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Code · REGISTER · 2007-11-30 · Executive Office for Immigration Review, Justice · Rules and Regulations

Rules and Regulations. Proposed rule with request for comments

58,976 words·~268 min read·/register/2007/11/30/07-5885

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

BILLING CODE 3510-22-S 72 230 Friday, November 30, 2007 Proposed Rules DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1240 and 1241 [EOIR Docket No. 163P; AG Order No. 2919-2007] RIN 1125-AA60 Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review AGENCY: Executive Office for Immigration Review, Justice. ACTION: Proposed rule with request for comments. SUMMARY: The immigration laws provide that an alien may request and receive a grant of voluntary departure in certain cases; such a grant allows an alien to depart voluntarily during a specified period of time after the order is issued, in lieu of being removed under an order of removal.
Voluntary departure is an agreed upon exchange of benefits between the alien and the government that provides tangible benefits for aliens who do depart during the time allowed. There are severe statutory penalties, however, for aliens who voluntarily fail to depart during the time allowed for voluntary departure. This proposed rule would amend the Department of Justice (Department) regulations regarding voluntary departure to allow an alien to elect to file a motion to reopen or reconsider, but also to provide that the alien's filing of a motion to reopen or reconsider prior to the expiration of the voluntary departure period will have the effect of automatically terminating the grant of voluntary departure.
Similarly, the rule also provides that the alien's filing of a petition for judicial review shall automatically terminate the grant of voluntary departure. In other words, the rule would afford the alien the option either to abide by the terms of the grant of voluntary departure, in lieu of an order of removal, or to forgo the benefits of voluntary departure and instead challenge the final order on the merits in a motion to reopen or reconsider or a petition for review. If the alien elects to seek further review and forgo voluntary departure, the alien will be subject to the alternate order of removal that was issued in conjunction with the grant of voluntary departure, similar to other aliens who were found to be removable.
But this approach also means he or she will not be subject to the penalties for failure to depart voluntarily. The rule also amends the bond provisions for voluntary departure to make clear that an alien's failure to post a voluntary departure bond as required will not have the effect of exempting the alien from the penalties for failure to depart under the grant of voluntary departure. Aliens who are required to post a voluntary departure bond remain liable for the amount of the voluntary departure bond if they do not depart as they had agreed.
However, the rule clarifies the circumstances in which aliens will be able to get a refund of the bond amount upon proof that they are physically outside of the United States. In addition, the rule provides that, at the time the immigration judge issues a grant of voluntary departure, the immigration judge will also set a specific dollar amount of not less than $3,000 as a civil money penalty if the alien voluntarily fails to depart within the time allowed. DATES: Written comments must be submitted on or before January 29, 2008.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 163P, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Kevin Chapman, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, please reference EOIR Docket No. 163P on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • *Hand Delivery/Courier:* Kevin Chapman, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone
(703)305-0470 (not a toll-free call). FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone
(703)305-0470 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to the Department of Justice will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. *Instructions:* All submissions received must include the agency name and EOIR Docket No. 163P. All comments received will be posted without change to *http://www.regulations.gov/,* including any personal information provided. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* Submitted comments may also be inspected at the Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To make an appointment, please contact EOIR at
(703)305-0470 (not a toll free call). II. Background The Immigration and Nationality Act (INA or Act) provides that, as an alternative to formal removal proceedings and entry of a formal removal order, “[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense.” INA 240B(a)(1), (b)(1) (8 U.S.C. 1229c(a)(1), (b)(1)). Pursuant to the Homeland Security Act of 2002, Pub. L. 107-296, the functions previously exercised by the former Immigration and Naturalization Service were transferred to the Department of Homeland Security (DHS), while the immigration judges and the Board of Immigration Appeals (Board) were retained in the Department of Justice under the authority of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). Accordingly, DHS now has the authority to grant voluntary departure under section 240B(a) of the Act in lieu of placing the alien in removal proceedings, while the Attorney General has authority over grants of voluntary departure issued by an immigration judge or the Board, after removal proceedings have begun. This rule deals only with orders granting voluntary departure issued by immigration judges or the Board, and does not affect DHS's issuance of orders granting voluntary departure for aliens prior to the initiation of removal proceedings. See 8 CFR 240.25. Prior to 1996, the authority for voluntary departure was found in former section 244(e) of the Act, which contained no time limitations on the period for which voluntary departure could be valid. However, in 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Public Law 104-208, Div. C, which significantly amended the Act, including provisions relating to voluntary departure. Reforms to voluntary departure included enacting restrictions limiting the time for which voluntary departure may be authorized, and enacting provisions to increase compliance by aliens who request grants of voluntary departure. The statutory changes made by IIRIRA to voluntary departure remain in effect. Currently, prior to completion of removal proceedings an immigration judge may permit an alien to depart the United States voluntarily, if certain conditions are met, within a total period not to exceed 120 days. INA 240B(a)(2)(A) (8 U.S.C. 1229c(a)(2)(A)); 8 CFR 1240.26(b). Among these conditions is an agreement by the alien not to file an appeal. 8 CFR 1240.26(b)(1)(D). At the conclusion of removal proceedings, additional conditions are applicable, but the alien is not required to waive the filing of an appeal to the Board. The immigration judge may permit an alien to depart the United States voluntarily only within a total period of no more than 60 days. INA 240B(b)(2) (8 U.S.C. 1229c(b)(2)); 8 CFR 1240.26(c). Where the period of voluntary departure granted by the immigration judge or the Board is less than the statutory maximum, DHS also has authority to grant an extension of voluntary departure up to the statutory maximum of 120 or 60 days. Because the Act provides that the Attorney General “may” permit an alien to depart voluntarily, the determination whether to allow an alien in removal proceedings to depart voluntarily is within the discretion of the Attorney General and of the immigration judges and the Board, who act on his behalf. The Act further provides that “[t]he Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.” INA 240B(e) (8 U.S.C. 1229c(e)). III. The Nature of Voluntary Departure Voluntary departure “is a privilege granted to an alien in lieu of deportation.” *Iouri* v. *Aschroft,* 487 F.3d 76, 85 (2d Cir. 2007), pet. for cert. filed, No. 07-259 (Aug. 22, 2007) (citing *Ballenilla-Gonzalez* v. *INS,* 546 F.2d 515, 521 (2d Cir. 1976)). It is “an agreed upon exchange of benefits between the alien and the Government.” *Banda-Ortiz* v. *Gonzales* , 445 F.3d 387, 389 (5th Cir. 2006), cert. denied, 127 S. Ct. 1874 (2007). This quid pro quo offers an alien “a specific benefit—exemption from the ordinary bars to relief—in return for a quick departure at no cost to the government.” *Id.* at 390 (quoting *Ngarurih* v. *Ashcroft,* 371 F.3d 182, 194 (4th Cir. 2004)). When choosing to seek voluntary departure, the alien agrees to take all the benefits and burdens of the statute together. *Ngarurih,* 371 F.3d at 194. In order to obtain voluntary departure at the conclusion of removal proceedings, an alien must establish to the immigration judge by clear and convincing evidence that he or she is both willing and able to depart voluntarily. See, *e.g.* , 8 U.S.C. 1229c(b)(1)(D); 8 CFR 1240.26(c)(1)(iv). Often, this involves the alien testifying under oath that he or she intends to depart the United States within the specific time period allotted, that he or she has the financial means to depart the United States, and that he or she has the necessary documentation—such as a valid passport—to do so. See 8 CFR 1240.26(c)(3). “If an alien chooses to seek [voluntary departure]—and that choice is entirely up to the alien—it can produce a win-win situation.” *Naeem* v. *Gonzales* , 469 F.3d 33, 36 (1st Cir. 2006) (citing *Bocova* v. *Gonzales* , 412 F.3d 257, 265 (1st Cir. 2005)). “For aliens, voluntary departure is desirable because it allows them to choose their own destination points, to put their affairs in order without fear of being taken into custody at any time, to avoid stigma and various penalties associated with forced removal—and it facilitates the possibility of return to the United States.” *Iouri,* 487 F.3d at 82-83 (citing *Lopez-Chavez* v. *Ashcroft* , 383 F.3d 650, 651 (7th Cir. 2004)). “For the government, it expedites departures and reduces the costs that are typically associated with deporting individuals from the United States.” *Id.* , at 83 (citing *Thapa* v. *Gonzales* , 460 F.3d 323, 328 (2d Cir. 2006)); accord *Chedad* v. *Gonzales* , 497 F.3d 57, 63-64 (1st Cir. 2007), pet. for reh'g en banc filed (Oct. 15, 2007); *Azarte* v. *Ashcroft* , 394 F.3d 1278, 1284 (9th Cir. 2005). “Where an alien departs within the specified time period, the alien is not regarded as having been deported and thus obtains the benefits of departure without deportation.” *Iouri* , 487 F.3d at 85 (citing Gordon, Mailman & Yale-Loehr, *Immigration Law and Procedure* 72.08[1][a] (rev. ed. 2005)). In particular, the grant of voluntary departure enables an alien to avoid the five- or ten-year period of inadmissibility that would result from an order of removal. See 8 U.S.C. 1182(a)(9)(A). However, “[t]he benefits normally associated with voluntary departure come with corollary responsibilities. An alien who permits his voluntary departure period to run and fails to leave the country before the expiration date faces severe sanctions; these may include forfeiture of the required bond, a fine, and a ten-year interval of ineligibility for certain forms of immigration-related relief.” *Naeem* , 469 F.3d at 37. These penalties, as well as the elimination of an “exceptional circumstances” exception previously available to aliens for failing to comply with a voluntary departure grant, were added to the voluntary departure provisions by Congress in 1996 to ensure that aliens who seek voluntary departure no longer abuse the privilege that is a grant of voluntary departure. Compare 8 U.S.C. 1229c(d) (2000 & supp. ) with 8 U.S.C. 1252b(e)(2)(A) (repealed effective April 1, 1997). Exceptions to or extensions of the voluntary departure period authorized by Congress run counter to the statutory purpose. The court in *Ngarurih* recognized this, noting “an alien could request voluntary departure, overstay the specified period and deprive the government of a quick departure, wait out the appellate review process, and then demand the full benefits of voluntary departure.” *Ngarurih* , 371 F.3d at 195. Delay in proceedings generally works in the alien's favor. See, e.g., *INS* v. *Doherty* , 502 U.S. 314, 323
(1992)(noting that “every delay” in deportation proceedings “works to the advantage of the deportable alien who wishes merely to remain in the United States”); *Shaar* v. *INS* , 141 F.3d 953, 956 (9th Cir. 1998) (overruled on other grounds). The Fourth Circuit summed up voluntary departure as follows: [V]oluntary departure is, from beginning to end, voluntary. The alien must request the relief; it is not offered as a matter of course. Even if he requests the relief and obtains it, the alien may later reject it by overstaying the period specified for departure. If he rejects voluntary departure in this manner, then he is subject to removal from the United States in the ordinary course. The fact that his choice carries real consequences—a monetary penalty and subjection to the ordinary bars on subsequent relief—means that the alien has a real choice to make, not that he is * * * “forced” to leave. *Ngarurih* , 371 F.3d at 194 n.12 (citation omitted). This rule applies to all orders granting voluntary departure by an immigration judge, but the proposed changes relate primarily to orders granting voluntary departure to an alien at the conclusion of removal proceedings, pursuant to the provisions of section 240B(b) of the Act and 8 CFR 1240.26(c). At that stage of the proceedings, voluntary departure is not a relevant issue unless the immigration judge or the Board has already found that the alien is removable under section 212 or 237 of the Act (8 U.S.C. 1182, 1227). Moreover, voluntary departure is not a relevant issue unless the immigration judge or the Board is denying all of the alien's other applications for relief or protection of removal (such as asylum, withholding of removal, cancellation of removal, adjustment of status, waivers, etc.), as the issue of voluntary departure would be moot if the alien were granted any relief or protection from removal. Thus, at the request of the alien, and based on the alien's statement of his or her ability and intent to depart the United States within the period allowed for voluntary departure, the immigration judge's grant of voluntary departure permits the alien to depart voluntarily, within a fixed period of time, instead of subjecting the removable alien to an order of removal. However, a grant of voluntary departure issued at the conclusion of proceedings also includes an alternate order of removal, which takes effect automatically if the alien fails voluntarily to depart during the time allowed. Under the current regulations, as well as under this proposed rule, an alien who is granted voluntary departure at the conclusion of proceedings before the immigration judge is still able to file an appeal to the Board and present any arguments with respect to the merits of the alien's removability and eligibility for any form of relief or protection from removal. If neither party appeals the immigration judge's decision, then the decision becomes final and the period of time for voluntary departure runs from the date of the immigration judge's grant of voluntary departure. However, in every case where the alien does file a timely appeal to the Board, the immigration judge's order is not final, and the time period for voluntary departure does not begin to run until after the conclusion of the Board's adjudication of the merits of the alien's appeal. If the Board reverses the immigration judge's decision on the merits or remands the case to the immigration judge for further proceedings, the grant of voluntary departure is rendered moot by virtue of the Board's decision. In the event of a remand, the issue of the alien's eligibility for and desire to receive voluntary departure will again be before the immigration judge as part of the remanded proceedings. Thus, it is only in those cases where the Board rejects all of the alien's arguments relating to removability and to relief or protection from removal that the order granting voluntary departure actually takes effect and the alien is obligated to depart from the United States within the specified period (no more than 60 days). IV. Voluntary Departure and the Effect of Filing Motions To Reopen or Reconsider Once the immigration judge or Board issues a final order in a case, regardless of whether it grants voluntary departure, the alien has the option under the Act and implementing regulations to file a motion to reopen or a motion seeking to have the decision reconsidered. A. Motions To Reopen or Reconsider Prior to the statutory codification of the regulatory provisions on reopening and reconsideration, the Board held in *Matter of Shaar* , 21 I&N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), that the filing of a motion to reopen does not suspend the running of the period for voluntary departure or excuse the alien from the requirement to depart within that period. In the 1996 legislation, Congress enacted section 240(c)(6) and
(7)of the Act (8 U.S.C. 1229a(c)(6) and (7)), which substantially codified existing regulatory provisions. Paragraph
(6)allows an alien in removal proceedings to file one motion to reconsider and provides that such a motion must be filed within 30 days of the date of entry of a final removal order in his or her removal proceedings. Paragraph
(7)allows an alien to file one motion to reopen removal proceedings and provides that such a motion must be filed within 90 days of the date of entry of a final administrative order of removal. 1 The statutory provisions do not provide for a stay of removal upon the filing of a motion to reopen or a motion to reconsider, except in two quite limited circumstances (for motions to reopen seeking to rescind an in absentia removal order and certain motions filed by battered spouses, children and parents, as provided in subsections (b)(5)(C) and (c)(7)(C)(iv) of section 240 of the Act). 1 After the issuance of a final decision by the Board, only motions to reopen and motions to reconsider are authorized under the immigration laws. 8 U.S.C. 1229a(c)(6) and (7). A separate kind of motion, a motion to remand, can be filed only during the pendency of an appeal, but not after the issuance of a final order. 8 CFR 1003.2(c)(4) states, “A motion to reopen a decision rendered by an Immigration Judge or [DHS] officer that is pending when an appeal is filed, or that is filed while an appeal is pending before the Board, may be deemed a motion to remand for further proceedings before the Immigration Judge or the [DHS] officer from whose decision the appeal was taken.” See also *Matter of Coelho* , 20 I&N Dec. 464 (BIA 1992) (discussing motions to remand considered by the Board during the pendency of the appeal). After the issuance of a final order, the Board sometimes receives motions styled as motions to “remand” or motions to “reopen and remand.” Such motions, however, presuppose reopening in order to have the case remanded and, accordingly, they are properly considered to be motions to reopen and are subject to the same requirements. *Id.* The Board and the immigration judges otherwise would lack authority to entertain such motions in the first instance. *Matter of C-W-L-* , 24 I&N Dec. 346, 350 (BIA 2007) (“[T]he regulations provide that to request further relief, a motion to reopen must be filed with the last body that issued an administratively final order of removal,” and the filing of a motion to reopen proceedings is “a prerequisite to our taking up any issue arising in [the respondent's] case, given the entry of the removal order against him.”). Accordingly, the provisions of this rule apply to all motions to reopen or reconsider that are filed after the issuance of a final administrative decision, however such motions are styled. After publication of a proposed rule on January 3, 1997, the Department of Justice published an interim rule implementing the provisions of IIRIRA on March 6, 1997. See 62 FR 10312. The supplementary information for the interim rule requested comments on what position the final, permanent rules should take on the effect on the voluntary departure period of an appeal from an immigration judge to the Board, a petition for review of a Board decision in the court of appeals, or a motion to reopen or reconsider filed with an immigration judge or the Board: [S]everal commenters requested clarification regarding the effect of a motion or appeal to the Immigration Court, BIA, or a federal court on any period of voluntary departure already granted. Since an alien granted voluntary departure prior to completion of proceedings must concede removeability [sic] and agree to waive pursuit of any alternative form of relief, no such appeal or motion would be possible in this situation. Regarding post-hearing voluntary departure, the Department considered several options, but has not adopted any position or modified the interim rule. The Department has identified three possible options: no tolling of any period of voluntary departure; tolling the voluntary departure period for any period that an appeal or motion is pending; or setting a brief, fixed period of voluntary departure (for example, 10 days) after any appeal or motion is resolved. The Department wishes to solicit additional public comments on these or other possible approaches to this issue so that it can be resolved when a final rule is promulgated. 62 FR 10312, 10325-26 (Mar. 6, 1997). Although no final rule directly addressing those issues has been published, the current regulations are consistent with the Department's longstanding view that the filing of a motion to reopen does not suspend a period of voluntary departure. The regulations do not state that the conclusion reached by the Board in *Shaar* was incorrect or was to be superseded. To the contrary, they provide that the filing of a motion to reopen or a motion to reconsider “shall not stay the execution of any decision made in the case,” and that “[e]xecution of such decision shall proceed unless a stay of execution is specifically granted by” the Board or the immigration judge. 8 CFR 1003.2(f). In addition, the regulations expressly permit the reinstatement of voluntary departure in the context of reopening, but only in situations where the reopening was granted before the expiration of the period allowed for voluntary departure: An immigration judge or the Board may reinstate voluntary departure in a removal proceeding that has been reopened for a purpose other than solely making application for voluntary departure, *if reopening was granted prior to the expiration of the original period of voluntary departure* . In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act and paragraph
(a)of this section. 8 CFR 1240.26(h) (emphasis added). That rule necessarily rests on the assumption that the mere *filing* of the motion to reopen does not suspend or toll the running of the voluntary departure period. Finally, although the Board has not published a precedent decision since its 1996 decision in *Shaar* addressing the interplay between the provisions relating to voluntary departure and motions to reopen or reconsider a final order in removal proceedings, the Board has continued to conclude that the filing of such a motion does not suspend or toll the voluntary departure period, as evidenced by the number of court of appeals decisions reviewing such decisions by the Board. 2 2 The Department's practice has remained consistent with respect to the other two subjects referenced in the 1997 request for comments as well. With respect to appeals from an immigration judge to the Board, the INA itself provides that an immigration judge's order does not become final until the Board issues its decision, see 8 U.S.C. 1101(a)(47)(B), and the Department's regulations provide that the voluntary departure period runs from that date, 8 CFR 1241.1(f). With respect to petitions for review, in contrast, the Department's position continues to be that the filing of such a petition does not by its own force create a stay of removal. As a practical matter, it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period, particularly since the voluntary departure period under section 240B(b) of the Act is limited to no more than 60 days. Many motions to reopen are filed by the alien one or two days before the end of the 60-day voluntary departure period, thereby making it impossible to resolve the matter before the period allowed for voluntary departure expires. Because of the relatively short period of time allowed for voluntary departure after a final administrative order (no more than 60 days), and the time needed as a practical matter to adjudicate motions to reopen or reconsider, aliens who file a motion to reopen or reconsider may face a choice. Some aliens may choose to remain in the United States beyond the voluntary departure period in order to await the decision of the Board on the motion, thereby incurring the statutory penalties because of their failure to depart as they had promised to do. For example, if a decision on the motion is not issued until after the period allowed for voluntary departure has expired, which is frequently the case, then the 10-year bar on obtaining adjustment of status may be deemed to apply by operation of 8 U.S.C. 1229c(d) because of the alien's failure to depart. Other aliens may choose to depart the United States in compliance with the grant of voluntary departure, even though they have not yet received a decision on their motion, in order to avoid the voluntary departure penalties. However, under the current regulations the alien's departure from the United States has the effect of automatically withdrawing the alien's motion. 8 CFR 1003.2(d); see also 8 CFR 1003.23(b)(1) (similar rule for departure after filing a post-decision motion with the immigration judge). 3 3 We note that two courts of appeals have reached contrary conclusions with respect to section 1003.2(d). See *Li* v. *Gonzales* , 473 F.3d 979 (9th Cir. 2007) (interpreting section 1003.2(d) only to bar the filing of a motion to reopen if the alien “is” in removal proceedings at the time of his or her departure, but not to bar the filing of a motion to reopen if the alien was already the subject of a final order of removal at the time of departure); *William* v. *Gonzales* , 499 F.3d 329 (4th Cir. 2007) (holding that section 1003.2(d) is inconsistent with the provisions of section 240(c)(7) of the INA). The Board at present is following those decisions only for cases arising in those two circuits. This proposed rule does not address the interpretation or applicability of section 1003.2(d). B. Existing Circuit Split The courts of appeals are divided on the question of how the filing of a motion to reopen impacts a grant of voluntary departure. Four circuits have held that the timely filing of a motion to reopen during the voluntary departure period automatically “tolls” the period allowed for voluntary departure. See *Kanivets* v. *Gonzales* , 424 F.3d 330, 331 (3d Cir. 2005); *Sidikhouya* v. *Gonzales* , 407 F.3d 950, 952 (8th Cir. 2005); *Barrios* v. *United States Att'y General* , 399 F.3d 272 (3rd Cir. 2005) (pre-IIRIRA); *Azarte* v. *Ashcroft* , 394 F.3d 1278, 1289 (9th Cir. 2005); *Ugokwe* v. *United States Att'y Gen.* , 453 F.3d 1325, 1331 (11th Cir. 2006). In a similar context, the Ninth Circuit has held that the filing of a timely motion to reconsider tolls the voluntary departure period. *Barroso* v. *Gonzales* , 429 F.3d 1195 (9th Cir. 2005). The courts of appeals for the First, Fourth, and Fifth Circuits have reached the contrary conclusion, as a matter of law or by deference to the Board's authority to interpret the Act, finding that the filing of a motion to reopen does not toll the period allowed for voluntary departure. See *Chedad* , 497 F.3d at 63-64; *Banda-Ortiz* , 445 F.3d at 390; *Dekoladenu* v. *Gonzales* , 459 F.3d 500, 507 (4th Cir. 2006), pet. for cert. filed (No. 06-1285). Under current judicial precedents in some circuits the voluntary departure process as it is being applied bears little resemblance to the statutory mandate that the alien who requests and is granted voluntary departure at the conclusion of removal proceedings is expected to depart voluntarily no more than 60 days after the administrative order becomes final. In some circuits, as noted above, the filing of a motion to reopen or reconsider has the effect of automatically tolling the time period for voluntary departure, allowing the alien to remain in the United States until the motion is adjudicated. The result in these circuits is that some aliens who have received a final administrative order, after appealing to the Board, are able to remain in the United States to pursue the full panoply of means to challenge the final decision through administrative motions to reopen or reconsider (including in some cases the filing of a motion to reconsider the denial of a motion to reopen). Those processes, of course, can take many months to accomplish. Thus, contrary to the incentives and benefits of voluntary departure that result if an alien actually departs within a short, fixed, period of time, the result in those areas of the country is that aliens who accept a grant of voluntary departure are nevertheless able to remain in the United States for an often lengthy period of time and are not obligated to depart voluntarily until after they have exhausted all opportunities for reconsideration, remand, or reopening. At that point, the government will already have borne much the same burdens that it would have faced if the alien had not agreed to depart voluntarily, and much of the benefit to the government will have been lost. *Banda-Ortiz* , 445 F.3d at 390. This result is also contrary to the clear congressional intent to limit the period of time allowed under the voluntary departure provisions, which before the 1996 amendments had allowed aliens to remain in the United States for many months or even years under grants of voluntary departure. Contrary to the decisions of those courts of appeals, the Department's interpretation of the Act and the existing regulations is that the filing of a motion to reconsider or reopen under section 240(c)(6) or
(7)of the INA (8 U.S.C. 1229a(c)(6) or (7)) does not automatically toll the voluntary departure period, and that such tolling is not necessary in order to give effect to both the INA's provision for an alien to file a motion to reopen and its provision authorizing the Attorney General to permit voluntary departure. As the Fourth Circuit has explained, the “voluntary departure provision” establishing the maximum departure period of 60 or 120 days “applies to certain removable aliens” who qualify for that relief, “while the motion to reopen provision applies to all aliens subject to removal.” *Dekoladenu* , 459 F.3d at 505-06. Indeed, only 11 percent of removable aliens were granted voluntary departure in 2005. See id. at 506 n.5. Accordingly, “[f]ollowing the normal rule of statutory construction, the more specific voluntary departure provision governs in those limited situations in which it applies.” *Id.* at 506. Motions to reopen are unaffected in other cases. Moreover, while the INA provides that an alien may file one motion to reopen, it confers no right to substantive relief. To the contrary, the granting of reopening is discretionary. Similarly, the granting of voluntary departure is discretionary with the Attorney General, and the Attorney General is expressly authorized to limit eligibility for additional classes of aliens pursuant to section 240B(e) of the INA (8 U.S.C. 1229c(e). Finally, although an alien who has obtained a grant of voluntary departure and is subject to an alternate order of removal may, after exhausting administrative remedies with the Board, file a petition for review with the court of appeals, it is well-established that the mere filing of such a petition does not automatically toll or suspend the voluntary departure period, as illustrated by the number of appellate decisions addressing whether it is appropriate to construe a motion for a stay of removal as necessarily encompassing a request for a stay of voluntary departure. It therefore is fully consistent with the Act that, under applicable procedures, an alien who files a motion to reopen and chooses to remain in the country until the Board acts upon it thereby gives up the benefits of voluntary departure. That was the conclusion reached by the Board in Shaar under the reopening regulations that were codified in the 1996 amendments made by IIRIRA, and there is no indication in those amendments or their legislative history that they overturned the rule of Shaar. To the contrary, a rule of automatic tolling, with resulting delay, of voluntary departure would be contrary to Congress's decision in the 1996 amendments to impose strict time limits on the voluntary departure period. Indeed, “mandat[ing] tolling of the voluntary departure period when an alien files a motion to reopen would have the effect of rendering the time limits for voluntary departure meaningless.” *Dekoladenu* , 459 F.3d at 506; see *Banda-Ortiz* , 445 F.3d at 390 (“Automatic tolling would effectively extend the validity of [an alien's] voluntary departure period well beyond the sixty days that Congress has authorized.”). The Supreme Court recently granted certiorari to review a decision by the Fifth Circuit with respect to the effect of filing a motion to reopen, in order to resolve the circuit split under existing law. *Dada* v. *Keisler,* 128 S. Ct. 6 (Sept. 25, 2007) (No. 06-1181). C. The Attorney General's Authority To Promulgate a Different Regulatory Scheme in the Future As a result of the varying judicial interpretations in the different regional circuits, there is a substantial geographic disparity with respect to how voluntary departure is administered, depending solely on the location of the hearing before the immigration judge. Experience also has shown that the current regulatory framework can lead to significant delays in promoting and effectuating voluntary departure after a final administrative order is entered. Though such disparities of interpretation among the circuits occur in other contexts as well, there are sound public policy reasons for the Attorney General to promote a greater measure of uniformity and expedition in the administration of the immigration laws. The goals of promoting uniformity of interpretation and assuring prompt voluntary departure underlie this proposed rule. Circuit court decisions holding that the filing of motions to reopen or reconsider tolls the running of a voluntary departure period do not prevent the Department of Justice from rendering an authoritative construction of the Act that does not require tolling, as it does now in issuing these rules. “Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.” *National Cable & Telecom. Ass'n* v. *Brand X Internet Servs.,* 545 U.S. 967, 982-83 (2005); *id.* at 983-84 (“A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to *Chevron* deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”). Certainly, nothing in the Act “unambiguously” requires that the mere filing of a motion to reopen or reconsider automatically tolls the voluntary departure period within which the alien has agreed to depart. And indeed the Board's practice under the 1996 amendments (as it was before those amendments as stated in Shaar) has been not to deem the voluntary departure period automatically tolled upon the filing of a motion to reopen or reconsider. Nor do the various judicial decisions under the current regulatory framework preclude the Attorney General from adopting a different regulatory scheme for the future within the broad parameters of the statutory provisions enacted by Congress. Congress clearly provided for the Attorney General to have broad authority to implement the voluntary departure provisions of the Act and to limit eligibility for voluntary departure for specified classes or categories of aliens, as provided in section 240B(e) of the Act. The provisions of this rule are an exercise of these statutory authorities. These new rules will be applicable to grants of voluntary departure that will be made in the future, after these rules are finalized, and will not affect any cases in which a grant of voluntary departure was made prior to their adoption. The voluntary departure statute does not unambiguously provide that permission to depart voluntarily is irrevocable once granted, such that aliens permitted to depart voluntarily by an immigration judge must always be viewed as having been “permitted to depart voluntarily” for purposes of 8 U.S.C. 1229c(d). Accordingly, the Attorney General retains discretion and authority to provide, by regulation, that permission to depart voluntarily is conditioned upon the alien's agreeing to accept the finality of the Board's order after it is issued (or the finality of the immigration judge's order if there is no appeal), and depart within the period allowed for voluntary departure thereafter, without seeking to challenge the final order by filing a motion to reopen or reconsider. That is what these proposed rules would do, by providing that permission to depart voluntarily, following entry of a final order, will terminate if the alien files a motion to reopen or reconsider the final administrative order. A voluntary departure order reflects an agreement or bargain between the government and the alien, in which the alien represents that he or she is ready and able to depart voluntarily within a short, defined period of time, in exchange for receiving the favorable terms of a grant of voluntary departure. If the alien decides not to uphold his or her end of the bargain and instead chooses to challenge the final order rather than departing within the time allowed, these rules provide that the grant of voluntary departure is terminated and the alternate order of removal becomes effective. Moreover, unlike the current regulatory scheme for grants of voluntary departure prior to the conclusion of proceedings before an immigration judge, in which the alien is required irrevocably to waive the right to appeal as provided in 8 CFR 1240.26(b)(1)(i)(D), these proposed rules are more favorable to the alien because they do not irrevocably bar the alien from challenging the final order after it is entered by the Board. The alien will be free to forgo voluntary departure and instead to elect to challenge the final order through a motion to reopen or reconsider, or a petition for review. Or, put another way, these rules would allow the alien an opportunity to withdraw from the arrangement into which he or she effectively entered under the statute and the amended regulations at the time of seeking and accepting voluntary departure, and instead to pursue further challenges after issuance of the final order. And because the alien's act of filing an administrative motion to reopen or reconsider or a petition for judicial review would have the effect of terminating a period of voluntary departure granted in accordance with these regulations, no voluntary departure period would remain to be tolled or stayed. This approach advances the legitimate interests of the government in preserving the purposes of the voluntary departure authority; it also enables aliens to avoid the consequences under section 240B(d) of the INA of an earlier decision to accept a grant of voluntary departure, in the event of a change of circumstances that may lead the alien to seek to avoid those consequences, including the alien's decision to challenge the validity of a removal order through a motion to reconsider or judicial review. D. Motions To Reopen or Reconsider a Final Order Filed During the Voluntary Departure Period This rule responds to one of the principal policy arguments offered in support of tolling. In many cases, the alien had sought relief or protection from removal, which was denied, and the filing of a motion to reopen or reconsider is a means for aliens to continue to contest the merits of the denied claims or to address eligibility for newly discovered relief. Under this rule, aliens who file administrative motions to reopen or reconsider prior to the expiration of the time allowed for voluntary departure would no longer be subject to the penalties for failure to depart, because the grant of voluntary departure will be terminated upon the filing of the motion. However, they will then be subject to a removal order, as is the case for other aliens who had been found to be removable and ineligible for any form of relief or protection from removal. As noted by the Supreme Court, “[m]otions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.” *INS* v. *Abudu,* 485 U.S. 94, 107-08 (1988). This is “especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” *Doherty,* 502 U.S. at 323. However, the Department recognizes that Congress has provided that aliens may file a motion to reopen or motion to reconsider after a final order of removal has been entered in his or her case. Some of these aliens may have just received an immediate relative visa petition, for example, and wish to file a motion to reopen their case to pursue relief through adjustment of status before any adverse consequences for failing to timely depart attach under 240B(d) of the Act. 4 Other aliens may believe an error was made in their case, and timely seek reconsideration of their decision. 4 The Department strongly encourages aliens who are in removal proceedings when the visa petition is approved to file a motion for remand during the pendency of the proceedings, and not wait until after a final order of removal has been entered. Under this rule, if an alien decides to contest a final administrative order by filing a motion to reopen or reconsider after having received a grant of voluntary departure, the grant of voluntary departure will be automatically terminated. Such aliens will no longer have the privilege and responsibility of departing voluntarily and will become subject to a removal order, just like other aliens at the conclusion of the removal proceedings who are not granted any form of relief or protection from removal. This means, however, that they will be able to pursue the administrative motion without the risk of being subject to the statutory penalties for failing to depart voluntarily. This proposal is intended to allow an opportunity for aliens who have been granted voluntary departure to be able to pursue administrative motions without risking the imposition of the voluntary departure penalties, to promote uniformity, and also to bring the voluntary departure process back to its statutory premises. The proposed rule further recognizes that although an alien may request voluntary departure in good faith before an immigration judge, the alien's circumstances may change while an appeal is pending before the Board, and ensures that the alien is not subsequently penalized when such change in circumstances occurs. The Department accordingly proposes to amend 8 CFR 1240.26 to provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period. By seeking to challenge the final administrative order through a post-decision motion to reopen or reconsider, the alien will be manifesting that he or she is no longer willing to depart voluntarily within the specific number of days as previously allowed by the immigration judge or the Board. Put another way, the alien is no longer willing to abide by the initial quid pro quo on which voluntary departure was predicated. Cf. *Banda-Ortiz,* 445 F.3d at 389. This means that the filing of a motion to reopen or reconsider within the time allowed for voluntary departure would terminate the privilege and responsibility of voluntary departure, and the alien would become subject to the alternate order of removal issued by the immigration judge or the Board. The alien, however, would still be able to pursue the relief sought through the post-decision motion, and if the motion to reopen or reconsider is successful, then such an alien would not be subject to the penalties for failing to depart (including the 10-year bars on eligibility for adjustment of status or cancellation of removal). Assuming the alien is otherwise eligible for new relief sought through the filing of a motion to reopen, and merits a favorable exercise of discretion, the terminated grant of voluntary departure would not pose an impediment to reopening to pursue such relief. Moreover, even if the motion to reopen or reconsider is unsuccessful, he or she would remain subject to the removal order but would not be subject to the penalties under section 240B(d) of the Act for failure to depart. Of course, as with any other alien who is subject to a final order of removal, DHS is authorized to detain and remove the alien from the United States at any time pursuant to section 241 of the Act, unless the order of removal has been stayed. In the Department's view, extending the period allowed for voluntary departure by the filing of a motion to reopen or reconsider serves to undermine the basic statutory purpose of the voluntary departure agreements, and is not consistent with the Act. See Chedad, 497 F.3d at 64 (“These provisions [relating to limits on voluntary departure] reflect a coherent effort to ensure that voluntary departure does, in fact, result in the alien's expeditious departure from the United States. Reading [the provision allowing for one motion to reopen within 90 days of a final administrative order] as stopping the voluntary departure clock would contravene this purpose, allowing the filing of motions to reopen to delay voluntary departure dates.”). This proposed rule provides that aliens who file a motion to reopen or reconsider within the period allowed for voluntary departure are thereby exempted from the penalties for failure to depart voluntarily under section 240B(d) of the Act. This approach avoids any perceived tension between the statutory provisions relating to motions to reopen or reconsider and the statutory penalties for failure to depart voluntarily. Since the grant of voluntary departure is terminated automatically upon the filing of a motion to reopen or reconsider during the voluntary departure period, there is no period of voluntary departure to toll during the pendency of the motion to reopen or reconsider. E. Motions To Reopen or Reconsider Filed After the Period for Voluntary Departure Has Elapsed The issues are very different, however, if the alien's motion to reopen or reconsider is not filed until after the period of voluntary departure has elapsed, at a time when—because of the alien's failure to depart voluntarily within the time allowed—the penalties under 8 U.S.C. 1229c(d), including the 10-year bar on certain forms of discretionary relief, have already taken effect. If the alien already has failed to comply with his undertaking voluntarily to depart from the United States by the time his motion is filed, he is now properly barred from relief under that section. In general, where an alien does not file a motion to reopen until after the expiration of the voluntary departure period, the Board's grant of reopening does not have the effect of relieving the alien from the consequences of having failed to depart before the voluntary departure period expired. See *Singh* v. *Gonzales,* 468 F.3d 135, 139-40 (2d Cir. 2006); *Dacosta* v. *Gonzales,* 449 F.3d 45, 50-51 (1st Cir. 2006). But cf. *Orichitch* v. *Gonzales,* 421 F.3d 595 (7th Cir. 2005) (holding that the Board's grant of reopening had the effect of vacating the underlying voluntary departure order where a joint motion to reopen was executed but not filed prior to expiration of the voluntary departure period). With respect to motions to reopen filed after the expiration of the voluntary departure period, to conclude that the granting of such a motion would vitiate or vacate the penalties that had already taken effect because of the alien's previous failure to depart voluntarily would effectively undermine the relevance of such penalties in this context. Aliens who are subject to a final order of removal cannot seek relief from removal from an immigration judge or the Board (such as adjustment of status or cancellation of removal) unless they are successful in reopening their final orders. Thus, prior to the granting of a motion to reopen, such aliens are unable to obtain such relief for reasons independent of the voluntary departure penalties. However, if the mere fact of granting a motion to reopen had the effect of vacating the voluntary departure penalties, after those penalties had already taken effect as a result of the alien's failure to depart during the period allowed for the voluntary departure, then the intended effect of those penalties in deterring aliens from overstaying the period of voluntary departure would clearly be diminished. Accordingly, this proposed rule would provide that the granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act. The Board recently concluded that there is no equitable basis for creating an exception to the statutory penalties for aliens who voluntarily fail to depart during the period allowed for voluntary departure. *Matter of Zmijewska,* 24 I&N Dec. 87, 93 (BIA 2007) (“The congressional repeal of the `exceptional circumstances' exception to the voluntary departure penalty soon after our decision in *Matter of Grijalva,* [21 I&N Dec. 472 (BIA 1996)], and its replacement with a `voluntariness' test strongly suggest that Congress did not intend to allow the Board and the courts to create and apply a set of equitable exceptions that would amount to a substitute version of the repealed `exceptional circumstances' exception.”). 5 5 *Matter of Zmijewska* does note that Congress has provided one specific exception to the imposition of the statutory penalties for failure to depart, with respect to the recently enacted exception in cases of extreme cruelty or battery. *Id.* The enactment of one specific exception for this limited category of cases is evidence of congressional intent not to contemplate exceptions in other circumstances. The Board also noted that the statutory penalties do not apply if the alien was unaware of the voluntary departure order or was physically unable to depart. See Matter of Zmijewska, 24 I&N Dec. at 94 (finding that the “voluntariness” exception is “limited to situations in which an alien, through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart. It would not include situations in which departure within the period granted would involve exceptional hardships to the alien or close family members. Nor would lack of funds for departure be considered an involuntary failure to depart.”). However, the Board's decision raises broader questions with respect to ineffective assistance of counsel that are not addressed in this rule. V. Voluntary Departure and Filing Petitions for Review Section 242 of the Act (8 U.S.C. 1252) gives aliens the opportunity, with certain exceptions, to seek circuit court review of a final order of removal by filing a petition for review within 30 days of the final administrative order. In the experience of the Department, aliens who have been granted voluntary departure routinely file petitions for review pursuant to section 242 of the Act and seek a stay, with the result of delaying the voluntary departure obligation for many months or even years, while the petition for review is adjudicated in the courts of appeals. This rule also proposes new measures to avoid such open-ended extensions of the period of time authorized by Congress for aliens to depart voluntarily. Again, as noted above, this proposal reflects an exercise of the Attorney General's authority to implement the voluntary departure provisions, as well as to limit eligibility for voluntary departure for certain classes or categories of aliens, as provided in section 240B(e) of the Act. A. Divergent Circuit Motions Practice Concerning the Impact on the Voluntary Departure Period of Filing a Petition for Review Extensive litigation has resulted from the question of whether a court of appeals may stay the running of the voluntary departure period while a petition for review is pending. These decisions have resulted in a non-uniform, patchwork system of motions practice in the courts of appeals concerning the effect of filing a petition for review on the voluntary departure period. No court of appeals has held that the mere filing of a petition for review automatically stays or tolls the running of the voluntary departure period. But several circuits have found that not only do they have authority to stay voluntary departure periods provided by statute, but that an alien need not even make a specific request for such a stay, if they file a motion for a stay of removal. The Sixth, Eighth and Ninth Circuits now follow this course, construing a request for a stay of removal as a request for a stay of the voluntary departure period. See *Macotaj* v. *Gonzales,* 424 F.3d 464, 466 (6th Cir. 2005); *Rife* v. *Ashcroft,* 374 F.3d 606, 614-15 (8th Cir. 2004); *Desta* v. *Ashcroft,* 365 F.3d 741, 743 (9th Cir. 2004). Other circuit courts have allowed for a stay of the voluntary departure period if it is explicitly requested within the time period. See *Vidal* v. *Gonzales,* 491 F.3d 250 (5th Cir. 2007); *Iouri,* 487 F.3d at 85; *Obale* v. *United States Att'y Gen.,* 453 F.3d 151, 156 (3d Cir. 2006); *Bocova,* 412 F.3d at 268; *Lopez-Chavez* v. *Ashcroft,* 383 F.3d 650 (7th Cir. 2004). The Seventh Circuit has required a petitioner to file a request to extend the voluntary departure period with the district director to meet the exhaustion requirement. See *Alimi* v. *Ashcroft,* 391 F.3d 888, 893 (7th Cir. 2004). The Fourth Circuit has held that it does not have authority to toll the period. *Ngarurih,* 371 F.3d at 194. The Eleventh and Tenth Circuits have not directly addressed the tolling issue, but have held, as have all other circuits that have addressed this issue, that the courts of appeals do not have authority to reinstate or extend the voluntary departure period. See *Nkacoang* v. *INS,* 83 F.3d 353, 357 (11th Cir. 1996); *Castaneda* v. *INS,* 23 F.3d 1576, 1578 (10th Cir. 1994). The circuit courts that held they have authority to stay the voluntary departure period have based their decision either on the equitable power of the courts of appeals to issue a stay or on the theory that 28 U.S.C. 2349 contains a statutory grant of authority. See, e.g., *Obale,* 453 F.3d at 155 n.1. Over the last four fiscal years, in roughly 40% of the cases in which the alien was granted voluntary departure with an alternate order of removal, the aliens have filed petitions for review with the courts of appeals. Voluntary departure is intended as a benefit to both the alien and the government, operating as an agreement whereby both sides receive benefits. *Chedad,* supra. Like tolling during the pendency of a motion to reopen, suspending the voluntary departure period and the alien's obligation to depart, during the pendency of a petition for review, deprives the government of one of the principal considerations of the underlying voluntary departure agreement—a quick departure without the considerable expense of protracted litigation. Moreover, the delays attributable to the pendency of judicial review frequently result in extending the period allowed for voluntarily departure much longer than the delays attributable to the filing of administrative motions with the Board, in some cases allowing an additional two or three years before the alien is required to depart. Where the court has stayed the period for voluntary departure, the alien is not required to depart the United States until the very end of the litigation process, after exhausting all opportunities for administrative or judicial relief. But *all* aliens who have been ordered removed and have exhausted all opportunities for overturning the final order are under a legal obligation to depart the United States. Aliens who benefit from automatic tolling or judicial stays and are permitted to remain in the United States until the conclusion of all litigation challenges are effectively allowed to render nugatory the statutory premise that aliens who seek and are granted voluntary departure are expected to depart promptly from the United States upon issuance of a final order, in exchange for the benefits of voluntary departure, which was granted to them at their own request and was based on their proof of their intention and ability to depart the United States within the time allowed. Moreover, as a legal matter, petitions for judicial review differ from post-order administrative motions, in that an alien is not precluded from pursuing such a petition after the alien has departed from the United States. See, e.g., *Zazueta-Carrillo* v. *Ashcroft,* 322 F.3d 1166 (9th Cir. 2003) (“We now may entertain a petition after the alien has departed. See 8 U.S.C. 1252(b)(3)(B) (replacing 8 U.S.C. § 1105a(c)).”); *Mendez-Alcaraz* v. *Gonzales,* 464 F.3d 842, 844 n.8-13 (9th Cir. 2006). This contrasts with motions to reopen or reconsider, which generally cannot be filed after an alien's departure and are deemed to be withdrawn by the alien's departure, whether voluntary or not. Cf. 8 CFR 1003.2(d) and 1003.23(b)(1) (motions before the Board and immigration judges are deemed withdrawn upon an alien's departure from the United States). 6 Thus, an alien is able to depart from the United States after filing a petition for review without impairing his or her opportunity to obtain judicial review. 7 This means that aliens are able to pursue judicial review while at the same time also complying with the grant of voluntary departure (though it is evidently rare as a matter of fact for an alien to depart the United States within the period allowed for voluntary departure after filing a petition for review). 6 But see *William* v. *Gonzales,* 499 F.3d 329, 333 (4th Cir. 2007) (concluding that 8 U.S.C. 1229a(c)(7)(A) “clearly and unambiguously grants an alien the right to file one motion to reopen, regardless of whether he is present in the United States when the motion is filed.”); *Li,* 473 F.3d at 982 (interpreting section 1003.2(d) not to bar the filing of a motion to reopen if the alien was the subject of a final order of removal at the time of departure). 7 See *Mendez-Alcaraz,* 464 F.3d at 844 nn.8-13 (holding that IIRlRA's permanent rules, effective April 1, 1997, “do not include the old jurisdiction-stripping provision for excluded, deported, or removed aliens” under former 8 U.S.C. 1105a(c); that the court retains jurisdiction over a petition for review after an alien has departed; and that a petitioner's removal does not render a case moot). B. The Proposed Rule This rule would respond to one of the principal policy arguments offered in support of a stay during the pendency of judicial review. Under this rule, if an alien decides to contest a final administrative order by filing a petition for review before departing the United States, the grant of voluntary departure will be terminated automatically. Such aliens will no longer have the privilege or responsibility of departing voluntarily and will become subject to a removal order, just like every other alien at the conclusion of the removal proceedings who is not granted any form of relief or protection from removal. This means, however, that they will be able to pursue judicial review without the risk of being subject to the statutory penalties for failing to depart voluntarily. 8 Again, as with any other alien who is subject to a final order of removal, DHS is authorized to detain and remove the alien from the United States at any time pursuant to section 241 of the Act, unless the order of removal has been stayed, but the alien's removal would not impair the availability of judicial review. 8 The Board does not grant voluntary departure for a period of less than 30 days, which is the same period allowed for the filing of a petition for judicial review. Thus, we do not foresee any situation in which an alien would be filing a timely petition for review after overstaying the period allowed for voluntary departure. Again, this proposal is intended to allow an opportunity for aliens who have been granted voluntary departure to be able to pursue judicial review without risking the imposition of the voluntary departure penalties, to promote uniformity, and also to bring the voluntary departure process back to its statutory premises. It further recognizes that although an alien may request voluntary departure in good faith before an immigration judge, the alien's circumstances may change by the time the case is decided by the Board, and ensures that the alien is not subsequently penalized when such change in circumstances occurs. The Department proposes to amend 8 CFR 1240.26 to provide for the automatic termination of a grant of voluntary departure upon the filing of a petition for review. This rule is intended to result in a uniform application of the effect of the voluntary departure period in all the circuit courts of appeals. Under this rule, since the grant of voluntary departure would be terminated automatically if the alien elects to file a petition for review, there would no longer be any period of voluntary departure to be stayed or tolled during the pendency of the judicial review. This rule is consistent with the congressional intent, as expressed in the 1996 changes to the Act, that aliens may no longer remain in a period of voluntary departure for years, but instead are strictly limited to a discrete period of time for voluntary departure. The termination of the grant of voluntary departure upon the filing of a petition for review (or an administrative motion to reopen or reconsider) does not have the effect, however, of altering the date on which the Board's decision became administratively final. Existing regulations provide that a decision by the Board dismissing an alien's appeal becomes administratively final upon issuance of the Board's decision, see 8 CFR 1003.1(d)(7), 1241.1, and that is the relevant date for purposes of section 242 of the Act (8 U.S.C. 1252). The termination of voluntary departure on account of the alien's actions means that the alternate order of removal that was entered at the time of the grant of voluntary departure pursuant to 8 CFR 1240.26(d) takes effect automatically. The date of the final order remains the date the Board issued its decision. We also seek public comment on a related issue relating to inadmissibility under section 212(a)(9)(A) of the Act (8 U.S.C. 1182(a)(9)(A)). In general, an alien who has been ordered removed is inadmissible under that section if the alien seeks admission again within a specified period of five or ten years after the alien's departure or removal. An alien who leaves under a grant of voluntary departure has not been “removed” and so is not subject to these grounds of inadmissibility (though he or she may be subject to other grounds of inadmissibility). As noted above, this rule provides that the filing of a petition for review would terminate the grant of voluntary departure, with the result that any alien who files a petition for review, and does not prevail, thus may be subject to inadmissibility under section 212(a)(9)(A) of the Act. However, we note that the Act also allows an alien to maintain his or her petition for judicial review after departing from the United States, as discussed above. The Department's general experience is that the number of aliens who accept a grant of voluntary departure, file a petition for judicial review, and then actually depart the United States within the time specified for voluntary departure is very small indeed, but we recognize the possibility that at least some aliens might do so. Though we do not make a specific proposal here, we seek public comment on whether or not it might be advisable (and the possible means for accomplishing such a result) to consider adopting a rule that those aliens who do depart the United States during the period of time specified in the grant of voluntary departure, after filing a petition for review, would not be deemed to have departed under an order of removal for purposes of section 212(a)(9)(A) of the Act. Such a provision may provide an incentive for the alien to pursue his or her challenge to the validity of the removal order from abroad. VI. Notice to the Alien Under the Proposed Rule The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure. The existing regulations and precedents will continue to apply to any order granting voluntary departure issued prior to the effective date of the final rule. Currently, an immigration judge's decision advises the alien of the right to file an appeal with the Board within 30 days of the decision, and this rule makes no change in that respect since aliens accepting a grant of voluntary departure will still be able to appeal to the Board on the merits of the alien's claims of relief or protection from removal. To ensure that aliens are aware of the consequences of filing a motion to reopen or reconsider prior to the expiration of voluntary departure, the rule amends 8 CFR 1240.11 to provide that the immigration judge will advise the alien of the consequences of accepting a grant of voluntary departure and the effect of any subsequent post-decision motion to reopen or reconsider. In particular, the alien will be advised that an order of voluntary departure shall be automatically terminated upon filing a motion to reopen or reconsider, as long as such a motion is filed before the voluntary departure period has expired. Currently, aliens are advised in the notice of decision of the consequences of failing to depart under section 240B(d) of the Act (8 U.S.C. 1229c(d)) pursuant to an order of voluntary departure. See 8 CFR 1240.13(d). The additional notice proposed by this rule should help to avoid practical concerns that the alien was not fully aware of the consequences of filing a motion to reopen or reconsider during the voluntary departure period. By providing such notice to the alien at the time of the granting of voluntary departure at the conclusion of removal proceedings, the immigration judge can ensure that the alien understands the relevant principles applicable to the grant of voluntary departure. The proposed rule also provides that, if the alien appeals the immigration judge's decision to the Board, the Board's decision will provide notice to the alien with respect to the impact of filing a post-order administrative motion to reopen or reconsider. In addition, this rule provides that the Board's decision will provide notice to the alien with respect to the impact of filing a petition for review. Since the immigration judge's order is appealable to the Board, an adverse immigration judge decision is not subject to a direct petition for review to the courts of appeals without a prior Board decision. See INA 242(d)(1) (8 U.S.C. 1252(d)(1)) (requiring exhaustion of all administrative remedies available to the alien as of right). Therefore, there is no reason to require the immigration judge to advise the alien of the consequences of filing a subsequent petition for review. However, once the Board has issued its final decision denying the alien's substantive claims and issuing a final order granting voluntary departure, this rule provides that the Board's final order will advise the alien that if the alien files a petition for review of the order before departing the United States, that will have the effect of terminating the grant of voluntary departure. At that point, the alien would be in the same legal position as other aliens who have been found to be removable and denied relief. The alien will no longer have the benefit and responsibility of voluntary departure, but the alien will be able to challenge the merits of the Board's decision before the court of appeals. If the court stays the execution of removal order, the alien would be able to remain while the petition for review is pending. If the alien does not prevail before the court, then, because the voluntary departure grant was terminated by filing the petition for review, he or she will not be subject to the penalties for failing to depart voluntarily. VII. Other Issues Relating to Voluntary Departure A. Voluntary Departure Bond When the immigration judge grants voluntary departure at the conclusion of the removal proceedings, section 240B(b)(3) of the Act requires that the alien post a voluntary departure bond, “in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.” The current regulation at 8 CFR 1240.26(c)(3) provides that the voluntary departure bond shall be no less than $500 and must be posted with the district director within 5 business days of the immigration judge's order. DHS is responsible for administering the bond process. In view of the transfer of authority to DHS, and the establishment of different adjudicatory and enforcement offices, this rule makes conforming changes to include references to the Immigration and Customs Enforcement
(ICE)Field Office Director rather than the former terminology of district director. Because a voluntary departure bond must be posted promptly after the issuance of the immigration judge's order granting voluntary departure, the Department recognizes that some aliens may post a voluntary departure bond and then later have their grant of voluntary departure automatically terminated under this rule because the alien has subsequently filed a motion to reopen or a petition for review. In all cases, as provided in section 240B(b)(3) of the Act, the purpose of the voluntary departure bond is to “ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.” Accordingly, this rule includes new provisions addressing the alien's liability for the voluntary departure bond depending on whether or not the alien does depart the United States within the time allowed. The fact that the grant of voluntary departure is subsequently terminated on account of the alien's own actions to challenge the final administrative order does not undo the purpose for the posting of the bond. Under any circumstances, the purpose of the bond is to encourage the alien to depart promptly as promised. Thus, in any case where the alien can show he or she is physically outside the United States within the time allowed, the alien's voluntary departure bond will not be forfeited, and the bond can be cancelled or cash can be reclaimed by the alien after his or her departure from the United States. Once an alien departs the United States, the alien may follow the rules set forth by DHS for the voluntary departure bond, which may include proof that the alien departed within the time allowed even though the grant of voluntary departure was terminated pursuant to these rules. An alien who posted a bond will not forfeit it upon the filing of a petition for review, if the alien can establish that within 30 days after the filing of the petition for review he or she is physically outside the United States. However, the proposed rule specifies that the alien's failure to depart during the time allowed will result in forfeiture of the alien's bond posted pursuant to a grant of voluntary departure. The purpose of the bond was to ensure that the alien does depart during the time allowed, as the alien had promised to do at the time of the immigration judge's order granting voluntary departure, and the alien's decision not to depart within that period would preclude the alien from recouping the amount of the bond. This is currently the result if the alien simply remains in the United States in violation of the grant of voluntary departure. This rule would further provide that the same result would continue to apply if the alien files a post-order motion to challenge the final order or a petition for review. 9 However, we are seeking public comment on this aspect of the rule. 9 This rule provides that the filing of a motion to reopen, motion to reconsider, or a petition for review (within the time allowed for voluntary departure) automatically terminates the grant of voluntary departure. The rule does not provide that the granting of voluntary departure is void ab initio; it merely means that the continuing obligation to depart within the time allowed is terminate *d.* Finally, the rule provides an exception if the alien is ultimately successful in overturning, reopening, or remanding the final administrative order that had denied the alien's claims on the merits relating to the alien's removability or eligibility for relief. Since, as discussed above, a grant of voluntary departure at the conclusion of removal proceedings is only relevant if the alien has already been found to be removable and ineligible for relief, a subsequent decision overturning, reopening, or remanding the denial of the alien's claims on the merits means that the issue of voluntary departure is rendered moot with respect to the voluntary departure bond. B. Failure To Post the Mandatory Voluntary Departure Bond The existing regulations provide that, if the required voluntary departure bond is not posted within 5 business days, the grant of voluntary departure shall vacate automatically and the alternate order of removal will take effect on the following day. 8 CFR 1240.26(c)(3). Recently, the Board addressed issues relating to the failure to post a voluntary departure bond in *Matter of Diaz-Ruacho* , 24 I&N Dec. 47 (BIA 2006). In that case, the alien was granted voluntary departure but failed to post the voluntary departure bond. The Board denied the alien's appeal and reinstated the period for voluntary departure. Then, after the time allowed for voluntary departure had already expired, the alien filed a motion to reopen in order to submit additional evidence in support of his unsuccessful application for cancellation of removal. Initially, the Board denied the motion because the alien's failure to depart meant that the alien had become subject to the statutory 10-year bar on eligibility for cancellation of removal. In its precedent decision in *Diaz-Ruacho* , the Board held that, because the alien failed to post the voluntary departure bond as required, the order granting voluntary departure never took effect. In its decision, the Board concluded that posting of the bond is a condition precedent, and therefore the consequences and benefits of voluntary departure did not attach until the bond was posted. The Board found additional support for this conclusion in the language of the immigration judge's order and in the regulation, which provided that the order granting voluntary departure “shall vacate automatically” upon the failure to timely post bond. See 8 CFR 1240.26(c)(3). This meant that the alien was not subject to penalties under section 240B(d) of the Act for failure voluntarily to depart, and thus he is still eligible for cancellation of removal. Though it may be a permissible reading of the language of the current regulations, this result is not consistent with the statutory purpose and is not a sound policy approach because the alien's own default in failing to post a voluntary departure bond, as the alien was just ordered to do in connection with the order granting voluntary departure, should not be the trigger that exempts the alien from the penalties for failure to depart. The purpose of the bond requirement, as stated in the statute, is to “ensure that the alien departs within the time specified,” and the bond requirement should not be interpreted to stand this statutory purpose on its head by providing a ready means for aliens to exempt themselves from the penalties for failure to depart. Moreover, using the failure to post a bond as the trigger that vitiates the grant of voluntary departure does not make practical sense because it is not an open, discrete, affirmative step and there is no ready process for highlighting the absence of a bond. In particular, there is no reason to believe that the government counsel or the immigration judge would be made aware at the time in many or most cases that a default had even occurred and that the grant of voluntary departure had been vacated. In many such cases, the Board may be unaware at the time of a final order reinstating the period of voluntary departure that the alien's voluntary departure grant had already been terminated by default even before the alien filed the appeal with the Board. Under the approach of *Diaz-Ruacho* , it is entirely likely in many cases that an alien may depart from the United States within the time allowed even though the grant of voluntary departure had already been vacated because of the alien's failure to post a bond. Later, when it is determined that the alien had failed to post the bond at the time as required, then there would be an issue whether such aliens may end up being subject to the 10-year bar on admissibility under section 212(a)(9)(A)(ii) of the Act because they actually departed under the alternate order of removal rather than a grant of voluntary departure. The Attorney General has decided to amend the language regarding failure to post bond to make clear that the failure to post a voluntary departure bond does not exempt the aliens from the obligation to depart nor does it exempt them from the penalties for failure to depart voluntarily. An alien who is granted voluntary departure remains liable for the amount of the bond if he or she voluntarily fails to depart during the period of time allowed—whether or not the alien files a motion to reopen or reconsider or a petition for judicial review, or simply remains in the United States in violation of the grant of voluntary departure, except as noted above. It is important, however, to have other provisions in place to ensure that the voluntary departure bond, when required, is posted within the period of 5 business days. Since the purpose of the voluntary departure bond is to ensure that the alien does depart from the United States, as promised, this proposed rule provides that the failure to post the bond, when required, within 5 business days is a violation of the requirement of section 240B(b)(3) of the Act and may be considered
(i)in evaluating whether the alien should be detained based on risk of flight, and
(ii)as a negative discretionary factor with respect to any discretionary form of relief. In addition, we seek public comment on whether the rule should also provide additional sanctions for aliens who fail to post the required voluntary departure bond by the fifth business day. One such possibility may be to provide that an alien who posts a required voluntary departure bond after the fifth business day will not be able to get a full refund of the bond amount—e.g., a 20% reduction of the amount to be returned to the alien on account of a late posting of a required voluntary departure bond. Finally, this proposal also amends 8 CFR 1241.1(f) with respect to an alien who waives appeal at the conclusion of the immigration judge proceedings, but fails to post the required voluntary departure bond within five business days, as he or she had agreed to do in connection with the grant of voluntary departure. The waiver of appeal by both parties means that the immigration judge's order is an administratively final order. If an alien who has waived appeal fails to post the required voluntary departure bond within the time allowed, the alternate order of removal will then take effect after the failure to timely post bond. This proposal ensures that aliens who waive appeal before the immigration judge still have an incentive to post bond as they agreed to do, since the alien's failure to do so would result in a final order after the fifth business day, and it preserves DHS's authority to detain an alien who fails to timely post bond, as he or she is then under a final order of removal. However, if the alien thereafter does depart within the voluntary departure period, the alien will not be subject to the penalties under 240B(d) of the Act (8 U.S.C. 1229a(c)(4)(B)) or inadmissibility under 212(a)(9)(A) of the Act. C. Providing Notice to the Board That the Voluntary Departure Bond Has Been Posted As noted above, an alien whose request for voluntary departure is granted by an immigration judge at the conclusion of removal proceedings is required to post a voluntary departure bond within five business days in an amount necessary to ensure that the alien does depart the United States within the time allowed. The bond is posted at a DHS office, so under current practice neither the immigration judge nor the Board is aware of whether an alien has complied with the obligation to post a bond as he or she had promised to do at the time of the grant of voluntary departure. This proposed rule would require that aliens who have been granted voluntary departure submit proof of having posted the required voluntary departure bond in connection with the filing of an appeal with the Board. Since the alien is obligated to post a bond within five business days of the immigration judge's order, but the appeal to the Board is due within 30 days of the immigration judge's order, the alien will have ample time available to obtain proof of the posting of the bond. As in other respects, the burden of proof is on an alien to establish eligibility for a discretionary form of relief from removal, see section 240(c)(4)(B) of the Act; 8 CFR 1240.8(d), so it is reasonable to provide that aliens who are granted voluntary departure are expected to provide proof of compliance with one of the key obligations under the grant of voluntary departure. If the alien does not provide timely proof to the Board that the required voluntary departure bond has been posted, the Board will not include a grant of voluntary departure in its final order. 10 10 As noted in the previous section of this supplementary information, however, an alien's failure to post a voluntary departure bond does not exempt the alien from liability for the amount of the bond. An alien who fails to post the required bond but appeals the immigration judge's decision will not be granted voluntary departure by the Board, but such an alien does remain liable for the amount of the voluntary departure bond that he or she had expressly agreed to post. D. Amount of the Monetary Penalty for Failure To Depart Voluntarily Section 240B(d)(1) of the Act provides that, in addition to being barred from eligibility for certain discretionary forms of relief for a period of 10 years, an alien who fails to depart voluntarily as required “shall be subject to a civil penalty of not less than $1,000 and not more than $5,000.” However, there is no process for the immigration judge to set the specific amount of the penalty, and the DHS regulations also do not provide a means to calculate the specific amount of the penalty. Thus, though the grants of voluntary departure issued by immigration judges and the Board routinely include warnings about the imposition of a civil penalty for failure to depart voluntarily, as a practical matter there appears to have been very little means actually to impose and collect such civil penalties on aliens who overstay their period of voluntary departure. In order to give effect to the statutory provision providing for a civil penalty, and to simplify the administrative process and provide clear advance notice to the aliens who are seeking voluntary departure, the proposed rule would set a presumptive amount of $3,000 as the civil penalty for failure to depart. This amount—which is identical to provisions in the immigration bills passed by the House and Senate in the 109th Congress (S. 2611 and H.R. 4437)—would be applicable in every case in the future unless the immigration judge specifically set a higher figure at the time of granting voluntary departure. The collection of the civil penalty is within the enforcement responsibility of DHS, and not the immigration judge or the Board. However, in any case where an alien is later seeking discretionary relief, the immigration judge or the Board may properly take account of evidence that the alien has failed to pay the required civil penalty, as a relevant discretionary factor. VIII. Regulatory Requirements A. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects individual aliens and does not affect small entities, as that term is defined in 5 U.S.C. 601(6). B. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year and also will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. D. Executive Order 12866 (Regulatory Planning and Review) The Attorney General has determined that this rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and, accordingly, this rule has been submitted to the Office of Management and Budget for review. E. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements. List of Subjects 8 CFR Part 1240 Administrative practice and procedure, Aliens. 8 CFR Part 1241 Administrative practice and procedure, Aliens, Immigration. Accordingly, for the reasons stated in the preamble, chapter V of title 8 of the Code of Federal Regulations is proposed to be amended as follows: PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 1. The authority citation for part 1240 continues to read as follows: Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1229(c)(e), 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100, (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2. 2. Section 1240.11 is amended by adding a new sentence at the end of paragraph
(b)to read as follows: § 1240.11 Ancillary matters, applications.
(b)* * * The immigration judge shall advise the alien of the consequences of filing a post-decision motion to reopen or reconsider prior to the expiration of the time specified by the immigration judge for the alien to depart voluntarily. 3. Section 1240.26 is amended by: a. Adding new paragraphs (b)(3)(iii) and (b)(3)(iv); b. Revising paragraph (c)(3); c. Adding new paragraphs (e)(1) and (e)(2); d. Adding a new sentence at the end of paragraph (f); and by e. Adding new paragraphs
(i)and (j), to read as follows: § 1240.26 Voluntary departure—authority of the Executive Office for Immigration Review.
(b)* * *
(3)* * *
(iii)If the alien files a post-decision motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately. The penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply if the alien has filed a post-decision motion to reopen or reconsider during the period allowed for voluntary departure. The immigration judge shall advise the alien of the provisions of this paragraph (b)(3)(iii).
(iv)The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.
(c)* * *
(3)*Conditions.* The immigration judge may impose such conditions as he or she deems necessary to ensure the alien's timely departure from the United States. The immigration judge shall advise the alien of the applicable conditions, including the provisions of this paragraph (c)(3). In all cases under section 240B(b) of the Act:
(i)The alien shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien departs within the time specified, but in no case less than $500. The voluntary departure bond shall be posted with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure, and the ICE Field Office Director may, at his or her discretion, hold the alien in custody until the bond is posted. Because the purpose of the voluntary departure bond is to ensure that the alien does depart from the United States, as promised, the failure to post the bond, when required, within 5 business days may be considered in evaluating whether the alien should be detained based on risk of flight, and also may be considered as a negative discretionary factor with respect to any discretionary form of relief. The alien's failure to post the required voluntary departure bond within the time required does not terminate the alien's obligation to depart within the period allowed or exempt the alien from the consequences for failure to depart voluntarily during the period allowed. However, if the alien had waived appeal of the immigration judge's decision, the alien's failure to post the required voluntary departure bond within the period allowed means that the alternate order of removal takes effect immediately pursuant to 8 CFR 1241.1(f), provided that if the alien does depart the United States during the period allowed for voluntary departure, he or she shall not be subject to the penalties at INA 240B(d)(1) or to inadmissibility under section 212(a)(9)(A) of the Act.
(ii)An alien who has been granted voluntary departure shall, in connection with the filing of an appeal with the Board, submit timely proof of having posted the required voluntary departure bond. If the alien does not provide timely proof to the Board that the required voluntary departure bond has been posted with DHS, the Board will not include a grant of voluntary departure in its final order.
(iii)If the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall terminate automatically and the alternate order of removal will take effect immediately. If the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply.
(iv)The automatic termination of an order of voluntary departure and the effectiveness of the alternative order of removal shall not impact, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.
(v)If after posting the voluntary departure bond the alien satisfies the condition of the bond by departing the United States prior to the expiration of the period granted for voluntary departure, and if proof of the alien's departure is timely furnished to the ICE Field Office Director, the bond may be canceled. The bond also may be cancelled if, after filing a petition for review, the alien can establish that within 30 days after such filing he or she is physically outside the United States. In order for the bond to be cancelled, the alien must provide proof of departure by such methods as the ICE Field Office Director may prescribe.
(vi)Because the purpose of the voluntary departure bond is to ensure that the alien departs the United States within the time allowed, the automatic termination of a grant of voluntary departure, on account of a post-order motion to reopen or reconsider or a petition for review filed by the alien, does not result in the cancellation of the voluntary departure bond if the alien fails to depart within the time allowed. However, the voluntary departure bond may be canceled by such methods as the ICE Field Office Director may prescribe if the alien is subsequently successful in overturning, reopening, or remanding the final administrative order.
(e)* * *
(1)*Motion to reopen or reconsider filed during the voluntary departure period* . The filing of a motion to reopen or reconsider prior to the expiration of the period allowed for voluntary departure has the effect of automatically terminating the grant of voluntary departure, and accordingly does not toll, stay, or extend the period allowed for voluntary departure under this section. See paragraphs (b)(3)(iii) and (c)(3)(ii) of this section.
(2)*Motion to reopen or reconsider filed after the expiration of the period allowed for voluntary departure.* The filing of a motion to reopen or a motion to reconsider after the time allowed for voluntary departure has already expired does not in any way impact the period of time allowed for voluntary departure under this section. The granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect, as a consequence of the alien's prior failure voluntarily to depart within the time allowed, does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act.
(f)* * * The filing of a motion to reopen or reconsider or a petition for review has the effect of automatically terminating the grant of voluntary departure, and accordingly does not toll, stay, or extend the period allowed for voluntary departure.
(i)*Effect of filing a petition for review.* If, prior to departing the United States, the alien files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252), or any other judicial challenge to the administratively final order, any grant of voluntary departure shall terminate automatically upon the filing of the petition or other judicial challenge and the alternate order of removal entered pursuant to paragraph
(d)shall immediately take effect. The Board shall advise the alien of the condition provided in this paragraph in writing as part of an order reinstating the immigration judge's grant of voluntary departure. The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter. Since the grant of voluntary departure is terminated by the filing of the petition for review, the alien will be subject to the alternate order of removal, but the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply to an alien who files a petition for review, and who remains in the United States while the petition for review is pending.
(j)*Penalty for failure to depart.* The civil penalty for failure to depart, pursuant to section 240B(d)(1)(A) of the Act, shall be set at $3,000 unless the immigration judge specifically orders a higher amount at the time of granting voluntary departure. The immigration judge shall advise the alien of the amount of this civil penalty at the time of granting voluntary departure. PART 1241—APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED 4. The authority citation for part 1241 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4). 5. Section 1241.1 is amended by revising paragraph (f), to read as follows: § 1241.1 Final order of removal.
(f)If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period except as provided in the following sentence, or upon the failure to post a required voluntary departure bond if the respondent has waived appeal. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General. Dated: November 27, 2007. Michael B. Mukasey, Attorney General. [FR Doc. E7-23289 Filed 11-29-07; 8:45 am] BILLING CODE 4410-30-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0258; Directorate Identifier 2007-CE-090-AD] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Models AT-400, AT-500, AT-600, and AT-800 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to supersede Airworthiness Directive
(AD)2007-13-17, which applies to all Air Tractor, Inc. (Air Tractor) Models AT-602, AT-802, and AT-802A airplanes. AD 2007-13-17 currently requires you to repetitively inspect the engine mount for any cracks, repair or replace any cracked engine mount, and report any cracks found to the FAA. Since we issued AD 2007-13-17, Air Tractor has learned of a Model AT-502B with a crack located where the lower engine mount tube is welded to the engine mount ring. In addition, Snow Engineering Co. has developed gussets that, when installed according to their service letter, terminate the repetitive inspection requirement. Consequently, this proposed AD would retain the inspection actions of AD 2007-13-17 for Model AT-602, AT-802, and AT-802A airplanes, including the compliance times and effective dates; establish new inspection actions for the AT-400 and AT-500 series airplanes; incorporate a mandatory terminating action for all airplanes; and terminate the reporting requirement of AD 2007-13-17. We are proposing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. DATES: We must receive comments on this proposed AD by January 29, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; fax:
(940)564-5612. FOR FURTHER INFORMATION CONTACT: Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Pl, San Antonio, Texas 78216; phone:
(210)308-3365; fax:
(210)308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-0258; Directorate Identifier 2007-CE-090-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Two reports of Model AT-802A airplanes with cracked engine mounts (at 2,815 hours time-in-service
(TIS)and 1,900 hours TIS) caused us to issue AD 2007-13-17, Amendment 39-15121 (72 FR 36863, July 6, 2007). AD 2007-13-17 currently requires the following on all Air Tractor Models AT-602, AT-802, and AT-802A airplanes: • Inspect (initially and repetitively) the engine mount for any cracks; • Repair or replace any cracked engine mount; and • Report any cracks found to the FAA. Since we issued AD 2007-13-17, Air Tractor notified the FAA of a Model AT-502B airplane with a crack located where the lower engine mount tube is welded to the engine mount ring. The airplane had 8,436 total hours TIS. The cracking is similar to what prompted us to issue AD 2007-13-17. The Model AT-502B engine mount is the same design used in the Models AT-400, AT-400A, AT-402, AT-402A, AT-402B, AT-502, and AT-503A airplanes. The Model AT-502A airplane uses the same engine mount design as the airplanes affected by AD 2007-13-17. Therefore, we determined that these airplane models should be subject to the actions of AD 2007-13-17. Currently, the FAA is aware of the following airplanes that have had cracked engine mounts: • 1 Model AT-502B; • 3 Model AT-602; and • 11 Model AT-802/802A. This condition, if not corrected, could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. In addition, Snow Engineering Co. developed gussets for an FAA-approved repair scheme to AD 2007-13-17. Snow Engineering Co. tested the engine mount with the gussets installed; and based on their test data, which has been approved by the FAA, installation of the gussets terminates the repetitive inspection requirement. Relevant Service Information We have reviewed Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007. The service information describes procedures for: • Performing a visual inspection of the engine mount for cracks; • Repairing the engine mount if cracks are found; and • Adding gussets to reinforce the engine mount and terminate the inspection requirement. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would supersede AD 2007-13-17 with a new AD that would retain the inspection actions of AD 2007-13-17 for Models AT-602, AT-802, and AT-802A airplanes, including the compliance times and effective dates; establish new inspection actions for the AT-400 and AT-500 series airplanes; incorporate a mandatory terminating action for all airplanes; and terminate the reporting requirement of AD 2007-13-17. This proposed AD would require you to use the service information described previously to perform these actions. Costs of Compliance We estimate that this proposed AD would affect 1,264 airplanes in the U.S. registry, including those airplanes affected by AD 2007-13-17. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1.5 work-hours × $80 per hour = $120 $0 $120 $151,680 We estimate the following costs to do the repair/modification: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 24 work-hours × $80 per hour = $1,920 $80 $2,000 $2,528,000 The estimated total cost on U.S. operators includes the cumulative costs associated with AD 2007-13-17 and those airplanes and actions being added in this AD. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive
(AD)2007-13-17, Amendment 39-15121 (72 FR 36863, July 6, 2007), and adding the following new AD: **Air Tractor, Inc.:** Docket No. FAA-2007-0258; Directorate Identifier 2007-CE-090-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by January 29, 2008. Affected ADs
(b)This AD supersedes AD 2007-13-17, Amendment 39-15121. Applicability
(c)This AD applies to the following airplane models and serial numbers that are certificated in any category: Model Serial numbers AT-400, AT-400A, AT-402, AT-402A, and AT-402B -0001 through -1175. AT-502, AT-502A, AT-502B, and AT-503A -0001 through -2597. AT-602 -0001 through -1141. AT-802 and AT-802A -0001 through -0227. Unsafe Condition
(d)This AD results from a report of a Model AT-502B airplane with a crack located where the lower engine mount tube is welded to the engine mount ring. The airplane had 8,436 total hours time-in-service (TIS). We are issuing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. Compliance
(e)To address this problem, you must do the following, unless already done:
(1)*For all airplanes with less than 5,000 hours total TIS that do not have gussets installed on the engine mount in accordance with Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007:* Visually inspect the engine mount as follows: Affected airplanes Compliance Procedures
(i)*For all Models AT-602, AT-802, and AT-802A airplanes* Initially before the airplane reaches a total of 1,300 hours TIS or within the next 100 hours TIS after August 10, 2007 (the effective date of AD 2007-13-17), whichever occurs later. Repetitively thereafter at intervals not to exceed 300 hours TIS Follow Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007, or Snow Engineering Co. Service Letter #253, revised January 22, 2007.
(ii)*For all Model AT-502A airplanes* Initially before the airplane reaches a total of 1,300 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later. Repetitively thereafter at intervals not to exceed 300 hours TIS Follow Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007.
(iii)*For all Models AT-400, AT-400A, AT-402, AT-402A, AT-402B, AT-502, AT-502B, and AT-503A airplanes* Initially within the next 12 months after the effective date of this AD. Repetitively thereafter at intervals not to exceed 12 months Follow Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007.
(2)*For all airplanes:* Before further flight after any inspection required by paragraph (e)(1) of this AD where crack damage is found, repair and modify the engine mount by installing gussets following Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007. This modification terminates the repetitive inspections required in paragraphs (e)(1)(i), (e)(1)(ii), and (e)(1)(iii) of this AD.
(3)*For all airplanes:* Before the airplane reaches 5,000 hours total TIS after the effective date of this AD or within the next 100 hours TIS after the effective date of this AD, whichever occurs later; inspect, repair if cracked, and modify the engine mount by installing gussets following Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007. This modification terminates the repetitive inspections required in paragraphs (e)(1)(i), (e)(1)(ii), and (e)(1)(iii) of this AD. Note: As a terminating action to the repetitive inspections required in paragraphs (e)(1)(i), (e)(1)(ii), and (e)(1)(iii) of this AD, you may install the gussets before finding cracks or reaching 5,000 hours total TIS. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Forth Worth Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Pl, San Antonio, Texas 78216; phone:
(210)308-3365; fax:
(210)308-3370. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; fax:
(940)564-5612. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov* . The docket number is Docket No. FAA-2007-0258; Directorate Identifier 2007-CE-090-AD. Issued in Kansas City, Missouri, on November 23, 2007. Steven W. Thompson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-23229 Filed 11-29-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7744] Proposed Flood Elevation Determinations; Correction AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule; correction. SUMMARY: This document corrects the table to a proposed rule published in the **Federal Register** of November 2, 2007. This correction clarifies the table representing the flooding source(s), location of referenced elevation, the effective and modified elevation in feet and the communities affected for Tulsa County, Oklahoma, and Incorporated Areas; specifically, for flooding sources “Horsepen Creek Tributary B” and “Horsepen Creek Tributary B Tributary,” that was previously published. DATES: Comments to be submitted on or before January 31, 2008. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-2903. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)publishes proposed determinations of Base (1-percent-annual-chance) Flood Elevations
(BFEs)and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. Correction In proposed rule FR Doc. E7-21595, beginning on page 62182 in the issue of November 2, 2007, make the following corrections, in the table published under the authority of 44 CFR 67.4. On page 62182, in § 67.4, in the table with center heading Tulsa County, Oklahoma, and Incorporated Areas, the flooding source(s), location of referenced elevation, the effective and modified elevation in feet and the communities affected for flooding source “Horsepen Creek Tributary B”, needs to be corrected to read as follows: Flooding source(s) Location of referenced elevation** *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected * * * * * * * Tulsa County, Oklahoma, and Incorporated Areas * * * * * * Horsepen Creek Tributary B Confluence with Horsepen Creek None +642 Unincorporated Areas of Tulsa County. Approximately 370 ft upstream of confluence with Horsepen Creek Tributary B Tributary None +644 Horsepen Creek Tributary B Tributary Confluence with Horsepen Creek Tributary B None +643 Unincorporated Areas of Tulsa County. Approximately 2800 ft upstream of confluence with Horsepen Creek Tributary B None +650 * * * * * * * Dated: November 19, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E7-23215 Filed 11-29-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 RIN 0648-AU32 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of availability of a fishery management plan amendment; request for comments. SUMMARY: NMFS announces that the New England Fishery Management Council (Council) has submitted Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan
(FMP)(Amendment 11), incorporating the Final Supplemental Environmental Impact Statement (FSEIS) and the Initial Regulatory Flexibility Analysis (IRFA), for review by the Secretary of Commerce. NMFS is requesting comments from the public on Amendment 11. Amendment 11 was developed by the Council to control the capacity of the open access general category fleet. Amendment 11 would establish a new management program for the general category fishery, including a limited access program with individual fishing quotas
(IFQs)for qualified general category vessels, a specific allocation for general category fisheries, and other measures to improve management of the general category scallop fishery. DATES: Comments must be received on or before January 29, 2008. ADDRESSES: An FSEIS was prepared for Amendment 11 that describes the proposed action and its alternatives and provides a thorough analysis of the impacts of proposed measures and their alternatives. Copies of Amendment 11, including the FSEIS and the IRFA, are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at *http://www.nefmc.org* . You may submit comments, identified by 0648-AU32, by any one of the following methods: • *Electronic Submissions* : Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* . • Fax:
(978)281-9135, Attn: Peter Christopher. • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Amendment 11.” Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy Analyst, phone 978-281-9288, fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background The general category scallop fishery is currently an open access fishery that allows any vessel to fish for up to 400 lb (181.44 kg) of scallops, provided the vessel has been issued a general category or limited access scallop permit. This open access fishery was established in 1994 by Amendment 4 to the FMP to allow vessels fishing in non-scallop fisheries to catch scallops as incidental catch, and to allow a small-scale scallop fishery to continue outside of the limited access and effort control programs aimed at the large-scale scallop fishery. Over time, the overall participation in the general category fishery has increased. In 1994, there were 1,992 general category permits issued. By 2005 that number had increased to 2,950. In 1994, there were 181 general category vessels that landed scallops, while in 2005 there were over 600. Out of concern about the level of fishing effort and harvest from the general category scallop fleet, the Council recommended that a **Federal Register** notice should be published to notify the public that the Council would consider limiting entry to the general category scallop fishery as of a specified control date. NMFS subsequently established the control date of November 1, 2004 (69 FR 63341, November 1, 2004). In January of 2006, the Council began the development of Amendment 11 to evaluate alternatives for a limited access program and other measures for general category vessels. The Council held 35 meetings open to the public on Amendment 11 between January 2006 and June 2007. After considering a wide range of issues, alternatives, and public input, the Council adopted a draft supplemental environmental impact statement (DSEIS) for Amendment 11 on April 11, 2007. Following the public comment period that ended on June 18, 2007, the Council adopted Amendment 11 on June 20, 2007. Amendment 11 includes the following: A limited access program for the general category fishery establishing three new limited access general category
(LAGC)scallop permits (IFQ scallop permit, Northern Gulf of Maine
(NGOM)scallop permit, and Incidental scallop permit); initial application procedures for an LAGC scallop permit; LAGC scallop permit provisions (initial eligibility, landings history, confirmation of permit history (CPH), permit transfers, permit splitting, qualification restriction, appeal of LAGC scallop permit denial, vessel replacements, ownership cap, voluntary relinquishment of eligibility, and permit renewals and CPH issuance); provisions for limited access scallop vessels fishing under general category rules; allocation of the total annual projected scallop catch to the general category fishery under the IFQ program; IFQs for IFQ scallop vessels; measures for the transition period to IFQ; a mechanism to allow voluntary sectors in the general category fishery; separate management measures for a NGOM scallop management area; monitoring provisions, including a requirement for all LAGC scallop vessels to operate vessel monitoring systems
(VMS)with catch reporting requirements; a change issuance date of general category permit; a measure to clarify the maximum trawl sweep size restriction under the scallop regulations; and an allowance for LAGC scallop vessels to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line. Amendment 11 would establish the percentage of scallop catch allocated to the general category fleet and would establish the IFQ program. These percentages would be applied to specific total allowable catch
(TAC)amounts that were developed by the Council as part of Framework 19 to the FMP, which will establish scallop fishery management measures for the 2008 and 2009 fishing years. After determining the allowable levels of fishing based on updated survey information and fishing mortality targets, the TAC that would be allocated to the current limited access fleet and the IFQ scallop vessels, as well as the NGOM TAC and estimated landings under the Incidental catch LAGC scallop permit, would be specified through a separate rulemaking for Framework 19. Framework 19 also will specify management measures for the 2008 and 2009 fishing years that would be recommended if Amendment 11 is not approved. Public comments are being solicited on Amendment 11 and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 11 will be published in the **Federal Register** for public comment. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of Amendment 11 to be considered in the approval/disapproval decision on the amendment. All comments received by January 29, 2008, whether specifically directed to Amendment 11 or the proposed rule for Amendment 11, will be considered in the approval/disapproval decision on Amendment 11. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 11. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Authority: 16 U.S.C. 1801 *et seq.* Dated: November 26, 2007. Emily H. Menashes, Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-23266 Filed 11-29-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070816465-7466-01] RIN 0648-AV96 Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Bycatch Management AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. SUMMARY: NMFS proposes to repeal regulations providing for a groundfish vessel incentive program
(VIP)that was designed to reduce the rate at which Pacific halibut and red king crab are taken as incidental catch in Alaska groundfish trawl fisheries. The VIP has not performed as intended because of the cost associated with enforcement, the relatively small number of vessels impacted by the regulation, and the implementation of more effective bycatch reduction programs. This action is necessary to reduce a regulatory burden on the industry and to reduce the administrative costs necessary to support a program no longer considered an effective means to reduce bycatch rates. DATES: Written comments must be received by December 31, 2007. ADDRESSES: You may submit comments, identified by 0648-AV96, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* ; • Mail: Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802; Attn: Ellen Sebastian, Records Officer; • Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK; or • Fax: 907-586-7557, Attention: Sue Salveson. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action may be obtained from the addresses stated above or from the Alaska Region NMFS website at *http://www.fakr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Ben Muse, 907-586-7228, or *ben.muse@noaa.gov* . SUPPLEMENTARY INFORMATION: Background NMFS manages the U.S. groundfish fisheries of the exclusive economic zone off Alaska under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. Fisheries off Alaska targeting groundfish incidentally catch other species as well. Some of these non-groundfish species are themselves the objects of valuable targeted fisheries and retention of these species is prohibited in the groundfish fishery. These prohibited species include Pacific halibut, Chinook and “Other” salmon, several crab species, and herring. Measures to restrict the catch of these species have been incorporated into the FMPs for the GOA and the BSAI and into regulation. Among these measures are prohibited species catch
(PSC)limits. PSC limits restrict the amount of a prohibited species that may be taken incidentally in a groundfish fishery. Groundfish fisheries are routinely closed in all or part of a management area when a PSC limit is reached. These closures are expensive for industry because they mean that valuable groundfish are left unharvested. Section 3.6.4 of the GOA FMP authorizes regulations to reduce halibut bycatch rates in fisheries subject to halibut PSC limits to increase the opportunity to fish groundfish TACs before established PSC limits are reached. Specifically, this provision is intended to encourage individual vessels to maintain average bycatch rates within acceptable performance standards and discourage fishing practices that result in excessively high bycatch. Section 3.6.4 of the BSAI FMP allows for implementation of regulatory measures to provide incentives to individual vessels to reduce bycatch rates of prohibited species for which PSC limits are established. While the GOA provisions are limited to halibut, the BSAI provisions authorize the creation of, and have been used to create, incentive programs for red king crab, as well as halibut. This provision has the same purpose as the corresponding provision in the GOA FMP, which is to increase the opportunity to harvest groundfish TACs. Vessel Incentive Program Regulations at 50 CFR 679.21(f) implement a vessel incentive program
(VIP)under the authority of the FMPs. The program creates incentives for individual groundfish trawl operators to reduce their incidental catch rates of halibut and red king crab by imposing penalties on operations whose incidental catch rates exceed specified standards. Under the program, the Alaska Regional Administrator is required to publish fishery-specific bycatch rate standards for halibut in the GOA and BSAI, and red king crab in the BSAI two times a year. Observer data on the catch composition of harvests in subject fisheries is statistically analyzed. Vessels that appear to have exceeded the published bycatch rate standards are subject to prosecution. The program became effective in mid-1991. Currently, vessels are subject to the VIP requirement if the groundfish catch of the vessel is observed on board the vessel, or on board a mothership that receives unsorted codends from the vessel, at any time during a weekly reporting period and the vessel is assigned to one of six trawl fisheries. As a practical matter, only groundfish trawl vessels carrying observers are subject to the VIP. The trawl fisheries defined in the regulations that are subject to the VIP requirement include two GOA fisheries (GOA midwater pollock and GOA other trawl) and four BSAI fisheries (BSAI midwater pollock, BSAI yellowfin sole, BSAI bottom pollock, and BSAI other trawl). A vessel is assigned a fishery group based on the species composition in observed samples of its groundfish catch. Regulations specify that a vessel's PSC rate during any fishing month may not exceed the bycatch rate standard specified by NMFS. Regulations require that bycatch rate standards for each fishery be published twice a year in the **Federal Register** . These standards are established for Pacific halibut in the GOA and BSAI trawl fisheries; the non-pollock trawl fisheries also are held to a red king crab bycatch rate standard in Zone 1 of the BSAI. A vessel is non-compliant with a bycatch rate standard if the vessel's bycatch rate for a fishing month exceeds the bycatch rate standard established for that fishery. Calculation of VIP bycatch rate standards and monitoring of PSC and target catch is dependent on data collected at-sea by observers. Observers sample hauls and gather information on the date and target species harvested, area of catch, total round weight of groundfish catch, total round weight of halibut PSC, and number of red king crab PSC. The Alaska Fisheries Science Center has developed observer sampling protocols, and algorithms for statistical analysis of bycatch information. The information is used to make statistical inferences about PSC rates for a vessel in a given month for a specific target species. The VIP regulations require publication of the bycatch rate standards in the **Federal Register** for 30 days before they take effect, unless NMFS finds for good cause that such notification and public comment are impracticable, unnecessary, or contrary to the public interest. Bycatch rate standards are season and fishery specific. The Alaska Regional Administrator is required to publish bycatch rate standards for the first half of the year (before January 1) and for the second half of the year (before July 1). Although standards are required to be published bi-annually, the Regional Administrator may adjust bycatch rate standards as frequently as he or she considers appropriate. VIP bycatch rate standards, however, have not been published since the first half of 2003. Regulations governing the determination of halibut and red king crab bycatch rates for individual vessels are at 50 CFR 679.21(f)(7) and (f)(8). Observers sample hauls and collect information about the Federal reporting area of harvest, round weight of groundfish, round weight of halibut, and number of red king crab. For VIP PSC rate calculation, observers randomly predetermine the hauls to sample, and randomly sample a minimum of 100 kg of fish from throughout the haul. Observers report to NMFS at least weekly with the information from sampled hauls, and allow the vessel operator to examine the data. At the end of a month in which an observer has sampled at least 50 percent of the vessel's total hauls (retrieved while an observer was onboard), the Regional Administrator calculates the vessel's PSC rate for halibut and red king crab based on observer data for each of the fisheries to which the vessel was assigned based on the vessel's catch composition during the month. The PSC rates reflect the weight of groundfish and halibut and the number of red king crab that were actually sampled. No extrapolations are made to the weight and numbers in sampled hauls, or the weight and numbers harvested in observed and unobserved hauls during the month. Enforcement actions may be taken if a vessel's bycatch rate for a fishing month exceeds the bycatch rate standard established for that fishery. The VIP imposes potential costs on fishermen with high observed prohibited species bycatch rates. This has created an incentive for fishermen to reduce these observed rates. They can do this by changing the patterns of their fishing behavior. They can also do this by manipulating the observer reported rates. For example, fishing operations may arrange to pre-sort their catches, to eliminate some or all of the prohibited species before these reach the observer station. These are illegal actions, and their incidence is unknown. However, it is known that the VIP increases the incentives for these actions. Anecdotal evidence from knowledgeable persons in the Observer Program and NOAA Enforcement suggests that the incidence of these activities may be serious. Pre-sorting may affect the accuracy of observer reports of halibut and red king crab bycatch and bycatch rates. Effective enforcement of the VIP imposes significant costs on the observer program and NMFS. Resources for the management of the program and enforcement of the rule have to be taken from other high priority management and enforcement responsibilities. It also is not clear from experience with the program that it has had, or will have, a significant deterrent effect or has led to the harvest of significant additional amounts of target groundfish. Part of the problem may be the limited coverage of the program. As a practical matter, sufficient observations of hauls usually only occur on vessels with 100 percent observer coverage. This has a tendency to limit the program to trawl vessels equal to or greater than 125 feet length overall (LOA); these are the trawlers that are required to carry that level of coverage. The authorizing provisions in both FMPs make clear that the purpose of a VIP is to enable industry to harvest larger proportions of groundfish TACs. Repeal of the VIP will not affect managers' ability to protect the sustainability of halibut and red king crab stocks because the groundfish fisheries will continue to be managed to maintain bycatch within the PSC limits. Repeal of the VIP also will not affect managers' ability to protect the sustainability of groundfish stocks by maintaining harvests within TAC and Acceptable Biological Catch
(ABC)limits. Furthermore, the establishment of fishery cooperatives and the stringent catch monitoring provisions implemented by NMFS to monitor cooperative-specific allocations of groundfish and prohibited species, including halibut and red king crab, are other means to reduce bycatch. Cooperative members receive a joint allocation of PSC, and this creates incentives and capabilities for cooperatives to control individual operation PSC bycatch rates to maximize the value of the cooperative's PSC allocation. In June 2003 the Council initiated an amendment to repeal the VIP given concerns about its effectiveness, concerns over its potential to absorb resources that could be utilized by other, important management and enforcement functions, concerns about the incentive created for pre-sorting of bycatch, and developments in other bycatch reduction programs that have occurred since 1991. In October 2003, the Council reviewed a NMFS discussion paper and made a preliminary identification of alternatives for analysis. The Council requested that a discussion of alternatives for analysis be placed on the agenda in December 2003 for additional public testimony. In December 2003 the Council reiterated its approval of the alternatives it had adopted in October and scheduled initial review of the draft for its April 2004 meeting. In October 2006 the Council initially reviewed the EA/RIR/IRFA and
(a)identified repeal of the VIP regulations, without modification of authorizing language in the FMPs, as its preferred alternative;
(b)approved release of the EA/RIR/IRFA for public review; and
(c)scheduled final action for its December 2006 meeting in Anchorage, Alaska. In December 2006 the Council took final action, adopting the preferred alternative it had identified in October 2006. Proposed Regulatory Changes This action would repeal 50 CFR 679.21(f), which imposes the requirement for compliance with the VIP and describes procedures for assignment of vessels to fisheries, notification of bycatch rate standards, analysis of the factors on which bycatch rate standards are to be based, public comment, publication of notification in the **Federal Register** , use of observer data to calculate rates, calculation of individual vessel rates, and determining whether a vessel is in compliance with bycatch rate standards. This action also would repeal 50 CFR 679.7(a)(5) which specifically prohibits vessels from exceeding a bycatch rate standard specified under 50 CFR 679.21(f). This proposed rule would not modify the BSAI and GOA FMPs, which contain language permitting the Council to adopt a VIP. Therefore, the Council would retain the authority to develop a new VIP if it chooses. Regulations at 50 CFR 679.50(k) authorize NMFS Alaska Region to publish individual vessel bycatch rates for specified prohibited species. Nothing in this proposed action would affect this authority, and the Alaska Region will continue to publish these bycatch rates on its website. Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of the IRFA is available from NMFS (see ADDRESSES ). A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and in the SUMMARY section of the preamble. A summary of the remainder of the analysis follows. In 2005 a total of 78 catcher vessels and 3 catcher/processor vessels reported gross annual receipts of $4.0 million or less from fishing groundfish and other species using trawl gear in the GOA, and can therefore be characterized as small entities under the SBA size standards. Between 2002 and 2005, the total number of trawl vessels generating $4.0 million or less in revenue has ranged from a low of 81 in 2004 and 2005, to a high of 112 in 2002. Average gross revenue (from all fishing sources in Alaska) generated by these vessels was approximately $840,000 in 2005, which was an increase from $730,000 in 2004 and $590,000 in 2002. Thus, the proposed alternatives may directly regulate between 81 and 112 small entities in the GOA. There has been a general decline in the number of vessels that qualify as a small entity in the GOA, so the most recent
(2005)estimate of 81 vessels was used for the analysis. This estimate is almost certainly an overestimate of the number of small entities actually directly regulated by this action since it does not take account of affiliations among the entities. Data necessary to fully assess such linkages are not currently available. The BSAI management area has a larger number of trawl vessels considered small entities than the GOA. In 2005, 99 catcher vessels and 2 catcher/processor vessels reported gross annual receipts of $4.0 million or less, from all their fishery production off Alaska. Between 2002 and 2005, the total number of vessels categorized as small entities in these BSAI fisheries has ranged from a low of 101 in 2005 to a high of 123 in 2002. Between 2002 and 2003, the average gross revenue (from all Alaskan fishing sources) generated by these vessels has ranged from a low of $1.20 million in 2003 to a high of $1.60 million in 2005. Thus, the proposed alternatives may directly regulate, on average, 113 trawl vessels that are considered small entities. This estimate is almost certainly an overestimate of the number of small entities actually directly regulated by this action, since it does not take account of affiliations among the entities. As is the case for the GOA, data necessary to fully assess such linkages are not currently available. Two alternatives to the proposed action were examined. Alternative 1 was the “No Action” alternative. Under this alternative the VIP would have remained in place. This alternative would have involved a renewed commitment to investigating violations, and prosecuting violators. As noted earlier, the Council and NMFS have had concerns about the effectiveness of this program and its potential to mislead estimates of PSC incidental catches. Moreover, cooperatives offer new methods to control PSC bycatch rates. Alternative 2 would retain the program, but would reduce the frequency with which PSC rates are published. This alternative would reduce the administrative costs of Alternative 1, but would retain its most serious consequences. Alternative 3, which would repeal the VIP provisions of regulation, was chosen as the proposed alternative because it was the only alternative that meets the objectives of this action. Alternatives 1 and 2 would renew the VIP. If the VIP were effective, it could lead to reduced bycatch rates and the harvest of larger proportions of TACs in certain trawl fisheries. However, as noted, there are important concerns about the program's potential for successful reduction in bycatch rates. As a practical matter, 100 percent observer coverage is required to make a case against a trawl operator for exceeding the PSC rate. This level of observer coverage is available only on trawl vessels greater than or equal to 125 feet LOA. Enforcement efforts would be principally directed against this class of vessels. Small entities, as defined by the Small Business Administration (SBA), could occur among both vessels greater than or equal to 125 feet LOA, and less than or equal to 125 feet LOA. Alternative 3 would best meet the objective of this action and avoid the potential costs that might be imposed on directly regulated small entities by enforcement activities. This regulation would not impose new recordkeeping and reporting requirements on the regulated small entities. The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action. List of Subjects in 50 CFR Part 679 Alaska, Fisheries, Reporting and recordkeeping requirements. Dated: November 26, 2007. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for 50 CFR part 679 is revised to read as follows: Authority: 16 U.S.C. 773 *et seq.* ; 1801 *et seq.* ; 3631 *et seq.* ; Pub. L. 108-447. § 679.7 [Amended] 2. In § 679.7, remove and reserve paragraph (a)(5). § 679.21 [Amended] 3. In § 679.21, remove and reserve paragraph (f). [FR Doc. E7-23257 Filed 11-29-07; 8:45 am] BILLING CODE 3510-22-S 72 230 Friday, November 30, 2007 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0094] National Wildlife Services Advisory Committee; Notice of Solicitation for Membership AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of solicitation for membership. SUMMARY: We are giving notice that we have reestablished the Secretary's National Wildlife Services Advisory Committee for a 2-year period. The Secretary is soliciting nominations for membership on this Committee. DATES: Consideration will be given to nominations received on or before January 14, 2008. ADDRESSES: Nominations should be addressed to the person listed under FOR FURTHER INFORMATION CONTACT . FOR FURTHER INFORMATION CONTACT: Ms. Joanne Garrett, Director, Operational Support Staff, WS, APHIS, 4700 River Road, Unit 87, Riverdale, MD 20737-1234;
(301)734-5149. SUPPLEMENTARY INFORMATION: The National Wildlife Services Advisory Committee (the Committee) advises the Secretary of Agriculture on policies, program issues, and research needed to conduct the Wildlife Services program. The Committee also serves as a public forum enabling those affected by the Wildlife Services program to have a voice in the program's policies. The Committee Chairperson and Vice Chairperson shall be elected by the Committee from among its members. We are soliciting nominations from interested organizations and individuals. An organization may nominate individuals from within or outside of its membership. The Secretary will select members to obtain the broadest possible representation on the Committee, in accordance with the Federal Advisory Committee Act (5 U.S.C. App. II) and U.S. Department of Agriculture
(USDA)Regulation 1041-1. Equal opportunity practices, in line with the USDA policies, will be followed in all appointments to the committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. Done in Washington, DC, this 21st day of November 2007. Cindy J. Smith, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-23195 Filed 11-29-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Notice of New Fee Sites and Increase in Fees at 3 Existing Fee Sites—Federal Lands Recreation Enhancement Act, (Title VIII, Pub. L. 108-447) AGENCY: Rio Grande National Forest, USDA Forest Service. ACTION: Notice of New Fee Sites. SUMMARY: The Rio Grande National Forest is planning to charge a $50/night fee for the new overnight rentals of Stone Cellar Guard Station, Saguache Bunk House, Alder Creek Guard Station and Fitton Cabin; as well as a $75/night fee for Upper Crossing Guard Station, River Springs Guard Station and 2 cabins at Platoro Reservoir. These cabins have not been available for recreation use prior to this date. Rentals of other cabins on the Rio Grande National Forest have shown that people appreciate and enjoy the availability of historic rental cabins. The Rio Grande National Forest is also proposing that the fees for existing rental cabins be raised from $35/night to $50/night for Brewery Creek Guard Station, Carnero Guard Station, and Elwood Guard Station. Funds from the rental cabins will be used for the continued operation and maintenance of the cabins. DATES: These cabins will become available for recreation rental after June 1, 2008 and contingent upon completion of certain improvements. ADDRESSES: Forest Supervisor, Rio Grande National Forest, 1803 West Highway 160, Monte Vista, CO 81144. FOR FURTHER INFORMATION CONTACT: John Murphy, Recreation Program Coordinator, 719-852-6221. SUPPLEMENTARY INFORMATION: The Federal Lands Recreation Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the **Federal Register** whenever new recreation fee areas are established. These new fees will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation. The Rio Grande National Forest currently has three cabin rentals. These rentals are often fully booked throughout their rental season. A business analysis of these rental cabins have shown that people desire having this sort of recreation experience on the Rio Grande National Forest. A market analysis indicates that the $50/per night fee and $75/night fee are both reasonable and acceptable for this sort of unique recreation experience. People wanting to rent these cabins will need to do so through the National Recreation Reservation Service, at *http://www.reserveusa.com* or by calling 1-877-444-6777. The National Recreation Reservation Service charges a $7 fee for reservations. Dated: November 19, 2007. Dan S. Dallas, Rio Grande National Forest Supervisor. [FR Doc. E7-23196 Filed 11-29-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service Notice of Intent: To Request Comments on a Currently Approved Information Collection AGENCY: Natural Resources Conservation Service (NRCS), USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the intention of NRCS to request a revision for a currently approved information collection, Long-Term Contracting. DATES: Comments on this notice must be received 60 days after publication in the **Federal Register** to be assured of consideration. FOR FURTHER INFORMATION CONTACT: Questions and comments should be directed at Leah B. Ricke, Soil Conservationist, USDA, NRCS, Post Office Box 2890, Room 5238-South, Washington, DC 20250; telephone:
(202)720-6168; e-mail: *Leah.Ricke@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: *Title:* Long-Term Contracting. *Office of Management and Budget
(OMB)Number:* 0578-0013. *Expiration Date of Approval:* September 30, 2009. *Type of Request:* Revision of a currently approved collection. *Abstract:* The primary objective of NRCS is to work in partnership with the American people and the farming and ranching community to conserve and sustain our natural resources. The purpose of long-term contracting information collection is to provide for programs to extend financial and technical assistance through easements and long-term contracts to landowners and others. These programs provide for making land use changes and installing conservation measures and practices to conserve, develop, and use the soil, water, and related natural resources on private lands. For cost-share programs, Federal financial and technical assistance is based on a conservation plan or schedule of operations that is made a part of an agreement, contract, or easement for a period of time of no less than 1 year and no greater than 10 years. Under the terms of the agreement, the participant agrees to apply, or arrange to apply, the conservation treatment specified in the conservation plan or schedule of operations. In return for this agreement, Federal cost-share payments are made to the land user, or third party, upon successful application of the conservation treatment. For easement programs, NRCS purchases from participants a conservation easement and provides for the easement's protection and management for the life of the easement. This request for revision reflects the Secretary of Agriculture's authority to continue with the conservation programs at authorized funding levels. Selected long-term contracting forms have been revised to facilitate their use in several different programs. Form CCC-1200 has been changed by splitting it into a new Form NRCS-CPA-1200 (Application) and a new Form NRCS-CPA-1202 (Contract). Forms utilized within business software applications have been modified to a consistent “NRCS-CPA-XXXX” identification format. The information collected through this package is used by NRCS to ensure the proper use of program funds, including applications for participation, easement acquisition, contract implementation, conservation planning, and application for payment. NRCS will ask for a 3-year OMB approval, with revision, within 60 days of submitting the request. *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 0.75 hours or 45 minutes per response. *Respondents:* Individuals, businesses, households, or State, local, or tribal governments. *Estimated Number of Respondents:* 37,504. *Estimated Total Annual Burden on Respondents:* 25,231.17 hours. *Comments Are invited on:*
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2)the accuracy of the Agency's estimate of burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on those who are to respond, such as through the use of appropriate automated, electronic, mechanical, or other technologic collection techniques or other forms of information technology. Comments may be sent to: Leah B. Ricke, Soil Conservationist, USDA, NRCS, Post Office Box 2890, Room 5238-South, Washington, DC 20250; telephone:
(202)720-6168; e-mail: *Leah.Ricke@wdc.usda.gov.* All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Signed in Washington, DC on November 19, 2007. Arlen L. Lancaster, Chief. [FR Doc. E7-23189 Filed 11-29-07; 8:45 am] BILLING CODE 3410-16-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Addition and Deletions ACTION: Proposed addition to and deletions from the Procurement List. SUMMARY: The Committee is proposing to add to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products and services previously furnished by such agencies. Comments must be Received on or Before: December 30, 2007. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259. For Further Information or to Submit Comments Contact: Kimberly M. Zeich, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. Addition If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each service will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government. 2. If approved, the action will result in authorizing small entities to furnish the service to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following service is proposed for addition to the Procurement List for production by the nonprofit agencies listed: Service *Service Type/Location(s):* Document Destruction, Internal Revenue Service, 11 South Street, 400 North 8th Street, Richmond, VA. *NPA:* Goodwill Services, Inc., Richmond, VA. *Contracting Activity:* U.S. Department of the Treasury, Internal Revenue Service, Chamblee, GA. Deletions Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. If approved, the action may result in authorizing small entities to furnish the products and services to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for deletion from the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following products and services are proposed for deletion from the Procurement List: Products Ballpoint Pen, Stick Type, *NSN:* 7520-01-058-9975. *NPA:* Alphapointe Association for the Blind, Kansas City, MO. Marker, Tube Type, *NSN:* 7520-00-138-7981. *NPA:* Winston-Salem Industries for the Blind, Winston-Salem, NC. *Contracting Activity:* General Services Administration, Office Supplies & Paper Products. Acquisition Ctr, New York, NY. Services *Service Type/Location:* Food Service Attendant, U.S. Coast Guard, 259 High Street, South Portland, ME. *NPA:* Northern New England Employment Services, Portland, ME. *Contracting Activity:* U.S. Coast Guard, Department of Transportation, Norfolk, VA. *Service Type/Location:* Machining Parts, Naval Supply Center, Charleston, SC. *NPA:* UNKNOWN. *Contracting Activity:* Department of the Navy, Charleston, SC. Kimberly M. Zeich, Director, Program Operations. [FR Doc. E7-23236 Filed 11-29-07; 8:45 am] BILLING CODE 6353-01-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Additions to the Procurement List. SUMMARY: This action adds to the Procurement List products to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities. EFFECTIVE DATE: December 30, 2007. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259 FOR FURTHER INFORMATION CONTACT: Kimberly M. Zeich, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: On September 28 and October 5, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 55173; 56983) of proposed additions to the Procurement List. After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government. 2. The action will result in authorizing small entities to furnish the products to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for addition to the Procurement List. End of Certification Accordingly, the following products are added to the Procurement List: Products Coveralls, Disposable, Recycled Tyvek, *NSN:* 8415-LL-L05-0056—Small/Medium *NSN:* 8415-LL-L05-0057—Large/Extra Large *NSN:* 8415-LL-L05-0058—XXLarge/XXXLarge *NPA:* Northeastern Association of the Blind at Albany, Inc., Albany, NY *Coverage:* C-List for the requirements of the Norfolk Naval Shipyard, Portsmouth, VA *Contracting Activity:* Norfolk Naval Shipyard, Portsmouth, VA Hydration System, MOLLE, Universal Camouflage, *NSN:* 8465-01-525-5531 *NPA:* The Lighthouse for the Blind, Inc., Seattle, WA *Coverage:* C-List for the requirements of the Defense Supply Center Philadelphia, Philadelphia, PA *Contracting Activity:* Defense Supply Center Philadelphia, Philadelphia, PA This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts. Kimberly M. Zeich, Director, Program Operations. [FR Doc. E7-23237 Filed 11-29-07; 8:45 am] BILLING CODE 6353-01-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Clarification of Scope of Procurement List Additions; 2007 Commodities Procurement List; Quarterly Update of the A-List and Movement of Products Between the A-List, B-List and C-List AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Publication of the quarterly update of the A-list and movement of products between the A-list, B-list and C-list as of January 1, 2008. SUMMARY: The Committee for Purchase From People Who Are Blind or Severely Disabled, in accordance with the procedures published on December 1, 2006 (71 FR 69535-69538), has updated the scope of the Program's procurement preference requirements for the products listed below between and among the Committee's A-list, B-list and C-list. A-list products are suitable for the Total Government Requirement as aggregated by the General Services Administration, the B-list are those products suitable for the Broad Government Requirement as aggregated by the General Services Administration, and C-list products are suitable for the requirements of one or more specified agency(ies). The lists below track changes to A-, B-, C-designations that occurred between August 27, 2007 and November 26, 2007. If not currently available, the A-List products listed below will be available for purchase through the GSA Global Supply system and JWOD-authorized commercial distributors on or about January 1, 2008. DATES: The effective date for the quarterly update of the A-list and movement of products between and among the A-list, B-list and C-list is January 1, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259 FOR FURTHER INFORMATION CONTACT: Emily A. Covey, *Telephone:*
(703)603-7740, *Fax:*
(703)603-0655, or e-mail *cmtefedreg@jwod.gov.* *Products moved from B-list to A-list:* None. *Products moved from C-list to A-list:* None. *Products moved from A-list to B-list:* None. *Products moved from A-list to C-list:* None. *Products moved from B-list to C-list:* None. *Products moved from C-list to B-list:* Emergency administrative Kit (50 person), 7520-00-NIB-1738. Submarine Wet Bag, 8105-01-532-6920. The complete A-list is available at *http://www.jwod.gov/jwod/p_and_s/alist2007.htm.* Kimberly M. Zeich, Director, Program Operations. [FR Doc. E7-23238 Filed 11-29-07; 8:45 am] BILLING CODE 6353-01-P DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 071108692-7694-01] Annual Surveys in the Manufacturing Area AGENCY: Bureau of the Census, Commerce. ACTION: Notice of determination. SUMMARY: The Bureau of the Census (Census Bureau) is conducting the 2007 Annual Surveys in the Manufacturing Area. The 2007 Annual Surveys consist of the Current Industrial Reports surveys and the Survey of Industrial Research and Development. We have determined that annual data collected from these surveys are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of the public and industry. The data derived from these surveys, most of which have been conducted for many years, are not publicly available from non-governmental or other governmental sources. As in prior years, these surveys will operate as separate collections of national statistical data on manufacturing. Because 2007 is an economic census year, the 2007 Annual Survey of Manufactures is being conducted as part of the economic census and is not covered in this notice of determination. The following two annual surveys in the manufacturing area will not be conducted in 2007: Survey of Plant Capacity Utilization, and the Survey of Pollution Abatement Costs and Expenditures. ADDRESSES: The Census Bureau will furnish report forms to organizations included in each survey. Additional copies of the surveys are available upon written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101. FOR FURTHER INFORMATION CONTACT: Thomas E. Zabelsky, Chief, Manufacturing and Construction Division, on
(301)763-4598. SUPPLEMENTARY INFORMATION: The Census Bureau is authorized to conduct mandatory surveys necessary to furnish current data on the subjects covered by the major censuses authorized by Title 13, United States Code, sections 61, 81, 131, 182, 193, 224, and 225. The data collected in the annual surveys in the manufacturing area will be similar to those collected in the past and within the general scope and nature of those inquiries covered in the economic census year; all the data collected in these surveys are mandatory under the authority of the sections of Title 13, U.S.C., mentioned above. In the interim years, most of these surveys are conducted under a mandatory basis as well. As in prior years, these surveys will operate as separate collections of national statistical data on manufacturing. Because 2007 is an economic census year, the 2007 Annual Survey of Manufactures is being conducted as part of the economic census and is not covered in this notice of determination. Two annual surveys in the manufacturing area will not be conducted in 2007. First, because the assessment of plant capacity utilization will be made on a quarterly basis for 2007, the Annual Survey of Plant Capacity Utilization will not be conducted this year. Second, the Annual Survey of Pollution Abatement Costs and Expenditures will not be conducted this year because the partnering agency for this survey has determined not to collect these data for 2007. Current Industrial Reports Most of the following commodity or product surveys provide data on shipments or production, stocks, unfilled orders, orders booked, consumption, and so forth. Reports will be required of all, or a sample of, establishments engaged in the production of the items covered by the following list of surveys: Survey Title MA311D Confectionery. MA314Q Carpets and Rugs. MA321T Lumber Production and Mill Stocks. MA325F Paint and Allied Products. MA325G Pharmaceutical Preparations, except Biologicals. MA327C Refractories. MA327E Consumer, Scientific, Technical, and Industrial Glassware. MA331B Steel Mill Products. MA332Q Antifriction Bearings. MA333A Farm Machinery and Lawn and Garden Equipment. MA333D Construction Machinery. MA333F Mining Machinery and Mineral Processing Equipment. MA333M Refrigeration, Air-conditioning, and Warm Air Equipment. MA333N Fluid Power Products for Motion Control (Including Aerospace). MA333P Pumps and Compressors. MA334A Electromedical Equipment and Analytical Instruments. MA334C Control Instruments. MA334D Defense, Navigational, and Aerospace Electronics. MA334M Consumer Electronics. MA334Q Semiconductors, Electronic Components, and Semiconductor. Manufacturing Equipment MA334T Meters and Test Devices. MA335E Electric Housewares and Fans. MA335F Major Household Appliances. MA335J Insulated Wire and Cable. MA335K Wiring Devices and Supplies. MA336G Aerospace Industries (Orders, Sales, and Backlog). The following list of surveys represent annual counterparts of monthly and quarterly surveys and will cover only those establishments that are not canvassed, or do not report, in the more frequent surveys. Accordingly, there will be no duplication in reporting. The content of these annual reports (listed below) will be identical with that of the monthly and quarterly reports: Survey Title M311H Animal and Vegetable Fats and Oils (Stocks). M311J Oilseeds, Beans, and Nuts (Primary Producers). M311L Fats and Oils (Renderers). M311M Animal and Vegetable Fats and Oils (Consumption and Stocks). M311N Animal and Vegetable Fats and Oils (Production, Consumption, and Stock). M313P Consumption on the Cotton System. M313N Cotton and Raw Linters in Public Storage. M327G Glass Containers. M336G Civil Aircraft and Aircraft Engines. MQ311A Flour Milling Products. MQ313A Textiles. MQ315A Apparel. MQ315B Socks. MQ325A Inorganic Chemicals. MQ325B Fertilizer Materials. MQ327D Clay Construction Products. MQ333W Metalworking Machinery. MQ334P Telecommunications. MQ334R Computers and Peripheral Equipment. Survey of Industrial Research and Development The Survey of Industrial Research and Development measures spending on research and development activities in private U.S. businesses. The Census Bureau collects and compiles this information in accordance with a joint project agreement between the National Science Foundation
(NSF)and the Census Bureau. The NSF publishes the results in its publication series. All data items are collected on a mandatory basis under the authority of the sections of Title 13,U.S.C., mentioned above. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act
(PRA)unless that collection of information displays a current, valid Office of Management and Budget
(OMB)control number. In accordance with the PRA, 44 U.S.C., Chapter 35, the OMB approved the 2007 Annual Surveys under the following OMB control numbers: Current Industrial Reports—0607-0392, 0607-0395, and 0607-0476; and Survey of Industrial Research and Development—0607-0912. Based upon the foregoing, I have directed that the Annual Surveys in the Manufacturing Area be conducted for the purpose of collecting these data. Dated: November 26, 2007. Charles Louis Kincannon, Director, Bureau of the Census. [FR Doc. E7-23250 Filed 11-29-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 071031632-7634-01] Service Annual Survey for 2007 AGENCY: Bureau of the Census, Commerce. ACTION: Notice of Determination. SUMMARY: In accordance with Title 13, United States Code (U.S.C.), sections 182, 224, and 225, the Bureau of the Census (Census Bureau) has determined that limited financial data (revenue, expenses, and the like) for selected service industries are needed to provide a sound statistical basis for the formation of policy by various governmental agencies. These data also apply to a variety of public and business needs. To obtain the desired data, the Census Bureau announces the administration of the 2007 Service Annual Survey (SAS). ADDRESSES: The Census Bureau will furnish report forms to respondents included in the survey, and additional copies are available upon written request to the Director, Census Bureau, Washington, DC 20233-0101. FOR FURTHER INFORMATION CONTACT: Ron Farrar, Chief, Health Care and Consumer Services Branch, Service Sector Statistics Division, at
(301)763-6782. SUPPLEMENTARY INFORMATION: The Census Bureau conducts surveys necessary to furnish current data on subjects covered by the major censuses authorized by Title 13, U.S.C. The SAS provides continuing and timely national statistical data each year. Data collected in this survey are within the general scope, type, and character of those inquiries covered in the Economic Census. For 2007, the economic census year, the SAS will, as it has in the past, operate as a separate sample of selected service industries. The Census Bureau needs reports only from a limited sample of service sector firms in the United States. The SAS now covers all or some of the following nine sectors: Transportation and Warehousing; Information; Finance and Insurance; Real Estate and Rental and Leasing; Professional, Scientific, and Technical Services; Administrative and Support and Waste Management and Remediation Services; Health Care and Social Assistance; Arts, Entertainment, and Recreation; and Other Services. The probability of a firm's selection is based on its revenue size (estimated from payroll); that is, firms with a larger payroll will have a greater probability of being selected than those with smaller ones. We are mailing report forms to the firms covered by this survey and require their submission within 30 days after receipt. These data are not publicly available from non-government or other government sources. Based upon the foregoing, the Census Bureau is conducting the 2007 SAS for the purpose of collecting these data. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act
(PRA)unless that collection of information displays a current valid Office of Management and Budget
(OMB)control number. In accordance with the PRA, Title 44 U.S.C., Chapter 35, the OMB approved the SAS under OMB Control Number 0607-0422. Dated: November 26, 2007. Charles Louis Kincannon, Director, Bureau of the Census. [FR Doc. E7-23247 Filed 11-29-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-836] Glycine from the People's Republic of China: Extension of Time Limits for the Preliminary Results of the 2006-2007 Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 30, 2007. FOR FURTHER INFORMATION CONTACT: Cindy Lai Robinson, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone:
(202)482-3797. Background On April 27, 2007, the Department published a notice of initiation of antidumping duty administrative review of glycine from the People's Republic of China (“China”), covering the period March 1, 2006, through February 28, 2007. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 72 FR 20986 (April 27, 2007). The preliminary results for this administrative review are currently due on December 1, 2007. 1 *See* section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”). The Department is extending the time limit for the completion of the preliminary results of this review by 120 days because it is not practicable to complete the review within this time period. In this review, the Department has encountered complicated affiliation issues, which require further analysis. Such analysis is necessary in order for the Department to obtain accurate information related to sales practices, factors of production, and corporate relationships. In addition, the Department intends to issue additional supplemental questionnaires prior to issuing the preliminary results. 1 Because December 1, 2007, falls on Saturday, the actual date for the preliminary results will be the next business day, December 3, 2007. *See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended* , 70 FR 24533 (May 10, 2005) (“ *Next Business Day Rule* ”). Given that it is not practicable to complete the review within the statutory time period, and in accordance with section 751(a)(3)(A) of the Act, we are extending the time period for issuing the preliminary results of review by 120 days. Since a 120-day extension would result in the deadline for the preliminary results falling on March 30, 2008, which is Sunday, the new deadline for the final results will be the next business day, March 31, 2008. *See Next Business Day Rule* . The final results continue to be due 120 days after the publication of the preliminary results. This notice is published pursuant to section 751(a)(3)(A) and 777(i)(1) of the Act. Dated: November 23, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-23284 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-570-891 Hand Trucks and Certain Parts Thereof from the People's Republic of China: Full Extension of Time Limit for the Preliminary Results of the Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 30, 2007. FOR FURTHER INFORMATION CONTACT: Hilary E. Sadler, Esq., AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-4340. SUPPLEMENTARY INFORMATION: Background The Department of Commerce(“Department”) published an antidumping duty order on hand trucks and certain parts thereof (“hand trucks”) from the People's Republic of China (“PRC”) on December 2, 2004. *See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China* , 69 FR 70122 (December 2, 2004). On February 2, 2007, the Department published in the **Federal Register** a notice of the initiation of the antidumping duty administrative review of hand trucks from the PRC for the period December 1, 2005, through November 30, 2006. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part* , 72 FR 5005 (February 2, 2007). On September 7, 2007, the Department published a notice to extend the issuance of the preliminary results of this administrative review by 90 days. *See Hand Trucks and Certain Parts Thereof from the People's Republic of China: Extension of Time Limit for the Preliminary Results of the Antidumping Duty Administrative Review* , 72 FR 51411 (September 7, 2007). The preliminary results of this review are currently due no later than December 1, 2007. Extension of Time Limit of Preliminary Results. Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires the Department to issue the preliminary results within 245 days after the last day of the anniversary month of an order for which a review is requested and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 245-day time period to a maximum of 365 days. Although we previously extended the 245-day period by 90 days for completion of the review, we have determined that completion of the preliminary results of this review within the extended 335-day period is not practicable because the Department needs additional time to analyze information pertaining to the respondents' sales practices, factors of production, and corporate relationships, to evaluate certain issues raised by the petitioners, and to issue and review responses to supplemental questionnaires. Because it is not practicable to complete this review within the extended 335-day time period, we are fully extending the time period for issuing the preliminary results of review by an additional 30 days until December 31, 2007, in accordance with section 751(a)(3)(A) of the Act. The final results continue to be due 120 days after the publication of the preliminary results. This notice is published pursuant to section 751(a)(3)(A) of the Act and 19 C.F.R. 351.213(h)(2). November 23, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-23288 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-863] Honey from the People's Republic of China: Final Results of Antidumping Duty New Shipper Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On July 3, 2007, the Department of Commerce (“the Department”) published the preliminary results of its new shipper review of the antidumping duty order on honey from the People's Republic of China (“PRC”) for the period December 1, 2005, through June 30, 2006. *See Honey from the People's Republic of China: Preliminary Results of Antidumping Duty New Shipper Review* , 72 FR 36422 (July 3, 2007) (“ *Preliminary Results* ”). Based on our analysis of the record, including information obtained since the preliminary results, we continue to apply adverse facts available (“AFA”) with respect to Shanghai Bloom International Trading Co., Ltd. (“Shanghai Bloom”), which failed to cooperate to the best of its ability, provided unverifiable information, and impeded the proceeding. *See* Adverse Facts Available section, below. EFFECTIVE DATE: November 30, 2007. FOR FURTHER INFORMATION CONTACT: Erin Begnal or Michael Quigley, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-1442 or
(202)482-4047, respectively. Background On July 3, 2007, the Department of Commerce (“Department”) published the preliminary results of the new shipper review of the antidumping duty order on honey from the People's Republic of China for the period December 1, 2005, through June 30, 2006. *See Preliminary Results* . On September 25, 2007, the Department extended the final results by thirty days. *See Notice of Extension of the Final Results of Antidumping Duty New Shipper Review: Honey From the People's Republic of China* , 72 FR 54436 (September 25, 2007). On October 31, 2007, the Department fully extended the final results. See Notice of Extension of the Final Results of Antidumping Duty New Shipper Review: Honey from the People's Republic of China, 72 FR 61622 (October 31, 2007). On August 2, 2007, the Department received a case brief on behalf of Shanghai Bloom. On August 8, 2007, the Department received a rebuttal brief on behalf of petitioners, the American Honey Producers Association and the Sioux Honey Association. Scope of Order The products covered by this order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form. The merchandise subject to this order is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under order is dispositive. Analysis of Comments Received In the case and rebuttal briefs received from the parties after the *Preliminary Results* , we received comments on issues related to the Department's preliminary application of AFA to Shanghai Bloom including the factors of production and completeness. All issues raised in the case briefs are addressed in the *Issues and Decision Memorandum* , which is hereby adopted by this notice. A list of the issues raised, all of which are in the *Issues and Decision Memorandum* , is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in the briefs and the corresponding recommendations in this public memorandum on file in the Central Records Unit (“CRU”), room B-099 of the Herbert C. Hoover Building. In addition, a complete version of the *Issues and Decision Memorandum* can be accessed directly on the Web at *http://www.trade.gov/ia* . The paper copy and electronic version of the *Issues and Decision Memorandum* are identical in content. Separate Rates In our preliminary results, we found that Shanghai Bloom had met the criteria for the application of a separate antidumping duty rate. *See Preliminary Results* . We have not received any information since the *Preliminary Results* with respect to Shanghai Bloom which would warrant reconsideration of our separate-rates determination with respect to this company. Therefore, for these final results, we determine that Shanghai Bloom has met the criteria for the application of a separate rate. Changes Since the Preliminary Results Based on the comments received from the interested parties, we have made no changes to the preliminary results. For the final results, we have adopted our positions in the preliminary results. We continue to find that the application of total adverse facts available is warranted for Shanghai Bloom pursuant to sections 776(a)(2)(A), (C), and
(D)and 776(b) of the Tariff Act of 1930, as amended (“the Act”). For a discussion, see the *Issues and Decision Memorandum* at Comments 1. Final Results of Review We determine that the following margin exists during the period December 1, 2005, through June 30, 2006: 1 1 For these final results, the AFA margin we are using is 221.02, which is the highest rate established in *Honey from the People's Republic of China: Final Results and Final Rescission, In Part, of Antidumping Duty Administrative Review* , 72 FR 37715 (July 11, 2007), published subsequent to the preliminary results of this new shipper review. Honey From the PRC Manufacturer/Exporter Weighted-Average Margin (Percent) Linxiang Jindeya Beekeeping Co., Ltd./ Shanghai Bloom International Trading Co., Ltd. 221.02 Assessment of Antidumping Duties The Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review. Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act:
(1)for subject merchandise exported by Shanghai Bloom, the cash-deposit rate will be equal to 221.02 percent;
(2)for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period;
(3)for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 221.02 percent; and
(4)for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. Notification to Importers This notice serves as a final 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 entries 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. These reviews and notice are in accordance with sections 751(a)(1), 751(a)(2) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5). Dated: November 23, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E7-23287 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [C-570-915] Light-walled Rectangular Pipe and Tube from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers and exporters of light-walled rectangular pipe and tube from the People's Republic of China. For information on the estimated subsidy rates, see the “Suspension of Liquidation” section of this notice. EFFECTIVE DATE: November 30, 2007. FOR FURTHER INFORMATION CONTACT: Damian Felton or Shane Subler, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0133 and
(202)482-0189, respectively. SUPPLEMENTARY INFORMATION: Case History The following events have occurred since the publication of the Department of Commerce's (the Department) notice of initiation in the **Federal Register** . *See Notice of Initiation of Countervailing Duty Investigation: Light-Walled Rectangular Pipe and Tube from the People's Republic of China* , 72 FR 40281 (July 24, 2007) ( *Initiation Notice* ). On August 7, 2007, the Department selected the two largest Chinese producers/exporters of light-walled rectangular pipe and tube (LWRP), Qingdao Xiangxing Steel Pipe Co., Ltd. (Qingdao) and Zhangjiagang Zhongyuan Pipe-Making Co., Ltd. (ZZPC), as mandatory respondents. *See* Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, “Respondent Selection” (August 4, 2007). This memorandum is on file in the Department's Central Records Unit in Room B-099 of the main Department building (CRU). On August 7, 2007, we issued the countervailing duty
(CVD)questionnaire to the Government of the People's Republic of China (GOC), Qingdao and ZZPC. On August 22, 2007, the International Trade Commission
(ITC)issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports of LWRP from the People's Republic of China (PRC). *See Light-Walled Rectangular Pipe and Tube from China, Korea, Mexico and Turkey* , Investigation Nos. 701-TA-449 and 731-TA-1118-1121, 72 FR 49310 (Preliminary) (August 28, 2007). On August 24, 2007, we published a postponement of the preliminary determination of this investigation until November 26, 2007. *See Light-Walled Rectangular Pipe and Tube from the People's Republic of China: Notice of Postponement of Preliminary Determination in the Countervailing Duty Investigation* , 72 FR 48618 (August 24, 2007). Petitioners 1 filed a new subsidy allegation on August 29, 2007. The GOC submitted comments responding to petitioners' new subsidy allegation on September 10, 2007. On September 20, 2007, the Department determined to investigate aspects of the newly alleged subsidy relating to currency retention. *See* Memorandum to Susan Kuhbach, Director, AD/CVD Operations, Office 1, “New Subsidy Allegation” (September 20, 2007). Questions regarding this newly alleged subsidy were sent to the GOC and the respondent companies on September 20, 2007. 1 Allied Tube & Conduit; Atlas Tube; Bull Moose Tube Company; California Steel and Tube; EXLTUBE; Hannibal Industries; Levitt Tube Company LLC, Maruichi American Corporation; Searing Industries; Southland Tube; Vest Inc.; Welded Tube; and Western Tube and Conduit (collectively, petitioners). We received responses to our CVD questionnaires from ZZPC, the GOC, and a voluntary respondent, Kunshan Lets Win Steel Machinery Co., Ltd. (“Lets Win”) on September 27, 2007, September 28, 2007, October 1, 2007, October 2, 2007, and October 3, 2007. Qingdao, however, did not respond to the Department's CVD questionnaire. The petitioners filed comments on the responses from ZZPC and Lets Win on October 9, 2007, and comments on the GOC's responses on October 17, 2007. On October 15, 2007, the Department accepted Lets Win as a voluntary respondent to the proceeding pursuant to 19 CFR 351.204(d). *See* Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, “Voluntary Respondent Selection” (October 15, 2007). Then, on October 24, 2007, the Department issued a letter giving Qingdao a final opportunity to respond to the CVD questionnaire issued on August 7, 2007. We never received a CVD questionnaire response from Qingdao. We address the use of facts otherwise available for Qindago below. We issued supplemental questionnaires as follows: the GOC on October 16, 2007, October 24, 2007, and November 19, 2007; Lets Win on October 17, 2007; and ZZPC on October 17 and October 18, 2007. We received responses to these supplemental questionnaires as follows: the GOC on October 23, 2007, November 7, 2007 and November 21, 2007; ZZPC on November 5, 2007, and November 14, 2007; and Lets Win on October 31, 2007. We received a corrected response from ZZPC on November 23, 2007, but are not considering this submission for the purposes of this preliminary determination. This submission came three days before the preliminary determination and, thus, the Department was unable to complete the necessary analyses of ZZPC's submission. This data will be considered for the final determination. The GOC and petitioners filed comments in advance of the preliminary determination on November 13 and 14, 2007, respectively. Finally, Lets Win submitted an updated questionnaire response on November 16, 2007, which was filed after the deadline originally set by the Department. Scope Comments In accordance with the preamble to the Department's regulations, we set aside a period of time in our initiation notice for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of that notice. *See Antidumping Duties; Countervailing Duties* , 62 FR 27296, 27323, (May 19, 1997) and *Initiation Notice* , 72 FR at 40281. We did not receive any comments. Scope of the Investigation The merchandise that is the subject of this investigation is certain welded carbon-quality light-walled steel pipe and tube, of rectangular (including square) cross section (LWR), having a wall thickness of less than 4mm. The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which none of the elements listed below exceeds the quantity by weight respectively indicated: 1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this investigation is currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Use of Facts Otherwise Available Sections 776(a)(1) and
(2)of the Tariff Act of 1930, as amended (the Act), provide that the Department shall apply “facts otherwise available” if, *inter alia* , necessary information is not on the record or an interested party or any other person:
(A)withholds information that has been requested;
(B)fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and
(e)of section 782 of the Act;
(C)significantly impedes a proceeding; or
(D)provides information that cannot be verified as provided by section 782(i) of the Act. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties. In this case, Qingdao did not provide information we requested that is necessary to determine a countervailing duty rate for this preliminary determination. Specifically, Qingdao did not respond to the Department's requests on August 7, 2007, and October 24, 2007, to respond to the CVD questionnaire. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A) and
(C)of the Act, we have based Qingdao's countervailing duty rate on facts otherwise available. We have also identified one program for which the GOC did not provide the requested information. Specifically, in our questionnaire, we asked the GOC to provide information about the hot-rolled steel industry in the PRC (including a description of the industry, users of hot-rolled steel in the PRC, and whether hot-rolled steel producers are state-owned enterprises (SOEs)). The GOC limited its response to the “hot-rolled steel narrow strip” industry, claiming that LWRP is produced chiefly from this form of hot-rolled steel. In our supplemental questionnaire, we asked the GOC to provide the requested information for the hot-rolled steel industry as a whole. While some limited information was provided in the GOC's supplemental questionnaire response (November 7, 2007), the GOC did not provide a breakdown of the production accounted for by SOEs or that accounted for by private producers. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A) and
(C)of the Act, we are relying on facts otherwise available to determine the countervailable subsidy conferred by the government's provision of hot-rolled steel for less than adequate remuneration. Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available
(AFA)information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “{i}nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” *See Statement of Administrative Action*
(SAA)accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d Cong., 2d Session
(1994)at 870. 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 to be used. The SAA emphasizes, however, that the Department need not prove that the selected facts available are the best alternative information. *See* SAA at 869. In selecting from among the facts available for Qingdao, the Department has determined that an adverse inference is warranted, pursuant to section 776(b) of the Act. By failing to submit a response to the Department's CVD questionnaire, Qingdao did not cooperate to the best of its ability in this investigation. Accordingly, we find that an adverse inference is warranted to ensure that Qingdao will not obtain a more favorable result than had it fully complied with our request in this investigation. Similarly, we are applying an adverse inference in selecting among the facts available for valuing the benefit conferred by the GOC's provision of hot-rolled steel for less than adequate remuneration. In its response, the GOC stated, “it is difficult to provide a definitive assessment” of the share of hot-rolled production accounted for by SOEs and private suppliers because there are so many producers in China. *See* GOC supplemental questionnaire response (November 7, 2007) at 9. The failure to provide this information within the established deadlines has impeded our investigation. Moreover, the GOC has not provided us with any plausible explanation as to why it cannot provide us with the information within the established deadlines. Thus, we preliminarily conclude that the GOC has failed to act to the best of its ability. Selection of the Adverse Facts Available Rate In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from
(1)the petition,
(2)a final determination in the investigation,
(3)any previous review or determination, or
(4)any information placed on the record. It is the Department's practice to select, as AFA, the highest calculated rate in any segment of the proceeding. *See* , *e.g.* , *Certain In-shell Roasted Pistachios from the Islamic Republic of Iran: Final Results of Countervailing Duty Administrative Review* , 71 FR 66165 (November 13, 2006), and accompanying Issues and Decision Memorandum at “Analysis of Programs.” The Department's practice when selecting an adverse margin from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role 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). The Department's practice also ensures “that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” *See* SAA at 870. In choosing the appropriate balance between providing a respondent with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent's prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.” *See Rhone Poulenc, Inc. v. United States* , 899 F. 2d 1185, 1190 (Fed. Cir. 1990). Because Qingdao failed to act to the best of its ability, as discussed above, for each program examined, we made the adverse inference that Qingdao benefitted from the program unless the record evidence made it clear that Qingdao could not have received benefits from the program because, for example, we have preliminarily found the program not countervailable. *See* , *e.g.* , *Certain Cold-Rolled Carbon Steel Flat Products From Korea; Final Affirmative CVD Determination* , 67 FR 62102 (October 3, 2002) and accompanying Issues and Decision Memorandum at “Methodology and Background Information.” To calculate the program rates, we have generally relied upon the highest program rate calculated for any responding company in this investigation as adverse facts available. *See Certain In-shell Roasted Pistachios from the Islamic Republic of Iran: Final Results of Countervailing Duty Administrative Review* , 71 FR 66165 (November 13, 2006) and accompanying Issues and Decision Memorandum at “Analysis of Programs.” Thus, for programs based on the provision of goods at less than adequate remuneration, we have used the ZZPC rate for the provision of hot-rolled steel for less than adequate remuneration. For value added tax
(VAT)and grant programs, we are unable to utilize company-specific rates from this proceeding because neither Lets Win nor ZZPC received any countervailable subsidies from these subsidy programs. Therefore, for VAT and grant programs we are applying the highest subsidy rate for any program otherwise listed, which in this instance is ZZPC's rate for the provision of hot-rolled steel for less than adequate remuneration. Finally, for the seven alleged income tax programs pertaining to either the reduction of the income tax rates or the payment of no income tax, we have applied an adverse inference that Qingdao paid no income tax during the period of investigation ( *i.e.* , calendar year 2006). The standard income tax rate for corporations in the PRC is 30 percent, plus a 3 percent provincial income tax rate. Therefore, the highest possible benefit for these seven income tax rate programs is 33 percent. We are applying the 33 percent AFA rate on a combined basis ( *i.e.* , the seven programs combined provided a 33 percent benefit). This 33 percent AFA rate does not apply to income tax deduction or credit programs. For income tax deduction or credit programs we are applying the highest subsidy rate for any program otherwise listed, which in this instance is ZZPC's rate for the provision of hot-rolled steel at less than adequate remuneration. *See* Memorandum to the File, entitled Selection of the Adverse Facts Available Rate for Qingdao Xiangxing Steel Pipe Co., Ltd.” (November 26, 2007) (this memorandum is on file in the Department's CRU). We do not need to corroborate the calculated subsidy rates we are using as AFA because they are not considered secondary information as they are based on information obtained in the course of this investigation. *See* section 776(c) of the Act; *see also* the SAA at 870. Regarding the GOC's failure to provide requested information regarding the hot-rolled steel industry in the PRC, the Department is preliminarily rejecting prices in the PRC as possible benchmarks for determining whether hot-rolled steel is being provided for less than adequate remuneration. Instead, as described in the *Programs Preliminarily Determined to be Countervailable/Provision of Inputs for Less than Adequate Remuneration/Hot-rolled Steel* section below, we are using a world market price as the benchmark to value this subsidy. Because this information is taken from the petition, it is secondary information and must be corroborated to the extent practicable. We have compared the world-market prices being used to the prices of hot-rolled steel imports into the PRC during the POI, and find that the world-market prices are reliable and relevant. *See* Memorandum from Damian Felton to Susan Kuhbach Re: Preliminary Affirmative Countervailing Duty Determination: Light-walled Rectangular Pipe and Tube from the People's Republic of China; Preliminary Results Calculation Memorandum for Zhangjiagang Zhongyuan Pipe-Making Co., Ltd.; Jiangsu Qiyuan Group Co., Ltd.; Jiangsu Zhongjia Steel Co., Ltd.; Zhangjiagang Zhongxin Steel Product Co., Ltd.; and Zhangjiagang Baoshuiqu Jiaqi International Business Co., Ltd. (November 26, 2007) ( *ZZPC Calculation Memorandum* ). Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination On July 24, 2007, the Department initiated the countervailing duty and antidumping duty investigations of LWRP from the PRC. *See Initiation Notice* and *Initiation of Antidumping Duty Investigations: Light-Walled Rectangular Pipe and Tube from Republic of Korea, Mexico, Turkey, and the People's Republic of China* , 72 FR 40274 (July 24, 2007). The countervailing duty investigation and the antidumping duty investigation have the same scope with regard to the merchandise covered. On November 16, 2007, petitioners submitted a letter, in accordance with section 705(a)(1) of the Act, requesting alignment of the final countervailing duty determination with the final determination in the companion antidumping duty investigation of LWRP from the PRC. Therefore, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final countervailing duty determination with the final determination in the companion antidumping duty investigation of LWRP from the PRC. The final countervailing duty determination will be issued on the same date as the final antidumping duty determination, which is currently scheduled to be issued on April 7, 2008. *See Notice of Postponement of Preliminary Determination of Antidumping Duty Investigation: Light-Walled Rectangular Pipe and Tube from the People's Republic of China* , 72 FR 65564 (November 21, 2007). Application of the Countervailing Duty Law to Imports from the PRC On October 25, 2007, the Department published *Coated Free Sheet Paper from the People's Republic of China: Final Affirmative Countervailing Duty Determination* , 72 FR 60645 (October 25, 2007) ( *CFS from the PRC* ). In that determination, the Department found, ”. . . given the substantial differences between the Soviet-style economies and the PRC's economy in recent years, the Department's previous decision not to apply the CVD law to these Soviet-style economies does not act as a bar to proceeding with a CVD investigation involving products from China.” *CFS from the PRC* , and accompanying Issues and Decision Memorandum at Comment 6; *see also* Memorandum to David M. Spooner, “Countervailing Duty Investigation of Coated Free Sheet Paper from the People's Republic of China - Whether the Analytical Elements of the Georgetown Steel Opinion are Applicable to China's Present-day Economy,” (March 29, 2007) at 2 (Georgetown Steel Memo). More recently, the Department preliminarily determined that it is appropriate and administratively desirable to identify a uniform date from which the Department will identify and measure subsidies in the PRC for purposes of the CVD law. *See Circular Welded Carbon Quality Steel Pipe from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination; Preliminary Affirmative Determination of Critical Circumstances; and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination* , 72 FR 63875 (November 13, 2007) ( *CWP from the PRC* ). In *CWP from the PRC* , we preliminarily determined that date to be December 11, 2001, the date on which the PRC became a member of the WTO. Therefore, for the reasons outlined in *CWP from the PRC* , we have limited our analysis to subsidies bestowed after December 11, 2001, for this preliminary determination. Period of Investigation The period for which we are measuring subsidies, or the period of investigation (POI), is calendar year 2006. Subsidies Valuation Information Allocation Period The average useful life
(AUL)period in this proceeding as described in 19 CFR 351.524(d)(2) is 15 years according to the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System for assets used to manufacture primary steel mill products. No party in this proceeding has disputed this allocation period. Attribution of Subsidies The Department's regulations at 19 CFR 351.525(b)(6)(i) state that the Department will normally attribute a subsidy to the products produced by the corporation that received the subsidy. However, 19 CFR 351.525(b)(6)(ii) directs that the Department will attribute subsidies received by certain other companies to the combined sales of those companies if
(1)cross-ownership exists between the companies, and
(2)the cross-owned companies produce the subject merchandise, are a holding or parent company of the subject company, produce an input that is primarily dedicated to the production of the downstream product, or transfer a subsidy to a cross-owned company. The Court of International Trade
(CIT)has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits. *See Fabrique de Fer de Charleroi v. United States* , 166 F. Supp. 2d. 593, 604 (CIT 2001). According to 19 CFR 351.525(b)(6)(vi), cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. This regulation states that this standard will normally be met where there is a majority voting interest between two corporations or through common ownership of two (or more) corporations. *Lets Win:* Lets Win responded on behalf of itself, a Taiwanese-owned “productive” foreign invested enterprise. Lets Win also named two affiliates involved in the company's export activities. These companies are located outside of the PRC and are not included in our analysis. *ZZPC:* In its response, ZZPC identified numerous affiliated companies and responded on behalf of itself, a producer of the subject merchandise, and four of its affiliates: ZZPC's parent company, Jiangsu Qiyuan Group Co., Ltd. (Group); and three input suppliers to ZZPC, Jiangsu Zhongjia Steel Co., Ltd. (JZS), Zhangjiagang Zhongxin Steel Product Co., Ltd. (ZZSP), and Zhangjiagang Baoshuiqu Jiaqi International Business Co., Ltd. (Jiaqi). The remaining affiliates do not produce subject merchandise or otherwise fall within the situations described in 19 CFR 351.525(b)(6)(iii)-(v). Therefore, they are not addressed further here. The details of the affiliations between ZZPC, Group, JZS, ZZSP, and Jiaqi are proprietary and, hence, addressed separately. *See ZZPC Calculation Memorandum* . Based on the reported information, we preliminarily determine that ZZPC, Group, JZS, ZZSP, and Jiaqi are cross-owned companies within the meaning of 19 CFR 35.525(b)(6)(vi). Because they are cross-owned and because Group is the parent company of ZZPC, we preliminarily determine that any subsidies bestowed on Group are properly attributed to Group's consolidated sales under 19 CFR 351.525(b)(6)(iii). With respect to Jiaqi, this company is a trading company and does not produce any merchandise. Instead, it purchased and provided inputs to ZZPC during the POI. Because it is not an input producer, we are not treating Jiaqi as an input supplier as described in 19 CFR 351.525(b)(6)(iv) (which refers to subsidies received by the input producer). Instead, for the preliminary determination, we are treating any subsidies conferred by the government's provision of hot-rolled steel for less than adequate remuneration as having been transferred to ZZPC through Jiaqi's resale of the hot-rolled steel to ZZPC, consistent with 19 CFR 351.525(b)(6)(v). ZZPC's other input suppliers, JZS and ZZSP, provide ZZPC with steel strip. These companies are not trading companies: both produce cold-rolled steel. The types of inputs they provide to ZZPC are proprietary and are addressed separately. *See ZZPC Calculation Memorandum* . In its November 13, 2007, submission, the GOC argues, *inter alia* , that any hot-rolled or cold-rolled products sold by JZS and ZZSP cannot be considered “primarily dedicated” to the production of LWRP or any particular downstream products, as that term is used in 19 CFR 351.525(b)(6)(iv). We agree that there is no evidence on the record to support a finding that these cold-rolled products are primarily dedicated to ZZPC's production of the downstream product and, therefore, for purposes of this preliminary determination we are not attributing any subsidies received by these cross-owned cold-rolled steel producers to LWRP produced by ZZPC. However, for any hot-rolled steel products which ZZPC purchased from JZS or ZZSP, we preliminarily determine that these companies are not input suppliers as described in 19 CFR 351.525(b)(6)(iv). Instead, as with the trading company, Jiaqi, we are treating any subsidies conferred by the government's provision of hot-rolled steel for less than adequate remuneration as having been transferred to ZZPC through JZS' and ZZSP's sale of hot-rolled steel products to ZZPC, consistent with 19 CFR 351.525(b)(6)(v). Creditworthiness Petitioners alleged that Baosteel received countervailable loans and that it was uncreditworthy ( *see Initiation Notice* , 72 FR at 36671). Because we did not select Baosteel as a mandatory respondent in this investigation, we are making no finding regarding that company's creditworthiness. Analysis of Programs Based upon our analysis of the petition and the responses to our questionnaires, we determine the following: I. Programs Preliminarily Determined to Be Countervailable A. Income Tax Subsidies for Foreign Invested Enterprises
(FIEs)Reduced Income Tax Rates for FIEs Based on Location FIEs are encouraged to locate in designated coastal economic zones, special economic zones, and economic and technical development zones in the PRC through preferential tax rates. This program was originally created in 1988 under the *Provisional Regulations of the Ministry of Finance of the People's Republic of China Concerning the Reduction and Exemption from Enterprise Income Tax and Consolidated Industrial and Commercial Tax for the Encouragement of Foreign Investment in Coastal Open Economic Zones* and is currently administered under the *Income Tax Law of the People's Republic of China for Enterprises with Foreign Investment and Foreign Enterprises* ( *FIE Tax Law* ). Under Article 7 of the FIE Tax Law, “productive” FIEs located in the designated economic zones pay corporate income tax at a reduced rate of either 15 or 24 percent, depending on the zone. According to the GOC, the *FIE Tax Law* has been repealed effective January 1, 2008, and there are no provisions regarding this program in the new *Income Tax Law of the People's Republic of China for Enterprises* . Lets Win is located in a coastal economic development zone and paid income tax at the reduced rate of 24 percent during the POI. We preliminarily determine that the reduced income tax rate paid by “productive” FIEs under this program confers a countervailable subsidy. The reduced rate is a financial contribution in the form of revenue forgone by the GOC and it provides a benefit to the recipient in the amount of the tax savings. *See* section 771(5)(D)(ii) of the Act and 19 CFR 351.509(a)(1). We further determine preliminarily that the reduction afforded by this program is limited to enterprises located in designated geographic regions and, hence, is specific under section 771(5A)(D)(iv) of the Act. To calculate the benefit, we treated the income tax savings enjoyed by Lets Win as a recurring benefit, consistent with 19 CFR 351.524(c)(1), and divided the company's tax savings received during the POI by the company's total sales during that period. To compute the amount of the tax savings, we compared the rate Lets Win would have paid in the absence of the program (30 percent) with the rate it paid (24 percent). On this basis, we preliminarily determine that Lets Win received a countervailable subsidy of 0.27 percent *ad valorem* under this program. B. Provision of Inputs for Less than Adequate Remuneration Hot-rolled Steel Hot-rolled steel suppliers in the PRC have varying ownership structures including state ownership, joint stock companies with state and foreign ownership, collective ownership, and wholly private ownership. According to the GOC, prices for hot-rolled steel are not set by regulation. Instead, Chinese producers set prices taking into account their production costs and supply and demand considerations. The GOC further claims that prices are differentiated in the hot-rolled steel market, with both state-owned and private producers pricing at different levels for the same product and that, at any given point in time, pricing leaders can be private or state-owned producers. During the POI, the ZZPC companies purchased from state-owned suppliers, collectives, and privately-owned companies. Lets Win provided information that it purchased hot-rolled steel only from privately-owned suppliers. We preliminarily determine that the GOC provided hot-rolled steel to certain of the ZZPC companies during the POI for less than adequate remuneration through the GOC-owned steel companies. In its response, the GOC listed the industries that use hot-rolled steel: construction, machinery and equipment (including industrial boilers, internal combustion engines, machine tools, electrical tools, smelter equipment, chemical equipment, feedstock processing machinery, packaging machinery, tractors, pollution prevention and remediation equipment, electricity generators and electrical motors, among others), automotive, pipe and tube, shipbuilding, railway industries (including profiled bar for rail construction and locomotive engines), petrochemical (including oil country tubular goods), household appliances, and freight containers. *See* GOC supplemental questionnaire response (November 7, 2007) at 10. We preliminarily find that these industries are “limited in number” and, hence, that the provision of hot-rolled steel is *de facto* specific under section 771(5A)(D)(iii)(I) of the Act. See also *Notice of Final Affirmative Countervailing Duty: Certain Cold-Rolled Carbon Flat Steel Products from the Republic of Korea* , 67 FR 62102 (October 3, 2002) and accompanying Issues and Decision Memorandum at Comment 1 and Comment 2, where the Department found that Posco's provision of hot-rolled coil was countervailable. We further determine preliminarily that the GOC's provision of hot-rolled steel through its state-owned producers is a government financial contribution within the meaning of section 771(5)(D)(iii) of the Act and that it confers a benefit on ZZPC because the good is being sold for less than adequate remuneration as described in section 771(5)(E)(iv) of the Act. In determining what constitutes adequate remuneration, the Department is not relying on prices in the PRC, as explained in the *Selection of the Adverse Facts Available Rate* section, above. Instead, in accordance with 19 CFR 351.511(a)(2), we have used a world market price as a benchmark to compare to the respondent's reported purchase prices from state-owned steel suppliers. Specifically, we used the “World Export Price” from *Steel Benchmarker* , as provided in Exhibit 173, Attachment 2, Volume IV, of the Petition (July 6, 2007). We have rejected internal prices in the PRC because we do not know the share of steel produced and sold by SOEs in the PRC. As explained in the preambular language addressing 19 CFR 351.511(a), “While we recognize that government involvement in a market may have some impact on the price of the good or service in that market, such distortion will normally be minimal unless the government provider constitutes a majority, or in certain circumstances, a substantial portion of the market.” *See Countervailing Duties; Final Rule* , 63 FR 65348, 65377 (November 25, 1998) (CVD Preamble). Because we are not able to gauge the extent of government involvement in the PRC hot-rolled steel market, we have made the adverse inference that the market is dominated by SOEs and that this distorts the prices for this product in the PRC. To calculate the benefit, we compared the monthly weighted-average prices paid by the ZZPC companies for hot-rolled steel purchased from SOEs to the average monthly prices reported in *Steel Benchmarker* . *Steel Benchmarker* does not include prices for January - March 2006; therefore, we have used the April 2006 price as a surrogate. We treated the difference in the amounts that ZZPC would have paid using the *Steel Benchmarker* prices to the amounts actually paid as the benefit, and divided the benefit by ZZPC's total sales. On this basis, we preliminarily determine that ZZPC received a countervailable benefit of 2.99 percent *ad valorem* . In its November 14, 2007 submission, ZZPC reported that the hot-rolled steel strip purchased by JZS from the SOE, Shangahi Baosteel Steel Products Trade Co., Ltd., Wuxi Branch is used to produce electronic pipe, which ZZPC claims is non-subject merchandise. ZZPC provided no evidence to support these claims. Therefore, for the preliminary determination, we are treating this steel as having been used as an input for LWRP. Water According to the GOC, water suppliers in the PRC are highly localized. Many suppliers are SOEs, particularly in cities, but there is also private ownership. Water prices generally are regulated by the local governments. *See* , *e.g.* , the *Regulation on Administration of City Water Supply* (Decree 158 of the State Council, 1994), GOC response (September 28, 2007) at Exhibit 118. The GOC has provided the water rate schedules in effect during the POI for Zhangjiagang, where ZZPC is located. Rate changes were effected during the POI and both sets of rates were submitted. The GOC states that all users within a given rate category pay the same fixed rate per ton. However, based on our comparison, the rates actually paid by ZZPC are lower than the published rates for industrial users. In our supplemental questionnaire to ZZPC, we asked about this discrepancy and, while ZZPC claims it did not receive a discount, it did not adequately explain why its rates diverged from the published rates. Based on this, we preliminarily determine that the GOC's provision of water to ZZPC during the POI confers a countervailable subsidy. The provision of water to this company is *de facto* specific because ZZPC pays a different price from the price paid by all industrial users in this jurisdiction. *See* section 771(5A)(D)(iii)(I) of the Act. We further determine preliminarily that the GOC's provision of water is a financial contribution within the meaning of section 771(5)(D)(iii) of the Act and that it confers a benefit on ZZPC because the good is being sold for less than adequate remuneration as described in section 771(5)(E)(iv) of the Act. In determining what constitutes adequate remuneration, the Department is relying on the schedules of prices paid by other industrial users in Zhangjiagang City during the POI. We are using this benchmark because no market-determined prices for water have been provided for this jurisdiction and we have no information indicating that there is a world-market price for water. *See* 19 CFR 351.511(a)(i) and (ii). Consequently, we are selecting a benchmark under 19 CFR 351.511(a)(iii). As stated in the preambular language discussing that section of our regulations, where the government is the sole provider of a good or service, including in the case of water, the Department may assess whether the government price was set in accordance with market principles, which may include an analysis of whether there is price discrimination among the users of the good or service that is provided and that “{w}e would only rely on a price discrimination analysis if the government good or service is provided to more than a specific enterprise or industry, or group thereof.” *See* CVD Preamble at 63 FR 65378. In the case of Zhangjiagang City, the GOC has reported that there are over 1,000 industrial users paying the published schedule rates for water. Therefore, we preliminarily determine that the published rate for industrial users of water in Zhangjiagang City is an appropriate benchmark for determining whether the GOC provided water to ZZPC for less than adequate remuneration. To calculate the benefit, we compared the monthly weighted-average prices paid by ZZPC for water with the published rates for industrial users of water in Zhangjiagang City. We treated the difference in the amounts that ZZPC would have paid using the published rates to the amounts actually paid as the benefit, and divided the benefit by ZZPC's total sales. On this basis, we preliminarily determine that ZZPC received a countervailable benefit of less than 0.005 percent *ad valorem* . Where the countervailable subsidy rate for a program is less than .005 percent, the program is not included in the total countervailing duty rate. *See* , *e.g.* , *Final Results of Countervailing Duty Administrative Review: Low Enriched Uranium from France* , 70 FR 39998 (July 12, 2005), and the accompanying Issues and Decision Memorandum, at “Purchases at Prices that Constitute 'More than Adequate Remuneration'” (citing *Final Results of Administrative Review: Certain Softwood Lumber Products from Canada* , 69 FR 75917 (December 20, 2004), and the accompanying Issues and Decision Memorandum, “Other Programs Determined to Confer Subsidies”). Regarding Lets Win, the GOC provided the rate schedule that came into effect on September 10, 2006, for the water authority in Kunshan. Subsequent to that date, the rates actually paid by Lets Win were less than, equal to, or in excess of the newly established rates for industrial water users, suggesting that it took some time for the new rates to be reflected in the bills and payments. We intend to request an explanation from Lets Win and to request the rate schedule for the period prior to September 10, 2006, and will address whether the GOC provided water to Lets Win for less than adequate remuneration in our final determination. II. Programs Preliminarily Determined to Be Not Countervailable A. Government Policy Lending Program In *CFS from the PRC* , the Department found Government Policy Lending to provide a countervailable subsidy because record evidence indicated that:
(i)the GOC had a policy in place to encourage and support the growth and development of the forestry and paper industry through preferential financing initiatives as illustrated in the GOC's five-year plans and industrial policies; and
(ii)the GOC's policy toward the paper industry was carried out by the central and local governments through the provision of loans extended by GOC Policy Banks and state-owned commercial banks. *See CFS from the PRC* and accompanying Issues and Decision Memorandum at Comment 8. In this investigation, the evidence submitted to date does not support a finding that the LWRP industry in the PRC received preferential financing pursuant to the GOC's Iron and Steel Policy. Therefore, we preliminarily determine that producers and exporters of LWRP in the PRC did not receive government policy loans. We will, however, continue to investigate whether the GOC's Iron and Steel Policy or other plans apply to the LWRP industry, and, if so, the purpose of those policies and whether preferential lending was provided to the LWRP industry pursuant to those policies. B. Provision of Inputs for Less than Adequate Remuneration *Electricity* : According to the GOC, electricity in the PRC is produced by numerous power plants and it is transmitted for local distribution by two state-owned transmission companies, State Grid and China South Power Grid. Generally, prices for uploading electricity to the grid and transmitting it are regulated by the GOC, as are the final sales prices. *See* , *e.g.* , *Circular on Implementation Measures Regarding Reform of Electricity Prices* , ( *FAGAIJIAGE* {2005} No. 514, National Development and Reform Commission) at Appendix 3, *Provisional Measures on Prices for Sales of Electricity* at Article 29 (“Government departments in charge of pricing at various levels shall be responsible for the administration and supervision of electricity sales prices.”), GOC response (September 28, 2007) at Exhibit 114. Electricity consumers are divided into broad categories such as residential, commercial, large-scale industry and agriculture. The rates charged vary across customer categories and within customer categories based on the amount of electricity consumed. Moreover, among industrial users, certain industries are specifically broken out and these industries receive special, discounted rates. Based on our review of the rate schedules submitted for Jiangsu Province (where both Lets Win and ZZPC are located), discounted rates are established for producers of calcium carbide, electrolyte caustic soda, synthetic ammonia, yellow phosphorus with electric furnace, chlorine alkali, electrolyzed aluminum, and fertilizer. Thus, there is not a discounted rate for LWRP producers and, according to the GOC, the types of industries in Jiangsu province that fall into the large-scale industry category (which includes the LWRP producers) cover virtually all economic sectors outside of agriculture and services. Based on the record evidence, we preliminarily determine that the provision of electricity to large-scale enterprises in the PRC is neither *de jure* nor *de facto* specific. Although producers in a few particular industries are eligible for discounts under the law, all other large-scale enterprises within a locality pay the same rate for their electricity. Moreover, the absence of price discrimination among most users may also support a preliminary finding that electricity is not being provided to LWRP producers for less than adequate remuneration. *See Programs Preliminarily Determined to Be Countervailable/Provision of Goods for Less Than Adequate Remuneration/Water* , above. On this basis, we preliminarily determine that the GOC's provision of electricity does not confer a countervailable subsidy. C. VAT Rebates (originally referred to as “Export Incentive Payments Characterized as VAT Rebates”) According to the GOC, the “exemption, deduction and refund” of VAT applies if a manufacturer exports its self-produced goods by itself or via a trading company. *See* Article 1 of the *Circular on Further Promotion of Methodology of “Exemption, Deduction, and Refund” of Tax for Exported Goods* (CAISHUI
(2002)No. 7), GOC response (September 28, 2007) at Exhibit 98. Under the “VAT refund system,” when a producer/exporter purchases inputs ( *e.g,* , raw materials, components, fuel and power) it pays a VAT based on the purchase price of inputs. The GOC reported the VAT rates paid by LWRP producers/exports for inputs are as follows: raw materials and electricity - 17 percent; and, fuel and water - 13 percent. Once the exporter/producer exports subject merchandise, a VAT payment and tax exemption form is prepared and filed with the relevant state tax authority. LWRP exporters received a VAT refund of 13 percent of the export price during the POI. The Department's regulations state that in the case of an exemption upon export of indirect taxes, a benefit exists only to the extent that the Department determines that the amount exempted “exceeds the amount levied with respect to the production and distribution of like products when sold for domestic consumption.” 19 CFR 351.517(a); *see also* 19 CFR 351.102 (for a definition of “indirect tax”). Information in the companies' responses shows that Lets Win and ZZPC paid the VAT on their inputs, and applied for and received a VAT refund on their export sales. To determine whether a benefit was provided under this program, the Department analyzed whether the amount of VAT exempted during the POI exceeded the amount levied with respect to the production and distribution of like products when sold for domestic consumption. Because the VAT rate levied on LWRP in the domestic market (17 percent) exceeded the amount of VAT exempted upon the export of LWRP (13 percent), the Department preliminarily determines that, for the purposes of this investigation, the VAT refund received upon the export of LWRP does not confer a countervailable benefit. The GOC has additionally reported that effective July 1, 2007, the VAT refund rate for exports of LWRP was set at zero percent. III. Post-POI Programs E. Government Restraints on Exports *Hot-rolled Steel and Zinc* : Petitioners alleged that the GOC restrains exports of hot-rolled steel and zinc by means of export taxes, which artificially suppress the price a producer in the PRC can charge for these inputs into LWRP. In its response, the GOC provided the *Announcement on Adjustment of Provisional Import or Export Duty for Certain Merchandises* (PRC Customs Announcement No. 22, 2007) *See* GOC questionnaire response (September 28, 2007) at Exhibit 122. This document shows that on May 30, 2007, the GOC announced a provisional export duty rate for hot-rolled steel of five percent and an increase in the provisional export duty rate for zinc from five percent to ten percent. These changes were implemented retroactively to begin on July 1, 2006. The POI for this investigation is January 1, 2006, through December 31, 2006, and the export restraints allegedly giving rise to a subsidy were announced on May 30, 2007, *i.e.* , after the POI. Although the export duties were implemented retroactively, there is no basis to conclude that the export duties affected the prices paid by the respondents for hot-rolled steel and zinc prior to May 30, 2007, because those purchases had already been made. Therefore, any subsidy conferred by the export duties on hot-rolled steel and zinc would properly be addressed under our Program-wide Change regulation, 19 CFR 351.526(a). That regulation states that the Department may take a program-wide change into account in establishing the estimated countervailing duty cash deposit rate if:
(1)the Department determines that subsequent to the period of investigation or review, but before a preliminary determination in an investigation, a program-wide change has occurred; and
(2)the Department is able to measure the change in the amount of countervailable subsidies provided under the program in question. In this investigation, Lets Win submitted its monthly purchase prices for hot-rolled steel and zinc for periods prior to and following the May 30, 2007 announcement. ZZPC did not purchase zinc, but ZZPC submitted its purchase prices for hot-rolled steel. The data show fluctuations in the prices of these inputs both before and after the announcement of the export duties. Moreover, the data available for the months after the announcement are limited. For these reasons, we cannot measure the subsidy, if any, arising from the imposition of the export duties, and we are not including these alleged subsidy programs in our cash-deposit rates. IV. Programs Determined To Be Terminated A. Exemption from Payment of Staff and Worker Benefits for Export-oriented Industries The Department has determined that this program was terminated on January 1, 2002, with no residual benefits. *See CFS from the PRC* and accompanying Issues and Decision Memorandum at “Programs Determined to be Terminated.” V. Programs Preliminarily Determined To Be Not Used By Lets Win and ZZPC We preliminarily determine that Lets Win and ZZPC did not apply for or receive benefits during the POI under the programs listed below. A. Loans and Interest Subsidies Provided Pursuant to the Northeast Revitalization Program B. The “Two Free, Three Half” Program C. Local Income Tax Exemption and Reduction Program for “Productive” FIEs D. Income Tax Exemption Program for Export-oriented FIEs E. Corporate Income Tax Refund Program for Reinvestment of FIE Profits in Export-oriented Enterprises F. Reduced Income Tax Rate for Technology and Knowledge Intensive FIEs G. Reduced Income Tax Rate for High or New Technology FIEs H. Preferential Tax Policies for Research and Development at FIEs I. Income Tax Credits on Purchases of Domestically Produced Equipment by Domestically Owned Companies J. Income Tax Credits on Purchases of Domestically Produced Equipment by FIEs K. Program to Rebate Antidumping Legal Fees in Shenzen and Zhejiang Provinces L. Funds for “Outward Expansion” of Industries in Guangdong Province M. Export Interest Subsidy Funds for Enterprises Located in Shenzhen and Zhejiang Provinces N. Loans Pursuant to Liaoning Province's Five-year Framework O. VAT and Tariff Exemptions on Imported Equipment P. VAT Rebates on Domestically Produced Equipment Q. The State Key Technologies Renovation Project Fund R. Grants to Loss-making State-owned Enterprises S. Provision of Inputs for Less Than Adequate Remuneration: Natural Gas T. Foreign Currency Retention Program For purposes of this preliminary determination, we have relied on the GOC's and responding companies' responses to preliminarily determine non-use of the programs listed above. During the course of verification, the Department will further investigate whether these programs were used by respondent companies during the POI. VI. Programs for Which More Information is Required A. Provision of Land for Less than Adequate Remuneration Citing Article 29 of the *Implementation Rules of the Law on Administration of Land* , land-use rights can be obtained from the government in one of three ways: 1) purchase; 2) lease; and 3) as an equity investment. *See* GOC response (September 28, 2007) at Exhibit 121. The GOC further states that the price of land-use rights may be determined by means of public bidding, auction, independent appraisal, and negotiation. According to the GOC, no formal appraisal was conducted in connection with the sale of land use rights to Lets Win or ZZPC. Instead, the purchase prices for these companies' land use rights “were determined through arm's length negotiations, taking into consideration the prices of land in the neighboring area, local economic development level, and the specific conditions of the land under consideration.” *See* GOC Supplemental Questionnaire Response (November 7, 2007) at 17. Lets Win reported that it purchased its land use rights from its local county government in March 2001. ZZPC reported that it owns land use rights for three lots. For two lots, the land use rights were purchased prior to December 11, 2001. Because these purchases occurred prior to December 11, 2001, we preliminarily determine that the GOC's provision of these land use rights does not confer a countervailable subsidy. *See Application of the Countervailing Duty Law to Imports from the PRC* section, above. ZZPC purchased its third lot from the Zhangjiagang Jingang Town Assets Management Company after December 11, 2001. According to ZZPC and the GOC, no appraisals or valuations of the land use rights were conducted to support this purchase. It is difficult for the Department to reconcile the GOC's claim that the local land authority took into consideration “the prices of land in the neighboring area, local economic development level, and the specific conditions of the land” with the fact that no appraisal or valuation was conducted. Neither the GOC nor ZZPC has provided any explanation of the process used by the Zhangjiagang Jingang Town Assets Management Company or ZZPC to establish the value of the land use rights, a description of the negotiation process, or the prices for land use rights for comparable plots. Without this information, we are not able to determine whether the provision of land to ZZPC should be considered specific within the meaning of section 771(5A) of the Act and, if so, how to determine what would constitute adequate remuneration for the land use rights. We intend to seek further information on these questions and to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. In the meantime, we invite parties to submit information and argument on the basis for making a specificity determination with respect to the provision of land and how adequate remuneration should be determined. These submissions should be made no later than December 21, 2007. Verification In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination. Suspension of Liquidation In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each exporter/manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be: Exporter/Manufacturer Net Subsidy Rate Kunshan Lets Win Steel Machinery Co., Ltd. 0.27 percent Qingdao Xiangxing Steel Pipe Co. 77.85 percent Zhangjiagang Zhongyuan Pipe-making Co., Ltd., Jiangsu Qiyuan Group Co, Ltd. 2.99 percent All-Others 2.99 percent Sections 703(d) and 705(c)(5)(A) of the Act state that for companies not investigated, we will determine an all-others rate by weighting the individual company subsidy rate of each of the companies investigated by each company's exports of the subject merchandise to the United States. However, the all-others rate may not include zero and *de minimis* rates or any rates based solely on the facts available. In this investigation, because we have only one rate that can be used to calculate the all-others rate, ZZPC's rate, we have assigned that rate to all-others. In accordance with sections 703(d)(1)(B) and
(2)of the Act, we are directing CBP to suspend liquidation of all entries of LWRP from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the **Federal Register** , and to require a cash deposit or bond for such entries of merchandise in the amounts indicated above. Neither the suspension of liquidation nor the requirement for a cash deposit or bond will apply to merchandise produced and exported by Lets Win because the Department has preliminarily determined that Lets Win received *de minimis* subsidies. ITC Notification In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration. In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination. Disclosure and Public Comment In accordance with 19 CFR 351.224(b), we will disclose to the parties the calculations for this preliminary determination within five days of its announcement. Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. *See* 19 CFR 351.309(c) (for a further discussion of case briefs). Rebuttal briefs must be filed within five days after the deadline for submission of case briefs, pursuant to 19 CFR 351.309(d)(1). A list of authorities relied upon, 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. Section 774 of the Act provides that the Department will hold a public hearing 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 deadline for submission of the rebuttal briefs, pursuant to 19 CFR 351.310(d), at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time. 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 of the publication of this notice, pursuant to 19 CFR 351.310(c). Requests should contain:
(1)the party's name, address, and telephone;
(2)the number of participants; and
(3)a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. This determination is published pursuant to sections 703(f) and 777(i) of the Act. Dated: November 26, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-23283 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [Application No. 07-00006] Export Trade Certificate of Review AGENCY: International Trade Administration, Department of Commerce. ACTION: Notice of Application for an Export Trade Certificate of Review from Glokle, Inc. SUMMARY: Export Trading Company Affairs (“ETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review (“Certificate”). This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued. FOR FURTHER INFORMATION CONTACT: Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration, by telephone at
(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. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the **Federal Register** identifying the applicant and summarizing its proposed export conduct. Request for Public Comments Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five
(5)copies, plus two
(2)copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021-H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 07-00006.” A summary of the application follows. Summary of the Application *Applicant:* Glokle, Inc. (“GINC”), P.O. Box 52081, Tulsa, Oklahoma 74152. *Contact:* Alan M. Greenfield, President & CEO, Telephone:
(918)629-7432. *Application No.:* 07-00006. *Date Deemed Submitted:* November 21, 2007. *Members (in addition to applicant):* None. GINC seeks a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operations. *Export Trade:* 1. *Products.* All Products. 2. *Services.* All Services. 3. *Technology Rights.* Technology rights, including, but not limited to, patents, trademarks, copyrights, and trade secrets that relate to Products and Services. 4. *Export Trade Facilitation Services (as they Relate to the Export of Products, Services and Technology Rights).* Export Trade Facilitation Services, including, but not limited to, professional services and assistance relating to: Government relations; state and federal export programs; foreign trade and business protocol; consulting; market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; shipping and export management; export licensing; advertising; documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportation services; and the formation of shippers' associations. Export Markets The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands). Export Trade Activities and Methods of Operation 1. With respect to the sale of Products and Services, licensing of Technology Rights and provision of Export Trade Facilitation Services, GINC may: a. Provide and/or arrange for the provisions of Export Trade Facilitation Services; b. Engage in promotional and marketing activities and collect information on trade opportunities in the Export Markets and distribute such information to clients; c. Enter into exclusive and/or non-exclusive licensing and/or sales agreements with Suppliers for the export of Products, Services, and/or Technology Rights to Export Markets; d. Enter into exclusive and/or non-exclusive arrangements with distributors and/or sales representatives in Export Markets; e. Allocate export sales or divide Export Markets among Suppliers for the sale and/or licensing of Products, Services, and/or Technology Rights; f. Allocate export orders among Suppliers; g. Establish the price of Products, Services, and/or Technology Rights for sales and/or licensing in Export Markets; h. Negotiate, enter into, and/or manage licensing agreements for the export of Technology Rights; and i. Enter into contracts for shipping. 2. GINC and its individual Suppliers may regularly exchange information on a one-on-one basis regarding that Supplier's inventories and near-term production schedules so that GINC may determine the availability of Products for export and effectively coordinate with its distributors in Export Markets. Dated: November 27, 2007. Jeffrey Anspacher, Director, Export Trading Company Affairs. [FR Doc. E7-23286 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE02 Endangered and Threatened Species; Initiation of a Status Review for Shortnose Sturgeon AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for information. SUMMARY: We, NMFS, announce the initiation of a status review for shortnose sturgeon ( *Acipenser brevirostrum* ), and we solicit information on the status of, and factors and threats affecting, the species. The status review is intended to compile and analyze the best available information on the status of and threats to the species and also consider if shortnose sturgeon should be identified and assessed as Distinct Population Segments. DATES: Written information regarding the status of, and factors and threats affecting, shortnose sturgeon must be received by January 29, 2008. ADDRESSES: You may submit comments, identified by “RIN 0648-XE02,” by any one of the following methods: • Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov* . • Fax: 978-281-9394, Attention: Dana Hartley. • Mail: Information on paper, disk or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Dana Hartley, NMFS, Northeast Regional Office
(978)281-9300 ext. 6514; Stephania Bolden, NMFS, Southeast Regional Office
(727)824-5312; or Marta Nammack, NMFS, Office of Protected Resources,
(301)713-1410. SUPPLEMENTARY INFORMATION: Background NMFS has Endangered Species Act
(ESA)jurisdiction of species listed at 50 CFR 223.102 and 224.101. The U.S. Fish and Wildlife Service (USFWS) adds species under NMFS jurisdiction to its official list (List), published at 50 CFR 17.11 (for animals) and 17.12 (for plants). Shortnose sturgeon was listed as an “endangered species threatened with extinction” under the Endangered Species Preservation Act on March 11, 1967. Shortnose sturgeon as a species remained on the endangered species list with the enactment of the ESA. We are conducting a status review to update the biological information on the status of the species. The status review will not only compile and analyze the best available information on the status of and threats to the species, it will also consider if shortnose sturgeon should be identified and assessed as Distinct Population Segments (61 FR 4722; February 1, 1996). Listing or reclassifying distinct vertebrate population segments may allow us to protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs; it may also allow for more timely and less costly protection and recovery on a smaller scale. Any change in the List would require a separate rulemaking process. The regulations at 50 CFR 424.21 state that we will publish a notice in the **Federal Register** announcing those species under active review. At this time we announce commencement of a status review for shortnose sturgeon, and request information regarding the status of, and factors and threats affecting, the species. Request for Information To support this status review, we are soliciting information relevant to the status of, and factors and threats affecting, the species, including, but not limited to, information on the following topics:
(1)river-specific historical and current abundance and distribution of the species throughout its range;
(2)potential factors affecting the species' current status and past or ongoing decline throughout its range by river;
(3)rates of capture and release of the species from both recreational and commercial fisheries;
(4)life history information (size/age at maturity, growth rates, fecundity, reproductive rate/success, preferred prey, etc.);
(5)molecular information to assist in determining within-species genetic structure and distinctiveness;
(6)factors and threats affecting the species' status, particularly:
(a)present or threatened destruction, modification, or curtailment of habitat or range;
(b)over-utilization for commercial, recreational, scientific, or educational purposes;
(c)disease or predation;
(d)inadequacy of existing regulatory mechanisms; or
(e)other natural or manmade factors affecting its continued existence; and
(7)any ongoing conservation efforts for the species. If you wish to provide information for this review, see DATES and ADDRESSES for guidance on and deadlines for submitting information. If we determine that a change to the way shortnose sturgeon is entered on the List is appropriate, we will consider the critical habitat provisions of the ESA, such as Section 3 (defining critical habitat) and Section 4 (outlining the procedural and substantive considerations regarding critical habitat) and make the necessary determinations required by those provisions. If you would like to provide information regarding the physical or biological features of shortnose sturgeon habitat, the role they play in the conservation of shortnose sturgeon, and whether any natural or human-induced factors may negatively affect those features, we will accept it at this time. Please note, however, that this notice and request for information should not be construed as an indication that we have made any statutory determinations regarding shortnose sturgeon, including whether to change the List or whether the designation of critical habitat for any newly listed entity is prudent or determinable. Dated: November 26, 2007. Helen Golde Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-23258 Filed 11-29-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD60 Taking of Marine Mammals Incidental to Specified Activities; An On-ice Marine Geophysical and Seismic Programs in the U.S. Beaufort Sea AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of receipt of three applications and proposed incidental take authorizations; request for comments. SUMMARY: NMFS has received applications from CGGVeritas (Veritas) and Shell Offshore, Inc.
(SOI)for Incidental Harassment Authorizations
(IHAs)to take marine mammals, by harassment, incidental to conducting an on-ice marine geophysical and seismic programs in the U.S. Beaufort Sea from February to May, 2008. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two authorizations to Veritas and one authorization to SOI to incidentally take, by harassment, small numbers of three species of pinnipeds. DATES: Comments and information must be received no later than December 31, 2007. ADDRESSES: Comments on the applications should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one of the contacts listed here. The mailbox address for providing email comments is *PR1.0648-XD60@noaa.gov* . Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. A copy of the applications and other supporting material related to the proposed actions may be obtained by writing to this address or by telephoning the first contact person listed here and is also available at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected Resources, NMFS,
(301)713-2289, ext 137 or Brad Smith, Alaska Region, NMFS,
(907)271-5006. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and
(D)of the MMPA (16 U.S.C. 1361 *et seq.* ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Permission shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which
(i)has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request On August 8 and 14, 2007, NMFS received two applications from Veritas for the taking, by harassment, of three species of marine mammals incidental to conducting on-ice seismic surveys in Smith Bay and Pt. Thomson areas of the U.S. Beaufort Sea. On September 10, 2007, NMFS received an application from SOI for the taking, by harassment, of three species of marine mammals incidental to conducting an on-ice marine geophysical survey program offshore west of Simpson Lagoon, U.S. Beaufort Sea. Veritas plans to acquire 3D seismic data within the months of February - May, 2008. The energy source for the proposed activity will be vibroseis. The proposed SOI on-ice seismic survey will also use vibroseis as energy sources, and is scheduled to begin in early March 2008 with camp mobilization expected to begin approximately March 11 from Oliktok Point. Data acquisition will begin in mid-March and continue for approximately 60 days until mid-May, followed by camp demobilization to Oliktok Point. Description of the Activity Veritas The proposed Veritas projects would consist of laying recording cables with geophones on the frozen sea ice; using vibroseis techniques as the source of energy to acquire the seismic data. Seismic operations will be conducted utilizing 8 - 10 wheeled/tracked vibrators supported by Tucker SnoCats and the Challenger 95 recording cable transport vehicles. A Challenger 95 or Tucker SnoCat vehicle will travel along a pre-surveyed route and lay receiver cable lines that extend between 3 - 10 miles (4.8 - 16.1 km) long. Receiver (i.e., geophone) lines will be spaced 1,320 ft (402 m) apart; a group of 3 - 6 geophones would be located every 220 ft (67 m) along each of these lines. Ten to fifteen receiver lines will be placed on the ground at any one time all interconnected to a recording device known as a “recorder.” Vibroseis vehicles will then move along a pre-determined route most often nearly perpendicular to the recording lines. Positioning of the cables, vibroseis and recording vehicles all use Tiger Nav technology, a specialized navigation and positioning software. The Tiger Nav system integrates with GPS and Inertial Technology with Real Time Positioning, Stake-less Source, Receiver Surveying and Vehicle Tracking. The Vibrators (usually 3 - 4 that travel together) move to a pre-determined GPS point location and begin vibrating in synchrony via a radio signal. The Vibrators will vibrate usually 2 - 4 times at each location, move up to the next location about 330 ft (101 m), and continue the vibrating technique until the end of the line. This activity will occur two lines at a time. Veritas utilizes satellite imagery, existing bathymetry, drill grids and ground penetrating radar
(GPR)to interpret ice integrity for proper planning. To support vibroseis and recording vehicle units, an ice thickness of at least 4 feet is required. The first specified geographic region of Veritas activities is:
(1)a 569-km 2 (220-mi 2 ) area extending across Smith Bay from point of entry from the west at approximately 71°06′00.05″ N, 154°30′21.00″ W to the east at point of exit to land at approximately 70°54′37.03″N, 153°46′43.43″ W. Water depths in most (> 80 percent) of the area are less than 10 ft (3 m) based on bathymetry charts. The second specified geographic area is a 276-km 2 (107-mi 2 ) area extending across the Beaufort Sea from point of entry from the southwest corner at approximately 70°10′ 41.84″ N, 146°43′ 03.36″ W to the northwest corner at approximately 70°14′ 52.92″N, 146°42′ 15.21″ W to the southeast corner at approximately 70°08′ 43.98″ N, 145°58′10.70″W to the northeast corner off of Flaxman Island at approximately 70°11′28.82″N, 145°54′11.46″ W. Water depths in most (> 75 percent) of the area are less than 10 ft (3 m) based on bathymetry charts. SOI The proposed SOI on-ice marine geophysical (seismic) program would be conducted over 10 to 20 U.S. Minerals Management Service
(MMS)Outer Continental Shelf
(OCS)lease blocks located offshore from Oliktok Point in the Alaskan Beaufort Sea. The proposed program location is in the vicinity of Thetis and Spy Islands, north-northwest of Oliktok Point. The majority of the OCS blocks covered in the proposed program are surrounding the 33 ft (10 m) water depth contour. Assuming seismic acquisition occurred over up to 20 OCS blocks, the proposed on-ice seismic project would cover a maximum estimated 3,000 line-miles (4,828 km) of surveying within a 265 mi 2 (686 km 2 ) area. Two types of standard industry vibrator sources will be used on-ice, and no under-ice acoustic sources will be deployed during the on-ice marine seismic program. Receivers will be placed primarily below ice suspended in the water column; however, a few will be placed on-ice in areas where ice is grounded in the shallow marine environment. Surface sources will be two types of industry-standard vibrator vehicles. Vibrators will include up to:
(1)Five, 68,000-lb (30,800-kg) gross vehicle weight
(GVW)Input/Output wheeled vibrators (“heavy vibes”) capable of 49,440 ft-lbs of force; and
(2)nine, 20,000-lb (9,072-kg) GVW Envirovibs (modified to accommodate tracks), capable of 15,000 ft-lbs of force. Seismic data production is proposed to be collected by groups of four vibrators in series using either the heavy vibes or Envirovibs. Fewer than four vibrators per group may be used, but as a conservative assumption four are assumed for the maximum estimated exposure to marine mammals. Not all 14 Envirovibs and heavy vibes will be used at the same time. It is assumed that the Envirovibs will conduct approximately 75 percent of the program, with the “heavy vibes” accounting for approximately 25 percent. The recording unit is comprised of approximately 13 tracked vehicles for crew transport and technical support, two tracked recording trailers, and several ice drilling units. The SOI on-ice marine seismic program will also require a temporary, mobile camp facility geared to accommodate up to 120 people and will be composed of purpose-built accommodations which are largely self-sufficient for normal operations. Camp facilities are proposed to include as many as 30 to 40 sled trailers including medical facilities, crew quarters, offices, kitchen and dining facilities, laundry facilities, technical work spaces, generators, and fuel storage units. Tracked vehicles will be available for camp site support and access trail maintenance. Prospective mobile camp locations will be chosen based on ice conditions and safety of access to ice. These locations will be moved along with the project as it progresses within the area. The temporary, mobile camp will be stationed on grounded ice alongside the project. Mobilization and demobilization of the camp and equipment will take place from Oliktok Point. Resupply operations will periodically be required for fuel and provisions, and will come from Deadhorse through Oliktok Dock to the mobile field camp. Description of Marine Mammals Affected by the Activity Four marine mammal species are known to occur within the proposed survey areas: ringed seal ( *Phoca hispida* ), bearded seal ( *Erignathus barbatus* ), spotted seal ( *Phoca largha* ), and polar bear ( *Ursus maritimus* ). None of these species are listed under the Endangered Species Act
(ESA)as endangered or threatened species. Other marine mammal species that seasonally inhabit the Beaufort Sea, but are not anticipated to occur in the project area during the proposed on-ice activities, include bowhead whales ( *Balaena mysticetus* ) and beluga whales ( *Delphinapterus leucas* ). Veritas and SOI will seek a take Authorization from the U.S. Fish and Wildlife Service (USFWS) for the incidental taking of polar bears because USFWS has management authority for this species. A detailed description of these species can be found in Angliss and Outlaw (2007), which is available at the following URL: *http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2007.pdf* . Additional information on the 3 pinniped species is presented below. Ringed Seals Ringed seals are widely distributed throughout the Arctic basin, Hudson Bay and Strait, and the Bering and Baltic seas. Ringed seals inhabiting northern Alaska belong to the subspecies *P. h. hispida* , and they are year-round residents in the Beaufort Sea. During winter and spring, ringed seals inhabit landfast ice and offshore pack ice. Seal densities are highest on stable landfast ice but significant numbers of ringed seals also occur in pack ice (Wiig *et al.* , 1999). Seals congregate at holes and along cracks or deformations in the ice (Frost *et al.* , 1999). Breathing holes are established in landfast ice as the ice forms in autumn and are maintained by seals throughout winter. Adult ringed seals maintain an average of 3.4 holes per seal (Hammill and Smith, 1989). Some holes may be abandoned as winter advances, probably in order for seals to conserve energy by maintaining fewer holes (Brueggeman and Grialou, 2001). As snow accumulates, ringed seals excavate lairs in snowdrifts surrounding their breathing holes, which they use for resting and for the birth and nursing of their single pups in late March to May (McLaren, 1958; Smith and Stirling, 1975; Kelly and Quakenbush, 1990). Pups have been observed to enter the water, dive to over 10 m (33 ft), and return to the lair as early as 10 days after birth (Brendan Kelly, pers. comm., June 2002), suggesting pups can survive the cold water temperatures at a very early age. Mating occurs in late April and May. From mid-May through July, ringed seals haul out in the open air at holes and along cracks to bask in the sun and molt. The seasonal distribution of ringed seals in the Beaufort Sea is affected by a number of factors but a consistent pattern of seal use has been documented since aerial survey monitoring began over 20 years ago. Recent studies indicate that ringed seals show a strong seasonal and habitat component to structure use (Williams *et al.* , 2006), and habitat, temporal, and weather factors all had significant effects on seal densities (Moulton *et al.* , 2005). The studies also showed that effects of oil and gas development on local distribution of seals and seal lairs are no more than slight, and are small relative to the effects of natural environmental factors (Moulton *et al.* , 2005; Williams *et al.* , 2006). A reliable estimate for the entire Alaska stock of ringed seals is currently not available (Angliss and Outlaw, 2007). A minimum estimate for the eastern Chukchi and Beaufort Sea is 249,000 seals, including 18,000 for the Beaufort Sea (Angliss and Outlaw, 2007). The actual numbers of ringed seals are substantially higher, since the estimate did not include much of the geographic range of the stock, and the estimate for the Alaska Beaufort Sea has not been corrected for animals missed during the surveys used to derive the abundance estimate (Angliss and Outlaw, 2007). Estimates could be as high as or approach the past estimates of 1 - 3.6 million ringed seals in the Alaska stock (Frost, 1985; Frost *et al.* , 1988). Frost and Lowry
(1999)reported an observed density of 0.61 ringed seals/km 2 on the fast ice from aerial surveys conducted in spring 1997 of an area overlapping the activity area, which is in the range of densities (0.28 - 0.66) reported for the Northstar development from 1997 to 2001 (Moulton *et al.* , 2001). This value (0.61) was adjusted to account for seals hauled out but not sighted by observers (x 1.22, based on Frost *et al.* (1988)) and seals not hauled out during the surveys (x 2.33, based on Kelly and Quakenbush (1990)) to obtain an density of 1.73 ringed seals/km 2 . This estimate covered an area from the coast to about 2 - 20 miles beyond the activity area; and it assumed that habitat conditions were uniform. Bearded Seals The bearded seal has a circumpolar distribution in the Arctic, and it is found in the Bering, Chukchi, and Beaufort seas (Jefferson *et al.* , 1993). Bearded seals are predominately benthic feeders, and prefer waters less than 200 m (656 ft) in depth. Bearded seals are generally associated with pack ice and only rarely use shorefast ice (Jefferson *et al.* , 1993). Bearded seals occasionally have been observed maintaining breathing holes in annual ice and even hauling out from holes used by ringed seals (Mansfield, 1967; Stirling and Smith, 1977). Seasonal movements of bearded seals are directly related to the advance and retreat of sea ice and to water depth (Kelly, 1988). During winter they are most common in broken pack ice and in some areas also inhabit shorefast ice (Smith and Hammill, 1981). In Alaska waters, bearded seals are distributed over the continental shelf of the Bering, Chukchi, and Beaufort seas, but are more concentrated in the northern part of the Bering Sea from January to April (Burns, 1981). Recent spring surveys along the Alaskan coast indicate that bearded seals tend to prefer areas of between 70 and 90 percent sea ice coverage, and are typically more abundant greater than 20 nm (37 km) off shore, with the exception of high concentrations nearshore to the south of Kivalina in the Chukchi Sea (Bengtson *et al.* , 2000; Simpkins *et al.* , 2003). Since bearded seals are normally found in broken ice that is unstable for on-ice seismic operation, bearded seals will be rarely encountered during seismic operations. There are no reliable population estimates for bearded seals in the Beaufort Sea or in the proposed project area (Angliss and Outlaw, 2007). Aerial surveys conducted by MMS in fall 2000 and 2001 sighted a total of 46 bearded seals during survey flights conducted between September and October (Treacy, 2002a; 2002b). Bearded seal numbers are considerably higher in the Bering and Chukchi seas, particularly during winter and early spring. Early estimates of bearded seals in the Bering and Chukchi seas range from 250,000 to 300,000 (Popov, 1976; Burns, 1981). Surveys flown from Shismaref to Barrow during May-June 1999 and 2000 resulted in an average density of 0.07 seals/km 2 and 0.14 seals/km 2 , respectively, with consistently high densities along the coast of the south of Kivalina (Bengtson *et al.* , 2005). These densities cannot be used to develop an abundance estimate because no correction factor is available. Spotted Seals Spotted seals occur in the Beaufort, Chukchi, Bering, and Okhotsk seas, and south to the northern Yellow Sea and western Sea of Japan (Shaughnessy and Fay, 1977). Based on satellite tagging studies, spotted seals migrate south from the Chukchi Sea in October and pass through the Bering Strait in November and overwinter in the Bering Sea along the ice edge (Lowry *et al.* , 1998). In summer, the majority of spotted seals are found in the Bering and Chukchi seas, but do range into the Beaufort Sea (Rugh *et al.* , 1997; Lowry *et al.* , 1998) from July until September. The seals are most commonly seen in bays, lagoons, and estuaries and are typically not associated with pack ice at this time of the year. A small number of spotted seal haul-outs are documented in the central Beaufort Sea near the deltas of the Colville and Sagavanirktok rivers (Johnson *et al.* , 1999). Previous studies from 1996 to 2001 indicate that few spotted seals (a few tens) utilize the central Alaska Beaufort Sea (Moulton and Lawson, 2002; Treacy, 2002a; 2002b). In total, there are probably no more than a few tens of spotted seals along the coast of central Alaska Beaufort Sea. A reliable abundance estimate for spotted seal is not currently available (Angliss and Outlaw, 2005), however, early estimates of the size of the world population of spotted seals was 335,000 to 450,000 animals and the size of the Bering Sea population, including animals in Russian waters, was estimated to be 200,000 to 250,000 animals (Burns, 1973). The total number of spotted seals in Alaskan waters is not known (Angliss and Outlaw, 2007), but the estimate is most likely between several thousand and several tens of thousands (Rugh *et al.* , 1997). Using maximum counts at known haulouts from 1992 (4,135 seals), and a preliminary correction factor for missed seals developed by the Alaska Department of Fish and Game (Lowry *et al.* , 1998), an abundance estimate of 59,214 was calculated for the Alaska stock (Angliss and Outlaw, 2007). Potential Effects on Marine Mammals and Their Habitat Incidental harassment to marine mammals could result from physical activities associated with on-ice seismic operations, which have the potential to disturb and temporarily displace some seals. For ringed seals, pup mortality could occur if any of these animals were nursing and displacement were protracted. However, it is unlikely that a nursing female would abandon her pup given the normal levels of disturbance from the proposed activities, potential predators, and the typical movement patterns of ringed seal pups among different holes. Ringed seals also use as many as four lairs spaced as far as 3,437 m (11,276 ft) apart. In addition, seals have multiple breathing holes. Pups may use more holes than adults, but the holes are generally closer together than those used by adults. This indicates that adult seals and pups can move away from seismic activities, particularly since the seismic equipment does not remain in any specific area for a prolonged time. Given those considerations, combined with the small proportion of the population potentially disturbed by the proposed activity, impacts are expected to be negligible for the ringed, bearded, and spotted seal populations. The seismic surveys would only introduce acoustic energy into the water column and no objects would be released into the environment. In addition, the total footprint of the proposed seismic survey areas represent only a small fraction of the Beaufort Sea pinniped habitat. Sea-ice surface rehabilitation is often immediate, occurring during the first episode of snow and wind that follows passage of the equipment over the ice. Number of Marine Mammals Expected to Be Taken NMFS estimates that up to 984 ringed seals (0.39 percent of estimated total Alaska population of 249,000) could be taken by Level B harassment due to Veritas′ Smith Bay on-ice seismic survey, up to 477 seals (0.19 percent of total population) by Veritas′ Pt. Thomson on-ice seismic surveys, and up to 1,187 seals (0.47 percent of total population) by SOI′s on-ice geographical program. The estimated take numbers are based on consideration of the number of ringed seals that might be disturbed within each of the proposed project areas, calculated from the adjusted ringed seal density of 1.73 seal per km 2 (Kelly and Quakenbush, 1990). Due to the unavailability of reliable bearded and spotted seals densities within the proposed project area, NMFS is unable to estimate take numbers for these two species. However, it is expected much fewer bearded and spotted seals would subject to takes by Level B harassment since their occurrence is very low within the proposed project areas, especially during spring (Moulton and Lawson, 2002; Treacy, 2002a; 2002b; Bengtson *et al.* , 2005). Consequently, the levels of take of these two pinniped species by Level B harassment within the proposed project areas would represent only small fractions of the total population sizes of these species in Beaufort Sea. In addition, NMFS expects that the actual take by Level B harassment from the proposed on-ice seismic programs would be much lower than the estimates due to the implementation of the proposed mitigation and monitoring measures discussed below. Therefore, NMFS believes that any potential impacts to ringed, bearded, and spotted seals to the proposed on-ice geophysical seismic program would be insignificant, and would be limited to distant and transient exposure. Potential Effects on Subsistence The affected pinniped species are all taken by subsistence hunters of the Beaufort Sea villages. However, on-ice seismic operations in the activity areas are not expected to have an unmitigable adverse impact on availability of these stocks for taking for subsistence uses because:
(1)Operations would end before the spring ice breakup, after which subsistence hunters harvest most of their seals; and
(2)The areas where on-ice seismic operations would be conducted are small compared to the large Beaufort Sea subsistence hunting area associated with the extremely wide distribution of ringed seals. In addition, trained dogs will be used to locate ringed seal lairs before the onset of seismic activities. Subsistence advisors will be used as marine mammal observers during performance of the seismic program. During the seal pupping season, planned seismic line segments will be surveyed via the research biologists teamed with lair sniffing dogs; these teams will be accompanied by Inupiat subsistence hunters experienced in the area of the project. For the two proposed Veritas on-ice seismic projects, most of the anticipated program areas are within 3 - 4 miles (4.8 - 6.4 km) of the coast on the proposed surveys. The proposed on-ice seismic surveys are not thought to hinder subsistence harvest greatly during the timing of the programs. For the proposed Smith Bay project, Nuiqsut and Barrow are the closest communities to the area of the proposed activity; while for the proposed Pt. Thomson project, Kaktovik is the closest community to the area of the proposed activity. Veritas will consult with the potentially affected subsistence communities of Barrow, Nuiqsut, Kaktovik, and other stakeholder groups to develop a Plan of Cooperation. Veritas' joint venture partner on the North Slope is the Kuukpik Corporation. For the proposed SOI on-ice geophysical program, Plan of Cooperation meetings in the communities of Nuiqsut and Barrow are being held during October 2007. Additional following up meetings are tentatively scheduled for early winter 2008 in the affected communities to ensure that there will be no unmitigable impacts to subsistence use of marine mammal species/stocks resulting from the proposed on-ice geophysical program. Mitigation and Monitoring The following mitigation and monitoring measures are proposed for the subject on-ice seismic surveys. All activities will be conducted as far as practicable from any observed ringed seal lair and no energy source will be placed over a seal lair. Trained seal lair sniffing dogs will be employed by Veritas and SOI for areas of sea ice beyond 3 m (9.8 ft) depth contour to locate seal structures under snow (subnivean) before the seismic program begins. The areas for the proposed projects will be surveys for the subnivean seal structures using trained dogs running together. Transects will be spaced 250 m (820 ft) apart and oriented 90o to the prevailing wind direction. The search tracks of the dogs will be recorded and marked. Subnivean structures will be probed by a steel rod to check if each is open (active), or frozen (abandoned). Structures will be categorized by size, structure and odor to ascertain whether the structure is a birth lair, resting lair, resting lair of rutting male seals, or a breathing hole. Any locations of seal structures will be marked and protected by a with 150 m (490 ft) exclusion distance from any existing routes and on-ice seismic activities. During active seismic vibrator source operations, the 150-m (490-ft) exclusion zone will be monitored for entry by any marine mammals. In addition, NMFS proposes to require applicants' vehicles to avoid any pressure ridges, ice ridges, and ice deformation areas where seal structures are likely to be present. Reporting NMFS proposes to require annual reports that must be submitted to NMFS within 90 days of completing the year's activities.The reports would contain detail descriptions of any marine mammal, by species, number, age class, and sex if possible, that is sighted in the vicinity of the proposed project areas; description of the animal's observed behaviors and the activities occurring at the time. Endangered Species Act
(ESA)NMFS has determined that no species listed as threatened or endangered under the ESA will be affected by issuing the incidental harassment authorizations under section 101(a)(5)(D) of the MMPA to Veritas and SOI for these three proposed on-ice seismic survey projects. National Environmental Policy Act
(NEPA)The information provided in the Final Programmatic Environmental Assessment
(EA)on the *Arctic Ocean outer Continental Shelf Seismic Surveys - 2006* prepared by the MMS in June 2006 led NMFS to conclude that implementation of either the preferred alternative or other alternatives identified in the EA would not have a significant impact on the human environment. Therefore, an Environmental Impact Statement was not prepared. The proposed actions discussed in this document are not substantially different from the 2006 actions, and a reference search has indicated that no significant new scientific information or analyses have been developed in the past several years that would warrant new NEPA documentation. Preliminary Conclusions In summary, the anticipated impact of the proposed on-ice seismic programs on the species or stocks of ringed, bearded, and spotted seals is expected to be negligible for the following reasons:
(1)The proposed activities would only occur in a small area which supports a small proportion (approximately 1 percent) of the Alaska stock of ringed seals. The numbers of bearded and spotted seals within the proposed project area is expected to be even lower than that of ringed seals.
(2)The following mitigation and monitoring procedures would be implemented:
(a)using trained seal lair sniffing dogs to conduct pre-operational surveys in areas of sea ice beyond 3 m (9.8 ft) and monitoring of ringed seal lairs and breathing holes within the proposed action areas;
(b)conducting activities as far away from any observed seal structures as possible;
(c)establishing exclusion zones with 150 m (490 ft) from locations of seal structures;
(d)vehicles to avoid any pressure ridges, ice ridges, and ice deformation areas where seal structures are likely to be present. NMFS believes the effects of the three on-ice seismic surveys by Veritas and SOI are expected to be limited to short-term and localized behavioral changes involving relatively small numbers of ringed seals, and may also potentially affect any bearded and spotted seals in the vicinity. Also, the potential effects of the proposed on-ice seismic survey projects during 2008 will not have an unmitigable adverse impact on subsistence uses of these species. Proposed Authorization NMFS proposes to issue two IHAs to Veritas and one IHA to SOI for conducting on-ice seismic surveys in the U.S. Beaufort Sea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activities each would result in the harassment of small numbers of ringed seals, and potentially any bearded and spotted seals in the vicinity; would have no more than a negligible impact on the affected pinniped species and stocks; and would not have an unmitigable adverse impact on the availability of seals for subsistence uses. Dated: November 26, 2007. Helen Golde, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-23255 Filed 11-29-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE11 North Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The North Pacific Fishery Management Council's (Council) Crab Committee will meet December 17-18, 2007, in Anchorage, AK. DATES: The meeting will be held on December 17, from 8:30 a.m. to 5 p.m., and on December 18, from 8:30 a.m. until 12 noon. ADDRESSES: The meeting will be held at the Hilton Hotel, Iliamna Room, 500 West 3rd Avenue, Anchorage, AK. *Council address* : North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252. FOR FURTHER INFORMATION CONTACT: Mark Fina, North Pacific Fishery Management Council, telephone:
(907)271-2809. SUPPLEMENTARY INFORMATION: The Committee will focus on programmatic issues and the effects of policy decisions related to the Bering Sea Aleutian Island crab rationalization program. The Committee will also discuss potential solutions to concerns that may arise from any adjustments to the A share/B share split, including compensation to processors from harvesters for lost economic opportunity from a shift in market power, change in landing distribution, the remaining need and necessary changes to the binding arbitration program, use and effectiveness of regional landing requirements to protect communities, and respective impacts on crew; potential solutions to existing data needs, including the need for exvessel prices, by share type and region, and first wholesale price information. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen,
(907)271-2809, at least 5 working days prior to the meeting date. Dated: November 27, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-23206 Filed 11-29-07; 8:45 am] BILLING CODE 3510-22-S COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Establishment of Agreed Import Levels for Certain Cotton, Wool, Man-Made Fiber, Silk Blend and Other Vegetable Fiber Textiles and Textile Products Produced or Manufactured in the People's Republic of China November 27, 2007. AGENCY: Committee for the Implementation of Textiles Agreements (CITA). ACTION: Directive to Commissioner, U.S. Customs and Border Protection
(CBP)establishing agreed levels. EFFECTIVE DATE: January 1, 2008. FOR FURTHER INFORMATION CONTACT: Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce,
(202)482-4212. For information on the quota status of these limits, refer to U.S. Customs and Border Protection website ( *http://www.cbp.gov* ), or call
(202)863-6560. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at *http://otexa.ita.doc.gov.* SUPPLEMENTARY INFORMATION: Authority: Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended. In the Memorandum of Understanding
(MOU)between the Governments of the United States of America and the People's Republic of China concerning Trade in Textile and Apparel Products, signed and dated November 8, 2005, and Paragraph 242 of the *Report of the Working Party for the Accession of China to the World Trade Organization* , the Governments of the United States and China established agreed levels for certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in China and exported to the United States during three one-year periods beginning on January 1, 2006 and extending through December 31, 2008. The agreed levels published below may be adjusted during the course of the year for “carryover,” or “carryforward” used in 2007, under the terms of the MOU. The limits for Categories 345/645/646 and 352/652 below have been adjusted for carryforward applied to the 2007 limits. Baby socks in HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050 shall be counted in dozen pairs. These baby socks are subject to the quota level for 332/432/632-T and the sublevel for 332/432/632-B but the correct category designation 239 will be required at the time of entry for quota purposes. In the letter published below, the Chairman of CITA directs the Commissioner, U.S. Customs and Border Protection (CBP), to establish the 2008 limits. A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (refer to the Office of Textiles and Apparel website at *http://otexa.ita.doc.gov* ). R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. Committee for the Implementation of Textile Agreements November 27, 2007. Commissioner, *U.S. Customs and Border Protection, Washington, DC 20229.* Dear Commissioner: Pursuant to the Memorandum of Understanding between the Governments of the United States of America and the People's Republic of China, Concerning Trade in Textiles and Apparel Products, dated November 8, 2005, you are directed to prohibit, effective on January 1, 2008, entry into the United States for consumption and withdrawal from warehouse for consumption of cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products in the following categories and HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050, produced or manufactured in China and exported during the twelve-month period beginning on January 1, 2008 and extending through December 31, 2008, in excess of the following agreed levels: Category Restraint Period 200/301 10,131,052 kilograms. 222 21,482,908 kilograms. 229 45,007,492 kilograms. 332/432/632-T (plus baby socks) 1 . 85,058,437 dozen pairs, of which not more than 80,866,195 dozen pairs shall be in categories 332/432/632-B (plus baby socks) 2 . 338/339pt. 3 26,938,606 dozen. 340/640 8,724,590 dozen. 345/645/646 10,581,854 dozen. 347/348 25,442,951 dozen. 349/649 29,479,266 dozen. 352/652 24,302,011 dozen. 359-S/659-S 4 5,990,767 kilograms. 363 134,828,519 numbers. 443 1,756,637 numbers. 447 280,581 dozen. 619 72,177,600 square meters. 620 103,755,190 square meters. 622 43,412,575 square meters. 638/639pt. 5 10,427,707 dozen. 647/648pt. 6 10,298,709 dozen. 666pt. 7 1,268,884 kilograms. 847 23,029,668 dozen. 1 Categories 332/432/632-T: baby socks: only HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050; within Category 632: only HTS numbers 6115.10.4000, 6115.10.5500, 6115.30.9010, 6115.96.6020, 6115.99.1420, 6115.96.9020, 6115.99.1920. 2 Categories 332/432/632-B: baby socks: only HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050; within Category 632: only HTS numbers 6115.10.4000, 6115.10.5500, 6115.96.6020, 6115.96.9020, 6115.99.1420, 6115.99.1920. 3 Categories 338/339pt: all HTS numbers except: 6110.20.1026, 6110.20.1031, 6110.20.2067, 6110.20.2077, 6110.90.9067, and 6110.90.9071. 4 Category 359-S: only HTS numbers 6112.39.0010, 6112.49.0010, 6211.11.8010, 6211.11.8020, 6211.12.8010 and 6211.12.8020; Category 659-S: only HTS numbers 6112.31.0010, 6112.31.0020, 6112.41.0010, 6112.41.0020, 6112.41.0030, 6112.41.0040, 6211.11.1010, 6211.11.1020, 6211.12.1010 and 6211.12.1020. 5 Categories 638/639pt.: all HTS numbers except: 6110.30.2051, 6110.30.2061, 6110.30.3051, 6110.30.3057, 6110.90.9079, and 6110.90.9081. 6 Categories 647/648pt.: all HTS numbers except 6203.43.3510, 6204.63.3010, 6210.40.5031, 6210.50.5031, 6211.20.1525 and 6211.20.1555. 7 Category 666pt.: only HTS numbers 6303.12.0010 and 6303.92.2030. Baby socks in HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050 shall be counted in dozen pairs for quota purposes. These baby socks are subject to the quota level for 332/432/632-T and the sublevel for 332/432/632-B but the correct category designation 239 will be required at the time of entry for quota purposes. The agreed levels set forth above are subject to adjustment pursuant to the current MOU between the Governments of the United States and China. Products in the above categories and HTS numbers 6111.20.6050, 6111.30.5050, and 6111.90.5050 exported during 2007 shall be charged to the applicable category limits for that year (see directive dated October 23, 2006) to the extent of any unfilled balances. In the event the limits established for that period have been exhausted by previous entries, such products shall be charged to the limits set forth in this directive. Sincerely, R. Matthew Priest, *Chairman, Committee for the Implementation of Textile Agreements.* [FR Doc. E7-23304 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Adjustment of Import Limits for Certain Cotton and Man-Made Fiber Textiles and Textile Products Produced or Manufactured in the People's Republic of China November 27, 2007. AGENCY: Committee for the Implementation of Textile Agreements (CITA). ACTION: Issuing a directive to the Commissioner, U.S. Customs and Border Protection adjusting limits. EFFECTIVE DATE: November 30, 2007. FOR FURTHER INFORMATION CONTACT: Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce,
(202)482-4212. For information on the quota status of this limit, refer to the Bureau of Customs and Border Protection website ( *http://www.cbp.gov* ), or call
(202)863-6560. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at *http://otexa.ita.doc.gov.* SUPPLEMENTARY INFORMATION: Authority: Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended. Pursuant to the Memorandum of Understanding between the Governments of the United States and the People's Republic of China concerning Trade in Texile and Apparel Products, signed and dated on November 8, 2005, the current limits for certain categories are being increased for carryforward. A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see **Federal Register** notice 71 FR 62999, published on October 27, 2006). Also see 71 FR 65090 published on November 7, 2006. R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. Committee for the Implementation of Textile Agreements November 27, 2007. Commissioner, *U.S. Customs and Border Protection, Washington, DC 20229.* Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 23, 2006, as amended on November 2, 2006, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in China and exported during the twelve-month period which began on January 1, 2007 and extends through December 31, 2007. Effective on November 30, 2007, you are directed to adjust the current limits for the following categories, as provided for under the terms of the Memorandum of Understanding between the Governments of the United States and the People's Republic of China concerning Trade in Texile and Apparel Products, signed and dated on November 8, 2005: Category Adjusted twelve-month limit 1 345/645/646 9,477,660 dozen. 352/652 21,957,081 dozen. 1 The limit has not been adjusted to account for any imports exported after December 31, 2006. The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1). Sincerely, R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. [FR Doc. E7-23303 Filed 11-29-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The Acting Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before January 29, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: November 21, 2007. James Hyler, Acting Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of Management. Federal Student Aid *Type of Review:* Revision. *Title:* Federal Family Education Loan Program and William D. Ford Federal Direct Loan Program Teacher Loan Forgiveness Forms. *Frequency:* On occasion. *Affected Public:* Businesses or other for-profit; individuals or household; not-for-profit institutions; Federal Government; State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 8,700. Burden Hours: 2,871. *Abstract:* These forms serve as the means by which eligible borrowers in the Federal Family Education Loan Program and the William D. Ford Federal Direct Loan Program apply for teacher loan forgiveness and request forbearance on their loans while performing qualifying teaching service. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3533. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-245-6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E7-23186 Filed 11-29-07; 8:45 am] BILLING CODE 4000-01-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2004-0081; FRL-8500-1] Agency Information Collection Activities; Proposed Collections; Comment Request; Prevention of Significant Deterioration and Nonattainment Area New Source Review (Renewal), EPA ICR No. 1230.17, OMB Control No. 2060-0003 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that EPA is planning to submit a request to renew an existing approved Information Collection Request
(ICR)to the Office of Management and Budget (OMB). This ICR is scheduled to expire on January 31, 2008. Before submitting this ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection as described below. DATES: Comments must be submitted on or before January 29, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2004-0081, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *Fax:*
(202)566-7944. • *Mail:* U.S. Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket Information Center, 1200 Pennsylvania Avenue, NW., Mail Code 2822T, Washington, DC 20460. • *Hand Delivery:* EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20004. Such deliveries are accepted only during the Docket's normal hours of operation—8:30 a.m. to 4:30 p.m., Monday through Friday. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2004-0081. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise to be protected through *www.regulations.gov* or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to us without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* FOR FURTHER INFORMATION CONTACT: Carrie Wheeler, Office of Air Quality Planning and Standards, Air Quality Policy Division (C504-05), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number:
(919)541-9771; fax number:
(919)541-5509; e-mail address: *wheeler.carrie@epa.gov.* SUPPLEMENTARY INFORMATION: How Can I Access the Docket and/or Submit Comments? EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2004-0081 which is available for online viewing at *www.regulations.gov,* or in person viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20004. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the reading room is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. Use *www.regulations.gov* to obtain a copy of the draft collections of information, submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID numbers identified in this document. What Information Particularly Interests EPA? Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii)Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii)Enhance the quality, utility, and clarity of the information to be collected; and
(iv)Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection. What Should I Consider When I Prepare My Comments for EPA? You may find the following suggestions helpful for preparing your comments: 1. Explain your views as clearly as possible and provide specific examples. 2. Describe any assumptions that you used. 3. Provide copies of any technical information and/or data you used that support your views. 4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide. 5. Offer alternative ways to improve the collection activity. 6. Make sure to submit your comments by the deadline identified under DATES . 7. To ensure proper receipt by EPA, be sure to identify the docket ID numbers assigned to these actions in the subject line on the first page of your response. You may also provide the name, date, and **Federal Register** citation. To What Information Collection Activity or ICR Does This Apply? Docket ID No. EPA-HQ-OAR-2004-0081. *Affected entities:* Entities potentially affected by this action are those which must apply for and obtain a preconstruction permit under parts C or D of title I of the Clean Air Act (Act). *Title:* Prevention of Significant Deterioration and Nonattainment Area New Source Review (Renewal). *ICR number:* EPA ICR No. 1230.17, OMB Control No. 2060-0003. *ICR status:* This ICR is scheduled to expire on January 31, 2008. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* Part C of the Clean Air Act (Act)—“Prevention of Significant Deterioration,” and Part D—“Plan Requirements for Nonattainment Areas,” require all States to adopt preconstruction review programs for new or modified stationary sources of air pollution. In addition, the provisions of section 110 of the Act include a requirement for States to have a preconstruction review program to manage the emissions from the construction and modification of any stationary source of air pollution to assure that the National Ambient Air Quality Standards (NAAQS) are achieved and maintained. Implementing regulations for these three programs are promulgated at 40 CFR 51.160 through 51.166 to part 51 and 40 CFR 52.21 and 52.24. In order to receive a construction permit for a major new source or major modification, the applicant must conduct the necessary research, perform the appropriate analyses and prepare the permit application with documentation to demonstrate that their project meets all applicable statutory and regulatory NSR requirements. Specific activities and requirements are listed and described in the Supporting Statement for the ICR. Reviewing authorities, either State, local or Federal, review the permit application and provides for public review of the proposed project and issues the permit based on its consideration of all technical factors and public input. The EPA, more broadly, reviews a fraction of the total applications and audits the State and local programs for their effectiveness. Consequently, information prepared and submitted by the source is essential for the source to receive a permit, and for Federal, State and local environmental agencies to adequately review the permit application and thereby properly administer and manage the NSR programs. Information that is collected and handled according to EPA's policies set forth in title 40, chapter 1, part 2, subpart B—Confidentiality of Business Information ( *see* 40 CFR part 2). See also section 114(c) of the Act. *Burden Statement:* Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and, transmit or otherwise disclose the information. The annual public reporting and recordkeeping burden for this collection of information is broken down as follows: Type of permit action Major PSD Major Part D Minor Number of Sources 282 519 74,591 Burden Hours per Response: Industry 839 577 40 Permitting Agencies 272 109 30 Total Annual Burden Hours: Industry 236,262 299,578 2,983,640 Permitting Agencies 76,595 56,593 2,237,730 *Respondents/Affected Entities:* Industrial plants, State and local permitting agencies. *Estimated Number of Respondents:* 150,784. *Estimated Total Annual Burden:* 5,890,399 hours. Are There Changes in the Estimates From the Last Approval? Since the last renewal of this ICR (November 2, 2004; 69 FR 63530), the estimated number of respondents has increased by 51 due to the decision by the U.S. Court of Appeals for the D.C. Circuit to vacate the Clean Units and Pollution Control Project Exclusion provisions of the NSR program. *See New York* v. *EPA,* 413 F.3d 3 (D.C. Cir. 2005). As a result, the total annual burden has been increased by 39,273 hours. The burden per type of permit remains unchanged. What Is the Next Step in the Process for This ICR? EPA will consider the comments received and amend the ICRs as appropriate. The final ICR packages will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another **Federal Register** notice pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICRs to OMB and the opportunity to submit additional comments to OMB. If you have any questions about these ICRs or the approval process, please contact the technical person listed under FOR FURTHER INFORMATION CONTACT . Dated: November 21, 2007. Stephen D. Page, Director, Office of Air Quality Planning and Standards. [FR Doc. E7-23296 Filed 11-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-6693-6] Environmental Impact Statements and Regulations; Availability of EPA Comments Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements
(EISs)was published in FR dated April 6, 2007 (72 FR 17156). Draft EISs *EIS No. 20070359, ERP No. DS-BLM-L65462-AK,* Northeast National Petroleum Reserve—Alaska Integrated Activity Plan, Updated Information, addressing the need for more Oil and Gas Production through Leasing Lands, Consideration of 4 Alternatives, North Slope Borough, AK. *Summary:* EPA expressed environmental objections to each action alternative because of potential adverse impacts to wetlands, aquatic habitat and fish and wildlife. EPA suggests considering an alternative that will reduce the potential impacts, especially to water quality, by retaining the current leasing acreage, and surface activity restrictions, incorporating both performance based stipulations and Required Operating Procedures until data on effectiveness of these measures become available. Rating EO2. Final EISs *EIS No. 20070398, ERP No. F-BLM-L65510-AK,* Kobuk-Seward Peninsula Resource Management Plan, from Point Lay to the North Sound and from the Bering and Chukchi Seas East to the Kobuk River, AK. *Summary:* While the final EIS provides for the development of a habitat management plan, EPA continues to have environmental concerns about impacts to resources from the lack of specific requirements for the abandonment, removal, and reclamation of activities relating to resource exploration, development, and operation after leases have expired and operations have cease. *EIS No. 20070418, ERP No. F-NPS-E65078-NC,* North Shore Road, Great Smoky Mountains National Park, General Management Plan, Implementation, Fontana Dam, Swain County, NC. *Summary:* EPA does not object to the selection of the preferred alternative. *EIS No. 20070433, ERP No. F-BIA-L65495-ID,* PROGRAMMATIC—Coeur d' Alene Tribe Integrated Resource Management Plan, Implementation, Coeur d' Alene Reservation and Aboriginal Territory, ID. *Summary:* No formal comment letter was sent to the preparing agency. Dated: November 27, 2007. Ken Mittelholtz, Environmental Protection Specialist, Office of Federal Activities. [FR Doc. E7-23242 Filed 11-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-6693-5] Environmental Impacts Statements; Notice of Availability *Responsible Agency:* Office of Federal Activities, General Information
(202)564-7167 or *http://www.epa.gov/compliance/nepa/.* Weekly receipt of Environmental Impact Statements filed 11/19/2007 through 11/23/2007. Pursuant to 40 CFR 1506.9. *EIS No. 20070500, Final EIS, COE, CA,* Berth 136-147 [TraPac] Container Terminal Project, Upgrade Existing Wharf Facilities, Install a Buffer Area between the Terminal and Community, U.S. Army COE section 10 and 404 Permit, West Basin Portion of the Port of Los Angeles, CA. Wait Period Ends: 01/02/2008. Contact: Dr. Spencer D. MacNeil 805-585-2152. *EIS No. 20070501, Final EIS, BLM, NV,* Ely District Resource Management Plan, Implementation, White Pine, Lincoln Counties and a Portion of Nye County, NV. Wait Period Ends: 01/02/2008. Contact: Jeff Weeks 775-289-1825. *EIS No. 20070502, Final EIS, FHW, NE,* U.S. Highway 34, Plattsmouth Bridge Study, over the Missouri River between U.S. 75 and I-29, Funding, Coast Guard Permit, U.S. Army COE 10 and 404 Permits, Cass County, NE and Mills County, IA. Wait Period Ends: 01/02/2008. Contact: Edward W. Kosola 402-437-5975. *EIS No. 20070503, Draft EIS, AFS, AK,* Navy Timber Sale Project, To Address the Potential Effects of Timber Harvesting on Etolin Island, Wrangell Ranger District, Tongass National Forest, AK. Comment Period Ends: 01/14/2008. Contact: Frank Roberts 907-874-7556. *EIS No. 20070504, Draft EIS, FRC, 00,* Rockies Express Pipeline Project, (REX-East), Construction and Operation of Natural Gas Pipeline Facilities, WY, NE, MO, IL, IN and OH, Comment Period Ends: 01/14/2008. Contact: Andy Black 1-866-208-3372. *EIS No. 20070505, Final EIS, WPA, CA,* Trinity Public Utilities District Direct Interconnection Project, Construct and Operate a 16-mile Long 60-Kilovolt Power Transmission Facilities, (DOE/EIS-0389, Trinity County, CA, Wait Period Ends: 01/02/2008. Contact: Mark Wieringa 720-962-7448. Amended Notices *EIS No. 20070420, Draft EIS, SFW, CA,* Agua Caliente Tribal Habitat Conservation Plan (THCP), Application for an Incidental Take Permit for 24 Covered Species, Coachella Valley, Riverside County, CA, Comment Period Ends: 01/10/2008. Contact: Jim Bartel 760-431-9440. Revision to FR Notice Published 10/12/2007: Correction to Comment Period from 11/26/2007 to 01/10/2008. *EIS No. 20070478, Final EIS, AFS, AK,* Helicopter Access to Conduct Forest Inventory and Analysis
(FIA)in Wilderness, in Tongass and Chugach National Forest, AK. Wait Period Ends: 12/24/2007. Contact: Ken Post 907-586-8796. Review to FR Notice Published 11/09/2007: Correction to Title. Dated: November 27, 2007. Robert W. Hargrove, Director, NEPA Compliance Division, Office of Federal Activities. [FR Doc. E7-23241 Filed 11-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8500-3] Science Advisory Board Staff Office; Notification of Two Public Teleconferences of the Science Advisory Board Radiation Advisory Committee MARSAME Review Panel AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The EPA Science Advisory Board
(SAB)Staff Office announces two public teleconferences of the SAB Radiation Advisory Committee
(RAC)augmented with additional experts to review the draft document entitled “Multi-Agency Radiation Survey and Assessment of Materials and Equipment (MARSAME) Manual,” December 2006. DATES: The SAB Radiation Advisory Committee
(RAC)MARSAME Review Panel will hold public teleconferences on Friday, December 21, 2007 from 11 a.m. to 2 p.m. (Eastern Standard Time) and Monday, March 10, 2008 from 1 p.m. to 4 p.m. (Eastern Standard Time). ADDRESSES: The public teleconferences on Friday, December 21, 2007 and Monday, March 10, 2008 will take place via telephone only. FOR FURTHER INFORMATION CONTACT: Members of the public who wish to obtain the call-in number and access code for the public teleconferences may contact Dr. K. Jack Kooyoomjian, Designated Federal Officer (DFO), by mail at the EPA SAB Staff Office (1400F), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; by telephone at
(202)343-9984; by fax at
(202)233-0643; or by e-mail at: *kooyoomjian.jack@epa.gov.* General information concerning the SAB can be found on the SAB Web Site at: *http://www.epa.gov/sab.* *Technical Contact:* For questions and information concerning the draft MARSAME document, background information, as well as briefing and other background materials provided to the RAC MARSAME Review Panel which are pertinent to the teleconferences in this notice, please contact Dr. Mary E. Clark of the U.S. EPA, ORIA by telephone at:
(202)343-9348, fax at
(202)243-2395, or e-mail at *clark.marye@epa.gov.* SUPPLEMENTARY INFORMATION: *Background:* The EPA's Office of Radiation and Indoor Air
(ORIA)on behalf of the Federal agencies participating in the development of the MARSAME Manual (see below) requested the SAB to provide advice on a draft document entitled “Multi-Agency Radiation Survey and Assessment of Materials and Equipment (MARSAME) Manual,” December 2006. MARSAME is a supplement to the “Multi-Agency Radiation Survey and Site Investigation Manual” (MARSSIM, EPA 402-R-970-016, Rev.1, August 2000 and June 2001 update). The SAB Staff Office announced this advisory activity and requested nominations for technical experts to augment the SAB's Radiation Advisory Committee
(RAC)in the **Federal Register** (72 FR 11356; March 13, 2007). The first teleconference of the RAC's MARSAME Review Panel took place on Tuesday, October 9, 2007 and the face-to-face review meeting took place in the Washington, DC area on October 29, 30 and 31, 2007 (72 FR: 54255; September 24, 2007). MARSAME was developed collaboratively by the multi-agency work group (60 FR 12555; March 7, 1995) and provides technical information on approaches for planning, conducting, evaluating, and documenting radiological disposition surveys to determine proper disposition of materials and equipment (M&E). The multi-agency work group which developed the MARSAME manual consists of the U.S. Department of Defense (DOD); the U.S. Department of Energy (DOE); the U.S. Environmental Protection Agency (EPA); and the U.S. Nuclear Regulatory Commission (NRC). Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the SAB Staff Office hereby gives notice of two public teleconferences of the SAB Radiation Advisory Committee
(RAC)augmented to deal with this subject. The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice, consultation, and recommendations to the EPA Administrator on the technical basis for Agency positions and regulations. The augmented RAC will comply with the provisions of FACA and all appropriate SAB procedural policies. *Purpose of the Teleconferences:* The purpose of the teleconferences is to discuss the draft report being prepared by the SAB RAC MARSAME Review Panel in response to the charge questions pertaining to the draft MARSAME Manual, dated December 2006 prepared by the multi-agency work group. *Availability of Meeting Materials:* A roster of the RAC MARSAME Review Panel members, and the charge to the SAB's RAC MARSAME Review Panel is posted on the SAB Web Site at: ( *http://www.epa.gov/sab* ). The latest draft public report to be discussed, which is currently under preparation, along with the meeting agenda will be posted onto the SAB Web Site prior to the teleconferences. The draft document, “ *Multi-Agency Radiation Survey and Assessment of Materials and Equipment (MARSAME) Manual,* ” December 2006 (NUREG-1575, Supp. 1; EPA 402-R-06-002; and DOE/EH-707) is available at: *http://63.151.45.33/marsame/system/index.cfm.* In addition to the hotlink above, the charge to the RAC's MARSAME Review Panel, and other supplemental information may be found at the SAB Web Site ( *http://www.sab.gov/sab* ). *Procedures for Providing Public Input:* Interested members of the public may submit relevant written or oral information for the SAB Panel to consider during the advisory process. *Oral Statements:* In general, individuals or groups requesting an oral presentation at a public teleconference will be limited to three minutes per speaker with no more than a total of fifteen minutes for all speakers. Interested parties should contact the DFO, contact information provided above, in writing via e-mail seven days prior to the teleconference dates. For the December 21, 2007 teleconference, the deadline is Friday, December 14, 2007. For the March 10, 2008 teleconference, the deadline is Monday, March 3, 2008 to be placed on the public speaker list. *Written Statements:* Written statements should be received in the SAB Staff Office seven days prior to the teleconferences. For the Friday, December 21, 2007 teleconference, the deadline is Friday, December 14, 2007; for the March 10, 2008 teleconference, the deadline is Monday, March 3, 2008, so that the information may be made available to the SAB RAC MARSAME Review Panel for their consideration. Written statements should be supplied to the DFO in the following formats: one hard copy with original signature, and one electronic copy via e-mail to *kooyoomjian.jack@epa.gov* ( *acceptable file format:* Adobe Acrobat, WordPerfect, Word, or Rich Text files in IBM-PC/Windows 98/2000/XP format). *Meeting Accommodations:* For information on access or services for individuals with disabilities, please contact the DFO, contact information provided above. To request accommodation of a disability, please contact the DFO, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. Dated: November 26, 2007. Anthony F. Maciorowski, Deputy Director, EPA Science Advisory Board Staff Office. [FR Doc. E7-23298 Filed 11-29-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-ORD-2007-1148; FRL-8500-2] Board of Scientific Counselors, Computational Toxicology Subcommittee Meeting—December 2007 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency, Office of Research and Development (ORD), gives notice of one meeting of the Board of Scientific Counselors
(BOSC)Computational Toxicology Subcommittee. DATES: The meeting will be held on Monday, December 17, 2007, from 1 p.m. to 5 p.m. The meeting will continue on Tuesday, December 18, 2007, from 8:30 a.m. to 3 p.m. All times noted are eastern time. The meeting may adjourn early if all business is finished. Requests for the draft agenda or for making oral presentations at the meeting will be accepted up to 1 business day before the meeting. ADDRESSES: The meeting will be held at the U.S. EPA Research Triangle Park
(RTP)Campus, EPA Main Building (Room C114 on December 17 and Room C111C on December 18), 109 T. W. Alexander Dr., Research Triangle Park, North Carolina 27711. Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2007-1148, by one of the following methods: • *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. • *E-mail* : Send comments by electronic mail (e-mail) to: *ORD.Docket@epa.gov* , Attention Docket ID No. EPA-HQ-ORD-2007-1148. • *Fax* : Fax comments to:
(202)566-0224, Attention Docket ID No. EPA-HQ-ORD-2007-1148. • *Mail* : Send comments by mail to: Board of Scientific Counselors, Computational Toxicology Subcommittee Meetings—end 2007/early 2008 Docket, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-ORD-2007-1148. • *Hand Delivery or Courier* . Deliver comments to: EPA Docket Center (EPA/DC), Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. EPA-HQ-ORD-2007-1148. Note: This is not a mailing address. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions* : Direct your comments to Docket ID No. EPA-HQ-ORD-2007-1148. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket* : All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Board of Scientific Counselors, Computational Toxicology Subcommittee Meetings—end 2007/early 2008 Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the ORD Docket is
(202)566-1752. FOR FURTHER INFORMATION CONTACT: The Designated Federal Officer via mail at: Lorelei Kowalski, Mail Code 8104-R, Office of Science Policy, Office of Research and Development, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via phone/voice mail at:
(202)564-3408; via fax at:
(202)565-2911; or via e-mail at: *kowalski.lorelei@epa.gov* . SUPPLEMENTARY INFORMATION: General Information Any member of the public interested in receiving a draft BOSC agenda or making a presentation at the meeting may contact Lorelei Kowalski, the Designated Federal Officer, via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section above. In general, each individual making an oral presentation will be limited to a total of three minutes. Proposed agenda items for the meeting include, but are not limited to: overview of National Center for Computational Toxicology
(NCCT)activities; presentations of NCCT work on ToxCast, IM/IT (information management/information technology)—informatics, a Virtual Liver, developmental systems biology, and arsenic biologically-based dose response model (BBDR); wrap up with presentation of preliminary findings; and discussion of the draft letter report. The meeting is open to the public. *Information on Services for Individuals with Disabilities* : For information on access or services for individuals with disabilities, please contact Lorelei Kowalski at
(202)564-3408 or *kowalski.lorelei@epa.gov* . To request accommodation of a disability, please contact Lorelei Kowalski, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. Dated: November 21, 2007. Jeff Morris, Acting Director, Office of Science Policy. [FR Doc. E7-23297 Filed 11-29-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)). The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 14, 2007. **A. Federal Reserve Bank of Kansas City** (Todd Offenbacker, Assistant Vice President) 925 Grand Avenue, Kansas City, Missouri 64198-0001: *1. Jose L. Evans, Denise K. Evans (acting jointly), David L. Johnson and Sandra L. Castetter* , all of Kansas City, Missouri, acting jointly, together, and acting in concert; to acquire votings shares of First Missouri Bancshares, Inc., and thereby indirectly acquire voting shares of First Missouri National Bank, both in Brookfield, Missouri. Board of Governors of the Federal Reserve System, November 26, 2007. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E7-23178 Filed 11-29-07; 8:45 am] BILLING CODE 6210-01-S FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 *et seq.* ) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at *www.ffiec.gov/nic/* . Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 26, 2007. **A. Federal Reserve Bank of Atlanta** (David Tatum, Vice President) 1000 Peachtree Street, N.E., Atlanta, Georgia 30309: *1. Metropolitan BancGroup, Inc.* , Ridgeland, Mississippi; to become a bank holding company by acquiring 100 percent of the voting shares of BancSouth Financial Corporation and Bank of the South, both of Crystal Springs, Mississippi. **B. Federal Reserve Bank of San Francisco** (Tracy Basinger, Director, Regional and Community Bank Group) 101 Market Street, San Francisco, California 94105-1579: *1. Franklin Resources, Inc.* , San Mateo, California; to retain 5.15 percent of the voting shares of Commerce Bancorp, Inc., and thereby indirectly retain voting shares of Commerce Bank, N.A., both of Cherry Hill, New Jersey. Board of Governors of the Federal Reserve System, November 26, 2007. Jennifer J. Johnseon, Secretary of the Board. [FR Doc. E7-23179 Filed 11-29-07; 8:45 am] BILLING CODE 6210-01-S FEDERAL TRADE COMMISSION [File No. 062 3042] Budget Rent-A-Car System, Inc.; Analysis of Proposed Consent Order to Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Proposed Consent Agreement. SUMMARY: The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations. DATES: Comments must be received on or before December 20, 2007. ADDRESSES: Interested parties are invited to submit written comments. Comments should refer to “Budget Rent-A-Car System, File No. 062 3042,” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments containing confidential material must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 16 CFR 4.9(c) (2005). 1 The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. Comments that do not contain any nonpublic information may instead be filed in electronic form as part of or as an attachment to email messages directed to the following email box: *consentagreement@ftc.gov* . 1 The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. *See* Commission Rule 4.9(c), 16 CFR 4.9(c). The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC website, to the extent practicable, at *www.ftc.gov.* As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, at *http://www.ftc.gov/ftc/privacy.htm* . FOR FURTHER INFORMATION CONTACT: Lisa Rosenthal or Sarah Schroeder, FTC Western Region, San Francisco, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580,
(415)848-5100. SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty
(30)days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 20, 2007), on the World Wide Web, at *http://www.ftc.gov/os/2007/11/index.htm* . A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, either in person or by calling
(202)326-2222. Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the **ADDRESSES** section above, and must be received on or before the date specified in the **DATES** section. Analysis of Agreement Containing Consent Order to Aid Public Comment The Federal Trade Commission has accepted an agreement to a proposed consent order with Budget Rent-A-Car System, Inc. (“Budget”), one of the nation’s largest rental car agencies. The proposed consent order has been placed on the public record for thirty
(30)days for reception of comments by interested persons. Comments received during this period will become part of the public record. After thirty
(30)days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement’s proposed order. This matter concerns deceptive practices by Budget with respect to an automatic, flat “EZ Fuel” fee it charges to renters who drive fewer than 75 miles, regardless of whether they return their rental with a full gas tank, unless they present a receipt. Budget has failed to adequately disclose the EZ Fuel fee or how renters can have the fee reversed. The complaint alleges that Budget engaged in deceptive practices relating to its EZ-Fuel program. The complaint alleges that Budget has falsely represented that, if consumers return their rental vehicle with a full gas tank, they will not have to pay any fuel-related charge, fee, or cost. In numerous instances, however, consumers who drive their vehicle fewer than 75 miles will have to pay the EZ Fuel fee, regardless of whether they return the vehicle with a full gas tank, unless they present a gas receipt. The complaint further alleges that Budget failed to disclose and failed to disclose adequately that consumers who drive their rental vehicle fewer than 75 miles and refuel can have the EZ Fuel fee reversed only if they present a fuel receipt. In addition, Budget failed to disclose that consumers without corporate accounts would have to present their fuel receipt inside at the rental counter after returning their rental vehicle and checking out on the return lot. These facts would be material to consumers in their rental transaction. The failure to disclose these facts, in light of the representations made, was a deceptive practice. The proposed order contains provisions designed to prevent Budget from engaging in similar acts and practices in the future. Part I prohibits Budget from misrepresenting
(A)that renters who return their vehicle with a full tank of gas will not incur any fuel-related charges;
(B)any fuel-related charge, fee, cost, or requirement; or,
(C)any charge, fee, or cost, or term or condition, relating to the rental of any vehicle.” Part II of the proposed order requires that Budget disclose, clearly and conspicuously, at the time of rental transaction:
(A)any fuel related charges, fee, or costs;
(B)any material requirements related to the fuel-related charge; and
(C)the manner, if any, in which the renter can avoid such fuel-related charges. Finally, Part III of the proposed order prohibits Budget from making any representation about the benefits, costs, or parameters of any fuel-related option unless it discloses clearly and conspicuously, and in close proximity to the representation, any material terms or conditions relating to that fuel option. These conduct provisions prohibit the deceptive practices alleged in the complaint, but do not prohibit Budget from imposing fuel-related charges, so long as such charges are disclosed as required by the proposed order. Parts IV through VII of the proposed order are reporting and compliance provisions. Part IV requires Budget to retain documents relating to its compliance with the order. Part V requires dissemination of the order now and in the future to persons with responsibilities relating to the subject matter of the order. Part VI ensures notification to the FTC of changes in corporate status. Part VII mandates that Budget submit compliance reports to the FTC. Part VIII is a provision “sunsetting” the order after twenty
(20)years, with certain exceptions. The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to modify the terms of the proposed order in any way. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. E7-23293 Filed 11-29-07: 8:45 am] BILLING CODE 6750-01-S FEDERAL TRADE COMMISSION [File No. 071 0132] Schering-Plough Corporation; Analysis of Agreement Containing Consent Orders to Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Proposed Consent Agreement. SUMMARY: The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations. DATES: Comments must be received on or before December 19, 2007. ADDRESSES: Interested parties are invited to submit written comments. Comments should refer to “Schering-Plough, File No. 071 0132,” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments containing confidential material must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 16 CFR 4.9(c) (2005). 1 The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. Comments that do not contain any nonpublic information may instead be filed in electronic form as part of or as an attachment to email messages directed to the following email box: *consentagreement@ftc.gov* . 1 The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. *See* Commission Rule 4.9(c), 16 CFR 4.9(c). The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC website, to the extent practicable, at *www.ftc.gov.* As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, at *http://www.ftc.gov/ftc/privacy.htm* . FOR FURTHER INFORMATION CONTACT: Jacqueline K. Mendel, Bureau of Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580,
(202)326-2603. SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty
(30)days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 16, 2007), on the World Wide Web, at *http://www.ftc.gov/os/2007/11/index.htm* . A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, either in person or by calling
(202)326-2222. Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the **ADDRESSES** section above, and must be received on or before the date specified in the **DATES** section. Analysis of Agreement Containing Consent Order to Aid Public Comment The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Schering-Plough Corporation (“Schering-Plough”), which is designed to remedy the anticompetitive effects of its acquisition of Organon BioSciences N.V. (“Organon BioSciences”) from Akzo-Nobel N.V. (“Akzo-Nobel”). Under the terms of the proposed Consent Agreement, Schering-Plough would be required to divest to Wyeth:
(1)the Schering-Plough rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry;
(2)the rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment of fowl cholera due to *Pasteurella multocida* in poultry; and
(3)the rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment of *Mycoplasma gallisepticum* (“MG”) in poultry. The proposed Consent Agreement has been placed on the public record for thirty
(30)days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty
(30)days, the Commission will again review the proposed Consent Agreement and the comments received, and will decide whether it should withdraw from the proposed Consent Agreement, modify it, or make final the Decision and Order (“Order”). Pursuant to the terms of a Letter of Intent dated March 12, 2007, Schering-Plough proposes to acquire from Akzo Nobel 100 percent of the outstanding shares of Organon BioSciences voting stock. The Commission’s Complaint alleges that the proposed acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45, by lessening competition in the U.S. markets for the manufacture and sale of the following poultry vaccines:
(1)live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry;
(2)live vaccines for the prevention and treatment of fowl cholera due to *Pasteurella multocida* in poultry; and
(3)live vaccines for the prevention and treatment of *Mycoplasma gallisepticum* in poultry. The proposed Consent Agreement will remedy the alleged violations by replacing the lost competition that would result from the acquisition in each of these markets. The Products and Structure of the Markets The markets for the Georgia 98 strain of infectious bronchitis, fowl cholera, and live MG vaccines are highly concentrated, with Schering-Plough and Intervet accounting for significant market shares in each of these markets. The proposed acquisition would create a monopolist in the live Georgia 98 vaccine market and would give Schering-Plough shares of approximately eighty-five percent and seventy-two percent in the markets for live fowl cholera and live MG vaccines, respectively. The Georgia 98 strain of infectious bronchitis is a highly contagious respiratory disease in poultry spread by contact with infected respiratory discharge and feces. Live Georgia 98 vaccines are the only vaccines that can effectively prevent and treat the Georgia 98 strain of infectious bronchitis virus. Other infectious bronchitis virus vaccine strains, administered either individually or in multiple-antigen combination vaccines, do not provide adequate protection against the Georgia 98 serotype to act as a sufficient alternative to the live Georgia 98 vaccines. The relevant market for the manufacture, distribution, and sale of live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry in the United States is highly concentrated. Respondent Schering-Plough and Organon BioSciences are the only suppliers of live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry in the United States. Schering-Plough’s Avimune IB98 product is the market leader with an estimated seventy-nine percent market share, while Intervet competes with its MILDVAC GA-98 product, selling the remaining twenty-one percent in the United States. The acquisition would create a monopoly by combining the only two companies with products on the market. Live fowl cholera vaccines prevent an infectious bacterial disease in poultry caused by a common pathogenic bacterium, *Pasteurella multocida* . The relevant market for the manufacture, distribution, and sale of live vaccines for the prevention and treatment of fowl cholera due to *Pasteurella multocida* in poultry in the United States is highly concentrated. Respondent Schering-Plough and Organon BioSciences are two of only three suppliers of live fowl cholera vaccines, and the only providers of a PM-1 strain of the vaccine. Organon BioSciences is the market leader with its CHOLERVAC-PM-1 product, accounting for approximately fifty-three percent of the live fowl cholera vaccines sold in the United States. Schering-Plough is the second leading supplier with its PM-ONEVAC-C and M-NINEVAX products, accounting for thirty-two percent of sales in the market. Together, Schering-Plough and Organon BioSciences account for approximately eighty-five percent of the sales in this highly concentrated market. Accordingly, the Acquisition would significantly increase the concentration levels in the United States in the market for live vaccines for the prevention and treatment of fowl cholera due to *Pasteurella multocida* in poultry. MG is a respiratory disease that is transmitted laterally between chickens or through infected eggs. The relevant market for the manufacture, distribution, and sale of live *Mycoplasma gallisepticum* vaccines in the United States is highly concentrated. Respondent Schering-Plough and Organon BioSciences are the two leading suppliers of live vaccines for the prevention and treatment of *Mycoplasma gallisepticum* in poultry in the United States. Akzo Nobel is the market leader with its MYCOVAC-L product, while Schering Plough competes with its F-VAX MG. Together, they account for over seventy-two percent of the sales in this highly concentrated market. Accordingly, the Acquisition would significantly increase theconcentration levels in the United States in the market for live vaccines for the prevention and treatment of *Mycoplasma gallisepticum* in poultry. Entry Entry into any relevant line of commerce would not be timely, likely, or sufficient to deter or counteract the anticompetitive effects of the Acquisition. Entry into any of these markets would require overcoming three major obstacles: lengthy development periods, USDA approval requirements, and customer acceptance. As a result, new entry into any of these markets sufficient to achieve a significant market impact within two years is unlikely. Effects The markets for the Georgia 98 strain of infectious bronchitis, fowl cholera, and MG live vaccines are highly concentrated, with Schering-Plough and Intervet accounting for substantial shares of sales in each of these markets. The proposed acquisition would create a monopolist in the live Georgia 98 vaccine market and would give Schering-Plough shares of approximately eighty-five percent and seventy-two percent in the markets for live fowl cholera vaccine and live MG vaccines, respectively. The competitive concerns can be characterized as unilateral in nature. Schering-Plough and Organon BioSciences are each other’s closest competitors in all of the relevant markets. Consumers have benefitted from the price competition between Schering-Plough and Organon BioSciences. If unremedied, the proposed acquisition would likely cause higher prices and reduce incentives to improve service or product quality, resulting in significant harm to consumers in the U.S. markets for these vaccines. The Consent Agreement The proposed Consent Agreement remedies the competitive harm caused by the proposed transaction. Pursuant to the Consent Agreement, Schering-Plough must divest or license all of the assets relating to Schering-Plough’s live vaccine for the Georgia 98 strain of infectious bronchitis (Avimune IB98), Intervet’s live fowl cholera vaccine (CHOLERVAC-PM-1) and Schering-Plough’s live MG vaccine (F VAX-MG)(“the assets to be divested”), to the Fort Dodge division of Wyeth, within ten days after the date Schering-Plough acquires Organon BioSciences. The assets to be divested include research and development, customer, supplier and manufacturing contracts and any intellectual property including existing licenses, but excluding trademarks. Fort Dodge plans to bring all manufacturing of the three vaccines in-house to its own manufacturing facilities and to add the three to its own portfolio of poultry vaccines. While Fort Dodge undertakes the process of obtaining USDA regulatory approvals and bringing vaccine production in-house, Schering-Plough will provide Fort Dodge with the vaccines pursuant to a supply and transition services agreement with a term of two years, and an option to extend it another year, individually for each of the three vaccines, if required. The acquirer of the divested assets must receive the prior approval of the Commission. The Commission’s goal in evaluating possible purchasers of divested assets is to maintain the competitive environment that existed prior to the acquisition. A proposed acquirer of divested assets must not itself present competitive problems. Wyeth, headquartered in Madison, New Jersey, is a global leader in pharmaceuticals, consumer health care products and animal health care products. In 2006, it had net sales of $20 billion. Wyeth’s Fort Dodge Animal Health division offers a broad range of biological and pharmaceutical products for the companion animal, equine, livestock, swine and poultry industries. Significantly, Wyeth already has an established poultry vaccine line comprised of internally developed vaccines as well as several vaccines that it has acquired and transferred to its manufacturing facilities. Fort Dodge has its own distribution network and an experienced sales force with existing relationships with major poultry producers. The three vaccines being divested to Fort Dodge are all established products that have been on the market for at least two years. Fort Dodge has its own manufacturing facilities with excess capacity and intends to bring the manufacturing of all of the products it is acquiring from Schering-Plough in-house. For these reasons, Wyeth is a strong buyer that appears well positioned to replace the competition lost by the acquisition. If the Commission determines that Wyeth is not an acceptable acquirer of the assets to be divested, the parties must unwind the sale and divest the Products within six months of the date the Order becomes final to another Commission-approved acquirer. If the parties fail to divest within six months, the Commission may appoint a trustee to divest the Product assets. The proposed remedy contains several provisions to ensure that the divestitures are successful. The Order requires Schering-Plough to provide transitional services to enable the Commission-approved acquirer to obtain all of the necessary approvals from the USDA. These transitional services include technology transfer assistance to manufacture the Products in substantially the same manner and quality employed or achieved by Schering-Plough and Akzo-Nobel. The Commission has appointed Dr. David A. Espeseth to oversee the implementation of the Order as the Interim Monitor Trustee. Dr. Espeseth retired in 1998 from a career at the USDA, where his last position was as Special Assistant to the Deputy Administrator of Veterinary Services and where he spent the majority of his 37 years regulating veterinary biologic products (vaccines). Today, he is a consultant to animal health companies, assisting with regulatory issues before the USDA and technology transfers. Dr. Espeseth’s strengths are his strong regulatory background, his experience overseeing technology transfers, and experience resolving disputes between companies and the USDA. Dr. Espeseth is an excellent candidate to handle the expected duties and responsibilities of the Interim Monitor Trustee in this matter. He has the requisite capability and applicable knowledge to ensure the proper transfer of the divested assets, oversee the transfer of the relevant technology, monitor the critical manufacturing and supply activities of the Respondent, ensure the Respondent’s compliance with the Order and related agreements, respond to Commission needs, and perform other related services as may be required. Accordingly, the Commission has appointed Dr. Espeseth as the Interim Monitor Trustee. The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. E7-23291 Filed 11-29-07: 8:45 am] BILLING CODE 6750-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Meeting of the National Biodefense Science Board AGENCY: Office of the Secretary, Department of Health and Human Services. ACTION: Notice. SUMMARY: As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services is hereby giving notice that the National Biodefense Science Board
(NBSB)will be holding its inaugural meeting. The meeting is open to the public. DATES: The meeting will be held on December 17, 2007, from 9 a.m. to 5 p.m., and on December 18, 2007, from 9 a.m. to 5 p.m. ADDRESSES: The Ronald Reagan Building and International Trade Center, Atrium Ballroom, 1300 Pennsylvania Avenue, NW., Washington, DC 2004. Phone: 202-312-1300. FOR FURTHER INFORMATION CONTACT: CAPT Leigh A. Sawyer, DVM, MPH, Executive Director, National Biodefense Science Board, Office of the Assistant Secretary for Preparedness and Response, U.S. Department of Health and Human Services, 200 Independence Avenue, SW., Room 450G, Washington, DC 20201; 202-205-3815; fax: 202-690-7412; e-mail address: *leigh.sawyer@hhs.gov.* SUPPLEMENTARY INFORMATION: Pursuant to section 319M of the Public Health Service Act (42 U.S.C. 247d-7f) as added by section 402 of the Pandemic and All-Hazards Preparedness Act (Pub. L. 109-417) the Secretary of Health and Human Services is required to establish the National Biodefense Science Board and hold the inaugural meeting of the Board prior to December 19, 2007. The Board shall provide expert advice and guidance to the Secretary on scientific, technical and other matters of special interest to the Department of Health and Human Services regarding current and future chemical, biological, nuclear, and radiological
(CBRN)agents, whether naturally occurring, accidental, or deliberate. The agenda will include topics related to current and future challenges to national preparedness related to CBRN agents, and will include discussions regarding matters that the Board will consider in greater depth. A tentative schedule will be made available on December 2, 2007 at the NBSB Web site, *http://www.hhs.gov/aspr/omsph/nbsb.* Any member of the public interested in presenting oral comments at the meeting may notify the Contact person listed on this notice by December 10, 2007. Interested individuals and representatives of an organization may submit a letter of intent and a brief description of the organization represented. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee. All written comments must be received prior to December 10, 2007 and should be sent by e-mail with “NBSB Public Comment” as the subject line or by regular mail to the Contact person listed above. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated Contact person by December 10, 2007. Dated: November 26, 2007. RADM W. Craig Vanderwagen, Assistant Secretary for Preparedness and Response, U.S. Department of Health and Human Services. [FR Doc. 07-5885 Filed 11-29-07; 8:45 am]
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  • Pub. L. 107-296
  • 8 CFR 240.25
  • Pub. L. 104-208
  • 8 CFR 1240.26(b)
  • 8 CFR 1240.26(b)(1)(D)
  • 8 CFR 1240.26(c)
  • 487 F.3d 76
  • 546 F.2d 515
  • 445 F.3d 387
  • 371 F.3d 182
  • 8 CFR 1240.26(c)(1)(iv)
  • 8 CFR 1240.26(c)(3)
  • 469 F.3d 33
  • 412 F.3d 257
  • 383 F.3d 650
  • 460 F.3d 323
  • 497 F.3d 57
  • 394 F.3d 1278
  • 502 U.S. 314
  • 141 F.3d 953
  • 8 CFR 1003.2(c)(4)
  • 8 CFR 1003.2(f)
  • 8 CFR 1240.26(h)
  • 8 CFR 1241.1(f)
  • 8 CFR 1003.2(d)
  • 8 CFR 1003.23(b)(1)
  • 473 F.3d 979
  • 499 F.3d 329
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  • 453 F.3d 1325
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  • 459 F.3d 500
  • 545 U.S. 967
  • 8 CFR 1240.26(b)(1)(i)(D)
  • 485 U.S. 94
  • 8 CFR 1240.26
  • 468 F.3d 135
  • 449 F.3d 45
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F. App'x487 F.3d 76
F. App'x546 F.2d 515
F. App'x445 F.3d 387
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