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Code · REGISTER · 2007-12-27 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Rules and Regulations

Rules and Regulations. Final rule

53,412 words·~243 min read·/register/2007/12/27/07-6217

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BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No.070719385-7574-02] RIN 0648-AV59 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Revision of Vessel Monitoring System
(VMS)Requirements for Commercial Gulf Reef Fish Vessels AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to revise VMS requirements applicable to the commercial reef fish fishery in the Gulf of Mexico
(Gulf)and to revise the allowable methods for complying with the advance notification of landing requirement in the Gulf red snapper individual fishing quota
(IFQ)program. Regarding the VMS program, this final rule allows commercial reef fish vessel owners or operators to reduce the frequency of VMS transmissions while in port; extends the existing power-down exemption to include reef fish vessels while in port; and adds a grandfather clause to address VMS units approved for use in the Gulf reef fish fishery. Regarding the IFQ program, this final rule expands the allowable methods for communicating the required advance notification of landing. The intended effects of this final rule are to resolve an unanticipated technological problem with the VMS draining power from vessels that are in port without access to external power sources; provide a grandfather clause for previously approved Gulf reef fish VMS units; and facilitate compliance with the advance notification of landing requirement in the IFQ program. Finally, NMFS informs the public of the approval by the Office of Management and Budget
(OMB)of the collection-of-information requirements contained in this final rule and publishes the OMB control numbers for those collections. DATES: This rule is effective January 28, 2008. ADDRESSES: Copies of the Final Regulatory Flexibility Analysis
(FRFA)may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; e-mail *peter.hood@noaa.gov* . Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted in writing to Jason Rueter at the Southeast Regional Office address (above) and to David Rostker, OMB, by e-mail at *David_Rostker@omb.eop.gov* , or by fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail *peter.hood@noaa.gov* . SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). On August 6, 2007, NMFS published the proposed rule to revise VMS requirements applicable to the commercial Gulf reef fish fishery and revise the allowable methods for complying with the advance notification of landing requirement in the Gulf red snapper IFQ program and requested public comment (72 FR 43583). The rationale for the measures contained in this final rule is provided in the preamble to the proposed rule and is not repeated here. Comments and Responses *Comment 1:* Several commenters indicated the 4-hour in port reporting exemption, while it would reduce the overall power consumption by VMS units, was insufficient to address the VMS power drain issue addressed in this final rule. Commenters suggested reducing in-port reporting to less than once every 4 hours, for example, once every 12 hours. Other suggestions included using a vessel's ignition switch to power VMS units on and off, or tying VMS units to global positioning systems (GPS), so VMS only power on when vessels are in motion. *Response:* The 4-hour in port reporting exemption is designed to reduce battery power drain when vessels have returned from fishing activities. If the vessel is not used for an extended period of time, batteries could be drained while in port creating safety problems for vessels. Vendors of VMS units have indicated a 4-hour reporting interval, while in port and without access to external power sources, should reduce the battery drain sufficiently to solve this issue. However, for vessel owners/operators who anticipate their vessels to be inactive for longer periods, this rule also provides the ability for them to power down their VMS unit if in port or continuously out of the water for more than 72 hours. This can be accomplished through the power-down exemption from NMFS OLE. Once an owner/operator is authorized to use this exemption, they need only send a report via their vessel's VMS terminal to the NMFS OLE VMS program each time they meet the power-down exemption criteria and wish to power down their VMS unit. Revising the in port reporting interval to time periods longer than 4 hours would require VMS vendors to reconfigure their units to a time period longer than they recommend is needed to solve this problem. The power-down exemption provides owners/operators an alternative to the 4-hour in port reporting exemption to conserve battery power. Currently VMS units are tied to GPS such that if a vessel enters or leaves a port, the vessel's VMS unit recognizes this movement and activates the VMS accordingly (i.e., once every 4 hours in port or once every hour out of port). The rationale for requiring 1-hour position reports once a vessel is out of port, even when the vessel is not moving, is to ensure that vessel owners/operators are not engaging in illegal activities, such as anchoring in closed areas, or fishing during closed seasons. NMFS OLE currently does not allow VMS units to be powered on or off through the ignition system, and is not considering this as an allowable capability at this time. This could create another safety issue by draining battery power should the ignition switch be left on when the engine is not running. *Comment 2:* One commenter expressed concern about who will pay for VMS units to be reconfigured to allow in-port reporting, power-down exemption requests, trip declarations, and red snapper IFQ program 3-hour notifications. The commenter also expressed concern about the cost of the actual transmission of these reports through the VMS terminal. *Response:* Configuring VMS units to allow 4-hour in port reporting, as well as placing and upgrading OLE required forms on the VMS units, is paid for by NMFS. This includes forms for trip declarations, power-down exemptions, and red snapper IFQ 3-hour notifications. Actual notifications and power-down requests sent by owners/operators to NMFS OLE through their VMS units are paid by vessel owners/operators to their respective VMS communication provider. The cost of the transmission depends on the type of VMS unit and communication provider plan purchased by the vessel owner/operator. Forms developed by NMFS to transmit the required information are designed to minimize costs to the fishermen. Estimated cost per transmission of the NMFS-based forms is estimated to range between approximately 13 and 24 cents, based on the type of form. Trip declarations and IFQ 3-hour notifications may also be transmitted via phone and IFQ 3-hour notifications may be transmitted through the internet, on the red snapper IFQ website. For the power-down exemption, requests to power-down the VMS unit would require a report sent through the VMS unit. Depending on which VMS communication provider an owner/operator uses, powering down the VMS unit could result in a cost savings because position reports would not be sent during this time. *Comment 3:* One commenter expressed concern regarding how often power-down exemptions need to be requested. The commenter asked if power-downs could only be requested through the VMS unit, and how much time was required to approve an exemption request. *Response:* Power-down exemptions need only be applied for once and the letter authorizing the exemption is required to remain on the vessel when the VMS unit is powered down. Power-down exemption applications are available online at *http://sero.nmfs.noaa.gov/vms/vms.htm* or from OLE at NOAA Fisheries Service, Office for Law Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701. Approval for a power-down exemption should take no more than 5 days. Once a power-down exemption letter has been authorized for a vessel, an owner/operator will only need to successfully send a report via their VMS unit to NMFS OLE, containing the required information, prior to each power down. *Comment 4:* Two commenters suggested vessels having both a for-hire and commercial reef fish permit should be allowed to power down their VMS unit when fishing as a for-hire vessel in order to save power. *Response:* Current regulations state an owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit, even when under charter, must ensure that such vessel has an operating VMS unit approved by NMFS for use in the Gulf reef fish fishery on board at all times, regardless of whether the vessel is underway or in port, unless exempted by NMFS under the power down exemptions. *Comment 5:* Three commenters expressed concern that repairs to VMS units can be time consuming. Two of these commenters requested VMS vendors or fleet owners be allowed to carry “loaner” units to replace VMS units being serviced. *Response:* The time needed for a vendor to install a “loaner” VMS unit and for NMFS OLE to verify the unit is working properly will likely take more time than repairing a VMS unit. Current operating agreements with VMS vendors require vendors to state their operating procedures for VMS unit repairs. These repairs should be completed in a timely manner. If an owner or operator of a vessel experiences delays in the repair of their unit, they should report the details of the needed repair and problems encountered immediately to NMFS OLE. NMFS OLE will investigate the incident and work with the vendor and owner or operator of the VMS unit to rectify the problem. *Comment 6:* Several commenters expressed that VMS units are an unnecessary burden on commercial reef fish fishermen, creating both economic and social hardships. Additionally, several people commented that VMS units are not practical for smaller vessels, stating that these vessels rarely venture far enough offshore to enter closed areas and have little room to safely house the VMS units. *Response:* These comments fall outside the scope of this rule which only addresses VMS reporting requirements, VMS power-down exemptions, and red snapper IFQ 3-hour notification reporting methods. However, regulations implementing the Reef Fish FMP contains several area-specific measures in which fishing is restricted or prohibited to protect habitat, protect spawning aggregations, or reduce fishing pressure. Unlike size, bag, and trip limits, where the catch can be monitored when a vessel returns to port, area restrictions require at-sea enforcement. Because of the sizes of these areas and their distances from shore, the effectiveness of enforcement through over flights and at-sea interception is limited. VMS allows a more effective means to monitor vessels for intrusions into restricted areas, and could be an important component of a possible future electronic logbook system. VMS units were required on all commercial reef fish vessels rather than just larger vessels, such as longliners, because most of the area restrictions in the Gulf of Mexico, with the exception of the longline/buoy gear boundary and the stressed area boundary, apply to all gear types. The size of VMS units should not be a factor. The size of the computer and monitor of the system is no larger than other commonly used electronic equipment such as radios and fish-finders. *Comment 7:* Several commenters expressed concern about the security of vessel location data. *Response:* This comment falls outside the scope of this rule. Vessel location data may be disclosed to fishery managers and enforcement agents, or when required by a court order. Computers and monitors showing vessel location data are maintained in secure rooms, and access to these rooms is restricted to authorized personnel. Individuals may request vessel location data for their own permitted vessel(s). NMFS will respond to any other request for vessel location data consistent with the confidentiality provisions of the Magnuson-Stevens Act and the Freedom of Information Act, particularly Exemption (b)(4) pertaining to trade secrets or other confidential business information. Changes from the Proposed Rule In § 622.9(a)(2)(iv)(D), the requirement for an e-mail confirmation of a power-down authorization from NMFS OLE has been removed, and revised language has been added to require only that the person requesting the power-down exemption receive a confirmation, through the VMS terminal, that the power-down report was successfully delivered. NMFS believes that this revision will result in more timely and efficient processing of power-down exemption requests without compromising enforceability. Classification The Regional Administrator, Southeast Region, NMFS determined that this rule is necessary for the conservation and management of the commercial Gulf reef fish fishery and is consistent with the Magnuson-Stevens Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a FRFA for this final rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the analysis follows. This rule will allow vessels “in port” to send a VMS position report once every 4 hours, rather than every hour, and extend the VMS power-down exemption to vessels that are “in port,” subject to obtaining a letter of exemption and following OLE notification and confirmation procedures, rather than require removal of the vessel from the water (dry-docking) for the exemption. This rule will also allow continued use of a VMS unit that was previously approved for the Gulf reef fish fishery if that unit is subsequently removed from the approved list. This grandfathering is limited to the life of the grandfathered VMS unit. Once the grandfathered unit is no longer functional, a VMS unit from the approved list is required. Finally, this rule will broaden allowable methods for advance notification of landing in the commercial red snapper fishery. The objectives of this rule are to address an unanticipated technological problem in the VMS requirements for the Gulf of Mexico commercial reef fish fishery that could result in power drainage of vessels “in port” that lack an external power source, include a grandfather clause in the VMS requirements, and expand the methods for advance notification of landing in the commercial red snapper IFQ fishery. No significant economic issues were raised by public comments. Therefore, no changes were made in the final rule as a result of such comments. The VMS components of the rule will apply to all vessels permitted to operate in the Gulf of Mexico commercial reef fish fishery. Some for-hire vessels also participate in the commercial reef fish fishery, and this sector is included in the following description of affected entities. The advance notification of landing component of the rule will apply to only that subset of the commercial reef fish fishery vessels that also operate in the commercial red snapper IFQ fishery. The Small Business Administration
(SBA)has established size criteria for all major industry sectors in the U.S. including fish harvesters, for-hire operations, fish processors, and fish dealers. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined average annual total receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply and the average annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). Approximately 1,145 vessels are estimated to be permitted to operate in the Gulf of Mexico commercial reef fish fishery. Over the period 2001-2003, an average of 1,050 vessels per year landed an average total of 19.2 million lb (8.7 million kg) gutted weight
(GW)of Gulf reef fish per year with an ex-vessel value of $50.75 million (2006 dollars). Median annual reef fish landings were 5,705 lb (2,588 kg) per vessel. The median vessel took 12 trips per year, spent approximately 31 days at sea annually, and derived approximately 98 percent of its gross revenues from reef fish harvests. Median gross revenues from all species harvested by these vessels, which includes non-reef fish species, were approximately $19,000 (2006 dollars) for each of the 3 years. The commercial reef fish fishery is conducted using two primary gears, longlines and hand or vertical lines. Within the longline fleet, over the same period (2001-2003), an average of 166 vessels per year landed an average total of approximately 6.5 million lb (3.0 million kg) GW of reef fish per year with an ex-vessel value of approximately $17.64 million (2006 dollars). The median vessel took 14 trips per year, spent 113-121 days at sea annually, and derived approximately 97 percent of its gross revenues from reef fish harvests. Median gross revenues per year from all species harvested by these vessels ranged from approximately $109,000 (2006 dollars) to $115,000 (2006 dollars). Within the vertical-line fleet, over the same period (2001-2003), an average of 899 vessels per year landed an average total of approximately 11.6 million lb (5.3 million kg) GW of reef fish per year with an ex-vessel value of approximately $30.44 million (2006 dollars). The median vessel took 14 trips per year, spent 33-35 days at sea annually, and derived approximately 97 percent of its gross revenues from reef fish harvests. Median gross revenues from all species harvested by these vessels were approximately $15,000 (2006 dollars) for each of the 3 years. Alternative estimates derived from 1994 fishery data of the performance of vessels in this fishery show annual average gross and net revenues per vessel range from approximately $27,000 (2006 dollars) in gross revenues and $5,000 (2006 dollars) in net revenues for low-volume handline vessels to approximately $133,000 (2006 dollars) ($25,000 net) for high-volume longline vessels. These values are comparable to the more recent estimates of ex-vessel revenues and provide insight to net revenue estimates, which are not available from the more recent data. Vessels that operate in the commercial red snapper fishery are part of the commercial reef fish fishery and are included in the description of the reef fish vessels provided above. With the implementation of the two-class license system in the red snapper fishery in 1998, 764 vessels were licensed to participate in the commercial red snapper fishery, though only 616 vessels recorded landings through 2004. Summary statistics specific to the red snapper fishery comparable to those of the reef fish fishery as a whole are not available. Further, substantial changes in the composition and characteristics of the commercial red snapper fleet are anticipated to develop under the IFQ program implemented in January 2007. Projections of fleet size under the IFQ program, which are expected to result from consolidation of quota shares, do not exceed 100 vessels. Total fleet-wide net revenues to owners, captain and crew from all species harvested by vessels operating in the red snapper fishery are estimated to range from approximately $14.5 million (2006 dollars) to approximately $26 million (2006 dollars) under annual total allowable catch
(TAC)levels for harvest from all sectors of 5.0 million lb (2.3 million kg) and 9.12 million lb (4.14 million kg), respectively, of which the commercial fishery is allocated 51 percent of the TAC. Based on these revenue projections, the average net revenue per vessel would range from $145,000 to $260,000 (2006 dollars) if the fleet consolidates to 100 vessels, or $290,000 to $520,000 (2006 dollars) if the fleet consolidates to 50 vessels. Approximately 237 vessels permitted to participate as for-hire vessels (charterboats or headboats) also possess commercial reef fish permits. While these vessels are included in the description of commercial vessels provided above, in general, for-hire vessels would be expected to have different production profiles than vessels that operate exclusively as commercial vessels. Production characteristics likely vary by the extent to which a vessel operated primarily as a commercial vessel or a for-hire vessel. However, information is only available on the for-hire fleet as a whole, and production characteristics for vessels that operate in both commercial fisheries and the for-hire fishery are unknown. On average, charterboats, which charge a fee on a boat-wide basis, generate approximately $82,000 (2006 dollars) in annual revenues and approximately $39,000 in annual operating profits. The average headboat, which charges a fee on the individual passenger
(head)basis, generates approximately $431,000 (2006 dollars) in annual revenues and approximately $361,000 in annual operating profits. Some fleet activity exists in the commercial red snapper fishery and in the commercial finfish fisheries in general, but the extent of such activity is unknown. The maximum number of reef fish permits reported owned by the same entity is six permits. Additional affiliation may exist between permits (and the revenues associated with those permits) and an entity, but cannot be identified using existing data. Given the average economic performance provided above, NMFS determines that all entities operating in the Gulf of Mexico commercial reef fish fishery are, for purposes of this analysis, to be small business entities. This rule will reduce current electronic reporting requirements when a vessel is “in port” and simplify conditions for power-down exemptions. The requirement for these vessels to have a type-approved VMS unit would remain, and the operation of these units does not require specialized skill. The email notification requirements and power-down exemption application procedures will remain and do not require special skills. The expansion of landing notification methods will encompass other electronic means. The commercial red snapper IFQ program was designed around and requires an electronic environment in order to set up accounts and manage transactions. Therefore, the new methods are unlikely to require new or special skills by fishery participants. Further, no single method will be required, such that a participant could select the method that best fits his skills and circumstances. All Gulf of Mexico commercial reef fish permitted vessels will be affected by this rule. Since all of these vessels have been determined for the purpose of this analysis to be small business entities, it is determined that this rule is expected to affect a substantial number of small entities. Since all entities that will be affected by this rule have been determined to be small business entities, the issue of disproportionality of impacts between large and small entities does not arise. No direct or indirect adverse economic effects on any affected entities are expected to occur as a result of this rule. Therefore, no reductions in profitability for any entities are expected. This rule will reduce the frequency with which the required VMS units will be required to send an electronic location signal when vessels are “in port” and not actively fishing. This is expected to reduce the power requirements for vessel operation, reducing the likelihood of battery drainage and compromised vessel operation and safety. This rule will also expand qualification conditions for vessels seeking power-down exemptions to the VMS operating requirements to apply to vessels being “in port” and not require removal of the vessel from the water (dry-docking). This is expected to further reduce the power requirements and compliance costs to qualify for exemption, since vessels could remain on the water. Allowing the continued use of a VMS unit that is removed from the list of type-approved units is expected to reduce the need to replace units before the end of their service life, allowing vessels to receive the full economic benefits of their unit. Finally, expanding the methods that vessels in the commercial red snapper fishery can use to satisfy the advance landing notification requirements is expected to reduce the likelihood that unloading and sale of their harvests would be delayed, thereby avoiding the costs of such delay and increasing the profitability of their operation. The alternative considered to the rule was the status quo, or no action. The status quo would maintain current VMS program requirements, maintain the current unanticipated technological problem associated with potential power drainage, require vessels to replace VMS units that were previously type-approved but are removed from the approved list, and limit vessels in the commercial red snapper fishery to a single method of satisfying the advance landing notification requirement. Thus, the status quo would not achieve the NMFS objectives. This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act
(PRA)and which have been approved by OMB under Control Number 0648-0544 for VMS reporting requirements and Control Number 0648-0551 for Gulf red snapper IFQ reporting requirements. Public reporting for the VMS-related requirements is estimated to average 24 seconds for transmission of position reports and 10 minutes for submission of requests for power-down exemptions. Public reporting for the IFQ-related advance notification of landing is estimated to average 3 minutes. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing burden hours, to NMFS (see ADDRESSES ) and by email to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: December 20, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 622.9, paragraph (a)(2) is revised to read as follows: § 622.9 Vessel monitoring systems (VMSs).
(a)* * *
(2)*Gulf reef fish.* The VMS requirements of this paragraph (a)(2) apply throughout the Gulf of Mexico and adjacent states.
(i)*General VMS requirement.* An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit even when under charter, must ensure that such vessel has an operating VMS approved by NMFS for use in the Gulf reef fish fishery on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power-down exemptions specified in paragraph (a)(2)(iv) of this section and in the NOAA Enforcement Vessel Monitoring System Requirements for the Reef Fish Fishery of the Gulf of Mexico. This NOAA Enforcement Vessel Monitoring System Requirements document is available from NMFS, Office for Law Enforcement (OLE), Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. NMFS OLE maintains a current list of approved VMS units and communication providers which is available from the VMS Support Center, NMFS OLE, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910 or by calling toll free 888-219-9228. If a VMS unit approved for the Gulf reef fish fishery is removed from the approved list by NMFS OLE, a vessel owner who purchased and installed such a VMS unit prior to its removal from the approved list will be considered to be in compliance with the requirement to have an approved unit, unless otherwise notified by NMFS OLE. At the end of a VMS unit's service life, it must be replaced with a currently approved unit for the fishery.
(ii)*Hourly reporting requirement.* An owner or operator of a vessel subject to the requirements of paragraph (a)(2) of this section must ensure that the required VMS unit transmits a signal indicating the vessel's accurate position at least once an hour, 24 hours a day every day unless exempted under paragraphs (a)(2)(iii) or
(iv)of this section.
(iii)*In-port exemption.* While in port, an owner or operator of a vessel with a type-approved VMS unit configured with the 4-hour reporting feature may utilize the 4-hour reporting feature rather than comply with the hourly reporting requirement specified in paragraph (a)(2)(ii) of this section. Once the vessel is no longer in port, the hourly reporting requirement specified in paragraph (a)(2)(ii) of this section applies. For the purposes of this paragraph (a)(2) of this section, “in port” means secured at a land-based facility, or moored or anchored after the return to a dock, berth, beach, seawall, or ramp.
(iv)*Power-down exemptions.* An owner or operator of a vessel subject to the requirement to have a VMS operating at all times as specified in paragraph (a)(2)(i) of this section can be exempted from that requirement and may power down the required VMS unit if--
(A)The vessel will be continuously out of the water or in port, as defined in paragraph (a)(2)(iii) of this section, for more than 72 consecutive hours;
(B)The owner or operator of the vessel applies for and obtains a valid letter of exemption from NMFS OLE VMS personnel as specified in the NOAA Enforcement Vessel Monitoring System Requirements for the Reef Fish Fishery of the Gulf of Mexico. This is a one-time requirement. The letter of exemption must be maintained on board the vessel and remains valid for all subsequent power-down requests conducted consistent with the provisions of paragraphs (a)(2)(iv)(C) and
(D)of this section.
(C)Prior to each power-down, the owner or operator of the vessel files a report to NMFS OLE VMS program personnel, using the VMS unit's e-mail, that includes the name of the person filing the report, vessel name, vessel U.S. Coast Guard documentation number or state registration number, commercial vessel reef fish permit number, vessel port location during VMS power down, estimated duration of the power down exemption, and reason for power down; and
(D)The owner or operator enters the power-down code through the use of the VMS Declaration form on the terminal and, prior to powering down the VMS, receives a confirmation, through the VMS terminal, that the form was successfully delivered.
(v)*Declaration of fishing trip and gear.* Prior to departure for each trip, a vessel owner or operator must report to NMFS any fishery the vessel will participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. This information may be reported to NMFS using the toll-free number, 888-219-9228, or via an attached VMS terminal. 3. In § 622.16, paragraph (c)(3)(i) is revised to read as follows: § 622.16 Gulf red snapper individual fishing quota
(IFQ)program.
(c)* * *
(3)* * *
(i)*Advance notice of landing.* For the purpose of this paragraph, landing means to arrive at a dock, berth, beach, seawall, or ramp. The owner or operator of a vessel landing IFQ red snapper is responsible for ensuring that NMFS is contacted at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing and the name of the IFQ dealer where the red snapper are to be received. Authorized methods for contacting NMFS and submitting the report include calling NMFS Office for Law Enforcement at 1-866-425-7627, completing and submitting to NMFS the notification form provided through the VMS unit, or providing the required information to NMFS through the web-based form available on the IFQ website at ifq.sero.nmfs.noaa.gov. As new technology becomes available, NMFS will add other authorized methods for complying with the advance notification requirement, via appropriate rulemaking. Failure to comply with this advance notice of landing requirement is unlawful and will preclude authorization to complete the landing transaction report required in paragraph (c)(1)(iii) of this section and, thus, will preclude issuance of the required transaction approval code. [FR Doc. E7-25068 Filed 12-26-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070809451-7644-02] RIN 0648-AV79 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 42 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This rule corrects and clarifies a number of inadvertent errors, omissions, and ambiguities in the regulations implemented by recent actions taken under the Northeast
(NE)Multispecies Fisheries Management Plan (FMP), including Amendment 5, Framework Adjustment
(FW)38, Amendment 13, FW 40-A, FW 41, and FW 42. The measures corrected or clarified by this rule ensure that the current regulations maintain consistency with, and accurately reflect, the intent of measures adopted by the New England Fishery Management Council (Council) and approved and implemented by the Secretary of Commerce (Secretary). DATES: Effective January 28, 2008. ADDRESSES: Copies of the Regulatory Impact Review
(RIR)prepared for this action are available upon request from the Regional Administrator at the above address. Copies of the environmental assessments
(EAs)prepared for FW 38, 40-A, FW 41, FW 40-A, and FW 42; and the supplemental environmental impact statements
(SEIS)prepared for Amendments 5 and 13 may be obtained from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The FSEIS/RIR for Amendment 13 and the EA/RIRs for FW 42, FW 41, and FW 40-A are also accessible via the Internet at *http://www.nefmc.org* . Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy Analyst, phone
(978)281-9141, fax
(978)281-9135. SUPPLEMENTARY INFORMATION: Background Upon review of regulations implemented by the FW 42 final rule (October 23, 2006; 71 FR 62156), NMFS found that the current regulations contained several inadvertent errors, omissions, and ambiguities that appear to be inconsistent with the measures adopted by the Council and approved by the Secretary. Errors were found not only in the regulations implemented by the FW 42 final rule, but also in regulations implemented by other recent management actions under the FMP, including final rules implementing Amendments 5 (March 1, 1994; 59 FR 9872) and 13 (April 27, 2004; 69 FR 22906), FW 38 (July 9, 2003; 68 FR 40808), FW 40-A (November 19, 2004; 69 FR 67780), and FW 41 (September 14, 2005; 70 FR 54302). Pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS proposed measures intended to correct errors identified in the current regulations, revise specific measures to facilitate administration of such measures, and clarify or modify the current regulations to maintain consistency with FW 42 and other previous actions under the FMP. Accordingly, NMFS published a proposed rule in the **Federal Register** on October 16, 2007 (72 FR 58622) with public comments accepted through October 31, 2007. Measures Revised by this Rule The details of the rationale behind the need for the corrections/clarifications to the measures revised by this action were included in the preamble to the proposed rule for this action and are not repeated here. A description of these revisions follows. 1. Definitions for Lessee, Lessor, Transferee, and Tranferor This rule inserts definitions for the terms “lessee,” “lessor,” “transferee,” and “transferor,” into the current regulations at 50 CFR 648.2 to clarify the applicability of the Days-at-Sea
(DAS)Leasing and Transfer Program provisions. 2. Vessel Monitoring System
(VMS)Notification Requirements This rule modifies the VMS notification requirements at § 648.10(b)(2) to specify that NMFS will send letters specifying the procedures pertaining to VMS purchase, installation, and use to all affected permit holders, as necessary. For example, NMFS would send letters specifying VMS procedures if declaration menus or reporting requirements change as a result of a regulatory action, or as a reminder of current requirements to clarify observed operator errors and increase compliance with VMS requirements. In addition, this rule specifies that vessels required, or electing, to use VMS are subject to the VMS usage requirements outlined in any previous and future permit holder letter. Finally, this action inserts a new provision at § 648.10(b)(5) to clarify that vessels using VMS must declare the vessel's intended fishing activity via VMS prior to leaving port before each fishing trip. These revisions are made to help eliminate any ambiguity in the current regulations regarding the applicability of the VMS notification requirements. 3. Gulf of Maine
(GOM)Grate Raised Footrope Trawl Exempted Whiting Fishery Prohibitions This action inserts a reference to the GOM Grate Raised Footrope Trawl Exempted Whiting Fishery at § 648.80(a)(16) to the prohibitions at § 648.14(a)(35) and (a)(43). 4. In-season Action Prohibition This action implements a provision at § 648.14(a)(78) prohibiting vessels from violating the requirements of an in-season action to increase the ability to enforce measures implemented by an in-season action. 5. Georges Bank
(GB)Seasonal Closure Area Applicability The exemption from the GB Seasonal Closure Area for vessels participating in the Eastern U.S./Canada Haddock Special Access Program
(SAP)specified at § 648.81(g)(2)(iv) is removed, as it is no longer necessary now that the Eastern U.S./Canada Haddock SAP opens after the GB Seasonal Closure Area expires on May 31. 6. DAS Leasing Program Application Requirements This action reinserts the DAS Leasing Program application requirements and the authority of the Regional Administrator to approve or disapprove DAS leasing applications specified at § 648.82(k)(3)(i) through
(iii)that were inadvertently removed by the FW 42 final rule. 7. VMS Positional Polling Rates for U.S./Canada Management Area This action removes references to an increased VMS positional polling rate for vessels participating in the U.S./Canada Management Area at §§ 648.9(c)(1)(ii), 648.10(b)(2)(iii), and 648.85(a)(3)(i) because NMFS does not have the technical capacity to automatically change a vessel's VMS positional polling rate based on its intended fishing activity, and the Council did not specifically recommend that NE multispecies vessels must pay for a higher VMS polling rate while fishing in the U.S./Canada Management Area. 8. Haddock Total Allowable Catch
(TAC)in the Closed Area
(CA)I Hook Gear Haddock SAP To accurately reflect the provisions adopted by the Council and implemented under the FW 41 final rule and to effectively administer the Closed Area I Hook Gear Haddock SAP, this action reinserts the FW 41 provisions at § 648.85(b)(7)(iv)(F) that were inadvertently removed by the FW 42 final rule. These provisions distribute the haddock TAC between the two seasons of the SAP and allow the Regional Administrator to adjust the quota to each season to account for under- or over-harvest of the haddock TAC during the first season of the SAP. 9. White Hake Trip Limits This action corrects the white hake trip limit found at § 648.86(e) to accurately reflect the 1,000-lb (453.6-kg)/DAS, up to 10,000-lb (4,536-kg)/ trip white hake trip limit adopted by the Council in FW 42. 10. Approval of Sector Applications This action revises the existing sector approval regulations at § 648.87(c)(1) and
(2)by removing the absolute requirement to develop a proposed rule, but indicates that sectors would be approved “consistent with applicable law.” This would allow NMFS to waive opportunity for public comment in very limited circumstances, consistent with the requirements of the Administrative Procedure Act. 11. Recreational Fish Size Restrictions This action applies the skin-on provision outlined for commercial vessels at § 648.83(a)(2) to both party/charter and recreational vessels by inserting a similar provision at § 648.89(b)(4). This clarifies the minimum fish size restrictions applicable to party/charter and private recreational vessels, as intended in Amendment 5. 12. Additional Corrections In addition to the changes specified above, the following changes to the regulations, as amended by the final rule implementing FW 42, are implemented to correct inaccurate references and to further clarify the intent of FW 42 and previous actions. The changes listed below are in the order in which they appear in the regulations. In § 648.4(c)(2)(iii)(A), the reference to the annual designation as either a Day or Trip gillnet vessel at “§ 648.82(k)” is corrected to read “§ 648.82(j).” In § 648.14, the reference to “§ 648.81(d)” in paragraph (a)(38) is corrected to reference the transiting provision at § 648.81(i); the reference to “§ 648.81(b)(2)(i)” in paragraph (a)(39) is corrected to reference the transiting provision at § 648.81(i); the reference to “§ 648.51(a)(2)(ii) and (e)(2)” in paragraph (a)(53) is corrected to reference the gear stowage provisions at § 648.23(b); the reference to “§ 648.85(b)(6)” in paragraph (a)(153) is corrected to read “§ 648.85(b)(4);” the reference to “§ 648.86(g)(1)(i) or (g)(2)(i)” in paragraph (b)(3) is revised to read “§ 648.86(g)(1);” the reference to “§ 648.86(g)(1)(i) or (g)(2)(i)” and “§ 648.81(g)(1)(ii) and (g)(2)(ii)” in paragraph (b)(4) is corrected to read “§ 648.86(g)(1);” the reference to “§ 648.86(b)(1)(i)” in paragraph (c)(24) is corrected to read “§ 648.86(b)(1);” and the reference to “§ 648.86(b)(2)(ii) or (iii)” in paragraph (c)(26) is corrected to read “§ 648.86(b)(2).” In § 648.80(b)(2)(vi), the reference to “(a)(11)(i)(A) and (B)” in the introductory text is corrected to read “(b)(11)(i)(A) and (B).” In § 648.82(e)(1), the reference to “§ 648.10(c)(5)” is corrected to read “§ 648.10.” In § 648.85, the reference to “§ 648.94(b)(7)” in paragraph (b)(6)(iv)(D) is revised to read “§ 648.94(b)(3);” and the references to “§ 648.85(b)(7)(iv)(G)” in paragraphs (b)(7)(iii), (b)(7)(v)(D), and (b)(7)(vi)(D) are corrected to read “§ 648.85(b)(7)(iv)(F).” In addition, reference to specific stock areas at § 648.85(b)(6)(v) is added to § 648.85(b)(6)(iv)(D) to clarify that the landing limits specified in this paragraph apply to particular stock areas. Further, reference to § 648.10 is inserted at § 648.85(b)(7)(iv)(A) to clarify how DAS would be counted in the Closed Area I Hook Gear Haddock SAP. Finally, § 648.85(b)(7)(vi)(G) through
(I)are removed. In § 648.86(i), the references to “§ 648.85(a)(3)(iv)” and “§ 648.85(a)(6)(iv)(D)” are corrected to read “§ 648.85.” In § 648.92, paragraph (b)(2)(iii) is deleted, as this repeats the regulations at § 648.92(b)(2)(ii) and is not necessary. Comments and Responses One comment with three issues regarding the proposed action was received from one industry group during the comment period. A summary of the issues raised by the commenter and the associated NMFS response follows. GB seasonal Closure Area Applicability *Comment 1* : The commenter supported removal of the exemption to the GB Seasonal Closure Area, provided access to the Eastern U.S./Canada Haddock SAP Area is allowed prior to August 1 for approved gears, including hook gear. *Response* : As explained in the preamble to the proposed rule for this action, the exemption from the seasonal closure is no longer necessary, as the SAP currently opens after the seasonal closure expires. No vessels are allowed into the Eastern U.S./Canada Haddock SAP Area prior to the opening date of the SAP on August 1. Therefore, because Council action is required to further revise the opening date of the SAP, NMFS cannot allow any vessels, including those using gear approved for use in the SAP, into the SAP Area before August 1. Further, hook gear is not considered an approved gear for this SAP at this time and cannot be used in the SAP Area under the SAP provisions. However, a vessel may fish with hook gear in the Eastern U.S./Canada Area, an area that includes all of the SAP Area except a portion of the Area contained within Closed Area II, beginning May 1 of each fishing year under the provisions of the Regular B DAS Program (if fishing under a Regular B DAS) and/or the U.S./Canada Resource Sharing Understanding, unless otherwise notified. As a result, this action removes the exemption to the GB Seasonal Closure Area, but does not allow vessels fishing with hook gear or any other gear into the SAP Area prior to August 1. Haddock TAC in the Closed Area I Hook Gear Haddock SAP *Comment 2* : The commenter supported reinserting the Closed Area I Hook Gear Haddock SAP provisions that were inadvertently removed. *Response* : This action reinserts the SAP measures that were inadvertently removed. Approval of Sector Applications *Comment 3* : The commenter noted the impacts of delays in the approval of sector operations during previous fishing years and supports efforts to streamline the process, including the pursuit of notice action rather than proposed rulemaking, especially if sector measures do not change between fishing years. However, this group suggested that public comment is warranted for new sectors or substantive exemptions. *Response* : As specified in the preamble to the proposed rule for this action, the Administrative Procedure Act allows public comment to be waived in very limited circumstances. Regulations at § 648.87(c)(1) require NMFS to solicit public comment on a sector operations plan. To increase the likelihood that sector operations plans will be approved in a timely manner under unforeseen circumstances precluding opportunity for comment, this action eliminates the absolute requirement publish a proposed rule. Changes from the Proposed Rule One change to the proposed rule has been made to further clarify a measure originally implemented by a December 27, 2005, final rule (70 FR 76422). That rule implemented a provision clarifing that NE multispecies vessels must offload species regulated by a daily landing limit (i.e., lbs per DAS) prior to leaving port to begin a subsequent fishing trip. That provision was necessary to effectively enforce such landing limits by prohibiting a vessel from beginning a trip while possessing more than 1-day's worth of a species regulated by a daily landing limit at the start of a subsequent fishing trip. Although this intent was clearly reflected in the January 17, 2006, permit holder letter describing the measures corrected by that correction rule, the corresponding regulation failed to specify that a vessel may retain up to 1-day's worth of a species regulated by a daily landing limit. Accordingly, this final rule revises the regulations at § 648.86(i) to indicate that a vessel must offload species in excess of the daily landing limit prior to leaving port and beginning a subsequent fishing trip and may retain on board up to 1-day's worth of a species regulated by a daily landing limit, provided the vessel abides by the overall trip limit for such species during the subsequent trip. Classification Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the measures outlined in the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows: The proposed action would correct/clarify the existing regulations to ensure that the current regulations accurately reflect measures adopted by the New England Fishery Management Council and approved by the Secretary of Commerce. This action would ensure that the economic impacts analyzed in previous actions would be realized, but would not impose any additional economic impacts on affected entities. The proposed action would not significantly reduce profit for affected vessels, as the proposed measures are either administrative in nature and would not affect vessel operations, or would have no economic impact beyond that previously analyzed. For example, FW 42 indicated that declarations of a vessel's intended activity via VMS prior to each trip would cost groundfish vessels approximately $0.50 per declaration, or about $15,000 per year. In addition, Amendment 13 indicated that the U.S./Canada Management Area gear requirements would cost participating vessels $7,500 for a modified flounder net, or $747 to comply with the haddock separator trawl requirement. This action would simply clarify or reinstate such requirements, respectively, but would not increase costs associated with these measures. Other measures corrected or clarified by this action would ensure that unnecessary costs, such as the costs for higher VMS positional polling rates, are eliminated or that vessels would be able to fully realize the economic benefits of special management programs by correctly distributing the available haddock resources in the Closed Area I Hook Gear Haddock SAP. As a result, neither an initial, nor a final, regulatory flexibility analysis was required and none have been prepared. This final rule contains a number of collection-of-information requirements subject to the Paperwork Reduction Act
(PRA)which have been approved by OMB as follows: 1. VMS purchase and installation, OMB #0648-0202, (1 hr/response); 2. VMS proof of installation, OMB #0648-0202, (1 hr/response); 3. Automated VMS polling of vessel position, OMB #0648-0202, (5 sec/response); 4. Area and DAS declarations via VMS, OMB #0648-0549 (5 min/response); 5. Standardized catch reporting requirements, OMB #0648-0212 (15 min/response); 6. Sector manager daily reports for CA I Hook Gear Haddock SAP, OMB #0648-0212, (2 hr/response); 7. DAS Leasing Program application, OMB #0648-0202, (5 min/response); 8. Annual declaration to participate in the CA I Hook Gear Haddock SAP, OMB #0648-0202, (2 min/response); 9. Sector allocation proposal, OMB #0648-0202, (50 hr/response); and 10. Sector operations plan submission, OMB #0648-0202, (50 hr/response). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This action does not create new information collections or modify the response time associated with any of the information collection referenced above. Instead, this action revises the regulations underlying these information collections to correct inadvertent errors, omissions, and ambiguities in the current regulations, as described in the preamble of this rule. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting. Dated: December 19, 2007 Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs,National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.2, definitions for “lessee,” “lessor,” “transferee,” and “transferor” are added, in alphabetical order, to read as follows: § 648.2 Definitions. *Lessee* means a vessel owner who receives temporarily transferred NE multispecies DAS from another vessel through the DAS Leasing Program specified at § 648.82(k). *Lessor* means a vessel owner who temporarily transfers NE multispecies DAS to another vessel through the DAS Leasing Program specified at § 648.82(k). *Transferee* means a vessel owner who receives permanently transferred NE multispecies DAS and potentially other permits from another vessel through the DAS Transfer Program specified at § 648.82(l). *Transferor* means a vessel owner who permanently transfers NE multispecies DAS and potentially other permits to another vessel through the DAS Transfer Program specified at § 648.82(l). 3. In § 648.4, paragraph (c)(2)(iii)(A) is revised to read as follows: § 648.4 Vessel permits.
(c)* * *
(2)* * *
(iii)* * *
(A)For vessels fishing for NE multispecies with gillnet gear, with the exception of vessels fishing under the Small Vessel permit category, an annual declaration as either a Day or Trip gillnet vessel designation as described in § 648.82(j). A vessel owner electing a Day or Trip gillnet designation must indicate the number of gillnet tags that he/she is requesting, and must include a check for the cost of the tags. A permit holder letter will be sent to the owner of each eligible gillnet vessel, informing him/her of the costs associated with this tagging requirement and providing directions for obtaining tags. Once a vessel owner has elected this designation, he/she may not change the designation or fish under the other gillnet category for the remainder of the fishing year. Incomplete applications, as described in paragraph
(e)of this section, will be considered incomplete for the purpose of obtaining authorization to fish in the NE multispecies gillnet fishery and will be processed without a gillnet authorization. § 648.9 [Amended] 4. In § 648.9, remove and reserve paragraph (c)(1)(ii). 5. In § 648.10, the introductory text of paragraph (b)(2), and paragraph (b)(2)(iii) are revised; and paragraph (b)(5) is added to read as follows: § 648.10 DAS and VMS notification requirements.
(b)* * *
(2)The owner of such a vessel specified in paragraph (b)(1) of this section, with the exception of a vessel issued a limited access NE multispecies permit as specified in paragraph (b)(1)(vi) of this section, must provide documentation to the Regional Administrator at the time of application for a limited access permit that the vessel has an operational VMS unit installed on board that meets the minimum performance criteria, unless otherwise allowed under this paragraph (b). If a vessel has already been issued a limited access permit without the owner providing such documentation, the Regional Administrator shall allow at least 30 days for the vessel to install an operational VMS unit that meets the criteria and for the owner to provide documentation of such installation to the Regional Administrator. The owner of a vessel issued a limited access NE multispecies permit that fishes or intends to fish under a Category A or B DAS as specified in paragraph (b)(1)(vi) of this section must provide documentation to the Regional Administrator that the vessel has an operational VMS unit installed on board that meets those criteria prior to fishing under a groundfish DAS. NMFS shall send letters to all affected permit holders providing detailed information on the procedures pertaining to VMS purchase, installation, and use.
(iii)DAS counting for a vessel that is under the VMS notification requirements of this paragraph (b), with the exception of vessels that have elected to fish exclusively in the Eastern U.S./Canada Area on a particular trip, as described in this paragraph (b), begins with the first location signal received showing that the vessel crossed the VMS Demarcation Line after leaving port. DAS counting ends with the first location signal received showing that the vessel crossed the VMS Demarcation Line upon its return to port. For those vessels that have elected to fish exclusively in the Eastern U.S./Canada Area pursuant to § 648.85(a)(3)(ii), the requirements of this paragraph
(b)begin with the first location signal received showing that the vessel crossed into the Eastern U.S./Canada Area and end with the first location signal received showing that the vessel crossed out of the Eastern U.S./Canada Area upon beginning its return trip to port, unless the vessel elects to also fish outside the Eastern U.S./Canada Area on the same trip, in accordance with § 648.85(a)(3)(ii)(A).
(5)VMS notification requirements for other fisheries. Unless otherwise specified in this part, or via letters sent to affected permit holders under paragraph (b)(2) of this section, the owner or authorized representative of a vessel that is required to use VMS, as specified in paragraph (b)(1) of this section, must notify the Regional Administrator of the vessel's intended fishing activity by entering the appropriate VMS code prior to leaving port at the start of each fishing trip. Notification of a vessel's intended fishing activity includes, but is not limited to, gear and DAS type to be used; area to be fished; and whether the vessel will be declared out of the DAS fishery, or will participate in the NE multispecies and monkfish DAS fisheries, including approved special management programs. A vessel cannot change any aspect of its VMS activity code outside of port, except that NE multispecies vessels are authorized to change the category of DAS used (i.e., flip its DAS), as provided at § 648.85(b), or change the area declared to be fished so that the vessel may fish both inside and outside of the Eastern U.S./Canada Area on the same trip, as provided at § 648.85(a)(3)(ii)(A). VMS activity codes and declaration instructions are available from the Regional Administrator upon request. 6. In § 648.14, paragraphs (a)(35), (a)(38), (a)(39), (a)(43), (a)(53), (a)(153), (b)(3), (b)(4), (c)(24), and (c)(26) are revised and paragraph (a)(78) is added to read as follows: § 648.14 Prohibitions.
(a)* * *
(35)Fish with, use, or have on board, within the areas described in § 648.80(a)(1) and (2), nets with mesh size smaller than the minimum mesh size specified in § 648.80(a)(3) and (4), except as provided in § 648.80(a)(5) through (8), (a)(9), (a)(10), (a)(15), (a)(16), (d), (e), and (i), unless the vessel has not been issued a NE multispecies permit and fishes for NE multispecies exclusively in state waters, or unless otherwise specified in § 648.17.
(38)Enter or be in the area described in § 648.81(a)(1) on a fishing vessel, except as provided in § 648.81(a)(2) and (i).
(39)Enter or be in the area described in § 648.81(b)(1) on a fishing vessel, except as provided in § 648.81(b)(2) and (i).
(43)Violate any of the provisions of § 648.80, including paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; (a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the Raised Footrope Trawl Exempted Whiting Fishery; (a)(16) the GOM Grate Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small mesh); (b)(5); the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little Tunny Gillnet Exemption Area; and (b)(11), the SNE Scallop Dredge Exemption Area. Each violation of any provision in § 648.80 constitutes a separate violation.
(53)Possess, land, or fish for regulated species, except winter flounder as provided for in accordance with § 648.80(i) from or within the areas described in § 648.80(i), while in possession of scallop dredge gear on a vessel not fishing under the scallop DAS program as described in § 648.53, or fishing under a general scallop permit, unless the vessel and the dredge gear conform with the stowage requirements of § 648.23(b), or unless the vessel has not been issued a multispecies permit and fishes for NE multispecies exclusively in state waters.
(78)Violate any provision of an in-season action to adjust trip limits, gear usage, season, area access and/or closure, or any other measure authorized by this part.
(153)If fishing under the SNE/MA Winter Flounder SAP described in § 648.85(b)(4), fail to comply with the restrictions and conditions under § 648.85(b)(4)(i) through (iv).
(b)* * *
(3)While fishing in the areas specified in § 648.86(g)(1) with a NE multispecies Handgear A permit, or under the NE multispecies DAS program, or under the limited access monkfish Category C or D permit provisions, possess yellowtail flounder in excess of the limits specified under § 648.86(g)(1), unless fishing under the recreational or charter/party regulations, or transiting in accordance with § 648.23(b).
(4)If fishing in the areas specified in § 648.86(g)(1) with a NE multispecies Handgear A permit, or under the NE multispecies DAS program, or under the limited access monkfish Category C or D permit provisions, fail to comply with the requirements specified in § 648.81(g)(1).
(c)* * *
(24)Enter port, while on a NE multispecies DAS trip, in possession of more than the allowable limit of cod specified in § 648.86(b)(1), unless the vessel is fishing under the cod exemption specified in § 648.86(b)(4).
(26)Enter port, while on a NE multispecies DAS trip, in possession of more than the allowable limit of cod specified in § 648.86(b)(2). 7. In § 648.80, paragraph (b)(2)(vi) is revised to read as follows: § 648.80 NE multispecies regulated mesh areas and restrictions on gear and methods of fishing.
(b)* * *
(2)* * *
(vi)*Other restrictions and exemptions* . Vessels are prohibited from fishing in the SNE Exemption Area, as defined in paragraph (b)(10) of this section, except if fishing with exempted gear (as defined under this part) or under the exemptions specified in paragraphs (b)(3), (b)(5) through (9), (b)(11), (c), (e), (h), and
(i)of this section; or if fishing under a NE multispecies DAS, if fishing under the Small Vessel or Handgear A exemptions specified in § 648.82(b)(5) and (b)(6), respectively; or if fishing under a scallop state waters exemption specified in § 648.54; or if fishing under a scallop DAS in accordance with paragraph
(h)of this section; or if fishing under a General Category scallop permit in accordance with paragraphs (b)(11)(i)(A) and
(B)of this section; or if fishing pursuant to a NE multispecies open access Charter/Party or Handgear permit; or if fishing as a charter/party or private recreational vessel in compliance with the regulations specified in § 648.89. Any gear on a vessel, or used by a vessel, in this area must be authorized under one of these exemptions or must be stowed as specified in § 648.23(b). § 648.81 [Amended] 8. In § 648.81, remove paragraph (g)(2)(iv). 9. In § 648.82, paragraph (e)(1) is revised and paragraphs (k)(3)(i) through
(iii)are added to read as follows: § 648.82 Effort-control program for NE multispecies limited access vessels.
(e)* * *
(1)When a vessel is participating in the DAS program, as required by the regulations, DAS shall accrue to the nearest minute and, with the exceptions described under this paragraph
(e)and paragraph (j)(1)(iii) of this section, shall be counted as actual time called, or logged into the DAS program, consistent with the DAS notification requirements specified at § 648.10.
(k)* * *
(3)* * *
(i)*Application information requirements* . An application to lease Category A DAS must contain the following information: Lessor's owner name, vessel name, permit number and official number or state registration number; Lessee's owner name, vessel name, permit number and official number or state registration number; number of NE multispecies DAS to be leased; total priced paid for leased DAS; signatures of Lessor and Lessee; and date form was completed. Information obtained from the lease application will be held confidential, according to applicable Federal law. Aggregate data may be used in the analysis of the DAS Leasing Program.
(ii)*Approval of lease application* . Unless an application to lease Category A DAS is denied according to paragraph (k)(3)(iii) of this section, the Regional Administrator shall issue confirmation of application approval to both Lessor and Lessee within 45 days of receipt of an application.
(iii)*Denial of lease application* . The Regional Administrator may deny an application to lease Category A DAS for any of the following reasons, including, but not limited to: The application is incomplete or submitted past the March 1 deadline; the Lessor or Lessee has not been issued a valid limited access NE multispecies permit or is otherwise not eligible; the Lessor's or Lessee's DAS are under sanction pursuant to an enforcement proceeding; the Lessor's or Lessee's vessel is prohibited from fishing; the Lessor's or Lessee's limited access NE multispecies permit is sanctioned pursuant to an enforcement proceeding; the Lessor or Lessee vessel is determined not in compliance with the conditions, restrictions, and requirements of this part; or the Lessor has an insufficient number of allocated or unused DAS available to lease. Upon denial of an application to lease NE multispecies DAS, the Regional Administrator shall send a letter to the applicants describing the reason(s) for application rejection. The decision by the Regional Administrator is the final agency decision. 10. In § 648.85, paragraphs (b)(7)(vi)(G) through
(I)are removed, and paragraphs (a)(3)(i), (b)(6)(iv)(D), (b)(7)(iii), (b)(7)(iv)(A) and (F), (b)(7)(v)(D), and (b)(7)(vi)(D) are revised to read as follows: § 648.85 Special management programs.
(a)* * *
(3)* * *
(i)*VMS requirement* . A NE multispecies DAS vessel in the U.S./Canada Management Areas described in paragraph (a)(1) of this section must have installed on board an operational VMS unit that meets the minimum performance criteria specified in §§ 648.9 and 648.10.
(b)* * *
(6)* * *
(iv)* * *
(D)*Landing limits* . Unless otherwise specified in this paragraph (b)(6)(iv)(D), a NE multispecies vessel fishing in the Regular B DAS Program described in this paragraph (b)(6), and fishing under a Regular B DAS, may not land more than 100 lb (45.5 kg) per DAS, or any part of a DAS, up to a maximum of 1,000 lb (454 kg) per trip, of any of the following species/stocks from the areas specified in paragraph (b)(6)(v) of this section: Cod, American plaice, white hake, witch flounder, SNE/MA winter flounder, GB winter flounder, GB yellowtail flounder, southern windowpane flounder, and ocean pout; and may not land more than 25 lb (11.3 kg) per DAS, or any part of a DAS, up to a maximum of 250 lb (113 kg) per trip of CC/GOM or SNE/MA yellowtail flounder. In addition, trawl vessels, which are required to fish with a haddock separator trawl as specified under paragraph (b)(6)(iv)(J) of this section, and other gear that may be required in order to reduce catches of stocks of concern as described under paragraph (b)(6)(iv)(J) of this section, are restricted to the following trip limits: 500 lb (227 kg) of all flatfish species (American plaice, witch flounder, winter flounder, windowpane flounder, and GB yellowtail flounder), combined; 500 lb (227 kg) of monkfish (whole weight); 500 lb (227 kg) of skates (whole weight); and zero possession of lobsters, unless otherwise restricted by § 648.94(b)(3).
(7)* * *
(iii)*Season* . The overall season for the CA I Hook Gear Haddock SAP is October 1 through December 31, which is divided into two participation periods, one for Sector and one for non-Sector vessels. For the 2006 fishing year and beyond, the participation periods shall alternate between Sector and non-Sector vessels such that, in fishing year 2006, the participation period for non-Sector vessels is October 1 through November 15, and the participation period for Sector vessels is November 16 through December 31. The Regional Administrator may adjust the start date of the second participation period prior to November 16 if the haddock TAC for the first participation period specified in paragraph (b)(7)(iv)(F) of this section is harvested prior to November 15.
(iv)* * *
(A)*DAS use restrictions* . A vessel fishing in the CA I Hook Gear Haddock SAP may not initiate a DAS flip. A vessel is prohibited from fishing in the CA I Hook Gear Haddock SAP while making a trip under the Regular B DAS Pilot Program described under paragraph (b)(6) of this section. DAS will be charged as described in § 648.10.
(F)*Haddock TAC* —( *1* ) *Allocation and Distribution* . The maximum total amount of haddock that may be caught (landings and discards) in the Closed Area I Hook Gear SAP Area in any fishing year is based upon the size of the TAC allocated for the 2004 fishing year (1,130 mt live weight), adjusted according to the growth or decline of the western GB
(WGB)haddock exploitable biomass (in relationship to its size in 2004), according to the following formula: Biomass YEAR X = (1,130 mt live weight) x (Projected WGB Haddock Exploitable BiomassYEAR X /WGB Haddock Exploitable Biomass 2004 ). The size of the western component of the stock is considered to be 35 percent of the total stock size, unless modified by a stock assessment. The maximum amount of haddock that may be caught in this SAP during each fishing year is divided evenly between the two participation periods of October 1 - November 15 and November 16 - December 31, as specified in paragraph (b)(7)(iii) of this section. The Regional Administrator shall specify the haddock TAC for the SAP, in a manner consistent with applicable law. ( *2* ) *Adjustments to the haddock TAC* . The Regional Administrator may adjust the portion of the haddock TAC specified for the second participation period to account for under- or over-harvest of the portion of the haddock TAC (landings and discards) that was harvested during the first participation period, not to exceed the overall haddock TAC specified in this paragraph (b)(7)(iv)(F).
(v)* * *
(D)*Reporting requirements* . The owner or operator of a Sector vessel declared into the Closed Area I Hook Gear Haddock SAP must submit reports to the Sector Manager, with instructions to be provided by the Sector Manager, for each day fished in the Closed Area I Hook Gear Haddock SAP Area. The Sector Manager shall provide daily reports to NMFS, including at least the following information: Total pounds of haddock, cod, yellowtail flounder, winter flounder, witch flounder, American plaice, and white hake kept; total pounds of haddock, cod, yellowtail flounder, winter flounder, witch flounder, American plaice, and white hake discarded; date fish were caught; and VTR serial number, as instructed by the Regional Administrator. Daily reporting must continue even if the vessel operator is required to exit the SAP as required under paragraph (b)(7)(iv)(F) of this section.
(vi)* * *
(D)*Reporting requirements* . The owner or operator of a non-Sector vessel declared into the Closed Area I Hook Gear Haddock SAP must submit reports via VMS, in accordance with instructions to be provided by the Regional Administrator, for each day fished in the Closed Area I Hook Gear Haddock SAP Area. The reports must be submitted in 24-hr intervals for each day fished, beginning at 0000 hr local time and ending at 2400 hr local time. The reports must be submitted by 0900 hr local time of the day following fishing. The reports must include at least the following information: Total pounds of haddock, cod, yellowtail flounder, winter flounder, witch flounder, American plaice, and white hake kept; total pounds of haddock, cod, yellowtail flounder, winter flounder, witch flounder, American plaice, and white hake discarded; date fish were caught; and VTR serial number, as instructed by the Regional Administrator. Daily reporting must continue even if the vessel operator is required to exit the SAP as required under paragraph (b)(7)(iv)(F) of this section. 11. In § 648.86, paragraphs
(e)and
(i)are revised to read as follows: § 648.86 NE Multispecies possession restrictions.
(e)*White hake* . Unless otherwise restricted under this part, a vessel issued a NE multispecies DAS permit, a limited access Handgear A permit, an open access Handgear B permit, or a monkfish limited access permit and fishing under the monkfish Category C or D permit provisions may land up to 1,000 lb (453.6 kg) of white hake per DAS, or any part of a DAS, up to 10,000 lb (4,536 kg) per trip.
(i)*Offloading requirement for vessels possessing species regulated by a daily possession limit* . A vessel that has ended a trip as specified in § 648.10(b)(2)(iii) or (c)(3) that possesses on board species regulated by a daily possession limit (i.e., pounds per DAS), as specified at § 648.85 or § 648.86, must offload species in excess of the daily landing limit prior to leaving port on a subsequent trip. A vessel may retain on board up to one day's worth of such species prior to the start of a subsequent trip. Other species regulated by an overall trip limit may be retained on board for a subsequent trip. For example, a vessel that possesses cod and winter flounder harvested from Georges Bank is subject to a daily possession limit for cod of 1,000 lb (453 kg)/DAS and an overall trip limit of 5,000 lb (2,267 kg)/trip for winter flounder. In this example, the vessel would be required to offload any cod harvested in excess of 1,000 lb (453 kg) (i.e., the vessel may retain up to 1,000 lb (453 kg) of Georges Bank cod, but must offload any additional cod), but may retain on board winter flounder up to the maximum trip limit prior to leaving port and crossing the VMS demarcation line to begin a subsequent trip. 12. In § 648.87, paragraphs (b)(1)(ix), (b)(1)(xv) and (xvi), (b)(2)(x), and
(c)are revised to read as follows: § 648.87 Sector allocation.
(b)* * *
(1)* * *
(ix)Unless exempted through a Letter of Authorization specified in paragraph (c)(2) of this section, each vessel operator and/or vessel owner fishing under an approved Sector must comply with all NE multispecies management measures of this part and other applicable law. Each vessel and vessel operator and/or vessel owner participating in a Sector must also comply with all applicable requirements and conditions of the Operating Plan specified in paragraph (b)(2) of this section and the Letter of Authorization issued pursuant to paragraph (c)(2) of this section. It shall be unlawful to violate any such conditions and requirements and each Sector, vessel, and vessel operator and/or vessel owner participating in the Sector may be charged jointly and severally for violations of such conditions and requirements and any other applicable Federal regulations, resulting in an assessment of civil penalties and permit sanctions pursuant 15 CFR part 904.
(xv)All vessel operators and/or vessel owners fishing in an approved Sector must be issued and have on board the vessel, a Letter of Authorization
(LOA)issued by NMFS pursuant to paragraph (c)(2) of this section.
(xvi)The Regional Administrator may exempt participants in the Sector, pursuant to paragraph (c)(2) of this section, from any Federal fishing regulations necessary to allow such participants to fish in accordance with the Operations Plan, with the exception of regulations addressing the following measures for Sectors based on a hard TAC: Year-round closure areas, permitting restrictions (e.g., vessel upgrades, etc.), gear restrictions designed to minimize habitat impacts (e.g., roller gear restrictions, etc.), and reporting requirements (not including DAS reporting requirements). A framework adjustment, as specified in § 648.90, may be submitted to exempt Sector participants from regulations not authorized to be exempted pursuant to paragraph (c)(2) of this section.
(2)* * *
(x)Each vessel and vessel operator and/or vessel owner participating in a Sector must comply with all applicable requirements and conditions of the Operations Plan specified in this paragraph (b)(2) and the Letter of Authorization issued pursuant to paragraph (c)(2) of this section. It shall be unlawful to violate any such conditions and requirements unless such conditions or restrictions are identified as administrative only in an approved Operations Plan. Each Sector, vessel, and vessel operator and/or vessel owner participating in the Sector may be charged jointly and severally for violations of Sector Operations Plan requirements as well as any other applicable Federal regulations, resulting in an assessment of civil penalties and permit sanctions pursuant to 15 CFR part 904.
(c)*Approval of a Sector and granting of exemptions by the Regional Administrator* .
(1)Once the submission documents specified under paragraphs (a)(1) and (b)(2) of this section have been determined to comply with the requirements of this section, NMFS may consult with the Council and shall approve or disapprove Sector operations consistent with applicable law.
(2)If a Sector is approved, the Regional Administrator shall issue a Letter of Authorization to each vessel operator and/or vessel owner belonging to the Sector. The Letter of Authorization shall authorize participation in the Sector operations and may exempt participating vessels from any Federal fishing regulation, except those specified in paragraph (b)(1)(xvi) of this section, in order to allow vessels to fish in accordance with an approved Operations Plan, provided such exemptions are consistent with the goals and objectives of the NE Multispecies FMP. The Letter of Authorization may also include requirements and conditions deemed necessary to ensure effective administration of, and compliance with, the Operations Plan and the Sector allocation. Solicitation of public comment on, and NMFS final determination on such exemptions shall be consistent with paragraphs (c)(1) and
(2)of this section.
(3)The Regional Administrator may withdraw approval of a Sector, after consultation with the Council, at any time if it is determined that Sector participants are not complying with the requirements of an approved Operations Plan or that the continuation of the Operations Plan will undermine achievement of fishing mortality objectives of the NE Multispecies FMP. Withdrawal of approval of a Sector may only be done after notice and comment rulemaking consistent with applicable law. 13. In § 648.89, paragraph (b)(4) is added to read as follows: § 648.89 Recreational and charter/party vessel restrictions.
(b)* * *
(4)The minimum fish size applies to whole fish or to any part of a fish while possessed on board either a charter/party or a private recreational vessel, or at the time of landing. Fish fillets, or parts of fish, must have skin on while possessed on board a vessel and at the time of landing in order to meet minimum size requirements. “Skin on” means the entire portion of the skin normally attached to the portion of the fish or to fish parts possessed is still attached. § 648.92 [Amended] 14. In § 648.92, remove paragraph (b)(2)(iii). [FR Doc. E7-25073 Filed 12-26-07; 8:45 am] BILLING CODE 3510-22-S 72 247 Thursday, December 27, 2007 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR PART 339 RIN 3206-AL14 Medical Qualification Determinations AGENCY: Office of Personnel Management. ACTION: Proposed rule. SUMMARY: The Office of Personnel Management
(OPM)is proposing a revision of its regulations regarding medical qualification determinations. The proposed revisions add four authorities, separate and move two definitions, add three definitions, clarify coverage and applicability, update to reflect current references and language, and address the need for medical testing/examination or medical documentation of an employee whose job has no physical standards or physical requirements. DATES: We will consider comments received on or before February 25, 2008. ADDRESSES: Send, deliver, or fax comments to Mark Doboga, Deputy Associate Director, Center for Talent and Capacity Policy, Strategic Human Resources Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700; e-mail *employ@opm.gov;* FAX:
(202)606-2329. Comments may also be sent through the Federal eRulemaking Portal at *http://www.regulations.gov.* All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number
(RIN)for this rulemaking. FOR FURTHER INFORMATION CONTACT: J. C. Phillip Spottswood, J.D., M.P.H., by telephone at
(202)606-1389, by TTY at
(202)418-3134; by fax at
(202)606-0864; or by e-mail at *phil.spottswood@opm.gov.* SUPPLEMENTARY INFORMATION: The Office of Personnel Management
(OPM)is issuing proposed revised regulations on medical qualification determinations. Details of the proposed revisions are discussed under the applicable subpart. OPM has replaced the verb “shall” with “must” in this part for added clarity and readability. OPM intends that any provisions in this part using the verb “must” has the same meaning and effect as previous provisions in this part using “shall.” The proposed revised regulations add four authority citations to clarify the scope of applicability:
(1)5 U.S.C. 3312 Preference eligibles; physical qualifications; waiver;
(2)5 U.S.C. 3318 Competitive service; selection from certificates;
(3)5 U.S.C. 3320 Excepted service; government of the District of Columbia; selection; and
(4)5 U.S.C. 3504 Preference eligibles; retention; physical qualifications; waiver. Subpart A Subpart A covers General information. The proposed subpart A adds wording to clarify applicability of this regulation to excepted service positions; updates references to the Rehabilitation Act of 1973, as amended, and to portions of the Americans with Disabilities Act of 1992 that are applicable to the Federal government through the Rehabilitation Act; adds examples to the definition in § 339.104 for “medical evaluation program,” separates and moves definitions for “subtle incapacitation” and “sudden incapacitation;” and adds definitions for “medical restriction,” “physical fitness standard,” and “physical fitness test.” Subpart B Subpart B governs Medical Standards, Physical Requirements, and Medical Evaluation Programs. The title of proposed subpart B is changed to clarify application of this part to physical requirements and medical evaluation programs. The proposed subpart B incorporates physical fitness standards into § 339.203, and adds language to clarify application of this part to arbitrary disqualification; adds “medical surveillance” to policies agencies may establish to safeguard employee health; provides an example of an immunization program and changes “incumbents” to “employees” to clarify § 339.205. Subpart C Subpart C governs Medical Examinations. The proposed subpart C incorporates minor corrections in references, spelling and punctuation; adds wording to clarify examinations the agency may require and examples of “benefits” in § 339.304; and adds wording to clarify applicability of this regulation to excepted service positions when requesting a medical disqualification or a pass over of a preference eligible in § 339.306. For the convenience of the reader, the proposed part 339 is published in its entirety. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act (5 U.S.C. 601, et seq.) I certify that these regulations would not have a significant economic impact on a substantial number of small entities because it affects only Federal employees. List of Subjects in 5 CFR Part 339 Equal employment opportunity, Government employees, Health, Individuals with disabilities. U.S. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM proposes to revise 5 CFR part 339 to read as follows: PART 339—MEDICAL QUALIFICATION DETERMINATIONS Subpart A—General Sec. 339.101 Coverage. 339.102 Purpose and effect. 339.103 Compliance with disability laws and regulations. 339.104 Definitions. Subpart B—Medical Standards, Physical Requirements, and Medical Evaluation Programs 339.201 Disqualification by OPM. 339.202 Medical standards. 339.203 Physical requirements and/or physical fitness requirements. 339.204 Waiver of standards and requirements. 339.205 Medical evaluation programs. 339.206 Disqualification on the basis of medical history. Subpart C—Medical Examinations 339.301 Authority to require an examination. 339.302 Authority to offer examinations. 339.303 Examination procedures. 339.304 Payment for examination. 339.305 Records and reports. 339.306 Processing medical eligibility determinations. Authority: 5 U.S.C. 1104(a), 1302(a) 3301, 3302, 3304, 3312, 3318, 3320, 3504, 5112; 39 U.S.C. 1005; Executive Order 10577, Rule II, codified as amended in 5 CFR 2.1(a). Subpart A—General § 339.101 Coverage. This part applies to all applicants for and employees in competitive service positions; and to applicants for and employees in positions excepted from the competitive service, by statute or executive order, when medical issues arise in connection with an OPM regulation that governs a particular personnel decision. § 339.102 Purpose and effect.
(a)This part defines the circumstances under which medical documentation may be required and examinations and evaluations conducted to determine the nature of a medical condition that may affect safe and efficient performance.
(b)Personnel decisions based wholly or in part on the review of medical documentation and the results of medical examinations and evaluations must be made in accordance with appropriate parts of this title.
(c)Failure to meet a properly established medical standard or physical requirement under this part means that the individual is not qualified for the position unless a waiver or reasonable accommodation is suitable, as described in §§ 339.103 and 339.204. An employee's refusal to be examined and provide medical documentation in accordance with a proper agency order authorized under this part constitutes a basis for appropriate disciplinary or adverse action. § 339.103 Compliance with disability laws and regulations. Actions under this part must be consistent with the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act
(ADA)of 1992, as it applies to the Federal government through the Rehabilitation Act. In addition, the Equal Employment Opportunity Commission
(EEOC)has issued regulations covering the equal employment provisions of the ADA in 29 CFR part 1630, which must be followed to the extent consistent with the Rehabilitation Act. Particularly relevant to medical qualification determinations are 29 CFR 1630.2(o) (requiring reasonable accommodation of individuals with disabilities); 29 CFR 1630.10 (prohibiting use of employment criteria that screen out individuals with disabilities unless shown to be related to the job in question); and 29 CFR 1630.13 (prohibiting pre-employment examination or inquiry related to the existence or nature of a disability and pre-employment medical examination or inquiry of employees, except under specified circumstances). In addition, use of the term “qualified” in this part must be interpreted consistently with 29 CFR 1630.2(m), which provides that a “qualified individual with a disability” means an individual with a disability “who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others.” § 339.104 Definitions. For purposes of this part— *Accommodation* means *reasonable accommodation* as described in 29 CFR 1630.2(o). *Arduous or hazardous positions* means positions that are dangerous or physically demanding to such a degree that an employee's medical and/or physical condition is necessarily an important consideration in determining ability to perform safely and efficiently. *Medical condition* means a health impairment which results from birth, injury, or disease, including psychiatric disease. *Medical documentation* or *documentation of a medical condition* means a statement from a licensed physician or other appropriate practitioner who provides information the agency considers necessary to enable it to make an employment decision. To be acceptable, the diagnosis or clinical impression must be justified according to established diagnostic criteria and the conclusions and recommendations must not be inconsistent with generally accepted professional standards. The determination that the diagnosis meets these criteria is made by or in coordination with a licensed physician or, if appropriate, a practitioner of the same discipline as the one who issued the statement. An acceptable diagnosis must include the following information, or parts identified by the agency as necessary and relevant:
(1)The history of the medical condition(s), including references to findings from previous examinations, treatment, and responses to treatment;
(2)Clinical findings from the most recent medical evaluation, including any of the following which have been obtained: Findings of physical examination; results of laboratory tests; X-rays; EKG's and other special evaluations or diagnostic procedures; and, in the case of psychiatric examination or psychological assessment, the findings of a mental status examination and the results of psychological tests, if appropriate;
(3)Diagnosis, including the current clinical status;
(4)Prognosis, including plans for future treatment and an estimate of the expected date of full or partial recovery;
(5)An explanation of the impact of the medical condition(s) on overall health and activities, including the basis for any conclusion that restrictions or accommodations are or are not warranted, and if warranted, an explanation of their therapeutic or risk avoiding value;
(6)An explanation of the medical basis for any conclusion that indicates the likelihood that the individual is or is not expected to suffer sudden or subtle incapacitation by carrying out, with or without accommodation, the tasks or duties of a specific position; and
(7)Narrative explanation of the medical basis for any conclusion that the medical condition has or has not become static or well-stabilized and the likelihood that the individual may experience sudden or subtle incapacitation as a result of the medical condition. In this context, “static or well-stabilized” medical condition means a medical condition which is not likely to change as a consequence of the natural progression of the condition, specifically as a result of the normal aging process, or in response to the work environment or the work itself. *Medical evaluation* program means a program of recurring medical examinations (e.g., age adjusted periodic medical examinations) or tests established by written agency policy or directive, to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands. For example, an agency policy or directive may include but is not limited to medical clearances and medical surveillance to test for occupational exposure to biological, chemical, and/or radiological hazardous agents, occupational diseases, and occupational risk. *Medical restriction* is an operative event that limits, modifies, or prevents an individual from performing certain physical requirements (e.g., lifting, pushing, and standing) because of a particular medical condition(s) or physical limitation(s). The purpose of a medical restriction is to ensure that the medical condition(s) is not aggravated, accelerated, exacerbated, or made permanently worse. *Medical standard* is a written description of the medical requirements for a particular occupation based on a determination that a certain level of fitness or health status is required for successful performance. *Physical fitness standard(s)* is a documented and validated evaluation of identified essential common duties of similar positions, job task simulation scenarios, and results of testing. *Physical fitness test(s)* is a measure of the minimum level of physical fitness (e.g., running or lifting) consistent with validated physical fitness standards that must be met in order to perform the essential duties of the position (e.g. law enforcement or wildland firefighter duties that regularly involve dangerous and stressful situations and physical hazards). *Physical requirement* is a written description of job-related physical abilities which are normally considered essential for successful performance in a specific position. *Physician* means a licensed Doctor of Medicine or Doctor of Osteopathy, or a physician who is serving on active duty in the uniformed services and is designated by the uniformed service to conduct examinations under this part. *Practitioner* means a person providing health service(s) who is not a medical doctor, but who is certified by a National organization and licensed by a State to provide the health service in question. *Subtle incapacitation* means gradual, initially imperceptible impairment of physical or mental function whether reversible or not which is likely to result in performance or conduct deficiencies. *Sudden incapacitation* means abrupt onset of loss of control of physical or mental function(s). Subpart B—Medical Standards, Physical Requirements, and Medical Evaluation Programs § 339.201 Disqualification by OPM. Under subpart C of part 731 of this chapter, OPM may deny an applicant examination, deny an eligible appointment, and/or instruct an agency to remove an appointee by reason of physical or mental unfitness for the position for which he or she has applied, or to which he or she has been appointed. An OPM decision under this section is separate and distinct from a determination of disability pursuant to statutory provisions for CSRS and FERS disability retirement. § 339.202 Medical standards. OPM may establish or approve medical standards for a Governmentwide occupation (i.e., an occupation common to more than one agency) or approve revisions to its established medical qualification standards. An agency may establish medical standards for position(s) that predominate in that agency (i.e., where the agency has 50 percent or more of the position(s) in a particular occupation). Such standards must be justified on the basis that the duties of the position(s) are arduous or hazardous, or require a certain level of health status or physical fitness because, for reasons including the nature of the position(s) involves a high degree of responsibility toward the public or sensitive national security concerns. The rationale for establishing the standard must be documented. Standards established by OPM or an agency must be:
(a)Established by written directive and uniformly applied, and
(b)Directly related to the actual requirements of the position. § 339.203 Physical requirements and physical fitness standards. Agencies are authorized to establish physical requirements for individual positions without OPM approval when such requirements are considered essential for successful job performance. This includes development and implementation of validated physical fitness standards including but not limited to aerobic capacity. The requirements or standards must be clearly supported by the actual duties of the position, documented in the position description and by job analysis. Applicants and employees cannot be disqualified arbitrarily on the basis of physical requirements, fitness tests, or other criteria that do not relate specifically to job performance. § 339.204 Waiver of standards and requirements. An agency must waive a medical standard or physical requirement established under this part when an applicant or employee unable to meet that standard or requirements presents sufficient evidence that he or she, with or without reasonable accommodation, can perform the essential duties of the position without endangering the health and safety of him or herself or others. Additional information obtained by the agency may be considered in determining whether a waiver is appropriate. § 339.205 Medical evaluation programs. Agencies may establish periodic medical examinations, medical surveillance, or immunization programs by written policies or directives to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands. This may include but is not limited to the requirement to undergo mandatory Food and Drug Administration approved vaccines (e.g., for national security reasons or in order to safely carry out an agency program). The need for a medical evaluation program must be clearly supported by the nature of the work. The specific positions covered must be identified and the applicants or employees notified in writing of the reasons for including the positions in the program. § 339.206 Disqualification on the basis of medical history. A candidate may not be disqualified for any position solely on the basis of medical history. For positions with medical standards or physical requirements, or positions under medical evaluation programs, a history of a particular medical condition(s) may result in medical disqualification only if the condition(s) at issue is itself disqualifying, recurrence is a reasonable probability, and the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm to the individual or others. Subpart C—Medical Examinations § 339.301 Authority to require an examination.
(a)A routine pre-employment medical examination is appropriate only for a position with specific medical standards, physical requirements, or validated physical fitness standards, or is covered by a medical evaluation program established under this part.
(b)Subject to § 339.103, an agency may require an individual who has applied for or occupies a position which has medical standards, physical requirements, physical fitness standards, or is covered by a medical evaluation program established under this part, to report for a medical examination:
(1)Prior to appointment or selection (including reemployment on the basis of full or partial recovery from a medical condition(s));
(2)On a regularly recurring, periodic basis after appointment; or
(3)Whenever there is a direct question about an employee's continued capacity to meet the physical or medical or physical fitness requirements of a position.
(c)An agency may require an employee who has applied for or is receiving continuation of pay or compensation as a result of an on-the-job injury or disease to report for an examination under 5 U.S.C. 8123 to determine medical limitations that may affect placement decisions.
(d)An agency may require an employee who is released from his or her competitive level in a reduction in force under part 351 of this chapter to undergo a relevant medical evaluation if the position to which the employee has assignment rights has medical standards or physical requirements that are different from those required in the employee's current position. (e)(1) An agency may order a psychiatric examination (including a psychological assessment) only when:
(i)The result of a current general medical examination that the agency has the authority to order under this section indicates no physical explanation for behavior or actions that may affect the safe and efficient performance of the individual or the safety of others, or
(ii)A psychiatric examination or psychological assessment is specifically called for in a position having medical standards or under a medical evaluation program established under this part.
(2)A psychiatric examination or psychological assessment authorized under paragraphs (e)(1)(i) or
(ii)of this section must be conducted in accordance with accepted professional standards, by a licensed physician or practitioner authorized to conduct such examinations, and may only be used to make inquiry into a person's mental fitness as it directly relates to successfully performing the duties of the position without undue hazard to the individual or others. § 339.302 Authority to offer examinations. An agency may, at its option, offer a medical examination (including a psychiatric examination or psychological assessment) in any situation where the agency needs additional medical documentation to make an informed management decision. This may include situations where an individual requests for medical reasons a change in duty status, assignment, working conditions, or any other different treatment (including reasonable accommodation or reemployment on the basis of full or partial recovery from a medical condition) or where the individual has a performance or conduct problem that may require agency action. Reasons for offering an examination must be documented. An offer of an examination must be carried out and used in accordance with 29 CFR 1630. § 339.303 Examination procedures.
(a)When an agency orders or offers a medical or psychiatric examination or psychological assessment under this subpart, it must inform the applicant or employee in writing of its reasons for doing so, the consequences of failure to cooperate, and the right to submit medical information from his or her personal physician or practitioner. A refusal or failure to report for a medical examination ordered by the agency may be a basis for the agency to determine that the employee is not qualified for the position. A single notification is sufficient to cover a series of regularly recurring or periodic examinations ordered under this subpart.
(b)The agency designates the examining physician or other appropriate practitioner, but must offer the individual an opportunity to submit medical documentation from his or her personal physician or practitioner. The agency must review and consider all such documentation supplied by the individual's personal physician or practitioner. § 339.304 Payment for examination. Agencies must pay for all examinations ordered or offered under this subpart, whether conducted by the agency's physician or the applicant's or employee's own physician or practitioner. This includes special evaluations or diagnostic procedures required by an agency. Applicants and employees must pay for a medical examination conducted by his or her own physician or practitioner where the purpose of the examination is to secure a change sought by an employee (e.g., a request for change in duty status, reasonable accommodation, and job modification). § 339.305 Records and reports.
(a)Agencies will receive and maintain all medical documentation and records of examinations obtained under this part in accordance with part 293, subpart E of this chapter.
(b)The report of an examination conducted under this subpart must be made available to the applicant or employee under the provisions of part 297 of this chapter.
(c)Agencies must forward to the Office of Workers' Compensation Programs (OWCP), Employment Standards Administration, Department of Labor, a copy of all medical documentation and reports of examinations of individuals who are receiving or have applied for injury compensation benefits under 5 U.S.C. 81, including continuation of pay. The agency must also report to the OWCP the failure of such individuals to report for examinations that the agency orders under this subpart. When the individual has applied for disability retirement, this information and any medical documentation or reports of examination must be forwarded to OPM. § 339.306 Processing medical eligibility determinations.
(a)In accordance with the provisions of this part, agencies are authorized to medically disqualify a nonpreference eligible. A nonpreference eligible so disqualified has a right to a higher level review of the determination within the agency.
(b)OPM must approve the sufficiency of the agency's reasons to:
(1)Medically disqualify or pass over a preference eligible in order to select a nonpreference eligible for:
(A)competitive service positions under part 332 of this chapter; and
(B)excepted service positions in the executive branch subject to title 5, U.S.C. by statute or executive order;
(2)Medically disqualify or pass over a 30 percent or more compensably disabled veteran for a position in the U.S. Postal Service in favor of a nonpreference eligible;
(3)Medically disqualify a 30 percent or more compensably disabled veteran for assignment to another position in a reduction in force under § 351.702(d) of this chapter; or
(4)Medically disqualify a 30 percent or more disabled veteran for noncompetitive appointment, for example, under § 316.302(b)(4) of this chapter. [FR Doc. E7-25108 Filed 12-26-07; 8:45 am] BILLING CODE 6325-39-P SMALL BUSINESS ADMINISTRATION 13 CFR Parts 121, 125, 127, and 134 RIN 3245-AF40 Women-Owned Small Business Federal Contract Assistance Procedures AGENCY: U.S. Small Business Administration. ACTION: Proposed rule. SUMMARY: The U.S. Small Business Administration
(SBA)proposes to amend its regulations governing small business contracting procedures. This proposed rule would add a new part that would implement procedures to increase procurement opportunities for Women-Owned Small Business Concerns, as authorized under the Small Business Act. It would also make the relevant conforming amendments to SBA's current procurement regulations. DATES: Comments must be received on or before February 25, 2008. ADDRESSES: You may submit comments, identified by 3245-AF40, by any of the following methods: • *Federal eRulemaking Portal:* *http://www.reglations.gov* . Follow the instructions for submitting comments. • *Mail, Hand Delivery/Courier:* Robert C. Taylor, Office of Contract Assistance, Office of Government Contracting, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416. All comments will be posted on *http://www.reglations.gov* . If you wish to submit confidential business information
(CBI)as defined in the User Notice at *http://www.reglations.gov* , please submit the comments to Robert C. Taylor and highlight the information that you consider to be CBI and explain why you believe this information should be held confidential. SBA will make a final determination as to whether the comments will be published or not. FOR FURTHER INFORMATION CONTACT: Robert C. Taylor, Office of Contract Assistance, Office of Government Contracting, *WOSBProposedRegulation@sba.gov* . SUPPLEMENTARY INFORMATION: I. Background Women-owned businesses have been regarded as the fastest growing segment of the business community in the United States. Although between 1997 and 2002 the growth rate in the number of women-owned small businesses (WOSBs) was almost twice that of all firms, WOSBs have not generally received a commensurate increase in their share of Federal contracting dollars. Several congressional and executive efforts over the years to increase Federal contracting with WOSBs have not enhanced the WOSB share of Federal contracting dollars as much as anticipated. For example, in 1979, when Executive Order 12138 charged Federal agencies with responsibility for providing procurement assistance to women-owned businesses, WOSBs received only 0.2 percent of all Federal procurements. More than 9 years later, the percentage of WOSB Federal procurements had grown to only one percent. Similarly, in 1988, the Women's Business Ownership Act, Public Law 100-588 (Oct. 25, 1988), was enacted to assist women in starting, managing and growing small businesses. This program has been successful in assisting thousands of women in obtaining business financing and in business formation, but has enjoyed less success in the Federal procurement arena. Section 7106 of the Federal Acquisition Streamlining Act (FASA), Public Law 103-355 (Oct. 13, 1994), amended the Small Business Act (the Act) by establishing a target that would result in greater opportunities for women to compete for Federal contracts. FASA, among other things, established a government-wide goal for participation by WOSBs in procurement contracts of not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year. FASA also directed that WOSBs, like other small businesses and small disadvantaged businesses (SDBs), have the maximum practicable opportunity to become subcontractors for Federal contracts exceeding $100,000, and it mandated that WOSBs be included in subcontracting plans required under Section 8(d) of the Act, 15 U.S.C. 637(d). Federal Procurement Data System
(FPDS)data indicates that since fiscal year
(FY)1996, Federal agencies have not met the separate 5 percent government-wide WOSB goal for prime contracts and subcontracts. However, the share of Federal prime contracting dollars to WOSBs has increased over the years. For example, in FY 2000, WOSBs received 2.3 percent of the approximately $200 billion in Federal prime contract awards. The share of WOSB prime contract awards increased to 2.49 percent in FY 2001, and again to 2.90, 2.98, and 3.03 percent in FYs 2002, 2003 and 2004, respectively. In FY 2005, WOSB prime contract awards increased to 3.18 percent and in FY 2006, increased again to 3.41 percent of prime contract awards. Nonetheless, the total percent of WOSB prime contract awards stills falls short of the statutory goal of 5 percent. The Government Accountability Office
(GAO)published a report in February 2001 discussing the trends and obstacles in Federal contracting with WOSBs since FY 1996. *See Trends and Challenges in Contracting With Women-Owned Small Businesses,* GAO-01-346. In that report, GAO noted that contracting officials complain that one of the primary obstacles in achieving the statutory five percent WOSB goal was the absence of a “targeted government program for contracting with WOSBs.” Section 811 of the Small Business Reauthorization Act of 2000, Public Law 106-554, provided such a mechanism. Section 811, enacted on December 21, 2000, amended the Act by adding a new section 8(m), 15 U.S.C. 637(m), authorizing contracting officers to restrict competition to eligible WOSBs for certain Federal contracts in certain industries. Due to an apparent drafting error in the cross-reference and the inter-relationships between subparagraphs (2)(C),
(3)and
(4)of 15 U.S.C. 637(m), subparagraph (2)(C) literally appears to authorize set-asides for Federal contracts only in industries in which WOSBs are determined to be *substantially* underrepresented. However, if the statute were construed by SBA not to authorize set-asides in industries in which WOSBs were underrepresented, the provision in the statute requiring SBA to conduct a study to determine industries in which WOSBs are underrepresented, as well as the section's waiver provision, would arguably be rendered inoperative or contradictory. Accordingly, SBA has drafted the proposed rule to account for this apparent drafting error based on its best understanding of the meaning and intent of section 8(m) read as a whole and has interpreted the statute to authorize set asides for industries in which WOSBs are determined to be underrepresented or substantially underrepresented in Federal procurement. In the absence of corrective legislation clarifying the confusing cross-references among these provisions, however, some degree of uncertainty will remain with respect to the question of whether section 8(m) effectively authorizes appropriate set-asides in industries where WOSBs are merely underrepresented rather than substantially underrepresented. The new section 8(m) of the Act explicitly limits the contracting officer's authority to restrict competition to contracts not exceeding $3 million ($5 million for manufacturing). Furthermore, to be eligible as a WOSB under section 8(m) of the Act, the firm must be a “small business concern owned and controlled by women” as defined in section 3(n) of the Act, 15 U.S.C. 632(n). Section 8(m) also requires that such concerns be at least 51 percent owned by one or more women who are economically disadvantaged, except with respect to procurements in industries in which SBA has determined that WOSBs are substantially underrepresented in Federal contracting and has waived the economically disadvantaged requirement. Moreover, section 8(m) of the Act requires SBA to establish standards for determining the eligibility of a concern as a WOSB or economically disadvantaged WOSB (EDWOSB). It also charges SBA with responsibility for verifying a concern's eligibility and provides the penalties for a concern's misrepresentation of its status as an EDWOSB or WOSB. Lastly, section 8(m) requires SBA to conduct a study to identify the industries in which WOSBs are underrepresented and substantially underrepresented in Federal procurement and requires the head of any department or agency to provide SBA with any information that SBA deems necessary to conduct the study. SBA initially completed the legislatively mandated study in September 2001. However, in March 2005, the National Academy of Science
(NAS)issued an independent evaluation determining that SBA's original study was “fatally flawed.” In response to the NAS's findings, SBA issued a solicitation in October 2005 seeking a contractor to perform a revised study in accordance with the NAS report. In February 2006, SBA awarded a contract to the *Kauffman-RAND Institute for Entrepreneurship Public Policy (RAND)* to complete a revised study of the availability and utilization of WOSBs in prime contracts. The RAND report was published in April 2007 and is available to the public at *http://www.RAND.org/pubs/technical_reports/TR442* . On June 15, 2006, the SBA published in the **Federal Register** , 71 FR 34550, a proposed rule, with request for comments, to amend its regulations in accordance with § 8(m) of the Small Business Act. Based on SBA's evaluation of the public and inter-agency comments received, discussions with the Department of Justice
(DOJ)and the Office of Federal Procurement Policy (OFPP), and further examination of Section 8(m), it has been determined that the June 15, 2006, proposed rule requires significant changes that warrant further public comment and consideration. In addition, rather than propose a separate rulemaking, SBA believes it would be expeditious to include in this proposed rule implementation of the RAND study results which identified the industries in which WOSBs are underrepresented and substantially underrepresented in Federal procurement. Whether SBA went forward with a final rule on WOSB status and procedures and simultaneously proposed a rule to implement the RAND Study results or combined the two rules into one comprehensive rule, any potential set-asides under the procedures could not be made until the RAND report rule had been finalized. Therefore, SBA's action of combining the RAND report rule with this re-proposed June 15, 2006 rule not only obviates the need for a separate rulemaking but significantly, will not delay the implementation of the WOSB procedures. II. RAND Report Results The RAND report outlined several approaches to identify underrepresentation of WOSBs in Federal procurement, each of which yields a different result. SBA has preliminarily adopted the approach set forth below. RAND's report identifies 28 different approaches to determine underrepresentation and substantial underrepresentation. Twenty of these approaches compare FY 2006 Central Contractor Registration
(CCR)registration data to FY 2005 Federal Procurement Data System/Next Generation (FPDS/NG) procurement data, while eight
(8)compare the 2002 Survey of Business Owners
(SBO)from the five-year Economic Census to FYs 2002/2003 FPDS/NG procurement data. SBA eliminated the eight approaches based on a comparison of the 2002 SBO data to FYs 2002/2003 FPDS/NG procurement data for the following reasons:
(1)The SBO does not distinguish between WOSBs and women-owned businesses (large and small), while the procedures authorized by Congress are specifically targeted towards WOSBs (only small businesses);
(2)since the SBO is generally not available for two years after the survey is completed, the SBO is never current; and lastly
(3)the SBO cannot fine-tune the industry groupings beyond the two-digit NAICS level. In its 2005 report examining SBA's 2001 methodology, the NAS criticized SBA's use of the two-digit Major Group Standard Industrial Classification
(SIC)industry classification as inadequate. The two-digit Major Group SIC designation corresponds to the current three-digit Subsector NAICS designation. Thus, while the NAS criticized SBA's use of two-digit SIC information, the SBO two-digit NAICS data is even less precise than the two-digit SIC data. Both the CCR and FPDS-NG, on the other hand, provide the capability to use four-digit NAICS classifications. For this reason, SBA also eliminated 16 approaches based on CCR comparisons to FPDS/NG 2005 procurement data which used two and three-digit NAICS codes. As a result, four approaches were left as possibly viable, all based on 2004 CCR and 2005 procurement data and four-digit NAICS codes. Two of the four approaches were based on the dollar value of contracts awarded and the other two were based on the number of contracts awarded. SBA eliminated the two approaches based on the number of the contracts awarded. When discussing whether to use dollars or numbers as the measure of underrepresentation, it was necessary to evaluate the benefits and limitations of either choice. After careful analysis, it was decided to adopt an approach consistent with Congressional measures, which use dollars. Congress appropriates Federal funding in dollars, the Federal budget is divided in dollars, all Federal government contracts are awarded in dollars, and the accounting and auditing processes focus on how these dollars are spent. Dollar amounts can easily be compared across agencies, programs and NAICS codes. Tracking dollar amounts also avoids problems that arise from the contracting nuances of the individual agencies. Contract actions do not allow for an accurate accounting of the financial benefits and business development that occur when small businesses receive a Federal contract. Finally and perhaps most importantly, Congress, through the Small Business Act, has given direction only in dollars. Section 15(g)(1) is the section in the Act that provides direction on counting small business goals. All of those goals are aimed at achieving a dollar amount (total value) relative to all dollars expended in Federal procurement. In particular, the goal for small business concerns owned and controlled by women states that: “The Government-wide goal for participation by small business concerns owned and controlled by women shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.” Congress authorized the contracting assistance procedures in Section 8(m) as a result of the Federal Government's persistent deficiencies in achieving this goal. Thus, the disparity measure based on contract dollars is consistent with the five percent goal, which is also based on contract dollars. Accordingly, two approaches remained available for SBA to use to determine underrepresentation. Of these two approaches, one was based on a full sample, and the other was based on a trimmed sample (eliminating the top and bottom 0.5 percent of the data). RAND stated in its report that it found little benefit to trimming the sample and that it puts more weight on the full-sample results (Chapter 4, Results, page 22). Accordingly, SBA eliminated the trimmed-sample results. The four industries identified using the adopted approach from the RAND report (NAICS codes 9281—National Security and International Affairs, 3328—Coating, Engraving, Heat Treating, and Allied Activities, 3371—Household and Institutional Furniture and Kitchen Cabinet Manufacturing, and 4412—Other Motor Vehicle Dealers) are those industries in which WOSBs are underrepresented or substantially underrepresented in government-wide Federal procurement. The RAND report does not, however, expressly find discrimination in the identified industries. The equal protection requirements of the Fifth Amendment prohibit Federal agencies from discriminating on the basis of sex in awarding contracts unless the preference furthers important governmental objectives and the means employed are substantially related to the achievement of those objectives. *See United States* v. *Virginia* , 518 U.S. 515, 533 (1996). This standard, which requires an “exceedingly persuasive justification,” id., is commonly referred to as “intermediate scrutiny.” In applying this standard, Federal courts have generally required that the government establish probative evidence of discrimination in the relevant industry in order to justify sex-based contracting preferences. *See, e.g., Engineering Contractors Ass'n of South Florida* v. *Metropolitan Dade County* , 122 F.3d 895, 910 (11th Cir. 1998). Based on these precedents, the Department of Justice has advised SBA that before a contracting officer may restrict competition to WOSBs under section 8(m), the concerned agency must determine through appropriate analysis (including analysis of its own procurement history) that the set-aside will be consistent with the foregoing constitutional standards. In particular, to ensure uniformity, SBA proposes that the agency must determine whether the set-aside is substantially related to remedying sex discrimination in that industry. III. Summary of Regulations To implement the new section 8(m) of the Act, this proposed rule would establish procedures that will assist WOSBs in procuring contracting opportunities with the Federal Government. Although these procedures would be considered part of SBA's government contracting programs set forth under part 125 of title 13 of the Code of Federal Regulations (CFR), for ease of reference, the proposed WOSB procedures would be contained in a new part 127 of title 13. As proposed, the regulations provide the general definitions and clarifications of the procedures and eligibility requirements under subparts A and B of this rule. The regulations also provide the certification procedures and the process for appealing WOSB status protest determinations to SBA's Office of Hearings and Appeals (OHA). These proposed regulations also provide the specific eligibility requirements for qualification as an EDWOSB or WOSB and state the requirement for each agency to conduct the appropriate analysis (including analysis of its own procurement history) to ensure that the set-aside will be consistent with constitutional standards. This rule would also modify the process for reserving contract opportunities in industries in which SBA and agencies determine that WOSBs are substantially underrepresented in Federal procurement. To provide procuring activities greater flexibility in structuring their procurements to achieve WOSB Federal contracting goals, this rule would grant contracting officers the discretion to waive the requirement for competition by EDWOSBs in those industries in which WOSBs are determined to be substantially underrepresented. The rule also provides conforming amendments necessary to integrate these proposed procedures into SBA's size and government contracting regulations. SBA invites comment on all aspects of this proposed rule. IV. Section-by-Section Analysis The following is a section-by-section analysis of the proposed rule. A. Conforming Amendments to Parts 121 and 125 The authority citation for 13 CFR part 121 would be revised to include 15 U.S.C. 637(m), since part 121 would be amended to include references to the WOSB Procurement Opportunity Procedures (Procedures) Section 121.401 would be amended to add the procedures governing women-owned contracting requirements to the list of government procurement programs subject to size determinations. This would subject EDWOSBs and WOSBs to size protests and determinations under part 121 of title 13. Section 121.1001 would be amended by adding a new paragraph (a)(9) to describe who may initiate a size protest in connection with a particular requirement set-aside for women-owned small business concerns. That section would provide that any concern that submits an offer for a specific requirement set-aside under the authority of § 8(m) of the Act, the contracting officer, SBA Government Contracting Area Director and the Director for Government Contracting or designee, may protest the size of another offeror for the particular requirement. Section 121.1008 would be amended by adding a sentence that requires the SBA Government Contracting Area Director, or designee, to notify SBA's Director, Office of Government Contracting, of receipt of a size protest involving a concern that is designated in the Central Contractor Registration
(CCR)as a certified EDWOSB or WOSB. Section 125.6 would be amended to provide that EDWOSBs and WOSBs awarded a set-aside contract using these procedures must satisfy certain requirements if they intend to subcontract. These subcontracting limitations are the same limitations that are currently in place for an 8(a) contract or an unrestricted procurement where a concern has claimed a small disadvantaged price evaluation preference. B. Addition of a New Part 127 A new part 127 would be added to title 13 of the CFR to implement the procedures that are required under the statute. Subpart A provides background information concerning contracting opportunities for women-owned small business concerns. Specifically, §§ 127.100 and 127.101 describe the purpose, legal basis and assistance available to eligible WOSBs. Section 127.102 defines the relevant terms used in part 127. Many of those definitions are identical to or derived from the definitions provided in parts 121 and 124 of this title, governing SBA's size, 8(a) Business Development
(BD)and SDB programs. The proposed rule also uses several newly defined terms which SBA developed for ease of reference to various statutory requirements. For example, the proposed rule uses the term “economically disadvantaged WOSB” or “EDWOSB” to refer to the Act's requirement that certain WOSBs be not less than 51 percent owned and controlled by one or more women who are U.S. citizens and economically disadvantaged. This rule also defines what constitutes “underrepresented” and “substantially underrepresented.” SBA has defined the terms “underrepresentation” and “substantial underrepresentation” in this proposed rule to be a disparity ratio representing either the WOSB share of Federal prime contract dollars divided by the WOSB share of total business receipts. If the disparity ratio falls between 0.5 and 0.8, underrepresentation is found. If the disparity ratio falls between 0.0 and 0.5, substantial underrepresentation is found. These disparity ratios were found to be reasonable by the NAS in its 2005 report analyzing the preliminary study conducted by SBA in 2001. *See* The National Academies Press, *Analyzing Information on Women-Owned Small Business in Federal Contracting* (2005), available at *http://www.nasonline.com* . SBA adopted the threshold value of 0.8 based in part on the Equal Employment Opportunity Commission's use of that threshold as a rule of thumb for defining underrepresentation in enforcing antidiscrimination employment laws. The threshold value of 0.8 also has the advantage, compared with a higher value, of reducing classification errors due to sampling variability or other sources of errors within the underlying procurement data. SBA adopted the threshold value of 0.5 largely because it is sufficiently below 0.8 and sufficiently higher than zero to distinguish substantial from less than substantial underrepresentation. Subpart B describes the eligibility requirements for qualification as an EDWOSB or WOSB. Because these qualifications entail similar ownership, control and economic disadvantage criteria as used in the 8(a) BD and SDB programs, this proposed rule similarly requires that the concern be at least 51 percent unconditionally owned and controlled by one or more women who are United States citizens. For reasons of consistency, the economic disadvantage requirement in § 127.203 also has the same $750,000 threshold for personal net worth as does the 8(a) BD program and the SDB program for purposes of determining a program participant's continuing eligibility. In order to qualify as an EDWOSB, the concern must also prove that it is economically disadvantaged. One notable exception is with respect to the application of community property laws. The Act explicitly provides that ownership shall be determined without regard to any community property laws. As a result, § 127.201 precludes the application of community property laws in WOSB ownership determinations. Subpart C of the proposed rule sets forth the self-certification requirements for concerns that submit offers on procurements set aside. Section 8(m)(2)(F)(i) of the Act authorizes certification by “a Federal agency, a State government, or a national certifying entity” approved by SBA. Consistent with that provision, subpart C of this proposed rule establishes the procedures for obtaining EDWOSB or WOSB certification from SBA. Specifically, proposed § 127.300 provides that at the time a concern submits an offer on a specific contract reserved for competition under these procedures, it must be registered in the CCR and have a current self-certification posted on the Online Representations and Certifications Application
(ORCA)indicating that it qualifies as an EDWOSB or WOSB. That section would further detail the specific representations concerns must include as part of their self-certification, including that:
(1)The firm is a small business concern under the size standard assigned to the particular procurement;
(2)it is at least 51 percent owned and controlled by one or more women who are United States citizens or it is at least 51 percent owned and controlled by one or more women who are United States citizens and are economically disadvantaged; and
(3)neither SBA nor an SBA-approved certifier has determined that the concern does not currently qualify as an EDWOSB or WOSB. Because ORCA is generally the accepted representations process that concerns currently follow to self-certify other forms of small business status in Federal procurements, using that system for the WOSB self-certification process would minimize interference with the procurement process and the burden on contracting officers. Sections 127.301 through 127.303 provide the specific procedures for obtaining EDWOSB and WOSB certification. SBA believes that the self-certification process set forth in this rule is consistent with the statutory framework of Section 8(m) and with prevailing Supreme Court precedent. It also would minimize delays and disruption to the contracting process by utilizing the existing system of representations and certifications in Federal procurement and by not requiring contracting officers to review voluminous documents supporting a concern's self-certification. Proposed § 127.301 describes the circumstances under which a contracting officer may accept a concern's self-certification for the particular procurement for which the self-certification is made. That section would provide that when a contracting officer receives an EDWOSB or WOSB status protest from another offeror, or when the contracting officer has information that calls into question the eligibility of a concern, the contracting officer must refer the matter to SBA for verification of the concern's eligibility pursuant to the WOSB status protest procedures under Subpart F. To minimize interference with the procurement process, this rule would also recognize a concern's certification as an EDWOSB or WOSB by an entity approved by SBA. In particular, §§ 127.300 and 127.302 would provide that a concern may use a certification by another entity as evidence of its status as a qualified EDWOSB or WOSB in support of its representations in ORCA if the concern:
(1)Has a current, valid SBA certification as an 8(a) BD or SDB women-owned concern in good standing under those programs;
(2)has a current valid certification as a woman-owned business under DOT's DBE program; or
(3)has a current valid certification by an entity designated as an SBA-approved certifier on SBA's Web site located at *http://www.sba.gov/GC* . Sections 127.303 and 127.304 explain how entities are selected and identified as approved certifiers and how concerns may obtain certifications from such entities. Because all certifying entities may not use the same eligibility criteria applicable to EDWOSBs and WOSBs as provided under Subpart B of this rule, SBA does not intend to automatically accept third-party certifications for purposes of contracting with WOSBs. Rather, once SBA has determined that a certifier uses the same criteria and follows appropriate procedures and standards, SBA may designate that entity as an approved certifier. The Agency will maintain a list of all approved certifiers on its Web site. Section 127.305 would explain the extent to which concerns that are determined not to qualify as an EDWOSB or WOSB may submit a self-certification under § 127.300(b). Specifically, under § 127.305, a concern that SBA or an SBA-approved certifier determines is not a qualified EDWOSB or WOSB would be prohibited from self-certifying unless SBA subsequently determines that the concern qualifies as an EDWOSB or WOSB pursuant to the examination procedures under § 127.405. Those procedures specifically allow concerns determined to be an ineligible EDWOSB or WOSB to request that SBA conduct an examination to determine their eligibility at any time the concern believes in good faith that it satisfies all of the eligibility requirements. Together, §§ 127.300 through 127.305 describe the streamlined representations concerns must provide to contracting officers to certify eligibility and authorize contracting officers to refer questionable self-certifications to SBA for verification of eligibility pursuant to the protest procedures. Robust protest procedures coupled with the provisions for appropriate examinations to monitor the eligibility of firms that self-certify their status under Subpart D, will minimize the potential for fraud and abuse. These procedures will also assist in ensuring that only eligible WOSBs receive the benefits consistent with prevailing Supreme Court precedent. Proposed §§ 127.400 through 127.405 under subpart D discuss the examination process for determining the continuing eligibility of a firm that is designated on CCR as a certified EDWOSB or WOSB. Those sections explain when and how SBA will conduct the examination and the decertification procedures SBA will follow when it is unable to verify that a concern qualifies as an EDWOSB or WOSB. Proposed § 127.401 also explains the distinctions between the examination process and the EDWOSB and WOSB protest mechanism provided under the proposed subpart F. The proposed § 127.401 makes clear that the examination process is intended to verify the continuing EDWOSB or WOSB eligibility of a concern generally, while an EDWOSB or WOSB status protest is designed to determine the EDWOSB or WOSB eligibility of a concern for a specific procurement. The separate WOSB or EDWOSB examination procedures will assist in maintaining the integrity of the certification process by subjecting certified concerns to examinations of their EDWOSB and WOSB eligibility certifications. Consequently, examinations will serve to supplement the protest mechanism by monitoring the continuing eligibility of firms that claim EDWOSB and WOSB status. Moreover, § 127.401(a) further provides that if SBA is conducting an examination of a concern that has submitted an offer on a pending EDWOSB or WOSB requirement and SBA has credible information that the concern may not qualify as an EDWOSB or WOSB, SBA may file a protest under § 127.600 to challenge the concern's eligibility for award for the specific requirement. The provisions governing the available Federal contract assistance for WOSBs and EDWOSBs are set forth in proposed subpart E. Sections 127.500 through 127.502 discuss the industries in which contracting officers are authorized to restrict competition to EDWOSBs and WOSBs. Section 127.500 explains that contracting officers may only restrict competition to EDWOSBs and WOSBs in industries in which
(1)SBA has determined that WOSBs are either underrepresented or substantially underrepresented in Federal procurement and
(2)the procuring agency has found, through appropriate analysis of its own procurement history, that the set-aside would satisfy the equal protection requirements of the Due Process Clause of the Fifth Amendment of the Constitution. Sections 127.501 and 127.502 indicate how SBA will determine, identify and provide public notice of those industries. Those sections, like section 8(m) of the Act, do not specify how SBA will determine whether WOSBs are underrepresented or substantially underrepresented in a particular industry. Instead, § 127.501 provides generally that at least every five years SBA, or another entity authorized to act on its behalf ( *e.g.* , a contractor), will conduct a study to identify the underrepresented or substantially underrepresented industries. The study will include an analysis of the extent of disparity of WOSBs in Federal contracting. Based upon that analysis, SBA will designate by 4-digit NAICS Industry Subsector industries in which WOSBs are underrepresented or substantially underrepresented. Under § 127.501(b), where an agency seeks to reserve a requirement for WOSBs or EDWOSBs in one of the industries identified by SBA as being an industry in which WOSBs are underrepresented or substantially underrepresented government-wide, the agency must ensure that the set-aside meets the equal protection requirements of the Due Process Clause of the Fifth Amendment to the Constitution. It must conduct an analysis of the agency's past procurement activities and make a finding of discrimination by that agency in that particular industry sufficient to ensure that the set-aside is substantially related to an important governmental objective. As the agency primarily charged with implementing this and other set-aside programs under section 8 of the Act, SBA proposes this requirement on contracting agencies to ensure that this program is implemented uniformly across the government and in a manner that ensures it will be constitutional under the current Supreme Court jurisprudence. Section 127.502 indicates that SBA will post a list of the designated industries on its Internet Web site. The list of designated industries also may be obtained from the local SBA district office and may be posted on the General Services Administration Internet Web site. Section 127.503 addresses when a contracting officer is authorized to restrict competition to WOSBs or EDWOSBs. It establishes a similar “rule-of-two” standard as used in small business set-asides. This standard requires the contracting officer to reasonably expect that at least two eligible companies would bid if the contract is set aside, based on market research. That section further makes clear that a contracting officer may not restrict competition to eligible EDWOSBs or WOSBs if an 8(a) BD Participant is currently performing the requirement under the 8(a) BD Program or SBA has accepted the requirement for performance under the authority of the 8(a) BD program, unless SBA consented to release the requirement from the 8(a) BD program. Because this limitation on the restriction of competition serves to reconcile the “goal” requirements of 15 U.S.C. 644(g) with the requirements of section 8(m), it is authorized by the Administrator's general authority to “make such rules and regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter” and is intended to clarify that the implementation of this program does not affect the Administrator's authority or responsibilities under the 8(a) BD program. 15 U.S.C. 634(b)(6). SBA does not intend to imply through lack of mention other programs, such as HUBZone set-asides or service-disabled veteran-owned small business set-asides, that contract requirements currently being fulfilled through other set-aside programs must be brought into this program or that this program should be give preference over other set-aside programs. Sections 127.504 and 127.505 describe the additional requirements a concern must satisfy to submit an offer on an EDWOSB or WOSB requirement. Section 127.504 indicates that in addition to the certification requirements under subpart C, offerors on EDWOSB or WOSB requirements must also certify that they are small under the size standard for the procurement and that they will comply with the limitations on subcontracting rule set forth in § 125.6 of this title. Section 127.505 explains that an EDWOSB or WOSB that is a non-manufacturer, as defined in § 121.406(b), may submit an offer for an EDWOSB or WOSB requirement if it meets the requirements of § 121.406(b). Proposed § 127.506 governs what is required of joint venture relationships involving WOSBs when submitting an offer on an EDWOSB or WOSB contract. The proposed Subpart F sets forth the procedures for protesting the status of a concern as an EDWOSB or WOSB, including the procedures for filing protests, for rendering protest determinations and for appealing those determinations to SBA's Office of Hearings and Appeals (OHA). Sections 127.600 through 127.602 describe who is authorized to file and decide EDWOSB and WOSB status protests and the permissible grounds for filing protests. Sections 127.603 through 127.606 prescribe format, and applicable deadlines for filing and determining EDWOSB and WOSB protests and for appealing SBA's protest determinations. Unlike eligibility examinations under the proposed subpart D, protests are time-sensitive because they are tied to a particular procurement. As a result, §§ 127.604 and 127.605 prescribe filing and decision deadlines to minimize undue interruptions in the underlying procurement. The final section of the proposed part 127, subpart G, § 127.700, prescribes the applicable penalties that may be imposed on any person or concern that misrepresents the status of a concern as an EDWOSB or WOSB for purposes of receiving a Federal procurement. C. Amendments to Part 134 SBA is also proposing to amend Part 134 to include procedures for an EDWOSB or WOSB to appeal a protest determination under Part 127 of this Chapter. Specifically, § 134.102 would be amended to give OHA jurisdiction to hear appeals on WOSB or EDWOSB protests. Further, § 134.515 would be revised to reflect a change in when a judge may reconsider an appeal. A new subpart, Subpart G, would be added to prescribe the procedures for filing and processing the appeals before OHA. This subpart will only apply to appeals to OHA from formal protest determinations made by the Director, Office of Government Contracting (D/GC) in connection with a WOSB or EDWOSB status protest. Procedures for size determination protests and NAICS code designations are governed by Subpart C of this part. Proposed § 134.701 outlines the scope of the rules under this subpart. Sections 134.702 and 134.703 describe who may appeal a protest determination and when that person must file an appeal. Under § 134.702, the protested concern, the protestor, or the contracting officer responsible for the procurement affected by the protest determination may file an appeal with OHA. Section 134.703 allows for an appeal petition to be made within 10 business days after the appellant receives the protest determination. Section 134.704 describes the effects that the appeal will have on the procurement at issue. If OHA determines that a concern is ineligible then the contracting officer may terminate the contract. Sections 134.705, 134.706 and 134.707 set out the requirements for an appeal petition, what the service and filing requirements are and when the D/GC transmits the protest file and to whom. The standard of review is found in § 134.707. The standard is whether the D/GC's determination was based on clear error of fact or law. Under § 134.709 the Judge is able to dismiss an appeal if it is untimely filed or has already been adjudicated by a court of competent jurisdiction over such matters. Section 134.710 sets out the requirements of who can file a response to an appeal petition. Sections 134.711-712 discuss discovery and limitations on new evidence. No discovery is permitted and no new evidence will be allowed to be admitted. Sections 134.713 and 134.714 set out the timing for the appeal petition. Under Section 134.713 the record will close when the time to file a response to an appeal petition expires pursuant to 13 CFR 134.710. Under § 134.714, the Judge must issue a decision within 15 business days after close of the record. Section 134.715 allows for the OHA Judge to reconsider an appeal decision within 20 calendar days after issuance of the written decision. Any party who has appeared in the proceeding, or SBA, can request reconsideration by filing with the Judge and serving a petition for reconsideration on all the parties to the appeal within 20 calendar days after service of the written decision. *Compliance with Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612).* Executive Order 12866 The Office of Management and Budget
(OMB)has determined that this rule is a “significant” regulatory action under Executive Order 12866. The Regulatory Impact Analysis is set forth below. Regulatory Impact Analysis 1. Necessity of Regulation This regulatory action implements section 8(m) of the Act, which was enacted as part of section 811 of the Small Business Reauthorization Act of 2000, Public Law 106-554. Section 8(m) authorizes the creation of the set-aside procurement mechanism described in this regulation. Under this regulation contracting officers will be allowed to restrict competition to EDWOSBs or WOSBs in industries in which SBA has determined that WOSBs are underrepresented and when the procuring agency has conducted an appropriate analysis of the agency's procurement history and made a determination that there is sufficient evidence of relevant discrimination in that industry by that agency. This proposed rule will establish the requirements and procedures necessary to administer these restricted competitions. 2. Alternative Approaches to Proposed Rule In developing this proposed rule, SBA considered the costs and benefits of the alternatives for certification of small business concerns that claim EDWOSB or WOSB status, particularly the alternatives provided by section 8(m) of the Act. Specifically, section 8(m)(2)(F) provides that in order to qualify as a WOSB or EDWOSB, a concern must either be certified by a Federal agency, a State government, or a national certifying entity approved by the Administrator, or, alternatively, must certify to the contracting officer that they are a small business concern owned and controlled by women. In light of this provision, SBA considered performing the certifications by requiring each concern to submit a formal application to SBA for a determination of its status. That approach would have entailed the electronic or paper submission of written documentation to support the concern's claim that it meets the eligibility criteria for being designated a WOSB or EDWOSB. SBA decided against utilizing this certification process as the method to establish WOSB or EDWOSB status primarily because of the paperwork burden and other costs that approach would impose on WOSBs. However, as an additional approach to self-certification, SBA is proposing to permit contracting activities to accept formal certification gained by WOSBs and EDWOSBs as a result of their participation in Federal small business programs. This may be accomplished by designating as WOSB or EDWOSB-certified all those concerns that at the time of procurement:
(1)Were SBA certified as 8(a) BD or SDB women-owned concerns in good standing;
(2)held a current certification as a disadvantaged business enterprise
(DBE)from a certifying entity of a Department of Transportation grant recipient; or
(3)were certified by an SBA-approved certifier. SBA has rejected them as primary methods for WOSB or EDWOSB certification in favor of a self-certification process. In the event of a protest SBA will recognize these certifications as evidence of a concern's representation in ORCA that it is a qualified EDWOSB or WOSB. The standards for meeting this requirement are discussed in more detail in the body of this proposed regulation. SBA believes that the proposed self-certification process would be the most beneficial and cost-effective approach for the small business concerns because they will not have to submit formal applications to SBA to become eligible for restricted competition for WOSB and EDWOSB procurements. As proposed, the self-certification process is similar to the one that is used in other existing SBA set-aside programs. For example, the SBA programs for small businesses and service-disabled veteran-owned small businesses permit those concerns to self-represent their size and socio-economic status when bidding on Federal contracts. The set-aside program for small businesses has worked well for decades. The set-aside program for service-disabled veteran-owned small businesses, while more recent, is also working well. Both of these set-aside programs are credible because they are supported by robust protest procedures. In other words, when an interested party such as an unsuccessful offeror believes that the apparent successful bidder or offeror on a Federal contract is not a small business, or not a service-disabled veteran-owned small business in the case of a set-aside for service-disabled veteran-owned small businesses, there is a formal process by which the interested party may submit a protest to SBA. This action halts the procurement until SBA investigates the allegations and reaches a decision. The subject proposed rule adopts the same approach, whereby interested parties may submit protests to SBA. The self-certification alternative will leverage two existing Federal electronic databases, the Central Contractor Registration
(CCR)and the On-line Representations and Certifications Application (ORCA), to facilitate the self-certification process. The approach is also consistent with SBA's statutory responsibilities under section 8(m) of the Act to establish certification standards and procedures. 3. What Are the Potential Benefits and Costs of This Regulatory Action? This rule directs benefits to EDWOSBs and WOSBs at a cost to concerns ineligible for the program and at some cost to the taxpayer through restrictions on competition, resulting in increased contract prices and decreased selection of products and services and new administrative costs of managing a Federal procurement set-aside program and the eligibility determination processes. Generally, the cost of transferring a contract from one business to another has minimal cost to society as a whole, but the loss of efficiency through restrictions in contracting has broader impacts that depend highly on the use of this program by contracting officers and the availability of competition among EDWOSBs and WOSBs. The most significant effect of this rule will be the transfer of contract dollars to EDWOSBs and WOSBs through the contracting officers' ability to restrict competition to EDWOSBs or WOSBs in industries in which SBA has determined that WOSBs are underrepresented and substantially underrepresented and where certain threshold determinations are made by an agency. It is difficult to estimate the total number of potential beneficiaries or losers that will be eligible for Federal small business assistance as a result of this proposed rule. Based on the four NAICS codes (9281—National Security and International Affairs, 3328—Coating, Engraving, Heat Treating, and Allied Activities, 3371—Household and Institutional Furniture and Kitchen Cabinet Manufacturing, and 4412—Other Motor Vehicle Dealers) identified in the RAND study, utilizing the Dynamic Small Business Search
(DSBS)engine in CCR, 1209 women-owned small businesses were identified as recipients of Federal contracts in these 4 NAICS codes. It is expected that the number of awards to EDWOSBs and WOSBs will increase within these NAICS codes, should an agency restrict competition to only those groups in accordance with the procedures in this proposed rule. This estimate is based on an analysis of EDWOSB and WOSB participation in Federal contracting and the industry market share identified in the RAND report. In addition, one purpose of this program is to draw additional EDWOSBs and WOSBs into Federal procurement through restricted competition in the identified NAICS codes. However, any such economic incentive to enter Federal procurement may represent a cost to the taxpayer and society in the form of higher contract prices or fewer choices of quality. From the point of view of Federal procurement policy, as set by statute, Federal agencies may benefit from the increased availability of EDWOSBs and WOSBs in order to meet their statutory goals. However, in the short term, restriction of competition raises the cost of contracts and limits the selection of products available. As more EDWOSBs and WOSBs enter into the Federal arena, competition will likely increase, lowering the cost of the program and ultimately eliminating underrepresentation within those industries and the industry's participation in the program. In the long run, even with the elimination of underrepresentation in all industries, small business opportunities may be enhanced by the experience gained in Federal contracting through set-asides under this program, but taxpayers ultimately bear the cost of small businesses inexperienced in Federal contracting learning through limited competition set-asides. Further, large businesses serving the Federal government as prime contractors with small business subcontracting goals may also benefit from a larger pool of WOSBs by enabling them to better achieve their subcontracting goals and at lower prices. No estimate of cost savings from these contracting decisions can be made since data are not available to directly measure price or competitive trends on Federal contracts. To the extent that additional firms become active in Government programs, this may entail some additional administrative costs to the Federal Government associated with additional bidders for Federal small business procurement programs, additional firms seeking SBA guaranteed lending programs, and additional firms eligible for enrollment in SBA's Dynamic Small Business Search data base. Among businesses in this group seeking SBA assistance, there will be some additional costs associated with compliance and verification associated with certification of small business status and protests of small business status. However, these activities are likely to generate minimal incremental costs since mechanisms are currently in place to handle these administrative requirements. In addition, SBA attempted to calculate the cost to agencies when determining if there has been discrimination against WOSBs or EDWOSBs in the designated industry groups. However, SBA does not have access to agency presolicitation market research or any other agency maintained data that would reveal the extent of an agency's efforts to consider or reject out-of-hand the offers of WOSBs or EDWOSBs in a post-contract award environment. SBA can however, state that the Government-wide study conducted by the Rand Corporation to determine industries where WOSBs were underrepresented cost approximately $250,000.00. SBA estimates that similar studies conducted by agencies in this regard should not exceed that figure, if they must seek outside assistance to make their determinations. This regulatory action promotes the Administration's objectives. One of SBA's goals in support of the Administration's objectives is to help individual small businesses succeed through fair and equitable access to capital and credit, government contracts, and management and technical assistance. Implementation of this proposed rule ensures that the intended beneficiaries have access to small business programs designed to assist them. This proposed rule does not interfere with state, local, and tribal governments in the exercise of their government functions. In a few instances, state and local governments have voluntarily adopted SBA's regulations for their programs to eliminate the need to establish an administrative mechanism for developing their own size standards. Executive Order 12988 This action meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect. Executive Order 13132 This rule does not have federalism implications as defined in the Executive Order. It 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, as specified in Executive Order 13132. In the event of a protest, this proposed rule will allow a WOSB concern to substantiate its self-certifications by submitting an existing certification from an SBA approved State Government certifier. In order for SBA to accept a State's certification, the State must show that its certification process meets certain standards, including a showing that its process is based on the same criteria for WOSB or EDWOSB eligibility, as set forth in this regulation. However, this proposed rule will not mandate how the States conduct their certification processes, and as such the rule will not have a direct effect on the States. Therefore, for the purposes of Executive Order 13132, SBA determines that this proposed rule has no federalism implications warranting preparation of a federalism assessment. Paperwork Reduction Act
(PRA)For purposes of the Paperwork Reduction Act, 44 U.S.C. chapter 35, SBA has determined that this proposed rule does not impose any new reporting or recordkeeping requirements. The certification process described in Subpart C, §§ 127.300 to 127.305, is not an information collection. In general, certifications are not subject to the PRA notice and review requirements unless such certifications are used as a substitute for collecting information. The proposed self-certification process does not require any concern seeking to benefit from Federal contracting opportunities designated for WOSBs or EDWOSBs to submit or maintain any information. Rather, the concerns will use the existing electronic contracting system ( *i.e.* , ORCA) to confirm the following statements, under penalty of perjury:
(1)The concern is certified as a EDWOSB or WOSB by a certifying entity approved by SBA and there have been no changes in its circumstances affecting its eligibility since certification; or
(2)The concern meets each of the applicable individual eligibility requirements described in subpart B, including that:
(i)It is a small business concern under the size standard assigned to the particular procurement;
(ii)It is at least 51 percent owned and controlled by one or more women who are United States citizens, or it is at least 51 percent owned and controlled by one or more women who are United States citizens and are economically disadvantaged; and
(iii)Neither SBA, in connection with an examination or protest, nor an SBA-approved certifier has issued a decision currently in effect finding that it does not qualify as a EDWOSB or WOSB. The process for the annual recertification is similar in nature and as such also does not require any reporting or recordkeeping. The only occasion on which concerns would have to submit information to SBA would be in the context of a protest or examination, when SBA might request that a particular WOSB submit documentation to substantiate its claim. This proposed rule does not require the WOSBs to maintain any specific information for this purpose. Further, any request for substantiation would not be standardized but rather would be specific to a WOSB's particular status, and as such are also not subject to the PRA. Nonetheless, SBA would welcome any comments on the process as described. Regulatory Flexibility Act SBA has determined that this proposed rule establishing a set-aside mechanism for WOSBs may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, *et seq.* Accordingly, SBA has prepared an Initial Regulatory Flexibility Analysis
(IRFA)addressing the impact of this Rule in accordance with section 603, title 5, of the United States Code. The IRFA examines the objectives and legal basis for the proposed rule; the kind and number of small entities that may be affected; the projected recordkeeping, reporting, and other requirements; whether there are any Federal rules that may duplicate, overlap, or conflict with the proposed rule; and whether there are any significant alternatives to the proposed rule. 1. What are the Reasons for, and Objectives of, the Proposed Rule? SBA is establishing procedures whereby Federal procuring agencies may use restricted competition in industries where WOSBs are underrepresented in Federal procurement and when certain other conditions are met. The purpose of the proposed rule is to create an initial framework and infrastructure for implementing these new procedures, thereby providing a tool for Federal agencies to increase Federal contracting to WOSBs. The objective of this proposed rule is to increase the amount of Federal contract dollars awarded to WOSBs in industries where they are currently underutilized. These procedures will assist Federal agencies in achieving the Federal Government's goal of awarding five percent of Federal contract dollars to WOSBs, as provided in the Federal Acquisition Streamlining Act of 1994. Federal procurement was just over $340 billion in FY 2006, the most recent fiscal year for which procurement data are available, and only $11.6 billion, or barely more than 3.4 percent, was awarded to WOSBs. 2. What is the Legal Basis for the Proposed Rule? SBA is proposing this regulation pursuant to section 8(m) of the Small Business Act, 15 U.S.C. 637(m), which authorizes the creation and implementation of a new mechanism for Federal contracting with WOSBs. 3. What is SBA's Description and Estimate of the Number of Small Entities to Which the Rule will Apply? The RFA directs agencies to provide a description, and where feasible, an estimate of the number of small business concerns that may be affected by the rule. This proposed rule will ultimately establish in the Federal Acquisition Regulation
(FAR)a new procurement mechanism to benefit WOSBs. Therefore, WOSBs that compete for Federal contracts are the specific group of small business concerns most directly affected by this rule. The rule may also affect other small businesses to the extent that small businesses not owned and controlled by women may be excluded from competing for certain Federal contracting opportunities. A survey of WOSBs in the CCR DSBS on September 19, 2007, identified a total of 1,208 WOSBs in the four industries identified by the RAND Corporation as those in which WOSBs are underrepresented or substantially underrepresented. The actual number of WOSBs in these industries may be less than 1,208 since some firms may have appeared under more than one industry search, and there is no simple method of determining how many firms, if any, appeared more than once. In addition, many otherwise-qualified EDWOSBs and WOSBs will not find it advantageous to pursue set-asides for WOSBs, since the industries in which they do business are not one of the four industries that RAND has identified in its study that may eventually be eligible for set-asides. However, the actual number may be more if SBA approves additional industries for set-aside procurements under these procedures. This proposed rule may also have a substantially adverse impact on small businesses other than WOSBs that are excluded from competition for Federal contracts that are set aside exclusively for WOSBs. Non-WOSB small businesses in the four designated industries identified in the Rand Corporation study may lose contracting opportunities when contracts are re-competed or may be excluded from opportunities from which they would have otherwise benefited. This would be particularly harmful for non-WOSBs in these industries that derive a significant portion of their business from Federal contracting. The number of small businesses that would be excluded under the proposed determination of eligible industries or future such determinations is not known at this time, but it could be a substantial number. SBA is seeking public comment on the adverse effects of this program on non-WOSB small business concerns through this proposed rule. Additional contracting opportunities identified by Federal agencies as candidates to set aside for WOSBs will come from new contracting requirements and contracts currently performed by small and large businesses. At this time, SBA cannot accurately predict how the existing distribution of contracts by business type may change by this rule. However, SBA does not expect many, if any, contracts awarded through the 8(a), HUBZone, or SDVOSB Programs ($22.6 billion in FY 2006) to be re-competed as WOSB or EDWOSB set-aside contracts because those programs also support other socioeconomic goals that agencies strive to achieve through their contracting activities. 4. What are the Projected Reporting, Recordkeeping, Paperwork Reduction Act and Other Compliance Requirements? WOSBs are not required to be certified as such in order to contract with the Federal Government. This will still be true if the proposed rule is adopted. However, for a WOSB to be eligible for Federal contracts restricted to WOSBs or EDWOSBs, it will have to self-certify its status as a WOSB. This requirement ensures that participation in certain contracting opportunities is restricted to qualified WOSBs according to the terms of section 8(m) of the Act and the criteria in this proposed rule. Similar eligibility requirements apply to WOSBs desiring to participate in SBA's 8(a) or SDB programs or the Department of Transportation's Disadvantaged Business Enterprise program. Further, SBA proposes to accept for WOSB-restricted contracts, those WOSBs currently certified for those programs. However, some WOSBs may choose to participate in procurements restricted for competition to WOSBs or EDWOSBs and may decide to pursue formal certification under one of the programs referred to in the previous paragraph to:
(1)Obtain the additional benefits afforded to them by those Federal programs; and
(2)to use that formal certification as an assurance that they are qualified for participation in procurements restricted to WOSBs and EDWOSBs. This formal certification requirement will have associated costs, *i.e.* , labor costs, for participating WOSBs. At a minimum, potential participants must complete specific forms and provide adequate documentation of their qualifications. Documents may include what a business would normally have on hand, *e.g.* , ownership records, tax records, etc. Firms applying for certification will have to locate copy and submit supporting documents. SBA estimates that the cost to complete these activities based on similar requirements for other SBA programs, will be approximately $150.00 per hour. After the tax and other business papers for documentation are assembled, completing the process application is estimated to take about 2.5 hours. An estimated 2,000 firms per year are expected to apply using this process and thus, the total cost is estimated to be $750,000 per year. The paperwork burden on the WOSB applying for certification is estimated from SBA's experience with SDB and 8(a) applications that require similar documentation to support the claim of economic disadvantage and 51 percent ownership and control of the firm. As noted earlier in this rule, WOSBs and EDWOSBs will not be required to submit any information to SBA to participate in restricted competition, or to maintain any additional information as a result of this rule. Therefore, SBA does not anticipate any reporting or recordkeeping burden directly associated with this proposed rule. Any costs associated with the concerns use of CCR or ORCA to complete their self-certifications would be de minimis. 5. What Relevant Federal Rules May Duplicate, Overlap, or Conflict With This Rule? SBA has not identified any relevant Federal rules currently in effect that duplicate or conflict with this rule. The restricted-competition feature of the set-aside mechanism for WOSBs will be an addition to the existing preference programs that agencies currently administer, such as small business set-asides, HUBZone set-asides, service-disabled veteran-owned small business set-asides, and contracts reserved for the 8(a) Business Development program. For any particular contract, a contracting officer may have a range of set-aside options from which to select. Because any contract awarded to a WOSB will also count towards an agency's small business goal, these procedures may lead a contracting officer to select this program in lieu of another. Therefore, although there may be some overlap, the addition of the set-aside mechanism for women-owned small business should complement rather than conflict with the goals of existing set-aside programs. 6. What Significant Alternatives Did SBA Consider That Accomplish the Stated Objectives and Minimize Any Significant Economic Impact on Small Entities? The Regulatory Flexibility Act
(RFA)requires agencies to identify alternatives to the rule in an effort to minimize any significant economic impact of the rule on small entities. SBA has determined that the rule may have a significant economic impact on a substantial number of small entities. This rule will implement the set-aside mechanism for WOSBs, as established by § 8(m) of the Act. All of the provisions of this rule reflect requirements under that statute. The legislation does provide SBA with alternative approaches, however, for the certification of WOSBs. Specifically, a WOSB may be certified by a Federal agency, a State government, or a national certifying entity approved by the Administrator; or, alternatively, a WOSB may self-certify to the contracting officer that it is a small business concern owned and controlled by women, along with adequate documentation in accordance with standards established by the Administration. As discussed earlier, SBA will allow EDWOSBs and WOSBs to self-certify their status in the existing CCR and ORCA databases. An alternative approach would have been to require EDWOSBs and WOSBs to apply to SBA or some other entity for formal certification. For the reasons discussed earlier, SBA has ruled out this approach as unnecessary and too costly. SBA believes that eligibility examinations and protest procedures incorporated into the proposed rule will minimize the likelihood of fraud and misrepresentation of WOSB and EDWOSB status. In addition, SBA attempted to calculate the cost to agencies when determining if there has been discrimination against WOSBs or EDWOSBs in the designated industry groups. However, SBA does not have access to agency presolicitation market research or any other agency maintained data that would reveal the extent of an agency's efforts to consider or reject out-of-hand the offers of WOSBs or EDWOSBs in a post-contract award environment. SBA can, however, state the Government-wide study conducted by the Rand Corporation to determine industries where WOSBs were underrepresented cost approximately $250,000.00. SBA estimates that similar studies conducted by agencies in this regard should not exceed that figure, if they must seek outside assistance to make their determinations. SBA estimates that implementation of this regulation will require no additional proposal costs for WOSBs, as compared to submitting proposals under any other small business set-aside program. Moreover, WOSBs currently represent their status for purposes of data collection that is needed to implement 15 U.S.C. 644(g); therefore, the self-certification process of this proposed rule imposes no additional requirement on WOSBs. List of Subjects 13 CFR Part 121 Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Small businesses. 13 CFR Part 125 Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Technical assistance. 13 CFR Part 127 Government procurement, Reporting and recordkeeping requirements, Small businesses. 13 CFR Part 134 Administrative practice and procedure, Claims, Equal access to justice, Lawyers, Organization and functions, Rules of practice for appeals, appeals of size determinations, appeals of NAICS code designations, appeals under the 8(a) Program, appeals from service-disabled veteran-owned small business concerns protests. Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR parts 121, 125, 127 and 134 as follows: PART 121—SMALL BUSINESS SIZE REGULATIONS 1. The authority citation for 13 CFR part 121 is revised to read as follows: Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 637, 644, and 662(5); and Public Law 105-135, sec. 401 *et seq.* , 111 Stat. 2592. § 121.401 [Amended] 2. Amend § 121.401 by adding the phrase “the Women-Owned Small Business
(WOSB)Federal Contract Assistance Procedures,” after the phrase “SBA's HUBZone Program”. 3. Amend § 121.1001 by adding a new paragraph (a)(9) to read as follows: § 121.1001 Who may initiate a size protest or request a formal size determination?
(a)* * *
(9)For SBA's WOSB Federal Contracting Assistance Procedures, the following entities may protest:
(i)Any concern that submits an offer for a specific requirement set aside for WOSBs or WOSBs owned by one or more women who are economically disadvantaged (EDWOSB);
(ii)The contracting officer;
(iii)The SBA Government Contracting Area Director; and
(iv)The Director for Government Contracting, or designee. 4. Amend § 121.1008(a) by adding a new sentence after the second sentence to read as follows: § 121.1008 What happens after SBA receives a size protest or a request for a formal size determination?
(a)* * * If the protest pertains to a requirement set aside for WOSBs or EDWOSBs, the Area Director will also notify SBA's Director for Government Contracting of the protest. * * * PART 125—GOVERNMENT CONTRACTING PROGRAMS 5. The authority citation for 13 CFR part 125 continues to read as follows: Authority: 15 U.S.C. 632(p), (q), 634 (b)(6), 637, 644, and 657f. 6. Amend § 125.6 by revising paragraph
(a)introductory text to read as follows: § 125.6 Prime contractor performance requirements (limitations on subcontracting).
(a)In order to be awarded a full or partial small business set-aside contract, an 8(a) contract, a WOSB or EDWOSB contract pursuant to part 127 of this chapter, or an unrestricted procurement where a concern has claimed a 10 percent small disadvantaged business
(SDB)price evaluation preference, a small business concern must agree that: 7. Add a new part 127 to read as follows: PART 127—WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT ASSISTANCE PROCEDURES Subpart A—General Provisions Sec. 127.100 What is the purpose of this part? 127.101 What type of assistance is available under this part? 127.102 What are the definitions of the terms used in this part? Subpart B—Eligibility Requirements To Qualify as an EDWOSB or WOSB 127.200 What are the requirements a concern must meet to qualify as an EDWOSB or WOSB? 127.201 What are the requirements for ownership of an EDWOSB and WOSB? 127.202 What are the requirements for control of an EDWOSB or WOSB? 127.203 What are the rules governing the requirement that economically disadvantaged women must own EDWOSBs? Subpart C—Certification of EDWOSB or WOSB Status 127.300 How is a concern certified as an EDWOSB or WOSB? 127.301 When may a contracting officer accept a concern's self-certification? 127.302 What third-party certifications may a concern use as evidence of its status as a qualified EDWOSB or WOSB? 127.303 How will SBA select and identify approved certifiers? 127.304 How does a concern obtain certification from an approved certifier? 127.305 May a concern determined not to qualify as an EDWOSB or WOSB submit a self-certification for a particular EDWOSB or WOSB requirement? Subpart D—Eligibility Examinations 127.400 What is an eligibility examination? 127.401 What is the difference between an eligibility examination and an EDOWSB or WOSB status protest pursuant to subpart F of this part? 127.402 How will SBA conduct an eligibility examination? 127.403 What happens if SBA verifies the concern's eligibility? 127.404 What happens if SBA is unable to verify a concern's eligibility? 127.405 What is the process for requesting an eligibility examination? Subpart E—Federal Contract Assistance 127.500 In what industries is a contracting officer authorized to restrict competition under this part? 127.501 How will SBA and the agencies determine the industries in which WOSBs are underrepresented or substantially underrepresented? 127.502 How will SBA identify and provide notice of the designated industries? 127.503 When is a contracting officer authorized to restrict competition under this part? 127.504 What additional requirements must a concern satisfy to submit an offer on an EDWOSB or WOSB requirement? 127.505 May a non-manufacturer submit an offer on an EDWOSB or WOSB requirement for supplies? 127.506 May a joint venture submit an offer on an EDWOSB or WOSB requirement? Subpart F—Protests 127.600 Who may protest the status of a concern as an EDWOSB or WOSB? 127.601 May a protest challenging the size and status of a concern as an EDWOSB or WOSB be filed together? 127.602 What are the grounds for filing an EDWOSB or WOSB status protest? 127.603 What are the requirements for filing an EDWOSB or WOSB protest? 127.604 How will SBA process an EDWOSB or WOSB status protest? 127.605 What are the procedures for appealing an EDWOSB or WOSB status protest decision? Subpart G—Penalties 127.700 What penalties may be imposed under this part? Authority: 15 U.S.C. 632, 634(b)(6), 637(m), and 644. Subpart A—General Provisions § 127.100 What is the purpose of this part? Section 8(m) of the Small Business Act authorizes certain procurement mechanisms to increase Federal contracting opportunities for women-owned small businesses (WOSBs) and to assist agencies in achieving their WOSB participation goals mandated under Section 15(g) of the Small Business Act. § 127.101 What type of assistance is available under this part? This part authorizes contracting officers to restrict competition to eligible WOSBs for certain Federal contracts in industries in which the Small Business Administration
(SBA)has determined that WOSBs are underrepresented or substantially underrepresented in Federal procurement and the procuring agency has satisfied itself through appropriate analysis (including analysis of its own procurement history), that the set-aside would meet all applicable legal requirements, including the equal protection requirements of the Due Process Clause of the Fifth Amendment of the Constitution. § 127.102 What are the definitions of the terms used in this part? For purposes of this part: *8(a) Business Development (8(a) BD) concern* means a concern that SBA has certified as an 8(a) BD program participant. *AA/GC&BD* means SBA's Associate Administrator for Government Contracting and Business Development. *Central Contractor Registration (CCR)* means the system that functions as the central registration and repository of contractor data for the Federal government. CCR also serves as the single portal for conducting searches of small business contractors. Prospective Federal contractors must be registered in CCR prior to award of a contract or purchase agreement, unless the award results from a solicitation issued on or before May 31, 1998. *Citizen* means a person born or naturalized in the United States. Resident aliens and holders of permanent visas are not considered to be citizens. *Concern* means a firm that satisfies the requirements in § 121.105 this chapter. *Contracting officer* has the meaning given to that term in Section 27(f)(5) of the Office of Federal Procurement Policy Act (codified at 41 U.S.C. 423(f)(5)). *D/GC* means SBA's Director for Government Contracting. *Economically disadvantaged WOSB (EDWOSB)* means a concern that is small pursuant to part 121 of this title and that is at least 51% owned and controlled by one or more women who are U.S. citizens and who are economically disadvantaged in accordance with §§ 127.200, 127.201, 127.202 and 127.203. An EDWOSB automatically qualifies as a WOSB. *EDWOSB requirement* means a Federal requirement for services or supplies for which a contracting officer has restricted competition to EDWOSBs. *Immediate family member* means father, mother, husband, wife, son, daughter, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, and daughter-in-law. *Interested party* means any concern that submits an offer for a specific EDWOSB or WOSB requirement, the contracting activity's contracting officer, or SBA. *ORCA* means the Online Representations and Certifications Application at *https://orca.bpn.gov* , a required registration for contractors interested in bidding on most Federal contracts. *Primary industry classification* means the six-digit North American Industry Classification System (NAICS) code designation that best describes the primary business activity of the concern. The NAICS code designations are described in the NAICS manual available via the Internet at *http://www.census.gov/NAICS* . In determining the primary industry in which a concern is engaged, SBA will consider the factors set forth in § 121.107 of this chapter. *Small disadvantaged business*
(SDB)means a concern that SBA has certified in accordance with subpart B of part 124 of this chapter, and is designated on CCR as an SDB. *Substantial underrepresentation* means a disparity ratio between 0.0 and 0.5; *i.e.* , the ratio representing the WOSB share of Federal prime contract dollars divided by the WOSB share of total business receipts. *Underrepresentation* means a disparity ratio between 0.5 and 0.8; *i.e.* , the ratio representing the WOSB share of Federal prime contract dollars divided by the WOSB share of total business receipts. *WOSB* means a concern that is small pursuant to part 121 of this chapter, and that is at least 51% owned and controlled by one or more women in accordance with §§ 127.200, 127.201 and 127.202. *WOSB requirement* means a Federal requirement for services or supplies for which a contracting officer has restricted competition to eligible WOSBs. Subpart B—Eligibility Requirements To Qualify as an EDWOSB or WOSB § 127.200 What are the requirements a concern must meet to qualify as an EDWOSB or WOSB?
(a)*Qualification as an EDWOSB* . To qualify as an EDWOSB, a concern must be:
(1)A small business as defined in part 121 of this chapter; and
(2)Not less than 51 percent unconditionally and directly owned and controlled by one or more women who are United States citizens and are economically disadvantaged.
(b)*Qualification as a WOSB* . To qualify as a WOSB, a concern must be:
(1)A small business as defined in part 121 of this chapter; and
(2)Not less than 51 percent unconditionally and directly owned and controlled by one or more women who are United States citizens. § 127.201 What are the requirements for ownership of an EDWOSB and WOSB?
(a)*General* . To qualify as an EDWOSB or WOSB, one or more women must unconditionally and directly own at least 51 percent of the concern. Ownership will be determined without regard to community property laws.
(b)*Requirement for unconditional ownership* . To be considered unconditional, the ownership must not be subject to any conditions, executory agreements, voting trusts, or other arrangements that cause or potentially cause ownership benefits to go to another. The pledge or encumbrance of stock or other ownership interest as collateral, including seller-financed transactions, does not affect the unconditional nature of ownership if the terms follow normal commercial practices and the owner retains control absent violations of the terms.
(c)*Requirement for direct ownership* . To be considered direct, the qualifying women must own 51 percent of the concern directly. The 51 percent ownership may not be through another business entity or a trust (including employee stock ownership trusts) that is, in turn, owned and controlled by one or more women or economically disadvantaged women. However, ownership by a trust, such as a living trust, may be treated as the functional equivalent of ownership by a woman or economically disadvantaged woman where the trust is revocable, and the woman is the grantor, a trustee, and the sole current beneficiary of the trust.
(d)*Ownership of a partnership* . In the case of a concern that is a partnership, at least 51 percent of each class of partnership interest must be unconditionally owned by one or more women. The ownership must be reflected in the concern's partnership agreement. For purposes of this requirement, general and limited partnership interests are considered different classes of partnership interest.
(e)*Ownership of a limited liability company* . In the case of a concern that is a limited liability company, at least 51 percent of each class of member interest must be unconditionally owned by one or more women.
(f)*Ownership of a corporation* . In the case of a concern that is a corporation, at least 51 percent of each class of voting stock outstanding and 51 percent of the aggregate of all stock outstanding must be unconditionally owned by one or more women. In determining unconditional ownership of the concern, any unexercised stock options or similar agreements held by a woman will be disregarded. However, any unexercised stock option or other agreement, including the right to convert non-voting stock or debentures into voting stock, held by any other individual or entity will be treated as having been exercised. § 127.202 What are the requirements for control of an EDWOSB or WOSB?
(a)*General* . To qualify as an EDWOSB or WOSB, the management and daily business operations of the concern must be controlled by one or more women. Control by one or more women means that both the long-term decision making and the day-to-day management and administration of the business operations must be conducted by one or more women.
(b)*Managerial position and experience* . A woman must hold the highest officer position in the concern (usually President or Chief Executive Officer) and must have managerial experience of the extent and complexity needed to run the concern. The woman manager need not have the technical expertise or possess the required license to be found to control the concern if she can demonstrate that she has ultimate managerial and supervisory control over those who possess the required licenses or technical expertise. However, if a man possesses the required license and has an equity interest in the concern, he may be found to control the concern.
(c)*Limitation on outside employment* . The woman who holds the highest officer position of the concern may not engage in outside employment that prevents her from devoting sufficient time and attention to the daily affairs of the concern to control its management and daily business operations.
(d)*Control over a partnership* . In the case of a partnership, one or more women must serve as general partners, with control over all partnership decisions.
(e)*Control over a limited liability company* . In the case of a limited liability company, one or more women must serve as management members, with control over all decisions of the limited liability company.
(f)*Control over a corporation* . One or more women must control the Board of Directors of the concern. Women are considered to control the Board of Directors when either:
(1)One or more women own at least 51 percent of all voting stock of the concern, are on the Board of Directors and have the percentage of voting stock necessary to overcome any super majority voting requirements; or
(2)Women comprise the majority of voting directors through actual numbers or, where permitted by state law, through weighted voting.
(g)*Involvement in the concern by other individuals or entities* . Men or other entities may be involved in the management of the concern and may be stockholders, partners or limited liability members of the concern. However, no males or other entity may exercise actual control or have the power to control the concern. § 127.203 What are the rules governing the requirement that economically disadvantaged women must own EDWOSBs?
(a)*General* . To qualify as an EDWOSB, the concern must be at least 51% owned by one or more women who are economically disadvantaged. A woman is economically disadvantaged if she can demonstrate that her ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business.
(b)*Limitation on personal net worth* . In order to be considered economically disadvantaged, the woman's personal net worth must be less than $750,000, excluding her ownership interest in the concern and equity in her primary personal residence.
(c)*Factors that may be considered* . The personal financial condition of the woman claiming economic disadvantage, including her personal income for the past two years (including bonuses, and the value of company stock given in lieu of cash), her personal net worth and the fair market value of all of her assets, whether encumbered or not, may be considered in determining whether she is economically disadvantaged.
(d)*Transfers within two years* . Assets that a woman claiming economic disadvantage transferred within two years of the date of the concern's certification will be attributed to the woman claiming economic disadvantage if the assets were transferred to an immediate family member, or to a trust that has as a beneficiary an immediate family member. The transferred assets within the two-year period will not be attributed to the woman if the transfer was:
(1)To or on behalf of an immediate family member for that individual's education, medical expenses, or some other form of essential support; or
(2)To an immediate family member in recognition of a special occasion, such as a birthday, graduation, anniversary, or retirement. Subpart C—Certification of EDWOSB or WOSB Status § 127.300 How is a concern certified as an EDWOSB or WOSB?
(a)*General* . At the time a concern submits an offer on a specific contract reserved for competition under this Part, it must be registered in the Central Contractor Registration
(CCR)and have a current self-certification posted on the Online Representations and Certifications Application
(ORCA)that it qualifies as an EDWOSB or WOSB.
(b)*Form of certification* . In conjunction with its required registration in the CCR database, the concern must submit a self-certification to the electronic annual representations and certifications at *http://orca.bpn.gov* , that it is a qualified EDWOSB or WOSB. The self-certification must include a representation under the penalty of perjury that:
(1)The concern is certified as a EDWOSB or WOSB by a certifying entity approved by SBA and there have been no changes in its circumstances affecting its eligibility since certification; or
(2)The concern meets each of the applicable individual eligibility requirements described in subpart B of this part, including that:
(i)It is a small business concern under the size standard assigned to the particular procurement;
(ii)It is at least 51 percent owned and controlled by one or more women who are United States citizens, or it is at least 51 percent owned and controlled by one or more women who are United States citizens and are economically disadvantaged; and
(iii)Neither SBA, in connection with an examination or protest, nor an SBA-approved certifier has issued a decision currently in effect finding that it does not qualify as a EDWOSB or WOSB.
(c)* Update of certification* . The concern must update its EDWOSB and WOSB representations and self-certification on ORCA as necessary, but at least annually, to ensure they are kept current, accurate, and complete. The representations and self-certification are effective for a period of one year from the date of submission or update to ORCA. § 127.301 When may a contracting officer accept a concern's self-certification?
(a)* General* . A contracting officer may accept a concern's self-certification on ORCA as accurate for a specific procurement reserved for award under this Part in the absence of a protest or other credible information that calls into question the concern's eligibility as a EDWOSB or WOSB. An example of such credible evidence includes information that the concern was determined by SBA or an SBA-approved certifier not to qualify as a EDWOSB or WOSB.
(b)*Referral to SBA* . When the contracting officer has information that calls into question the eligibility of a concern as a EDWOSB or WOSB, the contracting officer must refer the concern's self-certification to SBA for verification of the concern's eligibility by filing an EDWOSB or WOSB status protest pursuant to subpart F of this Part. § 127.302 What third-party certifications may a concern use as evidence of its status as a qualified EDWOSB or WOSB?
(a)*General* . In order for a concern to use a certification by another entity as evidence of its status as a qualified EDWOSB or WOSB in support of its representations in ORCA pursuant to § 127.300(b), the concern must have a current, valid certification from:
(1)SBA as an 8(a) BD or SDB women-owned concern in good standing;
(2)The Department of Transportation as a disadvantaged business enterprise
(DBE)that is at least 51 percent owned and controlled by one or more women; or
(3)An entity designated as an SBA-approved certifier on SBA's Web site located at *http://www.sba.gov/GC* .
(b)[Reserved] § 127.303 How will SBA select and identify approved certifiers?
(a)*General* . SBA may enter into written agreements to accept the EDWOSB or WOSB certification of a Federal agency or national certifying entity if SBA determines that the entity's certification process complies with SBA-approved certification standards and is based upon the same EDWOSB or WOSB eligibility requirements set forth in subpart B of this part. The written agreement will include a provision authorizing SBA to terminate the agreement if SBA subsequently determines that the entity's certification process does not comply with SBA-approved certification standards or is not based on the same EDWOSB or WOSB eligibility requirements as set forth in subpart B of this part.
(b)*Required certification standards.* In order for SBA to enter into an agreement to accept the EDWOSB or WOSB certification of a Federal agency, state government, or national certifying entity, the entity must establish the following:
(1)It will render fair and impartial EDWOSB or WOSB eligibility determinations.
(2)Its certification process will require applicant concerns to pre-register on CCR and submit sufficient information to enable it to determine whether the concern qualifies as an EDWOSB or WOSB. This information must include documentation demonstrating whether the concern is:
(i)A small business concern under SBA's size standards for its primary industry classification;
(ii)At least 51 percent owned and controlled by one or more women who are United States citizens; and
(iii)In the case of a concern applying for EDWOSB certification, at least 51 percent owned and controlled by one or more women who are United States citizens and economically disadvantaged.
(3)It will not decline to accept a concern's application for EDWOSB or WOSB certification on the basis of race, color, national origin, religion, age, disability, sexual orientation, or marital or family status.
(c)*List of SBA-approved certifiers.* SBA will maintain a list of approved certifiers on SBA's Internet Web site at *http://www.sba.gov/GC.* Any interested person may also obtain a copy of the list from the local SBA district office. § 127.304 How does a concern obtain certification from an approved certifier? A concern that seeks EDWOSB or WOSB certification from an SBA-approved certifier must submit its application directly to the approved certifier in accordance with the specific application procedures of the particular certifier. Any interested party may obtain such certification information and application by contacting the approved certifier at the address provided on SBA's list of approved certifiers. § 127.305 May a concern determined not to qualify as an EDWOSB or WOSB submit a self-certification for a particular EDWOSB or WOSB requirement? A concern that SBA or an SBA-approved certifier determines does not qualify as an EDWOSB or WOSB may not represent itself to be an EDWOSB or WOSB, as applicable, unless SBA subsequently determines that it is an eligible EDWOSB or WOSB pursuant to the examination procedures under § 127.405 of subpart D, and there have been no material changes in its circumstances affecting its eligibility since SBA's eligibility determination. Any concern determined not to be a qualified EDWOSB or WOSB may request that SBA conduct an examination to determine its EDWOSB or WOSB eligibility at any time once it believes in good faith that it satisfies all of the eligibility requirements to qualify as an EDWOSB or WOSB. Subpart D—Eligibility Examinations § 127.400 What is an eligibility examination? An eligibility examination is an investigation by SBA to verify that a concern meets the EDWOSB or WOSB eligibility requirements at the time of the examination. SBA may, in its sole discretion, perform an examination at any time after a concern self-certifies in CCR or ORCA that it is an EDWOSB or WOSB. § 127.401 What is the difference between an eligibility examination and an EDWOSB or WOSB status protest pursuant to subpart F of this part?
(a)*Eligibility examination.* An eligibility examination is the formal process through which SBA verifies and monitors the continuing eligibility of a concern that is designated on CCR or ORCA as an EDWOSB or WOSB. For purposes of an examination, the D/GC will determine the eligibility of a concern as of the date SBA notifies the concern that it will conduct the examination. The D/GC's eligibility decision constitutes the final agency decision and will be effective and apply to all solicitations issued on or after the date of the decision issued pursuant to §§ 127.403, 127.404(b), or 127.405(e). If SBA is conducting an eligibility examination on a concern that has submitted an offer on a pending EDWOSB or WOSB procurement and SBA has credible information that the concern may not qualify as an EDWOSB or WOSB, then SBA may initiate a protest pursuant to § 127.600, to suspend award of the contract for 15 business days pending SBA's determination of the concern's eligibility.
(b)*EDWOSB or WOSB protests.* An EDWOSB or WOSB status protest provides a mechanism for challenging or verifying the EDWOSB or WOSB eligibility of a concern in connection with a specific EDWOSB or WOSB requirement. SBA will process EDWOSB or WOSB protests in accordance with the procedures and timeframe set forth in subpart F, and will determine the EDWOSB or WOSB eligibility of the protested concern as of the date the concern represented its EDWOSB or WOSB status as part of its initial offer including price. SBA's protest determination will apply to the specific procurement to which the protest relates and to future procurements. § 127.402 How will SBA conduct an examination?
(a)*Notification.* No less than 5 business days before commencing an examination, SBA will notify the concern in writing that it will conduct an examination to determine the status of the concern as an EDWOSB or WOSB. The notification also will advise the concern that its EDWOSB or WOSB eligibility will be determined based on the status of the concern on the date of the notification.
(b)*Request for information.* SBA may request that the concern provide documentation and information related to the concern's EDWOSB or WOSB eligibility. SBA may draw an adverse inference where a concern fails to cooperate in providing the requested information. § 127.403 What happens if SBA verifies the concern's eligibility? If SBA verifies that the concern satisfies the applicable EDWOSB or WOSB eligibility requirements at the time of the eligibility examination, then the D/GC will send the concern a written decision to that effect and will allow the concern's EDWOSB or WOSB designation in CCR and ORCA to stand. § 127.404 What happens if SBA is unable to verify a concern's eligibility?
(a)*Notice of proposed determination of ineligibility.* If SBA is unable to verify that the concern qualifies as an EDWOSB or WOSB at the time of the examination, then the D/GC will send the concern a written notice explaining the reasons SBA believes the concern does not qualify as an EDWOSB or WOSB. The notice will advise the concern that it has 15 calendar days from the date it receives the notice to respond.
(b)*SBA determination.* Following the 15-day response period, the D/GC or designee will consider the reasons of proposed ineligibility and any information the concern submitted in response, and will send the concern a written decision finding that it either qualifies or does not qualify as an EDWOSB or WOSB.
(1)If SBA verifies that the concern qualifies as an EDWOSB or WOSB at the time of the examination, then the D/GC will send the concern a decision to that effect and will allow the concern to continue to self-certify its EDWOSB or WOSB status.
(2)If SBA determines that the concern does not qualify as an EDWOSB or WOSB, then the D/GC will send the concern a written decision explaining the basis of ineligibility, and will require that the concern remove its EDWOSB or WOSB designation in the CCR and ORCA within five business days after the date of the decision. § 127.405 What is the process for requesting an eligibility examination?
(a)*General.* A concern may request that SBA conduct an examination to verify its eligibility as an EDWOSB or WOSB at any time after it is determined by SBA or an SBA-approved certifier not to qualify as an EDWOSB or WOSB, if the concern believes in good faith that it satisfies all of the EDWOSB or WOSB eligibility requirements under subpart B of this part.
(b)*Format.* The request for an examination must be in writing and must specify the particular reasons the concern was determined not to qualify as an EDWOSB or WOSB.
(c)*Submission of request.* The concern must submit its request directly to the Director for Government Contracting, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416, or by fax to
(202)205-6390, marked “Attn: Request for Women-Owned Small Business Procedures Examination.”
(d)*Notice of receipt of request.* SBA will immediately notify the concern in writing once SBA receives its request for an examination. The notification will advise the concern that its eligibility will be determined based on the status of the concern on the date of the notification. SBA may request that the concern provide documentation and information related to the concern's EDWOSB or WOSB eligibility and may draw an adverse inference if the concern fails to cooperate in providing the requested information.
(e)*Determination of eligibility.* The D/GC will send the concern a written decision finding that it either qualifies or does not qualify as an EDWOSB or WOSB.
(1)If the D/GC determines that the concern does not qualify as an EDWOSB or WOSB, the decision will explain the specific reasons for the adverse determination and advise the concern that it is prohibited from self-certifying as an EDWOSB or WOSB. If the concern self-certifies as an EDWOSB or WOSB notwithstanding SBA's adverse determination, the concern will be subject to the penalties under subpart F of this part.
(2)If the D/GC determines that the concern qualifies as an EDWOSB or WOSB, then the D/GC will send the concern a written decision to that effect and will advise the concern that it may self-certify as an EDWOSB or WOSB, as applicable.
(f)*Effect of decision.* The D/GC's decision is effective as of the date of the decision and applies to all solicitations issued on or after the effective date. Subpart E—Federal Contract Assistance § 127.500 In what industries is a contracting officer authorized to restrict competition under this part? A contracting officer may restrict competition under this part only in those industries in which SBA has determined that WOSBs are underrepresented or substantially underrepresented in Federal procurement, as specified in § 127.501(a), and the procuring agency finds that a set-aside in that industry would be in accordance with the equal protection requirements of the Due Process Clause of the Fifth Amendment of the Constitution, as specified in § 127.501(b). § 127.501 How will SBA determine the industries that are eligible for EDWOSB or WOSB requirements?
(a)*SBA determination of underrepresented or substantially underrepresented industries* .
(1)Approximately every five years, SBA will conduct a study to identify the industries in which WOSBs are underrepresented or substantially underrepresented in Federal contracting. The study will include an analysis of the extent of disparity of WOSBs in Federal contracting.
(2)*Data collection.* In determining the extent of disparity of WOSBs in Federal contracting, SBA may request that the head of any Federal department or agency provide SBA, or other designated entity, data or information necessary to analyze the extent of disparity of WOSBs in Federal contracting.
(3)Based upon its analysis, SBA will designate by 4-digit NAICS Industry Subsector industries in which WOSBs are underrepresented or substantially underrepresented.
(b)*Agency determination of discrimination.* Each agency is responsible for carrying out analysis sufficient to justify a restriction on competition under the equal protection requirements of the Due Process Clause of the Fifth Amendment of the Constitution. Where an agency seeks to reserve a procurement for competition exclusively among WOSBs or EDWOSBs within an industry designated by SBA in paragraph (a)(3) of this section, the agency must conduct an appropriate analysis of the agency's procurement history and make a determination of whether there is evidence of relevant discrimination in that industry by that agency. § 127.502 How will SBA identify and provide notice of the designated industries? SBA will post on its Internet Web site a list of 4-digit NAICS Industry Subsector industries it designates under § 127.501(a). The list of designated industries also may be obtained from the local SBA district office and may be posted on the General Services Administration Internet Web site. § 127.503 When is a contracting officer authorized to restrict competition under this part?
(a)*EDWOSB requirements.* For requirements in industries designated by SBA pursuant to § 127.501, a contracting officer may restrict competition to EDWOSBs if the contracting officer has a reasonable expectation based on market research that:
(1)Two or more EDWOSBs will submit offers for the contract;
(2)The anticipated award price of the contract (including options) does not exceed $5,000,000, in the case of a contract assigned an NAICS code for manufacturing; or $3,000,000, in the case of all other contracts; and
(3)Contract award may be made at a fair and reasonable price.
(b)*WOSB requirements.* If market research indicates that the criteria in paragraph
(a)are not met for restricting competition to EDWOSBs, then the contracting officer may restrict competition to WOSBs if:
(1)The requirement is in an industry that SBA has designated as substantially underrepresented; and
(2)The contracting officer has a reasonable expectation based on market research that—
(i)Two or more WOSBs will submit offers;
(ii)The anticipated award price of the contract (including options) will not exceed $5,000,000, in the case of a contract assigned an NAICS code for manufacturing, or $3,000,000 in the case of all other contracts; and
(iii)Contract award may be made at a fair and reasonable price.
(c)*8(a)* *BD requirements.* A contracting officer may not restrict competition to eligible EDWOSBs or WOSBs if an 8(a) BD Participant is currently performing the requirement under the 8(a) BD Program or SBA has accepted the requirement for performance under the authority of the 8(a) BD program, unless SBA consented to release the requirement from the 8(a) BD program.
(d)*Contract file.* When restricting competition to WOSBs in accordance with § 127.503(b), the contracting officer must document the contract file accordingly, including the type and extent of market research and the fact that the NAICS code assigned to the contract is for an industry that SBA has designated as a substantially underrepresented industry. § 127.504 What additional requirements must a concern satisfy to submit an offer on an EDWOSB or WOSB requirement? In order for a concern to submit an offer on a specific EDWOSB or WOSB requirement, the concern must ensure that the appropriate representations and certifications on ORCA are accurate and complete at the time it submits its offer to the contracting officer, including, but not limited to, the fact that:
(a)It is small under the size standard corresponding to the NAICS code assigned to the contract;
(b)It is listed on CCR and ORCA as an EDWOSB or WOSB;
(c)There has been no material change in any of its circumstances affecting its EDWOSB or WOSB eligibility; and
(d)It will meet the applicable percentages of work requirement as set forth in § 125.6 of this chapter (limitations on subcontracting rule). § 127.505 May a non-manufacturer submit an offer on an EDWOSB or WOSB requirement for supplies? An EDWOSB or WOSB that is a non-manufacturer, as defined in § 121.406(b) of this chapter, may submit an offer on an EDWOSB or WOSB contract for supplies, if it meets the requirements under the non-manufacturer rule set forth in § 121.406(b). § 127.506 May a joint venture submit an offer on an EDWOSB or WOSB requirement? A joint venture may submit an offer on an EDWOSB or WOSB contract if the joint venture meets all of the following requirements:
(a)Except as provided in § 121.103(h)(3) of this chapter, the combined annual receipts or employees of the concerns entering into the joint venture must meet the applicable size standard corresponding to the NAICS code assigned to the contract;
(b)The EDWOSB or WOSB participant of the joint venture must be designated on the CCR and the ORCA as an EDWOSB or WOSB;
(c)The EDWOSB or WOSB must be the managing venturer of the joint venture, and an employee of the managing venturer must be the project manager responsible for the performance of the contract;
(d)The joint venture must perform the applicable percentage of work required of the EDWOSB or WOSB offerors in accordance with § 125.6 of this chapter (limitations on subcontracting rule); and
(e)The EDWOSB or WOSB venturer must perform a significant portion of the contract. Subpart F—Protests § 127.600 Who may protest the status of a concern as an EDWOSB or WOSB? An interested party may protest the EDWOSB or WOSB status of an apparent successful offeror on an EDWOSB or WOSB contract. Any other party or individual may submit information to the contracting officer or SBA in an effort to persuade them to initiate a protest or to persuade SBA to conduct an examination pursuant to subpart D of this part. § 127.601 May a protest challenging the size and status of a concern as an EDWOSB or WOSB be filed together? An interested party seeking to protest both the size and the EDWOSB or WOSB status of an apparent successful offeror on an EDWOSB or WOSB requirement must file two separate protests, one size protest pursuant to part 121 of this chapter and one EDWOSB or WOSB status protest pursuant to this subpart. An interested party seeking to protest only the size of an apparent successful EDWOSB or WOSB offeror must file a size protest to the contracting officer pursuant to part 121 of this chapter. § 127.602 What are the grounds for filing an EDWOSB or WOSB status protest? SBA will consider a protest challenging the status of a concern as an EDWOSB or WOSB if the protest presents credible evidence that the concern is not owned and controlled by one or more women who are United States citizens and, if the protest is in connection with an EDWOSB contract, that the concern is not at least 51% owned and controlled by one or more women who are economically disadvantaged. § 127.603 What are the requirements for filing an EDWOSB or WOSB protest?
(a)*Format.* Protests must be in writing and must specify all the grounds upon which the protest is based. A protest merely asserting that the protested concern is not an eligible EDWOSB or WOSB, without setting forth specific facts or allegations, is insufficient.
(b)*Filing.* Protestors may deliver their written protests in person, by facsimile, by express delivery service, or by U.S. mail (postmarked within the applicable time period) to the following:
(1)To the contracting officer, if the protestor is an offeror for the specific contract; or
(2)To the D/GC, if the protest is initiated by the contracting officer or SBA.
(c)*Timeliness.*
(1)For negotiated acquisitions, an interested party must submit its protest by the close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror or notification of award.
(2)For sealed bid acquisitions, an interested party must submit its protest by close of business on the fifth business day after bid opening.
(3)Any protest submitted after the time limits is untimely, unless it is from SBA or the contracting officer. A contracting officer or SBA may file an EDWOSB or WOSB protest at any time after bid opening or notification of intended awardee, whichever applies.
(4)Any protest received prior to bid opening or notification of intended awardee, whichever applies, is premature.
(5)A timely filed protest applies to the procurement in question even if filed after award.
(d)*Referral to SBA.* The contracting officer must forward to SBA any protest received, notwithstanding whether he or she believes it is premature, sufficiently specific, or timely. The contracting officer must send all protests, along with a referral letter, directly to the Director for Government Contracting, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416, or by fax to
(202)205-6390, Attn: Women-Owned Small Business Status Protest. The contracting officer's referral letter must include information pertaining to the solicitation that may be necessary for SBA to determine timeliness and standing, including: The solicitation number; the name, address, telephone number and facsimile number of the contracting officer; whether the protestor submitted an offer; whether the protested concern was the apparent successful offeror; when the protested concern submitted its offer; whether the procurement was conducted using sealed bid or negotiated procedures; the bid opening date, if applicable; when the protest was submitted to the contracting officer; when the protestor received notification about the apparent successful offeror, if applicable; and whether a contract has been awarded. The D/GC or designee will decide the merits of EDWOSB or WOSB status protests. § 127.604 How will SBA process an EDWOSB or WOSB status protest?
(a)*Notice of receipt of protest.* Upon receipt of the protest, SBA will notify the contracting officer and the protestor of the date SBA received the protest and whether SBA will process the protest or dismiss it under paragraph
(b)of this section.
(b)*Dismissal of protest.* If SBA determines that the protest is premature, untimely, nonspecific, or is based on nonprotestable allegations, SBA will dismiss the protest and will send the contracting officer and the protestor a notice of dismissal, citing the reason(s) for the dismissal. Notwithstanding SBA's dismissal of the protest, SBA may, in its sole discretion, consider the protest allegations in determining whether to conduct an examination of the protested concern pursuant to subpart D of this part.
(c)*Notice to protested concern.* If SBA determines that the protest is timely, sufficiently specific and is based upon protestable allegations, SBA will:
(1)Notify the protested concern of the protest and of its right to submit information responding to the protest within five business days from the date of the notice; and
(2)Forward a copy of the protest to the protested concern.
(d)*Time period for determination.* SBA will determine the EDWOSB or WOSB status of the protested concern within 15 business days after receipt of the protest, or within any extension of that time that the contracting officer may grant SBA. If SBA does not issue its determination within the 15-day period, the contracting officer may award the contract, unless the contracting officer has granted SBA an extension.
(e)*Notification of determination.* SBA will notify the contracting officer, the protestor, and the protested concern in writing of its determination. If SBA sustains the protest, SBA will issue a decision explaining the basis of its determination and requiring that the concern remove its designation on the CCR and ORCA as an EDWOSB or WOSB, as appropriate.
(f)*Effect of determination.* SBA's determination is effective immediately and is final unless overturned by OHA on appeal pursuant to § 127.605 of this part.
(1)The purpose of the protest process is to ensure that contracts are awarded to, and performed by, eligible WOSB and EDWOSB concerns. A contracting officer shall not award a contract to an ineligible concern, and shall not authorize an ineligible concern to begin performance.
(2)Where award was made and performance commenced before receipt of a negative final agency decision, the contracting officer may terminate the contract, not exercise any option, or not award further task or delivery orders.
(3)Whether or not a contracting officer decides to not allow an ineligible concern to fully perform a contract under paragraph (f)(2) of this section or under § 134.704 of this title, the contracting officer cannot count the award as one to an EDWOSB or WOSB and must update the Federal Procurement Data System-Next Generation (FPDS-NG) and other databases from the date of award accordingly.
(4)A concern that has been found to be ineligible may not represent itself as a WOSB or EDWOSB on another procurement until it cures the reason for its ineligibility. A concern that believes in good faith that it has cured the reason(s) for its ineligibility may request an examination under the procedures set forth in § 127.405. § 127.605 What are the procedures for appealing an EDWOSB or WOSB status protest decision? The protested concern, the protestor, or the contracting officer may file an appeal of a WOSB or EDWOSB status protest determination with the SBA's Office of Hearings and Appeals
(OHA)in accordance with part 134 of this chapter. Subpart G—Penalties § 127.700 What penalties may be imposed under this part? Persons or concerns that falsely self-certify or otherwise misrepresent a concern's status as an EDWOSB or WOSB for purposes of receiving Federal contract assistance under this part are subject to:
(a)Suspension and Debarment pursuant to the procedures set forth in the Federal Acquisition Regulations, subpart 9.4 of title 48 of the Code of Federal Regulations;
(b)Administrative and civil remedies prescribed by the False Claims Act, 31 U.S.C. 3729-3733 and under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801-3812;
(c)Administrative and criminal remedies as described at Sections 16(a) and
(d)of the Small Business Act, 15 U.S.C. 645(a) and (d), as amended;
(d)Criminal penalties under 18 U.S.C. 1001; and
(e)Any other penalties as may be available under law. PART 134—RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF HEARINGS AND APPEALS 8. The Authority citation for 13 CFR continues to read as follows: Authority: 5 U.S.C. 504, 15 U.S.C. 632, 634(b)(6), 637(a), 637(m), 648(l), 656(i) and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189. Subpart A—General Rules 9. Amend § 134.102 by redesignating paragraph
(s)as paragraph
(t)and adding new paragraph
(s)to read as follows: § 134.102 Jurisdiction of OHA
(s)Appeals from Women-Owned Small Business or Economically-Disadvantaged Women-Owned Small Business protest determinations under Part 127 of this chapter; Subpart E—Rules of Practice for Appeals from Service-Disabled Veteran Owned Small Business Concern Protests 10. Amend § 134.515 by revising paragraph
(b)to read as follows: § 134.515 What are the effects of the Judge's decision?
(b)The Judge may reconsider an appeal decision within 20 calendar days after issuance of the written decision. Any party who has appeared in the proceeding, or SBA, may request reconsideration by filing with the Judge and serving a petition for reconsideration on all the parties to the appeal within 20 calendar days after service of the written decision. The request for reconsideration must clearly show an error of fact or law material to the decision. The Judge may also reconsider a decision on his or her own initiative. 11. Add new subpart G to read as follows: Subpart G—Rules of Practice for Appeals From Women-Owned Small Business Concern
(WOSB)and Economically Disadvantaged WOSB Concern (EDWOSB) Protests 134.701 What is the scope of the rules in this subpart G? 134.702 Who may appeal? 134.703 When must a person file an appeal from an WOSB or EDWOSB protest determination? 134.704 What are the effects of the appeal on the procurement at issue? 134.705 What are the requirements for an appeal petition? 134.706 What are the service and filing requirements? 134.707 When does the D/GC transmit the protest file and to whom? 134.708 What is the standard of review? 134.709 When will a Judge dismiss an appeal? 134.710 Who can file a response to an appeal petition and when must such a response be filed? 134.711 Will the Judge permit discovery and oral hearings? 134.712 What are the limitations on new evidence? 134.713 When is the record closed? 134.714 When must the Judge issue his or her decision? 134.715 Can a Judge reconsider his decision? Subpart G—Rules of Practice for Appeals From Women-Owned Small Business Concern
(WOSB)and Economically Disadvantaged WOSB Concern (EDWOSB) Protests § 134.701 What is the scope of the rules in this subpart G?
(a)The rules of practice in this subpart G apply to all appeals to OHA from formal protest determinations made by the Director for Government Contracting (D/GC) in connection with a Women-Owned Small Business
(WOSB)or Economically Disadvantaged WOSB (EDWOSB) status protest. Appeals under this subpart include issues related to whether the concern is owned and controlled by one or more women who are United States citizens and, if the appeal is in connection with an EDWOSB contract, that the concern is at least 51% owned and controlled by one or more women who are economically disadvantaged. This includes appeals from determinations by the D/GC that the protest was premature, untimely, nonspecific, or not based upon protestable allegations.
(b)Except where inconsistent with this subpart, the provisions of Subpart A and B of this part apply to appeals listed in paragraph
(a)of this section.
(c)Appeals relating to formal size determinations and NAICS Code designations are governed by subpart C of this part. § 134.702 Who may appeal? Appeals from WOSB or EDWOSB protest determinations may be filed with OHA by the protested concern, the protestor, or the contracting officer responsible for the procurement affected by the protest determination. § 134.703 When must a person file an appeal from an WOSB or EDWOSB protest determination? Appeals from a WOSB or EDWOSB protest determination must be commenced by filing and serving an appeal petition within 10 business days after the appellant receives the WOSB or EDWOSB protest determination (see § 134.204 for filing and service requirements). An untimely appeal will be dismissed. § 134.704 What are the effects of the appeal on the procurement at issue? Appellate decisions apply to the procurement in question. If the contracting officer awarded the contract to a concern that OHA finds to be ineligible, then the contracting officer may terminate the contract, not exercise any options, or not award further task or delivery orders. § 134.705 What are the requirements for an appeal petition?
(a)*Format.* There is no required format for an appeal petition. However, it must include the following information:
(1)The solicitation or contract number, and the name, address, and telephone number of the contracting officer;
(2)A statement that the petitioner is appealing a WOSB or EDWOSB protest determination issued by the D/GC and the date that the petitioner received it;
(3)A full and specific statement as to why the WOSB or EDWOSB protest determination is alleged to be based on a clear error of fact or law, together with an argument supporting such allegation; and
(4)The name, address, telephone number, facsimile number, and signature of the appellant or its attorney.
(b)*Service of appeal.* The appellant must serve the appeal petition upon each of the following:
(1)The D/GC at U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, facsimile
(202)205-6390;
(2)The contracting officer responsible for the procurement affected by a WOSB or EDWOSB determination;
(3)The protested concern (the business concern whose WOSB or EDWOSB status is at issue) or the protester; and
(4)SBA's Office of General Counsel, Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, facsimile number
(202)205-6873.
(c)*Certificate of Service.* The appellant must attach to the appeal petition a signed certificate of service meeting the requirements of § 134.204(d). § 134.706 What are the service and filing requirements? The provisions of § 134.204 apply to the service and filing of all pleadings and other submissions permitted under this subpart unless otherwise indicated in this subpart. § 134.707 When does the D/GC transmit the protest file and to whom? Upon receipt of an appeal petition, the D/GC will send to OHA a copy of the protest file relating to that determination. The D/GC will certify and authenticate that the protest file, to the best of his or her knowledge, is a true and correct copy of the protest file. § 134.708 What is the standard of review? The standard of review for an appeal of a WOSB or EDWOSB protest determination is whether the D/GC's determination was based on clear error of fact or law. § 134.709 When will a Judge dismiss an appeal?
(a)The presiding Judge will dismiss the appeal if the appeal is untimely filed under § 134.703.
(b)The matter has been decided or is the subject of adjudication before a court of competent jurisdiction over such matters. However, once an appeal has been filed, initiation of litigation of the matter in a court of competent jurisdiction will not preclude the Judge from rendering a final decision on the matter. § 134.710 Who can file a response to an appeal petition and when must such a response be filed? Although not required, any person served with an appeal petition may file and serve a response supporting or opposing the appeal if he or she wishes to do so. If a person decides to file a response, the response must be filed within 7 business days after service of the appeal petition. The response should present argument. § 134.711 Will the Judge permit discovery and oral hearings? Discovery will not be permitted, and oral hearings will not be held. § 134.712 What are the limitations on new evidence? The Judge may not admit evidence beyond the written protest file nor permit any form of discovery. All appeals under this subpart will be decided solely on a review of the evidence in the written protest file, arguments made in the appeal petition, and response(s) filed thereto. § 134.713 When is the record closed? The record will close when the time to file a response to an appeal petition expires pursuant to 13 CFR 134.710. § 134.714 When must the Judge issue his or her decision? The Judge shall issue a decision, insofar as practicable, within 15 business days after close of the record. § 134.715 Can a Judge reconsider his decision?
(a)The Judge may reconsider an appeal decision within 20 calendar days after issuance of the written decision. Any party who has appeared in the proceeding, or SBA, may request reconsideration by filing with the Judge and serving a petition for reconsideration on all the parties to the appeal within 20 calendar days after service of the written decision. The request for reconsideration must clearly show an error of fact or law material to the decision. The Judge may also reconsider a decision on his or her own initiative.
(b)The Judge may remand a proceeding to the D/GC for a new WOSB or EDWOSB determination if the D/GC fails to address issues of decisional significance sufficiently, does not address all the relevant evidence, or does not identify specifically the evidence upon which it relied. Once remanded, OHA no longer has jurisdiction over the matter, unless a new appeal is filed as a result of the new WOSB or EDWOSB determination. Steven C. Preston, Administrator. [FR Doc. E7-25056 Filed 12-26-07; 8:45 am] BILLING CODE 8025-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 284 [Docket No. RM08-1-000] Enhancement of Competition in the Secondary Release Market; Notice of Extension of Time December 14, 2007. AGENCY: Federal Energy Regulatory Commission. ACTION: Notice of Proposed Rulemaking: Extension of the Comment Date. SUMMARY: On November 15, 2007, the Federal Energy Regulatory Commission issued a Notice of Proposed Rulemaking proposing revisions to its regulations governing interstate natural gas pipelines to reflect changes in the market for short-term transportation services on pipelines and to improve the efficiency of the Commission's capacity release mechanism. The date for filing comments on the proposed rule is being extended at the request of the American Gas Association, the American Public Gas Association, the Interstate Natural Gas Association of America and the Process Gas Consumers Group. DATES: Comments are due on or before January 25, 2008. ADDRESSES: You may submit comments, identified by docket number by any of the following methods: • *Agency Web Site: http://ferc.gov.* Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. • *Mail/Hand Delivery:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. FOR FURTHER INFORMATION CONTACT: Robert McLean, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *Robert.McLean@ferc.gov,*
(202)502-8156. David Maranville, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *David.Maranville@ferc.gov,*
(202)502-6351. SUPPLEMENTARY INFORMATION: On December 13, 2007, the American Gas Association, the American Public Gas Association, the Interstate Natural Gas Association of America, and the Process Gas Consumers Group (the Natural Gas Associations) filed a joint motion for an extension of time to file comments in response to the Commission's Notice of Proposed Rulemaking in this docket. 1 They request that the Commission extend the deadline for comments from January 10, 2008 to February 8, 2008. The motion states that the Natural Gas Associations require additional time in order to poll their members and weigh the major policy and factual issues raised in the Notice of Proposed Rulemaking. 1 *Promotion of a More Efficient Capacity Release Market,* 72 FR 65,916 (November 26, 2007), 121 FERC ∥ 61,170 (2007). Upon consideration, notice is hereby given that an extension of time for filing comments on the Notice of Proposed Rulemaking is granted to and including January 25, 2008. Kimberly D. Bose, Secretary. [FR Doc. E7-25001 Filed 12-26-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 071212833-7843-01] RIN 0648-XB94 Fisheries of the Northeastern United States; Atlantic Bluefish Fisheries; 2008 Atlantic Bluefish Specifications AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes 2008 specifications for the Atlantic bluefish fishery, including state-by-state commercial quotas, a recreational harvest limit, and recreational possession limits for Atlantic bluefish off the east coast of the United States. The intent of these specifications is to establish the allowable 2008 harvest levels and possession limits to attain the target fishing mortality rate (F), consistent with the stock rebuilding program in Amendment 1 to the Atlantic Bluefish Fishery Management Plan (FMP). DATES: Written comments must be received no later than 5 p.m. eastern standard time, on January 28, 2008. ADDRESSES: You may submit comments, identified by 0648-XB94, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking portal: *http://www.regulations.gov* , • Fax:
(978)281-9135, Attn: Regional Administrator. • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on 2008 Bluefish Specifications”, Instructions: All comments received are part of the public record and will generally be posted to *http://regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publically 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 specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South Street, Dover, DE 19901-6790. The specifications document is also accessible via the Internet at *http://www.nero.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Tobey Curtis, Fishery Policy Analyst,
(978)281-9273. SUPPLEMENTARY INFORMATION: Background The regulations implementing the FMP are prepared by the Mid-Atlantic Fishery Management Council (Council) and appear at 50 CFR part 648, subparts A and J. Regulations requiring annual specifications are found at § 648.160. The management unit for bluefish ( *Pomatomus saltatrix* ) is U.S. waters of the western Atlantic Ocean. The FMP requires that the Council recommend, on an annual basis, total allowable landings
(TAL)for the fishery, consisting of a commercial quota and recreational harvest limit (RHL). A research set aside
(RSA)quota is deducted from the bluefish TAL (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors. The annual review process for bluefish requires that the Council's Bluefish Monitoring Committee (Monitoring Committee) review and make recommendations based on the best available data, including, but not limited to, commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Based on the recommendations of the Monitoring Committee, the Council makes a recommendation to the Northeast Regional Administrator (RA). This FMP is a joint plan with the Atlantic States Marine Fisheries Commission (Commission); therefore, the Commission meets during the annual specification process to adopt complementary measures. The Council's recommendations must include supporting documentation, concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the **Federal Register** . After considering public comment, NMFS will publish final specifications in the **Federal Register** . In July 2007, the Monitoring Committee met to discuss the updated estimates of bluefish stock biomass and project fishery yields for 2008. In August 2007, the Council approved the Monitoring Committee's recommendations and the Commission's Bluefish Board (Board) adopted complementary management measures. Proposed Specifications Updated Model Estimates According to Amendment 1 to the FMP (Amendment 1), overfishing for bluefish occurs when F exceeds the fishing mortality rate that allows maximum sustainable yield (F MSY ), or the maximum F threshold to be achieved. The stock is considered overfished if the biomass
(B)falls below the minimum biomass threshold, which is defined as 1/2 B MSY . Amendment 1 also established that the long-term target F (F 0.1 ) is 90 percent of F MSY , and the long-term target B is B MSY = 237 million lb (107,500 mt). The rebuilding plan established through Amendment 1 stipulates that the target fishing mortality rate (F target ) in 2008 be set at F = 0.31, or the status quo fishing mortality rate (F year ), whichever is less. An age-structured assessment program
(ASAP)model for bluefish was presented to the 41st Stock Assessment Review Committee (SARC-41) in 2005, and estimated annual biomass and F through the 2004 fishing year, as well as updated biological reference points. The original ASAP model output was revised in 2006. The ASAP model was updated for the purpose of estimating the current status of the bluefish stock; i.e., 2006 biomass and F estimates were compared to the corrected ASAP model output, in order to enable the Monitoring Committee to recommend 2008 specifications using landing information and survey indices through the 2006 fishing year. Additionally, a projection of biomass through 2010 was done using F target = F 2006 = 0.15. This projection identified a target yield for 2008 and also indicated that biomass is likely to reach the target before the 2010 rebuilding deadline. According to the biological reference points specified in Amendment 1 to the FMP, and the most recent estimates of stock biomass, the bluefish stock was rebuilt to above B MSY in 2006. The Monitoring Committee, however, supported the model updates and corrected biological reference points from SARC-41 that derived the following new estimates of biomass and projected fishery yields:
(1)An estimated stock biomass for 2006, B 2006 = 307.5 million lb (139,496 mt); and
(2)projected yields for 2008 using F target = F 2006 = 0.15. Based on the updated biological reference points, and the 2006 estimate of bluefish stock biomass, the bluefish stock is not considered overfished: B 2006 = 307.5 million lb (139,496 mt) is greater than the minimum biomass threshold, 1/2 B MSY = 162 million lb (73,526 mt). Estimates of fishing mortality have declined from 0.41 in 1991 to 0.15 in 2006. The new model results also conclude that the Atlantic stock of bluefish is not experiencing overfishing; i.e., the most recent F (F 2006 = 0.15) is less than the maximum F overfishing threshold specified by SARC-41 (F MSY = 0.19). 2008 TAL The FMP specifies that the bluefish stock is to be rebuilt to B MSY over a 9-year period (i.e., by the year 2010). The FMP requires the Council to recommend, on an annual basis, a level of total allowable catch
(TAC)consistent with the rebuilding program in the FMP. An estimate of annual discards is deducted from the TAC to calculate the TAL that can be made during the year by the commercial and recreational fishing sectors combined. The TAL is composed of a commercial quota and a RHL. The FMP rebuilding program requires the TAC for any given year to be set based either on the target F resulting from the stock rebuilding schedule specified in the FMP (0.31 for 2008), or the F estimated in the most recent fishing year (F 2006 = 0.15), whichever is lower. Therefore, the 2008 recommendation is based on an estimated F of 0.15. An overall TAC of 31.887 million lb (14,464 mt) was recommended as the coast-wide TAC by the Council at its August 2007 meeting to achieve the target fishing mortality rate, (F = 0.15) in 2008, and to ensure that the bluefish stock continues toward the long-term biomass target, B MSY = 324 million lb (147,052 mt), consistent with the rebuilding schedule specified in Amendment 1. Based on the 2006 biomass estimate (307.5 million lb (139,496 mt)), the bluefish stock is well above the minimum biomass threshold ( 1/2 B MSY = 162 million lb (73,526 mt)), but is still slightly below the long-term biomass target (B MSY = 324 million lb (147,052 mt)). The proposed TAL for 2008 is derived by subtracting an estimate of discards of 3.734 million lb (1,694 mt), the average discard level from 2000-2006, from the TAC. After subtracting estimated discards, the 2008 TAL would be approximately 1.4 percent greater than the 2007 TAL, or 28.156 million lb (12,771 mt). Based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational), the commercial quota for 2008 would be 4.787 million lb (2,171 mt), and the RHL would be 23.370 million lb (10,600 mt) in 2008. In addition, up to 3 percent of the TAL may be allocated as RSA quota. The discussion below describes the recommended allocation of TAL between the commercial and recreational sectors, and its proportional adjustment downward to account for the recommended bluefish RSA quota. Proposed Commercial Quota and Recreational Harvest Limit The FMP stipulates that, in any year in which 17 percent of the TAL is less than 10.500 million lb (4,763 mt), the commercial quota may be increased up to 10.500 million lb (4,763 mt) as long as the recreational fishery is not projected to land more than 83 percent of the TAL in the upcoming fishing year, and the combined projected recreational landings and commercial quota would not exceed the TAL. At the Monitoring Committee meeting, Council staff estimated projected recreational landings for the 2008 fishing year by using simple linear regression of the recent (2000-2006) temporal trends in recreational landings. Recreational landings are projected to reach 18.864 million lb (8,557 mt) in 2008. If the maximum commercial quota of 10.500 million lb (4,763 mt) is established within a TAL of 28.156 million lb (12,771 mt), this would leave 17.656 million lb (8,009 mt) for the recreational fishery. This amount is less than the projected 2008 recreational landings described above, which, when added to the maximum allowable commercial quota of 10.500 million lb (4,763 mt), would exceed the overall TAL. Therefore, because the FMP and regulations governing the bluefish fishery do not allow for this maximum allowable commercial quota, the Monitoring Committee and the Council recommended, and NMFS proposes, to transfer 4.088 million lb (1,854 mt) from the initial recreational allocation of 23.370 million lb (10,600 mt), resulting in a proposed 2008 commercial quota of 8.875 million lb (4,026 mt) and a RHL of 19.281 million lb (8,746 mt), which is 2.2 percent greater than the projected 2008 recreational landings. These allocations were also recommended by the Commission to be implemented by the states for fisheries within state waters. RSA A request for proposals was published to solicit research proposals to utilize RSA in 2006 based on research priorities identified by the Council (December 27, 2006; 71 FR 77726). One research project that would utilize bluefish RSA has been preliminarily approved by the RA and forwarded to the NOAA Grants Office. Therefore, a 50,000-lb (22,680-kg) RSA quota is proposed for use by this, or other potential research projects during 2008. This proposed rule does not represent NOAA's approval of any RSA-related grant award, which will be included in a subsequent action. Consistent with the allocation of the bluefish RSA, the proposed commercial quota for 2008 would be reduced to 8.859 million lb (4,018 mt) and the proposed RHL reduced to 19.246 million lb (8,730 mt). Proposed Recreational Possession Limit The Council recommends, and NMFS proposes, to maintain the current recreational possession limit of up to 15 fish per person to achieve the RHL. Proposed State Commercial Allocations The proposed state commercial allocations for the recommended 2008 commercial quota are shown in Table 1, based on the percentages specified in the FMP. The table shows the allocations both before and after the deduction made to reflect the proposed RSA allocation. Table 1. Proposed Bluefish Commercial State-by-State Allocation for 2008 States Quota Percent Share 2007 Commercial Quota
(kg)2008 Commercial Quota
(lb)RSA Deducted 2008 Commercial Quota
(kg)RSA Deducted ME 0.6685 59,329 26,911 59,224 26,864 NH 0.4145 36,787 16,686 36,722 16,657 MA 6.7167 596,107 270,392 595,049 269,912 RI 6.8081 604,219 274,072 603,146 273,585 CT 1.2663 112,384 50,977 112,185 50,887 NY 10.3851 921,678 418,070 920,041 417,328 NJ 14.8162 1,314,938 596,452 1,312,603 595,393 DE I .8782 166,690 75,610 166,394 75,476 MD 3.0018 266,410 120,843 265,937 120,628 VA 11.8795 1,054,306 478,230 1,052,433 477,380 NC 32.0608 2,845,396 1,290,663 2,840,343 1,288,371 SC 0.0352 3,124 1,417 3,118 1,414 GA 0.0095 843 382 842 382 FL 10.0597 892,798 404,971 891,213 404,252 Total 100.0001 8,875,000 4,025,674 8,859,240 4,018,529 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 Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This action is exempt from review under E.O. 12866. An initial regulatory flexibility analysis
(IRFA)was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this preamble and in the SUMMARY . A summary of the analysis follows. A copy of this analysis is available from the Council (see ADDRESSES ). No large entities participate in this fishery, as defined in section 601 of the RFA. Therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery are not readily available and individual vessel profitability cannot be determined directly. Therefore, changes in gross revenues were used as a proxy for profitability. In the absence of quantitative data, qualitative analyses were conducted. The participants in the commercial sector were defined using two sets of data. First, the Northeast dealer reports were used to identify any vessel that reported having landed 1 lb (0.45 kg) or more of bluefish during calendar year 2006 (the last year for which there is complete data). These dealer reports identified 725 vessels that landed bluefish in states from Maine to North Carolina. However, this database does not provide information about fishery participation in South Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were used to identify 820 vessels 1 that landed bluefish in North Carolina and 567 vessels that landed bluefish on Florida's east coast. There were no landings of bluefish in South Carolina in 2006, and bluefish landings in Georgia were near zero, representing a negligible proportion of the total bluefish landings along the Atlantic Coast in 2006. In recent years, approximately 2,063 party/charter vessels may have been active in the bluefish fishery and/or have caught bluefish. 1 Some of these vessels were identified in the Northeast dealer data, therefore double counting is possible. The IRFA analyzed three alternatives (including the no action/status quo alternative) for allocating the TAL between the commercial and recreational sectors of the fishery. Consistent with the FMP's rebuilding schedule and the status of the resource as assessed by the revised SARC-41 report and the updated model projections, alternatives one and two were based on an overall TAL of 28.156 million lb (12,771 mt) and included an RSA quota of 50,000 lb (22,680 kg). The no action alternative includes an overall TAL of 27.762 million lb (12,593 mt) and an RSA quota of 50,000 lb (22,680 kg). Outside of the difference in the overall TAL specification, the alternatives differed only in the manner in which the TAL was allocated between the commercial and recreational sectors. The recommended alternative, before RSA deduction, would allocate 8.875 million lb (4,026 mt) to the commercial sector and 19.281 million lb (8,746 mt) to the recreational sector. Alternative 2, the most restrictive alternative, would have allocated 4.787 million lb (2,171 mt) to the commercial sector and 23.370 million lb (10,600 mt) to the recreational sector, reflecting the percentage allocations specified in the FMP (i.e., the 17-percent commercial/83-percent recreational sector split). Alternative 3 would have allocated 8.689 million lb (3,941 mt) to the commercial sector and 19.073 million lb (8,651 mt) to the recreational sector, reflecting the commercial level that was place in 2007 (i.e., status quo/no action alternative). For the commercial sector, the recommended coast-wide quota is approximately 27 percent higher than 2006 commercial landings. Approximately 19 percent of the TAL was not harvested during the 2006 fishing year and, based on available data, the 2007 TAL is also not expected to be fully harvested. Only three states, Rhode Island, New York, and North Carolina, fully harvested their initial bluefish quotas and received allocation transfers from other states in 2006. Four additional states, New Hampshire, Massachusetts, New Jersey, and Virginia, harvested more than 50 percent of their bluefish quotas, while the remaining states only harvested between 0 and 40 percent of their allocations. Given these recent trends in landings, it is unlikely that the proposed TAL will be fully harvested in 2008, therefore resulting in no overall coastwide economic impacts on the bluefish fishery. For states that did not harvest their quotas in 2006, the proposed 2008 quotas are also not expected to result in any detrimental impacts. For states that exceeded their initial quota allocations in 2006, but received quota transfers from other states, the apparent economic losses would likely be mitigated by quota transfers during 2008, therefore resulting in no overall impacts. For states that exceeded their post-transfer quota allocations in 2006 (i.e., New York), any economic impacts would be solely due to the overage in landings. Impacts on individual commercial vessels were assessed by conducting a threshold analysis using the dealer reports for the 725 vessels that landed bluefish from Maine through North Carolina. The analysis projected that there would be no revenue change for 481 out of 725 vessels, while 238 vessels could incur slight revenue losses of less than 5 percent. Another six vessels, all identified with home ports in New York, could incur revenue losses of between 5 percent and 29 percent. According to a threshold impact analysis that compared 2006 landings from the Northeast dealer reports to the recommended 2008 adjusted commercial quota allocation, New York could experience decreases in landings of up to 14 percent, while overall coastwide landings would increase by approximately 27 percent. This is due to the fact that New York's proposed 2008 quota is smaller than its actual 2006 landings. The impacts of the proposed alternative on commercial vessels in the South Atlantic were assessed using trip ticket data. The analysis concluded that, as a consequence of the 2008 recommended allocation compared to 2006 landings, there would be no revenue reductions in North Carolina or Florida. The FMP provision that allows commercial quota to be transferred from one state to another may result in transfers of quota to New York and North Carolina, from other states, thus mitigating any potential negative revenue impacts. While not assured, such transfers have been made annually in recent years, including 2006 and 2007. The analysis of Alternative 2 concluded that, for the commercial sector, there would be a 32-percent decrease in total potential commercial landings in 2008 compared to 2006 landings. The analysis of impacts on individual commercial vessels projected that there would be no revenue change for 62 of the 725 vessels that landed bluefish in 2006, while 610 vessels could incur slight revenue losses (less than 5 percent). Another 31 vessels could incur revenue losses of between 5 percent and 29 percent, while 22 vessels could incur revenue losses of greater than 29 percent. Most of the vessels projected to incur revenue losses of greater than 5 percent had home ports in Massachusetts, New York, New Jersey, or North Carolina. Again, the commercial quota transfer provision could be expected to mitigate some or all of these impacts, although to a lesser extent than in the other alternatives, as all states would have less quota to transfer. The impacts of Alternative 2 on commercial vessels in the South Atlantic area were assessed using trip ticket data. The analysis concluded that, compared to 2006, landings of bluefish in 2008 could be reduced by approximately 47 percent in North Carolina. However, on average, reductions in revenues due to the potential decrease in landings would be approximately 4 percent for vessels that land in North Carolina. No projected revenue losses are expected for vessels that land in Florida. The analysis of Alternative 3 concluded that, for the commercial sector, there would be a 24-percent increase in total potential commercial landings in 2008 compared to actual landings in 2006. The analysis of impacts on individual commercial vessels projected that there would be no change in revenue for 298 of the 725 vessels that landed bluefish in 2006, while 407 could incur slight revenue losses (less than 5 percent). Another 20 vessels could incur revenue losses of between 5 percent and 29 percent, and zero vessels would incur revenue losses of greater than 29 percent. The vessels projected to incur revenue losses of greater than 5 percent had home ports in New York and New Jersey. The impacts of Alternative 3 on commercial vessels in the South Atlantic area were assessed using trip ticket data. The analysis concluded that these impacts would result in revenue reductions, associated with an estimated 9 percent landings decrease, of approximately 1 percent for 820 vessels identified as landing in North Carolina, and no revenue reductions for vessels landing in Florida. For the recreational sector of the fishery, there were no negative revenue impacts projected to occur with regard to the recommended RHL, because this level would be greater than the recreational landings in 2006 (16.894 million lb (7,663 mt)), and above the recreational landings projected for 2008 (18.864 million lb (8,557 mt)). The recommended RHL is higher than the other two other alternatives, to account for this increase in expected landings. The recreational fishery impacts are not expected to be substantial under any of the alternatives, because the RHL under each alternative is greater than the projected landings for 2008. Although there is very little empirical evidence regarding the sensitivity of charter/party anglers to regulation, it is anticipated that the proposed harvest levels will not affect the demand for charter/party boat trips. The IRFA also analyzed the impacts on revenues of the proposed RSA amount and found that the social and economic impacts are minimal. Assuming that the full RSA of 50,000 lb (22,680 kg) is landed and sold to support the proposed research project (a supplemental finfish survey in the Mid-Atlantic), then all of the participants in the fishery would benefit from the anticipated improvements in the data underlying the stock assessments. Because the recommended overall commercial quota is higher than 2006 landings, no overall negative impacts are expected in the commercial sector. Based on recent trends in the recreational fishery, recreational landings will more than likely remain below the recommended harvest level in 2008. Authority: 16 U.S.C. 1801 *et seq.* Dated: December 19, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-25080 Filed 12-26-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 RIN 0648-AU22 Fisheries in the Western Pacific; Bottomfish and Seamount Groundfish Fisheries; Management Measures for the Main Hawaiian Islands AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of availability of fishery management plan amendment; request for comments. SUMMARY: NMFS announces that the Western Pacific Fishery Management Council (Council) proposes to amend the Fishery Management Plan for the Bottomfish and Seamount Groundfish of the Western Pacific Region (Bottomfish FMP). Bottomfish FMP Amendment 14 was developed in response to a determination by NMFS that Hawaiian bottomfish stocks are experiencing overfishing, with the primary problem being excessive fishing mortality on seven deep water bottomfish species in the main Hawaiian Islands. Amendment 14 would end the overfishing by reducing bottomfish fishing mortality by 24 percent in 2008, and by establishing a management mechanism that would control fishing effort by responding to changes in the status of bottomfish stocks in the future. DATES: Comments on Amendment 14, which includes a final environmental impact statement, must be received by February 25, 2008. ADDRESSES: Comments on Amendment 14, identified by 0648-AU22, may be sent to either of the following addresses: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov; or • Mail: William L. Robinson, Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-4700. Instructions: All comments received are a part of the public record and will generally be posted to www.regulations.gov without change. All Personal Identifying Information (e.g., name, address, etc.) submitted voluntarily 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 or Excel, WordPerfect, or Adobe PDF file formats only. Copies of Amendment 14, including a final environmental impact statement, are available from the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226. FOR FURTHER INFORMATION CONTACT: Karla Gore, NMFS PIR, 808-944-2273. SUPPLEMENTARY INFORMATION: Electronic Access This **Federal Register** notice is also accessible at the Office of the **Federal Register** 's web site *www.gpoaccess.gov/fr* . Background NMFS determined that overfishing is occurring on the bottomfish species complex in the Hawaiian Archipelago, with the primary problem being excessive fishing mortality on seven deep water species (the “Deep 7” species) in the main Hawaiian Islands (MHI). The Deep 7 species are onaga ( *Etelis coruscans* ), ehu ( *E. carbunculus* ), gindai ( *Pristipomoides zonatus* ), kalekale ( *P. sieboldii* ), opakapaka ( *P. filamentosus* ), lehi ( *Aphareus rutilans* ), and hapu'upu'u ( *Epinephelus quernus* ). NMFS notified the Council of this overfishing determination on May 27, 2005 (70 FR 34452, June 14, 2005). In response, the Council prepared Bottomfish FMP Amendment 14 that would establish measures to end the overfishing. Amendment 14 would establish the following management measures for vessel-based bottomfish fishing in the Main Hawaiian Islands: 1. New Federal permitting and reporting requirements for non-commercial bottomfish fishermen. Permits would be required for all individuals engaged in vessel-based non-commercial bottomfish fishing in Hawaii, and operators of these non-commercial vessels would be required to submit logbooks of fishing effort and catch; 2. Seasonal closure. The bottomfish fishery in the main Hawaiian Islands would be closed in the summer of 2008. This closure is intended to reduce fishing mortality on Deep 7 bottomfish by commercial and non-commercial fishermen; 3. Total allowable catch (TAC). A mechanism would be established to set an annual TAC. In 2008, a TAC of 178,000 lb would apply only to the commercial fishery. In subsequent years an annual TAC, determined by NMFS and the Council, would apply to both commercial and non-commercial fisheries; and 4. Bag limits for non-commercial fishermen of five fish, all species combined, of the Deep 7 species, per person per trip. The Federal bag limit would be repealed in the future when data on the non-commercial fishery are sufficient to allow the non-commercial fishery to be included in the TAC program. The measures in Amendment 14 would reduce fishing mortality bottomfish by 24 percent in 2008, and respond to changes in the status of bottomfish stocks by adjusting the allowable fishing mortality in the future. Amendment 14 has the following objectives: 1. End overfishing of the bottomfish stocks in the Hawaiian Archipelago; 2. Reduce the fishing mortality for the deepwater bottomfish species complex in the MHI; 3. Establish a mechanism to respond to changes in stock status beyond 2008; and 4. Improve data collection from non-commercial bottomfish fisheries in Federal waters around the MHI. Amendment 14 includes a final environmental impact statement that analyzes the management alternatives considered by the Council. A notice of availability for the FEIS will be published in the near future. A proposed rule to implement Amendment 14 has been prepared, and NMFS expects to publish and request public comment on the rule in the near future. Public comments on Amendment 14 must be received by February 25, 2008 to be considered by NMFS in the decision to approve, partially approve, or disapprove the amendment. 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: December 20, 2007. Galen R. Tromble, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-25078 Filed 12-26-07; 8:45 am] BILLING CODE 3510-22-S 72 247 Thursday, December 27, 2007 Notices DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). *Agency:* National Oceanic and Atmospheric Administration (NOAA). *Title:* Marine Recreational Fisheries Statistics Survey. *OMB Approval Number:* 0648-0052. *Form Number(s):* None. *Type of Request:* Regular submission. *Burden Hours:* 272 new burden hours. *Number of Respondents:* 3,750 new respondents. *Average Hours per Response:* 1 minute for anglers with no trips in past year; 7 minutes for anglers with trips in past year. *Needs and Uses:* Recent amendments to the Magnuson-Stevens Fishery Conservation and Management Act require that the Marine Recreational Fisheries Statistics Survey (MRFSS) be upgraded and that future fishing surveys target anglers licensed or registered at the State or Federal level. This revision is requested to expand previously approved angler license directory surveys
(ALDS)into North Carolina, which recently implemented a saltwater fishing license. Information collected through the ALDS will be integrated with data collected through the MRFSS Coastal Household Telephone Survey in a dual-frame approach to provide more complete coverage of the angling population. The results of this data collection effort will be used to calculate bi-monthly estimates of marine recreational fishing participation, effort and catch. *Affected Public:* Individuals or households. *Frequency:* Annually. *Respondent's Obligation:* Voluntary. *OMB Desk Officer:* David Rostker,
(202)395-3897. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Fax number
(202)395-7285, or *David_Rostker@omb.eop.gov* . Dated: December 19, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-24980 Filed 12-26-07; 8:45 am] BILLING CODE 3510-22-P DEPARTMENT OF COMMERCE U.S. Census Bureau Proposed Information Collection; Comment Request; Survey of Housing Starts, Sales, and Completions AGENCY: U.S. Census Bureau. ACTION: Notice. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: To ensure consideration, written comments must be submitted on or before February 25, 2008. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erica Filipek, U.S. Census Bureau, MCD, CENHQ Room 7K181, 4600 Silver Hill Road, Washington, DC 20233, telephone
(301)763-5161 (or via the Internet at *Erica.Mary.Filipek@census.gov* ). SUPPLEMENTARY INFORMATION: I. Abstract The U.S. Census Bureau plans to request a revision of the current Office of Management and Budget
(OMB)clearance of the Survey of Housing Starts, Sales and Completions, also known as the Survey of Construction (SOC). The SOC collects monthly data on new residential construction from a sample of owners or builders. The Census Bureau uses the Computer-Assisted Personal Interviewing
(CAPI)electronic questionnaires SOC-QI/SF.1 and SOC-QI/MF.1 to collect data on start and completion dates of construction, physical characteristics of the structure (floor area, number of bathrooms, type of heating system, etc), and if applicable, date of sale, sales price, and type of financing. The SOC provides widely used measures of construction activity, including the economic indicators Housing Starts and Housing Completions, which are from the New Residential Construction series, and New Residential Sales. The current clearance for this survey is scheduled to expire on June 30, 2009. We are rewriting the CAPI questionnaire software and are requesting approval to begin using the revised questionnaire in the field in early summer of 2008. The revised questionnaire will include about 5 new data items requested by data users. Other information which is no longer needed will be eliminated from the questionnaire. The overall length of the interview will not change. Census samples about 1,850 new buildings each month (22,200) per year. We inquire about the progress of each building multiple times until it is completed (and a sales contract is signed, if it is a single-family house that is built for sale). We conduct an average of 7.9 interviews for each building sampled. The total number of interviews conducted each year is about 175,380. Each interview takes 5 minutes on average. Therefore the total annual burden is 14,615 hours. II. Method of Collection The Census Bureau uses its field representatives to collect the data. III. Data *OMB Control Number:* 0607-0110. *Form Number:* SOC-QI/SF.1 and SOC-QI/MF.1. *Type of Review:* Regular submission. *Affected Public:* Individuals or households; business or other for-profit organizations. *Estimated Number of Respondents:* 22,200. *Estimated Time per Response:* 5 minutes. *Estimated Total Annual Burden Hours:* 14,615. *Estimated Total Annual Cost:* $0. *Respondent's Obligation:* Voluntary. *Legal Authority:* Title 13 U.S.C. Section 182. IV. Request for Comments *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: December 19, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-24981 Filed 12-26-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Census Bureau Proposed Information Collection; Comment Request; Questionnaire for Building Permit Official AGENCY: U.S. Census Bureau. ACTION: Notice. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: To ensure consideration, written comments must be submitted on or before February 25, 2008. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erica Filipek, U.S. Census Bureau, MCD, CENHQ Room 7K181, 4600 Silver Hill Road, Washington, DC 20233, telephone (301)763-5161 (or via the Internet at *Erica.Mary.Filipek@census.gov* ). SUPPLEMENTARY INFORMATION: I. Abstract The U.S. Census Bureau plans to request a revision of the current Office of Management and Budget
(OMB)clearance of the Questionnaire for Building Permit Official (SOC-QBPO). The Census Bureau uses the Computer-Assisted Personal Interviewing
(CAPI)electronic questionnaire SOC-QBPO to collect information from state and local building permit officials on:
(1)The types of permits they issue,
(2)the length of time a permit is valid,
(3)how they store permits, and
(4)the geographic coverage of the permit system. This information is needed to carry out the sampling for the Survey of Housing Starts, Sales, and Completions (OMB number 0607-0110), also known as Survey of Construction (SOC). The SOC provides widely used measures of construction activity, including the economic indicators Housing Starts, Housing Completions, and New Housing Sales. The current clearance for this survey is scheduled to expire on March 31, 2009. Census is rewriting the CAPI questionnaire software and requesting approval to begin using the revised questionnaire in the field in the summer of 2008. The revised questionnaire will include some additional information about how permits are issued that will improve the sampling for the Survey of Construction. Other information which is no longer needed will be eliminated from the questionnaire. The overall length of the interview will not change. The sample size also will not change. II. Method of Collection The Census Bureau uses its field representatives to obtain information on the operating procedures of a permit office. The field representative visits the permit office, conducts the interview, and completes the electronic form. III. Data *OMB Control Number:* 0607-0125. *Form Number:* SOC-QBPO. *Type of Review:* Regular submission. *Affected Public:* State or Local Government. *Estimated Number of Respondents:* 900. *Estimated Time per Response:* 15 minutes. *Estimated Total Annual Burden Hours:* 225. *Estimated Total Annual Cost:* $0. *Respondent's Obligation:* Voluntary. *Legal Authority:* Title 13, U.S.C., Section 182. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: December 19, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-24982 Filed 12-26-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Bureau of the Census Request for Nominations of Members To Serve on the Census Advisory Committee on the African American Population AGENCY: Bureau of the Census, Commerce. ACTION: Notice of request for nominations. SUMMARY: The Bureau of the Census (Census Bureau) is requesting nominations of individuals to the Census Advisory Committee on the African American Population. The Census Bureau will consider nominations received in response to this notice, as well as from other sources. The SUPPLEMENTARY INFORMATION section of this notice provides Committee and membership criteria. DATES: Please submit nominations by January 28, 2008. ADDRESSES: Please submit nominations to Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233. Nominations also may be submitted via fax at 301-763-8609, or by e-mail to *jeri.green@census.gov* . FOR FURTHER INFORMATION CONTACT: Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233, telephone
(301)763-2070. SUPPLEMENTARY INFORMATION: The Committee was established in accordance with the Federal Advisory Committee Act (Title 5, United States Code (U.S.C.), Appendix 2) in 1995. The following provides information about the Committee, membership, and the nomination process. Objectives and Duties 1. The Committee provides an organized and continuing channel of communication between African American communities and the Census Bureau. Committee members identify useful strategies to reduce the differential undercount for the African American population, and on ways data can be disseminated for maximum usefulness to the African American population. 2. The Committee draws upon prior decennial planning efforts, research studies, test censuses, and other experiences to provide advice and recommendations for the 2010 Decennial Census Program. 3. The Committee functions solely as an advisory body under the Federal Advisory Committee Act. 4. The Committee reports to the Director of the Census Bureau. Membership 1. Members are appointed by and serve at the discretion of the Secretary of Commerce. They are appointed to the nine-member Committee for a period of three years. 2. Members will be reevaluated at the conclusion of the three-year term with the prospect of renewal, pending meeting attendance, administrative compliance, Advisory Committee needs, and the Secretary's concurrence. Committee members are selected in accordance with applicable Department of Commerce guidelines. The Committee aims to have a balanced representation, considering such factors as geography, gender, technical expertise, community involvement, and knowledge of census procedures and activities. The Committee aims to include members from diverse backgrounds, including state and local governments, academia, media, research, community-based organizations, and the private sector. No employee of the federal government can serve as a member of the Committee. Meeting attendance and active participation in the activities of the Advisory Committee are essential for sustained Committee membership as well as submission of required annual financial disclosure statements. Miscellaneous 1. Members of the Committee serve without compensation, but receive reimbursement for Committee-related travel and lodging expenses. 2. The Committee meets at least once a year, budget permitting, but additional meetings may be held as deemed necessary by the Census Director or Designated Federal Official. All Committee meetings are open to the public in accordance with the Federal Advisory Committee Act. Nomination Information 1. Nominations are requested as described above. 2. Nominees should have expertise and knowledge of the cultural patterns, issues, and/or data needs of the African American community. Such knowledge and expertise are needed to provide advice and recommendations to the Census Bureau on how best to enumerate the African American population and obtain complete and accurate data on this population. Individuals, groups, or organizations may submit nominations on behalf of a potential candidate. A summary of the candidate's qualifications (Résumé or curriculum vitae) *must* be included along with the nomination letter. Nominees must have the ability to participate in Advisory Committee meetings and tasks. Besides Committee meetings, active participation may include Committee assignments and participation in conference calls and working groups. 3. The Department of Commerce is committed to equal opportunity in the workplace and seeks diverse Committee membership. Dated: December 19, 2007. Charles Louis Kincannon, Director, Bureau of the Census. [FR Doc. E7-25011 Filed 12-26-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Bureau of the Census Request for Nominations of Members To Serve on the Census Advisory Committee on the Asian Population AGENCY: Bureau of the Census, Commerce. ACTION: Notice of request for nominations. SUMMARY: The Bureau of the Census (Census Bureau) is requesting nominations of individuals to the Census Advisory Committee on the Asian Population. The Census Bureau will consider nominations received in response to this notice, as well as from other sources. The SUPPLEMENTARY INFORMATION section of this notice provides Committee and membership criteria. DATES: Please submit nominations by January 28, 2008. ADDRESSES: Please submit nominations to Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233. Nominations also may be submitted via fax at 301-763-8609, or e-mail to *jeri.green@census.gov.* FOR FURTHER INFORMATION CONTACT: Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233, telephone
(301)763-2070. SUPPLEMENTARY INFORMATION: The Committee was established in accordance with the Federal Advisory Committee Act (Title 5, United States Code (U.S.C.), Appendix 2) in 1995. The following provides information about the Committee, membership, and the nomination process. Objectives and Duties 1. The Committee provides an organized and continuing channel of communication between Asian communities and the Census Bureau. Committee members identify useful strategies to reduce the differential undercount for the Asian population, and on ways data can be disseminated for maximum usefulness to the Asian population. 2. The Committee draws upon prior decennial planning efforts, research studies, test censuses, and other experiences to provide advice and recommendations for the 2010 Decennial Census Program. 3. The Committee functions solely as an advisory body under the Federal Advisory Committee Act. 4. Committee reports to the Director of the Census Bureau. Membership 1. Members are appointed by and serve at the discretion of the Secretary of Commerce. 2. Members are appointed to the nine-member Committee for a period of three years. Members will be re-evaluated at the conclusion of the three-year term with the prospect of renewal, pending meeting attendance, administrative compliance, advisory committee needs and the Secretary's concurrence. Committee members are selected in accordance with applicable Department of Commerce guidelines. The Committee aims to have a balanced representation, considering such factors as geography, gender, and technical expertise, community involvement and knowledge of census procedures and activities. The Committee aims to include members from diverse backgrounds, including state and local governments, academia, media, research, community-based organizations, and the private sector. No employee of the federal government can serve as a member of the Committee. Meeting attendance and active participation in the activities of the Advisory Committee are essential for sustained Committee membership as well as submission of required annual financial disclosure statements. Miscellaneous 1. Members of the Committee serve without compensation, but receive reimbursement for committee-related travel and lodging expenses. 2. The Committee meets at least once a year, budget permitting, but additional meetings may be held as deemed necessary by the Census Director or Designated Federal Official. All Committee meetings are open to the public in accordance with the Federal Advisory Committee Act. Nomination Information 1. Nominations are requested as described above. 2. Nominees should have expertise and knowledge of the cultural patterns, issues, and/or data needs of the Asian community. Such knowledge and expertise are needed to provide advice and recommendations to the Census Bureau on how best to enumerate the Asian population and obtain complete and accurate data on this population. Individuals, groups, or organizations may submit nominations on behalf of a potential candidate. A summary of the candidate's qualifications (résumé or curriculum vitae) *must* be included along with the nomination letter. Nominees must have the ability to participate in Advisory Committee meetings and tasks. Besides Committee meetings, active participation may include Committee assignments and participation in conference calls and working groups. 3. The Department of Commerce is committed to equal opportunity in the workplace and seeks diverse Committee membership. Dated: December 19, 2007. Charles Louis Kincannon, Director, Bureau of the Census. [FR Doc. E7-24994 Filed 12-26-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Bureau of the Census Request for Nominations of Members To Serve on the Census Advisory Committee on the Native Hawaiian and Other Pacific Islander Population AGENCY: Bureau of the Census, Commerce. ACTION: Notice of request for nominations. SUMMARY: The Bureau of the Census (Census Bureau) is requesting nominations of individuals to the Census Advisory Committee on the Native Hawaiian and Other Pacific Islander Population. The Census Bureau will consider nominations received in response to this notice, as well as from other sources. The SUPPLEMENTARY INFORMATION section of this notice provides Committee and membership criteria. DATES: Please submit nominations by January 28, 2008. ADDRESSES: Please submit nominations to Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233. Nominations also may be submitted via fax at 301-763-8609, or e-mail to *jeri.green@census.gov* . FOR FURTHER INFORMATION CONTACT: Jeri Green, Chief, Census Advisory Committee Office, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233, telephone
(301)763-2070. SUPPLEMENTARY INFORMATION: The Committee was established in accordance with the Federal Advisory Committee Act (Title 5, United States Code (U.S.C.), Appendix 2) in 1995. The following provides information about the Committee, membership, and the nomination process. Objectives and Duties 1. The Committee provides an organized and continuing channel of communication between Native Hawaiian and Other Pacific Islander communities and the Census Bureau. Committee members identify useful strategies to reduce the differential undercount for the Native Hawaiian and Other Pacific Islander population, and on ways data can be disseminated for maximum usefulness to the Native Hawaiian and Other Pacific Islander population. 2. The Committee draws upon prior decennial planning efforts, research studies, test censuses, and other experiences to provide advice and recommendations for the 2010 Decennial Census Program. 3. The Committee functions solely as an advisory body under the Federal Advisory Committee Act. 4. The Committee reports to the Director of the Census Bureau. Membership 1. Members are appointed by and serve at the discretion of the Secretary of Commerce. 2. Members are appointed to the nine-member Committee for a period of three years. Members will be reevaluated at the conclusion of the three-year term with the prospect of renewal, pending meeting attendance, administrative compliance, Advisory Committee needs and the Secretary's concurrence. Committee members are selected in accordance with applicable Department of Commerce guidelines. The Committee aims to have a balanced representation, considering such factors as geography, gender, technical expertise, community involvement, and knowledge of census procedures and activities. The Committee aims to include members from diverse backgrounds, including state and local governments, academia, media, research, community-based organizations, and the private sector. No employee of the federal government can serve as a member of the Committee. Meeting attendance and active participation in the activities of the Advisory Committee are essential for sustained Committee membership as well as submission of required annual financial disclosure statements. Miscellaneous 1. Members of the Committee serve without compensation, but receive reimbursement for Committee-related travel and lodging expenses. 2. The Committee meets at least once a year, budget permitting, but additional meetings may be held as deemed necessary by the Census Director or Designated Federal Official. All Committee meetings are open to the public in accordance with the Federal Advisory Committee Act. Nomination Information 1. Nominations are requested as described above. 2. Nominees should have expertise and knowledge of the cultural patterns, issues, and/or data needs of the Native Hawaiian and Other Pacific Islander community. Such knowledge and expertise are needed to provide advice and recommendations to the Census Bureau on how best to enumerate the Native Hawaiian and Other Pacific Islander population and obtain complete and accurate data on this population. Individuals, groups, or organizations may submit nominations on behalf of a potential candidate. A summary of the candidate's qualifications (résumé or curriculum vitae) *must* be included along with the nomination letter. Nominees must have the ability to participate in Advisory Committee meetings and tasks. Besides Committee meetings, active participation may include committee assignments and participation in conference calls and working groups. 3. The Department of Commerce is committed to equal opportunity in the workplace and seeks diverse Committee membership. Dated: December 19, 2007. Charles Louis Kincannon, Director, Bureau of the Census. [FR Doc. E7-25010 Filed 12-26-07; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 51-2007] Foreign-Trade Zone 104—Savannah, GA; Request for Manufacturing Authority, Fuji Vegetable Oil, Inc., (Refined Sunflower and Vegetable Oil Products), Savannah, GA An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Savannah Airport Commission, grantee of FTZ 104, pursuant to section 400.28(a)(2) of the Board's regulations (15 CFR part 400), requesting authority on behalf of Fuji Vegetable Oil, Inc. (FVO), to refine sunflower oil and manufacture vegetable oil products under FTZ procedures within FTZ 104. The application was formally filed on December 14, 2007. The FVO facility (89 employees) is located at 120 Brampton Road (within FTZ 104-Site 2), Savannah Georgia, and used to produce refined sunflower oil and, vegetable oil and fat products (up to 120,000 tons annually), including cocoa butter equivalents, for the commercial food industry. Some foreign sunflower oil would be processed (up to 20 percent of total purchases), duty rate − 1.7cents/kg. + 3.4%. There are no inverted tariffs related to FVO's finished products (duty rates − 1.7cents/kg. + 3.4% and 8.8 cents/kg.). FTZ procedures would exempt FVO from Customs duty payments on the foreign sunflower oil used in production for export (60% of shipments). The company could also realize duty deferral on shipments for U.S. consumption and certain logistical/supply chain savings. The application indicates that the savings from FTZ procedures would help improve the facility's international competitiveness. In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address : Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Ave., NW., Washington, DC 20230-0002. The closing period for receipt of comments is February 25, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to March 11, 2008). A copy of the request will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above. For further information, contact Diane Finver at: *Diane_Finver@ita.doc.gov* , or
(202)482-1367. Dated: December 14, 2007. Andrew McGilvray, Executive Secretary. [FR Doc. E7-25013 Filed 12-26-07; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 50-2007] Foreign-Trade Zone 155—Calhoun and Victoria Counties, TX; Application for Expansion An application has been submitted to the Foreign-Trade Zones
(FTZ)Board (the Board) by the Calhoun-Victoria FTZ, Inc., grantee of FTZ 155, requesting authority to expand its zone in the Calhoun and Victoria Counties, Texas, area, adjacent to the Port Lavaca—Point Comfort CBP port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on December 14, 2007. FTZ 155 was approved on October 24, 1988 (Board Order 398, 53 FR 44510, 11/03/88). The general-purpose zone currently consists of six sites (1,234 acres total) in Calhoun and Victoria Counties, Texas. The applicant is now requesting authority to expand the zone to include an additional site in Calhoun and Victoria Counties: *Proposed Site* 7 (11 acres)—natural gas storage site at the Markham salt dome caverns located at Farm Road 1468, Markham, Texas. No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis. In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board. Public comment on the application is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is February 25, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to March 11, 2008). A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: U.S. Export Assistance Center, 15600 John F. Kennedy Blvd., Suite 530, Houston, Texas 77032 and the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230. For further information, contact Kathleen Boyce at 202-482-1346 or *Kathleen_Boyce@ita.doc.gov* . Dated: December 14, 2007. Andrew McGilvray, Executive Secretary . [FR Doc. E7-25008 Filed 12-26-07; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration Initiation of Antidumping and Countervailing Duty Administrative Reviews AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with November anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews. EFFECTIVE DATE: December 27, 2007. FOR FURTHER INFORMATION CONTACT: Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone:
(202)482-4697. SUPPLEMENTARY INFORMATION: Background The Department has received timely requests, in accordance with 19 CFR 351.213(b) (2007), for administrative reviews of various antidumping and countervailing duty orders and findings with November anniversary dates. Initiation of Reviews In accordance with section 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than November 30, 2008. Period to be reviewed *Mexico:* Circular Welded Non-Alloy Steel Pipe and Tube, A-201-805 11/1/06-10/31/07 Hylsa, S.A. de C.V. Mueller Comercial de Mexico, S. de R.L. de C.V. Southland Pipe Nipples Co., Inc. *Thailand:* Certain Hot-Rolled Carbon Steel Flat Products 11/1/06-10/31/07 Nakornthai Strip Mill Public Company Ltd. G Steel Public Company Limited. *The People's Republic of China:* Certain Hot-Rolled Carbon Steel Flat Products 1 , A-570-865 11/1/06-10/31/07 Shanghai Baosteel International Economic & Trading Co., Ltd. Baoshan Iron and Steel Co., Ltd. Baosteel Group Corporation. *The People's Republic of China:* Fresh Garlic 2 11/1/06-10/31/07 Anqiu Friend Food Co., Ltd. APS Qingdao. American Pioneer Shipping. Anqui Friend Food Co., Ltd. Anqui Haoshun Trade Co., Ltd. Beijing Jim International Food Co., Ltd. Burgeon International Inc. Fujian Meitan Import & Export Xiamen Corporation. Golden Bridge International, Inc. Hebei Golden Bird Trading Co., Ltd. Henan Xinchang Sunny Foodstuff. Henan Weite. Heze Ever-Best International Trade Co., Ltd. (a/k/a Shandong Heze International Trade and Developing Company). Huaiyang Hongda Dehydrated Vegetable Company. Jinan Farmlady Trading Co., Ltd. Jining Yongjia Trade Co., Ltd. Jining Meiya Foods Co., Ltd. Jinan Yipin Corporation Ltd. Jining Trans-High Trading Co., Ltd. Jinxian County Huaguang Food Import & Export Co., Ltd. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang Eastward Shipping Import and Export Limited Company). Jinxiang Shanyang Freezing Storage Co., Ltd. Jinxiang Tianma Freezing Storage Co., Ltd. Junan Auto Imp and Exp Co., Ltd. Linshu Dading Private Agricultural Products Co., Ltd. Linyi Futai Foodstuff Co., Ltd. Marnex (HongKong) Company. New Future International Trading Co. Omni Decor China Ltd. Qingdao Aobeilin Import & Export Co. Qingdao Camel Trading Co., Ltd. Qingdao Longyuan Aquatic Products. Qingdao Oasis International Trade Co. Qingdao Rock-It Sports Inc. Qingdao Tiantaixing Foods Co., Ltd. Qingdao Titan Shipping LLC. Qingdao Saturn International Trade Co., Ltd. Qingdao Xintianfeng Foods Co., Ltd. Qufu Dongbao Import & Export Trade Co., Ltd. Sea Trade International Incorporated. Shandong Chengshun Farm Produce Trading Co., Ltd. Shandong Chenhe Int'l Trading Co., Ltd. Shandong Dongsheng Eastsun Foods Co., Ltd. Shandong Garlic Company. Shandong Longtai Fruits and Vegetables Co., Ltd. Shandong Wonderland Organic Food Co., Ltd. Shanghai Ever Rich Trade Company. Shanghai LJ International Trading Co., Ltd. Shanghai New Long March International Trade Co., Ltd. Shenzhen Fanhui Import & Export Co., Ltd. Shenzhen Greening Trading Co., Ltd. Shenzhen Imp & Exp. Ltd. Shenzhen Xinboda Industrial Co., Ltd. Sunny Import & Export Limited. T&S International, LLC. Taian Fook Huat Tong Kee Pte. Ltd. Taiwan Wachine Co., Ltd. Taiyan Ziyang Food Co., Ltd. Taizhou Overseas Int'l Ltd. Weifang Hongqiao International Logistic Co., Ltd. Weifang Shennong Foodstuff Co., Ltd. XuZhou Simple Garlic Industry Co., Ltd. Zhengzhou Harmoni Spice Co., Ltd. *The People's Republic of China:* Refined Brown Aluminum Oxide 3 , A-570-882 11/1/06-10/31/07 Henan Yilong High and New Materials Co., Ltd. Qingdao Shunxingli Abrasives Co., Ltd. Countervailing Duty Proceedings None. Suspension Agreements None. 1 If one of the above-named companies does not qualify for a separate rate, all other exporters of certain hot-rolled carbon steel flat products from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part. 2 If one of the above-named companies does not qualify for a separate rate, all other exporters of Fresh Garlic from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part. 3 If one of the above-named companies does not qualify for a separate rate, all other exporters of Refined Brown Aluminum Oxide from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporters are a part. During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under section 351.211 or a determination under section 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with *FAG Italia* v. *United States* , 291 F.3d 806 (Fed. Cir. 2002), as appropriate, whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested. Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. These initiations and this notice are in accordance with section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(i). Dated: December 19, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-25082 Filed 12-26-07; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration A-533-820, A-560-812, A-570-865, A-583-835, A-549-817, A-823-811, C-533-821, C-560-813, C-549-818 Certain Hot-Rolled Carbon Steel Flat Products from India, Indonesia, the People's Republic of China, Taiwan, Thailand, and Ukraine: Continuation of Antidumping Duty and Countervailing Duty Orders AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On August 1, 2006, the Department of Commerce (the Department) initiated sunset reviews of the antidumping duty
(AD)orders on certain hot-rolled carbon steel flat products (HR steel) from India, Indonesia, the People's Republic of China (PRC), Taiwan, Thailand, and Ukraine and countervailing duty
(CVD)orders on HR steel from India, Indonesia, and Thailand. As a result of the determinations by the Department and the International Trade Commission
(ITC)that revocation of the AD and CVD orders on HR steel from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine would likely lead to continuation or recurrence of dumping and countervailable subsidies, and material injury to an industry in the United States, the Department is publishing a notice of continuation of these AD and CVD orders. EFFECTIVE DATE: December 27, 2007. FOR FURTHER INFORMATION CONTACT: Preeti Tolani (India and Indonesia/AD and CVD) at
(202)482-0395, Juanita Chen (PRC/AD) at
(202)482-1904, Deborah Scott (Taiwan and Thailand/AD) at
(202)482-2657, Myrna Lobo (Thailand/CVD) at
(202)482-2371, or Martha Douthit (Ukraine/AD) at
(202)482-5050, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: Background The AD and CVD orders which cover HR steel from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine were published in the **Federal Register** in September, November and December 2001. *See Notice of Amended Final Antidumping Duty Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From India* , 66 FR 60194 (December 3, 2001), *Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Indonesia* , 66 FR 60192 (December 3, 2001), *Notice of Amended Final Determination and Notice of Countervailing Duty Orders: Certain Hot-Rolled Carbon Steel Flat Products from India and Indonesia* , 66 FR 60198 (December 3, 2001), *Notice of Countervailing Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Thailand* , 66 FR 60197 (December 3, 2001), *Notice of Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From the People's Republic of China* , 66 FR 59561 (November 29, 2001), *Notice of Antidumping Duty Order; Certain Hot- Rolled Carbon Steel Flat Products From Taiwan, 66 FR 59563 (November 29, 2001), Antidumping Duty Order; Certain Hot-Rolled Carbon Steel Flat Products From Thailand* , 66 FR 59562 (November 29, 2001), and *Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Ukraine* , 66 FR 59559 (November 29, 2001). On August 1, 2006, the Department initiated and the ITC instituted sunset reviews of the AD orders on HR steel from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine, and CVD orders on HR steel from India, Indonesia, and Thailand pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). *See Initiation of Five-year (“Sunset”) Reviews* , 71 FR 43443 (August 1, 2006); and *Hot-Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine, Investigation Nos. 701-TA-404-408 and 731-TA-898-908 (Review)* , 71 FR 43521 (August 1, 2006). As a result of its reviews, the Department found that revocation of the AD and CVD orders would likely lead to continuation or recurrence of dumping and countervailable subsidies, and notified the ITC of the magnitude of the margins and net countervailable subsidies likely to prevail were the orders to be revoked. *See Hot-Rolled Carbon Steel Flat Products from Argentina, India, Indonesia, South Africa, and Thailand: Final Results of Expedited Five-Year (Sunset) Reviews of the Countervailing Duty Orders* , 71 FR 70960 (December 7, 2006); and *Certain Hot-Rolled Carbon Steel Flat Products from Argentina, the People's Republic of China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine; Final Results of Expedited Sunset Reviews of the Antidumping Duty Orders* , 71 FR 70506 (December 5, 2006). On October 31, 2007, the ITC determined pursuant to section 751(c) of the Act, that revocation of the AD orders on HR steel from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine, and CVD orders on HR steel from India, Indonesia, and Thailand would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. *See Hot-Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine* , 72 FR 61676 (October 31, 2007) and USITC Publication 3956 (October 2007), entitled *Hot-Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine: Investigation Nos. 701-TA-404-408 and 731-TA-898-902 and 904-908 (Review)* . Scope of the Orders The merchandise subject to these orders is certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate ( *i.e.* , flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness of not less than 4 mm, not in coils and without patterns in relief) of a thickness not less than 4.0 mm is not included within the scope of these orders. Specifically included within the scope of these orders are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy
(HSLA)steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. Steel products included in the scope of these orders, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products in which:
(i)iron predominates, by weight, over each of the other contained elements;
(ii)the carbon content is 2 percent or less, by weight; and
(iii)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 of vanadium, or 0.15 percent of zirconium. All products that meet the physical and chemical descriptions provided above are within the scope of these orders unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of these orders: - Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including, *3* , American Society for Testing and Materials
(ASTM)specifications A543, A387, A514, A517, A506). - Society of Automotive Engineers (SAE)/American Iron & Steel Institute
(AISI)grades of series 2300 and higher. - Ball bearings steels, as defined in the HTSUS. - Tool steels, as defined in the HTSUS. - Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent. - ASTM specifications A710 and A736. - USS Abrasion-resistant steels (USS AR 400, USS AR 500). - All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507). - Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS. The merchandise subject to these orders is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel flat products covered by these orders, including vacuum degassed fully stabilized, high strength low alloy, and the substrate for motor lamination steel, may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and U.S. Customs purposes, the Department's written description of the merchandise subject to these orders is dispositive. Continuation of Orders As a result of the determinations by the Department and the ITC that revocation of these AD and CVD orders would likely lead to continuation or recurrence of dumping and countervailable subsidies, and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the AD orders on HR steel from India, Indonesia, the PRC, Taiwan, Thailand, and Ukraine, and CVD orders on HR steel from India, Indonesia, and Thailand. U.S. Customs and Border Protection will continue to collect AD and CVD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of continuation of these orders will be the date of publication in the **Federal Register** of this Notice of Continuation. Pursuant to section 751(c)(2) and 751(c)(6)(A) of the Act, the Department intends to initiate the next five-year review of these orders not later than November 2012. These five-year (sunset) reviews and this notice are in accordance with section 751(c) of the Act. This notice is published pursuant to 751(c) and 771(i) of the Act and 19 CFR 351.218(f)(4). Dated: December 14, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E7-25098 Filed 12-26-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration (A-549-813) Canned Pineapple Fruit from Thailand: Preliminary Results of Antidumping Duty New Shipper Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) is conducting a semiannual new shipper review of the antidumping duty order on canned pineapple fruit
(CPF)from Thailand in response to a request from C & A Products Co., Ltd. (C&A). The period of review
(POR)is July 1, 2006 through December 31, 2006. The domestic interested party for this proceeding is Maui Pineapple Company Ltd. (petitioner). We preliminarily determine that C&A's sales are *bona fide* transactions. In addition, we preliminarily determine that C&A made its U.S. sales during the POR at prices above normal value. If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection
(CBP)to liquidate entries subject to this review without regard to antidumping duties. If these preliminary results are not adopted in the final results and the assessment rate calculated in the final results of this review is above *de minimis* ( *i.e.* , at or above 0.50 percent), we will instruct CBP to assess antidumping duties on all appropriate entries covered by this review. Interested parties are invited to comment on these preliminary results. The final results will be issued 90 days after the date of issuance of these preliminary results, unless extended. EFFECTIVE DATE: December 27, 2007. FOR FURTHER INFORMATION CONTACT: Myrna Lobo, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-2371. SUPPLEMENTARY INFORMATION: Background The Department published the antidumping duty order on CPF from Thailand on July 18, 1995. *See Notice of Antidumping Duty Order and Amended Final Determination: Canned Pineapple Fruit from Thailand* , 60 FR 36775 (July 18, 1995) ( *Antidumping Duty Order* ). On December 15, 2006, the Department received a timely request from C&A, in accordance with 19 CFR 351.214(c), to conduct a semiannual new shipper review of the anitdumping duty order on CPF from Thailand. This request was rejected by the Department and C&A resubmitted its request for review on January 22, 2007. This resubmission was still timely in accordance with 19 CFR 351.214(d). On February 22, 2007, the Department found that the request for review with respect to C&A met all of the requirements set forth in 19 CFR 351.214(b) and initiated a semiannual new shipper review of the antidumping duty order on CPF from Thailand for the period, July 1 through December 31, 2006. *See Canned Pineapple Fruit from Thailand: Initiation of New Shipper Antidumping Duty Review* , 72 FR 9305 (March 1, 2007). On March 9, 2007, the Department issued the initial questionnaire to C&A. 1 On March 30, 2007, the Department received C&A's section A response, and on April 23, 2007, the Department received C&A's sections B and C questionnaire response. However, the Department initially rejected C&A's sections A, B and C questionnaire responses. *See* Letter from Maureen A. Flannery, Program Manager, AD/CVD Operations, Office 6, to Mr. Worawat Chinpinkyo, C & A Products Co., Ltd. dated May 9, 2007 on file in room B-099, the Central Records Unit of the main Commerce building (CRU). On May 23, 2007 we received C&A's revised sections A, B and C responses. On July 5, 2007, the Department issued a supplemental questionnaire to C&A and C&A responded on July 20, 2007. A second and third supplemental questionnaire were issued to C&A on November 7 and November 21, 2007, and C&A responded on November 16 and November 27, 2007, respectively. On December 10, 2007, C&A submitted revised databases on their U.S. and Russian sales due to missing information in the databases submitted in their previous response. On June 5, 2007, the petitioner submitted deficiency comments on C&A's section A questionnaire response. 1 Section A of the questionnaire requests general information concerning a company's corporate structure and business practices, the merchandise under investigation that it sells, and the manner in which it sells that merchandise in all of its markets. Section B requests a complete listing of all home market sales, or, if the home market is not viable, of sales in the most appropriate third-country market (this section is not applicable to respondents in non-market economy cases). Section C requests a complete listing of U.S. sales. Section D requests information on the cost of production of the foreign like product and the constructed value of the merchandise under investigation. Section E requests information on further manufacturing. On April 18, 2007, petitioner filed an allegation that C&A's comparison market sales were being made at prices below the cost of production. Since petitioner's allegation was based on C&A's section A response dated March 30, 2007 which was removed from the record, the Department rejected petitioner's allegation. On June 5, 2007 petitioner resubmitted its sales below cost allegation. On August 9, 2007, the Department determined not to initiate a cost of production investigation because petitioner did not provide a reasonable basis to believe or suspect that C&A was selling CPF at prices below the cost of production in the comparison market. *See Memorandum to Barbara E. Tillman, Director, AD/CVD Operations, Office 6 from the Team on Petitioner's Allegation of Sales Below the Cost of Production by C&A Products Co., Ltd. dated August 9, 2007 (Cost Allegation Memo)* on file in the CRU. On August 15, 2007, the Department published a notice extending the deadline for the preliminary results to December 19, 2007. *See Canned Pineapple Fruit from Thailand: Extension of Time Limit for Preliminary Results of Antidumping Duty New Shipper Review* , 72 FR 45733 (August 15, 2007). Verification The Department intends to conduct a sales verification of C&A's responses following the preliminary results of this review. Period of Review This review covers the period July 1, 2006 through December 31, 2006. Scope of the Order The product covered by this order is CPF, defined as pineapple processed and/or prepared into various product forms, including rings, pieces, chunks, tidbits, and crushed pineapple, that is packed and cooked in metal cans with either pineapple juice or sugar syrup added. CPF is currently classifiable under subheadings 2008.20.0010 and 2008.20.0090 of the Harmonized Tariff Schedule of the United States (“HTSUS”). HTSUS 2008.20.0010 covers CPF packed in a sugar-based syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar ( *i.e.* ,juice-packed). Although these HTSUS subheadings are provided for convenience and for customs purposes, the written description of the scope is dispositive. There have been no scope rulings for the subject order. Bona Fides Analysis of U.S. Sales For the reasons stated below, we preliminarily find C&A's reported U.S. sales during the POR to be *bona fide* transactions based on the totality of the facts on the record. In evaluating whether or not sales in a new shipper review are commercially reasonable, and therefore *bona fide* , the Department considers, *inter alia* , such factors as:
(1)the timing of the sale;
(2)the price and quantity;
(3)the expenses arising from the transaction;
(4)whether the goods were resold at a profit; and
(5)whether the transaction was made on an arm's-length basis. *See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United States* , 366 F. Supp. 2d 1246, 1250 (Ct. Int'l Trade 2005), citing *American Silicon Techs. v. United States* , 110 F. Supp. 2d 992, 995 (Ct. Int'l Trade 2000). Accordingly, the Department considers a number of factors in its *bona fide* s analysis, “all of which may speak to the commercial realities surrounding an alleged sale of subject merchandise.” *See Hebei New Donghua Amino Acid Co., Ltd. v. United States* , 374 F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005), citing *Fresh Garlic from the PRC: Final Results of Administrative Review and Rescission of New Shipper Review* , 67 FR 11283 (March 13, 2002), and accompanying Issues and Decision Memorandum: New Shipper Review of Clipper Manufacturing Ltd. Specifically, we find that:
(1)the per-unit prices of C&A's sales were within the range of the unit values for other entries of subject merchandise during the POR;
(2)the quantity of C&A's shipments were within the range of other shipments of subject merchandise entered during the POR;
(3)the expenses arising from the transactions were not unusual; and
(4)C&A's sales were made between unaffiliated parties at arm's length. *See Memorandum to Barbara E. Tillman, Office Director, through Dana Mermelstein, Program Manager, from Myrna Lobo, International Trade Compliance Analyst regarding Antidumping Duty New Shipper Review of Canned Pineapple Fruit from Thailand: Bona Fides Analysis of Sales Reported by C & A Products Co., Ltd.,* dated concurrently with this notice and on file in the CRU ( *Bona Fides* Memo). Therefore, pursuant to 19 CFR 351.214(b)(2), we are preliminarily treating C&A's sales of canned pineapple fruit to the United States as appropriate transactions for review. Fair Value Comparisons To determine whether C&A's sales of CPF from Thailand were made in the United States at less than normal value (NV), we compared the export price
(EP)to the NV, as described in the U.S. Price and Normal Value section of this notice in accordance with section 777A(d)(2) of the Tariff Act of 1930, as amended (“the Act”). Product Comparisons In accordance with section 771(16)(A) of the Act, we considered all products sold in the comparison market as described in the Scope of the Order section of this notice, above, that were in the ordinary course of trade for purposes of determining appropriate product comparisons to the U.S. sales. In accordance with sections 771(16)(B) and
(C)of the Act, where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade, we compared U.S. sales to sales of the most similar foreign like product based on the characteristics listed in sections B and C of our antidumping questionnaire: weight, form, variety and grade. We found that there were no comparison sales of foreign like product that were identical in these respects to the merchandise sold in the United States, and therefore compared U.S. products with the most similar merchandise sold in the comparison market based on the characteristics listed above, in that order of priority. Date of Sale Regarding date of sale, the Department's regulations at 19 CFR 351.401(i) state that the Department will normally use the date of invoice as the date of sale, unless a different date better reflects the date on which the material terms of sale are established. C&A reported invoice date as the date of sale for all sales in both the U.S. and comparison markets. We have analyzed the data on the record and preliminarily determine that invoice date is the appropriate date of sale for all U.S. and comparison market sales under review. U.S. Price We used EP methodology for C&A's U.S. sales, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation, and constructed export price methodology was not otherwise warranted based on the facts of record. In accordance with sections 772(a) and
(c)of the Act, we calculated EP using prices C&A charged for packed subject merchandise shipped on an FOB basis. We made deductions for movement expenses, including charges for terminal handling, bill of lading preparation, shipping fee and where applicable cargo declaration document charges. Further, we treated C&A's reported commissions to its customer as discounts because the record shows that the amounts reported by C&A as commissions were in actuality reductions in price to C&A's unaffiliated customer, and that no principal-agent relationship exists between C&A and its U.S. customer. These discounts were deducted from U.S. price. *See Analysis Memorandum for C & A Products Co., Ltd. (C&A Preliminary Analysis Memo)* dated concurrently with this notice. Normal Value In accordance with section 773(a)(1)(B)(i) of the Act, we have based NV on the price at which the foreign like product was first sold for consumption in the comparison market, in the usual commercial quantities, in the ordinary course of trade, and, to the extent practicable, at the same level of trade
(LOT)as the EP sale. *See* “Level of Trade” section below. After testing comparison market viability, we calculated NV for C&A as discussed below. Home Market Viability and Selection of Comparison Market In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV ( *i.e.* ,the aggregate volume of home market sales of the foreign like product is five percent or more of the aggregate volume of U.S. sales), we compared the volume of C&A's home market sales of the foreign like product to the volume of its U.S. sales of subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Based on this comparison, we determined that C&A's home market was not viable during the POR. Consequently, the Department considered C&A's sales to third countries, and selected Russia as the appropriate comparison market because Russia was the largest third country market and no other third country market offered greater product similarity. We therefore based NV on C&A's sales to Russia. Level of Trade In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same LOT as EP. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on constructed value, that of the sales from which we derive selling expenses, G&A expenses, and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually from the exporter to the unaffiliated U.S. customer. To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. C&A reported that it made export sales to four customer categories during the period of review ( *i.e.* , to resellers, wholesalers, retailers and traders). C&A further reported that it performs identical selling functions for all customers in the U.S. and comparison markets, except for sales through the trader for which it did not perform certain marketing functions. Further, C&A reported that its selling activities do not vary by customer category and it performs the same functions for all customers. After analyzing the data on the record with respect to these selling functions, we find that there were not sufficient differences in the selling functions performed for different customer categories to determine that sales are made at more than one level of trade. We therefore find a single level of trade exists for all of C&A's sales to the U.S. and a single level of trade exists for all sales to the Russian market, and that the LOT in each market is the same. Calculation of Normal Value We based NV on the starting prices of C&A's sales to the comparison market adjusting for billing adjustments where applicable pursuant to section 773(a)(1)(A) of the Act. Pursuant to section 773(a)(6)(B)(ii) of the Act, we made deductions for movement expenses ( *i.e.* , inland freight and warehousing, terminal handling expenses, bill of lading and shipping fees) when appropriate. C&A reported commissions on its comparison market sales. Based on our analysis of the documentation on the record, we preliminarily find that C&A's reported commissions are more appropriately considered to be discounts or brokerage fees, and we made deductions for them. In accordance with section 771(33) of the Act, we examined C&A's relationships with the parties it reported as selling agents and to whom C&A claimed it paid commissions. Based on the criteria the Department normally examines in determining a principal/agent relationship, we find that with respect to Russia, the parties identified by C&A as agents are intermediaries operating on their own behalf or on behalf of the customer, and that a principal/agent relationship does not exist. *See e.g. Stainless Steel Bar from Germany: Final Results of New Shipper Review* , and accompanying Issues and Decision Memorandum at Comment 2, 72 FR 39059, (July 17, 2007). Further, upon review of evidence on the record, we found the amounts reported as commissions are more properly treated as discounts or brokerage charges rather than as commissions. As a result, we have reclassified these expenses for margin calculation purposes. Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c), we deducted comparison market direct selling expenses ( *i.e.* , credit expenses) and added U.S. direct selling expenses ( *i.e.* , credit expenses). In accordance with sections 773(a)(6)(A) and
(B)of the Act, we deducted comparison market packing costs and added U.S. packing costs. We made an adjustment to NV to account for differences in physical characteristics of the merchandise, in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411(a). We based this adjustment on the difference in the variable costs of manufacturing for the foreign like product and subject merchandise. *See* 19 CFR 351.411(b). *See C&A Preliminary Analysis Memo* . Currency Conversion In accordance with sections 773A(a) of the Act, we made currency conversions based on the official exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank of New York. *See also* 19 CFR 351.415. Preliminary Results of New Shipper Review As a result of our review, we preliminarily determine that the following percentage margin exists for C&A for the period July 1, 2006, through December 31, 2006: Manufacturer/Exporter Margin C & A Products Co., Ltd. 0.00 % Cash Deposit Requirements The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of the new shipper review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rate for C&A ( *i.e.* , for subject merchandise both manufactured and exported by C&A) will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore, *de minimis* within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; 2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in these reviews or the original less-than-fair-value
(LTFV)investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be the all-others rate established in the LTFV investigation. These requirements, when imposed, shall remain in effect until further notice. Assessment Rate Upon completion of the new shipper review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department intends to issue assessment instructions for C&A directly to CBP 15 days after the date of publication of the final results of this new shipper review. Pursuant to 19 CFR 351.212(b)(1), we will calculate an importer-specific assessment rate on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales and the total entered value of the examined sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if the importer-specific assessment rate calculated in the final results of this review is above *de minimis* ( *i.e.* , at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is zero or *de minimis* ( *i.e.* , less than 0.50 percent). *See* 19 CFR 351.106(c)(1). The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review. Disclosure and Public Hearing The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. *See* 19 CFR 351.224(b). Pursuant to 19 CFR 351.309, interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than 5 days after the deadline for filing the case briefs. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: 1) a statement of the issue; 2) a brief summary of the argument; and 3) a table of authorities. 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, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address and telephone number; 2) the number of participants; and 3) a list of issues to be discussed. *See* 19 CFR 351.310(c). Issues raised in the hearing will be limited to those raised in the case and rebuttal briefs. The Department will issue the final results of this review, including the results of its analysis of issues raised in any written briefs, within 90 days of publication of these preliminary results, unless the final results are extended. See section 751(a)(3)(A) of the Act and 19 CFR 351.213(h). Notification to Importers This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant 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. This new shipper review is issued and published in accordance with sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR 351.214(i). Dated: December 19, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-25057 Filed 12-26-07; 8:45 am] BILLING CODE 3510-DR-S DEPARTMENT OF COMMERCE International Trade Administration [A-122-840] Carbon and Certain Alloy Steel Wire Rod From Canada: Notice of Partial Rescission of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) is partially rescinding its administrative review of the antidumping duty order on carbon and certain alloy steel wire rod from Canada for the period October 1, 2006, to September 30, 2007, with respect to Mittal Canada Inc. (formerly Ispat Sidbec Inc.). This rescission, in part, is based on the timely withdrawal of the request for review. DATES: December 27, 2007. FOR FURTHER INFORMATION CONTACT: David Cordell or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 7866, Washington, DC 20230; telephone:
(202)482-0408 and
(202)482-0649, respectively. Background On October 29, 2002, the Department published in the **Federal Register** an antidumping duty order on carbon and certain alloy steel wire rod (steel wire rod) from Canada. *See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Carbon and Certain Alloy Steel Wire Rod from Canada,* 67 FR 65944 (October 29, 2002) ( *Order* ). On October 1, 2007, the Department issued a notice of opportunity to request an administrative review of this order for the October 1, 2006 through September 30, 2007 period of review. *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review,* 72 FR 55741 (October 1, 2007). Administrative reviews were requested for Ivaco Rolling Mills 2004 (formerly Ivaco Rolling Mills L.P.), Sivaco Ontario, a division of Sivaco Wire Group 2004 L.P. (formerly Ivaco, Inc.), and Mittal Canada Inc. (formerly Ispat Sidbec Inc.). On November 26, 2007, the Department initiated a review of these companies. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part,* 72 FR 65938 (November 26, 2007). Rescission in Part, of Administrative Review The applicable regulation, 19 CFR 351.213(d)(1), states that if a party that requested an administrative review withdraws the request within 90 days of the publication of the notice of initiation of the requested review, the Secretary will rescind the review in whole or in part. Mittal Canada Inc. (formerly Ispat Sidbec Inc.) made a timely withdrawal of its request for an administrative review within the 90-day deadline. Because no other party requested an administrative review of that company, we are rescinding the review with regard to Mittal Canada Inc. (formerly Ispat Sidbec Inc.). The Department intends to issue appropriate assessment instructions directly to U.S. Customs and Border Protection
(CBP)15 days after the publication of this notice. The Department will direct CBP to assess antidumping duties for this company at the cash deposit rate in effect on the date of entry for entries during the period October 1, 2006, to September 30, 2007. Notification to Importers This notice serves as a reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period of time. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and subsequent assessment of double antidumping duties. Notification Regarding Administrative Protective Orders This notice also serves as a reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with section 351.305(a)(3) of the Department's regulations. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation. This notice is issued and published in accordance with section 351.213(d)(4) of the Department's regulations and sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended. Dated: December 17, 2007. Stephen J. Claeys, Deputy Assistant Secretary, for Import Administration. [FR Doc. 07-6217 Filed 12-26-07; 8:45 am]
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  • 50 CFR 622
  • 50 CFR 648
  • 50 CFR 648.2
  • 15 CFR 904
  • 5 CFR 339
  • EO 10577
  • 5 CFR 2.1(a)
  • 29 CFR 1630
  • 5 USC 81
  • Pub. L. 100-588
  • Pub. L. 103-355
  • Pub. L. 106-554
  • 518 U.S. 515
  • 122 F.3d 895
  • 13 CFR 121
  • 5 USC 601-612
  • 13 CFR 125
  • 13 CFR 127
  • 13 CFR 134
  • Pub. L. 105-135
  • 111 Stat. 2592
  • 41 USC 423(f)(5)
  • 31 USC 3729-3733
  • 31 USC 3801-3812
  • 18 CFR 284
  • 50 CFR 665
  • Pub. L. 104-13
  • 15 CFR 400
  • 19 USC 81a-81u
  • 291 F.3d 806
  • 366 F. Supp. 2d 1246
  • 110 F. Supp. 2d 992
  • 374 F. Supp. 2d 1333
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SCOTUS518 U.S. 515
F. App'x122 F.3d 895
F. App'x291 F.3d 806
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Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

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