate costs that we calculated for material inputs. We calculated freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in *Sigma Corp. v. United States* , 117 F. 3d 1401, 1407-1408 (Fed. Cir. 1997). Where we could only obtain surrogate values that were not contemporaneous with the POI, we inflated (or deflated) the surrogate values using, where appropriate, the Indian Wholesale Price Index (“WPI”) as published in the International Financial Statistics of the International Monetary Fund. Further, in calculating surrogate values from Indian imports, we disregarded imports from Indonesia, South Korea, and Thailand because, in other proceedings, the Department found that these countries maintain broadly available, non-industry-specific export subsidies. Therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized. *See Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields from the People's Republic of China* , 67 FR 11670 (March 15, 2002); *see also Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Color Television Receivers From the People's Republic of China* , 69 FR 20594 (April 16, 2004). 6 Therefore, we have not used prices from these countries either in calculating the Indian import-based surrogate values or in calculating market-economy input values. In instances where a market-economy input was obtained solely from suppliers located in these countries, we used Indian import-based surrogate values to value the input. *See Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields From The People's Republic of China* , 67 FR 6482 (February 12, 2002), and accompanying *Issues and Decision Memorandum* at Comment 1. 6 We note that legislative history directs the Department not to conduct a formal investigation to ensure that such prices are not subsidized. *See* H.R. Rep. 100-576 at 590 (1988). Rather, Congress directed the Department to base its decision on information that is available to it at the time it makes its determination. During the POI, GE and Chenming purchased all or a portion of certain inputs from a market economy supplier and paid for the inputs in a market economy currency. The Department has instituted a rebuttable presumption that market economy input prices are the best available information for valuing an input when the total volume of the input purchased from all market economy sources during the period of investigation or review exceeds 33 percent of the total volume of the input purchased from all sources during the period. 7 In these cases, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average market economy purchase price to value the input. Alternatively, when the volume of an NME firm's purchases of an input from market economy suppliers during the period is below 33 percent of its total volume of purchases of the input during the period, but where these purchases are otherwise valid and there is no reason to disregard the prices, the Department will weight-average the weighted-average market economy purchase price with an appropriate surrogate value according to their respective shares of the total volume of purchases, unless case-specific facts provide adequate grounds to rebut the presumption. When a firm has made market economy input purchases that may have been dumped or subsidized, are not *bona fide* , or are otherwise not acceptable for use in a dumping calculation, the Department will exclude them from the numerator of the ratio to ensure a fair determination of whether valid market economy purchases meet the 33 percent threshold. *See Notice for Antidumping Methodologies* . Accordingly, we valued GE's and Chenming's inputs using the market economy prices paid for the inputs where the total volume of the input purchased from all market economy sources during the POI exceeded 33 percent of the total volume of the input purchased from all sources during that period. Alternatively, when the volume of GE's or Chenming's purchases of an input from market economy suppliers during the POI was below 33 percent of the company's total volume of purchases of the input during the POI, we weight-averaged the weighted-average market economy purchase price with an appropriate surrogate value according to their respective shares of the total volume of purchases, as appropriate. Where appropriate, we increased the market economy prices of inputs by freight and brokerage and handling expenses. *See* GE's Factor Value Memorandum and Chenming's Factor Value Memorandum. 7 Notwithstanding the determination the Department reached in *Shrimp from Vietnam* , at Comment 8, the Department will examine if and when the inputs were used in the production process when case-specific conditions demand it. Unless there are case-specific reasons to examine other criteria, the Department will base its decision on whether to accept market economy input purchases to value the input on the relative share of market economy purchases during the period of investigation or review to total purchases during that period. We valued raw materials and packing materials using Indian Import Statistics, except as noted below. We valued diesel fuel and purchased electricity using rates from *Key World Energy Statistics 2005* , and *Key World Energy Statistics 2003* , respectively, published by the International Energy Agency. Because these data were not contemporaneous with the POI, we inflated the values using the WPI. *See* Factor Value Memoranda. We valued natural gas using a value obtained from the Gas Authority of India Ltd.'s website, a supplier of natural gas in India. *See http://www.gailonline.com/gailnewsite/index.html* . The value relates to the period January through June 2002. Therefore, we inflated the value using the appropriate WPI inflator. In addition, we added transportation charges to the value. See Surrogate Value Memorandum and *Polyvinyl Alcohol From the People's Republic of China: Final Results of Antidumping Duty Administrative Review* , 71 FR 27991 (May 15, 2006), and accompanying *Issues and Decision Memorandum* at Comment 2. Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect, and packing labor, using the most recently calculated regression-based wage rate, which relies on 2004 data. This wage rate can currently be found on the Department's website on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in January 2007, *http://ia.ita.doc.gov/wages/index.html* . The source of these wage-rate data on the Import Administration's web site is the Yearbook of Labour Statistics 2002, ILO (Geneva: 2002), Chapter 5B: Wages in Manufacturing. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by GE and Chenming. *See* Factor Value Memoranda. We valued water using data from the Maharashtra Industrial Development Corporation (www.midcindia.org) since it includes a wide range of industrial water tariffs. This source provides 386 industrial water rates within the Maharashtra province from June 2003: 193 for the “inside industrial areas” usage category and 193 for the “outside industrial areas” usage category. Because the value was not contemporaneous with the POI, we inflated the rate using the WPI. *See* Factor Value Memoranda. We valued truck freight expenses using a per kilometer per kilogram average rate from data obtained from the web site of an Indian transportation company, InFreight Technologies India Limited. *See http://www.infreight.com/* . This average rate was used by the Department in the antidumping duty administrative review of *Saccharin from the People's Republic of China; Preliminary Results of the 2005-2006 Antidumping Duty Administrative Review* , 72 FR 25247 (May 4, 2007). Because this value is not contemporaneous with the POI, we inflated the rate using the WPI. *See* Factor Value Memoranda. We used two sources to calculate the surrogate value for domestic brokerage and handling expenses. We averaged publicly available brokerage and handling data reported by Essar Steel in the antidumping duty administrative review of hot-rolled carbon steel flat products from India with publicly available brokerage and handling data reported by Agro Dutch Industries Limited (“Agro Dutch”) in the antidumping duty administrative review of certain preserved mushrooms from India. *See Certain Hot-Rolled Carbon Steel Flat Products From India: Preliminary Results of Antidumping Duty Administrative Review* , 71 FR 2018, 2022 (January 12, 2006) (Essar Steel's February 28, 2005, submission); *see also Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review* , 70 FR 37757 (June 30, 2005) (Agro Dutch's May 24, 2005, submission). *See* Factor Value Memoranda. We valued marine insurance using a price quote from *http://www.rjgconsultants.com/insurance.html* , a market-economy provider of marine insurance. *See* GE's Factor Value Memorandum. We valued factory overhead, selling, general, and administrative (SG&A) expenses, and profit, using the audited financial statements from the following Indian companies: Seshasayee Paper and Boards Ltd., JK Paper, Ltd., and Ballarpur Industries Ltd.. *See* Factor Value Memoranda. We selected the above-referenced financial statements from among the financial statements placed on the record by interested parties because these companies produce subject merchandise and, like the respondents, do so by producing wood free paper and coating it. Because the financial statements that we are using as surrogates do not separately report manufacturing and non-manufacturing labor costs, the petitioner proposes allocating the line item for labor costs on these financial statements between manufacturing labor costs and SG&A labor costs. Specifically, the petitioner suggests allocating the line item for labor costs using data from an annual survey of the Indian paper and paper products industry which identifies wages paid to all employees and wages paid to workers (defined as persons employed in any manufacturing process). Generally, the Department does not adjust the data used to calculate financial ratios because it is concerned that such adjustments may introduce unintended distortions into the data. *See Final Determination of Sales at Less Than Fair Value: Wooden Bedroom Furniture From the People's Republic of China* , 69 FR 67313 (November 17, 2004) and accompanying *Issues and Decision Memorandum* at Comment 12. Thus, for the preliminary determination, we have not adjusted labor costs in the surrogate financial statements. Nevertheless, the Department intends to revisit this issue for the final determination. In accordance with 19 CFR 351.301(c)(3)(i), interested parties may submit publicly available information with which to value factors of production in the final determination within 40 days after the date of publication of the preliminary determination. Currency Conversion We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. Verification As provided in section 782(i)(1) of the Act, we intend to verify the information upon which we will rely in making our final determination. Combination Rates In the *Initiation Notice* , the Department stated that it would calculate combination rates for certain respondents that are eligible for a separate rate in this investigation. *See Initiation Notice* . This change in practice is described in *Policy Bulletin 05.1* , available at *http://ia.ita.doc.gov/. Policy Bulletin 05.1* , states: {w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation. *See Policy Bulletin 05.1* , “Separate Rates Practice and Application of Combination Rates in Antidumping Investigations Involving Non-Market Economy Countries.” Preliminary Determination The weighted-average dumping margins are as follows: Exporter & Producer Weighted-Average Margin GE's Collapsed Entity: (Gold East Paper (Jiangsu) Co. Ltd.-Gold Hua Sheng Paper (Suzhou Industry Park) Co. Ltd.-China Union (Macao Commercial Offshore) Company Ltd.) 23.19 %% Shandong Chenming Paper Holdings Ltd. 48.07 %% Yanzhou Tianzhang Paper Industry Co. Ltd. 30.22 %% PRC-Wide Rate 99.65 %% Disclosure We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b). Suspension of Liquidation In accordance with section 733(d) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of CFS from the PRC as described in the “Scope of the Investigation” section, entered, or withdrawn from warehouse, for consumption from GE's collapsed entity ( *i.e.* , GE, GHS, and CU), Chenming, Yanzhou Tianzhang, and the PRC-wide entity on or after the date of publication of this notice in the **Federal Register** . We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the NV exceeds U.S. price, as indicated above. The suspension of liquidation will remain in effect until further notice. International Trade Commission Notification In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at LTFV. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of CFS, or sales (or the likelihood of sales) for importation, of the subject merchandise within 45 days of our final determination. Public Comment Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, no later than five days after the deadline for submitting case briefs. A list of authorities used and an executive summary of issues should accompany any briefs submitted to the Department. This summary should be limited to five pages total, including footnotes. In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we intend to hold the hearing three days after the deadline of submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Ave, NW, Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice. See 19 CFR 351.310(c). Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. At the hearing, each party may make an affirmative presentation only on issues raised in that party's case brief and may make rebuttal presentations only on arguments included in that party's rebuttal brief. Postponement of Final Determination and Extension of Provisional Measures Pursuant to section 735(a)(2) of the Act, on May 11, 2007, GE requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, GE requested that the Department extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a 4-month period to a 6-month period. In accordance with section 733(d) of the Act and 19 CFR 351.210(b), because
(1)our preliminary determination is affirmative,
(2)the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and
(3)no compelling reasons for denial exist, we are granting the request and are postponing the final determination until no later than 135 days after the publication of this notice in the **Federal Register** . Suspension of liquidation will be extended accordingly. This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act. Dated: May 29, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-10705 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-580-856] Coated Free Sheet Paper from the Republic of Korea: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The U.S. Department of Commerce (“the Department”) preliminarily determines that coated free sheet paper (“CFS paper”) from the Republic of Korea (“Korea”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(b) of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending the provisional measure from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: Brian Ledgerwood (Kyesung Paper Co., Ltd.), Dennis McClure (EN Paper Mfg. Co., Ltd.), Stephanie Moore (Moorim Paper Co., Ltd. and Moorim SP Co., Ltd.), or Joy Zhang (Hankuk Paper Mfg. Co., Ltd. and Hansol Paper Co., Ltd.), AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone
(202)482-3836,
(202)482-5973,
(202)482-3692, or
(202)482-1168, respectively. SUPPLEMENTARY INFORMATION: Background On November 27, 2006, the Department initiated an antidumping duty investigation of CFS from Korea. *See Initiation of Antidumping Duty Investigations: Coated Free Sheet Paper From Indonesia, the People's Republic of China, and the Republic of Korea* , 71 FR 68537 (November 27, 2006) (“ *Initiation Notice* ”). The petitioner in this investigation is NewPage Corporation. The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice. See Initiation Notice* , 71 FR at 68538; *see also Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19, 1997). On January 12, 2007, the Indonesian Respondents submitted scope comments. *See Scope Comments* section, below. On December 11, 2006, the petitioner submitted comments on model-matching criteria. On December 18, 2006, respondents Hansol Paper Co., Ltd. (“Hansol”), Moorim Paper Co., Ltd. and Moorim SP Co., Ltd. (“Moorim”) (formerly Shinmoorim Paper Mfg. Co., Ltd.), and EN Paper Mfg. Co., Ltd. (“EN Paper”) (formerly Shinho Paper Co., Ltd.) submitted comments on model-matching criteria. On February 15, 2007, Hansol submitted additional comments on model-matching criteria. *See Model Match* section, below. Section 777A(c)(1) of the Act directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise. The Department identified a large number of producers and exporters of CFS paper in Korea and determined that it was not practicable to examine each known exporter/producer of the subject merchandise, as provided in section 777A(c)(1) of the Act. Thus, we selected to investigate EN Paper, Moorim, and Hansol. These three exporters/producers accounted for the largest volume of subject merchandise exported to the United States during the period of investigation (“POI”). See section 777A(c)(2)(i)(B) of the Act; *See* Memorandum from the Team, through Office Director Melissa Skinner, to Deputy Assistant Secretary Stephen J. Claeys, entitled “Regarding Selection of Respondents,” dated December 21, 2006. We subsequently issued the antidumping questionnaire 1 to these companies on December 22, 2006. 1 Section A of the questionnaire requests general information concerning a company's corporate structure and business practices, the merchandise under investigation that it sells, and the manner in which it sells that merchandise in all of its markets. Section B requests a complete listing of all home market sales or, if the home market is not viable, of sales in the most appropriate third-country market. Section C requests a complete listing of U.S. sales. Section D requests information on the cost of production of the foreign like product and the constructed value of the merchandise under investigation. Section E requests information on further manufacturing. On December 22, 2006, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of CFS paper from China, Indonesia and Korea are materially injuring the U.S. industry and the ITC notified the Department of its findings. *See Coated Free Sheet Paper from China, Indonesia, and Korea, Investigation Nos. 701-TA-444-446 (Preliminary) and 731-TA-1107-1109 (Preliminary)* , 71 FR 78464 (December 29, 2006). On December 28, 2006, counsel to petitioner met with the Department to discuss the Department's December 21, 2006, respondent selection memorandum and petitioner's December 22, 2006, submission requesting the Department to select an additional respondent. *See* Memorandum from Joy Zhang to The File, entitled “Ex Parte Meeting with Counsel to Petitioner,” dated December 28, 2006. On January 5, 2007, the Department reexamined the availability of its resources and determined it was practicable to investigate one additional mandatory respondent, Kyesung Paper Co., Ltd. (“Kyesung”). *See* Memorandum from Program Manager James Terpstra, through Office Director Melissa Skinner, to Deputy Assistant Secretary Stephen J. Claeys, entitled “Response to Comments from Interested Parties Regarding Respondent Selection,” dated January 5, 2007. We subsequently issued the antidumping questionnaire to Kyesung. On February 15, 2007, David Spooner, the Assistant Secretary for Import Administration, met with officials from the Korean Embassy to discuss the Department's selection of respondents. *See* Memorandum from Katja Kravetsky to The File, entitled “Ex Parte Meeting,” dated February 15, 2007. On March 15, 2007, the Department selected Hankuk as a mandatory respondent. *See* Memorandum from James Terpstra, Program Manager to The File, dated March 15, 2007. On March 20, 2007, petitioner provided comments on the Department's decision to calculate a dumping margin for Hankuk as a mandatory respondent in this investigation. On January 10, 2007, the petitioner filed a country-wide allegation of sales of CFS paper at prices below the cost of production (“COP”). We found that the petitioner had provided a reasonable basis to believe or suspect that Korean producers were selling CFS paper in Korea at prices below the COP. See section 773(b)(2)(A)(i) of the Act. We initiated a country-wide sales-below-cost investigation on January 26, 2007, and requested that all Korean respondents respond to section D of the Department's questionnaire. *See* Memorandum from the Team, through James Terpstra, Program Manager to Office Director Melissa Skinner, entitled “Regarding Petitioner's Allegation of Country-Wide Sales Below the Cost of Production,” dated January 26, 2007 (“Cost Allegation Memorandum”). 2 2 A public version of this memorandum is available in the Central Records Unit (“CRU”), located in room B-099 of the main Department building. On January 26, 2007, the Department received the Section A responses from EN Paper, Moorim, and Hansol. On February 9, 2007, the Department received a Section A voluntary response from Hankuk Paper Mfg. Co., Ltd. (“Hankuk”). On February 13, 2007, the Department received the Section A response from Kyesung. We received the Sections B and C responses from Hansol and Moorim on February 15, 2007. On February 16, 2007, we received the Sections B and C response from EN Paper. On March 2, 2007, we received a Sections B and C voluntary response from Hankuk. On March 5, 2007, we also received Kyesung's Sections B and C response and Section D responses from all respondents as well as Hankuk. On February 27, 2007, the Department received comments from the petitioner on Sections A through C responses for EN Paper and Hansol. On March 6, 2007, the petitioner commented on Moorim's Sections A through C response. On March 12, 2007, the petitioner commented on Kyesung's Sections A through C response. On March 15, 2007, Kyesung replied to the petitioner's March 12, 2007, comments. After reviewing the Sections A through D responses from each respondent, the Department issued supplemental questionnaires to the above companies. The petitioner submitted additional comments on each of the supplemental questionnaire responses. The Department issued additional supplemental questions, after reviewing each supplemental response. The Department received requests from Hansol and Moorim to exclude certain sales, on January 26 and February 2, 2007, respectively. The petitioner submitted letters objecting to any exclusion of home market sales on January 29 and February 5, 2007. On February 2, 2007, the Department requested additional information in order to thoroughly evaluate Hansol's request to exclude certain sales. On February 8, 2007, the Department requested additional information from Moorim. On February 9 and 14, 2007, respectively, Hansol and Moorim submitted responses to the Department's request for additional information. On February 14, 2007, the petitioner submitted additional comments concerning Hansol's request to exclude certain sales. On March 2, 2007, the Department sent letters to Hansol and Moorim denying the request to exclude certain sales. On February 23, 2007, the petitioner requested the Department extend the deadline for filing targeted dumping allegations. On March 2, 2007, the petitioner requested the Department postpone the preliminary determination by 50 days. On March 2, 2007, the Department explained to the petitioner that the deadline to file a targeted dumping allegation would be 30 days from any revised deadline for the preliminary determination. *See* Memorandum from James Terpstra to The File, entitled “Extension of the Deadline to File a Targeted Dumping Allegation in the Antidumping Duty Investigation on Coated Free Sheet Paper from Korea,” dated March 2, 2007. On March 12, 2007, the Department postponed the preliminary determination by 50 days. *See Postponement of Preliminary Determinations in the Antidumping Duty Investigations of Coated Free Sheet Paper from the People's Republic of China, Indonesia, and the Republic of Korea* , 72 FR 12757 (March 19, 2007). The petitioner filed targeted dumping allegations against Moorim, Hankuk, and Hansol, on April 26, 2007. *See* section 777A(d)(1)(B) of the Act. On May 14 and 15, 2007, respectively, the Department received comments from Hansol and Moorim objecting to the targeted dumping allegations. On May 18, 2007, the petitioner filed rebuttal comments. Although petitioner's allegations were timely, the Department did not have sufficient time to fully analyze them for purposes of this preliminary determination. In addition, the Department has requested more information from petitioner with respect to its targeted dumping allegations. *See* Letter from Melissa Skinner to Petitioner, dated May 22, 2007. We intend to fully consider this issue for purposes of our final determination. On May 9, 2007, EN Paper and the Korea Paper Manufacturers' Association requested the Department postpone the final determination and extend the provisional measures. *See Postponement of Final Determination and Extension of Provisional Measures* section, below. On May 11, 2007, the petitioner submitted pre-preliminary comments on Hankuk, Hansol, and Moorim. Period of Investigation The POI is October 1, 2005, to September 30, 2006. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of Investigation The merchandise covered by this investigation includes coated free sheet paper and paperboard of a kind used for writing, printing or other graphic purposes. Coated free sheet paper is produced from not-more-than 10 percent by weight mechanical or combined chemical/mechanical fibers. Coated free sheet paper is coated with kaolin (China clay) or other inorganic substances, with or without a binder, and with no other coating. Coated free sheet paper may be surface-colored, surface-decorated, printed (except as described below), embossed, or perforated. The subject merchandise includes single- and double-side-coated free sheet paper; coated free sheet paper in both sheet or roll form; and is inclusive of all weights, brightness levels, and finishes. The terms “wood free” or “art” paper may also be used to describe the imported product. Excluded from the scope are:
(1)coated free sheet paper that is imported printed with final content printed text or graphics;
(2)base paper to be sensitized for use in photography; and
(3)paper containing by weight 25 percent or more cotton fiber. Coated free sheet paper is classifiable under subheadings 4810.13.1900, 4810.13.2010, 4810.13.2090, 4810.13.5000, 4810.13.7040, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.7040, 4810.19.1900, 4810.19.2010, and 4810.19.2090 of the Harmonized Tariff Schedule of the United States (“HTSUS”). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Scope Comments In our *Initiation Notice* , we set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice* . On December 18, 2006, PT. Pabrik Kertas Tjiwi Kimia Tbk. and PT. Pindo Deli Pulp and Paper Mills (“PD/TK”) submitted timely scope comments in the companion antidumping (“AD”) and countervailing duty (“CVD”) investigations on CFS paper from Indonesia. On January 12, 2007, the Department requested that PD/TK also file these comments on the administrative records of the companion AD and CVD investigations of CFS paper from the People's Republic of China and the Republic of Korea. *See* Memorandum from Alice Gibbons to The File, dated January 12, 2007. PD/TK did so on the same date. On January 19, 2007, the petitioner responded to these comments. In its comments, PD/TK requested that the Department exclude from its investigations cast-coated free sheet paper. The Department analyzed this request, together with the comments from the petitioner, and determined that it is not appropriate to exclude cast-coated free sheet paper from the scope of these investigations. The Department's analysis is set forth in a memorandum dated March 22, 2007. *See* the Memorandum from Barbara Tillman, Director, AD/CVD Operations, Office 6, to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, entitled, “Request to Exclude Cast-Coated Free Sheet Paper from the Antidumping Duty and Countervailing Duty Investigations on Coated Free Sheet Paper.” Model Match In accordance with section 771(16) of the Act, all products produced by the respondents covered by the description in the *Scope of Investigation* section, above, and sold in Korea during the POI are considered to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We have relied on seven criteria to match U.S. sales of subject merchandise to comparison market sales of the foreign like product: coating, form, basis weight, brightness, finish, opacity, and sheet size. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed above. On December 11, 2006, the petitioner filed proposed model-matching criteria to use in the Department's questionnaire. On December 18, 2006, EN Paper, Hansol, and Moorim, separately filed proposed model-matching criteria for use in the questionnaire. On December 22, 2006, the Department issued the questionnaire containing the criteria identified above. On February 15, 2007, Hansol requested that the Department modify the order of its matching criteria. Hansol suggested that the revised hierarchy should be: coating, form, brightness, finish, basis weight, opacity, and sheet size. We reviewed the responses of each respondent, including the product brochures. We do not find that Hansol's suggested product match is any more reflective of the industry than the hierarchy of physical characteristics in the Department's questionnaire. Therefore, we have not modified the order of the Department's matching criteria. *See* Memorandum from the Team, Office 3, AD/CVD Operations, through James Terpstra, Program Manager, AD/CVD Operations, to Melissa Skinner, Office Director, AD/CVD Operations, entitled, “Discussion of Model Match Criteria/Hierarchy,” dated May 29, 2007. Date of Sale Section 351.401(i) of the Department's regulations states that the Department normally will use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. The regulations further provide that the Department may use a date other than the date of the invoice if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established. The Department has a long-standing practice of finding that, where shipment date precedes invoice date, shipment date better reflects the date on which the material terms of sale are established. *See* 19 CFR 351.401(i); *see also Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp from Thailand* , 69 FR 76918 (December 23, 2004), and accompanying Issues and Decision Memorandum at Comment 10; and *Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel Beams from Germany* , 67 FR 35497 (May 20, 2002), and accompanying Issues and Decision Memorandum at Comment 2. Therefore, we used the earlier of shipment date or invoice date as the date of sale in accordance with our practice. Fair Value Comparisons To determine whether sales of CFS paper from Korea were made in the United States at less than normal value (“NV”), we compared the export price (“EP”) or constructed export price (“CEP”) to the NV, as described in the *Export Price and Constructed Export Price* and *Normal Value* sections below. In accordance with section 777A(d)(1) of the Act, we calculated the weighted-average prices for NV and compared these to the weighted-average of EP (and CEP). Export Price and Constructed Export Price For the price to the United States, we used, as appropriate, EP or CEP, in accordance with sections 772(a) and
(b)of the Act. Pursuant to section 772(a) of the Act, we used the EP methodology when the merchandise was sold by the producer or exporter outside the United States directly to the first unaffiliated purchaser in the United States prior to importation and when CEP was not otherwise warranted based on the facts on the record. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the sale to the first unaffiliated purchaser in the United States of the subject merchandise. *See* section 772(b) of the Act. We based EP and CEP on the packed prices charged to the first unaffiliated customer in the United States and the applicable terms of sale. When appropriate, we adjusted prices to reflect billing adjustments and increased prices to reflect duty drawback. In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including inland freight, brokerage, international freight, marine insurance, U.S. customs duties, U.S. warehouse expense and various U.S. movement expenses from arrival to delivery. For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (cost of credit, commissions, warranty, and other direct selling expenses). These expenses include certain indirect selling expenses incurred by affiliated U.S. distributors. Furthermore, we have included a portion of EN Paper's and Hansol's indirect selling expenses incurred in Korea on behalf of sales to unaffiliated customers in the United States. *See* “Preliminary Calculation Memoranda” for each company, dated May 29, 2007 (“Preliminary Calculation Memoranda”) on file in the CRU. We also deducted from CEP an amount for profit in accordance with sections 772(d)(3) and
(f)of the Act. Normal Value A. Home Market Viability and Comparison Market Selection To determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the respondents' volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B)(i) of the Act, because each respondent had an aggregate volume of home market sales of the foreign like product that was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable. B. Arm's-Length Test Hankuk, Hansol, Kyesung, and Moorim reported sales of the foreign like product to affiliated customers. The Department calculates NV based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the price at which sales are made to parties not affiliated with the producer or exporter, *i.e.* , sales at “arm's length.” *See* 19 CFR 351.403(c). To test whether these sales were made at arm's length, we compared the starting prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, discounts and packing. We included an amount for warehouse revenue for Moorim. In accordance with the Department's current practice, if the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise identical or most similar to that sold to the affiliated party, we considered the sales to be at arm's-length prices and included such sales in the calculation of NV. *See* 19 CFR 351.403(c). Conversely, where sales to the affiliated party did not pass the arm's-length test, all sales to that affiliated party were excluded from the NV calculation. *See Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade* , 67 FR 69186 (November 15, 2002), and company-specific “Preliminary Calculation Memoranda.” C. Cost of Production Analysis Based on our analysis of the petitioner's allegation, we found that there were reasonable grounds to believe or suspect that EN Paper's, Kyesung's, Moorim's, Hansol's and Hankuk's sales of CFS paper in the home market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a sales-below-cost investigation to determine whether these companies had sales that were made at prices below their respective COPs. *See* “Cost Allegation Memorandum.” 1. Calculation of Cost of Production In accordance with section 773(b)(3) of the Act, we calculated the respondents' COP based on the sum of its costs of materials and conversion for the foreign like product, plus amounts for general and administrative (“G&A”) expenses and interest expenses ( *see* the *Test of Comparison Market Sales Prices* section below for the treatment of home market selling expenses). The Department relied on the COP data submitted by EN Paper, Kyesung, Moorim, Hansol and Hankuk, in their respective supplemental section D questionnaire responses for the COP calculation, except for the following instances where the information was not appropriately quantified or valued: a. We revised the general and administrative (G&A) expense ratio to exclude the credit balance for bad debt allowance. EN Paper did not fully explain what the gain represents or provide supporting documentation, therefore we have disallowed the offset for the preliminary determination. Our revisions to EN Paper's COP data are discussed in the Memorandum from James Balog, Senior Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - EN Paper Mfg. Co., Ltd.,” dated May 29, 2007. b. For Moorim, we revised the G&A expense rate calculations for both Moorim Paper Co., Ltd. and Moorim SP Co., Ltd. to exclude certain income offsets associated with selling activities and include expense and income items related to administrative rental transactions. Our revisions to Moorim 's COP data are discussed in the Memorandum from Angela Strom, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - Moorim Paper Co., Ltd and Moorim SP Co., Ltd. (collectively “Moorim”),” dated May 29, 2007. c. We revised Hansol's G&A expense rate calculation to include in G&A expenses a loss on the write down of an intangible asset held by the company. Our revisions to Hansol's COP data are discussed in the Memorandum from Heidi K. Schriefer, Senior Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - Hansol Paper Co., Ltd.” dated May 29, 2007. d. For products sold during the POI but produced prior to the POI Kyesung used the cost for the most similar control number that was produced during the POI. We noted that the method used to identify the most similar control number did not use the model-match hierarchy laid out by the Department. However, none of the control numbers in question were sold in the United States or used as a similar match to products sold in the United States. e. We did not make any adjustments to Hankuk's reported costs for the preliminary determination. 2. Test of Comparison Market Sales Prices On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses. In addition, we included an amount for warehouse revenue for Moorim. 3. Results of the COP Test Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POI were at prices less than COP, we determined that such sales have been made in “substantial quantities.” See section 773(b)(2)(C) of the Act. Further, the sales were made within an extended period of time, in accordance with section 773(b)(2)(B) of the Act, because we examined below-cost sales occurring during the entire POI. In such cases, because we compared prices to POI-average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. We found that, for certain specific products, more than 20 percent of EN Paper's, Kyesung's, Moorim's, Hansol's, and Hankuk's sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act. D. Calculation of Normal Value Based on Comparison Market Prices We based home market prices on packed prices to unaffiliated purchasers in Korea. We adjusted the starting price for inland freight, warehouse expense, and warehouse revenue, where appropriate, pursuant to section 773(a)(6)(B)(ii) of the Act. In addition, for comparisons made to EP sales, we made adjustments for differences in circumstances of sale (“COS”) pursuant to section 773(a)(6)(C)(iii) of the Act. We made COS adjustments by deducting direct selling expenses incurred for home market sales (credit expense) and adding U.S. direct selling expenses (credit, commissions, warranty directly linked to sales transactions, and other direct selling expenses), where appropriate. *See* 19 CFR 351.410. We also made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred in the home market or United States where commissions were granted on sales in one market but not in the other, *i.e.* , the “commission offset.” Specifically, where commissions are incurred in one market, but not in the other, we will limit the amount of such adjustment to the amount of either the selling expenses incurred in the one market or the commissions allowed in the other market, whichever is less. When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise. *See* 19 CFR 351.411(b). E. Level of Trade/Constructed Export Price Offset In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP or CEP transaction. In identifying LOTs for EP and comparison market sales ( *i.e.* , NV based on home market), we consider the starting prices before any adjustments. For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act. *See Micron Technology, Inc. v. United States* , 243 F.3d 1301, 1314 (Fed. Cir. 2001). To determine whether NV sales are at a different LOT than EP or CEP transactions, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP-offset provision). Hansol and Moorim reported sales made through one LOT corresponding to one channel of distribution in the home market. In the U.S. market, Hansol and Moorim reported one LOT corresponding to three or two channels of distribution for sales through U.S. affiliates ( *i.e.* , CEP sales), respectively. In our analysis, we determined that there is one LOT in the home market and one LOT in the U.S. market. We have found that home market sales are at a more advanced LOT. Accordingly, we have made CEP offsets to NV. *See* 773(a)(7)(B) of the Act. Hankuk and Kyesung reported sales through one LOT corresponding to two or three channels of distribution in the home market, respectively. In the U.S. market, Hankuk and Kyesung reported one LOT corresponding to one or two channels of distribution for sales made directly to the unaffiliated U.S. customers ( *i.e.* , EP sales), respectively. In our analysis, we determined that there is one LOT in the home market and one LOT in the U.S. market. We have found that sales to the U.S. and home markets were made at the same LOT, and as a result, no LOT adjustment was warranted. EN Paper reported sales made through one LOT corresponding to one channel of distribution in the home market. In the U.S. market, EN Paper reported one LOT corresponding to three channels of distribution. EN Paper made sales through its U.S. affiliate ( *i.e.* , CEP sales) and directly to the U.S. customer ( *i.e.* , EP sales). In our analysis, we determined that there is one LOT in the home market and two LOTs in the U.S. market. We have found that home market sales are at a more advanced LOT than the CEP sales made through its U.S. affiliate. Accordingly, we have made CEP offsets to NV. We have found that sales made directly to the U.S. customer were made at the same LOT, and as a result, no LOT adjustment was warranted. For a detailed description of our LOT methodology and a summary of company-specific LOT findings for these preliminary results, see our analysis contained in the “Preliminary Calculation Memoranda.” Currency Conversion We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. All Others Rate Pursuant to section 735(c)(5)(A) of the Act, the “all others” rate is equal to the weighted average of the estimated weighted-average dumping margins of all respondents investigated, excluding zero or *de minimis* margins. EN Paper and Kyesung are the only respondents in this investigation for which the Department has calculated a company-specific rate that is not zero or *de minimis* . Therefore, for purposes of determining the “all others” rate and pursuant to section 735(c)(5)(A) of the Act, we are using the weighted-average dumping margin calculated for EN Paper and Kyesung for the “all others” rate, as referenced in the *Suspension of Liquidation* section, below. Verification As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination. Suspension of Liquidation In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of CFS paper from Korea, with the exception of those exported by Hankuk, Hansol, or Moorim, that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the **Federal Register** . We are also instructing CBP to require a cash deposit or the posting of a bond equal to the weighted-average dumping margin, as indicated in the chart below. These suspension-of-liquidation instructions will remain in effect until further notice. The weighted-average dumping margins are as follows: Manufacturer/Exporter Weighted-Average Margin (percent) EN Paper Mfg. Co., Ltd. 12.31 Hankuk Paper Mfg. Co., Ltd. 0.00 Hansol Paper Co., Ltd. 0.00 Kyesung Paper Co., Ltd. 30.86 Moorim Paper Co. Ltd. and Moorim SP Co., Ltd. 0.00 All Others 18.45 Disclosure We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b). ITC Notification In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of CFS paper from Korea are materially injuring, or threaten material injury to, the U.S. industry. Because we have postponed the deadline for our final determination to 135 days from the date of the publication of this preliminary determination, the ITC will make its final determination within 45 days of our final determination. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the final verification report in this proceeding. *See* 19 CFR 351.309(c)(1)(i). Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline date for the submission of case briefs. *See* 19 CFR 351.309(d)(1) and (2). A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette. In accordance with section 774 of the Act, the Department will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the rebuttal brief deadline date at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain:
(1)The party's name, address, and telephone number;
(2)the number of participants; and
(3)a list of the issues to be discussed. *See* 19 CFR 351.310(c). At the hearing, oral presentations will be limited to issues raised in the briefs. Postponement of Final Determination and Extension of Provisional Measures Pursuant to section 735(a)(2) of the Act, on May 9, 2007, EN Paper and the Korea Paper Manufacturers' Association, which accounts for a significant proportion of exports of CFS paper, requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, the Korean Paper Manufacturers' Association requested that the Department extend by 60 days the application of the provisional measures. *See* 735(a)(2) of the Act and 19 CFR 351.210(e)(2). In accordance with section 733(d) of the Act and 19 CFR 351.210(b)(2)(ii), because
(1)our preliminary determination is affirmative,
(2)the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and
(3)no compelling reasons for denial exist, we are granting their request and are postponing the final determination until no later than 135 days after the publication of this notice in the **Federal Register** . Suspension of liquidation will be extended accordingly. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: May 29, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-10706 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-427-820, A-475-829, A-580-847, A-412-822] Stainless Steel Bar from France, Italy, South Korea and the United Kingdom; Final Results of the Expedited Sunset Reviews of the Antidumping Duty Orders AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On February 1, 2007, the Department of Commerce (“the Department”) initiated sunset reviews of the antidumping duty orders on stainless steel bar from France, Italy, South Korea and the United Kingdom pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). The Department conducted expedited (120-day) sunset reviews for these orders. As a result of these sunset reviews, the Department finds that revocation of the antidumping duty orders would be likely to lead to continuation or recurrence of dumping. The dumping margins are identified in the Final Results of Reviews section of this notice. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION: Audrey Twyman or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-3534 and
(202)482-0182, respectively. SUPPLEMENTARY INFORMATION: Background On February 1, 2007, the Department published the notice of initiation of the sunset reviews of the antidumping duty orders on stainless steel bar (“SSB”) from France, Italy, South Korea and the United Kingdom pursuant to section 751(c) of the Act. See Initiation of Five-year (“Sunset”) Reviews, 72 FR 4689 (February 1, 2007). The Department received the Notice of Intent to Participate from Carpenter Technology Corp.; North American Stainless; Crucible Specialty Metals Division of Crucible Materials Corp.; Electralloy; Outokumpu Stainless Bar, Inc.; Universal Stainless &Alloy Products, Inc.; and Valbruna Slater Stainless, Inc. (collectively “the domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's Regulations (“Sunset Regulations”). (Valbruna Slater Stainless, Inc. will remain neutral regarding the continuation of the antidumping duty order against Italy.) The domestic interested parties claimed interested party status under sections 771(9)(C) of the Act, as manufacturers of a domestic-like product in the United States. We received complete substantive responses from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received no responses from respondent interested parties with respect to any of the orders covered by these sunset reviews. As a result, pursuant to section 751(c)(4)(A) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of these orders. The domestic interested parties submitted letters on April 12, 2007, agreeing with the Department's decision to conduct expedited sunset reviews for these orders because we did not receive responses from any respondent interested parties. Scope of the Orders For the purposes of these orders, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process. Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (i.e., cut length rolled products which if less than 4.75 mm in thickness have a width measuring at least 10 times the thickness, or if 4.75 mm or more in thickness having a width which exceeds 150 mm and measures at least twice the thickness), products that have been cut from stainless steel sheet, strip or plate, wire (i.e., cold-formed products in coils, of any uniform solid cross section along their whole length, which do not conform to the definition of flat-rolled products), and angles, shapes and sections. The stainless steel bar subject to these reviews is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the *Harmonized Tariff Schedule of the United States* (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive. Analysis of Comments Received All issues raised in these reviews are addressed in the “Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Stainless Steel Bar from France, Italy, South Korea, and the United Kingdom; Final Results” (“Decision Memo”) from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, dated May 25, 2007, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the orders were to be revoked. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum which is on file in room B-099 of the main Department building. In addition, a complete version of the Decision Memo can be accessed directly on the Web at *http://ia.ita.doc.gov/frn* , under the heading “May 2007.” The paper copy and electronic version of the Decision Memo are identical in content. Final Results of Reviews We determine that revocation of the antidumping duty orders on SSB from France, Italy, South Korea, and the United Kingdom would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage margins: Manufacturers/Exporters/Producers Weighted Average Margin (percent) France Aubert &Duval, S.A. 71.83 All Others 35.92, as amended Italy Cogne Acciai Speciali Srl 33.00 All Others 6.60, as amended South Korea Changwon Specialty Steel Co. Ltd. 13.38 Dongbang Indusrial Co., Ltd 4.75 All Others 11.30 United Kingdom Crownridge Stainless Steels, Ltd. (Valkai Ltd.) 125.77 Firth Rixson Special Steels, Ltd. 125.77 All Others 83.85, as amended This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act. Dated: May 25, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-10702 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-449-804] Notice of Preliminary Results of Antidumping Duty Administrative Review: Steel Concrete Reinforcing Bars from Latvia AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on steel concrete reinforcing bars (rebar) from Latvia. We preliminarily determine that sales of subject merchandise by Joint Stock Company Liepajas Metalurgs
(LM)have been made below normal value (NV). If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection
(CBP)to assess antidumping duties on appropriate entries based on the difference between the export price
(EP)and the NV. Interested parties are invited to comment on these preliminary results. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: David Layton at
(202)482-0371; AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14 th Street & Constitution Avenue, NW., Washington, DC 20230. SUPPLEMENTARY INFORMATION: Background On September 7, 2001, the Department published an antidumping duty order on rebar from Latvia. *See Antidumping Duty Orders: Steel Concrete Reinforcing Bars From Belarus, Indonesia, Latvia, Moldova, People's Republic of China, Poland, Republic of Korea and Ukraine* , 66 FR 46777 (September 7, 2001). On September 1, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order of rebar from Latvia for the fifth period of review which covers September 1, 2005, through August 31, 2006 (POR). *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review* , 71 FR 52061 (September 1, 2006). On September 29, 2006, in accordance with 19 CFR 351.213(b)(1), the petitioner 1 requested an administrative review of LM. 1 The petitioner is the Rebar Trade Action Coalition
(RTAC)which comprises Nucor Corporation, Gerdau Ameristeel Corporation, and Commercial Metals Company. On October 31, 2006, the Department published the initiation of the fifth administrative review of the antidumping duty order on rebar from Latvia. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 71 FR 63752 (October 31, 2006). On November 9, 2006, LM submitted a letter to the Department in which it certified that it made no sales of subject merchandise to the United States during the POR but acknowledged subject merchandise may have entered the United States during the POR. On November 21, 2006, the petitioner submitted comments regarding LM's claim of no sales. On April 9, 2007, and May 9, 2007, we placed memoranda on the file that provided the results of the Department's query of Customs and Border Protection
(CBP)data regarding sales of subject merchandise during the POR. *See* Memorandum to File from Saliha Loucif: Query of U.S. Customs and Border Protection Database for Sales During the Fifth Administrative Review (April 9, 2007) (Data Query Memo) and Memorandum to File from David Layton: Placement of Additional Documents on the Record (May 9, 2007) (Record Memo). On April 9, 2007, and May 9, 2007, we also placed certain documents from the final results of the fourth administrative review of the antidumping order on steel concrete reinforcing bars from Latvia (covering the period September 1, 2004 through August 31, 2005) on the record of the current administrative review. *See* Memorandum to File from Saliha Loucif: Copying of documents from the record of the fourth administrative review in the record of the fifth administrative review (Fourth Review Documents Memo) and Record Memo. After placing the fourth review documents on the record on April 9, 2007, we gave parties until April 21, 2007, to submit comments. LM submitted comments on April 20, 2007. After placing additional documents on the record on May 9, 2007, we gave parties until May 21, 2007, to comment. Scope of The Order The product covered by this order is all steel concrete reinforcing bars sold in straight lengths, currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 7214.20.00, 7228.30.8050, 7222.11.0050, 7222.30.0000, 7228.60.6000, 7228.20.1000, or any other tariff item number. Specifically excluded are plain rounds ( *i.e.* , non-deformed or smooth bars) and rebar that has been further processed through bending or coating. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the order is dispositive. Analysis of Responses On November 9, 2006, the Department received a letter from LM certifying that LM made no sales of subject merchandise to the United States during the period of review. In the same submission, LM also stated that “{a}lthough it may be possible that LM's U.S. customers may have entered subject merchandise into the United States during the fifth period of review, any such entries would consist entirely of sales of LM merchandise that were subject to the review by the Department in the context of the ongoing fourth review of this antidumping order.” On November 15, 2006, the petitioner responded to LM's comments, providing public available trade data which confirmed the existence of entries of subject merchandise from Latvia during the POR. In its submission, the petitioner stated that the issue of whether LM made no sales of subject merchandise must be decided by the Department through the process of the administrative review and argued that, given the existence of relevant entries in the POR, there is no basis to rescind the review initiated on October 31, 2006. The Department conducted a CBP entry data query to check for any entries of subject merchandise into the United States during the POR. *See* Data Query Memo and Records Memo. The Department's review of the CBP data query results shows entries during the POR of merchandise produced by LM. However, we found that all such entries were related to sales made during the period covered by the fourth administrative review, which extends from September 1, 2004, through August 31, 2005, and were already examined in the context of the fourth review. We tied these entries in the CBP data to LM's sales database by port of entry, importer and quantity. *See* Memorandum from David Layton, Analysis Memorandum: Preliminary Determination of Cash Deposit and Assessment Rates (May 25, 2007) (Preliminary Analysis Memo). Consequently, as part of our analysis, we considered the relevant data from the fourth review which were placed on the record of the instant review. *See* Fourth Review Documents Memo and Records Memo. On April 9, 2007, and May 9, 2007, we invited the petitioner and LM to comment on the addition of the relevant data from the fourth review to the record of the instant review. *See* Letters from the Department to the petitioner and LM regarding the addition of documents into the record of the fifth administrative review of rebar from Latvia, April 9, 2007 and May 9, 2007. On April 20, 2007, LM submitted comments restating that it made no sales to the United States during the POR covered by the fifth administrative review. LM noted that in the third and fourth administrative reviews, the Department treated LM's date of contract as the date of sale and thus the date of sale predates the invoice/shipment date. LM argued that due to the application of this date-of-sale methodology, an entry date in the POR of the fifth administrative does not mean that a U.S. sale of subject merchandise was made in that period. LM stated that the information put on the record by the Department on April 9, 2007 confirms that the merchandise entered in the United States in September 2005 was previously subject to analysis in the fourth administrative review. LM maintains that because information on the record indicates that it made no sales during the current POR, the review should be rescinded. Section 751(a)(2)(A)(ii) of the Tariff Act of 1930, as amended, instructs the Department, when conducting administrative reviews, to determine the dumping margin for each entry. As noted above, because all entries of merchandise produced by LM in the instant review were related to sales that were reviewed in the fourth administrative review, the sales related to those entries have already been included in the calculations of cash deposit and assessment rates in that review. Thus, we have preliminarily determined to apply the assessment rates calculated in the fourth review to the entries in this, the fifth, review. In this case, we have decided to apply the assessment rate that was based upon specific sales made in the fourth review to entries of merchandise made during the instant review because the evidence on the record of this case has provided direct linkage between the fourth review sales and the fifth review entries. Moreover, as there was no assessment of antidumping duties related to the specific sales at issue from the fourth review, there is no issue of double-counting antidumping duties. Finally, as we have not recalculated dumping margins in this review, the cash deposit rate calculated in the fourth review will continue to apply. *See* Preliminary Analysis Memo. Preliminary Results of Review As a result of this review, we preliminarily determine that the following weighted-average margin exists for the period September 1, 2005, through August 31, 2006: Producer Weighted-Average Margin (Percentage) Joint Stock Company Liepajas Metalurgs 5.94 The Department will disclose calculations performed in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results. *See* 19 CFR 351.310(c). Any hearing, if requested, will be held 44 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 37 days after the date of publication. Parties who submit arguments are requested to submit with the argument
(1)a statement of the issue,
(2)a brief summary of the argument, and
(3)a table of authorities. Further, the parties submitting written comments should provide the Department with an additional copy of the public version of any such comments on diskette. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results. Assessment Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate on all appropriate entries. We calculate importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total quantity of the sales for that importer. Where the assessment rate is above *de minimis* , we instruct CBP to assess duties on all entries of subject merchandise by that importer. As explained above, the Department will apply the importer-specific assessment rates calculated in the previous review. The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these preliminary results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, the Department will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, *see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003). Cash Deposit Requirements The following cash deposit requirements were effective upon publication of the final results of the previous administrative review ( *see Notice of Final Results of Antidumping Duty Administrative Review: Steel Concrete Reinforcing Bars from Latvia* , 71 FR 74900 (December 13, 2006)) for all shipments of rebar from Latvia entered, or withdrawn from warehouse, for consumption on or after December 13, 2006, as provided by section 751(a)(1) of the Act, and will continue to be in effect:
(1)the cash deposit rate listed above for LM will be 5.94 percent;
(2)for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period;
(3)if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value
(LTFV)investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and
(4)if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will be 17.21 percent, the “All Others” rate established in the LTFV investigation. These cash deposit requirements shall remain in effect until further notice. This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entities during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. This determination is issued and published in accordance with sections 751(a)(1) and 777(I)(1) of the Act. Dated: May 25, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-10703 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Export Trade Certificate of Review ACTION: Notice of issuance of an amended export trade certificate of review, application no. 06-A0002. SUMMARY: On May 25, 2007, The U.S. Department of Commerce issued an amended Export Trade Certificate of Review to Necole Shannon Global, Inc. (“NSG”). FOR FURTHER INFORMATION CONTACT: Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration,
(202)482-5131 (this is not a toll-free number) or e-mail at *oetca@ita.doc.gov.* SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2005). Export Trading Company Affairs (“ETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the U.S. Department of Commerce to publish a summary of the certification in the **Federal Register** . Under Section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous. Description of Amended Certificate The original NSG Certificate (No. 06-00002) was issued on December 14, 2006 (71 FR 76275, December 20, 2006). NSG's Export Trade Certificate of Review has been amended to change its name from “Darah Thomas, doing business as Necole Shannon Global Export Services” to the new listing “Necole Shannon Global, Inc.” The effective date of the amended certificate is February 27, 2007. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4100, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Dated: May 29, 2007. Jeffrey Anspacher, Director, Export Trading Company Affairs. [FR Doc. E7-10638 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE International Trade Administration Export Trade Certificate of Review ACTION: Notice of issuance of an amended export trade certificate of review, application no. 99-3A005. SUMMARY: On May 25, 2007, The U.S. Department of Commerce issued an amended Export Trade Certificate of Review to California Almond Export Association, LLC (“CAEA”). FOR FURTHER INFORMATION CONTACT: Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration,
(202)482-5131 (this is not a toll-free number) or e-mail at *oetca@ita.doc.gov.* SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2005). Export Trading Company Affairs (“ETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the U.S. Department of Commerce to publish a summary of the certification in the **Federal Register** . Under Section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous. Description of Amended Certificate The original CAEA Certificate (No. 99-00005) was issued on December 27, 1999 (65 FR 760, January 6, 2000) and last amended on June 17, 2004 (69 FR 35585, June 25, 2004). CAEA's Export Trade Certificate of Review has been amended to: 1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)): Sunny Gem, LLC, Wasco, California; and North Valley Nut, Inc., Chico, California; and 2. Change the listing of the following Member: “Ryan*Parreira Almond Company, Los Banos, California” to the new listing “RPAC, LLC, Los Banos, California”. The effective date of the amended certificate is February 27, 2007. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4100, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Dated: May 25, 2007. Jeffrey Anspacher, Director, Export Trading Company Affairs. [FR Doc. E7-10639 Filed 6-1-07; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA59 Marine Mammals; File No. 642-1536-03 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application for amendment. SUMMARY: Notice is hereby given that Joseph R. Mobley, University of Hawaii at Manoa,2528 McCarthy Mall, Webster 404, Honolulu, HI 96822, has requested an amendment to scientific research Permit No. 642-1536-02. DATES: Written, telefaxed, or e-mail comments must be received on or before July 5, 2007. ADDRESSES: The amendment request and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone (808)973-2935; fax (808)973-2941. Written comments or requests for a public hearing on this request should be submitted to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular amendment request would be appropriate. Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is *NMFS.Pr1Comments@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: File No. 642-1536-03. FOR FURTHER INFORMATION CONTACT: Kate Swails or Amy Hapeman, (301)713-2289. SUPPLEMENTARY INFORMATION: The subject amendment to Permit No. 642-1536 issued on March 3, 2000 (65 FR 13949) is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226). Permit No. 642-1536 authorizes the permit holder to conduct aerial and vessel-based research, including surface and underwater photography/videography for identification and sex verification, on North Pacific humpback whales (Megaptera novaeangliae) and several other species of cetaceans in Hawaii waters. The permit holder is also authorized to biopsy sample and suction cup/implantable bioacoustic tag various cetacean species resident to Hawaii. The permit holder now requests authorization to use sound playback on up to 250 humpback whales annually in the waters off W. Maui and possibly other inshore areas among the main Hawaiian Islands. The proposed research would expand upon earlier work that demonstrated the feasibility of using responses of free-ranging humpback whales to biologically meaningful sounds as a means of estimating auditory thresholds for humpback whales. The amendment would be valid for the remainder of the permit. Concurrent with the publication of this notice in the **Federal Register** , NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: May 29, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-10721 Filed 6-1-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA24 Marine Mammals; File No. 731-1774 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; Issuance of permit amendment. SUMMARY: Notice is hereby given that Robin Baird, Ph.D., Cascadia Research, 218 W. 4th Avenue, Olympia, WA 98501, has been issued an amendment to scientific research Permit No. 731-1774. ADDRESSES: The permit and related documents are available for review upon written request or by appointment (See SUPPLEMENTARY INFORMATION ). FOR FURTHER INFORMATION CONTACT: Jennifer Skidmore or Amy Sloan, (301)713-2289. SUPPLEMENTARY INFORMATION: On February 12, 2007, notice was published in the **Federal Register** (72 FR 6533) that a request for a scientific research permit amendment to take cetacean species had been submitted by the above-named individual. The requested permit amendment has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ), and the regulations governing the taking and importing of marine mammals (50 CFR part 216). Permit No. 731-1774, issued to Robin Baird, Ph.D. (Cascadia Research) authorizes vessel approaches, aerial over-flights, photo-identification, video and audio recording and suction cup tagging of cetacean species in all U.S. and international waters in the Pacific, including Alaska, Washington, Oregon, California, Hawaii, and other U.S. territories. The objectives of the research are to assess cetacean populations and to study diving and night-time behavior, social organization, and inter-specific interactions. The permit has been amended to authorize satellite tagging with dart tags of the following species of marine mammals: Blainville's ( *Mesoplodon densirostris* ), Cuvier's ( *Ziphius cavirostris* ), Longman's ( *Indopacetus pacificus* ), and Baird's ( *Berardius bairdii* ) beaked whales, short-finned pilot ( *Globicephala macrorhynchus* ), non-Southern Resident killer ( *Orcinus orca* ), pygmy killer ( *Feresa attenuata* ), melon-headed ( *Peponocephala electra* ), and false killer ( *Pseudorca crassidens* ) whales, bottlenose ( *Tursiops truncatus* ), rough-toothed ( *Steno bredanensis* ), and Risso's ( *Grampus griseus* ) dolphins, and dwarf ( *Kogia sima* ) and pygmy ( *Kogia breviceps* ) sperm whales. For each species, up to 20 individuals may be dart tagged per year for the duration of the permit. Incidental harassment of non-target animals is already authorized, therefore, no additional harassment takes were requested. Dart tagging would occur concurrently with already permitted activities, primarily in Hawaiian waters, though some species may be tagged opportunistically elsewhere where activities are authorized. No takes by dart tagging or additional incidental takes of ESA listed species were requested. The amended permit expires on August 31, 2010. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), a final determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Documents may be reviewed in the following locations: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206)526-6150; fax (206)526-6426; Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7221; fax (907)586-7249; Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4001; fax (562)980-4018; and Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone (808)973-2935; fax (808)973-2941. Dated: May 29, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-10725 Filed 6-1-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Climate Change Science Program
(CCSP)Product Development Committee
(CPDC)for Synthesis and Assessment Product 1.3 AGENCY: Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Notice of open meeting. SUMMARY: The Climate Change Science Program
(CCSP)Product Development Committee for Synthesis and Assessment Product 1.3 (CPDC-S&A 1.3) was established by a Decision Memorandum dated November 21, 2006. CPDC-S&A 1.3 is the Federal Advisory Committee charged with responsibility to develop a draft Synthesis and Assessment Product that addresses CCSP Topic 1.3: “Re-analyses of Historical Climate Data for Key Atmospheric Features: Implications for Attribution of Causes of Observed Change.” *Time and Date:* The meeting will be held Monday, June 25, 2007, from 1:30 p.m. to 5:30 p.m.; Tuesday, June 26, 2007, from 8:30 a.m. to 5 p.m.; and Wednesday, June 27, 2007, from 8:30 a.m. to 5 p.m. These times and the agenda topics described below are subject to change. Refer to the Web page *http://www.climate.noaa.gov/ccsp/13.jsp* for the most up-to-date meeting agenda. *Place:* The meeting will be held at the NOAA Earth System Research Laboratory, 325 Broadway, Boulder, Colorado 80305, Room GB-124. *Status:* The meeting will be open to public participation with a 30-minute public comment period on Monday, June 25 from 2:30 p.m. to 3 p.m. (check Web site to confirm this time). The CPDC-S&A 1.3 expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of five
(5)minutes. Written comments (at least 35 copies) should be received by the CPDC-S&A 1.3 Designated Federal Official by June 18, 2007 to provide sufficient time for review. Written comments received after June 18 will be distributed to the CPDC-S&A 1.3, but may not be reviewed prior to the meeting date. Seats will be available on a first-come, first-served basis. *Matters To Be Considered:* The meeting will include the following topics:
(1)Review, recommend and make changes to the reanalysis and attribution chapters of Synthesis and Assessment Product 1.3; and
(2)Discussion of plans for completion and submission of the first draft of Synthesis and Assessment Product 1.3. FOR FURTHER INFORMATION CONTACT: Neil Christerson, Designated Federal Official, CPDC-S&A 1.3 (NOAA Climate Program Office, 1315 East-West Hwy., Suite 12105, Silver Spring, Maryland 20910. Phone: 301-734-1211, Fax: 301-713-0518, E-mail: *Neil.Christerson@noaa.gov* or visit the Web site at *http://www.climate.noaa.gov/ccsp/13.jsp* .) Terry Bevels, Deputy Chief Financial Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration. [FR Doc. E7-10663 Filed 6-1-07; 8:45 am] BILLING CODE 3510-KB-P DEPARTMENT OF COMMERCE Patent and Trademark Office United States Patent Applicant Survey AGENCY: Patent and Trademark Office, Department of Commerce. ACTION: Proposed collection; comment request. SUMMARY: The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the extension of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before August 3, 2007. ADDRESSES: You may submit comments by any of the following methods: *E-mail:* *Susan.Fawcett@uspto.gov.* Include “0651-0052 comment” in the subject line of the message. *Fax:* 571-273-0112, marked to the attention of Susan Fawcett. *Mail:* Susan K. Fawcett, Records Officer, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. *Federal e-Rulemaking Portal:* *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to the attention of Gus Mastrogianis, Economist, Office of Corporate Planning, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone 571-272-6292; or by e-mail at *gus.mastrogianis@uspto.gov.* SUPPLEMENTARY INFORMATION: I. Abstract For several years the USPTO has supported an ongoing forecasting program for patent application filings that includes the use of quantitative and qualitative methodologies. Given the importance of accurate application filings forecasts, the USPTO considers more than one type of methodology. As part of this strategy, information from a survey of the inventor community is included when formulating application filings forecasts. In addition to using the survey as part of a comprehensive approach to forecasting, the USPTO is also using this tool in response to Senate Appropriations Report 106-404 (September 8, 2000). This report directed the USPTO to “develop a workload forecast with advice from a representative sample of industry and the inventor community.” A patent application filing survey will assist the USPTO in better understanding key factors driving future application filings, such as newly emerging technologies. The USPTO has developed the United States Patent Applicant Survey as part of the continuing effort to better predict the future growth of patent application filings by understanding applicant intentions. The main purpose of this survey is to determine the number of application filings that the USPTO can expect to receive over the next three years from patent-generating entities, ranging from large domestic corporations to independent inventors. In recent years, the rate of patent application filings to the USPTO steadily increased with expanding technological innovations. However, newly emerging technologies, evolving business patenting strategies, patent valuations and costs, and intellectual property legislative changes, among other factors, may significantly impact patent applicants' decisions to file applications at the USPTO. These factors cannot easily be accounted for in other methodologies or sufficient information is not available from databases or other sources and it is necessary for the USPTO to conduct the Patent Applicant Survey to obtain information directly from applicants. The information will allow the agency to anticipate demand and estimate future revenue flow more reliably; to identify input and output triggers and allocate resources to meet and understand customer needs; and to reassess output and capacity goals and re-align organization quality control measures with applicant demand by division. The Patent Applicant Survey is a mail survey, although respondents have the option to complete the survey electronically. They may also provide their responses verbally over the telephone. A survey packet, containing the survey, a cover letter explaining the purpose of and outlining instructions for completing the survey, and a postage-paid, pre-addressed return envelope will be mailed to all survey groups. The USPTO plans to survey four groups of respondents: Large domestic corporations (including those with 500+ employees), small and medium-size businesses, universities and non-profit research organizations, and independent inventors. The USPTO does not plan to survey foreign entities and will rely on the European Patent Office
(EPO)and the Japan Patent Office
(JPO)to provide forecasts of application filings by foreign entities. Due to variances in filing and the varying needs of the different patent applicant populations, the USPTO has developed two versions of the survey: One for the large domestic corporations and small and medium-size businesses and one for universities, non-profit research organizations, and independent inventors. Since the initial survey, administered in late 2002, the USPTO has redesigned the survey to eliminate difficulties and coordinate analysis more easily with parallel surveys conducted concurrently by the European and Japan Patent Offices. The surveys do not have USPTO form numbers associated with them and once they are approved, they will carry the OMB Control Number and the expiration date. II. Method of Collection By mail or electronically over the Internet when respondents elect the on-line option to complete the survey. III. Data *OMB Number:* 0651-0052. *Form Number(s):* None *Type of Review:* Extension of a currently approved collection. *Affected Public:* Businesses or other for-profits and not-for-profit institutions. *Estimated Number of Respondents:* 400 responses per year. Of this total, the USPTO expects that 267 surveys will be completed using the on-line option. *Estimated Time Per Response:* The USPTO estimates that it will take approximately 30 minutes (0.50 hours) for all of the patent applicant populations to provide their responses, with the exception of the independent inventors. The USPTO estimates that it will take independent inventors approximately 15 minutes (0.25 hours) to provide their responses. These estimates include the time to gather the necessary information, complete the survey, and submit it to the USPTO. The USPTO believes that it will take the same amount of time to complete the surveys whether they are completed on paper and mailed to the USPTO or completed and submitted electronically. *Estimated Total Annual Respondent Burden Hours:* 140 hours. *Estimated Total Annual Respondent Cost Burden:* $4,340. The USPTO estimates that 31% of the respondents completing these surveys will be lawyers, about 9% will be legal assistants, and 60% of respondents will have diverse occupations. Using an estimated U.S. hourly rate of $54 for lawyers, a legal assistant rate of $24, and a rate of $20 for the majority of the respondents, the USPTO believes that the average hourly rate for those completing these surveys will be $31 per hour. Therefore, the USPTO estimates that the salary costs for the respondents completing these surveys will be $4,340. Item Estimated time for response (minutes) Estimated annual responses Estimated annual burden hours Large Domestic Corporations 30 27 14 Large Domestic Corporations (electronic surveys) 30 53 27 Small and Medium-Size Businesses 30 18 9 Small and Medium-Size Businesses (electronic surveys) 30 37 19 Universities and Non-Profit Research Organizations 30 5 3 Universities and Non-Profit Research Organizations (electronic surveys) 30 10 5 Independent Inventors 15 83 21 Independent Inventors (electronic surveys) 15 167 42 Total 400 140 *Estimated Total Annual Non-hour Respondent Cost Burden:* $0. There are no capital start-up, maintenance, or recordkeeping costs or filing fees associated with this information collection. The USPTO provides postage-paid, pre-addressed return envelopes for the completed mail surveys so there are no postage costs associated with this information collection. IV. Request for Comments *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: May 29, 2007 Susan K. Fawcett, Records Officer, USPTO, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division. [FR Doc. E7-10672 Filed 6-1-07; 8:45 am] BILLING CODE 3510-16-P COMMISSION OF FINE ARTS Notice of Meeting The next meeting of the U.S. Commission of Fine Arts is scheduled for 21 June 2007, at 10 a.m. in the Commission's offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, DC 20001-2728. Items of discussion affecting the appearance of Washington, DC, may include buildings, parks and memorials. Draft agendas and additional information regarding the Commission are available on our Web site: *http://www.cfa.gov.* Inquiries regarding the agenda and requests to submit written or oral statements should be addressed to Thomas Luebke, Secretary, U.S. Commission of Fine Arts, at the above address or call 202-504-2200. Individuals requiring sign language interpretation for the hearing impaired should contact the Secretary at least 10 days before the meeting date. Dated in Washington, DC, May 29, 2007. Thomas Luebke, AIA Secretary. [FR Doc. 07-2738 Filed 6-1-07; 8:45 am]
Connectionstraces to 35
Traces to 35 documents
CFR
29 references not yet in our index
  • 50 CFR 300
  • 16 USC 951-961
  • 50 CFR 665.23
  • 50 CFR 300.25
  • 50 CFR 300.62
  • 50 CFR 679
  • 50 CFR 300.65
  • 50 CFR 300.61
  • 16 USC 773-773k
  • 29 CFR 1910
  • 29 CFR 1911
  • Pub. L. 108-458
  • 118 Stat. 3638
  • 50 USC 401-442
  • 188 Stat. 3638
  • 49 CFR 571
  • 49 CFR 553.21
  • 49 CFR 512
  • 49 CFR 1.50
  • Pub. L. 103-465
  • 108 Stat. 4809
  • 248 F. Supp. 2d 1323
  • 117 F.3d 1401
  • 243 F.3d 1301
  • 15 USC 4001-21
  • 15 CFR 325
  • 50 CFR 216
  • 50 CFR 222
  • Pub. L. 104-13
Citation graph
cites case law
Rules and Regulations
Final rule
Fed. Reg.Notices
U.S.C.§ 604
U.S.C.§ 553
U.S.C.§ 610
C.F.R.§ 1910.217
U.S.C.§ 653
U.S.C.§ 552
Fed. Reg.Notices
U.S.C.§ 403–1
F. Supp.248 F. Supp. 2d 1323
F. App'x117 F.3d 1401
F. App'x243 F.3d 1301
Cites 64 · showing 12Cited by 0 across 0 sources
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