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Code · REGISTER · 2008-02-13 · U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, DHS · Proposed Rules

Proposed Rules. Notice of proposed rulemaking

73,121 words·~332 min read·/register/2008/02/13/08-642

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

BILLING CODE 3510-22-S 73 30 Wednesday, February 13, 2008 Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214, 215 and 274a [CIS No. 2428-07; Docket No. USCIS-2007-0055] RIN 1615-AB65 Changes to Requirements Affecting H-2A Nonimmigrants AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Homeland Security is proposing amendments to its regulations affecting temporary and seasonal agricultural workers within the H-2A nonimmigrant classification and their U.S. employers.
This rule proposes to relax the current limitations on the ability of U.S. employers to petition unnamed agricultural workers to come to the United States and include multiple beneficiaries who are outside the United States on one petition. The rule proposes to revise the current limitations on agricultural workers' length of stay including: lengthening the amount of time an agricultural worker may remain in the United States after his or her employment has ended and shortening the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible to obtain H-2A nonimmigrant status again.
This rule also proposes to provide for temporary employment authorization to agricultural workers seeking an extension of their H-2A nonimmigrant status through a different U.S. employer, provided that the employer is a registered user of the E-Verify employment eligibility verification program. In addition, the rule proposes to modify the current notification and payment requirements for employers when an alien fails to show up at the start of the employment period, an H-2A employee's employment is terminated, or an H-2A employee absconds from the worksite.
To better ensure the integrity of the H-2A program, this rule also proposes to require certain employer attestations, preclude the imposition of fees by employers or recruiters on prospective beneficiaries, preclude reconsideration of certain temporary labor certification denials, and bar H-2A status for nationals of countries consistently refusing or unreasonably denying repatriation of its nationals. These changes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers.
Finally, this rule proposes to establish a pilot program under which aliens admitted on certain temporary worker visas at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographical information, possibly including biometric identifiers, upon departure. U.S. Customs and Border Protection will publish a Notice in the **Federal Register** designating which temporary workers must participate in the program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission.
DATES: Written comments on this rule must be submitted on or before March 31, 2008 in order to be assured of consideration. Written comments on the Paperwork Reduction Act section of this rule must be submitted on or before April 14, 2008. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-2007-0055, by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2007-0055 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • *Hand Delivery/Courier:* Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529.
Contact Telephone Number
(202)272-8377. FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3000, Washington, DC 20529, telephone
(202)272-8410. SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments that will provide the most assistance to the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection
(CBP)in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. *Instructions:* All submissions received must include the agency name and DHS Docket No. USCIS-2007-0055 for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* . Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. II. Background Over the years, U.S. employers have faced a shortage of U.S. workers who are able, willing, and qualified to fill agricultural jobs, and who would be available at the time and place needed to perform the work. To meet this need, U.S. employers have considered hiring foreign workers. However, before U.S. employers may hire such workers, immigration law requires that they first sponsor the workers by filing a petition based on their qualification within the H-2A nonimmigrant classification. Immigration and Nationality Act (Act or INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). A. Description of the Current H-2A Nonimmigrant Program The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); *see* 8 CFR 214.1(a)(2) (designation for H-2A classification). Under current regulations, employment of a seasonal nature is employment that is tied to a certain time of year by an event or pattern and requires labor levels far above those necessary for ongoing operations. 8 CFR 214.2(h)(5)(iv). Employment is considered to be of a temporary nature where the employer's need to fill the position will last no longer than one year, absent extraordinary circumstances. *Id* . Aliens seeking H-2A nonimmigrant status must be petitioned for by a U.S. employer. However, prior to filing the petition, the U.S. employer must complete the temporary agricultural labor certification process with the Department of Labor
(DOL)for the job opening the employer seeks to fill with an H-2A worker. This process determines: whether the proposed employment is for agricultural labor or services; whether it is open to U.S. workers; if qualified U.S. workers are available; the adverse impact, if any, on similarly employed U.S. workers of employment of a qualified alien; and whether employment conditions, including housing, meet applicable requirements. 8 CFR 214.2(h)(5)(ii). After receiving a temporary labor certification, the U.S. employer files Form I-129, “Petition for Nonimmigrant Worker,” with the appropriate USCIS office. *See* 8 CFR 214.2(h)(5)(i)(A). In rare instances, when domestic labor fails to appear at the worksite and DOL has denied the employer's temporary labor certification and appeal of the denial, USCIS may consider the written denial of appeal as a certification if it is filed with evidence that domestic labor is unavailable. *Id* . In order to meet its employment needs, an employer may petition for one or more H-2A workers. However, in the case of multiple beneficiaries, the total number of beneficiaries in the petition cannot exceed the number of positions indicated on the temporary labor certification, and all the beneficiaries on one petition must obtain a visa at the same consulate (or, if no visa is required, apply for admission at the same port of entry). 8 CFR 214.2(h)(5)(i)(B). Where the employer seeks to employ only one H-2A worker, the Form I-129 submitted by the employer must name that worker. 8 CFR 214.2(h)(5)(i)(C). If the employer includes multiple beneficiaries in the petition, the workers must be named unless they are unnamed in the DOL certification and are outside the United States. *Id* . The petition also must establish the temporary or seasonal nature of the employment and that the beneficiary meets the requirements in the temporary labor certification, including job and training requirements and any necessary post-secondary education or other formal training. 8 CFR 214.2(h)(5)(v). The petitioner must make several petition agreements. The petitioner must: consent to allow access to the worksite where the labor will be performed; notify USCIS within twenty-four hours if an H-2A worker absconds or if the authorized employment ends more than five days before the temporary labor certification document expires, and pay $10 in liquidated damages for each instance where the employer cannot demonstrate compliance with the notification requirement; and pay $200 in liquidated damages for each instance where the employer cannot demonstrate that its H-2A worker either departed the United States or obtained authorized status based on another petition during the period of admission, or within five days of early termination (whichever comes first). 8 CFR 214.2(h)(5)(vi)(A). An H-2A worker's stay is limited by the term of the approved H-2A petition. 8 CFR 214.2(h)(5)(viii)(C). He or she may remain longer to engage in other qualifying temporary agricultural employment by obtaining an extension of stay. 8 CFR 214.2(h)(15)(ii)(C). However, his or her total period of stay in H-2A nonimmigrant status may not exceed three years. *Id* . An H-2A worker who has reached the three-year maximum period of stay may seek H-2A nonimmigrant status again, but only after remaining outside the United States for a six-month period. 8 CFR 214.2(h)(5)(viii)(C). Significant absences can interrupt the accrual towards the three-year cap of time spent as an H-2A worker. The H-2A worker can interrupt an accumulated stay of eighteen months or less by an absence from the United States of at least three months. *Id* . He or she can interrupt an accumulated stay of more than eighteen months by an absence from the United States of at least one-sixth of the accumulated stay. *Id* . Once an H-2A worker's petition has expired, the H-2A worker is allowed an additional ten-day period before he or she is required to depart the United States. 8 CFR 214.2(h)(5)(viii)(B). However, an H-2A worker whose three-year limit has not been reached may seek to extend his or her stay with the same employer or a new employer. He or she is employment authorized for not more than 240 days past the authorized period of stay if the same employer petitions for an extension of stay before expiration of the authorized period of stay. 8 CFR 274a.12(b)(20). If a new employer files a request to extend the alien's stay in H-2A status, the alien is not employment authorized past the authorized period of stay and is not able to begin employment with the new employer until the petition is approved. 8 CFR 214.2(h)(2)(i)(D). USCIS will not grant H-2A nonimmigrant status to an alien who violated the conditions of H-2A status within the previous five years by remaining beyond the authorized period of stay or engaging in unauthorized employment. 8 CFR 214.2(h)(5)(viii)(A). B. Limited Use of H-2A Nonimmigrant Classification Despite the availability of the H-2A nonimmigrant classification, a high percentage of the agricultural workforce is comprised of aliens who have no immigration status and are unauthorized to work. The Congressional Research Service Report to Congress, “Farm Labor Shortages and Immigration Policy” (Sept. 5, 2007), states that persons in the country illegally accounted for an estimated 37% of the domestic crop workforce in fiscal year
(FY)1994 to FY 1995. In FY 1997/FY 1998, this percentage increased to 52% out of the estimated 1.8 million workers employed on crop farms. By FY 1999/FY 2000, their proportion had increased to 55% before retreating to 53% in FY 2001/FY 2002. 1 1 *See also* Research Report No. 8, U.S. Department of Labor Office of the Assistant Secretary for Policy Office of Program Economics (March 2000) (finding that in 1997-98, 52 percent of hired farm workers lacked work authorization, 22 percent were citizens and 24 percent were lawful permanent residents). Members of the public have cited what they consider to be unnecessarily burdensome regulatory restrictions placed on the H-2A nonimmigrant classification as one of the principal reasons why U.S. agricultural employers facing a shortage of qualified U.S. workers do not fully use the H-2A nonimmigrant classification to petition for temporary or seasonal agricultural workers from abroad. 2 Upon an examination of the regulatory provisions governing the H-2A nonimmigrant classification, USCIS has identified several requirements regarding the duration of the H-2A workers' authorized period of stay that add unnecessary burdens for both the petitioning employers and H-2A workers. The regulations include limitations on the use of unnamed and multiple beneficiaries in the petition, and employment authorization following a change in employers. The regulations also require certain employer agreements and include financial consequences for failure to comply. This proposed rule modifies these regulatory limitations and requirements. In so doing, USCIS anticipates that these changes will improve the utility of the H-2A nonimmigrant classification, so that this classification will be a more effective means for supplying a legal workforce to agricultural employers. 2 *See* Mexico-Migration: A Shared Responsibility. The U.S.-Mexico Migration Panel Carnegie Endowment for International Peace and Instituto Tecnológico Autónomo de México (2001); *see also* Washington, April M., “ *Canada offers migrant tips; Colorado looks north of the border for ways to draw workers* ,” Rocky Mtn. News 10 (Sep. 15, 2007) (quoting a farmer, “There is a bottleneck at the federal level in approving work visas, causing real problems for farmers”). To better ensure that the requirements proposed in this rule do not adversely affect H-2A workers, compromise national security, or undermine the integrity of the H-2A program, the rule also proposes a limited number of new terms and conditions on employers' participation in the program. First, the rule proposes to require an employer attestation regarding the scope of the H-2A employment and the use of recruiters to locate beneficiaries. Second, the rule proposes to provide for denial or revocation of the H-2A petition if an H-2A worker was charged a fee by the petitioner in connection with the employment. Third, the rule proposes to allow H-2A workers who are changing employers to begin work with the new petitioning employer before the change is approved by USCIS, but only if the new employer participates in USCIS' E-Verify program. The E-Verify program (successor to the Basic Pilot Program) provides employers with a free and electronic method for confirming the employment eligibility of their newly-hired employees. *See* Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) sec. 401-05, Pub. L. No. 104-208, 110 Stat. 3546 (September 30, 1996), as amended (8 U.S.C.A. 1324a note). Fourth, this rule proposes to prohibit the approval of an H-2A petition for a national of a country that consistently refuses or unreasonably delays repatriation of its nationals who have been ordered removed from the United States. Finally, this rule proposes a program to strengthen the reporting system for temporary workers departing the United States at the conclusion of their authorized period of stay. III. Proposed Changes A. Consideration of Denied Temporary Agricultural Labor Certifications While current regulations allow USCIS, in limited circumstances, to approve H-2A petitions that are filed with denied temporary agricultural labor certifications, USCIS believes that this authority is of limited use and is proposing to remove it from the regulations. Current regulations permit USCIS to accept a written denial of an appeal of a denied temporary labor certification as a labor certification if the appeal denial is accompanied by evidence establishing that qualified domestic labor is unavailable to do the work. *See* 8 CFR 214.2(h)(5)(i)(A); 3 * see also* 8 CFR 214.2(h)(5)(ii) (last sentence). USCIS believes that determinations as to the availability of U.S. workers are not within the expertise of USCIS, but instead are more appropriately made by DOL. Therefore, USCIS will remove this process from 8 CFR 214.2(h)(5)(i)(A) and (ii). The employer, however, is not left without recourse. If the employer can establish that domestic labor is unavailable, it may seek a new temporary labor certification from DOL. 3 Note that 8 CFR 214.2(h)(5)(i)(A) currently erroneously cites to section 216(e)(2) of the INA as the statutory authority for administrative appeals of denied temporary labor certifications. The correct statutory provision is section 218(e)(2) of the INA. B. Unnamed Beneficiaries in the Petition Currently, H-2A employers must name in the petition all the workers being sought ( *i.e.* , beneficiaries) unless unnamed in the temporary labor certification involving multiple beneficiaries. This requirement places an undue burden on employers. *See* 8 CFR 214.2(h)(5)(i)(C) (naming requirement). It also fails to accommodate the hiring practices of agricultural employers. An intervening event may preclude an employer from being able to continue to petition for the beneficiaries named in the temporary labor certification. This rule proposes to alleviate the problems encountered by employers when workers become unavailable by removing most of the constraints on an employer's ability to petition for unnamed beneficiaries and maintaining only the requirement that the petition include the names of those beneficiaries who are already in the United States. By removing from the current regulations the requirement to name beneficiaries outside of the United States on the petition, USCIS believes that agricultural employers would have more flexibility to recruit foreign workers that are actually interested in the position on the date of stated need. Since employers often start the temporary labor certification and petitioning processes several months ahead of the actual date of stated need, naming beneficiaries that far in advance increases the likelihood that those beneficiaries are unavailable to fill the positions. Conversely, if a beneficiary is already in the United States, USCIS believes that naming such beneficiaries is necessary because the granting of the petition will either confer a new immigration status or extend the status of a particular alien immediately upon approval, whereas prospective beneficiaries abroad still must undergo both a visa interview at a U.S. consulate and an inspection by a U.S. Customs and Border Protection officer upon arrival at a port of entry to the United States. Based on the proposed changes, if an employer wishes to petition for multiple beneficiaries, some of whom are in the United States and some of whom are outside the United States, the employer must name the beneficiaries who are in the United States, and only provide the number of beneficiaries who are outside the United States. This naming requirement would apply regardless of the number of beneficiaries on the petition or whether the temporary labor certification named beneficiaries. Rather than amend the applicable H-2A provision at 8 CFR 214.2(h)(5)(i)(C), this rule proposes to incorporate these changes into the general provision at 8 CFR 214.2(h)(2)(iii), governing the naming of beneficiaries in H categories. USCIS believes that maintaining two separate provisions on the naming of beneficiaries unnecessarily complicates the regulations and results in confusion. Therefore, this rule proposes to remove the unnamed beneficiary requirements from 8 CFR 214.2(h)(5)(i)(C) and revise the requirements in the general provision at 8 CFR 214.2(h)(2)(iii). This provision, as revised, would specify which H classifications must name beneficiaries in the petition and which do not need to name beneficiaries and under what circumstances. Note that USCIS also is developing a separate rulemaking action to amend requirements for H-2B that may have additional impacts on H classifications. C. Multiple Beneficiaries USCIS has determined that the current regulatory provision at 8 CFR 214.2(h)(5)(i)(B) that permits petitioners to petition for multiple beneficiaries who are overseas only if all the beneficiaries will obtain a visa at the same overseas consulate or apply for admission at the same port of entry is no longer necessary. This rule proposes to eliminate this requirement from 8 CFR 214.2(h)(5)(i)(B). This requirement previously was necessary because, in the past, USCIS had to forward each approved petition to the consulate overseas where a beneficiary will apply for a visa. For petitions containing a request for multiple beneficiaries, the beneficiaries had to apply for their visas at the same consulate to ensure effective tracking and usage of available numbers in an approved petition. However, the U.S. Department of State recently implemented a new electronic system to effectively track visa issuance for specific petitions approved for multiple beneficiaries in real time regardless of the consulate location where a beneficiary may apply for a visa. Thus, the proposed change will benefit a prospective H-2A employer by permitting the employer to file only one petition with USCIS when petitioning for multiple H-2A beneficiaries from multiple countries. The benefit to the employer will be realized not only in terms of convenience but also from a financial standpoint since the employer will only be responsible for paying one petition filing fee. D. Payment of Fees by Beneficiaries To Obtain H-2A Employment 1. Grounds for Denial or Revocation on Notice USCIS has found that certain job recruiters and U.S. employers are charging potential H-2A workers job placement fees in order to obtain H-2A employment. Such workers are coming to the United States to fill positions that U.S. workers are unwilling or unable to fill and are doing so in order to improve their own difficult economic circumstances at home. USCIS has learned that payment by these workers of job placement-related fees not only results in further economic hardship for them, but also, in some instances, has resulted in their effective indenture. In an effort to protect H-2A workers from such abuses, this rule proposes to provide USCIS with the authority to deny or revoke upon notice any H-2A petition if it determines
(1)That the alien beneficiary has paid or has agreed to pay any fee or other form of compensation, whether directly or indirectly, to the petitioner, or
(2)that the petitioning employer is aware that the alien beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service, in connection with obtaining the H-2A employment. *See* proposed 8 CFR 214.2(h)(5)(xi)(A); *see also* 8 CFR 214.2(h)(11)(iii) (revocation on notice). We understand that there may be circumstances where an alien beneficiary may seek to pay or otherwise compensate a recruiter, facilitator or similar employment service without the knowledge of the petitioner. By revoking or denying the petition in such circumstance, USCIS would be penalizing the alien beneficiary whose illegal actions should not be rewarded by continued stay in the United States, and deterring both aliens and recruiters from entering into such arrangements in the future. However, revocation or denial would also harm the petitioner as well, through loss of an employee. DHS solicits comments on appropriate administrative penalties in the event that USCIS determines that the alien beneficiary, without the knowledge of the petitioner, paid or agreed to pay a fee or any form of compensation to a facilitator, recruiter, or similar employment service, in connection with an offer or as a condition of H-2A employment. USCIS believes that this proposal will help minimize immigration fraud and protect against other abuses that have occurred when such aliens have been required to pay such employment fees, including petition padding (i.e., the filing of requests for more workers than needed), visa selling, and human trafficking. This proposal would not preclude the payment of any finder's or similar fee by the prospective employer to a recruiter or similar service, provided that such payment is not assessed directly or indirectly against the alien worker. To provide protection to H-2A workers who are in the United States based upon an approved petition that is later revoked pursuant to proposed 8 CFR 214.2(h)(5)(xi)(A), this rule proposes a thirty-day grace period during which time such workers may find new employment and apply for an extension of stay, or depart the United States. *See* proposed 8 CFR 214.2(h)(5)(xi)(B). During the thirty-day period, such workers would not be unlawfully present in the United States, but, instead, would be in an authorized period of stay. *See* INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). In general, the unlawful presence of an alien in the United States for more than 180 days results in the alien being inadmissible to the United States for a minimum of three years. *Id.* Further, to minimize the costs to H-2A workers who are affected by the revocation of a petition pursuant to proposed 8 CFR 214.2(h)(5)(xi)(A), this rule also proposes to require employers to pay such workers' reasonable transportation expenses to return to their last place of foreign residence. Proposed 8 CFR 214.2(h)(5)(xi)(B). However, the rule would not require employers to be held liable for such expenses in cases where affected aliens obtain approval of an extension of H-2A stay based on a subsequent job offer with another employer during the thirty-day grace period, provided that the new employer states in the job offer that it will pay such reasonable return transportation expenses upon completion of the alien's new employment. 2. Employer Attestation USCIS recognizes that some H-2A petitioners, particularly those petitioning for the first time and without the benefit of counsel, may not appreciate the limitations on H-2A employment imposed by the regulations and the representations in the H-2A petition and the accompanying application for temporary labor certification. This rule proposes to require H-2A petitioners to include with their petitions an attestation, certified as true and accurate by the petitioner under penalty of perjury, that during the period of intended employment for which the petition is approved, the petitioner will not materially change the information provided on the Form I-129 and the temporary labor certification, including, but not limited to, the alien workers' duties, their place of employment, and the entities for which the duties will be performed. Proposed 8 CFR 214.2(h)(5)(i)(C). USCIS believes that this requirement will apprise petitioners of their responsibilities and obligations, and, at the same time, help prevent the employment of H-2A alien workers in a manner that conflicts with the representations upon which approval of the petition is based. In the event that a material change does occur in the terms and conditions of employment specified in the original petition, petitioners are currently obligated to file a new petition under 8 CFR 214.2(h)(2)(i)(E). As an anti-fraud and worker protection measure to complement the proposed changes to 8 CFR 214.2(h)(5)(xi), USCIS is further proposing that the petitioning employer also include in its attestation a statement that it has not received, nor intends to receive, any fee, compensation, or other form of remuneration from the workers it intends to hire or from any person, agency or other entity. The petitioner would also be required to attest to whether it has used a facilitator, recruiter, or any other similar employment service, to locate foreign workers to fill the positions covered by the H-2A petition, and if so, to provide the names of such facilitators, recruiters, or placement services. E. Petition Agreements and Liquidated Damages USCIS has found that the notification and liquidated damages requirements provided for in the current regulations at 8 CFR 214.2(h)(5)(vi)(A) are onerous on employers and not effective in ensuring that H-2A workers maintain their nonimmigrant status. Therefore, USCIS is proposing to modify this provision by requiring petitioners to provide written notification to DHS in the following instances: an H-2A worker fails to report to work within five days of the date of the employment start date; the employment terminates more than five days early; or the H-2A worker absconds from the worksite. *See* proposed 8 CFR 214.2(h)(5)(vi)(B)(1). The rule proposes to lengthen the time within which the petitioner must meet the notification requirements from the current twenty-four hours to forty-eight hours. The rule also proposes to provide the method of notification via notice in the **Federal Register** , as well as the date on which the new notification requirements will take effect. To enforce the notification provision, the rule proposes to require employers to retain evidence (e.g., a photocopy) of the written notification for a one-year period. *See* proposed 8 CFR 214.2(h)(5)(vi)(B)(2). This rule further proposes to increase the liquidated damages for failing to meet the notification requirement from $10 to $500 per instance because the $10 amount is not a sufficient deterrent against noncompliance. *See* proposed 8 CFR 214.2(h)(5)(vi)(B)(3). However, the rule removes the current requirement for the petitioner to pay $200 in liquidated damages for failing to demonstrate that its H-2A worker either departed the United States or obtained authorized status based on another petition during the period of admission or within five days of early termination. USCIS believes that petitioners are not in a position to know or easily obtain this information. Additionally, the rule proposes to add a provision setting forth the circumstances in which an H-2A worker may be found to be an absconder, thus defining a term that would otherwise vary in interpretation from one employer to the next, possibly to the detriment of the alien worker. *See* proposed 8 CFR 214.2(h)(5)(vi)(E). The definition employs the same five-day period used to trigger a notification requirement when the alien does not show-up for work at the beginning of the petition period. In proposed 8 CFR 214.2(h)(5)(vi), USCIS is restructuring the entire paragraph. Substantive modifications were only made to the notification and liquidated damage requirements. Conforming amendments were made to 8 CFR 214.2(h)(5)(ix). F. Violations of H-2A Status USCIS has determined that the current provision at 8 CFR 214.2(h)(5)(viii)(A) precluding a new grant of H-2A status where the alien worker violated the conditions of H-2A status within the prior five years requires clarification. This provision only lists two types of status violations and fails to include all status violations. This rule clarifies that *any* violation of a condition of H-2A status committed within the five years prior to adjudication of the petition by USCIS will result in a denial of H-2A status. G. Revocation of Labor Certification DOL published a rule that proposes to allow for the revocation of an approved temporary agricultural labor certification when an employer violates the terms of that labor certification. The proposal includes a means to contest a possible revocation of the labor certification. Accordingly, in this rule, USCIS is proposing to provide for the immediate and automatic revocation of the petition upon the revocation of the labor certification by DOL. *See* proposed 8 CFR 214.2(h)(2)(11)(ii). Since the labor certification is a prerequisite for an H-2A petition, and the DOL proposed rule would provide for contesting revocation of the labor certification, USCIS need not engage in a separate review before the petition is revoked. H. Prohibiting H-2A Petitions or Admissions for Nationals of Countries That Refuse Repatriation An alien worker who violates his or her status may be subject to administrative proceedings before an immigration judge to remove the alien from the United States. *See* INA sections 237(a)(1)(C), 239(a), 240(a); 8 U.S.C. 1227(a)(1)(C), 1229(a), 1229a(a). A removal order typically includes the name of the country to which the alien is to be removed, which usually is the alien's country of nationality. In order to effectuate the removal order, DHS must ensure that the alien has the necessary travel documents ( *e.g.* , passport) to return to the named country and that the country agrees to receive the alien. DHS has faced an on-going problem of countries refusing to accept or unreasonably delaying the acceptance of their nationals who have been ordered removed. To combat this problem, Congress gave the Secretary of State the authority to discontinue the issuance of visas to citizens, subjects, nationals, and residents of a country if DHS notifies the Secretary of State that the government of that country consistently denies or unreasonably delays their return. INA sec. 243(d), 8 U.S.C. 1253(d); *see also* IIRIRA sec. 307. In an effort to further alleviate the problem, this rule proposes to preclude USCIS from approving a petition filed on behalf of one or more aliens from countries determined by the Secretary of Homeland Security to consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals or residents. *See* proposed 8 CFR 214.2(h)(5)(i)(F); *see also* INA secs. 214(a)(1), 215(a)(1) and 243(d); 8 U.S.C. 1184(a)(1), 1185(a)(1), and 1243(d). At the time that DHS makes such determination, DHS expects in most cases to notify the Secretary of State under INA 243(d) of the determination so that applications for H-2A visas from citizens, subjects, nationals, and residents of that country may be lawfully denied on that basis. The Secretary of Homeland Security will periodically review determinations that countries have consistently denied or unreasonably delayed acceptance of their nationals to ensure the determinations are still justified. These provisions are intended to encourage more nations to promptly accept the return of nationals subject to a final order of removal. More generally, DHS expects that the proposals in this rule intended to increase the flexibility and attractiveness of the H-2A visa program, complemented by the streamlining proposals the Department of Labor is making in its H-2A rule, will increase the popularity of the program with U.S. agricultural employers. But even though a more workable H-2A program would mean fewer aliens entering the country illegally to seek work, it could also lead to an increase in the number of H-2A workers that abscond from their workplace or overstay their immigration status. The repatriation proposal outlined above is designed, in part, to address this challenge. DHS hereby invites comments from the public on additional or alternative approaches, for example by restricting eligibility to nationals of countries that provide the most cooperation to the United States in administering the program, rather than by excluding those whose governments provide the least cooperation. DHS is particularly interested in additional ways to promote cooperation by foreign governments in matters of security, particularly in connection with travel and immigration, such as the country's willingness to share passport information and criminal records of aliens who are seeking admission to, or are present in, the United States under this program. I. Period of Admission This rule proposes to extend the H-2A admission period following the expiration of the H-2A petition from not more than ten days to an absolute thirty-day period. *See* proposed 8 CFR 214.2(h)(5)(viii)(B). The purpose of this post-petition period is to provide the H-2A worker enough time to prepare for departure or apply for an extension of stay based on a subsequent offer of employment. As discussed below, USCIS is proposing to increase the mobility of aliens from one H-2A employer to another (see proposed 8 CFR 274a.12(b)(21)). USCIS believes that the change to a thirty-day period will facilitate this new benefit. The proposed rule also corrects 8 CFR 214.2(h)(5)(viii)(B) by removing an incorrect cross-reference to 8 CFR 214.2(h)(5)(ix)(C). In its place, a cross-reference to 8 CFR 214.2(h)(5)(viii)(B) should be included in 8 CFR 214.2(h)(5)(viii)(C). J. Interruptions in Accrual Towards 3-Year Maximum Period of Stay An alien's total period of stay in H-2A nonimmigrant status may not exceed three years. 8 CFR 214.2(h)(15)(ii)(C). However, certain periods of time spent outside the United States are deemed to “stop the clock” towards the accrual of the three-year limit. 8 CFR 214.2(h)(5)(viii)(C). USCIS has determined that the length of time that the current regulations require before an H-2A's three-year period of stay is deemed interrupted is unnecessarily long. This results in H-2A workers reaching the three-year cap on their authorized period of stay much sooner than reasonably anticipated by both the workers and their employers, causing disruptive breaks in employment and difficulty for employers to meet their time-sensitive agricultural requirements. This rule proposes to reduce from three months to forty-five days the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit, where the accumulated stay is eighteen months or less. *See* proposed 8 CFR 214.2(h)(5)(viii)(C). If the accumulated stay is longer than eighteen months, this rule proposes to simplify the calculation of the interruptive period required from at least one-sixth of the period of accumulated stay to two months. *Id.* These proposed reductions would reduce the amount of time employers are required to be without the services of needed workers and enable the employers to have a set timeframe from which they can better monitor compliance with the terms and conditions of H-2A status. K. Post-H-2A Waiting Period Once an H-2A worker has reached the three-year ceiling on H-2A nonimmigrant status, current regulations require the worker to wait six months outside the United States prior to seeking H-2A nonimmigrant status again (or any other nonimmigrant status based on agricultural activities). 8 CFR 214.2(h)(5)(viii)(C). USCIS believes that a shorter waiting period would better meet the needs of agricultural employers in a time-sensitive industry experiencing such a shortage of U.S. workers. This rule proposes to reduce the required absence period to three months, in order to reduce the amount of time employers would be required to be without the services of needed workers, while not offending the fundamental temporary nature of employment under the H-2A program. L. Extending Status With New Employer and Participation in E-Verify This proposed rule would permit H-2A workers to continue to be employment authorized while awaiting an extension of H-2A status based on a petition filed by a new employer accompanied by an approved labor certification. Proposed 8 CFR 274a.12(b)(21). Specifically, the new provision would authorize an individual who has filed an application for an extension of stay during his or her period of admission to be employed by the new, petitioning employer for a period not to exceed 120 days beginning from the date of the notice that USCIS issues to acknowledge that it has received the application for the extension of stay. USCIS issues such notices on Form I-797, “Notice of Action.” The notice date on Form I-797 is called the “Received Date.” Note that if the application for the extension of stay is denied by USCIS prior to the expiration of this 120-day period, employment authorization would automatically terminate upon notification of the denial decision. The proposed rule places one condition on this employment authorization benefit: The new H-2A employer must be a registered user in good standing (as determined by USCIS) of USCIS' E-Verify program. If the new employer does not meet this condition, proposed 8 CFR 274a.12(b)(21) would not apply, and the alien worker would not be authorized to work for the new employer until USCIS grants the extension of stay application. USCIS believes that this proposed employment authorization provision will create an incentive for agricultural employers to enroll in the E-Verify program, thereby reducing opportunities for aliens without employment authorization to work in the agricultural sector and helping protect the integrity of the H-2A program. This proposed rule makes conforming amendments to 8 CFR 214.2(h)(2)(i)(D) (prohibiting an alien from commencing employment until the new employer's petition is approved) and includes a cross-reference to proposed 8 CFR 274a.12(b)(21). It also includes a cross-reference to section 214(n) of the INA, 8 U.S.C. 1184(n). This statutory provision applies to aliens within the H-1B specialty worker classification and, in general, permits such aliens to work for a new employer before such an employer's petition is approved. The addition of section 214(n) of the INA, 8 U.S.C. 1184(n), in this proposed rulemaking is made so that the regulations conform to the statute. M. Miscellaneous Changes to H-2A Program 1. Extensions of Stay Without New Temporary Labor Certifications USCIS regulations currently provide that, under certain circumstances, an application for an extension of stay for an H-2A nonimmigrant worker need not contain an approved temporary labor certification. 8 CFR 214.2(h)(5)(x). This rule proposes revisions to this provision to improve its readability; it proposes no substantive changes. 2. Filing Locations To improve the efficient processing of H-2A nonimmigrant petitions, USCIS recently established special mailing addresses at the USCIS California Service Center for all H-2A petition filings. The current regulations, however, only permit petitions to be filed with the USCIS Service Center that has jurisdiction in the area where the alien will perform services (or receive training) except as provided for elsewhere in the regulations or by a designation specified in a notice published in the **Federal Register** . 8 CFR 214.2(h)(2)(i)(A). USCIS has found that effecting changes to filing procedures by notice in the **Federal Register** creates an unnecessary obstacle to the timely implementation of petition processing improvements. Such changes would be more timely conveyed to the public via the petition's form instructions and USCIS's Web site. Therefore, this rule proposes to remove the **Federal Register** notice requirement at 8 CFR 214.2(h)(2)(i)(A) and instead provides that the form instructions will contain information regarding appropriate filing locations for these nonimmigrant visa petitions. N. USCIS Policy Applicable to H-2A Sheepherders For a number of years, the Immigration and Naturalization Service
(INS)and now USCIS have refrained from applying the three-year maximum period of stay to H-2A aliens who work as sheepherders. *See* Memorandum from INS Assistant Commissioner John R. Schroeder to Northern Service Center Director James M. Bailey, “Limits of Stay for H-2A Sheepherders under 8 CFR 214.2(h)(5)(viii)(C)” (Oct. 31, 1991) (referring to Letter from INS Commissioner Alan Nelson to Senator Alan K. Simpson (Nov. 11, 1987)) (stating that a 6-month absence from United States is not required of H-2A sheepherders). As a result, H-2A aliens working as sheepherders who have reached the three-year maximum period of stay have been able to commence a new three-year period of stay in H-2A status without ever departing and remaining outside the United States for six months. *See* 8 CFR 214.2(h)(5)(viii)(C) (specifying 6-month departure requirement). While USCIS recognizes the special nature of this unique type of agricultural work, including the need to herd sheep over extensive expanses of open range for long periods of time, USCIS has concluded that its policy of exempting H-2A sheepherders from the six-month departure requirement is inconsistent with the parameters of the H-2A classification. Those parameters require that H-2A workers have a residence in a foreign country that they have no intention of abandoning, and perform agricultural labor or services in the United States on a temporary basis. Without imposing a meaningful departure after the three-year maximum period of stay has been reached, USCIS has found that H-2A sheepherders' stay is not truly temporary. Therefore, USCIS proposes to impose on H-2A sheepherders the same departure requirement applicable to all H-2A workers. However, before doing so, USCIS is soliciting comments from the public regarding this change in policy. Under the proposed change, USCIS would not take action against individuals who have already been admitted in H-2A classification to engage in sheepherding activities. Such individuals, however, would be required to depart from the United States at the end of their period of admission in H-2A status and remain outside of this country for the requisite time period (six months under the current regulation; three months under the proposed rule) before being eligible to obtain H-2A status again. *See* INA sec. 101(a)(15)(H)(ii)(A), 8 U.S.C. 1101(a)(15)(H)(ii)(A); 8 CFR 214.2(h)(5)(iv). O. Land Border Exit System Pilot The Secretary of Homeland Security is authorized to prescribe conditions for the admission of nonimmigrant aliens under section 214 of the INA. Section 235 of the INA provides for the inspection of applicants for admission. Pursuant to 8 CFR 235.1(h)(1), nonimmigrant aliens who are admitted to the United States, unless otherwise exempt, are issued Form I-94, “Arrival/Departure Record,” as evidence of the terms of admission. Once admitted into the country, nonimmigrant aliens are required to comply with all the conditions of their stay, depart the United States before the expiration of the period of authorized stay, and surrender the departure portion of the Form I-94 upon departure from the United States. Section 215 of the INA provides the authority for departure control for any person departing from the United States. Additionally, 8 CFR part 215 provides the regulations for controls of aliens departing from the United States. Specifically, 8 CFR 215.2 allows for DHS, at its discretion, to require any alien departing from the United States to be examined under oath and to submit for official inspection all documents in the alien's possession. Available statistics indicate that a significant number of nonimmigrant aliens either do not turn in their Form I-94 upon departure or overstay their authorized period of stay. DHS intends to strengthen its departure control record keeping system. On August 10, 2007, the Administration announced that it would establish a new land-border exit system for guest workers, starting on a pilot basis. In order to ensure that temporary workers depart the United States within the authorized period, DHS is proposing to institute a land-border exit system for H-2A guest workers on a pilot basis. Under the proposed program, an alien admitted on an H-2A visa at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographic and/or biometric information upon departure at the conclusion of their authorized period of stay. CBP would publish a Notice in the **Federal Register** designating which ports of entry are participating in the program, which biographic and/or biometric information would be required, and the format for submission of that information by the departing H-2A workers. The exit pilot program would allow DHS to ensure that the H-2A workers subject to this pilot program have departed from the United States when their authorization expires and would provide a foundation for the comprehensive land border exit system for guest workers proposed by the Administration in August 2007. DHS requests comments on the establishment of the proposed pilot program. DHS also solicits comments on whether to include H-2B workers in the exit pilot program. (The H-2B nonimmigrant classification applies to foreign workers performing nonagricultural temporary labor or services in the United States. INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) (H-2B classification designation)). DHS previously conducted exit pilot programs at selected air and sea ports of entry through United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program. See 69 FR 46556. Those pilots began in August 2004 and concluded in May 2007. The pilot program exit system proposed under this rule will utilize any applicable lessons learned from the US-VISIT air and sea exit pilot program. DHS will continue to coordinate these screening programs to ensure both security and efficiency of the programs. IV. Rulemaking Requirements A. Regulatory Flexibility Act-Initial Regulatory Flexibility Analysis The H-2A program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. U.S. employers have historically faced a shortage of domestically available workers for seasonal agricultural jobs. Many farm workers also in America lack proper work authorization and immigration status. In addition, the requirements that Federal labor and immigration authorities impose on farmers and agribusinesses to obtain H-2A workers are generally felt to be overly burdensome. Therefore, USCIS is proposing changes intended to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. 1. Description of and, Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply a. Regulated Entities USCIS has concluded that the entities affected by this rule are generally categorized as small. By and large this rule applies to farms engaged in the production of livestock, livestock products, field crops, row crops, tree crops, and various other enterprises. It does not apply to support activities for agriculture. The industry affected by this rule, as described in the North American Industry Classification System (NAICS), as encompassing NAICS subsectors 111, Crop Production, and 112, Animal Production. b. Number of Small Entities to Which the Proposed Rule Will Apply USCIS estimates that it will receive approximately 6,300 petitions per year for H-2A workers with many farms submitting multiple petitions. About 5,000 of those are expected to be submitted by small entities. The number of regulated firms represents about 0.3 percent of all farmers and the number of H-2A employees make up about 9.3 percent of all farm workers. Finally, about 550 sheep ranchers (an unknown number but presumed majority of which are small entities) are expected to be directly affected by this proposed rule as a result of the proposed changes that are specific to sheepherders. 2. Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities That Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record a. Paperwork Reduction Act The proposed rule adds no “reporting” or “recordkeeping” requirements within the meaning of the Paperwork Reduction Act; thus the rule does not require professional skills for the preparation of “reports” or “records” under that Act. b. New Reporting Requirement The proposed rule would impose new reporting requirements on H-2A employers, including the time frame for reporting, the mechanisms for reporting, the amount of liquidated damages for failure to comply, and defenses for failure to comply. This rule proposes to announce via notice published in the **Federal Register** appropriate notification requirements and assesses liquidated damages for failure to comply with the notification requirements at $500 per violation. DHS has no basis for estimating the cost of this new requirement on H-2A employers. However, DHS believes that the occurrence of non-compliance is not prevalent enough to affect a substantial number of the affected entities. However, the agency has requested and seeks further comment on the actual costs or expenditures, if any, of impact on any one firm that is assessed liquidated damages as a result of being found to be in violation of this new requirement and how that impact may differ or vary for small entities. 3. Identification of Federal Rules That May Duplicate, Overlap or Conflict With the Proposed Rule DHS is unaware of any duplicative, overlapping, or conflicting federal rules. As noted below, DHS seeks comments and information about any such rules, as well as any other state, local, or industry rules or policies that impose similar requirements as those in this proposed rule. 4. Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities, Including Alternatives Considered, Such as:
(1)Establishment of Differing Compliance or Reporting Requirements or Timetables That Take into Account the Resources Available to Small Entities;
(2)Clarification, Consolidation, or Simplification of Compliance and Reporting Requirements Under the Rule for Such Small Entities;
(3)Use of Performance Rather Than Design Standards;
(4)Any Exemption From Coverage of the Rule, or Any Part Thereof, for Such Small Entities Throughout the development of the proposed rule DHS has made every effort to gather information regarding the economic impact of the rule's requirements on all operators, including small entities. Questions for public comment regarding the costs and benefits associated with the proposed rule with respect to how operators, including small entities, can comply with the rule's requirements are included in this part of the rule. 5. Questions For Comment To Assist Regulatory Flexibility Analysis Please provide comment on any or all of the provisions in the proposed rule with regard to: a. The impact of the provision(s) (including any benefits and costs), if any; and b. What alternatives, if any, DHS should consider, as well as the costs and benefits of those alternatives, paying specific attention to the effect of the rule on small entities in light of the above analysis. In particular, please provide the above information with regard to the following sections of the proposed rule: i. The new reporting requirements on H-2A employers, including the time frame for reporting, the mechanisms for reporting, the amount of liquidated damages for failure to comply, and defenses for failure to comply in 8 CFR 214.2(h)(2)(vi)(B)( *2* ). ii. The requirement for H-2A sheepherders to have the same departure requirement applicable to all H-2A workers under 8 CFR 214.2(h)(5)(viii)(C) (specifying 6-month departure requirement). iii. Any other requirement not mentioned above. c. Costs to “implement and comply” with the rule including expenditures of time and money for any employee training; attorney, computer programmer, or other professional time; preparing relevant materials; processing materials, including, materials or requests for access to information; and recordkeeping. Please describe ways in which the rule could be modified to reduce any costs or burdens for small entities consistent with the Immigration and Nationality Act's requirements. Please describe whether and how technological developments could reduce the costs of implementing and complying with the rule for small entities or other operators. Please provide any information quantifying the economic benefits of: a. Reducing delays in the petition, application, and approval process. b. Reducing the time required for an H-2A worker to be out of the country, allowing more time for departure after the visa has expired, and allowing for an extension of stay while a new petition is pending. c. Encouraging employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers. d. Minimize immigration fraud and protect against abuses that occur when aliens are required to pay employment fees. Please identify all relevant federal, state or local rules that may duplicate, overlap or conflict with the proposed rule. In addition, please identify any industry rules or policies that already require compliance with the requirements of the DHS proposed rule. B. Provisions to Which the Regulatory Flexibility Act Does Not Apply CBP is also seeking comments through this rule with respect to a pilot program that would require that aliens admitted on certain temporary worker visas at a port of entry must depart through a port of entry participating in the program. Although there may be costs associated with participation in this program, the aliens impacted by this portion of the rule are not considered “small entities,” as that term is defined in 5 U.S.C. 601(6). Since the regulation will require the alien to comply with the pilot program, rather than placing a requirement on the employers, the employers are not directly impacted by this proposed rule. Employers, including small entities, are free to offer assistance to their H-2A workers in complying with this requirement if they choose to do so. However, the employer's assumption of any costs inherent with complying with this requirement on behalf of their workers is voluntary and, therefore, not subject to the Regulatory Flexibility Act. C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. E. Executive Order 12866 This rule has been designated as significant under Executive Order 12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is required to prepare an assessment of the benefits and costs anticipated to occur as a result of this regulatory action and provide the assessment to the Executive Office of the President, Office of Management and Budget, Office of Information and Regulatory Affairs. In summary, this rule proposes several changes to the H-2A visa program that USCIS believes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. There are no additional regulatory compliance requirements to be added that will cause a detectable increase in costs for participating firms. Costs of compliance will not be changed by this proposed rule. Volume of applications may increase slightly, but the burden of compliance both in time and fees will not increase above that currently imposed. Qualitatively, this rule will benefit applicants by: • Reducing delays caused by IBIS checks holding up the petition application process. • Reducing disruption of the life and affairs of H-2A workers in the United States. • Protecting laborers' rights by precluding payment of fees by the alien. • Preventing the filing of requests for more workers than needed, visa selling, coercion of alien workers and their family members, or other practices that exploit workers and stigmatize the H-2A program. • Encouraging employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers. • Minimizing immigration fraud and human trafficking. The H-2A program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. This rule is being promulgated as part of the reform process to make changes that are intended to provide agricultural employers with an orderly and timely flow of legal workers while protecting laborers' rights. F. Temporary Alien Farm Workers: The Current H-2A Program The H-2A nonimmigrant classification applies to aliens who are coming to the United States temporarily to perform agricultural labor or services of a temporary or seasonal nature. Seasonal employment is tied to a certain time of year that requires labor above regular operations. Temporary labor means the employer's need will last no longer than one year. Aliens seeking H-2A nonimmigrant status first must be petitioned by a U.S. employer, after the employer has completed a temporary agricultural labor certification process with the Department of Labor (DOL). DOL determines whether employment is agricultural, whether it is open to U.S. workers, if qualified U.S. workers are available, the adverse impact of employment of a qualified alien, and whether employment conditions, including housing, meet applicable requirements. The U.S. employer then files Form I-129, “Petition for Nonimmigrant Worker,” which must name one or more alien beneficiaries; if multiple beneficiaries, they may be unnamed if unnamed in the DOL certification and outside the United States. The petition must establish the temporary, seasonal employment and that the beneficiary meets job and training, post-secondary education or other formal training requirements if necessary. H-2A nonimmigrant status is valid for a total of three years, but can be renewed after the alien remains outside the United States for a six-month period. The H-2A nonimmigrant can interrupt an accumulated stay of eighteen months or less by an absence from the United States of at least three months. He or she can interrupt an accumulated stay of more than eighteen months by absence from the United States of at least one-sixth of the accumulated stay. Once an H-2A nonimmigrant's authorized period of stay has expired, they have a ten-day grace period before being required to leave the United States. However, an H-2A nonimmigrant whose three-year limit has not been reached can be employment authorized for another 240 days past the authorized period of stay if requested by the same employer. If for a new employer, employment will not be authorized past the authorized period of stay until the petition is approved. H-2A nonimmigrant status is not approved for an alien who violated the conditions of H-2A status within the previous five years by remaining beyond the authorized period of stay or engaging in unauthorized employment. V. Full Regulatory Impact Assessment Over the years, U.S. employers have faced a shortage of available U.S. workers who are able, willing, and qualified to fill agricultural jobs, and who would be available at the time and place needed to perform the work. To meet this need, U.S. employers have considered hiring foreign workers. U.S. law requires that they first sponsor the workers by filing a petition based on their qualification within the H-2A nonimmigrant classification. 1. Unauthorized Workers Estimates from many different government and non-government sources suggest that up to 70% of farmworkers in America lack proper work authorization and immigration status. 4 The United States Department of Labor reports that in 1997 and 1998, 52 percent of hired farmworkers lacked work authorization, 22 percent were citizens and 24 percent were lawful permanent residents. 5 4 Regelbrugge, Craig J., American Nursery & Landscape Association. Co-chair, Agriculture Coalition for Immigration Reform, speech given at USDA Agricultural Outlook Conference, American Agriculture And Immigration Reform: An Industry Perspective, March 1, 2007. 5 Research Report No. 8, U.S. Department of Labor Office of the Assistant Secretary for Policy, Office of Program Economics (March 2000). 2. Insufficient Labor Pool The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before USCIS can approve an employer's petition for such workers, the employer must file an application with the Department of Labor stating there are not sufficient workers who are able, willing, qualified, and available, and the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. Labor concerns are prevalent in areas where the agricultural industry is dependent on seasonal labor. For example, the California Farm Bureau Federation estimated that farm labor shortages resulted in $85 million in losses to its members in 2006. 6 Also, a 2007 survey of Wisconsin dairy producers cited an ample labor supply as a main limiting factor in the future of the survey subjects' farming operations. 7 Some commenters believe the requirements that Federal labor and immigration authorities impose on farmers and agribusinesses to obtain H-2A workers are overly burdensome. Others suggest that excessive bureaucratic delays by the responsible agencies in approving worker petitions contribute to the inability to attract sufficient workers. 8 A few sources feel the shortage of farm workers has been exacerbated by tighter security at the Mexican border. 9 Therefore, whether there is an ample supply of farm workers is a major concern in agricultural communities. In short, there is fairly widespread agreement that there is a problem in the seasonal agricultural worker program that needs to be addressed in some fashion. 6 Farm Labor Shortages, Mechanization, Rural Migration News, Vol. 14 No. 4 (October 2007). 7 2007 Dairy Producer Survey, USDA, National Agricultural Statistics Service (July 2007). 8 Washington, April M., *Canada offers migrant tips; Colorado looks north of the border for ways to draw workers* Sep. 15, 2007 Rocky Mtn. News 10 (quoting a farmer, “There is a bottleneck at the federal level in approving work visas, causing real problems for farmers,”). 9 Mountain State Reporter, United States Department of Agriculture, National Agricultural Statistics Service, West Virginia Department of Agriculture, Vol., 19, no. 9 (Sept. 2006). A. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (P.L. 104-121), requires Federal agencies to conduct a regulatory flexibility analysis that describes the impact of the proposed rule on small entities whenever an agency is publishing a notice of proposed rulemaking. In accordance with the RFA, this section discusses the changes proposed in the subject rule and analyzes whether any of the changes entail compliance requirements with a significant economic impact on a substantial number of small entities requiring publication of an Initial Regulatory Flexibility Analysis. 1. Regulated Entities a. Agriculture Employment. The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. The work must be agricultural in nature. Table 1 10 below summarizes the total number of farm workers in the most recent 5 calendar years and their average hourly wages in those years. 10 U.S. Department of Agriculture, National Agricultural Statistics Service, Statistical Bulletin 1007, Statistical Highlights of U.S. Agriculture for 2006 and 2007, October 2007, *http://www.nass.usda.gov/Publications/Statistical_Highlights/2007/2007stathi.txt.* Table 1.—Farm Workers, United States, 2002-2006 Year Total number of workers in thousands Average annual wages (Dollars per hour) All workers Field workers Field and livestock workers 2002 885.7 8.81 8.12 8.18 2003 836.0 9.08 8.31 8.42 2004 825.2 9.23 8.45 8.56 2005 780.0 9.51 8.70 8.84 2006 751.9 9.87 9.06 9.15 The H-2A program is used mainly by farms engaged in the production of livestock, livestock products, field crops, row crops, tree crops, and various other enterprises. The affected industries do not include support activities for agriculture. 11 Therefore, in accordance with the RFA, USCIS has identified the industry affected by this rule as described in the North American Industry Classification System (NAICS) as encompassing NAICS subsectors 111, Crop Production, and 112, Animal Production. 12 11 A few larger Farm Labor Contractors and Crew Leaders (NAICS Code 115115) and Custom Harvesting Operations (NAICS 115113) are believed to use the H-2A program to meet their client's seasonal needs, but the objectives of the program and this rule are focused on the independent producer. 12 U.S. Small Business Administration, Table of Small Business Size Standards, *http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf* . b. Number Affected In fiscal year 2007 USCIS received 6,212 Form I-129 petitions for H-2A employees, and approved petitions for 78,089 H-2A workers. 13 In fiscal year 2006, USCIS received 5,667 Form I-129 petitions and approved 5,448 of them for 56,183 workers. Also, in fiscal year 2006, 6,717 employers requested certification from the Department of Labor
(DOL)for 64,146 H-2A workers, and for those workers, the United States Department of State
(DOS)issued 37,149 H-2A visas. In fiscal year 2005, USCIS approved Form I-129 petitions for 49,229 workers, 6,725 employers requested certification from the Department of Labor for 50,721 employees, and 31,892 visas were issued by DOS. 14 13 These are not all new employees or entrants to the United States. This number includes petitions approved for an extension or change of employer that are not segregated for reporting purposes. 14 *http://www.foreignlaborcert.doleta.gov/.* Thus, based on recent results, USCIS estimates that the baseline number of H-2A petitions volume absent this rule would in an average year be approximately 6,300 petitions 15 for an average of 70,000 total H-2A workers per year. In 2006 there were 2,089,790 farms in the United States and about 752,000 workers employed in agricultural jobs. Thus, about 0.3 percent of all farmers use the H-2A program and 9.3 percent of all farm workers are aliens employed under the H-2A program. 15 This figure may not represent the actual number of farm owners or operators as some larger farms may submit multiple petitions per year. 2. Size Categories of Affected Entities The U.S. Small Business Administration
(SBA)Small Business Size Regulations at 13 CFR part 121, provide that farms with average annual receipts of less than $750,000 qualify as small businesses for Federal Government programs. According to United States Department of Agriculture data, 44,348, or 2.1 percent, of the 2,128,982 farms in the U.S. had gross cash receipts of more than $500,000. 16 Since 97.9 percent of farms have sales of less than $500,000 it appears that almost all farms are small entities under the SBA definition. That means that almost all of the employers requesting USCIS approval to hire H-2A alien employees per year, an estimated 5,220, are small businesses looking to hire a seasonal farm worker. 16 Economic Class of Farms by Market Value of Agricultural Products Sold and Government Payments: 2002 *http://www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf* . The fact that the very small percentage of farms that use the H-2A program accounts for 9.3 percent of all farm workers indicates that those farms that use the H-2A program are larger than average. Nonetheless, the impacts of this rule would have to be totally concentrated among the largest farms in the U.S. in order for the affected entities to not be small as determined under SBA guidelines. Therefore, USCIS has concluded that the entities affected by this rule are generally categorized as small. B. New Compliance Requirements of the Proposed Rule 1. Compliance Costs Liquidated Damages for Non-reporting. USCIS is proposing new reporting requirements on H-2A employers, including the time frame for reporting, the mechanisms for reporting, the amount of liquidated damages for failure to comply, and defenses for failure to comply. This rule also proposes to enable DHS to announce via notice published in the **Federal Register** appropriate procedures for notifying DHS of events requiring employer notification. USCIS has no data on the number of employers that typically fail to comply with reporting requirements and no estimate of the number of firms that will have to pay liquidated damages. However, USCIS believes that the occurrence of non-compliance is not prevalent enough to affect a substantial number of the affected entities. Further, while $500 is believed to be sufficient to provide an incentive for participating firms to comply, it is not large enough to impose a significant economic impact on any one firm that is assessed liquidated damages as a result of being found to be in violation of this new requirement. 2. Costs of Exit Requirement Under the proposed rule, certain aliens admitted on an H-2A visa must comply with the DHS Biometric Exit Pilot as part of US-VISIT. The Exit Pilot Program was implemented to provide a straightforward exit process to ensure that individuals adhere to the terms of their admission and is intended as an added measure to ensure the integrity of our immigration system. This means that the alien must depart through a port of entry participating in the program and present designated biographic and or biometric information upon departure at the conclusion of their authorized period of stay. 17 The alien must either:
(1)Check out at an automated exit kiosk or with a US-VISIT exit attendant at the departure gate at the port, have their travel documents read, their two index fingers digitally scanned, a digital picture taken, receive a printed receipt that verifies that they have checked out, and present the receipt at their departure gate to confirm that they checked out; or
(2)go through a biometric check-out process with a US-VISIT exit attendant stationed at visitors' departure gates. USCIS assumes that the additional time to register at time of departure is between 1/2 to 1 hour. USCIS seeks comment on this assumption. Thus, this rule will require H-2A to incur the following additional time costs, analyzed in the following model. 17 *http://www.dhs.gov/xnews/releases/press_release_0476.shtm* . Estimating how many H-2A workers will be subject to the Exit Pilot requires determining how many H-2A workers who leave the country each year are doing so because their periods of authorized stay have ended. As stated above, that is why the Exit Pilot program was instituted—DHS had no process for ensuring that aliens complied with their periods of authorized stay. Since there is no follow-up monitoring system, there is little data available, and the statistics that are available are unreliable. USCIS does know that, in fiscal year 2007, it approved petitions for 78,089 H-2A workers. 18 This number, however, includes requests for extensions of stay and changes in employers; thus, it does not represent the number of H-2A employees entering or exiting the U.S. 19 USCIS believes that the closest indicator available of the number of H-2A visitor exits per year would be the average number of entries per year. It is logical to assume that the number of employees beginning their authorized employment would vary only slightly from the number ending their authorized term of employment from one year to the next. The number of H-2A entries during fiscal years 2002 through 2006 averaged 17,551 per year. 20 As such, approximately 18,000 immigrant workers are expected to be affected by this rule and spend between 1/2 to 1 hour in the registration process during exit. 18 These are not all new employees or entrants to the United States. This number includes petitions approved for an extension or change of employer that are not segregated for reporting purposes. 19 See 2003-2005 figures at *http://www.dhs.gov/xlibrary/assets/statistics/publications/2005_NI_rpt.pdf* . 20 Yearbook of Immigration Statistics, Temporary Admissions of Nonimmigrants to the United States: 2006 *http://www.dhs.gov/xlibrary/assets/statistics/publications/NI_FR_2006_508_final.pdf* . The costs of exit in this case are entirely opportunity costs, as the worker forgoes 1/2 to 1 hour in the registration process, and gives up this amount of time to his or her “second best” activity. It is also important to note that the opportunity cost to the worker depends on whether he or she could have been working, or could have been engaging in a leisure activity. According to Fugitt and Wilcox 21 (1999), opportunity cost of leisure time is calculated as 1/3 of the wage rate. However, if the respective H-2A individual could have been at work instead of in the exit registration process, the opportunity cost is the full value of the wage. 21 Fugitt, D. and S. Wilcox. (1999). *Cost-Benefit Analysis for Public Sector Decision Makers.* London, Quorium Books. According to the U.S. Department of Labor 22 , the hourly wage rate for the H-2A worker is $9.49. As such, the total annual undiscounted cost of H-2A workers having to spend 1/2 hour during the exit process is approximately $85,000 ($9.49 * 1/2 hour * 18,000). The opportunity costs if all workers spend a full hour in the exit process are approximately $171,000 ($9.49 *1 hour * 18,000). 22 Available at: *http://www.dol.gov/compliance/topics/wages-foreign-workers.htm.* However, the preceding estimates of opportunity costs to the H-2A worker assume that each individual is forgoing an hour of time at work. It may also be the case that the individual is foregoing leisure. As such, the opportunity cost of leisure time is represented as 1/3 the wage rate (Fugitt and Wilcox, 1999) as opposed to the full wage. The undiscounted opportunity costs to workers in this case spending a 1/2 hour in the exit process are approximately $28,000 ( 1/3 * $9.49 * 18,000 * 1/2 hour). However, if each worker spends an hour in the exit process, the opportunity costs rise to approximately $56,000 ( 1/3 * $9.49 * 18,000 * 1 hour). As such, depending on what assumptions are made about the time required to exit and whether the time forgone is work or leisure, the annual undiscounted costs range from $28,000 to $171,000. 3. Fees USCIS funds the cost of processing applications and petitions for immigration and naturalization benefits and services, and USCIS' associated operating costs, by charging and collecting fees. For each Form I-129 USCIS charges a filing fee of $320. While the enhancements in this rule will increase the number of H-2A petitions per year by making the program more attractive, there is no increase in per petition fees for employees being imposed by this rule. Thus, the fee impacts of this rule on each petitioning firm are neutral. 4. Paperwork Burden USCIS estimates that the public reporting burden for each Form I-129 is 2 hours and 45 minutes per response, including the time for reviewing instructions, completing, and submitting the form. The aggregate public reporting burden for all firms affected by this rule may increase as a result of the increased due of the program. However, this rule proposes no changes to the per-firm reporting requirements or costs of the existing H-2A program. 5. Costs Imposed on Sheepherders and Their Employers There may be a slightly negative impact on sheep ranchers in the few states in the Western United States as a result of one change that is necessary to bring sheepherder H-2A employees in under the requirements to return to their home countries that are applied to all other H-2A employees. Currently, H-2A aliens working as sheepherders who have reached their three-year maximum stay period may obtain a new three-year period of stay in H-2A status without departing and remaining outside the United States for six-months as required for other H-2A aliens. The period of stay in the alien's home country is proposed to be changed to three months in this rule and will be imposed on sheepherders the same as for all other H-2A workers. a. Size of Sheep Farming Entities Affected The sheep farming entities affected by this rule (Sheep Farming is NAICS Code 112410) are defined as small. No data exists on the relative breakdown on the number of sheep farms with average annual receipts of more than $750,000 (making them not qualify as a small business). However, nothing points to sheep ranches being comprised of a significantly higher percentage of large operations than other farm enterprises. 23 The number of people employed by sheep farms in the United States is unknown. 24 However, the number of United States farming operations with sheep totaled 69,090 during 2006. 23 Sheep and Lambs—Inventory, Wool Production, and Number Sold by Size of Flock: 2002. *http://www.nass.usda.gov/census/census02/volume1/us/st99_1_030_032.pdf* . 24 E-mail from Scott Hollis, Livestock Section Statistician, USDA, NASS to Phillip Elder, Associate Counsel, USCIS, (November 02, 2007 1:15 PM EST) (on file with author). Total sales of sheep and lambs in 2006 were $473 million for an average of $6,846 per farm. 25 Of these farms, 90.8 percent were comprised of operations having from 1 to 99 head. Farms with a range of 100 to 499 head of sheep comprise 7.6 percent of the industry and the remaining 1.6 percent were operations with 500 head or more. 26 Operations with more than 500 sheep account for 47.3 percent of the sheep production in the United States. 25 Total sales divided by total number of farms. Smaller farms do not generally derive a significant portion of their income from sheep farming. 26 *Farms, Land in Farms, and Livestock Operations,* 2006 Summary, Agricultural Statistics Board, United States Department of Agriculture, National Agricultural Statistics Service. 27 USDA, National Agricultural Statistics Service, *http://www.nass.usda.gov/QuickStats/index2.jsp* . The table below lists the top sheep producing states for 2007, indicating that the larger sheep farming operations are concentrated in the western United States. Sheep and Lambs.—Total Sheep and Lambs for 2007 27 State rank State Total sheep and lambs (thousand head) 1 Texas 1,070 2 California 610 3 Wyoming 460 4 Colorado 400 5 South Dakota 380 b. Number of Sheep Farming Entities Affected The policy exception for sheepherders not returning home for 6 months between their three year employment stints was provided because livestock operations utilize rangeland in the Western United States as a source of pasture and forage needed year round, and not seasonal employees, and a reliable domestic labor source did not exist. USCIS is proposing to reduce the required period for an H-2A employee to return to their home country to three months and believes that this reduced period will be reasonable for H-2A sheepherders as well, obviating the need for the sheepherder policy exception. According to the American Sheep Industry Association, more than 500 sheep operations depend on foreign sheepherders for sheep production and more than 1,500 herders are in the United States continuously helping care for the flocks. 28 USCIS receives about 300 petitions a year for sheepherder H-2A employees, mostly from two sources: Western Range Association, of Salt Lake City Utah, and Mountain Plains Association, of Cheyenne, Wyoming. As of September 30, 2007, Western Range, had 929 H-2A sheepherders under contract with 217 member sheep ranchers. Of the 929 employees, 774 were from Peru, 79 were from Chile, 52 from Mexico, and 23 from Bolivia. 29 During calendar year 2007, Mountain Plains has acted as agent for 1,460 H-2A employees for livestock farms or ranches. Mountain Plains has placed employees with approximately 330 range production livestock operations, which are not limited to sheep but for this analysis USCIS will assume that they are all sheep farmers. Mountain Plains estimates that the 1,460 H-2A employees they have had in 2007 were 60 percent from Peru, 30 percent from Mexico, and 10 percent from Chile or other countries. 28 *http://www.sheepusa.com* . 29 Telephone conversations with Sarah Peters and Dennis Richens of the Western Range Association. Thus, about 550 sheep ranchers 30 are expected to be directly affected by this proposed rule, representing less than 1 percent of the 69,090 sheep operations in the United States in 2006 and only 6 percent of the sheep producers in California, Colorado, Idaho, Montana, Nevada, Mew Mexico, and Wyoming. This small group will face a disproportionate impact from the proposed rule relative to other sheep farmers. 30 Western Range—217 plus Mountain Plains—330 = 547—rounded to 550. c. Size of Sheep Farming Entities Affected The sheep farms that are members of Mountain Plains and Western Range have flocks that range in size from approximately 500 ewes to as high as about 10,000 ewes with total sales from sheep, lambs and wool ranging from $50,000 to $950,000. Operations, such as these, with more than 500 sheep account for 1.6 percent of sheep farming operations. Annual sales per sheep farm averages about $7,000 per farm; however, that figure includes many farms that barely exceed the minimum annual $1,000 in sales threshold that the United States Internal Revenue Service and USDA use to define a “farm.” The number of these directly affected farms that are small or large entities as a result of exceeding or falling below the $750,000 threshold defining those categories are unknown. d. Increased Compliance Costs for Sheep Farms
(i)Travel Expenses This rule only proposes that the sheepherder be required to stay away from the United States for three months or more before returning, as opposed to returning immediately as currently allowed. This rule does not change the requirement that a sheepherder return to his or her home country or regulations governing payment of the alien's travel expenses. The farmer must pay the costs for many of his H-2A sheepherders to go home every year anyway as a result of normal turnover, and this rule will not have an impact on that cost.
(ii)Availability and Cost of Labor This proposed rule will not substantially reduce the availability of seasonal sheepherders or increase the cost of employing them. Sheepherders are unique from other H-2A seasonal agricultural employees in that sheepherders are needed year round, and not for short term needs with a start and end, such as a crop harvest. While the need for sheepherders increases in lambing or sheering season, the nature of the employment is not necessarily seasonal. The requirement to return home for six months fits a vegetable or row crop farm with at least six months between harvests. Ranches, however, need at least a few hands year round. Due to the solitude experienced by a sheepherder who must live out on the range for extended periods of time, employee turnover may be more pronounced in the sheep ranching industry than in many others. Rates of employees absconding from rangeland H-2A jobs is estimated at 10 percent, which is much higher than in other employment based visa programs. A major complaint that sheep ranchers have about the H-2A program is the inability to have absconding employees, detained, deported, and replaced.
(iii)Training If a farm loses an employee it may have to bring in another sheepherder and incur the costs of training the new employee on the specific requirements of that ranch. This rule is not expected to impact this cost.
(iv)Time Away From U.S. Between 3 Year Maximum Stays Currently, a sheepherder may return to the United States immediately after returning home. This proposed rule will require him or her to remain outside the United States for three months. The productivity and overall expenses of a typical user of the H-2A sheepherder program are not expected to be affected. A six-month stay-home requirement would be a major concern for sheep farms because that length of time may reduce the likelihood of the employee returning to the U.S. and increases the sheep farmers' risk of having an insufficient number of employees. However, the three-month stay home requirement will have a minimal impact. According to major users of the sheepherder H-2A program, most sheepherders stay home for two or three months already. Employers active in the program have already built that expectation into their planning. 31 The new mandatory three-month stay-away requirement will be an additional factor for a sheep ranch's consideration in deciding how many H-2A alien employees it needs. Also, the ranch will want to make sure that all of its H-2A sheepherders are not on the same cycle for their requirement to return home and stay. However, alien workers leave their jobs for a number of reasons on a regular basis and often have to return home for family events and emergencies. No increase in expenses is expected as a result of sheepherders being mandated under this rule to stay away. In addition, qualitative impacts are expected to be slight, if they occur at all. 31 Sheep Industry Association, Mountain Plans, and Western Range. Therefore, the changes proposed in the subject rule that add new compliance requirements on rangeland livestock operations will not have a significant economic impact. C. Effect of Repatriation Provision As stated above, this rule proposes to prohibit the approval of an H-2A petition for a worker from a country that refuses repatriation of its citizen, subjects, nationals or residents. Thus, where a country has no repatriation agreement with the United States, or where the country routinely refuses to issue travel documents, or cooperate in repatriation, or where for whatever reason the United States is unable to systematically repatriate deportees, H-2A employees from that country will not be permitted. This change is intended to encourage more nations to promptly accept the return of their nationals who no longer have valid status as nonimmigrants in the United States. However, the actual impact is expected to be negligible because very few H-2A workers are from such countries. According to U.S. Immigrations and Customs Enforcement, the top five non-cooperating countries are the People's Republic of China, India, Vietnam, Pakistan, and Laos. However, 98 percent of all H-2A workers during FY 2006, based on number of admissions, were from Mexico (40,283), Jamaica (3,376), South Africa (757), Peru (562), and Canada (454). Repatriation is not a problem with these countries and there is no reason to believe that the changes made in this rule will cause any shift in major source countries for temporary agricultural workers at all, much less to the countries where this is a problem. Thus this change is not expected to have any impact on the availability of H-2A labor. D. Other Impacts of the Proposed Changes 1. Volume of Applications The changes proposed by this rule are intended to increase the flexibility and attractiveness of the H-2A visa program. Therefore, the proposals in this rule are expected to result in a small increase in the number of H-2A visas petitioned for and approved. USCIS has no reliable way to estimate the impact of these proposed changes on petition filings and approval volume with any precision. Nonetheless, it is reasonable to expect about a 5 percent increase per year in the number of employers filing a Form I-129 to request H-2A employees as a result of the proposals in this rule. Based on the 6,000 projected Form I-129 filings for H-2A employees per fiscal year, this would result in an estimated 300 additional filings per year. 32 32 5,667 + 6,212/2 = 5,940 × .05 = 297. 2. Qualitative Impacts *Reduced delays:* USCIS expects no significant increase in filings to result from allowing employers to petition for unnamed beneficiaries and only requires the petition to include the names of those beneficiaries who are in the United States. In H-2A filings many beneficiaries are currently unnamed. This change will benefit applicants mainly by eliminating the requirement that beneficiaries be named so that no Intragency Border Inspection System
(IBIS)check will hold up the petition application process. *Improved quality of life for H-2A seasonal workers* . Reducing the time required for an H-2A worker to be out of the country, allowing more time for departure after the visa has expired, and allowing for an extension of stay while a new petition is pending, will cause less disruption of the life and affairs of H-2A workers in the United States. *Reduce abuses in the program* . Another major goal of this rule, in addition to providing agricultural employers with an orderly and timely flow of legal workers, is protecting laborers' rights. Changes e, f, g, and h above, go directly to protecting laborers' rights by precluding the payment of employment or recruitment fees by aliens seeking H-2A positions. Specifically, these changes will reduce the abuse of H-2A employees by unscrupulous H-2A petitioners and/or their agents, who have required (or who have used third parties that require) persons seeking H-2A positions to pay such fees. USCIS also believes that this rule will help minimize the immigration fraud and abuses that have been known to occur when aliens are required to pay employment fees. Abuses that will be reduced by the changes in e, f, g and h will include petition padding (i.e., the filing of requests for more workers than needed), sale of H-2A positions to the highest bidder, and human trafficking. Changes e, f, g and h are also intended to deter the coercion of alien workers and their family members by recruiters, facilitators, and others who would otherwise pressure such persons for payment of debts incurred in connection with seeking an H-2A position. These changes will also discourage other exploitative practices that, in the past, have tarnished the reputation of the H-2A program. In addition, the attestation requirement referred to in change f above will ensure continued compliance with section 218 of the INA. Should the employer wish to employ an H-2A worker in a different capacity than that represented in its labor certification, application, and petition, it may after complying with some requirements depending on the circumstances. This change will ensure continued compliance with section 218 of the INA and the integrity of the H-2A program. In summary, the changes in e, f, g, and h are essential for ensuring against the most egregious of the documented abuses to the H-2A program while in no way limiting the availability of H-2A workers to U.S. agricultural employers. *Illegal immigration (number of agricultural workers who are unauthorized) will decline* . It is presumed that this rule will result in those employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers to the extent that this rule allows the employer to obtain a sufficient number of H-2A employees considering the costs and risk associated with hiring no worker or an unauthorized worker. 3. Government Costs This rule is expected to result in no changes in program costs for the government. E. Summary and Conclusion 1. Small Entity Effects The entities affected by this rule are nearly all categorized as small under the RFA. However, only about 0.3 percent of all farmers use the H-2A program and 9.3 percent of all farm workers are aliens employed under the H-2A program. As for sheep ranchers that may be directly affected by the changes in this rule, the 550 identified predominant users comprise less than 1 percent of the 69,090 sheep operations in the United States and Puerto Rico in 2006, and only 6 percent of the operations in California, Colorado, Idaho, Montana, Nevada, New Mexico, and Wyoming. USCIS believes that the percentages of total farms affected by this rule do not represent a sufficient portion of the agricultural producers in the United States to rise to a level that could be called substantial as the term is intended under the RFA. This rule will not impose a significant economic impact on any firms. This rule proposes several changes to the H-2A visa program that USCIS believes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. There are no additional regulatory compliance requirements to be added that will cause a detectable increase in costs for participating firms. Thus, when comparing the annualized costs of this proposed rule as a percentage of a typical participating regulated small firm's annual sales there is no significant economic effect. 2. Increased Costs for Small Businesses Costs of compliance for small businesses will not be changed by this proposed rule. Volume of applications may increase slightly, but the burden of compliance both in time and fees will not increase above that currently imposed. 3. Increased Costs for Individuals The annual undiscounted costs for aliens admitted on an H-2A visa to comply with the DHS Biometric Exit Pilot as Part of US-VISIT range from $28,000 to $171,000. 4. Benefits This rule will benefit applicants by: • Reducing delays caused by IBIS checks holding up the petition application process: • Reducing disruption of the life and affairs of H-2A workers in the United States; • Protecting laborers' rights by precluding payment of fees by the alien; • Preventing the filing of requests for more workers than needed, visa selling, coercion of alien workers and their family members, or other practices that exploit workers and stigmatize the H-2A program; • Encouraging employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers; and • Minimizing immigration fraud and human trafficking. F. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. H. Paperwork Reduction Act This rule requires that a petitioner submit Form I-129, Petition for Nonimmigrant Worker, seeking to classify an alien as an H-2A nonimmigrant. This form has been previously approved for use by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act. The OMB control number for this collection is 1615-0009. However, USCIS will make minor changes to the Form I-129 by requiring an employer to certify that during the period of intended employment for which the petition is approved, the petitioner will not expand the alien workers' duties, place of employment, nor the entities for which the duties will be performed beyond the information provided on the Form I-129 and temporary labor certification, and by updating the language describing employers' responsibility to inform DHS of H-2A employee no-show, termination, or abscondment and the requirement to pay liquidated damages for failure to make such notification. In addition, USCIS estimates that the number of U.S. employers using the Form I-129 will increase. Accordingly, once this rule is published as a final rule, USCIS will submit to OMB, the Form I-129 (with minor changes) and raise the number of respondents and burden hours associated for this information collection using an OMB 83-C, Correction Worksheet. In addition, this rule requires, as a prerequisite to an H-2A worker receiving an automatic extension of employment authorization with the filing of a petition by a new employer, that employers enroll in E-Verify, which is an information collection system previously approved for use under the Paperwork Reduction Act. The OMB Control Number for this information collection is 1615-0092. Under the changes contained in this regulation, USCIS estimates that the number of U.S. employers using E-Verify will increase. Accordingly, once this rule is published as a final rule, USCIS will submit an OMB 83-C, Correction Worksheet, to OMB raising the number of respondents and burden hours associated for this information collection. List of Subjects 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students, Victims. 8 CFR Part 215 Administrative practice and procedure, Aliens. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows: PART 214—NONIMMIGRANT CLASSES 1. The authority citation for part 214 is revised to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a, 1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2. 2. Section 214.2 is amended by: a. Revising paragraphs (h)(2)(i)(A) and (D); b. Revising paragraph (h)(2)(iii); c. Revising paragraph (h)(5)(i)(A); d. Revising paragraph (h)(5)(i)(B); e. Revising paragraph (h)(5)(i)(C); f. Adding a new paragraph (h)(5)(i)(F); g. Removing last sentence from (h)(5)(ii); h. Revising paragraph (h)(5)(vi); i. Revising paragraph (h)(5)(viii)(A); j. Revising paragraph (h)(5)(viii)(B); k. Revising paragraph (h)(5)(viii)(C); l. Adding a new paragraph (h)(5)(viii)(D); m. Revising paragraph (h)(5)(ix); n. Revising paragraph (h)(5)(x); o. Adding a new paragraph (h)(5)(xi); and by p. Revising paragraph (h)(11)(ii). The revisions and additions read as follows: § 214.2 Special requirements for admission, extension, and maintenance of status.
(h)* * *
(2)* * *
(i)* * *
(A)*General.* A United States employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition on Form I-129, Petition for Nonimmigrant Worker, as provided in the form instructions.
(D)*Change of employers.* If the alien is in the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and an extension of the alien's stay in the United States. If the new petition is approved, the extension of stay may be granted for the validity of the approved petition. The validity of the petition and the alien's extension of stay must conform to the limits on the alien's temporary stay that are prescribed in paragraph (h)(13) of this section. Except as provided by 8 CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n), the alien is not authorized to begin the employment with the new petitioner until the petition is approved. An H-1C nonimmigrant alien may not change employers.
(iii)*Naming beneficiaries.* H-1B, H-1C, and H-3 petitions must include the name of each beneficiary. All H-2A and H-2B petitions must include the name of each beneficiary who is currently in the United States, but need not name any beneficiary who is not currently in the United States. However, a petitioner who files on behalf of workers who are not present in the United States an H-2B petition that is supported by a temporary labor certification requiring education, training, experience, or special requirements of the beneficiary must name all the requested workers in each petition. Unnamed beneficiaries must be shown on the petition by total number. If all of the beneficiaries covered by an H-2A or H-2B temporary labor certification have not been identified at the time a petition is filed, multiple petitions for subsequent beneficiaries may be filed at different times but must include a copy of the same temporary labor certification. Each petition must reference all previously filed petitions for that temporary labor certification.
(5)* * *
(i)* * *
(A)*General.* An H-2A petition must be filed on Form I-129 with a single valid temporary agricultural labor certification. The petition may be filed by either the employer listed on the temporary labor certification, the employer's agent, or the association of United States agricultural producers named as a joint employer on the temporary labor certification.
(B)*Multiple beneficiaries.* The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. A single petition can include more than one beneficiary if the total number does not exceed the number of positions indicated on the relating temporary labor certification.
(C)*Petitioner's Attestation.* A petitioner must file an attestation, certified as true and accurate by an appropriate official of the petitioner, that during the period of intended employment for which the petition is approved, neither the alien workers' duties, place of employment, nor the entities for which the duties will be performed will expand beyond the related information provided on the Form I-129 and labor certification. The petitioner must also state in the attestation whether: It received, directly or indirectly, any fee or other form of compensation from any alien beneficiary; it has any arrangement or intends to have an arrangement for remuneration, direct or indirect, from any recruiter, facilitator or similar employment service with which it coordinates employment of the H-2A workers, and if so, the name of any recruiter, facilitator, or similar employment service used to locate H-2A workers; and, to the best of its knowledge, any alien beneficiary has provided, or intends to provide, any remuneration, direct or indirect, to any such recruiter, facilitator, or similar employment service.
(F)*Petitions for Nationals of Countries That Refuse Repatriation.* No H-2A petition can be approved for a citizen, subject, national or resident of a country whose government the Secretary of Homeland Security has determined consistently denies or unreasonably delays accepting the return of citizens, subjects, nationals or residents who are subject to a final order of removal from the United States. The Secretary will review such determinations periodically to evaluate if the subject country is accepting repatriated nationals.
(vi)*Petitioner consent and notification requirements* —(A) *Consent.* In filing an H-2A petition, a petitioner and each employer consents to allow access to the site where the labor is being performed for the purpose of determining compliance with H-2A requirements.
(B)*Agreements.* The petitioner agrees to the following requirements: ( *1* ) To notify DHS in writing, within 48 hours, and beginning on a date and in a manner specified in a notice published in the **Federal Register** if: An H-2A worker fails to report for work within 5 days after the employment start date stated on the petition; the employment of an H-2A worker terminates more than 5 days before the employment end date stated on the petition; or an H-2A worker absconds from the worksite. ( *2* ) To retain evidence of such notification and make it available for inspection by DHS officers for a one-year period beginning on the date of the notification. ( *3* ) To pay $500 in liquidated damages for each instance where it cannot demonstrate it is in compliance with the notification requirement.
(C)*Process.* Except when the petitioner has admitted in writing a failure to comply with the notification requirement, the petitioner will be given written notice and 10 days to reply before being given written notice of the assessment of liquidated damages.
(D)*Failure to pay liquidated damages.* If liquidated damages are not paid within 10 days of assessment, an H-2A petition may not be processed for that petitioner or any joint employer shown on the petition until such damages are paid.
(E)*Abscondment.* An H-2A worker has absconded if he or she has not reported for work for a period of 5 days without the consent of the employer.
(viii)* * *
(A)*Effect of violations of status.* An alien may not be accorded H-2A status who USCIS finds to have, at any time during the past 5 years, violated any of the terms or conditions of admission into the United States as an H-2A nonimmigrant, including remaining beyond the specific period of authorized stay or engaging in unauthorized employment.
(B)*Period of admission.* An alien admissible as an H-2A nonimmigrant shall be admitted for the period of the approved petition. Such alien will be admitted for an additional period of up to one week before the beginning of the approved period for the purpose of travel to the worksite, and a 30-day period following the expiration of the H-2A petition for the purpose of departure or extension based on a subsequent offer of employment. Unless authorized under 8 CFR 274a.12 or section 214(n) of the Act, the beneficiary may not work except during the validity period of the petition.
(C)*Limits on an individual's stay.* Except as provided in paragraph (h)(5)(viii)(B) of this section, an alien's stay as an H -2A nonimmigrant is limited by the term of an approved petition. An alien may remain longer to engage in other qualifying temporary agricultural employment by obtaining an extension of stay. However, an individual who has held H-2A status for a total of 3 years may not again be granted H-2A status until such time as he or she remains outside the United States for an uninterrupted period of 3 months. An absence from the United States can interrupt the accrual of time spent as an H-2A nonimmigrant against the three-year limit. If the accumulated stay is 18 months or less, an absence is interruptive if it lasts for at least 45 days. If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least two months. Eligibility under this paragraph (h)(5)(viii)(C) will be determined in admission, change of status or extension proceedings. An alien found eligible for a shorter period of H-2A status than that indicated by the petition due to the application of this paragraph (h)(5)(viii)(C) shall only be admitted for that abbreviated period.
(D)*Nationals of Countries That Refuse Repatriation.* No alien may be accorded H-2A status who is a citizen, subject, national or resident of a country whose government the Secretary of Homeland Security has determined consistently denies or unreasonably delays accepting the return of citizens, subjects, nationals or residents who are subject to a final order of removal from the United States. The Secretary of Homeland Security will review such determinations periodically to evaluate if the subject country is accepting repatriation within a reasonable period of time.
(ix)*Substitution of beneficiaries after admission.* An H-2A petition may be filed to replace H-2A workers whose employment was terminated early. The petition must be filed with a copy of the certification document, a copy of the approval notice covering the workers for which replacements are sought, and other evidence required by paragraph (h)(5)(i)(D) of this section. It must also be filed with a statement giving each terminated worker's name, date and country of birth, and termination date. A petition for a replacement may not be approved where the requirements of paragraph (h)(5)(vi) of this section have not been met. A petition for replacements does not constitute the notification required by paragraph (h)(5)(vi)(B)( *1* ) of this section.
(x)*Extensions in emergent circumstances.* In emergent circumstances, as determined by a Service Center director, a single H-2A petition may be extended without an approved labor certification if filed on behalf of one or more beneficiaries who will continue to be employed by the same employer that previously obtained an approved petition on the beneficiary's behalf, so long as the employee continues to perform the same duties and will be employed for no longer than 2 weeks after the expiration of previously-approved petition. The previously approved petition must have been based on an approved temporary labor certification.
(xi)*Treatment of petitions and alien beneficiaries upon a determination that fees were collected from alien beneficiaries* —(A) *Denial or revocation of petition.* As a condition to approval of an H-2A petition, no fee or other compensation (either direct or indirect) may be collected from a beneficiary of an H-2A petition by a petitioner, agent, facilitator, recruiter, or similar employment service in connection with an offer or condition of H-2A employment. If a Service Center director determines that the petitioner has collected, or entered into an agreement to collect, such fee or compensation or that the petitioner is aware that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service, in connection with obtaining the H-2A employment, the H-2A petition will be denied or revoked on notice.
(B)*Effect of petition revocation.* Upon revocation of an H-2A petition based upon paragraph (h)(5)(xi)(A) of this section, the alien beneficiary's stay will be authorized and the alien will not accrue any period of unlawful presence under section 212(a)(9) of the Act for a 30-day period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment. The employer shall be liable for the alien beneficiary's reasonable costs of return to his or her last place of foreign residence abroad, unless such alien obtains an extension of stay based on an approved H-2A petition filed by a different employer, and such employer states in the job offer that it will pay the alien's reasonable return transportation expenses upon completion of the his or her new employment.
(11)* * *
(ii)*Immediate and automatic revocation.* The approval of any petition is immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal or the petition, or the Department of Labor revokes the labor certification upon which the petition is based. PART 215—CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES 2. The authority citation for part 215 continues to read as follows: Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32. 3. Section 215.9 is added to read as follows: § 215.9 Temporary Worker Visa Exit Program. An alien admitted on an H-2A visa at a port of entry participating in the Temporary Worker Visa Exit Program must also depart at the end of their authorized period of stay through a port of entry participating in the program and present designated biographic and/or biometric information upon departure. U.S. Customs and Border Protection will publish a notice in the **Federal Register** designating which H-2A workers must participate in the Temporary Worker Visa Exit Program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission of that information by the departing designated temporary workers. PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 4. The authority citation for section 274a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2. 5. Section 274a.12 is amended by: a. Removing the word “or” at the end of paragraph (b)(19); b. Removing the period at the end of paragraph (b)(20), and adding a “; or” in its place; and by c. Adding a new paragraph (b)(21). The addition reads as follows: § 274a.12 Classes of aliens authorized to accept employment.
(b)* * *
(21)A nonimmigrant alien within the class of aliens described in 8 CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of stay pursuant to 8 CFR 214.2 or 8 CFR 214.6 during his or her period of admission. Such alien is authorized to be employed by a new employer that has filed an H-2A petition naming the alien as a beneficiary and requesting an extension of stay for the alien for a period not to exceed 120 days beginning from the “Received Date” on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay, provided that the employer has enrolled in and is a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. Such authorization will be subject to any conditions and limitations noted on the initial authorization, except as to the employer and place of employment. However, if the District Director or Service Center director adjudicates the application prior to the expiration of this 120-day period and denies the application for extension of stay, the employment authorization under this paragraph (b)(21) shall automatically terminate upon 15 days after the denial decision. The employment authorization shall also terminate automatically if the employer fails to remain a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. Michael Chertoff, Secretary. [FR Doc. E8-2532 Filed 2-12-08; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0109; Directorate Identifier 2007-NM-235-AD] RIN 2120-AA64 Airworthiness Directives; Lockheed Model 382, 382B, 382E, 382F, and 382G Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: This document announces a reopening of the comment period for the above-referenced NPRM. The NPRM proposed the adoption of a new airworthiness directive for all Lockheed Model 382, 382B, 382E, 382F, and 382G series airplanes. That NPRM invites comments concerning the proposed requirements for revising the FAA-approved maintenance inspection program to include inspections that will give no less than the required damage tolerance rating for each structural significant item (SSI), doing repetitive inspections to detect cracks of all SSIs, and repairing cracked structure. This reopening of the comment period is necessary to provide additional opportunity for public comment on the proposed requirements of that NPRM. DATES: We must receive comments on this proposed AD by March 31, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Lockheed Martin Aeronautics Company, 86 South Cobb Drive, Marietta, Georgia 30063. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone
(770)703-6131; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking
(NPRM)for an AD for all Lockheed Model 382, 382B, 382E, 382F, and 382G series airplanes. The NPRM was published in the **Federal Register** on November 14, 2007 (72 FR 64005). The NPRM proposed to require revising the FAA-approved maintenance inspection program to include inspections that will give no less than the required damage tolerance rating for each structural significant item (SSI), doing repetitive inspections to detect cracks of all SSIs, and repairing cracked structure. The NPRM action invites comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. Actions Since NPRM Was Issued Since we issued the NPRM, we have received one comment. Lynden Air Cargo requests an additional 45 days to comment on the NPRM. Lynden Air Cargo states that it needs more time to: • Review Lockheed Martin Model 382, 382B, 382E, 382F, and 382G Series Aircraft Service Manual Publication (SMP), Supplemental Structural Inspection Document, SMP 515-C-SSID, Change 1, dated September 10, 2007 (referred to the NPRM as the appropriate source of service information for accomplishing the proposed actions). Lynden Air Cargo states that the service information was not made available by the Type Certificate holder until December 18, 2007. • Comment about the conclusion in the Regulatory Evaluation (located in the docket) that the NPRM does not affect intrastate aviation in Alaska. Lynden Air Cargo states that its military operations in Alaska account for some 4.5 million pounds of lift per year. • Review service difficulty reports to validate the presence of an unsafe condition relating to the affected airplanes. Lynden Air Cargo states that it does not appear that the requirements of the NPRM are based upon any unsafe condition related to a particular type design. It is our intent to address the identified unsafe condition in a timely manner with minimum disruption to industry. We encourage interested parties to continue to evaluate the NPRM and to submit additional comments with more specific details concerning issues that we may need to evaluate before finalizing decisions on the proposal. We have determined that such input may be beneficial before adoption of a final rule. As a result, we have decided to reopen the comment period for 45 days to receive additional comments. No part of the regulatory information has been changed; therefore, the NPRM is not republished in the **Federal Register** . Comments Due Date We must receive comments on this AD action by March 31, 2008. Issued in Renton, Washington, on February 7, 2008. Kevin Hull, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2742 Filed 2-12-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0166; Directorate Identifier 2007-NM-329-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for all Boeing Model 747 airplanes listed above. This proposed AD would require repetitive inspections for broken or missing fasteners in the single-row hinge fasteners of the forward and aft cargo doors, and related investigative/corrective actions. This proposed AD results from reports of broken and missing fasteners in the hinges of the forward and aft cargo doors in both the body hinge segments and the door hinge segments. We are proposing this AD to detect and correct broken or missing fasteners in the hinge segments with a single fastener row, which could lead to opening of the cargo door during flight and result in rapid decompression of the airplane. DATES: We must receive comments on this proposed AD by March 31, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6437; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0166; Directorate Identifier 2007-NM-329-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received reports of broken fasteners in the hinge segments of the forward and aft cargo doors. Two operators have reported broken fasteners in both the body hinge segments and the door hinge segments. One operator of a Model 747-400 series airplane found three fractured fasteners at the aft cargo door, and a subsequent torque check showed that two other fasteners were also fractured. Another operator reported that all eight fasteners of a hinge segment at the forward cargo door of a Model 747-300 series airplane were fractured. This operator also reported finding four fractured fasteners in one hinge segment at the forward cargo door of a different airplane. Broken or missing fasteners in the hinge segments, if not detected and corrected, could lead to opening of the cargo door during flight and result in rapid decompression of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-52A2287, dated October 25, 2007. The service bulletin describes procedures for a repetitive detailed inspection for broken or missing fasteners of the single-row hinge fasteners of the forward and aft cargo door hinge segments, and related investigative and corrective actions. If no broken fastener is found, the service bulletin specifies the related investigative action of applying torque to all the fasteners at that segment to detect any broken fastener. If any inspection or torque application shows a broken fastener, the service bulletin specifies the corrective action of replacing all fasteners in the hinge segment where the broken fastener is found. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.” Difference Between the Proposed AD and the Service Bulletin The Accomplishment Instructions of the service bulletin do not state the action to take if there is a missing fastener. This proposed AD would require replacing all fasteners in any hinge segment that has one or more missing fasteners. Interim Action A Boeing investigation has not determined a specific root cause for the unsafe condition; therefore, we consider this proposed AD interim action. If final action is later identified, we might consider further rulemaking then. Costs of Compliance We estimate that this proposed AD would affect 165 airplanes of U.S. registry. The “Estimated Costs” table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Cost per product Number of U.S.-registered airplanes Fleet cost Detailed inspection 3 $80 $240, per inspection cycle 165 $39,600, per inspection cycle. Torque application (for any hinge segment with no broken or missing fastener) 7 80 $560, per inspection cycle Up to 165 Up to $92,400, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866, 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing:** Docket No. FAA-2008-0166; Directorate Identifier 2007-NM-329-AD. Comments Due Date
(a)We must receive comments by March 31, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category. Unsafe Condition
(d)This AD results from reports of broken and missing fasteners in the hinges of the forward and aft cargo doors in both the body hinge segments and the door hinge segments. We are issuing this AD to detect and correct broken or missing fasteners in the hinge segments, which could lead to the cargo door opening during flight and result in rapid decompression of the airplane. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Repetitive Inspection and Related Investigative/Corrective Actions
(f)Before the accumulation of 7,200 total flight cycles or within 3,000 flight cycles after the effective date of this AD, whichever occurs later: Do a detailed inspection for broken or missing fasteners of the single-row hinge fasteners of the forward and aft cargo door hinge segments, and do all applicable related investigative (torque application) and corrective actions by accomplishing all the actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-52A2287, dated October 25, 2007. Do all applicable related investigative and corrective actions before further flight. Repeat the inspection thereafter at intervals not to exceed 6,000 flight cycles. Where the service bulletin does not give an action to take if there is one or more fasteners missing from a hinge segment, replace all fasteners in the hinge segment before further flight in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-52A2287, dated October 25, 2007. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, ATTN: Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6437; fax
(425)917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on February 4, 2008. Kevin Hull, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2588 Filed 2-12-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 138 [Docket No. USCG-2005-21780] RIN 1625-AA98 Financial Responsibility for Water Pollution (Vessels) and OPA 90 Limits of Liability (Vessels and Deepwater Ports); Correction AGENCY: Coast Guard, DHS. ACTION: Proposed rule; correction. SUMMARY: The Coast Guard published in the **Federal Register** of February 5, 2008, a notice of proposed rulemaking which, among other things, would amend the regulatory requirements for vessel operators to establish and maintain evidence of financial responsibility. That document contained an incorrect effective date and was also unclear. This document corrects the preamble and regulatory text to the proposed rule to clarify the effective date and the distinction between the financial responsibility applicable amounts and limits of liability. DATES: Comments and related material must reach the Docket Management Facility on or before May 5, 2008. Comments sent to the Office of Management and Budget
(OMB)on collection of information must reach OMB on or before May 5, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2005-21780 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)*Online:* *http://www.regulations.gov* .
(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4)*Fax:* 202-493-2251. You must also send comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget. To ensure that the comments are received on time, the preferred method is by e-mail at *nlesser@omb.eop.gov* or fax at 202-395-6566. An alternate, though slower, method is by U.S. mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Benjamin White, National Pollution Funds Center, Coast Guard, telephone 202-493-6863. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: The Coast Guard published an NPRM in the **Federal Register** of February 5, 2008, (73 FR 6642) which, among other things, proposed amending the regulatory requirements for vessel operators to establish and maintain evidence of financial responsibility. That document contained an incorrect effective date and was also unclear. This document corrects the preamble and regulatory text to the proposed rule to clarify the effective date and the distinction between the financial responsibility applicable amounts of § 138.80(f) and limits of liability in proposed Subpart B. In FR Doc. E8-1516, appearing on page 6642 in the **Federal Register** of Tuesday, February 5, 2008, the following corrections are made: Preamble [Corrected] 1. On page 6645, in the third column, after the reference to *Section 138.85,* remove the paragraph that states: “This new section of the proposed rule would establish an implementation schedule that would apply to the increased applicable amounts in Subpart B of this proposed rule, and whenever the financial responsibility applicable amounts under Subpart B are amended by regulation. This would occur in instances including, but not limited to, future regulatory changes mandated by statute, and when the limits of liability in proposed subpart B of this Part are amended to reflect significant increases in the Consumer Price Index pursuant to 33 U.S.C. 2704(d)(4).” and add, in its place, the following paragraph: “This new section of the proposed rule would establish an implementation schedule that would apply to the increased applicable amounts referenced in 138.80(f) of this proposed rule, and whenever the financial responsibility applicable amounts under § 138.80(f) are amended by regulation. This would occur in instances including, but not limited to, future regulatory changes mandated by statute, and when the limits of liability in proposed subpart B of this Part are amended to reflect significant increases in the Consumer Price Index pursuant to 33 U.S.C. 2704(d)(4).” § 138.85 [Corrected] 2. On page 6654 in the first column, revise the proposed regulatory text for proposed § 138.85 to read as follows: § 138.85 Implementation Schedule The effective date of the applicable amounts referenced in § 138.80(f) of this part will be [INSERT DATE 120 DAYS AFTER PUBLICATION OF FINAL RULE IN THE **Federal Register** ]. In the event an applicable amount referenced in § 138.80(f) is thereafter amended by regulation, the effective date of the amended applicable amount will be 120 days after publication of a final rule in the **Federal Register** , unless another date is required by statute and specified in the amending regulation. Each operator of a vessel described in § 138.15, must have established, on or before the effective date of the applicable amount including any amendments thereto, evidence of financial responsibility acceptable to the Director, NPFC, in an amount equal to or greater than the total applicable amount.” Dated: February 7, 2008. William Grawe, Acting Director, National Pollution Funds Center, United States Coast Guard. [FR Doc. E8-2685 Filed 2-12-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-1043; FRL-8528-5] Approval and Promulgation of Air Quality Implementation Plans; Michigan; PSD Regulations AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; reopening of public comment period. SUMMARY: EPA is reopening the public comment period for a proposed rule published January 9, 2008 (73 FR 1570). On January 9, 2008, EPA proposed a conditional approval of a revision to Michigan's SIP submitted by the Michigan Department of Environmental Quality on December 21, 2006. The revisions were submitted to add the Prevention of Significant Deterioration
(PSD)construction permitting program. This program affects major stationary sources in Michigan that are subject to or potentially subject to the PSD construction permit program. On January 25, 2008, EPA received a request from the Environmental Law and Policy Center, the Michigan Energy Alternatives, the Michigan Land Use Institute, the Natural Resources Defense Council and the Sierra Club, to extend the public comment period an additional 30 days from the closing date of February 8, 2008. EPA is granting this request by reopening the comment period for an additional 30 days after February 8, 2008. DATES: The comment period is extended until March 10, 2008. ADDRESSES: Submit comments, identified by Docket ID No. EPA-R05-OAR-2007-1043 to: Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-4447, *blakley.pamela@epa.gov* . Additional instructions to comment can be found in the notice of proposed rulemaking published January 9, 2008 (73 FR 1570). FOR FURTHER INFORMATION CONTACT: Laura Cossa, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-0661, *cossa.laura@epa.gov* . Dated: February 6, 2008. Gary Gulezian, Acting Regional Administrator, Region 5. [FR Doc. E8-2704 Filed 2-12-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-1002; FRL-8521-6] Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Regulation No. 7, Section XII, Volatile Organic Compounds From Oil and Gas Operations AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to take direct final action approving a State Implementation Plan
(SIP)revision submitted by the State of Colorado. On August 3, 2007, the Governor's designee submitted revisions to Colorado's Regulation No. 7, “Emissions of Volatile Organic Compounds,” Section XII, “Volatile Organic Compounds
(VOC)From Oil and Gas Operations.” EPA is proposing to approve the revisions to Regulation No. 7, Section XII. This action is being taken under Section 110 of the Clean Air Act. In the “Rules and Regulations” section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a non-controversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If EPA receives no adverse comments, EPA will not take further action on this proposed rule. If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. DATES: Written comments must be received on or before March 14, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-1002, by one of the following methods: • *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail:* *videtich.callie@epa.gov* and *fiedler.kerri@epa.gov* . • *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Callie A. Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery:* Callie A. Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Suite 300, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. Please see the direct final rule which is located in the Rules Section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone
(303)312-6493, and e-mail at: *fiedler.kerri@epa.gov* . SUPPLEMENTARY INFORMATION: See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this **Federal Register** . Authority: 42 U.S.C. 7401 et seq. Dated: January 15, 2008. Robert E. Roberts, Regional Administrator, Region VIII. [FR Doc. E8-2507 Filed 2-12-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 [EPA-HQ-OAR-2007-0002; FRL-8529-1] Approval of Louisiana's Petition To Relax the Summer Gasoline Volatility Standard for the Grant Parish Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve the State of Louisiana's request to relax the federal Reid Vapor Pressure
(RVP)standard applicable to gasoline introduced into commerce in the Grant Parish 8-hour ozone attainment area (Grant Parish) during the summer high ozone season—June 1 to September 15 of each year. Grant Parish is a designated attainment area under the 8-hour ozone National Ambient Air Quality Standard (“NAAQS”) and is a redesignated attainment area under the 1-hour ozone NAAQS. This action amends our regulations to change the summertime RVP standard for Grant Parish from 7.8 pounds per square inch
(psi)to 9.0 psi. EPA has determined that this change to our federal RVP regulations is consistent with the applicable provisions of the Clean Air Act. Louisiana's request is supported by evidence that Grant Parish can implement the 9.0 psi RVP standard and maintain the 8-hour ozone NAAQS and that relaxation of the applicable RVP standard to 9.0 psi will provide economic benefits. DATES: Comments must be received on or before March 14, 2008. Request for a public hearing must be received by February 28, 2008. If we receive a request for a public hearing, we will publish information related to the timing and location of the hearing and the timing of a new deadline for public comments. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0002, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail:* *a-and-r-Docket@epa.gov* . • *Fax:* Air and Radiation Docket—(202) 566-9744. • *Mail:* Air Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OAR-2007-0002. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2007-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Sean Hillson, Office of Transportation and Air Quality, Transportation and Regional Programs Division, Mailcode AASMCG, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number:
(734)214-4789; fax number:
(734)214-4052; e-mail address: *Hillson.Sean@epa.gov* . SUPPLEMENTARY INFORMATION: In the “Rules and Regulations” section of today's **Federal Register** , we are making these revisions as a direct final rule without prior proposal because we view these revisions as noncontroversial and anticipate no adverse comment. We have explained our reasons for these revisions in the preamble to the direct final rule. For further information, please see the information provided in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment on the rule, or on one or more distinct actions in the rule, we will withdraw the direct final rule, or the portions of the rule receiving adverse comment. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. The contents of this preamble are listed in the following outline: I. General Information II. Summary of Rule III. Statutory and Executive Order Reviews IV. Statutory Provisions and Legal Authority I. General Information A. Does This Action Apply to Me? This action will affect you if you produce, import, distribute, or sell gasoline fuel for use in Grant Parish, Louisiana. The following table gives some examples of entities that may have to follow the regulations. But because these are only examples, you should carefully examine the regulations in 40 CFR part 80. If you have questions, call the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble. Examples of potentially regulated entities NAICS codes a Petroleum Refineries 324110 Gasoline Marketers and Distributors 424710 424720 Gasoline Retail Stations 447110 Gasoline Transporters 484220 484230 a North American Industry Classification System (NAICS). B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI Do not submit confidential business information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. II. Summary of Rule This proposed rule would relax the applicable RVP (Reid Vapor Pressure) standard of 7.8 psi (pounds per square inch) to 9.0 psi in Grant Parish, Louisiana, during the summer high ozone season—June 1 to September 15 of each year. The State of Louisiana petitioned us for this relaxation in May 2005 and raised several valid points to justify this action. First, Grant Parish is classified as rural, is not adjacent to any urban area, and has a population of roughly 18,700 as of the 2000 Census. Second, air quality reflects a general decrease in emissions of ozone-forming pollutants since redesignation to attainment under the 1-hour standard in 1995 (data has fluctuated from year-to-year, but averaging annual emissions over three-year increments evidences the downward trend). Additionally, there is an economic advantage to relaxing the applicable RVP standard. Grant Parish is isolated from other (former) nonattainment areas which are required to use 7.8 psi gasoline. This isolation increases transportation costs which translate to roughly 2 cents per gallon increase in price to the consumer. Finally, the Grant Parish 8-hour ozone attainment area has submitted an 8-hour maintenance demonstrating that the use of 9.0 psi gasoline will not interfere with attainment of the 8-hour NAAQS. EPA Region 6 approved this maintenance plan in November 2007. Grant Parish was formerly a 1-hour ozone nonattainment area and was redesignated to attainment in 1995, but at that time did not request relaxation of the applicable RVP standard. In 2004, Grant Parish was designated as attainment for the 8-hour ozone standard and, under the Phase 1 Ozone Implementation Rule, Grant Parish was required to submit an 8-hour maintenance plan under Clean Air Act section 110(a)(1). In Louisiana's 2006 8-hour maintenance demonstration, the state supported their petition by modeling 9.0 psi gasoline and demonstrated that Grant Parish will be able to maintain attainment of the 8-hour standard for 10 years, thereby meeting the requirements to have the applicable gasoline volatility standard relaxed. For additional discussion of the proposed rule changes, see the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** . This proposal incorporates by reference all the reasoning, explanation, and regulatory text from the direct final rule. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to OMB review. B. Paperwork Reduction Act This action does not impose any new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and therefore is not subject to these requirements. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This action will relax the federal RVP standard for gasoline sold in Grant Parish, Louisiana, during the ozone control season (June 1 to September 15), from 7.8 psi to 9.0 psi, and is therefore expected not to have a significant economic impact on a substantial number of small entities. The rule does not impose any requirements or create impacts on small entities beyond those, if any, already required by or resulting from the CAA Section 211(h) Volatility Control program. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Today's rule merely relaxes the Federal RVP standard for gasoline in the Grant Parish area, and thus avoids imposing the costs that the existing Federal regulations would otherwise impose. Today's rule, therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. As discussed above, the rule relaxes an existing standard and affects only the gasoline industry. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” This proposed rule does not have federalism implications. 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. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. This rule would relax the applicable RVP standard in Grant Parish, LA, during the ozone control season (June 1 to September 15) from 7.8 psi to 9.0 psi. It applies only to Grant Parish, LA. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, Apr. 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As previously discussed, the Grant Parish area has continued to meet the 1-hour ozone standard since 1995 and has met the 8-hour ozone standard since initial designations were issued in 2004. The maintenance plan approved on November 6, 2007 shows maintenance of the 8-hour ozone NAAQS for the entire maintenance time period of 2002 through 2014 with the 9.0 psi RVP standard. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the applicable 8-hour ozone NAAQS which establish the level of protection provided to human health or the environment. This rule will relax the applicable volatility standard of gasoline during the summer possibly resulting in slightly higher mobile source emissions. However, the State of Louisiana has demonstrated in a maintenance plan Approval of Louisiana's Petition To Relax the Summer Gasoline Volatility Standard for the Grant Parish Area page 18 of 18—Proposal that this action will not interfere with attainment of the 8-hour ozone NAAQS and therefore disproportionately high and adverse human health or environmental effects on minority or low-income populations are not an anticipated result. IV. Legal Authority Authority for this action is in sections 211(h) and 301(a) of the Clean Air Act, 42 U.S.C. 7545(h) and 7601(a). List of Subjects in 40 CFR Part 80 Environmental protection, Administrative practice and procedures, Air pollution control, Fuel additives, Gasoline, Incorporation by reference, Motor vehicle and motor vehicle engines, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements. Dated: February 7, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-2705 Filed 2-12-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 73 and 74 [MB Docket No. 04-233; FCC 07-218] Report on Broadcast Localism and Notice of Proposed Rulemaking AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document provides a summary of the public comments and reply comments received in response to the Federal Communications Commission's *Notice of Inquiry* concerning broadcast localism and the testimony received at the six field hearings on localism. The document also outlines several proposed rule changes designed to enhance broadcast localism and diversity, to increase and improve the amount and nature of broadcast programming that is targeted to the local needs and interests of a licensee's community of service, and provide more accessible information to the public about broadcasters' efforts to air such programming. It seeks comment on those such proposals that are not the subject of other ongoing or contemplated Commission rulemaking proceedings. DATES: Comments are due on or before March 14, 2008. Reply comments are due on or before April 14, 2008. ADDRESSES: You may submit comments, identified by MB Docket No. 04-233, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • *People with Disabilities:* Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by *e-mail: FCC504@fcc.gov* or *phone:* 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th St, SW., Room 1-C823, Washington, DC 20554, or via the Internet at *PRA@fcc.gov;* and also to Nicholas A. Fraser of the Office of Management and Budget (OMB), via Internet at *Nicholas_A._Fraser@omb.eop.gov* or via fax at
(202)395-5167. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, please contact Jeremy M. Kissel, Media Bureau, Policy Division, at
(202)418-2120, or via e-mail at *Jeremy.Kissel@fcc.gov.* For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams at 202-418-2918, or via the Internet at *PRA@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report on Broadcast Localism and Notice of Proposed Rulemaking,* FCC 07-218, adopted on December 18, 2007, and released on January 24, 2008 ( *Report* ). The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs/* ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the Commission's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). 1. In August 2003, the Commission launched a Localism in Broadcasting initiative to review, and possibly enhance, localism practices among broadcasters, which are designed to ensure that each station treats the significant needs and issues of the community that it is licensed to serve with the programming that it offers. In addition to establishing procedures by which the Commission would study the state of broadcast localism and take any steps necessary to strengthen such efforts by licensees, on July 1, 2004, the Commission issued a *Notice of Inquiry* ( *NOI* ) concerning localism. Through the *NOI* , the Commission sought direct input from the public on how broadcasters are serving the interests and needs of their communities; whether the agency needs to adopt new policies, practices, or rules designed directly to promote localism in broadcast television and radio; and, if so, what those policies, practices, or rules should be. 2. The *NOI* took note that, during the Commission's 2002 review of its structural broadcast ownership rules, the agency received public comments indicating that many broadcasters may be failing to meet the needs of their local communities. In response, the Commission opened a separate inquiry proceeding (MB Docket No. 04-233) to seek public input on a number of issues related to broadcast localism. Among them were questions as to how broadcasters are communicating with the communities that they serve and are serving the needs of those communities, including whether stations are airing a sufficient amount of community-responsive programming, such as news, political material and disaster warnings, as well as the state of their service to traditionally underserved audiences. It also sought comment on the relationship between networks and their affiliated stations, payola and sponsorship identification, the license renewal process and possible additional spectrum allocations. The *NOI* also asked whether, based on that analysis, the Commission should take action to ensure that licensees meet their localism obligations or, in the alternative, should continue to rely on market forces and the existing issue-responsive programming rules to encourage broadcasters to meet their obligations. 3. In the *Report,* the Commission summarizes the record of the comments and testimony amassed in the localism proceeding for each of the nine general localism areas of inquiry specified in the *NOI:*
(1)Communication between licensees and their stations' communities;
(2)nature and amount of community-responsive programming;
(3)political programming;
(4)underserved audiences;
(5)disaster warnings;
(6)network affiliation rules;
(7)payola/sponsorship identification;
(8)license renewal procedures; and
(9)additional spectrum allocations. The Commission then provides an analysis of the pertinent record, and notes those areas in which the Commission believes that revision of its rules, procedures, and policies may be called for to ensure that broadcasters effectively meet the needs and problems of their communities with the programming that they air. 4. Specifically, in the *Report,* the Commission directs the Media Bureau to update *The Public and Broadcasting* publication to include information concerning the broadcast renewal process, applicable deadlines, and complaint procedures; states its intention to establish a Commission contact point dedicated to providing information to members of the public regarding how they can become involved in the Commission's processes; notes its intention to begin a proceeding to propose rules promoting access by cable and satellite subscribers to the programming of television broadcast stations licensed to communities in the states in which they live to address situations in which cable and satellite subscribers often do not receive the local news and information provided by an in-state station because the Commission's rules effectively require carriage of an out-of-state station; directs the Media Bureau's Audio Division to develop a new computer program to assist potential radio applicants in identifying suitable available commercial FM spectrum in the location from which they desire to operate; and reiterates its intention to address the issues in the Emergency Alert System proceeding within six months. The Commission also calls for comment on the topics described below. 5. *Renewal Application Pre- and Post-Filing Announcements.* The Commission seeks comment on whether it should change its existing rule governing the so-called “pre-filing and post-filing announcements” that licensees must air in connection with their renewal applications, and calls for comment on these new measures. In addition to the existing requirement for on-air announcements about soon-to-be-filed and pending renewal applications, the Commission seeks comment on whether it should require that the same information be posted on a licensee's Web site during the relevant months ( *i.e.* , the posting begins on the sixth month before the license is due to expire and remains in place until after the deadline for filing petitions to deny). The Commission also seeks comment on whether it should broaden the required language for the announcements contained in 47 CFR 73.3580(d)(4)(i), which currently provides the Commission's mailing address as a source for information concerning the broadcast license renewal process, to include the agency's Web site address. Moreover, the Commission seeks comment on whether, where technically feasible, the licensee's on-line provision of the Commission's web address could be linked directly to the agency's Web site. 6. *Community Advisory Boards.* The Commission seeks comment on its tentative conclusion that, to determine significant community needs and issues, licensees should convene and periodically consult with permanent advisory boards made up of officials and other leaders from the community of each broadcast station. The Commission believes that such community advisory boards will promote both localism and diversity and, as such, should be an integral component of the Commission's localism efforts. Accordingly, the Commission seeks comment on this proposal, and on other rules or guidelines that it might adopt to foster improved communication between licensees and members of their communities. 7. *Remote Station Operation.* The Commission notes that a number of commenters expressed concern about the prevalence of automated broadcast operations, which allow the operation of stations without a local presence, and the perceived negative impact that they have on licensees' ability to determine and serve local needs, in particular, providing vital information in times of emergency. In its recent *Digital Audio Notice of Proposed Rulemaking,* the Commission sought comment on whether changes in remote radio operation should affect existing rules. In that proceeding, the Commission is considering requiring that radio licensees maintain a physical presence at each radio broadcasting facility during all hours of operation. In the *Report* , the Commission seeks comment on whether it should extend any such requirement to television stations, as well as to radio facilities. 8. *Renewal Application Processing Guidelines.* The Commission also seeks comment on its tentative conclusion to adopt specific procedural guidelines for the processing of renewal applications for stations based upon their localism programming performance during the preceding license term. It also invites comment on any related issues that the Commission should consider in connection with the possible adoption of specific localism-related processing guidelines for broadcast renewal applications. 9. *Main Studio Location.* The Commission seeks comment on whether it should revert to its pre-1987 main studio rule, requiring that a station's main studio be situated within the station's community of license, in order to encourage broadcasters to produce locally originated programming. It seeks comment on this proposal, including whether accessibility of the main studio increases interaction between the broadcast station and the community of service. 10. *Affiliate Station Review of Network Programming.* The Commission seeks comment on whether it could be useful for licensees, in fulfilling their localism obligations, to be able to review network programming at some point sufficiently in advance of airtime to determine its appropriateness for airing. It seeks comment on whether this issue already has been addressed by existing affiliation agreement terms and, if private contractual arrangements have not addressed this issue, whether it should establish rules requiring such a right. 11. *Voice-Tracking.* The Commission seeks comment on the prevalence of voice-tracking, a practice by which stations import popular out-of-town personalities from bigger markets to smaller ones, and customize their programming to make it appear as if the personalities are actually local residents. It also seeks comment on whether the Commission can and should take steps to limit the practice, require disclosure, or otherwise address it. 12. *Submission of Music Playlist Information.* The Commission also seeks comment on whether it should require licensees to provide the Commission with data regarding their airing of the music and other performances of local artists and how they compile their stations' playlists, which the Commission would use in its consideration of the renewal applications of the stations to which they relate, in evaluating the overall station performance under localism. If so, the Commission seeks input as to in what form these disclosures should be required and what information should be supplied. 13. *Upgrade of LPTV Stations to Class A Facilities.* The Commission also seeks comment on its tentative conclusion to allow, in some cases, additional qualified low-power television stations to be granted Class A status and, if so, how it should define eligibility for such upgrades, and the Commission's statutory authority to take such action. 14. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates listed on the first page of this summary. All such filings should refer to MB Docket No. 04-233, unless otherwise instructed in the document. Comments may be filed using:
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121 (1998). Procedural Matters A. Initial Regulatory Flexibility Analysis 15. Pursuant to the Regulatory Flexibility Act (RFA), the Bureau has prepared an Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on small entities by the proposals considered in the *Report* . The text of the IRFA is set forth in Appendix B of the *Report.* Written public comments are requested on this IRFA. Comments must be filed in accordance with the same filing deadlines as those for comments on the *Report* , and they should have a separate and distinct heading designating them as responses to the IRFA. The Bureau will send a copy of the *Report,* including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. B. Initial Paperwork Reduction Act of 1995 Analysis 16. This document contains new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget
(OMB)for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” Initial Regulatory Flexibility Analysis 17. As required by the Regulatory Flexibility Act, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on a substantial number of small entities by the policies and rules considered in the *Report* . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the *Report* as indicated on the first page of the *Report* . The Commission will send a copy of the *Report* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the *Report* and the IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for, and Objectives of, the Proposed Rules 18. In August 2003, the Commission launched a Localism in Broadcasting initiative designed to review, and possibly enhance, localism practices among broadcasters which are designed to ensure that each station treats the significant needs and issues of the community that it is licensed to serve with the programming that it offers. The Commission subsequently issued a *Notice of Inquiry* *(NOI)* concerning localism. Through the *NOI* , the Commission sought direct input from the public on how broadcasters are serving the interests and needs of their communities; whether the agency needs to adopt new policies, practices, or rules designed directly to promote localism in broadcast television and radio; and, if so, what those policies, practices, or rules should be. The *Report* invites comment on several proposals designed to enhance broadcast localism and diversity, including increasing and improving the amount and nature of broadcast programming that is targeted to the local needs and interests of a licensee's community of service, and providing more accessible information to the public about broadcasters' efforts to air such programming. 19. The record in the proceeding demonstrates that some broadcasters devote significant amounts of time and resources to airing programming that is responsive to the needs and interests of broadcasters' communities of license, while many other commenters raised serious concerns that broadcasters' efforts, as a general matter, fall far short from what they should be. In the *Report,* the Commission details several proposals that will promote both localism and diversity in broadcasting, and seeks comment on same. B. Legal Basis 20. The *Report* is adopted pursuant to sections 4(i), 303, 612, and 616 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 532 and 536. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 21. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity” under Section 3 of the Small Business Act. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. 22. *Television Broadcasting* . In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of February 5, 2007, 872 (about 70 percent) of the 1,260 commercial television stations in the United States have revenues of $13 million or less. However, in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the attribution rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 23. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 24. *Radio Broadcasting* . The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of February 5, 2007, 10,442 (about 95 percent) of 10,962 commercial radio stations in the United States have revenues of $6.5 million or less. We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 25. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 26. *FM Translator Stations and Low Power FM Stations* . The proposed rules and policies could affect licensees of FM translator and booster stations and low power FM
(LPFM)stations, as well as to potential licensees in these radio services. The same SBA definition that applies to radio broadcast licensees would apply to these stations. The SBA defines a radio broadcast station as a small business if such station has no more than $6.5 million in annual receipts. Currently, there are approximately 4,131 licensed FM translator and booster stations and 771 licensed LPFM stations. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. 27. *Cable Television Distribution Services* . Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services we must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small. 28. *Cable Companies and Systems* . The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but 11 are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 29. *Cable System Operators* . The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 30. *Open Video Services* . Open Video Service
(OVS)systems provide subscription services. The SBA has created a small business size standard for Cable and Other Program Distribution. This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified a large number of OVS operators, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc.
(RCN)received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that it does not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS. Given this fact, the Commission concludes that those entities might qualify as small businesses, and therefore may be affected by the rules and policies adopted herein. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 31. The *Report* proposes a number of rule changes that, if adopted and implemented, may affect reporting, recordkeeping, and other compliance requirements on small entities. As noted above, we invite small entities to comment in response to the rules proposed in the *Report* . Each of the proposals is described below. 32. The *Report* seeks comment on whether the existing rules governing so-called “pre-filing and post-filing announcements” that licensees must air in connection with their license renewal applications should be changed. Specifically, the Commission seeks comment on whether the same information that is currently required for on-air announcements about soon-to-be-filed and pending renewal applications should be posted on a licensee's website during the relevant months ( *i.e.* , the posting begins on the sixth month before the license is due to expire and remains in place until after the deadline for filing petitions to deny). The *Report* also seeks comment on whether to broaden the required language for these announcements contained in 47 CFR 73.3680(d)(4)(i), which currently provides the Commission's mailing address as a source for information concerning the broadcast license renewal process, to include the agency's website address and, where technically feasible, to provide a link directly to the agency's Web site. 33. The *Report* invites comment on the Commission's tentative conclusion that licensees should convene and periodically consult with permanent community advisory boards made up of officials and other leaders from the community of each broadcast station for the purpose of determining significant community needs and issues, and whether the Commission should adopt similar rules or guidelines to foster licensees' communication with members of their stations' communities. It also seeks comment on whether television licensees should be required to maintain a physical presence at each television broadcasting facility during all hours of station operation. The *Report* further seeks comment on the Commission's tentative conclusion that it should adopt specific procedural guidelines for the processing of license renewal applications for stations based upon their localism programming performance during the preceding license term. The *Report* also seeks comment on whether a licensee should be required to situate its station main studio within the station's community of license to encourage production of locally originated programming, and whether accessibility of the main studio increases interaction between the licensee and its station's community of service. 34. The *Report* also seeks comment on whether it could be useful for licensees of stations affiliated with networks, in fulfilling their localism obligations, to be able to review network programming at some point sufficiently in advance of airtime and whether existing affiliation agreements address such matters. It also seeks comment on the prevalence of voice-tracking, and whether the Commission can and should take steps to limit the practice, require disclosure, or otherwise address it. The *Report* also seeks comment on whether the Commission should require licensees to provide the agency with data regarding their airing of the music and other performances of local artists and how they compile their stations' playlists. It also seeks comment on the appropriate form of such disclosures and in what manner, if any, the local nature of a station's music programming should be considered in any renewal application processing guidelines. Finally, the *Report* seeks comment on the Commission's tentative conclusion that it should allow additional qualified LPTV stations to be granted Class A status, as well as on how to define eligibility and the Commission's statutory authority to take such action. E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 35. The RFA requires an agency to describe any significant alternatives that might minimize any significant economic impact on small entities. Such alternatives may include the following four alternatives (among others):
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. 36. As noted, we are directed under law to describe any such alternatives we consider, including alternatives not explicitly listed above. The *Report* describes and seeks comment on several possible ways to enhance broadcast localism and diversity, including increasing and improving the amount and nature of broadcast programming that is targeted to the local needs and interests of a licensee's community of service, and providing more accessible information to the public about broadcasters' efforts to air such programming. The *Report* seeks comment on how the proposals described herein will achieve that goal, and commenters are invited to propose steps that the Commission may take to minimize any significant economic impact on small entities. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 37. None. Ordering Clauses 38. Accordingly, *it is ordered* , pursuant to the authority found in sections 4(i), 303, 612, and 616 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 532 and 536, the *Report* on Broadcast Localism and Notice of Proposed Rulemaking *is adopted* . 39. *It is further ordered* that pursuant to sections 1, 4(i) and (j), 301, 302, 303, 307, 308, 309, 319, and 324 of the Communications Act of 1934, 47 U.S.C. 151, 154(i) and (j), 301, 302, 303, 307, 308, 309, 319, and 324 that *notice is hereby given* of the proposals and tentative conclusions described in the Report on Broadcast Localism and Notice of Proposed Rulemaking. 40. *It is further ordered* that the Reference Information Center, Consumer Information Bureau, shall send a copy of the Report on Broadcast Localism and Notice of Proposed Rulemaking, including the Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects 47 CFR Part 73 Radio broadcast services. 47 CFR Part 74 Experimental radio, Auxiliary, Special broadcast and other program distributional services. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E8-2664 Filed 2-12-08; 8:45 am] BILLING CODE 6712-01-P OFFICE OF MANAGEMENT AND BUDGET Office of Federal Procurement Policy 48 CFR Parts 9901 and 9903 Cost Accounting Standards Board
(CAS)Exemption for Contracts Executed and Performed Outside the United States, Its Territories, and Possessions AGENCY: Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB. ACTION: Notice of Discontinuation of Case. SUMMARY: The Office of Federal Procurement Policy (OFPP), Cost Accounting Standards
(CAS)Board, is providing public notification of the decision to discontinue its review of the exemption for contracts that are executed and performed outside the United States, its territories, and possessions. FOR FURTHER INFORMATION CONTACT: Laura Auletta, Manager, Cost Accounting Standards Board, 725 17th Street, NW., Room 9013, Washington, DC 20503 (telephone: 202-395-3256). SUPPLEMENTARY INFORMATION: A. Regulatory Process The Cost Accounting Standards Board's rules, regulations and Standards are codified at 48 CFR Chapter 99. The Office of Federal Procurement Policy Act, 41 U.S.C. 422(g)(1), requires the Board, prior to the establishment of any new or revised Cost Accounting Standard, to complete a prescribed rulemaking process. The process generally consists of the following four steps: 1. Consult with interested persons concerning the advantages, disadvantages, and improvements anticipated in the pricing and administration of government contracts as a result of the adoption of a proposed Standard. 2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM). 3. Promulgate a Notice of Proposed Rulemaking (NPRM). 4. Promulgate a Final Rule. This notice announces the discontinuation of a case after completing step one of the four-step process. B. Background and Summary On September 15, 2005, the CAS Board issued a Staff Discussion Paper inviting comments regarding whether the exemption at 48 CFR 9903.201-1(b)(14) should be revised or eliminated (70 FR 53977). The SDP discussed the history of the exemption. In summary, this discussion stated that the original CAS Board was established by Section 2168 of the Defense Production Act of 1950 (DPA). Section 2163 of the DPA, entitled “Territorial Application of Act,” provided that Sections 2061 through 2170 of the Act “shall be applicable to the United States, its territories and possessions, and the District of Columbia” (United States). Therefore, because the provisions of the DPA were applicable only within the United States, the CAS Board rules, regulations and standards were also applicable only within the United States. In 1980, the original CAS Board ceased to exist under the DPA and administration of the standards was undertaken by the Department of Defense until the CAS Board was re-established in 1988 under the Office of Federal Procurement Policy
(OFPP)Act. In 1991, the new CAS Board retained the exemption when it recodified its rules and regulations at 48 CFR 9902.201-1(b)(14) on April 17, 1992 (57 FR 14148). The SDP published on September 15, 2005 invited public comments on whether the Board should revisit the exemption. C. Public Comments The Board received three sets of public comments in response to the staff discussion paper (available at *http://www.whitehouse.gov/omb/procurement/casb/index_public_comments.html* ). None of the comments supported the Board revising or eliminating the exemption. In fact, all three of the comments offered arguments for why the CAS Board should retain the exemption. One commented that while the OFPP Act, unlike the DPA, does not specifically limit CAS to contracts and subcontracts executed and performed within the United States, when Congress intends for laws to have extra-territorial effect, it would expressly state that intention. Additionally, the commenter notes that given the dynamic nature of international relations and bilateral agreements, the CAS Board would find it difficult to insure consistency of its regulations with international law and trade agreements. This commenter also questioned the material impact of the exemption, stating that, based on anecdotal evidence, contractors do not invoke the exception frequently. The value of the exemption, noted the commenter, includes putting foreign and U.S. companies on an equal footing by applying the same local accounting requirements; facilitating government procurements in the context of war readiness, other military action or disaster relief. Another commenter discussed the impracticality of applying CAS to contracts and subcontracts performed entirely outside the United States, noting, in part, that a contractor would be expected to follow the accounting conventions (rules and regulations) of the country where the contract is being performed. Requiring contractors and those in their supply chain to follow CAS instead would likely make participation in the U.S. Government procurement process prohibitive. Another commenter expressed concern that eliminating the exemption would result in applying CAS to foreign contractors that would otherwise be small businesses, since the CAS small business exemption applies only to firms that have a place of business located in the United States. While the CAS Board does not necessarily share each of the views expressed in these comments, the Board agrees with the conclusion not to delete or revise the exemption, especially with the absence of any commenter support for any such revision or elimination. D. Conclusion Based on the public input and Board discussions of this issue, the Board finds that the exemption should be retained without change. Paul A. Denett, Administrator, Office of Federal Procurement Policy. [FR Doc. E8-2668 Filed 2-12-08; 8:45 am] BILLING CODE 3110-01-P OFFICE OF MANAGEMENT AND BUDGET Office of Federal Procurement Policy 48 CFR Part 9904 Cost Accounting Standards Board; Allocation of Home Office Expenses to Segments AGENCY: Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB. ACTION: Staff Discussion Paper (SDP). SUMMARY: The Cost Accounting Standards Board (the Board), Office of Federal Procurement Policy, invites public comments on a staff discussion paper
(SDP)addressing potential revisions to Cost Accounting Standard
(CAS)403, “Allocation of Home Office Expenses to Segments.” This SDP addresses whether the current thresholds that require use of the three factor formula for allocating residual home office expenses require revision. DATES: Comments must be in writing and must be received by April 14, 2008. ADDRESSES: Due to delays in receipt and processing of mail, respondents are strongly encouraged to submit comments electronically to ensure timely receipt. Electronic comments may be submitted to *casb2@omb.eop.gov* . Please include your name, title, organization, and reference case “CAS-2008-01S.” Comments may also be submitted via facsimile to
(202)395-5105. Comments via regular mail should be addressed to the Office of Federal Procurement Policy, 725 17th Street, NW., Room 9013, Washington, DC 20503, ATTN: Laura Auletta. Please note that any comments received will be posted in their entirety, including any personal and/or business confidential information provided, at *http://www.whitehouse.gov/omb/procurement/casb.html* after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Laura Auletta, Manager, Cost Accounting Standards Board, 725 17th Street, NW., Room 9013, Washington, DC 20503 (telephone: 202-395-3256). SUPPLEMENTARY INFORMATION: A. Regulatory Process The Board's rules, regulations and standards are codified at 48 CFR Chapter 99. The Office of Federal Procurement Policy Act, 41 U.S.C. 422(g)(1), requires the Board, prior to the establishment of any new or revised Standard, to complete a prescribed rulemaking process. The process generally consists of the following four steps: 1. Consult with interested persons concerning the advantages, disadvantages and improvements anticipated in the pricing and administration of government contracts as a result of the adoption of a proposed Standard (i.e., prepare and publish SDP). 2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM). 3. Promulgate a Notice of Proposed Rulemaking (NPRM). 4. Promulgate a Final Rule. The SDP published with this notice is issued by the Board in accordance with the requirements of 41 U.S.C. 422(g)(1)(B), and is the first of the four-step process. The Board has received two recommendations to revise the CAS 403 operating revenue thresholds used in determining if a contractor is required to apply the three factor formula to allocate residual home office expenses to segments. The research accomplished to date by the Board staff is the basis for the SDP being released today. B. Background Over the past few years, the Board has received two proposals to revise the CAS operating revenue thresholds for determining if a contractor is required to use the three factor formula to allocate residual home office expenses to segments. *1. Consumer Price Index:* A proposal from the Aerospace Industries Association
(AIA)recommends that the operating revenue thresholds be raised by 400 percent to reflect the changes in the consumer price index
(CPI)from 1973 to 2003. *2. Conduct Staff Study:* A proposal from the Department of Defense
(DoD)recommends that the Board obtain actual statistics of various companies and conduct a staff study similar to that performed by the original Board. This proposal recommends that the study update the thresholds to reflect the impact that economic changes, industry changes, and the advent of acquisition reform have had in the years since the thresholds were established. C. Staff Discussion Paper I. Background • 48 CFR 9904.403-40(c)(2) requires that home office residual expenses be allocated to segments using the three factor formula if the residual expenses exceed: ○ 3.35 percent of the first $100 million of operating revenue; ○ .95 percent of the next $200 million of operating revenue; ○ .30 percent of the next $2.7 billion of operating revenue; and ○ .20 percent of all amounts over $3 billion of operating revenue. • The operating revenue thresholds at 48 C.F.R 9904.403-40(c)(2) were promulgated in December 1972 and have not been revised in the 35 years since. • The Board has decided to initiate a case to determine if the current thresholds require revision. This case will analyze all aspects of this issue. For example, in addition to the inflation of the dollar, the last 35 years have also seen a change in the nature of home offices. In particular, the number of home offices have significantly increased due to the proliferation of intermediate home offices. In determining whether to revise the current thresholds, the Board will need to analyze if and to what extent such a proliferation impacts the thresholds. In addition, the Board will need to determine if and to what extent a data call is needed to obtain information necessary to reach an informed decision on this issue. II. Staff Research Comments on Alternatives *1. Use Consumer Price Index (CPI):* On August 26, 2003, AIA sent a letter to the Board recommending that the operating revenue thresholds be raised by 400 percent to reflect the changes in the CPI from 1973 to 2003. The staff believes the AIA recommendation offers the advantage of a simple and quick revision to the out-of-date thresholds. It is also an objective measure of the economic escalation that has occurred since the thresholds were initially promulgated. A significant disadvantage is that the increase in the CPI may not be a good measure of increases necessary to the three factor formula. For example, the number of home offices have significantly increased due to the proliferation of intermediate home offices. The increase in home offices may warrant a smaller increase in the three factor formula than the CPI would provide. A second disadvantage is that the Board will not be aware of the exact impact the revision will have on the number of companies covered by the three factor formula. The CPI represents changes in prices of all goods and services purchased for consumption by urban households. User fees (such as water and sewer service) and sales and excise taxes paid by the consumer are also included. Income taxes and investment items (like stocks, bonds, and life insurance) are not included. It is an objective measure of the economic escalation that has occurred since the thresholds were initially promulgated. A potential problem concerning the use of the CPI is that historical values are not revised when there are improvements in the index. Consequently, past errors in methodology are only corrected prospectively (i.e., the historical data is not corrected). Most of the major improvements in the CPI have tended to reduce measured inflation. As a result, the increase in the CPI since 1972 overstates inflation. The overstatement in the CPI can be mitigated by using alternative versions that incorporate current methodology in measuring past price movements. From 1972 to 1978, the best alternative version is the CPI-U-X1, which provides an adjustment to the CPI that computes housing costs using rental equivalents (this method was adopted for the official CPI in the early 1980s). However, the CPI-U-X1 does not include other improvements to the CPI that were adopted in the early 1980s. The CPI-U-RS, which was developed in the late 1990s, incorporates changes in methodology implemented since 1978. Thus, it can be used to analyze inflationary trends in the CPI without interference from changes in methodology. New values based on current methods are released each April. From December 1972 through December 1977, the CPI-U-X1 increased by a factor of 1.43. From January 1978 through February 2007, the CPI-U-RS increased by a factor of 3.26. To compute the increase for the period December 1972 through February 2007, the factor for the CPI-U-X1 is multiplied by the factor for the CPI-U-RS (1.43 x 3.26) to obtain an inflation factor of 4.66. Applying this factor to the current thresholds at 48 C.F.R 9904.403-50 yields the following revised thresholds for application of the three factor formula: ○ 3.35 percent of the first $470 million of operating revenue; ○ .95 percent of the next $930 million of operating revenue; ○ .30 percent of the next $12.6 billion of operating revenue; and ○ .20 percent of all amounts over $14.0 billion of operating revenue. *2. Conduct Staff Study:* On September 26, 2002, DoD sent a letter to the Board recommending that, as part of the comprehensive review, the Board obtain actual statistics of various companies and conduct a staff study similar to that performed by the original Board. DoD recommended that the study update the thresholds to reflect the impact that economic changes, industry changes, and the advent of acquisition reform have had in the years since the thresholds were established. The staff believes that the DoD recommendation offers the Board an opportunity to understand the impact that various revisions would have on the number of companies subject to the three factor formula before drafting an ANPRM. The disadvantage is that the analysis will require significant time and effort to accomplish, and it is possible that such an analysis would not yield useful data for determining the appropriate thresholds. III. Public Input The Board is requesting public input on whether the thresholds should be raised, the potential advantages and disadvantages of the two alternatives described above, and any additional recommended alternatives the commenters may have. Key questions for consideration include, but are not limited to, the following: 1. Should the operating revenue thresholds be revised? Why or why not? 2. If the threshold should be revised, what should be the basis of that revision (e.g., CPI, staff study, other)? 3. What are the advantages and disadvantages of the two alternatives described above? 4. What type of data is currently available for performance of the staff study? 5. Is the administrative burden of collecting the data associated with the staff study commensurate with risk? 6. To what extent does the proliferation of intermediate home offices impact any potential revision of the operating revenue thresholds? Paul A. Denett, Administrator, Office of Federal Procurement Policy. [FR Doc. E8-2666 Filed 2-12-08; 8:45 am] BILLING CODE 3110-01-P 73 30 Wednesday, February 13, 2008 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Meeting Pursuant to the Federal Advisory Committee Act, notice is hereby given of a meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA). *Date:* Thursday, February 28, 2008 (9 a.m. to 3 p.m.) *Location:* National Press Club Ballroom, 529 14th Street, NW., Washington, DC 20045. Please note that this is the anticipated agenda and is subject to change. *Keynote:* Henrietta H. Fore, USAID Administrator and Director of United States Foreign Assistance, will speak on the Global Development Commons, including its role as a driver of development and the link between economic growth and democratic governance. She will also provide an update on USAID's response to the ACVFA working groups' recommendations. *Democratic Governance and Economic Growth:* An examination of what has worked successfully in democratic governance and economic growth programs will be discussed in two parts. Particular attention will be paid to those programs that have been or could be successfully replicated in other countries. *Cutting Edge Partnerships:* Carol Adelman, ACVFA Vice Chair, will lead a discussion with representatives from the corporate, foundation, and end user communities on innovative partnerships that have stimulated economic growth and promoted good democratic governance. Speakers include Lauren Moser Counts with Shorebank, Corey Griffin with Microsoft Corporation, Donald F. Terry with the Inter-American Development Bank, Jennifer Hodgson with WINGS Global Fund for Community Foundations and a representative from Global Giving. *USAID's Lessons Learned:* Discussion of successes and challenges countries that attain both democracy and high economic growth, with a specific focus on USAID's contributions. Possible countries may include Costa Rica, India, Botswana, Chile, and Estonia. The discussion will be moderated by Ted Weihe, ACVFA member, and panelists will include Simeon Djankov, with the World Bank, Chad Evans with the Council on Competitiveness, Mary Ott with USAID's Office of Economic Growth, Mary Ryckman with the Office of the U.S. Trade Representative, and Dorothy Taft with USAID's Office of Democracy and Governance. *Global Knowledge Sharing for Development:* Knowledge management tools, including the Global Development Commons, will be discussed as to how they could benefit the variety of actors in democratic governance and economic growth. The discussion will be moderated by Judith Hermanson, ACVFA member, and panelists will include Steve Gale with USAID and representatives from academia and web portals. The meeting is free and open to the public. Persons wishing to attend the meeting can register online at *http://www.usaid.gov/about_usaid/acvfa* or with Jenny Chun of the Hill Group at *hkim@thehillgroup.com* or 301-897-2789 ext. 115 or with Jocelyn Rowe at *jrowe@usaid.gov* or 202-712-4002. Dated: February 6, 2008. Jocelyn M. Rowe, Executive Director, Advisory Committee on Voluntary, Foreign Aid (ACVFA), U.S. Agency for International Development. [FR Doc. E8-2739 Filed 2-12-08; 8:45 am] BILLING CODE 6116-01-P AGENCY FOR INTERNATIONAL DEVELOPMENT Board for International Food and Agricultural Development One Hundred and Fifty-Third Meeting; Notice of Meeting Pursuant to the Federal Advisory Committee Act, notice is hereby given of the one hundred and fifty-third meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 8 a.m. to 5 p.m. on February 27, 2008 at the National Press Club located at 529 14th St., NW., Washington, DC. The venue will be the 1st Amendment Room which is located on the 13th floor of the National Press Club. Dr. Robert Easter, Chairman of BIFAD will open the meeting. Dr. Easter is the Dean, College of Agriculture, Consumer and Environment Sciences at the University of Illinois. Dean Easter's appointment as Chairman was confirmed by the White House on January 21, 2008. Dean Easter has been serving as interim Chairman since April 30, 2007 when Mr. Peter McPherson, former USAID Administrator, resigned from the Board. The Board also welcomes two new members: Mr. H. H. Barlow III (Kentucky) and Mr. Keith Eckel (Pennsylvania). They will be sworn in by Jacqueline E. Schafer, Assistant Administrator for the Economic Growth, Agriculture and Trade Bureau, USAID. The morning session's topics will include presentations on the Global Summit on Higher Education and Development, and also the Global Development Commons as being initiated by USAID Administrator Henrietta H. Fore. Status Reports will be given on two of BIFAD's activities; the study on “Defining a Title XII Activity,” and the Conference of Deans which is being planned for April 2008. There will be a general discussion focusing on Strategic Directions of BIFAD in 2008. Jacqueline E. Schafer will brief the Board on the President's 2009 budget and its impacts for agriculture programs. Following the Board's executive luncheon (closed to the public) and the swearing-in of the new Board members BIFAD will be updated on the “Universities as Sub-Contractor's” issue and on USAID's approach for preparing the 2007 Title XII Report. Highlighting the afternoon session will be discussion with the Office of Agriculture on planning actions for two new CRSPs (Global Horticulture and Global Livestock-Climate Change). BIFAD committee actions will also be discussed; including updates by Ray Miller, Chair of BIFAD's new special Task Force and Sandra Russo, Chair of BIFAD's sub-committee Strategic Partnership for Agricultural Research and Education (SPARE). *SPARE-Special Notice:* The SPARE committee will hold its next meeting on February 26, 2008. It will begin at 1:30 p.m. The meeting venue is in the multi-purpose conference room located on the 1st floor of NASULGC's offices located at 1307 New York Ave., NW., Washington, DC. The Board and SPARE meetings are free and open to the public. The Board and SPARE welcomes an open dialog to promote greater focus on critical issues facing USAID and international agriculture. Those wishing to attend the meeting or obtain additional information about BIFAD should contact Dr. Ronald S. Senykoff, the Designated Federal Officer for BIFAD. Write him in care of the U.S. Agency for International Development, Ronald Reagan Building, Office of Agriculture, Bureau for Economic Growth, Agriculture and Trade, 1300 Pennsylvania Avenue, NW., Room 2.11-085, Washington, DC 20523-2110 or telephone him at
(202)712-0218 or fax
(202)216-3010. Ronald S. Senykoff, USAID Designated Federal Officer for BIFAD, Office of Agriculture and Food Security, Bureau for Economic Growth, Agriculture & Trade, U.S. Agency for International Development. [FR Doc. E8-2744 Filed 2-12-08; 8:45 am] BILLING CODE 6116-01-P DEPARTMENT OF AGRICULTURE Forest Service RIN 0596-AC50 Notice of Extension of Public Comment Period—Proposed Directives for Forest Service Outfitting and Guiding Special Use Permits and Insurance Requirements for Forest Service Special Use Permits AGENCY: Forest Service, USDA. ACTION: Notice of extension for public comment period. SUMMARY: The Forest Service is extending the public comment period for the proposed directive regarding Forest Service Outfitting and Guiding Special Use Permits and Insurance Requirements for Forest Service Special Use Permits for an additional 30 days to March 20, 2008. The original notice called for comments to be submitted by January 17, 2008 (72 FR 59246, October 19, 2007). A second notice (72 FR 71113, December 14, 2007) extended the comment period until February 19, 2008. DATES: Comments must be received in writing by March 20, 2008. ADDRESSES: Send comments electronically by following the instructions at the Federal eRulemaking portal at *http://www.regulation.gov.* Comments also may be submitted by mail to U.S. Forest Service, Attn: Carolyn Holbrook, Recreation and Heritage Resources Staff (2720), 1400 Independence Avenue, SW., Mail Stop 1125, Washington, DC 20250-1125. If comments are sent electronically, the public is requested not to send duplicate comments by mail. Please confine comments to issues pertinent to the proposed directives, explain the reasons for any recommended changes, and, where possible, reference the specific section and wording being addressed. All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on these proposed directives in the Office of the Director, Recreation and Heritage Resources Staff, 4th Floor Central, Sidney R. Yates Federal Building, 14th and Independence Avenue, SW., Washington, DC, on business days between 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at
(202)205-1426 to facilitate entry into the building. FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook,
(202)205-1426, Recreation and Heritage Resources Staff. Dated: February 7, 2008. Gloria Manning, Associate Deputy Chief—NFS. [FR Doc. E8-2656 Filed 2-12-08; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Forest Service National Tree-Marking Paint Committee Meeting AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The National Tree-marking Paint Committee will meet in Asheville, North Carolina on May 13-15, 2008. The purpose of the meeting is to discuss activities related to improvements in, concerns about, and the handling and use of tree-marking paint by personnel of the Forest Service and the Department of the Interior's Bureau of Land Management. DATES: The meeting will be held May 13-15, 2008, from 9 a.m. to 5 p.m. ADDRESSES: The meeting will be held at the Four Points by Sheraton Asheville Downtown, 22 Woodfin Street, Asheville, NC 28801. Persons who wish to file written comments before or after the meeting must send written comments to Dave Haston, Chairman, National Tree-marking Paint Committee, Forest Service, USDA, San Dimas Technology and Development Center, 444 East Bonita Avenue, San Dimas, California 91773, or electronically to *dhaston@fs.fed.us.* FOR FURTHER INFORMATION CONTACT: Dave Haston, Sr. Project Leader, San Dimas Technology and Development Center, Forest Service, USDA,
(909)599-1267, extension 294 or *dhaston@fs.fed.us.* SUPPLEMENTARY INFORMATION: The National Tree-marking Paint Committee comprises representatives from the Forest Service national headquarters, each of the nine Forest Service Regions, the Forest Products Laboratory, the Forest Service San Dimas Technology and Development Center, and the Bureau of Land Management. The General Services Administration and the National Institute for Occupational Safety and Health are ad hoc members and provide technical advice to the committee. A field trip will be held on May 13 and is designed to supplement information related to tree-marking paint. This trip is open to any member of the public participating in the public meeting on May 14-15. However, transportation is provided only for committee members. The main session of the meeting, which is open to public attendance, will be held on May 14-15. Closed Sessions While certain segments of this meeting are open to the public, there will be two closed sessions during the meeting. The first closed session is planned for approximately 10 a.m. to noon on May 14. This session is reserved for individual paint manufacturers to present products and information about tree-marking paint for consideration in future testing and use by the agency. Paint manufacturers also may provide comments on tree-marking paint specifications or other requirements. This portion of the meeting is open only to paint manufacturers, the committee, and committee staff to ensure that trade secrets will not be disclosed to other paint manufacturers or to the public. Paint manufacturers wishing to make presentations to the Tree-marking Paint Committee during the closed session should contact the committee chairperson at the telephone number listed at FOR FURTHER INFORMATION CONTACT in this notice. The second closed session is planned for approximately 9 a.m. to 11 a.m. on May 15, 2007. This session is reserved for Steering Committee members only. Any person with special access needs should contact the Chairperson to make those accommodations. Space for individuals who are not members of the National Tree-marking Paint Committee is limited and will be available to the public on a first-come, first-served basis. Dated: February 8, 2008. Gloria Manning, Associate Deputy Chief—NFS. [FR Doc. E8-2655 Filed 2-12-08; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Forest Service RIN 0596-AC44 Native Plant Material Policy (Forest Service Manual 2070) AGENCY: Forest Service, USDA. ACTION: Notice of issuance of agency final directive. SUMMARY: The Forest Service is issuing a new directive to Forest Service Manual
(FSM)2070 for native plant materials, which provides direction for the use, growth, development, and storage of native plant materials. DATES: This directive is effective February 13, 2008. ADDRESSES: A copy of the final directive is available at *http://www.fs.fed.us/rangelands/whoweare/documents/FSM2070_Final_2_062905.pdf.* The administrative record for this final directive is available for inspection and copying at the office of the Director, Rangeland Management Staff, USDA Forest Service, 3rd Floor South, Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except holidays. Those wishing to inspect the administrative record are encouraged to call in advance to Brian Boyd,
(202)205-1496 to facilitate entrance into the building. FOR FURTHER INFORMATION CONTACT: Larry Stritch, Rangeland Management Staff, USDA Forest Service, Mailstop 1103, 1400 Independence Avenue, SW., Washington, DC 20250,
(202)205-1279. SUPPLEMENTARY INFORMATION: Title 36 CFR 219.10(b) states: “The overall goal of the ecological element of sustainability is to provide a framework to contribute to development and maintenance of native ecological systems by providing desired ecological conditions to support diversity of native plant and animal species in the plan area”. Executive Order 13112 (February 3, 1999, sec. 2(a)(2)(IV)) on invasive species states the agencies will “provide for restoration of native species and habitat conditions in ecosystems that have been invaded [by non-native species]”. In accordance with the Executive order and regulation, the Forest Service is issuing a new final directive to Forest Service Manual
(FSM)2070 for native plant materials, which addresses the uses of these materials in the revegetation, restoration, and rehabilitation of National Forest System lands in order to achieve the Agency's goal of providing for the diversity of plant and animal communities. The policy directs collaboration with federal, state, and local government entities and the public to develop and implement actions to increase the availability of native plant materials for use in revegetation, restoration, and rehabilitation. Toward development of this policy, the goal of the Forest Service is to promote the use of native plant materials in revegetation for restoration and rehabilitation in order to manage and conserve terrestrial and aquatic biological diversity. This policy defines a native plant as: all indigenous terrestrial and aquatic plant species that evolved naturally in an ecosystem. This policy also requires the use of best available information to choose ecologically adapted plant materials for the site and situation. Moreover, the policy states that native plants are to be used when timely natural regeneration of the native plant community is not likely to occur; native plant materials are the first choice in revegetation for restoration and rehabilitation efforts. This policy does not discount the management use of non-native plant materials. Non-native, non-invasive plant species may be used when needed:
(1)In emergency conditions to protect basic resource values such as soil stability and water quality;
(2)As an interim, non-persistent measure designed to aid in new establishment of native plants (unless natural soil, water and biotic conditions have been permanently altered);
(3)In conditions and management situations where native plant species are not available; and
(4)When working in permanently altered plant communities. Under no circumstances will invasive plant species be used. Public Comments on Proposed Policy and Forest Service's Responses: Overview On May 26, 2006, the Forest Service published the proposed policy in the **Federal Register** and sought public comment in adopting a new policy on native plant materials into Forest Service Manual 2070 (71 FR 30375). During the 60-day comment period on the proposed policy which ended on July 26, 2006, the agency received one request for an extension of the comment period. On July 25, 2006 the Forest Service published the Notice of Extension of Public Comment Period in the **Federal Register** (71 FR 42079) and extended the comment period 30 days. During the 30-day extended comment period on the proposed policy which ended August 24, 2006, no requests for a further extension of the comment period were received. The Forest Service received 53 letters or electronic messages in response to this proposed policy. Each respondent was placed into one of the following categories: Business 10 Federal Agencies 2 State Agencies 4 Non-Governmental Organizations 16 Individuals (unaffiliated or unidentifiable) 21 Most respondents
(42)offered general comments supporting the proposed FSM 2070 Native Plant Material Policy. Nine respondents offered several comments not supporting the policy and two commenters were neutral. Many respondents offered specific comments about sections of the proposed policy. General Comments Many respondents expressed very supportive comments in favor of the use of native plants by the Forest Service in carrying out restoration, revegetation, and rehabilitation projects. The respondents who were not supportive of the proposed policy were concerned with the cost, availability, and equipment to put native plant seed and other native plant materials into the ground. FSM 2070 gives the decisionmaker wide latitude in determining when, where, and which native species to use. FSM 2070.3 allows cost and availability of native species to be a consideration when deciding not to use native plant materials. The feasability of sowing or planting native plant materials would be a consideration as well. Additionally, cost of personnel to manage and oversee this program was a concern as well. The Forest Service will be adding these duties to existing program management responsibilities. *Comment.* The preference of certain plant species ought not to be the foremost policy objective of the Forest Service pertaining to resource protection; the primary consideration should be, as it has been, the rapid and effective reestablishment of vegetation, using whatever species are most successful in doing so. *Response.* The Forest Service agrees that the timely reestablishment of vegetation to protect soil and water resource values is our part of our mission. It is important that reestablishment of vegetation does not itself cause a new problem, as may be the case with non-native species, and the FSM provides sufficient discretion to allow for non-native planting when natives are not available or appropriate. *Comment.* Many native plant species are not conducive to being mechanically spread, due to oddly shaped seeds and other factors. Many species are also characterized by long germination periods, rendering them of little utility for rapid site occupancy. *Response.* The final policy takes into account factors such as those identified by the commenter, and native and non-native plant material that cannot meet this direction will not be used. The final policy has not been changed from the proposal in this respect. *Comment.* We do not support the use of non-native, non-invasive plant materials regardless of the situation. It is well known that a non-native plant species may be present in an ecosystem for decades before it becomes invasive. *Response.* The Forest Service is very aware of the challenging issues surrounding the removal of invasive species and not letting invasive, non-native species become established. There will be instances when native plant materials are not available or their cost is prohibitive. The FSM provides the line officer with “limited” circumstances when non-native plant materials may be used. The final policy has not been changed from the proposal in this respect. The Forest Service, working with our partners, will continue to use the best available information when selecting non-native plant materials for restoration, revegetation and reehabilitation projects. *Comment* . Several commenters expressed the need for the Forest Service to work with adjacent landowners and with other governmental agencies to provide for effective invasive species control. It will do the Forest Service no good to restore an area to native plants, only to have it engulfed with invasive vegetation from adjoining land. *Response* . We agree that cooperation with adjacent landholders and all our partners and stakeholders will be essential to successful implementation of this policy. *Comment* . The proposed directive does not include any language about commercial uses of native plants. *Response* . FSM direction for the commercial harvest of special forest products is contained within FSM 2400. *Comment* . We would encourage adding a policy to include a segment on native plant materials in Forest Service outreach and education efforts, forest visitor centers and supporting interpretive materials and adding appropriate native plant materials curriculum to existing training courses for managers, planners and field staff. *Response* . We agree with the goal of public outreach, education efforts, etc. FSM 2070.2 objectives 1—6 contain specific direction to promote, inform, train, and educate our personel and to work with our partners in doing so. Many of these public outreach objectives are met through our various interpretive materials and programs that are created and delivered on the forest and grassland level, making it more specific to their local publics. A great deal of this type of information has already been placed on the Forest Service's Celebrating Wildflowers Web site ( *http://www.fs.fed.us/wildflowers* ) where a considerable amount of material on native plant materials has been posted. As it pertains to training, the Forest Service will incorporate aspects of this native plant materials policy into various exisiting training courses. FSM 2070.45(3) and FSM 2070.45(6) require Forest and Grassland Supervisors to ensure that this policy is implemented and that all pertinent and required training is carried out so as to implement this new policy on native plant materials. *Comment* . Several *Comment* ers want certain parts of the policy to list important partners such as state native plant societies, local universities, invasive/exotic plant pest species councils and others. *Response* . The Forest Service has a proud history of working with our partners, concerned citizens and other stakeholders. The Forest Service believes there is no need to list specific partners in order to carry out the policy to cooperate with partners. Moreover, it would be a long list, and even so would inevitably be incomplete. The agency will work closely with all interested parties in the implementation of this new policy. *Comment* . One *Comment* er stated, “if invasive plants are removed and the area replanted with native plants, the native plants do not survive. They are browsed by deer. Revegetation and rehabilitation cannot take place until the size of the deer herd is controlled. Deer herd management is the first priority.” *Response* . We agree in many of our national forests very large numbers of deer are having adverse effects on our native plants and native plant communities. The Forest Service has close working relationships with the state wildlife agencies. We are working with them to find long-term solutions to overly large deer populations. The Forest Service has undertaken short-term measures to protect native plants from deer such as fencing exclosures and use of protective netting over native plants. *Comment* . All the attention appears to focus on the ‘large flora’ species, and ignores the rhizosphere species of mycorrhiza, rhizobium and other soil beneficial bacteria and fungi. *Response* . We agree that micro flora and fauna contained in the soil are very important considerations in the choice and use of native plant materials. This policy addresses species classified as belonging to the Kingdom Plantae. Bacteria are classified as belonging to Kingdom Monera. Fungi are classified as belonging to the Kingdom Fungi. Therefore they are not addressed in this policy. *Comment* . The assumption seems to be that “plant species” or “vegetative material” pertains to vascular plants. *Response* . This policy addresses the use of native plant materials. The definition of native plant species does not exclude non-vascular plants. The policy addresses any species belonging to the Kingdom Plantae and as such includes both vascular and non-vascular plant species. *Comment* . There absolutely must be some standard reference list as to what is native and what is not. *Response* . The policy does not provide a standard list or reference because the determination of whether a plant species is native must be made on a local basis; a species may be native in one area of a state and not in another. The Forest Service did not receive any *Comment* s on sections 2070.11 Laws; section 2070.12 Regulations; and section 2070.13 Executive Orders. Sections 2070.2 Objectives and 2070.3 Policy received many *Comment* s that cut across both sections. Therefore, comments on those sections and the agency's responses are consolidated. *Comment* . One commenter was concerned with non-native plants that may be “exempted” due to the need to maintain historical integrity. What would happen if an invasive species like purple loosestrife had been planted there by a CCC crew. *Response* . This policy does not address the removal of noxious weeds or invasive species. Direction for noxious weeds is addressed in FSM 2080. The Forest Service is currently developing policy to address invasive species. *Comment* . One organization commented “that Policy points 2070.3(2) and 2070.3(3) appear to contradict each other. * * * believes differentiating between the intention of using persistent plant materials in Policy point 2070.3(2) and non-persistent plant materials in Policy point 2070.3(3) can eliminate this contradiction.” *Response* . In this final directive 2070.3(2), we have inserted the word “persistent” to make the meaning of the directive clearer. FSM2070.3(2) now reads: Restrict the use of **persistent** , (added emphasis) non-native, non-invasive plant materials to only those situations when timely reestablishment of a native plant community either through natural regeneration or with the use of native plant materials is not likely to occur. *Comment* . One organization stated “We feel it should be clearly stated in the policy that it is acceptable to utilize non-invasive, non-native plants for wildlife habitat improvement. Non-native non-invasive plants should be considered for use in a variety of situations including areas that have not been permanently or tempoarily altered. Some examples would be permanent and temporary wildlife openings, log landings, skid trails, temporary roads that have been closed and are used for linear wildlife openings.” A number of commenters took a similar position with respect to planting for wildlife habitat. *Response* . FSM 2070.2(4) states: “Promote the appropriate use and availability of native and appropriate non-native plant materials.” While the general policy is to give primary consideration to the use of native plant species, the policy is flexible and allows for the use of non-native, non-invasive plant species in certain types of situations. FSM 2070 gives the decision maker broad discretion in the use of both native and non-native non-invasive plant species. The Forest Service has a proud history of working with other state and federal agencies, Tribes, and other interested organizations including organizations with wildlife habitat improvement as one of their primary mission areas. Working with our partners we will look for opportunities to develop a readily available supply of native plant materials that may be used in place of non-native, non-invasive plant species and still meet habitat management goals. FSM 2070.3(2)(c) now reads: “In permanently highly altered plant communities, such as road cuts, permanent and temporary wildlife openings, log landings, skid trails, temporary roads that have been closed and are used for linear wildlife openings and sites dominated by non-native non-invasive species.” *Comment* . This direction fails to designate criteria or qualifications for staff delegated to decide what plants are suitable for use. *Response* . The agency believes that the direction does in fact establish qualifications for staff who will select plants to be used in revegetation, rehabilitation or restoration. The FSM provides for direction and statement of policy. FSM 2070.45 delegates to the Forest and Grassland Supervisors the responsibility for training personnel to become trained or certified. Local conditions will require specific training that addresses local needs. For example, each state will have different laws and regulations concerning the labeling of seed. *Comment* . One commenter believes that the addition of several words to the introductory sentence of section 2070.3 of FSM 2070 will lend greater clarity to the specific purpose of this document. Specifically he suggests that the bold, underlined words in the phrase below be added to the text: “Policies for the selection, use and storage of native and non-native plant materials *that are used in the revegetation, restoration and rehabilitation of National Forest system lands* are as follows. *Response* . The Forest Service agrees. FSM 2070.3 has been changed to read: Policies for selection, use and storage of native and non-native plant materials that are used in the revegetation, restoration and rehabilitation of National Forest System lands are as follows: (emphasis added) *Comment* . In FSM 2070.3(2)(c), we are not comfortable with the example where reestablishment of a native plant community is not likely to occur. It is true some roadsides and roadcuts have fill or exposure of soils or other features that make establishment of the surrounding native community unlikely, and sites that are predominately exotic weeds may make establishment of a diverse native community difficult. However, use of even limited native species in these areas would provide a buffer to the surrounding areas and reduce the threat of the spread of weedy species following natural disturbances. In this instance we would prefer to include a clarifying phrase, such as “where no suitable native species can be established.” *Response* . Nothing in FSM 2070 precludes the use of native species in any revegetation, restoration or rehabilitation project including roadcuts. There are many projects where the Forest Service has used native species in roadside projects. FSM 2070.3(1) states: Ensure native plant materials are given primary consideration. The purpose of giving examples of where non-native non-invasive species may be used was to provide the public and Forest Service personel with additional information. Other examples could include reclaimed mine spoils. However, the overarching consideration, especially for these type of projects, is contained in FSM 2070.2(2) which states: Maintain adequate protection for soil and water resources, through timely and effective revegetation of disturbed sites that could not be restored naturally. *Comment* . Several commenters wanted further restrictions on the use of native plant materials that are not representative of the local ecotypes as outlined in FSM 2070.3. *Response* . We have changed FSM 2070.3(1) to now read Ensure genetically appropriate (emphasis added) native plant materials are given primary consideration. *Comment* . One commenter wanted “emergency conditions” from FSM 2070.3(2)(a) defined. *Response* . The determinination of emergency conditions is best determined at the local level by the appropriate line officer, *i.e.* district ranger and forest or grassland supervisor. Further FSM 2070.3(3) directs that: Select non-native plants as interim, non-persistent plant materials provided they will not hybridize with local species, will not permanently displace native species or offer serious long-term competition to the recovery of endemic plants and are designed to aid in the re-establishment of native plant communities. *Comment* . FSM 2070.3(8) should address special forest products as well as timber. *Response* . FSM 2070.3(8) now reads in part, Specific direction for commercial timber species and special forest products is in FSM 2470. *Comment* . The directive does not include any mention of the cultural aspects of native plants or require the involvement of experts who would be able to inform sociocultural considerations. Under FSM 2070.4—Responsibilities: Language needs to be added to include social scientists in assessment and planning regarding the type of native plant species selected. *Response* . The direction does not provide for the resource skills necessary to carry out a project analysis. It is the responsibility of the Forest, Grassland Supervisor, or District Ranger to determine which personnel will be assigned to the inter-disciplinary team that conducts the project analysis. The only requirement this direction provides for a revegetation, restoration or rehabilitation project is found at FSM 2070.3(5) which states: Ensure that development, review and/or approval of revegetation, rehabilitation and restoration plans, including species selection, genetic heritage, growth stage and any needed site preparation, is done by a plant materials specialist who is knowledgeable and trained or certified in the plant community type where the revegetation will occur. Other resource specialists are assigned to an interdisciplinary team based upon scoping comments from the public and the various resources that need to be analyzed as part of the project analysis. If socio-cultural aspects of potential plant species chosen is an issue that needs to be addressed the appropriate line officer will ensure that the necessary expertise is available to analyze the issue. The Forest Service received a comment concerning section 2070.41 Chief. *Comment* . One commenter suggested that the Forest Service include the seed industry when promoting cooperation and coordination for the development and supply of native and non-native plant materials (FSM 2070.41.3 Responsibilities of the Chief). *Response* . The Forest Service agrees. FSM 2070.41.3 has been changed to incorporate the seed industry. FSM 2070.41.3 now reads: Promotes cooperation and coordination between federal agencies, state, tribal and local governments, the seed industry (emphasis added), the nursery industry, partners and the public for the development and supply of native and non-native plant materials. The Forest Service received no comments for section 2070.42 Deputy Chief for National Forest Systems. The Forest Service received no comments for section 2070.43 Regional Forester. The Forest Service received several comments concerning section 2070.45 Forest and Grassland Supervisors. *Comment* . Proposed FSM 2070.45 states that Forest and Grassland Supervisors may “delegate the authority, if necessary, to use genetically appropriate native and non-native plant materials in revegetation projects.” This direction fails to designate criteria or qualifications for staff delegated to decide what plants are suitable for use. *Response* . FSM 2070.4 lays out the delegation of authorities from the Chief down to the District Ranger. Only a line officer can make an agency decision and only a line officer may be delegated authority to make a decision. FSM 2070.45 is stating that a Forest or Grassland Supervisor may delegate the authority; in this case the delegation is to the District Ranger. Staff do not make decisions. *Comment* . One commenter stated that the Forest Service must provide sufficient training based on the best available science for plant material specialists. *Response* . The Forest Service agrees. The Forest Service will provide appropriate and necessary training to enable the agency to implement this new direction. The Forest Service received no comments for section 2070.46 District Ranger. The Forest Service received many comments concerning section 2070.5 Definitions. *Comment* . Many commenters believe the Forest Service definition of “native plant” is too restrictive. One commenter believes the selection of this material by the project manager can be better implemented by separating the definition of plants into three categories; local native plant material, non-local native plant material and introduced plant material. Many other comments were submitted concerning the definition of “native plant.” *Response* . The definition of native plant has been changed to the definition used by the federal interagency Plant Conservation Alliance. The definition now reads: A plant species which occurs naturally in a particular region, state, ecosystem and habitat without direct or indirect human actions. *Comment* . Several commenters wanted the definition of noxious weed changed. *Response.* The definition of noxious weed has been amended to provide further clarification. The definition now reads, A plant species designated as a noxious weed by the Secretary of Agriculture pursuant to the Plant Protection Act of 2000 or by the responsible State official. Noxious weeds generally possess one or more of the following characteristics: aggressive and difficult to manage, poisonous, toxic, parasitic, a carrier or host of serious insects or disease, and being non-native or new to or not common to the United States or parts thereof. *Comment* . A number of respondents offered comments asking for rewording of the definitions of several terms contained in FSM 2070.5. *Response.* The Forest Service disagrees in changing the definitions of terms except for the change of definition for “native plant” and “noxious weed” as noted above. The remaining definitions were examined, and based upon the use of these terms by the scientific community, the definitions remain unchanged. Section 2070.6 References received one comment. *Comment* . More references should be cited, but I have none to offer. *Response* . Realizing that providing a list of references invariably will result in omissions, the Agency has removed section 2070.6—References from the final policy. Therefore, for the reasons set out in this notice, the Forest Service is adopting as final an amendment to FSM 2070 to establish native plant material policy. The final directive is available at the addresses listed in the ADDRESSES section of this notice. Regulatory Certifications Regulatory Impact This final directive has been reviewed under USDA procedures and Executive Order 12866 (September 30, 1993) on regulatory planning and review. It has been determined that this is not a significant action. This final action to provide agency direction would not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This final action would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this final action would not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipient's program. Accordingly, this final action is not subject to Office of Management and Budget review under Executive Order 12866. Environmental Impact These final additions to Forest Service Manual
(FSM)2070 would address the use of native plant materials in revegetation, rehabilitation, and restoration projects; and when nonnative, noninvasive species may be used. Section 31.1b of Forest Service Handbook
(FSH)1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction.” The Agency's preliminary assessment is that this final action falls within this category of actions, and that no extraordinary circumstances exist as currently defined which would require preparation of an environmental impact statement or environmental assessment. A final determination will be made upon adoption of the final directive. Federalism The agency has considered this final directive under the requirements of Executive Order 13132 (August 4, 1999) on federalism. The agency has made an assessment that the final directive conforms with the federalism principles set out in this executive order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency concludes that the final directive does not have federalism implications. Consultation and Coordination With Indian Tribal Governments This final directive has been reviewed under Executive Order 13175 (November 6, 2000) on consultation and coordination with Indian tribal governments. This final directive does not have substantial direct effects on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Nor does this final directive impose substantial direct compliance costs on Indian tribal governments or preempt tribal law. Therefore, it has been determined that this final directive does not have tribal implications requiring advance consultation with Indian tribes. No Takings Implications This final directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630 (March 15, 1998) on governmental actions and interference with constitutionally protected property rights. It has been determined that the final directive does not pose the risk of a taking of constitutionally protected private property. Civil Justice Reform Act This final action has been reviewed under Executive Order 12988 (February 7, 1996) on civil justice reform. If this final directive were adopted:
(1)All State and local laws and regulations that are in conflict with this final directive or which would impede its full implementation would be preempted;
(2)no retroactive effect would be given to this final directive; and
(3)it would not require administrative proceedings before parties may file suit in court challenging its provisions. Energy Effects This final directive has been reviewed under Executive Order 13211 (May 18, 2001) on actions concerning regulations that significantly affect energy supply, distribution, or use. It has been determined that this final directive does not constitute a significant energy action as defined in the Executive Order. Controlling Paperwork Burdens on the Public This final directive does not contain any additional recordkeeping or reporting requirements associated with onshore oil and gas exploration and development or other information collection requirements as defined in Title 5 Code of Federal Regulations (CFR), part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) and its implementing regulations at 5 CFR part 1320 do not apply. Dated: February 7, 2008. Abigail R. Kimbell, Chief. [FR Doc. E8-2659 Filed 2-12-08; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 070104002-7796-02] Census Designated Place
(CDP)Program for the 2010 Census—Final Criteria AGENCY: Bureau of the Census, Commerce. ACTION: Notice of final criteria and program implementation. SUMMARY: This Notice announces the Bureau of the Census' (Census Bureau's) final criteria for defining census designated places
(CDPs)for the 2010 Census. CDPs 1 are statistical geographic entities representing closely settled, unincorporated communities that are locally recognized and identified by name. They are the statistical equivalents of incorporated places, with the primary differences being the lack of both a legally-defined boundary and an active, functioning governmental structure, chartered by the state and administered by elected officials. CDPs defined for the 2010 Census also will be used to tabulate American Community Survey, Puerto Rico Community Survey, Economic Census data after 2010, and potentially data from other Census Bureau censuses and surveys. 1 The term CDP includes comunidades and zonas urbanas in Puerto Rico. In addition to providing final criteria for CDPs, this Notice also contains a summary of comments received in response to proposed criteria published in the April 6, 2007, **Federal Register** (72 FR 17326), as well as the Census Bureau's response to those comments. DATES: This notice's final criteria will be effective on February 13, 2008. FOR FURTHER INFORMATION CONTACT: The Geographic Standards and Criteria Branch, Geography Division, U.S. Census Bureau, via e-mail at *geo.psap.list@census.gov* or telephone at 301-763-3056. SUPPLEMENTARY INFORMATION: I. Background The CDP concept and delineation criteria have evolved over the past five decades in response to data user needs for place-level data. This evolution has taken into account differences in the way in which places were perceived, and the propensity for places to incorporate in various states. The result, over time, has been an increase in the number and types of unincorporated communities identified as CDPs, as well as increasing consistency in the relationship between the CDP concept and the kinds of places encompassed by the incorporated place category, or a compromise between localized perceptions of place and a concept that would be familiar to data users throughout the United States, Puerto Rico, and the Island Areas. Although not as numerous as incorporated places or municipalities, 2 CDPs have been important geographic entities since their introduction for the 1950 Census. (CDPs were referred to as “unincorporated places” from 1950 through the 1970 decennial censuses.) For the 1950 Census, CDPs were defined only outside urbanized areas and were required to have at least 1,000 residents. For the 1960 Census, CDPs could also be identified inside urbanized areas outside of New England, but these were required to have at least 10,000 residents. The Census Bureau modified the population threshold within urbanized areas to 5,000 in 1970, allowed for CDPs in urbanized areas in New England in 1980, and lowered the urbanized area threshold again to 2,500 in 1990. In time, other population thresholds were adopted for identification of CDPs in Alaska, as well as in Puerto Rico, the Island Areas, and on American Indian reservations. The Census Bureau eliminated all population threshold requirements for Census 2000, achieving consistency between CDPs and incorporated places, for which the Census Bureau historically has published data without regard to population size. 2 Known by various terms throughout the United States: cities, towns (except in the six New England States, New York, and Wisconsin), villages, and boroughs (except in New York and Alaska). According to Census 2000, more than 35 million people in the United States, 3 Puerto Rico, and the Island Areas 4 lived in CDPs. The relative importance of CDPs varies from state-to-state depending on laws governing municipal incorporation and annexation, but also depending on local preferences and attitudes regarding the identification of places. 3 For Census Bureau purposes, the United States includes the fifty states and the District of Columbia. 4 For Census Bureau purposes, the Island Areas includes the U.S. Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam. There are no CDPs in American Samoa because villages cover its entire territory and population. II. Summary of Comments Received in Response to Proposed Criteria The April 6, 2007, **Federal Register** (72 FR 17326) notice requested comment on proposed criteria for CDPs. Specific proposed changes to the Census 2000 included: • Requiring each CDP to contain, at a minimum, some population or housing; • Eliminating the ability to delineate CDPs that were coextensive with governmental minor civil divisions
(MCDs)in the six New England States, Michigan, Minnesota, New Jersey, New York, Pennsylvania, and Wisconsin; • Eliminating the use of hyphenated names for CDPs, except in situations in which two or more communities have grown together and share a common identity. The Census Bureau received ten comments related to CDPs. Two commenters expressed general support for the proposed criteria. Two commenters (both from townships in New Jersey) opposed elimination of CDPs. It was unclear from their comments whether they mistook the Census Bureau's question regarding continued identification of census county divisions as applying to CDPs, or whether their comments were offered in response to a separate inquiry from a township in New Jersey to treat townships as places within the Census Bureau's geographic area hierarchy. Treatment of townships as places would result in the elimination of small CDPs defined to represent closely settled communities within townships. Due to the lack of information, the Census Bureau did not make any changes to the criteria. The Nevada State Demographers' office commented on the characterization of CDPs as unincorporated communities lacking legally described boundaries, noting that many CDPs in Nevada are designated as “special taxation areas” and as such have legally described boundaries. 5 Nevertheless, the Census Bureau notes that Nevada's CDPs are not incorporated as municipalities in the same sense as cities in that state, and therefore it is still appropriate to identify Nevada's special taxation areas as CDPs. The Census Bureau will attempt to provide greater detail in its documentation and geographic attributes describing the various kinds of communities identified as CDPs. 5 CDPs in Hawaii and zonas urbanas in Puerto Rico also have legally described boundaries. The Census Bureau received two comments related specifically to the proposal to reduce the number of instances in which places were combined to form a single CDP and related use of hyphenated names. Both commenters were from California, and each noted the negative impact this proposed criterion might have on the accurate depiction of unincorporated communities in California. Both agreed with the criterion in principle, but requested that the Census Bureau clarify when it is acceptable for multiple communities to be defined as a single CDP (for instance, when two communities have grown together to the extent that it is difficult to discern where one ends and the other begins) and when it is not. The example of Arden-Arcade, California, was cited, noting that the identities of these once separate places have become so intertwined that it is more common to hear them referred to together, rather than apart. The Census Bureau agrees with this comment and will clarify in both published criteria and program guidelines when it is acceptable for multiple communities to be defined as a single CDP. Multiple communities may only be combined to form a single CDP when the identities of these communities have become so intertwined that the communities are commonly perceived and referenced as a single place, or when there is no distinguishable or suitable feature in the landscape that can be used as a boundary between the communities. The Census Bureau received three comments related to the proposal to no longer allow CDPs in Connecticut, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin to be defined as coextensive with governmentally active MCDs. Each of the three commenters had extensive experience working with and analyzing statistical data for places, MCDs, and other census geographic areas. One of the commenters supported the proposal. Two of the commenters did not support the proposal, noting that CDPs that are coextensive with governmentally active MCDs represent a relatively small proportion of all CDPs and MCDs; therefore, the creation of coextensive, “whole-town” CDPs does not represent a substantial problem. Both commenters noted that since “place” is in general a rather nuanced concept, with different meanings to different people, the Census Bureau should not be overly restrictive in how it applies its CDP concept in areas of the United States, such as the Northeast and Midwest in which residents commonly perceive MCDs to be places in the same sense that residents of other parts of the country use the term “place.” They concluded that if the goal of the proposal was to eliminate redundancy in place-based data tables for these 12 states, then that goal could be accomplished within the data tabulation program without requiring modifications to geographic area criteria. The Census Bureau agrees that the elimination of redundant data should be accomplished through changes in the way in which place-level data tables are prepared rather than through changes to the CDP criteria. Therefore, the Census Bureau will review the way in which it presents data for places and MCDs in the states listed above, and seek to eliminate redundancy in place-level data tables through changes in data tabulation policy and procedures. Changes to the Criteria From the Proposed Rule The changes made to the final criteria (from the proposed criteria) in “Section II, Census Designated Place Criteria and Characteristics for the 2010 Census,” are as follows: 1. Section II, “Census Designated Place Criteria and Characteristics for the 2010 Census,” in the introductory paragraph to this section, removed the reference to American Indian reservations and off-reservation trust lands in the first sentence because these areas are, by definition, within the United States. 2. Section II, “Census Designated Place Criteria and Characteristics for the 2010 Census,” added a second paragraph to subsection 1, in response to comments received to clarify the circumstances under which it would be appropriate to combine multiple places to form a single CDP with a hyphenated name. This paragraph provides specific examples of CDPs that encompass multiple communities and are appropriately identified with a hyphenated name. We also have provided several questions for program participants to consider when determining whether to combine multiple communities as a single CDP and how to identify the CDP by name. 3. Section II, “Census Designated Place Criteria and Characteristics for the 2010 Census,” subsection 4. The Census Bureau deleted the criterion in subsection 4 of the proposed criteria, stating that a CDP may not be coextensive with governmentally functioning MCDs in the 12 “strong-MCD” states: Connecticut, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin. The goal of this proposal was to eliminate redundancy in selected place-level data tables for these states, in which data appear for both the MCD and the coextensive CDP of the same name (for example, Framingham, Massachusetts MCD and Framingham CDP). While this practice occasionally creates confusion on the part of some data users, the number of CDPs that are coextensive with governmentally active MCDs represents a relatively small proportion of all CDPs and MCDs in these states. Further, the concept of “place” is nuanced and varies to some extent from one part of the country to another, and there are instances in which residents of an MCD identify it as a place, in the same sense as places are recognized throughout the country. Rather than adopt a restrictive criterion applicable to only a subset of states, we agreed with the commenters and concluded that the elimination of redundant data could be accomplished through changes in the way in which place-level data tables are prepared rather than through changes to the CDP criteria. III. Census Designated Place Criteria and Characteristics for the 2010 Census The criteria contained herein apply to the United States, Puerto Rico, and the Island Areas. In accordance with the final criteria, the Census Bureau may modify and, if necessary, reject any proposals for CDPs that do not meet the established criteria. In addition, the Census Bureau reserves the right to modify the boundaries and attributes of CDPs as needed to maintain geographic relationships before the final tabulation geography is set for the 2010 Census. The Census Bureau will use the following criteria and characteristics to identify the areas that will qualify for designation as CDPs for use in tabulating data from the 2010 Census, the American Community Survey, the Puerto Rico Community Survey, the Economic Census, and potentially other Census Bureau censuses and surveys. 1. A CDP constitutes a single, closely settled center of population that is named. To the extent possible, individual unincorporated communities should be identified as separate CDPs. Similarly, a single community should be defined as a single CDP rather than multiple CDPs with each part referencing the community name and a directional term (i.e., north, south, east, or west). Since a CDP is defined to provide data for a single named locality, the Census Bureau does not encourage CDPs that comprise a combination of places or identified by hyphenated names. For example, CDPs such as Poplar-Cotton Center and Downieville-Lawson-Dumont are no longer acceptable. Communities were often combined as a single CDP in order to comply with the Census Bureau's minimum population requirements. The Census Bureau's elimination of population threshold criteria has made such combinations unnecessary. Other communities were combined because visible features were not available for use as boundaries for separate CDPs. The Census Bureau's new policy to allow the use of some nonvisible boundaries so that participants can separate individual communities has dispensed with the need to have multi-place CDPs. Multiple communities may only be combined to form a single CDP when the identities of these communities have become so intertwined that the communities are commonly perceived and referenced as a single place. For example, the communities of Arden and Arcade in California have grown together over time and residents commonly use the place name Arden-Arcade. Further, because of the intertwined identity, residents would have difficulty identifying a boundary between the separate, historical communities of Arden and Arcade. Multiple communities also may be defined as a single CDP when there is no distinguishable or suitable feature in the landscape that can be used as a boundary between the communities, even if the two communities still have separate identities. For example, the CDP of Ashton-Sandy Spring in Maryland encompasses two communities that still maintain separate identities in common, daily usage. The two communities, however, have grown together to such an extent that a clear break between the two communities is no longer identifiable in the landscape. In general, when considering whether to combine multiple communities as a single CDP, the following questions should be taken into account: Do residents commonly perceive and refer to the communities as a single entity? Are there landscape elements, such as signs, that use a hyphenated name for the community? Can residents or other knowledgeable individuals identify clear, commonly accepted boundaries for the individual communities? 2. A CDP generally consists of a contiguous cluster of census blocks comprising a single piece of territory and containing a mix of residential and commercial uses similar to that of an incorporated place of similar size. Some CDPs, however, may be predominantly residential; such places should represent recognizably distinct, locally known communities, but not typical suburban subdivisions. Examples of such predominantly residential communities that can be recognized as CDPs are colonias found along the United States-Mexico border, small rural communities, and unincorporated resort and retirement communities. 3. A CDP may not be located, either partially or entirely, within an incorporated place or another CDP. 4. A CDP may be located in more than one county but must not cross state boundaries. It is important to note, however, that since county boundaries provide important demarcations for communities, CDPs that cross county lines should be kept to a minimum and identified only when the community clearly sees itself existing on both sides of a county boundary. 5. There are no minimum population or housing unit thresholds for defining CDPs; however, a CDP must contain some population or housing units or both. The Census Bureau recognizes that some communities, such as a resort or other kinds of seasonal communities, may lack population at certain times of the year. Nevertheless, there should be some evidence, generally in the form of houses, barracks, dormitories, commercial buildings and/or other structures, providing the basis for local perception of the place's existence. For the 2010 Census, the Census Bureau will not accept a CDP delineated with zero population and zero housing units. The Census Bureau will review the number of housing units within the place, as reported in the previous decennial census, and consider whether additional information is needed before recognizing the CDP. Participants submitting boundaries for places with less than ten housing units may be asked to provide additional information attesting to the existence of the CDP. 6. CDP boundaries should follow visible features, except in those circumstances when a CDP's boundary is coincident with the nonvisible boundary of a state, county, MCD (in the six New England states, Michigan, Minnesota, New Jersey, New York, Pennsylvania, and Wisconsin), or incorporated place. CDP boundaries may follow other nonvisible features in instances where reliance upon visible features will result in overbounding of the CDP in order to include housing units on both sides of a road or street feature. Such boundaries might include parcel boundaries and public land survey system lines; fence lines; national, state, or local park boundaries; ridgelines; or drainage ditches. 7. The CDP name should be one that is recognized and used in daily communication by the residents of the community. Because unincorporated communities generally lack legally defined boundaries, a commonly used community name and the geographic extent of its use by local residents is often the best identifier of the extent of a place, the assumption being that if residents associate with a particular name and use it to identify the place in which they live, then the CDP's boundaries can be mapped based on the use of the name. There should be features in the landscape that use the name, such that a non-resident would have a general sense of the location or extent of the community; for example, signs indicating when one is entering the community; highway exit signs that use the name; or businesses, schools, or other buildings that make use of the name. It should not be a name developed solely for planning or other purposes (including simply to obtain data from the Census Bureau) that is not in regular daily use by the local residents and business establishments. 8. A CDP may not have the same name as an adjacent or nearby incorporated place. If the community does not have a name that distinguishes it from other nearby communities, then the community is not a distinct place. The use of directional terms (“north,” “south,” “east,” “west,” and so forth) to differentiate the name of a CDP from a nearby municipality where this name is not in local use is not acceptable. For example, the name “North Laurel” would be permitted if this name were in local use. The name “Laurel North” would not be permitted if it were not in local use. Again, this has much to do with the way in which people typically refer to the places in which they live. It is permissible to change the name of a 2000 CDP for the 2010 Census if the new name provides a better identification of the community. IV. Definitions of Key Terms *Alaska Native regional corporation (ANRC)* —A corporate geographic area established under the Alaska Native Claims Settlement Act (Public Law 92-203) to conduct both the business and nonprofit affairs of Alaska Natives. Twelve ANRCs cover the state of Alaska, except for the Annette Island Reserve. *American Indian reservation (AIR)* —A federally recognized American Indian land area with boundaries established by final treaty, statute, executive order, and/or court order, and over which a federally recognized American Indian tribal government has governmental authority. Along with reservations, designations such as colonies, communities, pueblos, rancherias, and reserves apply to AIRs. *Census block* —A geographic area bounded by visible and/or invisible features shown on a map prepared by the Census Bureau. A block is the smallest geographic entity for which the Census Bureau tabulates decennial census data. *Coextensive* —Descriptive of two or more geographic entities that cover exactly the same area, with all boundaries shared. *Comunidad* —A census designated place in Puerto Rico that is not related to a municipio's seat of government, called an aldea or a ciudad prior to the 1990 Census. *Contiguous* —Descriptive of geographic areas that are adjacent to one another, sharing either a common boundary or point of contact. *Housing unit* —A house, an apartment, a mobile home or trailer, or a group of rooms or a single room occupied as a separate living quarter or, if vacant, intended for occupancy as a separate living quarter. Separate living quarters are those in which the occupants live and eat separately from any other residents of the building and which have direct access from outside the building or through a common hall. *Incorporated place* —A type of governmental unit established to provide governmental services for a concentration of people within legally prescribed boundaries, incorporated under state law as a city, town (except in New England, New York, and Wisconsin), borough (except in Alaska and New York), village, or other description. *Island areas* —An entity, other than a state or the District of Columbia, under the jurisdiction of the United States. For the 2010 Census, these will include American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, and several small islands in the Caribbean Sea and the Pacific Ocean. The Census Bureau treats each Island Territory as the statistical equivalent of a state. *Minor civil division* —The primary governmental or administrative division of a county in 28 states, Puerto Rico, and the Island Areas having legal boundaries, names, and descriptions. MCDs represent many different types of legal entities with a wide variety of characteristics, powers, and functions depending on the state and type of MCD. In some states, some or all of the incorporated places also constitute MCDs. *Municipio* —A type of governmental unit that is the primary legal subdivision of Puerto Rico. The Census Bureau treats the municipio as the statistical equivalent of a county. *Nonvisible feature* —A map feature that is not visible, such as a city or county boundary, a property line running through space, a short imaginary extension of a street or road, or a point-to-point line. *Statistical geographic entity* —A geographic entity that is specially defined and delineated, such as block group, CDP, or census tract, so that the Census Bureau may tabulate data for it. Designation as a statistical entity neither conveys nor confers legal ownership, entitlement, or jurisdictional authority. *Urbanized area (UA)* —An area consisting of a central place(s) and adjacent urban fringe that together have a minimum residential population of at least 50,000 people and generally an overall population density of at least 1,000 people per square mile. The Census Bureau uses published criteria to determine the qualification and boundaries of UAs at the time of each decennial census or from the results of a special census during the intercensal period. *Visible feature* —A map feature that can be seen on the ground, such as a road, railroad track, major above-ground transmission line or pipeline, stream, shoreline, fence, sharply defined mountain ridge, or cliff. A nonstandard visible feature is a feature that may not be clearly defined on the ground (such as a ridge), may be seasonal (such as an intermittent stream), or may be relatively impermanent (such as a fence). The Census Bureau generally requests verification that nonstandard features pose no problem in their location during field work. *Zona urbana* —In Puerto Rico, the settled area functioning as the seat of government for a municipio. A zona urbana cannot cross a municipio boundary. Executive Order 12866 This notice has been determined to be not significant under Executive Order 12866. Paperwork Reduction Act This program notice does not represent a collection of information subject to the requirements of the Paperwork Reduction Act, 44 U.S.C., Chapter 35. Dated: February 8, 2008. Steve H. Murdock, Director, Bureau of the Census. [FR Doc. E8-2667 Filed 2-12-08; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-890] Wooden Bedroom Furniture From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Results of New Shipper Review and Partial Rescission of Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to requests from interested parties, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on wooden bedroom furniture from the People's Republic of China (“PRC”). The period of review (“POR”) for this administrative review is January 1, 2006, through December 31, 2006. This administrative review covers multiple producers/exporters of the subject merchandise, three of which are being individually investigated as mandatory respondents. The Department is also conducting a new shipper review for an exporter/producer. The POR for the new shipper review is also January 1, 2006, through December 31, 2006. We preliminarily determine that all three mandatory respondents in the administrative review made sales in the United States at prices below normal value (“NV”). With respect to the remaining respondents in the administrative review (herein after collectively referred to as the Separate-Rate Applicants), we preliminarily determine that 30 entities have provided sufficient evidence that they are separate from the state-controlled entity, and we have established a weighted-average margin based on the rates we have calculated for the three mandatory respondents, excluding any rates that are zero, *de minimis* , or based entirely on adverse facts available, to be applied to these separate rate entities. In addition, we have determined to rescind the review with respect to three entities in this administrative review. See “Partial Rescission” section below. Further, we preliminarily determine that the remaining separate-rate applicants have not demonstrated that they are entitled to a separate rate, and will thus be considered part of the PRC entity. Finally, we preliminarily determine that the new shipper made sales in the United States at prices below normal value. If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the POR for which the importer-specific assessment rates are above *de minimis* . We invite interested parties to comment on these preliminary results. Parties who submit comments are requested to submit with each argument a statement of the issue and a brief summary of the argument. We intend to issue the final results of this review no later than 120 days from the date of publication of this notice. EFFECTIVE DATE: February 13, 2008. FOR FURTHER INFORMATION CONTACT: Paul Stolz or Hua Lu, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202)482-4474 and
(202)482-6478, respectively. Background On January 4, 2005, the Department published in the **Federal Register** the antidumping duty order on wooden bedroom furniture from the PRC. *See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People's Republic of China,* 70 FR 329 (January 4, 2005). On January 3, 2007, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on wooden bedroom furniture from the PRC for the period January 1, 2006, through December 31, 2006. *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation: Opportunity to Request Administrative Review,* 72 FR 99 (January 3, 2007). On March 7, 2007, the Department initiated the second administrative review of the antidumping duty order on wooden bedroom furniture from the PRC. *See Notice of Initiation of Administrative Review of the Antidumping Duty Order on Wooden Bedroom Furniture from the People's Republic of China,* 72 FR 10159 (March 7, 2007) (“ *Initiation Notice* ”). Additionally, on March 7, 2007, the Department initiated new shipper reviews of the order with respect to the following two companies: Golden Well International (HK), Ltd. (“Golden Well”) and its supplier Zhangzhou XYM Furniture Product Co., Ltd. and Mei Jia Ju Furniture Industrial (Shenzhen) Co., Ltd. (“Mei Jia Ju”). * See Notice of Initiation of New Shipper Reviews on Wooden Bedroom Furniture from the People's Republic of China, * 72 FR 10158 (March 7, 2007) (“ *New Shipper Initiation Notice* ”). Further, on May 30, 2007, the Department added one company to the administrative review which was inadvertently omitted from the *Initiation Notice.* *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part,* 72 FR 29968 (May 30, 2007). Between March 7 and March 14, 2007, the Department issued quantity and value (“Q&V”) questionnaires, separate-rate certifications, and separate-rate applications to the 197 named firms for which the Department initiated an administrative review. Between March 21 and May 7, 2007, the Department received separate-rate certifications from 124 entities, separate-rate applications from 25 entities, and Q&V questionnaire responses from 183 entities. On April 5, 2007, Petitioners 1 requested that the Department determine whether antidumping duties have been absorbed by certain exporters or producers. Also, on April 5, 2007, Petitioners submitted comments with respect to respondent selection. On April 20, 2007, Shing Mark Enterprises Co. Ltd., Carven Industries Limited (VI), Carven Industries Limited (HK), Dongguan Zhenxin Furniture Co., Ltd. And Dongguan Yongpeng Furniture Co., Ltd. (collectively, “Shing Mark”) submitted comments with respect to respondent selection. 1 The Petitioners in this case are the American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company. Because of the large number of companies subject to this review, on June 20, 2007, the Department issued its respondent-selection memorandum, selecting the following three companies as mandatory respondents in this administrative review:
(1)Shanghai Starcorp Furniture Co., Ltd., Starcorp Furniture (Shanghai) Co., Ltd., Orin Furniture (Shanghai) Co., Ltd., Shanghai Star Furniture Co., Ltd., and Shanghai Xing Ding Furniture Industrial Co., Ltd. (collectively, “Starcorp”);
(2)Jiangsu Dare Furniture Co., Ltd., Fujian Lianfu Forestry Co, Ltd. aka Fujian Wonder Pacific Inc., and Fuzhou Huan Mei Furniture Co., Ltd. (collectively “Dare Group”); and
(3)Teamway Furniture (Dong Guan) Co. Ltd., and Brittomart Inc. (collectively “Teamway”). *See Antidumping Duty Administrative Review of Wooden Bedroom Furniture from the People's Republic of China: Selection of Respondents,* dated June 20, 2007. On June 21, 2007, the Department issued its questionnaire to the Dare Group, Starcorp and Teamway. On August 20, 2007, Starcorp withdrew its request for the Department to conduct the second administrative review and its participation in this review. On August 31, 2007, Petitioners requested that the Department conduct verification of the Dare Group and Teamway. Between March 7 and June 6, 2007, several parties withdrew their requests for administrative review. On August 2, 2007, the Department published a notice rescinding the review with respect to the entities for whom all review requests had been withdrawn. *See Notice of Partial Rescission of the Antidumping Duty Administrative Review on Wooden Bedroom Furniture from the People's Republic of China,* 72 FR 42396 (August 2, 2007). On May 29, 2007, Golden Well withdrew its request for a new shipper review. *See Notice of Partial Rescission of New Shipper Review on Wooden Bedroom Furniture from the People's Republic of China,* 72 FR 50933 (September 5, 2007). On August 20, 2007, Leefu Wood (Dongguan) Co., Ltd. (“Leefu”) and King Rich International Ltd. (“King Rich”) sent a letter to the Department informing us that one of Leefu's shareholders had set up two companies which will export subject merchandise in the future and that all of Leefu's subject merchandise will be exported through King Rich, Unique Furniture Co., Ltd. (“Unique Furniture”) and Classic Furniture Co., Ltd. (“Classic Furniture”). None of the aforementioned firms, ( *i.e.* , Unique Furniture, Classic Furniture, Leefu or King Rich) are being reviewed in this proceeding. On September 5, 2007, Petitioners responded to Leefu and King Rich's letter, stating that while Leefu and King Rich collectively have a separate-rate from the investigation, neither Unique Furniture nor Classic Furniture has been granted separate rate status, and therefore, entries should receive the cash deposit rate of 216.01 percent. Additionally, Petitioners state that the proper venue to address a change in legal structure would be the next review period. Consistent with our normal practice, we find the proper place to address Leefu's change in ownership would be either a changed circumstances review or within the context of an administrative review. *See Wooden Bedroom Furniture from the People's Republic of China: Final Results of Antidumping Duty Changed Circumstances Review,* 72 FR 60812 (October 26, 2007). Because neither Leefu or King Rich are part of the current administrative review, we will not address whether Unique Furniture or Classic Furniture are part of the Leefu and King Rich group of companies. On August 27, 2007, pursuant to 19 CFR 351.214(j)(3), Mei Jia Ju agreed to waive the time limits applicable to the new shipper review and to allow for the conduct of its new shipper review concurrently with the administrative review. *See* Memorandum to the file, *Wooden Bedroom Furniture from the People's Republic of China—Alignment of the 1/1/06-12/31/06 Annual Administrative and New Shipper Review,* dated August 27, 2007. On September 28, 2007, Petitioners withdrew their review request of Zhangjiagang Zhen Yan Decoration Co. Ltd. (“Zheng Yan”) (see the “Partial Rescission” section of this notice, below). On October 5, 2007, the Department issued a letter to interested parties seeking comments on surrogate country selection and surrogate values. On October 19, 2007, Petitioners, Teamway, and American Signature, Inc. (“ASI”) submitted comments regarding the selection of a surrogate country. Additionally, on October 29 and November 8, 19, and 29, 2007, Petitioners and ASI submitted rebuttal surrogate country comments. Also, on November 8, 2007, Teamway and Petitioners submitted surrogate value information. On October 1, 2007, we extended the deadline for the issuance of the preliminary results of the administrative review and new shipper review until January 31, 2008. *See Wooden Bedroom Furniture from the People's Republic of China: Extension of Time Limits for the Preliminary Results of the Antidumping Duty Administrative Review and New Shipper Reviews,* 72 FR 57913 (October 11, 2007). Between November 8 and November 29, 2007, ASI, Teamway and Petitioners submitted surrogate value information and comments regarding selection of surrogate values. On November 19, 2007, Petitioners made submissions to the Department in which they argued that ASI, a U.S. importer of subject merchandise, does not have a stake in the outcome of this segment of the proceeding and, therefore, the Department should reject ASI's submissions concerning surrogate country selection and surrogate values. Moreover, Petitioners argued that the Department should deny ASI's representatives' access to business proprietary information under administrative protective order (“APO”). 2 2 *See also* Petitioner's January 14, 2008, submission. On November 21, 2007, ASI submitted a rebuttal to Petitioners’ comments. ASI argued that Petitioners' standing in this review could be challenged on the basis that Petitioners did not submit supporting documentation establishing that they produced subject merchandise during the POR. Moreover, ASI contended that Petitioners have not submitted any documentation supporting their arguments with respect to ASI's standing. Pursuant to the Act, ASI, as an importer of subject merchandise, is an interested party to the proceeding. *See* Section 771(9)(A) of the Tariff Act of 1930, as amended (“the Act”) which defines an interested party as “a foreign manufacturer, producer, or exporter, or the United States importer, of subject merchandise * * *.” Additionally, the Act does not further detail any specifications, conditions, or restrictions with respect to the eligibility of an importer of subject merchandise in terms of its designation as an interested party or its rights thereas. As Petitioners point out in their November 20, 2007, submission at 3-4, on July 26, 2007, ASI submitted a CBP form ( *i.e.* , CF 7501 Entry Summary), confirming that ASI imported subject merchandise during the POR. Thus, we find that ASI is an interested party that is eligible to make submissions on the record of this review and whose representative is eligible to receive business proprietary information under APO as long as it meets the APO eligibility requirements. Company-Specific Chronology As described above, the Department issued its antidumping questionnaire to the three mandatory respondents. Upon receipt of the various responses, the Petitioners provided comments and the Department issued supplemental questionnaires. Because the chronology of this stage of the administrative review is extensive and varies by respondent, the Department has separated this portion of the background section by company. Dare Group On June 21, 2007, the Department issued its antidumping questionnaire to the Dare Group. The Dare Group submitted its response to section A of the Department's questionnaire on July 26, 2007, and submitted its responses to sections C and D of the Department's questionnaire on August 20, 2007. The Department issued supplemental questionnaires with respect to sections A and C to the Dare Group on November 7, 2007. The Department issued a supplemental questionnaire with respect to section D to the Dare Group on November 9, 2007. The Dare Group submitted its response to the sections A and C supplemental questionnaire on December 5, 2007, and to the section D supplemental questionnaire on December 14, 2007. Teamway On June 21, 2007, the Department issued its antidumping questionnaire to Teamway. On July 31, 2007, Teamway submitted its response to section A of the Department's questionnaire. On August 21 and August 23, 2007, Teamway submitted its response to sections C and D of the Department's questionnaire. The Department issued a supplemental questionnaire with respect to sections A, C, and D to Teamway on November 1, 2007, to which Teamway responded on December 4, 2007. On November 8, 2007, Teamway submitted surrogate value information. The Department issued a supplemental factors-of-production (“FOP”) questionnaire to Teamway on November 3, 2007, and received a response on November 26, 2007. On January 2 and January 4, 2008, Teamway submitted revised databases with the FOP information. Mei Jia Ju and Starcorp For a complete discussion of Mei Jia Ju's and Starcorp's company-specific chronologies, see the “Facts Available” section of this notice, below. Period of Review The POR is January 1, 2006, through December 31, 2006. Scope of the Order The product covered by the order is wooden bedroom furniture. Wooden bedroom furniture is generally, but not exclusively, designed, manufactured, and offered for sale in coordinated groups, or bedrooms, in which all of the individual pieces are of approximately the same style and approximately the same material and/or finish. The subject merchandise is made substantially of wood products, including both solid wood and also engineered wood products made from wood particles, fibers, or other wooden materials such as plywood, oriented strand board, particle board, and fiberboard, with or without wood veneers, wood overlays, or laminates, with or without non-wood components or trim such as metal, marble, leather, glass, plastic, or other resins, and whether or not assembled, completed, or finished. The subject merchandise includes the following items:
(1)Wooden beds such as loft beds, bunk beds, and other beds;
(2)wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds;
(3)night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets;
(4)dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser;
(5)chests-on-chests, 3 highboys, 4 lowboys, 5 chests of drawers, 6 chests, 7 door chests, 8 chiffoniers, 9 hutches, 10 and armoires; 11
(6)desks, computer stands, filing cabinets, bookcases, or writing tables that are attached to or incorporated in the subject merchandise; and
(7)other bedroom furniture consistent with the above list. 3 A chest-on-chest is typically a tall chest-of-drawers in two or more sections (or appearing to be in two or more sections), with one or two sections mounted (or appearing to be mounted) on a slightly larger chest; also known as a tallboy. 4 A highboy is typically a tall chest of drawers usually composed of a base and a top section with drawers, and supported on four legs or a small chest (often 15 inches or more in height). 5 A lowboy is typically a short chest of drawers, not more than four feet high, normally set on short legs. 6 A chest of drawers is typically a case containing drawers for storing clothing. 7 A chest is typically a case piece taller than it is wide featuring a series of drawers and with or without one or more doors for storing clothing. The piece can either include drawers or be designed as a large box incorporating a lid. 8 A door chest is typically a chest with hinged doors to store clothing, whether or not containing drawers. The piece may also include shelves for televisions and other entertainment electronics. 9 A chiffonier is typically a tall and narrow chest of drawers normally used for storing undergarments and lingerie, often with mirror(s) attached. 10 A hutch is typically an open case of furniture with shelves that typically sits on another piece of furniture and provides storage for clothes. 11 An armoire is typically a tall cabinet or wardrobe (typically 50 inches or taller), with doors, and with one or more drawers (either exterior below or above the doors or interior behind the doors), shelves, and/or garment rods or other apparatus for storing clothes. Bedroom armoires may also be used to hold television receivers and/or other audio-visual entertainment systems. The scope of the order excludes the following items:
(1)Seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture;
(2)mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames;
(3)office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases;
(4)dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches;
(5)other non-bedroom furniture, such as television cabinets, cocktail tables, end tables, occasional tables, wall systems, book cases, and entertainment systems;
(6)bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan;
(7)side rails for beds made of metal if sold separately from the headboard and footboard;
(8)bedroom furniture in which bentwood parts predominate; 12
(9)jewelry armoires; 13
(10)cheval mirrors; 14
(11)certain metal parts; 15
(12)mirrors that do not attach to, incorporate in, sit on, or hang over a dresser if they are not designed and marketed to be sold in conjunction with a dresser as part of a dresser-mirror set; and
(13)upholstered beds. 16 12 As used herein, bentwood means solid wood made pliable. Bentwood is wood that is brought to a curved shape by bending it while made pliable with moist heat or other agency and then set by cooling or drying. See Customs' Headquarters' Ruling Letter 043859, dated May 17, 1976. 13 Any armoire, cabinet or other accent item for the purpose of storing jewelry, not to exceed 24″ in width, 18″ in depth, and 49″ in height, including a minimum of 5 lined drawers lined with felt or felt-like material, at least one side door (whether or not the door is lined with felt or felt-like material), with necklace hangers, and a flip-top lid with inset mirror. *See* Issues and Decision Memorandum from Laurel LaCivita to Laurie Parkhill, Office Director, Concerning Jewelry Armoires and Cheval Mirrors in the Antidumping Duty Investigation of Wooden Bedroom Furniture from the People's Republic of China, dated August 31, 2004. *See also Wooden Bedroom Furniture from the People's Republic of China: Notice of Final Results of Changed Circumstances Review and Revocation in Part,* 71 FR 38621 (July 7, 2006). 14 Cheval mirrors are any framed, tiltable mirror with a height in excess of 50″ that is mounted on a floor-standing, hinged base. Additionally, the scope of the order excludes combination cheval mirror/jewelry cabinets. The excluded merchandise is an integrated piece consisting of a cheval mirror, *i.e.* , a framed tiltable mirror with a height in excess of 50 inches, mounted on a floor-standing, hinged base, the cheval mirror serving as a door to a cabinet back that is integral to the structure of the mirror and which constitutes a jewelry cabinet lined with fabric, having necklace and bracelet hooks, mountings for rings and shelves, with or without a working lock and key to secure the contents of the jewelry cabinet back to the cheval mirror, and no drawers anywhere on the integrated piece. The fully assembled piece must be at least 50 inches in height, 14.5 inches in width, and 3 inches in depth. *See Wooden Bedroom Furniture From the People's Republic of China: Final Results of Changed Circumstances Review and Determination To Revoke Order in Part,* 72 FR 948 (January 9, 2007). 15 Metal furniture parts and unfinished furniture parts made of wood products (as defined above) that are not otherwise specifically named in this scope ( *i.e.* , wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds) and that do not possess the essential character of wooden bedroom furniture in an unassembled, incomplete, or unfinished form. Such parts are usually classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 9403.90.7000. 16 Upholstered beds that are completely upholstered, *i.e.* , containing filling material and completely covered in sewn genuine leather, synthetic leather, or natural or synthetic decorative fabric. To be excluded, the entire bed (headboards, footboards, and side rails) must be upholstered except for bed feet, which may be of wood, metal, or any other material and which are no more than nine inches in height from the floor. *See Wooden Bedroom Furniture from the People's Republic of China: Final Results of Changed Circumstances Review and Determination to Revoke Order in Part,* 72 FR 7013 (February 14, 2007). Imports of subject merchandise are classified under subheading 9403.50.9040 of the HTSUS as “wooden * * * beds” and under subheading 9403.50.9080 of the HTSUS as “other * * * wooden furniture of a kind used in the bedroom.” In addition, wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds may also be entered under subheading 9403.50.9040 of the HTSUS as “parts of wood” and framed glass mirrors may also be entered under subheading 7009.92.5000 of the HTSUS as “glass mirrors * * * framed.” This order covers all wooden bedroom furniture meeting the above description, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive. Partial Rescission of Administrative Review On September 28, 2007, Petitioners withdrew their administrative review request with respect to Zheng Yan. Petitioners stated that although the regulatory deadline for withdrawal of requests for review had passed, the Department could still exercise its discretion to extend the time for accepting for withdrawal and therefore could rescind the review for Zheng Yan. We have determined to grant Petitioners' withdrawal of its request to review Zheng Yan. Although Petitioners submitted their withdrawal request after the 90-day regulatory deadline at 19 CFR 351.213(d)(1), the Department had already completed its selection of mandatory respondents and Zheng Yan was not selected as a mandatory respondent in this administrative review. Therefore, the Department's selection process of the mandatory respondents for this administrative review was not compromised by Petitioners' late withdrawal request. Furthermore, the Department had not expended significant resources as of the date of Petitioners' withdrawal request. Therefore, the Department is extending the time for accepting requests for withdrawal and is partially rescinding the administrative review with respect to Zheng Yan. Further, the Department is partially rescinding this review with respect to Winny Universal, Ltd. and Zhongshan Winny Furniture Ltd. In Winny Overseas Ltd.'s separate-rate application, it stated that neither Winny Universal, Ltd. nor Zhongshan Winny Furniture Ltd. had exports of subject merchandise during the POR. *See* Winny Overseas Ltd. Separate Rate Application, dated April 5, 2007. Our review of the CBP import data did not reveal any contradictory information. Duty Absorption On April 5, 2007, Petitioners requested that the Department determine whether the mandatory respondents and separate-rate respondents had absorbed antidumping duties for U.S. sales of wooden bedroom furniture made during the POR. Section 751(a)(4) of the Act provides for the Department, if requested, to determine during an administrative review initiated two or four years after publication of the order, whether antidumping duties have been absorbed by a foreign producer or exporter, if the subject merchandise is sold in the United States through an affiliated importer. Pursuant to section 777A(f)(2)(B) of the Act, we selected three exporters ( *i.e.* , the Dare Group, Starcorp, and Teamway) as mandatory respondents in this administrative review. Both the Dare Group and Teamway only sold subject merchandise as export price sales. Because neither of these companies sold subject merchandise through an affiliated U.S. importer, we did not investigate whether the Dare Group and Teamway absorbed duties. *See* section 751(a)(4) of the Act. Also, because Starcorp decided not to participate in this review, we did not have adequate information to investigate whether Starcorp absorbed duties. *See* section 751(a)(4) of the Act. Petitioners also requested that the Department investigate whether separate-rate respondents had absorbed duties. Because of the large number of companies subject to this review, the Department only selected three companies as mandatory respondents in this administrative review and thus only issued its complete questionnaire to these companies. In determining whether antidumping duties have been absorbed, the Department requires certain specific data ( *i.e.* , U.S. sales data) to ascertain whether those sales have been made at less than NV. Since U.S. sales data is only obtained from the complete questionnaire ( *i.e.* , only mandatory respondents submit U.S. sales data), and the separate-rate respondents were required only to provide information on their separate-rate status ( *i.e.* , not required to provide any U.S. sales data), we do not have the information necessary to assess whether the separate-rate respondents absorbed duties. Accordingly, the separate-rate respondents were not selected as mandatory respondents and, therefore, we cannot make duty absorption determinations with respect to these companies. Non-Market Economy Country Status In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Preliminary Results 2001-2002 Administrative Review and Partial Rescission of Review,* 68 FR 7500 (February 14, 2003). None of the parties to this proceeding has contested such treatment. Accordingly, we calculated NV in accordance with section 773(c) of the Act, which applies to NME countries. Surrogate Country When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV on the NME producer's FOPs. The Act further instructs that valuation of the FOPs shall be based on the best available information in a surrogate market economy country or countries considered to be appropriate by the Department. *See* section 773(c)(1) of the Act. When valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are:
(1)At a level of economic development comparable to that of the NME country; and
(2)significant producers of comparable merchandise. *See* section 773(c)(4) of the Act. Further, the Department normally values all FOPs in a single surrogate country. *See* 19 CFR 351.308(c)(2). The sources of the surrogate values (“SV”) are discussed under the “Normal Value” section below and in the Memorandum to the File, *Factors Valuations for the Preliminary Results of the Administrative Review,* dated January 31, 2008 *(“Factor Valuation Memorandum”),* which is on file in the Central Records Unit (“CRU”), Room 1117 of the main Department building. In examining which country to select as its primary surrogate for this proceeding, the Department first determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development. *See* Memorandum to the File, *Administrative Review of Wooden Bedroom Furniture from the People's Republic of China (PRC): Request for a List of Surrogate Countries,* dated October 2, 2007 *(“Policy Memo”),* which is on file in the CRU. On October 5, 2007, the Department issued a request for interested parties to submit comments on surrogate country selection. Petitioners submitted surrogate country comments on October 19, 2007 (“Petitioners’ Surrogate Country Letter”). ASI also submitted surrogate country comments on October 19, 2007. Petitioners submitted rebuttal comments with respect to surrogate country selection on October 29 and November 19, 2007. ASI submitted rebuttal comments with respect to surrogate country selection on November 8 and November 29, 2007. In addition, Teamway submitted comments regarding surrogate country selection on October 19, 2007. Teamway claims that India is not at a level of economic development comparable to that of the PRC. Teamway argues that the gross national incomes (“GNI”) of the Philippines and Indonesia are closer to the GNI of the PRC than the GNI of India. Additionally, Teamway argues that the Philippines and Indonesia are significant producers of wooden bedroom furniture. Finally, Teamway argues that the Philippines or Indonesia should be selected as the surrogate country; however, Teamway did not submit surrogate value data for either country. ASI argues that India and the PRC are not at a comparable level of economic development because they are too dissimilar in terms of GNI. ASI contends that predictability is not a basis to continue to use India as the surrogate country if doing so results in inaccurate surrogate values. Additionally, ASI asserts that the Department has the authority to change surrogate countries during any segment of the proceeding, and cites two cases in which the Department used the Philippines as the surrogate country. Also, ASI claims that the Department's selection of economically comparable countries is flawed and unsupported by record evidence. Further, ASI argues that in determining whether countries are at a comparable level of economic development, the Department's regulations direct the Department to “place primary emphasis on per capita GDP as the measure of economic comparability” and contends that the Department “skipped over” 16 countries closer to the PRC in terms of GNI to include India on the Department's list of designated surrogate countries. Furthermore, ASI argues that [t]he Department's attempt to belittle the vast difference in GNI per capita between the PRC and India is unreasonable and inconsistent with the Department's obligation to use the ``best'' available information and to calculate dumping margins as accurately as possible. In addition, ASI cites reports and Infodrive data which it claims show that Indian import data are corrupted by mis-classifications and mis-valuations, thus arguing Indian import statistics are not reliable. Finally, ASI argues that the Philippines is the appropriate surrogate country and provided extensive SV data from the Philippines. Petitioners argue that India satisfies the statutory requirements for the selection of the surrogate country because it is at a level of economic development comparable to that of the PRC and is a significant producer of comparable merchandise. Additionally, Petitioners argue that the Department is not required to select the country listed in the *Policy Memo* that is at a level of economic development most comparable to that of the PRC. Also, Petitioners contend that it is legally irrelevant that 16 countries may have a per-capita GNI closer to that of the PRC than the per-capita GNI of India. Further, Petitioners argue that other factors, such as total GNI should be used to determine economic comparability, and that India's total GNI is closer to that of the PRC than that of Indonesia or the Philippines. Furthermore, Petitioners cite a USTR 17 report that they claim demonstrates inconsistencies, mis-classification, and mis-valuation in the Philippine import statistics. In addition, Petitioners claim that corruption in the Philippine customs service renders the Philippine import statistics unreliable. Moreover, Petitioners contend that the Department has used India as the surrogate country for the PRC in recent cases. Finally, Petitioners argue that India is the appropriate surrogate country and submitted Indian SV data. 17 USTR, *2006 National Trade Estimate Report on Foreign Trade Barriers,* at pages 524-525. After evaluating interested parties' comments, the Department determined that the Philippines is the appropriate surrogate country to use in this review. The Department based its decision on the following facts:
(1)The Philippines is at a level of economic development comparable to that of the PRC;
(2)the Philippines is a significant producer of comparable merchandise; and
(3)the Philippines provides the best opportunity to use quality, publicly available data to value the FOPs. While both India and the Philippines are comparable and provide reliable sources of data, we find surrogate financial data from the Philippines better reflects the overall experience of producers of comparable merchandise in a surrogate country. Specifically, after examining the financial statements submitted for both countries, we have concluded that we have two useable financial statements from the Philippines, but only one from India. Generally, where available, we prefer to use more than one financial statement in order to obtain a broader industry representation. *See Fresh Garlic From the People's Republic of China: Final Results of Antidumping Duty New Shipper Review,* 67 FR 72139 (December 4, 2002), and accompanying Issues and Decision Memorandum at Comment 5. Therefore, because the Philippines better represents the experience of producers of comparable merchandise operating in a surrogate country, we have selected the Philippines as the surrogate country and, accordingly, have calculated NV using Philippine prices to value the respondents' FOPs, when available and appropriate. We have obtained and relied upon publicly available information wherever possible. *See Factor Valuation Memorandum.* In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may submit publicly available information to value FOPs until 20 days after the date of publication of these preliminary results. Affiliation Section 771(33) of the Act directs that the following persons will be considered affiliated:
(A)Members of a family, including brothers and sisters (whether by whole or half blood), spouse, ancestors, and lineal descendants;
(B)Any officer or director of an organization and such organization;
(C)Partners;
(D)Employer and employee;
(E)Any person directly or indirectly owning, controlling, or holding with power to vote, five percent or more of the outstanding voting stock or shares of any organization and such organization;
(F)Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person; and
(G)Any person who controls any other person and such other person. For purposes of affiliation, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person. *See* Section 771(33) of the Act. In order to find affiliation between companies, the Department must find that at least one of the criteria listed above is applicable to the respondents. Moreover, stock ownership is not the only evidentiary factor that the Department may consider to determine whether a person is in a position to exercise restraint or direction over another person, *e.g.* , control may be established through corporate or family groupings, or joint ventures and other means as well. *See* The Statement of Administrative Action accompanying the Uruguay Round Agreements Act *(“SAA”),* H.R. Doc. 103-316, 838 (1994). *See also Certain Fresh Cut Flowers from Colombia; Final Results of Antidumping Duty Administrative Review,* 61 FR 42833, 42853 (August 19, 1996); and *Certain Welded Carbon Steel Pipes and Tubes from Thailand: Final Results of Antidumping Duty Administrative Review,* 62 FR 53808, 53810 (October 16, 1997). To the extent that the affiliation provisions in section 771(33) of the Act do not conflict with the Department's application of separate rates and the statutory NME provisions in section 773(c) of the Act, the Department will determine that exporters and/or producers are affiliated if the facts of the case support such a finding. *See Certain Preserved Mushrooms From the People's Republic of China: Preliminary Results of Sixth New Shipper Review and Preliminary Results and Partial Rescission of Fourth Antidumping Duty Administrative Review,* 69 FR 10410, 10413 (March 5, 2004), unchanged in *Final Results and Final Rescission, in Part, of Antidumping Duty Administrative Review: Certain Preserved Mushrooms From the People's Republic of China,* 70 FR 54361 (September 14, 2005). The Dare Group Following these guidelines, we preliminarily determine that Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd., are affiliated pursuant to sections 771(33)(E) and
(F)of the Act and that these companies should be treated as a single entity for the purposes of the antidumping administrative review of wooden bedroom furniture from the PRC. Based on our examination of the evidence presented in the Dare Group's questionnaire responses, we have determined that:
(1)Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. are affiliated producers of identical or similar merchandise; and
(2)the potential for manipulation of price or production exists with respect to Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. *See* Memorandum to Wendy Frankel, Director, Office 8, NME/China Group, through Robert Bolling, Program Manager, From Paul Stolz, Case Analyst, *Antidumping Duty Administrative Review of Wooden Bedroom Furniture from the People's Republic of China: Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. and Treatment as a Single Entity,* dated January 31, 2008. Separate Rates In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise in an NME country subject to review this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. Two mandatory respondents, the Dare Group and Teamway, the new shipper, Mei Jia Ju, and 25 separate-rate respondents have provided company-specific separate-rate information and each has further stated that it meets the standards for the assignment of a separate rate. We have examined the information submitted to determine whether each of these companies is eligible for a separate rate. The Department's separate-rate test to determine whether the exporters are independent from government control does not consider, in general, macroeconomic/border-type controls, *e.g.* , export licenses, quotas, and minimum export prices, particularly if these controls are imposed to prevent dumping. The test focuses, rather, on controls over the investment, pricing, and output decision-making process at the individual firm level. *See, e.g., Certain Cut-to-Length Carbon Steel Plate from Ukraine: Final Determination of Sales at Less than Fair Value,* 62 FR 61754, 61758 (November 19, 1997); and * Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, * 62 FR 61276, 61279 (November 17, 1997). To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the *Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China,* 56 FR 20588 (May 6, 1991) *(“Sparklers”),* as amplified by *Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China,* 59 FR 22585 (May 2,1994) *(“Silicon Carbide”).* In accordance with the separate-rates criteria, the Department assigns separate rates in NME cases only if respondents can demonstrate the absence of both *de jure* and *de facto* government control over export activities. 1. Absence of De Jure Control The Department considers the following *de jure* criteria in determining whether an individual company may be granted a separate rate:
(1)An absence of restrictive stipulations associated with an individual exporter's business and export licenses;
(2)any legislative enactments decentralizing control of companies; and
(3)other formal measures by the government decentralizing control of companies. *See Sparklers,* 56 FR 20589. Our analysis shows that, for mandatory respondents, the Dare Group and Teamway, and the new shipper, Mei Jia Ju, and certain separate-rate respondents, the evidence on the record supports a preliminary finding of *de jure* absence of government control based on record statements and supporting documentation showing the following:
(1)An absence of restrictive stipulations associated with the individual exporter's business and export licenses;
(2)the applicable legislative enactments decentralizing control of the companies; and
(3)any other formal measures by the government decentralizing control of companies. *See* Memorandum to Wendy J. Frankel, Director, Office 8, Import Administration, from Robert Bolling, Program Manager, *Wooden Bedroom Furniture from the People's Republic of China: Separate Rates for Producers/Exporters that Submitted Separate Rate Certifications and Applications (“Separate-Rates Memo”),* dated January 31, 2008. 2. Absence of De Facto Control In previous cases, the Department learned that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. *See e.g., Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from the People's Republic of China,* 63 FR 72255, 72257 (December 31, 1998). Therefore, the Department has determined that an analysis of *de facto* control is critical in determining whether respondents are, in fact, subject to a degree of government control which would preclude the Department from assigning separate rates. The Department considers four factors in evaluating whether each respondent is subject to *de facto* government control of its export functions:
(1)Whether the exporter sets its own export prices independent of the government and without the approval of a government authority;
(2)whether the respondent has the authority to negotiate and sign contracts, and other agreements;
(3)whether the respondent has autonomy from the government in making decisions regarding the selection of its management; and
(4)whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. We determine that, for mandatory respondents, the Dare Group and Teamway, and the new shipper, Mei Jia Ju, and certain separate-rate respondents, the evidence on the record supports a preliminary finding of *de facto* absence of government control based on record statements and supporting documentation showing the following:
(1)Each exporter sets its own export prices independent of the government and without the approval of a government authority;
(2)each exporter retains the proceeds from its sales and makes independent decisions regarding disposition of profits or financing of losses;
(3)each exporter has the authority to negotiate and sign contracts and other agreements; and
(4)each exporter has autonomy from the government regarding the selection of management. Therefore, the evidence placed on the record of this administrative review by the mandatory respondents, the Dare Group and Teamway, and the new shipper, Mei Jia Ju, and certain separate-rate respondents demonstrates an absence of government control, both in law and in fact, with respect to each exporter's exports of the subject merchandise, in accordance with the criteria identified in *Sparklers* and *Silicon Carbide.* As a result, for the purposes of these preliminary results, we have granted separate, company-specific rates to the Dare Group, Teamway, Mei Jia Ju, and certain separate-rate respondents 18 that shipped wooden bedroom furniture to the United States during the POR. For a full discussion of this issue and list of separate-rate respondents, please see the *Separate-Rates Memo.* 18 For a complete listing entities receiving a separate rate, see preliminary results of review chart, below. Because Starcorp withdrew from participation in this segment of the proceeding and requested that all of its business proprietary submissions be returned or destroyed (including its April 4, 2007, proprietary version separate rate certification), the Department does not have any record evidence upon which to determine whether Starcorp is eligible for a separate rate for this review period. Thus, as Starcorp has not demonstrated its entitlement to a separate rate, it is considered to be part of the PRC-entity and will be subject to the PRC-wide rate. ( *See* “The PRC-Wide Entity” section below.) Furthermore, we have found that certain separate-rate applicants 19 have not demonstrated an absence of government control over their export activities, both in law and in fact, and are therefore, subject to the PRC-entity rate. *See Separate-Rates Memo.* 19 Beijing Mingyafeng Furniture Co., Ltd.; Country Roots; Hong Yu Furniture (Shenzhen) Co., Ltd.; Kunwa Enterprise Company; and Shanghai Starcorp Furniture Co., Ltd., Starcorp Furniture (Shanghai) Co., Ltd., Orin Furniture (Shanghai) Co., Ltd., Shanghai Star Furniture Co., Ltd., and Shanghai Xing Ding Furniture Industrial Co., Ltd. Margins for Separate-Rate Applicants For the exporters subject to this review that were determined to be eligible for separate-rate status, but were not selected as mandatory respondents (“Separate-Rate Recipients”), we have established a weighted-average margin based on an average of the rates we calculated for the mandatory respondents, excluding any rates that are zero, *de minimis* , or based entirely on adverse facts available. That rate is 39.49 percent. Entities receiving this rate are identified by name in the “Preliminary Results of Review” section of this notice and our *Separate-Rates Memo.* Application of Facts Available Section 776(a)(1) and
(2)of the Act provides that the Department shall apply “facts otherwise available” if, *inter alia,* necessary information is not on the record or an interested party or any other person
(A)withholds information that has been requested,
(B)fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and
(e)of section 782,
(C)significantly impedes a proceeding, or
(D)provides information that cannot be verified as provided by section 782(i) of the Act. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties. Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” *See SAA* at 870. Corroborate means that the Department will satisfy itself that the secondary information to be used has probative value. *Id.* To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. Application of Total Adverse Facts Available Mei Jia Ju As noted above, the Department initiated a new shipper review of Mei Jia Ju's exports of merchandise covered by the antidumping duty order on wooden bedroom furniture from the PRC. *See New Shipper Review Initiation Notice* . On April 11, 2007, the Department issued its antidumping duty questionnaire to Mei Jia Ju. Included in the Department's questionnaire are the Department's requirements and procedures for filing submissions. The Department's questionnaire specified that section A and sections C and D were due on May 2 and May 18, 2007, respectively. On April 28, 2007, Mei Jia Ju emailed the Department to ask for clarification of the due date of the response to the Original Questionnaire. On that same day the Department responded to Mei Jia Ju's email and specified to Mei Jia Ju that submissions were due in the CRU of the Department by close of business on the due date specified in the questionnaire. *See* Memorandum to the File, *Wooden Bedroom Furniture from the People's Republic of China: Email from Mei Jia Ju Furniture Industrial (Shenzhen) Co., Ltd. Regarding Deadlines* (December 5, 2007) (“ *Mei Jia Ju Deadline Memo* ”). On May 1, 2007, the Department received an extension request from Mei Jia Ju for the submission of its responses to sections C & D of the Department's questionnaire, and on May 10, 2007, the Department granted Mei Jia Ju's extension request. On May 3, 2007, the Department received Mei Jia Ju's section A response, and on May 18, 2007, the Department received Mei Jia Ju's response to sections C & D of the Department's questionnaire. On October 30, 2007, the Department issued its supplemental A, C & D questionnaire to Mei Jia Ju, with a due date of November 14, 2007. On November 19, 2007, the Department received Mei Jia Ju's Sections A, C & D supplemental response. On December 18, 2007, the Department rejected and returned Mei Jia Ju's Sections A, C & D supplemental response as untimely, and informed Mei Jia Ju that its November 19, 2007, submission would not be considered by the Department. *See* December 18, 2007, letter from Wendy J. Frankel to Dr. He Peihua. Sections 776(a)(1) and
(2)of the Act provides that the Department shall apply “facts otherwise available” if necessary information is not on the record or an interested party or any other person
(A)withholds information that has been requested,
(B)fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and
(e)of section 782,
(C)significantly impedes a proceeding, or
(D)provides information that cannot be verified as provided by section 782(i) of the Act. The Department has preliminarily determined that the use of facts otherwise available is warranted for Mei Jia Ju pursuant to section 776(a)(2)(B) of the Act because Mei Jia Ju failed to provide information within the deadlines established by the Department. Specifically, Mei Jia Ju submitted its Sections A, C & D supplemental response to the Department five days after the deadline established for its submission, and did not request an extension prior to the deadline. The administration of antidumping reviews is conducted on a strict statutory time line. Provision is made to allow parties to notify the Department in writing prior to the established deadline, to request an extension if they are experiencing difficulty in meeting a given deadline. *See* 19 CFR 351.302(c). Effective allocation of administrative resources to conduct reviews within the statutory time line, however, is not possible if the Department is not informed of a party's need for an extension in a timely manner, and is left in the dark as to when, or if, parties will submit responses. In order for the Department to meet its own statutory deadlines and administer its cases effectively, parties must adhere to the due dates and deadlines the Department establishes for responding to questionnaires ( *i.e.* , original or supplementals). It is further necessary that parties follow the Department's regulations should they need to request an extension. Section 782(c)(1) of the Act provides that, if an interested party promptly notifies the Department that it is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information, the Department shall take into consideration the ability of the party to submit the information in the requested form and manner and may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party. Section 782(c)(2) of the Act further provides that the Department shall consider the ability of the party submitting the information and shall provide such interested party assistance that is practicable. In this case, Mei Jia Ju did not notify the Department of any difficulty in submitting its response prior to the filing deadline. Further, the fact that Mei Jia Ju is aware of the Department's filing and service requirements and its right to request an extension is evident from the fact that Mei Jia Ju has properly requested an extension for filing a submission with the Department in the past. *See* , *e.g.* , Mei Jia Ju's May 1, 2007, sections C and D extension request. The Department's April 11, 2007, Original Questionnaire to Mei Jia Ju specified the filing and service requirements of all submissions to the Department. The October 30, 2007, sections A, C & D supplemental questionnaire reiterated these requirements. Additionally, the Department specifically instructed Mei Jia Ju on April 28, 2007, that submissions must be filed with the CRU on the due date specified in the questionnaire. *See* , *e.g.* , *Mei Jia Ju Deadline Memo* . Further, the Department specifically informed Mei Jia Ju in an April 25, 2007, email that no request for an extension will be considered by the Department unless it is officially filed in the CRU. *Id* . On December 26, 2007, after the Department had rejected Mei Jia Ju's supplemental questionnaire, Mei Jia Ju sent a letter by facsimile requesting an extension to file its supplemental questionnaire. On January 10, 2008, we rejected Mei Jia Ju's request to reconsider our determination not to accept the late supplemental response because the letter did not satisfy numerous filing and service requirements ( *e.g.* , not properly filed, did not contain the requisite number of copies, etc.). Section 782(d) of the Act provides that, in the case of a deficient response by the respondent, the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties. The Department issued a supplemental sections A, C & D questionnaire to Mei Jia Ju noting numerous deficiencies in its response to the Original Questionnaire. *See* October 30, 2007, sections A, C & D supplemental questionnaire. The Department issued Mei Jia Ju an extensive supplemental questionnaire because its original questionnaire response did not provide any information or usable data that would allow the Department to accurately calculate an antidumping duty margin. For example, our supplemental questionnaire requested that Mei Jia Ju report numerous raw material inputs that it failed to report in its original response, that it report the total usage of one of its main inputs, “plywood,” and that it report its U.S. sales information on a control number-specific basis. Upon receipt of Mei Jia Ju's response, which was submitted five days late without an extension request, the Department rejected Mei Jia Ju's response without consideration. *See* December 18, 2007, letter from Wendy J. Frankel to Dr. He Peihua. Because we have only Mei Jia Ju's original questionnaire response on the record, and this response lacks any meaningful data, we do not have sufficient U.S. sales and FOP data on the record to calculate an accurate dumping margin for Mei Jia Ju. Accordingly, we preliminarily determine to base Mei Jia Ju's margin on facts otherwise available. *See* section 776
(a)of the Act. Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available (“AFA”) information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. While the standard for cooperation does “not require perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record keeping.” *Nippon Steel Corp.* v. *United States,* 337 F. 3d 1373, 1382 (Fed. Cir. 2003). From the record evidence, it is clear Mei Jia Ju was aware of its obligation to submit its response on time or to timely request an extension prior to the deadline for submission. The Department's April 11, 2007, Original Questionnaire to Mei Jia Ju specified the filing and service requirements of all submissions to the Department. The October 30, 2007, sections A, C & D supplemental questionnaire reiterated these requirements. Additionally, the Department specifically instructed Mei Jia Ju on April 28, 2007, that submissions must be filed with the CRU on the due date specified in the questionnaire. *See, e.g., Mei Jia Ju Deadline Memo* . Moreover, the Department specifically informed Mei Jia Ju on April 25, 2007, that no extension of a deadline for submission would be considered by the Department unless it was officially filed in the CRU. *See id.* Because Mei Jia Ju was aware of the deadline and did not request an extension prior to the deadline, we find that Mei Jia Ju failed to cooperate by not acting to the best of its ability to comply with the Department's request for information. Furthermore, the Department issued Mei Jia Ju an extensive supplemental questionnaire ( *i.e.* , Sections A, C & D) because its original questionnaire response did not provide necessary information or usable data that would allow the Department to accurately calculate an antidumping duty margin. Because we only have Mei Jia Ju's original questionnaire response on the record, and this response lacks any meaningful data, we do not have sufficient U.S. sales and FOP data on the record to calculate an accurate dumping margin for Mei Jia Ju, we find that Mei Jia Ju failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information. Accordingly, the Department preliminarily determines that, when selecting from among the facts otherwise available, an adverse inference is warranted for Mei Jia Ju pursuant to section 776(b) of the Act. However, although we have determined to apply the AFA rate to Mei Jia Ju, we have also preliminarily determined to provide Mei Jia Ju with a separate rate. We based our determination on the fact that Mei Jia Ju provided a complete separate-rate response to our questionnaire that did not require further supplementation. *See* Mei Jia Ju's May 3, 2007, section A questionnaire response. Therefore, for the preliminarily results Mei Jia Ju will receive a separate rate. The PRC-Wide Entity The Department issued a letter to all respondents identified in the *Initiation Notice* informing them of the requirements to respond to both the Department's Q&V Questionnaire and either the separate-rate application or certification, as appropriate. The following companies did not respond to the Department's Q&V Questionnaire and the separate-rate application/certification: ( *i.e.* , Deqing Ace Furniture & Crafts Ltd.; Donguan Qingxi Xinyi Craft Furniture Factory (Joyce Art Factory); Speedy International Ltd.; T.J. Maxx International Co., Ltd., Tianjin Sande Fairwood Furniture Co., Ltd., Top Art Furniture/Ngai Kun Trading, Triple J Furniture Enterprise Co., Mandarin Furniture (Shenzhen) Co., Ltd.; Xilinmen Group Co., Ltd.; and Zhejang Niannianhong Industrial Co., Ltd). Therefore, the Department determines preliminarily that there were exports of merchandise under review from PRC producers/exporters that did not respond to the Department's questionnaire and consequently did not demonstrate their eligibility for separate-rate status. As a result, the Department is treating these PRC producers/exporters as part of the countrywide entity. Additionally, as Starcorp did not submit reliable information demonstrating that it operates free from government control, for purposes of this review, it is considered part of the PRC-wide entity. Both Petitioners and Starcorp requested the 2006 administrative review of Starcorp. On April 4, 2007, Starcorp submitted its separate-rate certification. On June 21, 2007, the Department issued its antidumping questionnaire to Starcorp. On July 26, 2007, Starcorp submitted its response to Section A of the Department's questionnaire. Although Starcorp responded to Section A of the questionnaire, Starcorp did not respond to Sections C and D. On August 20, 2007, Starcorp
(1)withdrew its request for the Department to conduct the second administrative review,
(2)stated it would no longer participate in this review,
(3)requested that the Department and all parties destroy or return Starcorp's submissions containing business proprietary information, and
(4)requested to be removed from both the APO and public service lists. Thus, no information remains on the record of this review with respect to Starcorp. However, as Petitioners did not withdraw their request for review, Starcorp remains subject to this review. Because Starcorp did not demonstrate its eligibility for separate-rate status, it remains subject to this review as part of the PRC-wide entity. Because we have determined that the companies named above are part of the PRC-wide entity, the PRC-wide entity is now under review. Pursuant to section 776(a) of the Act, we further find that because the PRC-wide entity (including the companies discussed above) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using the facts otherwise available on the record. Additionally, because these parties failed to respond to our requests for information, we find an adverse inference is appropriate pursuant to section 776(b) of the Act for the PRC-wide entity. Selection of the Adverse Facts Available Rate In sum, because the PRC-wide entity failed to respond to our request for information, it has failed to cooperate to the best of its ability. Further, as discussed above, Mei Jia Ju also failed to cooperate to the best of its ability with respect to responding to the Department's requests for additional information ( *i.e.* , Sections C and D information). Therefore, the Department preliminarily finds that, in selecting from among the facts available, an adverse inference is appropriate pursuant to section 776(b) of the Act for both the PRC-wide entity and Mei Jia Ju. In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from
(1)the petition,
(2)a final determination in the investigation,
(3)any previous review or determination, or
(4)any information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” *See Notice of Final Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors From Taiwan* , 63 FR 8909, 8932 (February 23, 1998). It is further the Department's practice to select a rate that ensures “that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” *See SAA* at 870. *See also, Brake Rotors From the People's Republic of China: Final Results and Partial Rescission of the Seventh Administrative Review; Final Results of the Eleventh New Shipper Review* , 70 FR 69937, 69939 (November 18, 2005). Generally, the Department finds that selecting the highest rate in any segment of the proceeding as AFA, is appropriate. *See, e.g., Certain Cased Pencils from the People's Republic of China; Notice of Preliminary Results of Antidumping Duty Administrative Review and Intent to Rescind in Part* , 70 FR 76755, 76761 (December 28, 2005). The Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“Federal Circuit”) have affirmed decisions to select the highest margin from any prior segment of the proceeding as the AFA rate on numerous occasions. *See Rhone Poulenc, Inc* . v. *United States* , 899 F. 2d 1185, 1190 (Fed. Cir. 1990) (affirming the Department's presumption that the highest margin was the best information of current margins) (“ *Rhone Poulenc* ”); *NSK Ltd.* v. *United States* , 346 F. Supp. 2d 1312, 1335 (CIT 2004) (affirming a 73.55 percent total AFA rate, the highest available dumping margin from a different respondent in the investigation); *Kompass Food Trading International* v. *United States* , 24 CIT 678, 683
(2000)(affirming a 51.16 percent total AFA rate, the highest available dumping margin from a different, fully cooperative respondent); and *Shanghai Taoen International Trading Co., Ltd* . v. *United States* , 360 F. Supp. 2d 1339, 1348 (CIT 2005) (affirming a 223.01 percent total AFA rate, the highest available dumping margin from a different respondent in a previous administrative review). In choosing the appropriate balance between providing respondents with an incentive to respond accurately and imposing a rate that is reasonably related to the respondents' prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.” *See Rhone Poulenc* , 899 F.2d at 1190. As AFA, we have preliminarily assigned to the PRC-wide entity and to Mei Jia Ju a rate of 216.01 percent, the highest calculated rate from 2004-2005 new shipper reviews of wooden bedroom furniture from the PRC which is the highest rate on the record of all segments of this proceeding. The Department preliminarily determines that this information is the most appropriate from the available sources to effectuate the purposes of AFA. The Department's reliance on the highest calculated rate from the 2004-2005 new shipper review to determine an AFA rate is subject to the requirement to corroborate secondary information. *See* the “Corroboration of Secondary Information” section below. Corroboration Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise. *See SAA* at 870. Corroborate means that the Department will satisfy itself that the secondary information to be used has probative value. *Id* . To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished from Japan, and Tapered Roller Bearings Four Inches or Less in Outside Diameter, and Components Thereof, from Japan: Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews* , 61 FR 57391, 57392 (Nov. 6, 1996) (unchanged in the final determination). Independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. *See Notice of Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators from Japan* , 68 FR 35627 (June 16, 2003) (unchanged in final determination); and, *Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada* , 70 FR 12181 (March 11, 2005). The AFA rate that the Department is now using was determined in a previously published final results of new shipper review. *See Wooden Bedroom Furniture from the People's Republic of China: Final Results of the 2004-2005 Semi-Annual New Shipper Reviews* , 71 FR 70739 (December 6, 2006). In the new shipper review, the Department calculated a company-specific rate, which was above the PRC-wide rate established in the investigation. Because this new rate is a company-specific calculated rate concerning subject merchandise, we have determined this rate to be reliable. With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. *See Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review* , 61 FR 6812 (February 22, 1996) (where the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin). Similarly, the Department does not apply a margin that has been discredited. *See D&L Supply Co.* v. *United States* , 113 F.3d 1220, 1221 (Fed. Cir. 1997) (ruling that the Department will not use a margin that has been judicially invalidated). To assess the relevancy of the rate used, the Department compared the margin calculations of the mandatory respondents in this administrative review with the calculated rate from the 2004-2005 new shipper review. The Department found that the margin of 216.01 percent was within the range of the highest margins calculated on the record of this administrative review. Because the record of this administrative review contains margins within the range of 216.01 percent, we determine that the rate from the 2004-2005 review continues to be relevant for use in this administrative review. As the adverse margin is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that this rate meets the corroboration criterion established in section 776(c) that secondary information have probative value. As a result, the Department determines that the margin is corroborated for the purposes of this administrative review and may reasonably be applied to Mei Jia Ju, and the PRC-wide entity as AFA. Because these are preliminary results of review, the Department will consider all margins on the record at the time of the final results of review for the purpose of determining the most appropriate final adverse margin. *See Preliminary Determination of Sales at Less Than Fair Value: Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation* , 65 FR 1139 (January 7, 2000). Export Price For the Dare Group and Teamway, we based the U.S. price on export price (“EP”), in accordance with section 772(a) of the Act, because EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c) of the Act. Additionally, we calculated EP based on the packed price from the exporter to the first unaffiliated customer in the United States. For the Dare Group, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included foreign inland freight expenses for inter-factory shipping, inland freight from the plant to the port, foreign brokerage and handling, U.S. brokerage and handling, and import duties. We also deducted certain customer discounts from the gross unit price. *See* Memorandum to The File Through Robert Bolling, Program Manager, China/NME Group, from Paul Stolz, Case Analyst, *Analysis for the Preliminary Results of Wooden Bedroom Furniture from the People's Republic of China: Fujian Lianfu Forestry Co./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. (“Dare Group”) (“Analysis Memo Dare Group”)* , dated January 31, 2008. For Teamway, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for a movement expense in accordance with section 772(c)(2)(A) of the Act. This expense was inland freight—plant/warehouse to port of exit, and we deducted this expense from the gross unit price, in accordance with section 772(c) of the Act. For a detailed description of all adjustments, see Memorandum to The File Through Robert Bolling, Program Manager, China/NME Group, from Hua Lu, Case Analyst, * Analysis for the Preliminary Results of Wooden Bedroom Furniture from the People's Republic of China: Teamway Furniture (Dong Guan) Co. Ltd., Brittomart Inc. (“Analysis Memo Teamway”) * , dated January 31, 2008. Teamway reported in its original and supplemental questionnaires that it sold subject merchandise during the POR to a trading company located in Shenzhen, China. See August 23 and December 4, 2007, original and supplemental questionnaires, respectively. Teamway also stated that to the best of ifs knowledge this trading company is affiliated with a U.S. company that acted as a buying agent in transacting certain sales with Teamway. According to Teamway, the trading company instructed Teamway to deliver certain sales to a Chinese warehouse where the trading company kept its purchases of other Chinese suppliers which were being shipped to the United States. The title to the subject merchandise was transferred to the trading company when it was delivered to the trading company's warehouse. Additionally, Teamway stated that it does not have exact information as to whether all or which sale(s) of subject merchandise sold by the trading company to its U.S. affiliate were consolidated with goods of other suppliers. For the preliminary results, we have determined to include Teamway's sales to the trading company located in Shenzhen as U.S. sales as reported by Teamway. However, the Department will issue supplemental questionnaires and further analyze these transactions for the final results to determine whether they constitute sales to the United States or internal PRC transactions. If we conclude that such sales represent internal PRC transactions, we will disregard such sales for purposes of the final results of this review. Normal Value Section 773(c)(1) of the Act provides that the Department shall determine the NV using an FOP methodology if:
(1)The merchandise is exported from an NME country; and
(2)the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOPs, because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. Under section 772(c)(3) of the Act, FOPs include but are not limited to:
(1)Hours of labor required;
(2)quantities of raw materials employed;
(3)amounts of energy and other utilities consumed; and
(4)representative capital costs. We used FOPs reported by respondents for materials, energy, labor and packing. In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate SV to value FOPs, but when a producer sources an input from a market economy and pays for it in market-economy currency, the Department will normally value the factor using the actual price paid for the input. See 19 CFR 351.408(c)(1); *see also Lasko Metal Products, Inc.* v. *United States* , 43 F.3d 1442, 1446 (Fed. Cir. 1994). However, when the Department has reason to believe or suspect that such prices may be distorted by subsidies, the Department will disregard the market economy purchase prices and use SVs to determine the NV. *See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of the 1998-1999 Administrative Review, Partial Rescission of Review, and Determination Not to Revoke Order in Part* , 66 FR 1953 (January 10, 2001) (“ *TRBs 1998* -1999”), and accompanying Issues and Decision Memorandum at Comment 1. It is the Department's consistent practice that, where the facts developed in the U.S. or third-country countervailing duty findings include the existence of subsidies that appear to be used generally (in particular, broadly available, non-industry specific export subsidies), it is reasonable for the Department to find that it has a reason to believe or suspect that prices of the inputs from the country granting the subsidies may be subsidized. *See TRBs 1998-1999 at Comment 1; see also Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of 1999-2000 Administrative Review, Partial Rescission of Review, and Determination Not To Revoke Order in Part* , 66 FR 57420 (November 15, 2001), and accompanying Issues and Decision Memorandum at Comment 1; *see also China National Machinery Imp. & Exp. Corp.* v. *United States* , 293 F. Supp. 2d 1334, 1338-39 (CIT 2003). In avoiding the use of prices that may be subsidized, the Department does not conduct a formal investigation to ensure that such prices are not subsidized, but rather relies on information that is generally available at the time of its determination. *See also* H.R. Rep. 100-576, at 590 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. Through other proceedings, the Department has learned that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, finds it reasonable to infer that all exports to all markets from these countries may be subsidized. See, *e.g.* , *TRBs 1998-1999* at Comment 1. Accordingly, we have disregarded prices from Indonesia, South Korea and Thailand in calculating the Philippine import-based SVs because we have reason to believe or suspect such prices may be subsidized. Factor Valuations In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by respondents for the POR. To calculate NV, we multiplied the reported per-unit factor quantities by publicly available Philippine SVs (except as noted below). In selecting the SV, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Philippine import SVs a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate ( *i.e.* , where the sales terms for the market-economy inputs were not delivered to the factory). This adjustment is in accordance with the decision of the Federal Circuit in *Sigma Corp.* v. *United States* , 117 F.3d 1401 (Fed. Cir. 1997). Due to the extensive number of SVs it was necessary to assign in this administrative review, we present a discussion of the main factors. For a detailed description of all SVs used to value the respondent's reported FOPs, see *Factor* Valuation Memorandum The mandatory respondents reported that certain of their reported raw material inputs were sourced from a market-economy country and paid for in market-economy currencies. Pursuant to 19 CFR 351.408(c)(1), when a mandatory respondent source inputs from a market-economy supplier in meaningful quantities ( *i.e.* , not insignificant quantities), we use the actual price paid by respondents for those inputs, except when prices may have been distorted by findings of dumping by the PRC and/or subsidies. *See Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27366 (May 19, 1997). The Dare Group and Teamway reported information demonstrating that the quantities of certain raw materials purchased from market-economy suppliers are significant. Where we found market-economy purchases to be in significant quantities, in accordance with our statement of policy as outlined in *Antidumping Methodologies: Market Economy Inputs* , we have used the actual purchases of these inputs to value the inputs. *See Antidumping Methodologies: Market Economy Inputs, Expected Non-Market Economy Wages, Duty Drawback; and Request for Comments* , 71 FR 61716 (October 19, 2006). For a detailed description of all actual values used for market-economy inputs, see the company-specific analysis memoranda dated January 31, 2008. Where the quantity of the input purchased from market-economy suppliers is insignificant, the Department will not rely on the price paid by an NME producer to a market-economy supplier because it cannot have confidence that a company could fulfill all its needs at that price. For both the Dare Group and Teamway, the Department found certain of their inputs purchased from market-economy suppliers to be insignificant. *See Analysis Memo Dare Group* and the *Analysis Memo Teamway.* In these instances, for the preliminary results, we valued the market-economy purchase using the appropriate SV for this input. *See Analysis Memo Dare Group* and the *Analysis Memo Teamway.* We used import values from the World Trade Atlas® online (“Philippine Import Statistics”), which were published by the Philippines National Statistics Office, which were reported in Philippine pesos and are contemporaneous with the POR, where market-economy purchases were not made in significant quantities, to value the following inputs: wood inputs ( *e.g.* , lumber of various species), wood veneer of various species, processed woods ( *e.g.* , fiberboard, particleboard, plywood, etc.), adhesives and finishing materials ( *e.g.* , glue, paints, stains, lacquer, etc.), hardware ( *e.g.* , nails, staples, screws, bolts, knobs, pulls, drawer slides, hinges, clasps, etc.), other materials ( *e.g.* , mirrors, glass, leather, marble, cloth, foam, etc.), and packing materials ( *e.g.* , cardboard, cartons, styrofoam, bubblewrap, labels, tape, etc.), *see Factor Valuation Memorandum.* For a complete listing of all the inputs and the valuation for each mandatory respondent *see Factor Valuation Memorandum.* Where we could not obtain publicly available information contemporaneous with the POR with which to value FOPs, we adjusted the SVs using, where appropriate, the Philippines Wholesale Price Index (“WPI”) available at the Philippines National Statistics Office Web site *http://www.census.gov.ph/data/sectordata/datawpi.html.* For the purposes of the preliminary results, the Department has used *http://www.allmeasures.com* and other publicly available information where interested parties did not submit alternative conversion values for specific FOPs. For the final results, the Department will continue to consider other appropriate conversion ratios. Dare Group The Dare Group reported certain of its inputs under common FOP categories which may not reflect an appropriate level of dis-aggregation based on its prior reporting methodology. Due to the proprietary nature of this issue, see Analysis Memo Dare Group for a complete explanation. For the preliminary results, we calculated certain surrogate values using the Dare Group's reported FOPs. However, the Department will issue a supplemental questionnaire to further analyze the Dare Group's FOP reporting. For the final results, we will consider whether the Dare Group's groupings of these FOPs contributes to the accuracy of our margin calculation and will make adjustments to these classifications and our calculation of SVs, as appropriate. The Dare Group reported “semifinished product” as a factor of production in its FOP database. *See* the Dare Group's supplemental section D response dated December 17, 2007. Invoices for semifinished product on the record of this review indicate that the semifinished product is wooden bedroom furniture covered by the scope of the antidumping order. Therefore, for the preliminary results, we calculated the surrogate value of semifinished products using Philippine import statistics covering wooden bedroom furniture. The Department will issue a supplemental questionnaire to further analyze the Dare Group's semifinished product reporting. Teamway In its original and supplemental questionnaire responses, Teamway reported that it used subcontractors in the production of subject merchandise. However, in reporting the subcontractors' costs, Teamway only provided the subcontractors' FOPs in a particular format. *See* August 23 and December 4, 2007, original and supplemental questionnaires, respectively. Due to the proprietary nature of this issue, see Analysis Memo Teamway for a complete explanation. For the preliminary results, we have determined to use Teamway's subcontractor's FOPs as reported; however, the Department will issue a supplemental questionnaire to Teamway, and request Teamway to report its subcontractors' costs in a manner that differs from its current reporting, for purposes of the final results margin calculation. For direct labor, indirect labor, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's Web site, Import Library, Expected Wages of Selected NME Countries, revised in January 2007, *http://ia.ita.doc.gov/wages/04wages/04wages-010907.html.* The source of these wage-rate data is the Yearbook of Labour Statistics 2006, ILO (Geneva: 2006), Chapter 5B: Wages in Manufacturing. The years of the reported wage rates range from 2004 and 2005. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by the respondent. See Factor Valuation Memorandum. To value electricity, we used data from the 2006 edition of Doing Business in the Philippines, published by SGV & Co. Because the value for electricity was not contemporaneous with the POR, we adjusted the values for inflation. See Factor Valuation Memorandum. To calculate the value for domestic brokerage and handling, the Department used brokerage fees available at the Web site of the Republic of the Philippines Tariff Commission, *http://www.tariffcommission.gov.ph/cao01-2001.html.* We calculated the SV for truck freight using Philippine data from three sources,
(1)*The Cost of Doing Business in Camarines Sur,* available at the Philippine government's Web site for the province: *http://www.camarinessur.gov.ph* ,
(2)*Province of Misamis Oriental: Cost of Doing Business,* available at the Web site *http://www.orobpc.org.ph:8080/pdf/costmor.pdf* , and
(3)a news article from the Manila Times entitled “Government Mulls Cut in Export Target.” *See Factor Valuation Memorandum.* To value factory overhead, selling, general, and administrative expenses (“SG&A”), and profit, we used the audited financial statements for the fiscal year ending December 31, 2006, from the following producers: Calfurn MFG Philippines, Inc. and Insular Rattan and Native Products Corp., both of which are Philippine producers of comparable merchandise. From this information, we were able to determine factory overhead as a percentage of the total raw materials, labor and energy (“ML&E) costs; SG&A as a percentage of ML&E plus overhead ( *i.e.* , cost of manufacture); and the profit rate as a percentage of the cost of manufacture plus SG&A. For further discussion, see *Factor Valuation Memorandum.* Preliminary Results of Review We preliminarily determine that the following weighted-average dumping margins exist for the period January 1, 2006, through December 31, 2006: Wooden Bedroom Furniture From the PRC Exporter Weighted-average margin (percent) Fujian Lianfu Forestry Co., Ltd., aka Fujian Wonder Pacific Inc. (Dare Group) 60.15 Fuzhou Huan Mei Furniture Co., Ltd. (Dare Group) 60.15 Jiangsu Dare Furniture Co., Ltd. (Dare Group) 60.15 Teamway Furniture (Dong Guan) Co. Ltd., Brittomart Inc. 9.81 BNBM Co., Ltd. (aka Beijing New Material Co., Ltd.) 39.49 Classic Furniture Global Co., Ltd. 39.49 Dalian Guangming Furniture Co., Ltd. 39.49 Decca Furniture Ltd., aka Decca 39.49 Dong Guan Golden Fortune Houseware Co., Ltd. 39.49 Dongguan Mingsheng Furniture Co., Ltd. 39.49 Dongguan Yihaiwei Furniture Limited 39.49 Fortune Furniture Ltd. and its affiliate, Dongguan Fortune Furniture Ltd. 39.49 Gaomi Yatai Wooden Ware Co., Ltd., Team Prospect International Ltd., Money Gain International Co. 39.49 Guangming Group Wumahe Furniture Co., Ltd. 39.49 Inni Furniture 39.49 Mei Jia Ju Furniture Industrial (Shenzhen) Co., Ltd. 216.01 Meikangchi (Nantong) Furniture Company Ltd. 39.49 Nanjing Nanmu Furniture Co., Ltd. 39.49 Po Ying Industrial Co. 39.49 Qingdao Beiyuan-Shengli Furniture Co., Ltd., Qingdao Beiyuan Industry Trading Co. Ltd. 39.49 Shenzhen Tiancheng Furniture Co., Ltd., Winbuild Industrial Ltd., Red Apple Furniture Co., Ltd. and Red Apple Trading Co., Ltd. 39.49 Shenyang Kunyu Wood Industry Co., Ltd. 39.49 Shenzhen Xingli Furniture Co., Ltd. 39.49 Tianjin First Wood Co., Ltd. 39.49 Union Friend International Trade Co., Ltd. 39.49 Winmost Enterprises Limited 39.49 Winny Overseas, Ltd. 39.49 Yangchen Hengli Co., Ltd. 39.49 Yichun Guangming Furniture Co., Ltd. 39.49 Zhong Cheng Furniture Co., Ltd. 39.49 PRC-Wide Rate 216.01 Disclosure The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. *See* 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 35 days after the date of publication. *See* 19 CFR 351.309(d). Further, parties submitting written comments are requested to provide the Department with an additional copy of those comments on diskette. Any interested party may request a hearing within 30 days of publication of these preliminary results. *See* 19 CFR 351.310(c). Any hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs. *See* 19 CFR 351.310(d). The Department will issue the final results of the administrative and new shipper reviews, which will include the results of its analysis of issues raised in the briefs, within 120 days of publication of these preliminary results, in accordance with 19 CFR 351.213(h)(1), unless the time limit is extended. Assessment Rates Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of these new shipper and administrative reviews. In accordance with 19 CFR 351.212(b)(1), we have calculated an exporter/importer or customer-specific assessment rate or value for merchandise subject to these reviews. For these preliminary results, we divided the total dumping margins for the reviewed sales by the total entered quantity of those reviewed sales for each applicable importer. In these reviews, if these preliminary results are adopted in our final results of review, we will direct CBP to assess the resulting rate against the entered customs value for the subject merchandise on each importer's/customer's entries during the POR. Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of these reviews for shipments of subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(1)(C) and (a)(2)(C) of the Act:
(1)For the Dare Group, Teamway, Mei Jia Ju, and the separate-rate applicants being granted a separate rate, the cash deposit rate will be that established in the final results of these reviews;
(2)for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period;
(3)for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 216.01 percent; and
(4)for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice. Notification to Importers This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) 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. The Department is issuing and publishing these preliminary results of administrative review and new shipper review in accordance with sections 751(a) and 777(i)(1) of the Act, and 19 CFR 351.221(b) and 351.214(h). Dated: January 31, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-2648 Filed 2-12-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-929] Small Diameter Graphite Electrodes from the People's Republic of China: Initiation of Antidumping Duty Investigation AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: February 13, 2008. FOR FURTHER INFORMATION CONTACT: Magd Zalok, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-4162. SUPPLEMENTARY INFORMATION: The Petition On January 17, 2008, the Department of Commerce (“Department”) received a petition concerning imports of small diameter graphite electrodes (“SDGE”) from the People's Republic of China (“PRC”) filed in proper form by SGL Carbon LLC and Superior Graphite Co. (collectively “Petitioners”). *See* Petition on Small Diameter Graphite Electrodes from the People's Republic of China dated January 17, 2008 (“Petition”). On January 22 and 29, 2008, the Department issued a request for additional information regarding, and clarification of certain areas of, the Petition. Based on the Department's requests, the Petitioners filed additional information on January 25 and 30, 2008. The period of investigation (“POI”) is July 1 through December 31, 2007. *See* 19 CFR 351.204(b). In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), the Petitioners allege that imports of SDGE from the PRC are being, or are likely to be, sold in the United States at less than fair value, within the meaning of section 731 of the Act, and that such imports are materially injuring, or threaten material injury to, an industry in the United States. The Department finds that the Petitioners filed this Petition on behalf of the domestic industry because the Petitioners are interested parties as defined in section 771(9)(C) of the Act, and have demonstrated sufficient industry support with respect to the antidumping duty investigation that the Petitioners are requesting that the Department initiate ( *see* “Determination of Industry Support for the Petition” section below). Scope of Investigation The merchandise covered by this investigation includes all small diameter graphite electrodes of any length, whether or not finished, of a kind used in furnaces, with a nominal or actual diameter of 400 millimeters (16 inches) or less, and whether or not attached to a graphite pin joining system or any other type of joining system or hardware. Small diameter graphite electrodes are most commonly used in primary melting, ladle metallurgy, and specialty furnace applications in industries including foundries, smelters, and steel refining operations. Small diameter graphite electrodes subject to this investigation are currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 8545.11.0000. The HTSUS number is provided for convenience and customs purposes, but the written description of the scope is dispositive. Comments on Scope of Investigation During our review of the Petition, we discussed the scope with the Petitioners to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations ( *Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19, 1997)), we are setting aside a period for interested parties to raise issues regarding product coverage. The Department encourages all interested parties to submit such comments within 20 days of signature of this notice. Comments should be addressed to Import Administration's Central Records Unit (“CRU”), Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, attention Magd Zalok, room 3067. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and to consult with parties prior to the issuance of the preliminary determination. Comments on Product Characteristics for Antidumping Duty Questionnaire We are requesting comments from interested parties regarding the appropriate physical characteristics of SDGE to be reported in response to the Department's antidumping questionnaire. This information will be used to identify the key physical characteristics of the subject merchandise in order for respondents to accurately report the relevant factors of production, as well as develop appropriate product reporting criteria. Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as general product characteristics and product reporting criteria. We note that it is not always appropriate to use all product characteristics as product reporting criteria. We base product reporting criteria on meaningful differences among products. While there may be some physical product characteristics which manufacturers use to describe SDGE, it may be that only a select few product characteristics take into account meaningful physical characteristics. In order to consider the suggestions of interested parties in developing the antidumping duty questionnaire, we must receive comments at the above-referenced address by February 26, 2008. Rebuttal comments must be received within 10 calendar days of the receipt of timely filed comments. Determination of Industry Support for the Petition Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for:
(i)at least 25 percent of the total production of the domestic like product; and
(ii)more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall:
(i)poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or
(ii)determine industry support using a statistically valid sampling method if there is a large number of producers in the industry. Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law. *See USEC, Inc. v. United States* , 132 F. Supp. 2d 1, 8 (CIT 2001), *citing Algoma Steel Corp. Ltd. v. United States* , 688 F. Supp. 639, 644 (CIT 1988), *aff'd* 865 F.2d 240 (Fed. Cir. 1989), *cert. denied* 492 U.S. 919 (1989). Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this subtitle.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,” ( *i.e.* , the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition). With regard to the domestic like product, the Petitioners do not offer a definition of domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that SDGE constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case, *see* the *Antidumping Investigation Initiation Checklist: Small Diameter Graphite Electrodes from the People's Republic of China
(PRC)(PRC Initiation Checklist)* , Industry Support at Attachment II, on file in the CRU. On February 1, 2008, we received an industry support challenge from an importer of graphite electrodes from China. The Petitioners responded to this submission on February 4, 2008. *See PRC Initiation Checklist* at Attachment II (Industry Support). Our review of the data provided in the Petition, supplemental submissions, and other information readily available to the Department indicates that the Petitioners have established industry support. First, the Petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support ( *e.g.* , polling). *See* section 732(c)(4)(D) of the Act. Second, the domestic producers have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petition account for at least 25 percent of the total production of the domestic like product. Finally, the domestic producers have met the statutory criteria for industry support under 732(c)(4)(A)(ii) because the domestic producers (or workers) who support the Petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition. Accordingly, the Department determines that the Petition was filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act. *See* PRC Initiation Checklist at Attachment II (Industry Support). The Department finds that the Petitioners filed the Petition on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the antidumping investigation that they are requesting the Department initiate. *See PRC Initiation Checklist* at Attachment II (Industry Support). Allegations and Evidence of Material Injury and Causation The Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (“NV”). The Petitioners contend that the industry's injured condition is illustrated by reduced market share, lost sales, reduced production, reduced capacity utilization rate, reduced shipments, underselling and price depressing and suppressing effects, lost revenue, reduced employment, decline in financial performance, and an increase in import penetration. We have assessed the allegations and supporting evidence regarding material injury and causation, and have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation. *See PRC Initiation Checklist* at Attachment III (Injury). Allegation of Sales at Less Than Fair Value The following is a description of the allegation of sales at less than fair value upon which the Department based its decision to initiate this investigation of imports of SDGE from the PRC. The sources of data for the deductions and adjustments relating to the U.S. price and the factors of production are also discussed in the checklist. *See Initiation Checklist* . Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we will reexamine the information and revise the margin calculations, if appropriate. Export Price The Petitioners relied on 14 prices obtained from U.S. resellers for SDGE manufactured by Chinese producers/ exporters. The 14 prices were for POI sales of certain types of SDGE falling within the scope of the Petition. The Petitioners deducted from the quoted prices the costs associated with exporting and delivering the product to the customer in the United States, including foreign brokerage and handling, ocean freight and insurance, U.S. inland freight, U.S. port fees, and a reseller's mark-up. *See Initiation Checklist* . The Petitioners calculated foreign brokerage and handling based on the methodology used by the Department in the *Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China* , 72 FR 19690 (April 19, 2007), and the accompanying memorandum, Investigation of Certain Polyester Staple Fiber from the People's Republic of China: Surrogate Values for the Final Determination, dated April 10, 2007, at 2. *See also* the Petition at page 51 and Exhibit AD-5. The Petitioners calculated ocean freight and insurance based on the CIF data for imports of SDGE from the PRC under HTSUS number 8545.11.0000, which were reported in the official U.S. import statistics published by the U.S. International Trade Commission Dataweb. The Petitioners calculated U.S. port fees, including harbor maintenance and processing fees, based on standard charges applicable to SDGE imported under HTSUS number 8545.11.0000. Lastly, the Petitioners calculated U.S. inland freight and a reseller's mark-up based on their own experience and knowledge of the industry. NV The Petitioners stated that the Department has not revoked the non-market economy (“NME”) status of the PRC, and thus they treated the PRC as a NME country for purposes of their Petition. The Department examined the PRC's market status and determined that NME status should continue for the PRC. *See Memorandum from the Office of Policy to David M. Spooner, Assistant Secretary for Import Administration, Regarding The People's Republic of China Status as a Non-Market Economy* , dated May 15, 2006. (This document is available online at http://ia.ita.doc.gov/download /prc-nme-status/prc-nme-status-memo.pdf.) In addition, in every subsequent investigations, the Department treated the PRC as an NME country. *See, e.g., Final Determination of Sales at Less Than Fair Value: Certain Activated Carbon from the People's Republic of China* , 72 FR 9508 (March 2, 2007), and *Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China* , 72 FR 19690 (April 19, 2007). In accordance with section 771(18)(C)(i) of the Act, the presumption of NME status remains in effect until revoked by the Department. Because the presumption of NME status for the PRC has not been revoked by the Department it remains in effect for purposes of the initiation of this investigation. Accordingly, the NV of the product is appropriately based on factors of production valued in a surrogate market-economy country in accordance with section 773(c) of the Act. After initiation, all parties will have the opportunity to provide relevant information related to the issues of the PRC's NME status and the granting of separate rates to individual exporters. The Petitioners selected India as the surrogate country arguing, pursuant to section 773(c)(4) of the Act, that India is an appropriate surrogate because it is a market-economy country that is at a level of economic development comparable to that of the PRC and is a significant producer and exporter of SDGE. *See* Petition at pages 52 through 54. Based on the information provided by the Petitioners, we find it appropriate to use India as a surrogate country for this initiation. After initiation, we will solicit comments regarding surrogate country selection. The Petitioners calculated NVs for each of the U.S. prices discussed above using the Department's NME methodology that is required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. Because the quantities of the factors of production that are consumed by Chinese companies in manufacturing SDGE are not available to the Petitioners, the Petitioners calculated NVs using consumption rates experienced by U.S. producers of SDGE. *See"* Petition at page 54. The Petitioners provided information which they claim demonstrates that Chinese and U.S. companies use the same process to produce SDGE. *See* the January 25, 2008, supplement to Petition at 11 and Enclosure 13. Additionally, the Petitioners provide an affidavit to support their use of U.S. production data. *See* the Petition at Exhibit AD-2. The Petitioners valued the factors of production as noted below. The Petitioners valued material inputs using the most recently available six months of import data from the World Trade Atlas (data from December 2006 through May 2007). *See* the *PRC Initiation Checklist* and the Petition at page 56. In calculating surrogate values from Indian import data, the Petitioners excluded the values of imports from unspecified countries, NME countries, and countries which the Department has found to maintain broadly available, non-industry-specific export subsidies (i.e., Indonesia, the Republic of Korea and Thailand). *See Hand Trucks and Certain Parts Thereof From the People's Republic of China: Final Results of Administrative Review and Final Results of New Shipper Review* , 72 FR 27287 (May 15, 2007), and accompanying Issues and Decision Memorandum at Comment 23. The Petitioners valued electricity using the cost of electricity for industrial use in India for 2000, obtained from *Energy Prices and Taxes, Quarterly Statistics, 3rd Quarter 2003* , published in the International Financial Statistics by the IMF. *See* Petition at pages 61-62 and Exhibit AD-7. The Petitioners valued natural gas based on an article in *The Financial Express* , “ Gas Prices Hiked 12%,” dated May 28, 2005. *See* Petition at pages 62-63 and Exhibit AD-7. Where a surrogate value was in effect during a period preceding the POI, the Petitioners adjusted it using the Indian wholesale price index in the publication *International Financial Statistics* , which is published by the International Monetary Fund. *See* Petition at Exhibit AD-7. The surrogate values used by the Petitioners for the above-referenced inputs consist of information reasonably available to the Petitioners and are, therefore, acceptable for purposes of initiation. The Petitioners based factory overhead expenses, selling, general and administrative expenses, and profit on data from an Indian SDGE producer, Graphite India Limited. The data come from the company's most recently available annual report which covers the period April 1, 2006, through March 31, 2007. *See* Petition at pages 63-64 and Exhibit AD-8, as well as Enclosure 1 of the January 30, 2008, supplement to the Petition. We find that the Petitioners' use of this company's information as surrogate financial data is appropriate for purposes of this initiation. Fair Value Comparisons Based on the data provided by the Petitioners, there is reason to believe that imports of SDGE from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of export price to NV, calculated in accordance with section 773(c) of the Act, the estimated dumping margins for SDGE range from 119.09 percent to 159.34 percent. *See* Enclosure 4 of the January 30, 2008, supplement to the Petition. Initiation of Antidumping Investigation Based upon the examination of the Petition on SDGE from the PRC, the Department finds that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an antidumping duty investigation to determine whether imports of SDGE from the PRC are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act, unless postponed, we will make our preliminary determination no later than 140 days after the date of this initiation. Separate Rates In order to obtain separate-rate status in NME investigations, exporters and producers must submit a separate-rate status application. *See* Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations Involving Non-Market Economy Countries (April 5, 2005) (Separate Rates and Combination Rates Bulletin), available on the Department's website at http://ia.ita.doc.gov/policy/bull05-1.pdf. Based on our experience in processing the separate-rate applications in previous antidumping duty investigations, we have modified the application for this investigation to make it more administrable and easier for applicants to complete. *See, e.g., Initiation of Antidumping Duty Investigation: Certain New Pneumatic Off-the-Road Tires From the People's Republic of China* , 72 FR 43591, 43594-95 (August 6, 2007). The specific requirements for submitting the separate-rate application in this investigation are outlined in detail in the application itself, which will be available on the Department's website at http://ia.ita.doc.gov/ia-highlights-and-news.html on the date of publication of this initiation notice in the **Federal Register** . The separate-rate application will be due 60 days after publication of this initiation notice. Respondent Selection For this investigation, the Department intends to select respondents based on U.S. Customs and Border Protection
(CBP)data for U.S. imports under HTSUS number 8545.11.0000 during the POI. We intend to make our decision regarding respondent selection within 20 days of publication of this **Federal Register** notice. The Department invites comments regarding the CBP data and respondent selection within seven days of publication of this **Federal Register** notice. Use of Combination Rates in an NME Investigation The Department will calculate combination rates for certain respondents that are eligible for a separate rate in this investigation. The Separate Rates and Combination Rates Bulletin, states: {w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question *and* produced by a firm that supplied the exporter during the period of investigation. (Emphasis in original.) *See Separate Rates and Combination Rates Bulletin at 6.* Distribution of Copies of the Petition In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petition have been provided to the representatives of the Government of the PRC. We will attempt to provide a copy of the public version of the Petition to the foreign producers/exporters, consistent with 19 CFR 351.203(c)(2). International Trade Commission Notification We have notified the ITC of our initiation, as required by section 732(d) of the Act. Preliminary Determination by the International Trade Commission The ITC will preliminarily determine, no later than March 3, 2008, whether there is a reasonable indication that imports of SDGE from the PRC are materially injuring, or threatening material injury to, a U.S. industry. A negative ITC determination will result in the investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits. This notice is issued and published pursuant to section 777(i) of the Act. Dated: February 6, 2008. Ronald K. Lorentzen, Acting Deputy Assistant Secretary for Import Administration. [FR Doc. E8-2646 Filed 2-12-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-469-814] Chlorinated Isocyanurates from Spain: Initiation of Antidumping Duty New Shipper Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) has received a request for a new shipper review under the antidumping duty order on chlorinated isocyanurates from Spain issued on June 24, 2005. *See Chlorinated Isocyanurates from Spain: Notice of Antidumping Duty Order* , 70 FR 36562 (June 24, 2005). In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(c), we are initiating an antidumping new shipper review of Inquide Flix, S.A., (Inquide). The period of review
(POR)of this new shipper review is June 1, 2007 through November 30, 2007. EFFECTIVE DATE: February 13, 2008. FOR FURTHER INFORMATION CONTACT: Scott Lindsay, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone:
(202)482-0780. SUPPLEMENTARY INFORMATION: Background In accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(c), the Department received a timely request from Inquide, a producer and exporter of chlorinated isocyanurates, for a new shipper review of the antidumping duty order on chlorinated isocyanurates from Spain. *See* December 28, 2007, submission from Inquide requesting a new shipper review. Pursuant to section 751(a)(2)(B)(i) of the Act and 19 CFR 351.214(b), Inquide certified that it is both an exporter and producer of the subject merchandise, that it did not export subject merchandise to the United States during the period of the investigation
(POI)(April 1, 2003 through March 31, 2004), and that since the investigation was initiated, it has not been affiliated with any producer or exporter who exported the subject merchandise to the United States during the POI. It also submitted documentation establishing the date on which it first shipped the subject merchandise to the United States, the volume of that shipment, and the date of its first sale to an unaffiliated customer in the United States. It also certified it had no shipments to the United States during the period subsequent to its first shipment. The Department conducted a Customs database query in an attempt to confirm that Inquide's shipments of subject merchandise entered the United States for consumption and that liquidation of such entries had been suspended for antidumping duties. *See* January 31, 2008 New Shipper Review Initiation Checklist, question 18. The Department also examined whether U.S. Customs and Border Protection
(CBP)confirmed that such entries were made during the new shipper review period. Initiation of Review In accordance with section 751(a)(2)(B) of the Act and section 351.214(d) of the Department's regulations, we find that the request Inquide submitted meets the threshold requirements for initiation of a new shipper review. *See Memorandum to the File from Scott Lindsay, Trade Analyst, through Thomas Gilgunn, Program Manager, New Shipper Initiation Checklist* , dated, January 31, 2008. Accordingly, we are initiating a new shipper review of the antidumping duty order on chlorinated isocyanurates from Spain produced and exported by Inquide. Although Inquide's request meets the threshold requirements for initiation, there are a few issues of concern that the Department has with Inquide's new shipper review request. Therefore, immediately following the initiation of this review, the Department intends to issue a questionnaire to Inquide to clarify these issues. This review covers the period June 1, 2007 through November 30, 2007. We intend to issue the preliminary results of this review no later than 180 days after the date on which this review is initiated, and the final results within 90 days after the date on which we issue the preliminary results. *See* section 751(a)(2)(B)(iv) of the Act. On August 17, 2006, the Pension Protection Act of 2006 (H.R. 4) was signed into law. Section 1632 of H.R. 4 temporarily suspends the authority of the Department to instruct U.S. Customs and Border Protection to collect a bond or other security in lieu of a cash deposit in new shipper reviews. Therefore, the posting of a bond under section 751(a)(2)(B)(iii) of the Act in lieu of a cash deposit is not available in this case. Importers of chlorinated isocyanurates produced and exported by Inquide must continue to post cash deposits of estimated antidumping duties on each entry of subject merchandise (i.e., chlorinated isocyanurates) at the current all-others rate of 24.83 percent. Interested parties may submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306. This initiation and this notice are issued and published in accordance with section 751(a)(2)(B) of the Act and sections 351.214 and 351.221(c)(1)(i) of the Department's regulations. Dated: January 31, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-2645 Filed 2-12-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-922] Notice of Correction of Postponement of Preliminary Determination of Antidumping Duty Investigation: Raw Flexible Magnets from the People's Republic of China AGENCY: Import Administration, International Trade Administration, Department of Commerce EFFECTIVE DATE: February 13, 2008. FOR FURTHER INFORMATION CONTACT: Melissa Blackledge or Shawn Higgins, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone:
(202)482-3518 or
(202)482-0679, respectively. SUPPLEMENTARY INFORMATION: CORRECTION: On January 31, 2008, the Department of Commerce (the “Department”) published the notice of postponement of the preliminary determination of the antidumping duty investigation of raw flexible magnets from the People's Republic of China. *See Notice of Postponement of Preliminary Determination of Antidumping Duty Investigation: Raw Flexible Magnets from the People's Republic of China* , 73 FR 5794 (January 31, 2008) (“ *Postponement Notice* ”). Subsequent to the signature of the *Postponement Notice* , we identified two inadvertent errors in the above-referenced notice. In the Postponement Notice, under the “ *Postponement of Preliminary Determination* ” section, the Department mistakenly identified October 18, 2007, rather than October 11, 2007, as the date the Department initiated this investigation. The *Postponement Notice* should have stated, “On October 11, 2007, the Department of Commerce (the “Department”) initiated the antidumping duty investigation of raw flexible magnets from the People's Republic of China. *See Notice of Initiation of Antidumping Duty Investigations: Raw Flexible Magnets from the People's Republic of China and Taiwan* , 72 FR 59071 (October 18, 2007) (“ *Initiation Notice* ”).” Second, in the same section of the Postponement Notice, the Department incorrectly identified April 19, 2008, rather than April 18, 2008, as the extended due date of the preliminary determination. The *Postponement Notice* should have stated, “For the reasons identified by the Petitioner, and because there are no compelling reasons to deny the request, the Department is postponing the preliminary determination under section 733(c)(1)(A) of the Tariff Act of 1930, as amended (the “Act”), by fifty days from February 28, 2008 to April 18, 2008.” Conclusion This notice serves to correct both the date of initiation of this investigation and the extended due date of the preliminary determination as listed in the *Postponement Notice* . This notice is issued and published in accordance with section 777(i) of the Tariff Act of 1930, as amended. Dated: February 7, 2008. Gary Taverman, Acting Deputy Assistant Secretary for Import Administration. [FR Doc. E8-2647 Filed 2-12-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; National Marine Sanctuary Permits AGENCY: National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. 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. DATES: Written comments must be submitted on or before April 14, 2008. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Ave., 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 and instructions should be directed to David Bizot, 301-713-7268 or *David.Bizot@noaa.gov* . SUPPLEMENTARY INFORMATION: I. Abstract National Marine Sanctuary Program
(NMSP)regulations at 15 CFR part 922 list specific activities that are prohibited in national marine sanctuaries. These regulations also state that otherwise prohibited activities are permissible if a permit is issued by the NMSP. The persons desiring a permit must submit an application, and anyone obtaining a permit is generally required to submit one or more reports on the activity allowed under the permit. The recordkeeping and reporting requirements at 15 CFR part 922 form the basis for this collection of information. This information is required by NMSP to protect and manage sanctuary resources as required by the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.) II. Method of Collection Depending on the permit being requested, various applications, reports, and telephone calls may be required from applicants. Applications and reports can be submitted via e-mail, fax, or traditional mail. Applicants are encouraged to use electronic means to apply for permits and submit reports whenever possible. III. Data *OMB Number:* 0648-0141. *Form Number:* None. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations; individuals or households; not-for-profit institutions; Federal government; state, local or tribal government. *Estimated Number of Respondents:* 424. *Estimated Time per Response:* General permits, 1 hour, 30 minutes; special use permits, 8 hours; historical resources permits, 13 hours; baitfish permits, certifications and permit amendments, 30 minutes; voluntary registrations, 15 minutes; appeals, 24 hours; Tortugas access permits, 6 minutes. *Estimated Total Annual Burden Hours:* 1,437. *Estimated Total Annual Cost to Public:* $949 in reporting/recordkeeping costs. 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: February 7, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-2582 Filed 2-12-08; 8:45 am] BILLING CODE 3510-NK-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Seafood Inspection and Certification Requirements AGENCY: National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. 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. DATES: Written comments must be submitted on or before April 14, 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 and instructions should be directed to James Appel,
(301)713-2355 or *James.Appel@noaa.gov* . SUPPLEMENTARY INFORMATION: I. Abstract The National Marine Fisheries Service
(NMFS)operates a voluntary fee-for-service seafood inspection program (Program) under the authorities of the Agricultural Marketing Act of 1946, as amended, the Fish and Wildlife Act of 1956, and the Reorganization Plan No. 4 of 1970. The regulations for the Program are contained in 50 CFR part 260. The Program offers inspection grading and certification services, including the use of official quality grade marks which indicate that specific products have been Federally inspected. Qualified participants are permitted to use the Program's official quality grade marks on their products to facilitate trade of fishery products. The participants in the inspection program are requested to submit specific information pertaining to the type of inspection services requested [Section 260.15]. In all cases, applicants provide information regarding the type of products to be inspected, the quantity, and location of the product. There are also application requirements if there is an appeal of previous inspection results [Section 260.36]. Participants requesting regular inspection services on a contractual basis also submit a contract [Section 260.96]. The participants interested in using official grade marks are required to submit product labels and specifications for review and approval to ensure compliance with mandatory labeling regulations established by the U.S. Food and Drug Administration as well as proper use of the Program's marks [Section 260.97
(12)and (13)]. Current regulations require approval of drawings and specifications prior to approval of facilities [Section 260.96
(b)and (c)]. There are no respondents under this section. The Program will amend this part of the regulations in a future action. In July 1992, NMFS announced new inspection services, which were fully based on guidelines recommended by the National Academy of Sciences, known as Hazard Analysis Critical Control Point (HACCP). The information collection requirements fall under Section 260.15 of the regulations. These guidelines required that a facility's quality control system have a written plan of the operation, identification of control points with acceptance criteria and a corrective action plan, as well as identified personnel responsible for oversight of the system. The HACCP requires continuing monitoring and recordkeeping by the facility's personnel. Although HACCP involves substantial self-monitoring by the industry, the HACCP-based program is not a self-certification program. It relies on unannounced system audits by NMFS. The frequency of audits is determined by the ability of the firm to monitor its operation. By means of these audits, NMFS reviews the records produced through the Program participant's self-monitoring. The audits determine whether the participant's HACCP-based system is in compliance by checking for overall sanitation, accordance with good manufacturing practices, labeling, and other requirements. In addition, in-process reviews, end-product sampling, and laboratory analyses are performed by NMFS at frequencies based on the potential consumer risk associated with the product and/or the firm's history of compliance with the Program's criteria. The information collected is used to determine a participant's compliance with the program. The reported information, a HACCP plan, is needed only once. Other information is collected and kept by the participant as part of its routine monitoring activities. NMFS audits the participant's records on unannounced frequencies to further determine compliance. II. Method of Collection Information will be obtained via telephone, fax, hard-copy submission, or audit conducted by NMFS personnel. III. Data *OMB Number:* 0648-0266. *Form Number:* NOAA Forms 89-800, 89-814, and 89-819. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations. *Estimated Number of Respondents:* 7,082. *Estimated Time per Response:* 5 minutes for an application of inspection services; 5 minutes for an application for an appeal; 5 minutes for submitting a contract; 30 minutes to submit a label and specification; 105 hours for a Hazard Analysis Critical Control Point (HACCP) plan; and 80 hours for HACCP monitoring and recordkeeping. *Estimated Total Annual Burden Hours:* 13,065. *Estimated Total Annual Cost to Public:* $3,579. 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: February 7, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-2583 Filed 2-12-08; 8:45 am] BILLING CODE 3510-22-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF51 Marine Mammals; File No. 727-1915 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of permit. SUMMARY: Notice is hereby given that the Scripps Institute of Oceanography [Responsible Party/Principal Investigator: John Hildebrand, Ph.D.] has been issued a permit to conduct scientific research on marine mammals. ADDRESSES: The permit and related documents are available for review upon written request or by appointment (See SUPPLEMENTARY INFORMATION ). FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Kate Swails, (301)713-2289. SUPPLEMENTARY INFORMATION: On May 3, 2007, notice was published in the **Federal Register** (72 FR 24564) that a request for a scientific research permit to take 31 species of cetaceans, including ESA-listed species, had been submitted by the above-named organization. The requested permit has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 *et seq.* ), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226). The permit authorizes close approach, biopsy sampling, suction-cup tagging, fecal sampling, skin collection, and passive acoustic recording of cetaceans in the Northern and Central Pacific Ocean. The purpose of the research is to improve baseline data on marine mammal status, abundance, stock structure, life history, seasonal distribution, and acoustic communication and behavior of non- ESA and ESA listed species. The permit is issued for five years. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), an environmental assessment was prepared analyzing the effects of the permitted activities. After a Finding of No Significant Impact, the determination was made that it was not necessary to prepare an environmental impact statement. Issuance of this permit, as required by the ESA, was based on a finding that such permit:
(1)was applied for in good faith;
(2)will not operate to the disadvantage of such endangered species; and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Documents may be reviewed in the following locations: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206)526-6150; fax (206)526-6426; Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4001; fax (562)980-4018; and Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone (808)973-2935; fax (808)973-2941. Dated: February 6, 2008. Tammy C. Adams, Acting Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-2603 Filed 2-12-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648-XF61 New England Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce ACTION: Notice of a public meeting. SUMMARY: The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Survey Advisory Panel in March, 2008 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This meeting will be held on Tuesday, March 4, 2008, at 9 a.m. ADDRESSES: This meeting will be held at the NMFS Observer Training Center, Falmouth Technology Park, 25 Bernard Saint Jean Drive, East Falmouth, MA 02536; telephone:
(508)495-2397; fax:
(508)495-2124. *Council Address* : New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New England Fishery Management Council; telephone:
(978)465-0492. SUPPLEMENTARY INFORMATION: The panel will review Scallop Survey Advisory Panel
(SSAP)terms of reference; determine how previous SSAP work applies; determine scope of future SSAP work to meet the terms of reference. The panel will also discuss and approve new dredge gear deployment and use for the 2008 survey. The panel will discuss expansion of state or federal surveys into the Gulf of Mane and other unsurveyed areas. The panel will also discuss future development and integration of photographic/video and acoustic technology into the standard scallop surveys. Other business will be discussed if time allows. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at
(978)465-0492, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 *et seq.* Dated: February 8, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-2652 Filed 2-12-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648-XF60 North Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The North Pacific Fishery Management Council's (Council) Bering Sea/Aleutian Islands
(BSAI)Crab Advisory Committee, in Anchorage, AK. DATES: The meeting will be held on March 2, 2007, from 8:30 a.m. to 5 p.m. ADDRESSES: The meeting will be held at the Hilton Hotel, 500 West 3rd Avenue, King Salmon Room, Anchorage, AK 99501. *Council Address* : North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252. FOR FURTHER INFORMATION CONTACT: Mark Fina, North Pacific Fishery Management Council; telephone:
(907)271-2809. SUPPLEMENTARY INFORMATION: The Committee will have discussions on the following items: purpose and need statement; potential elements and options; crew proposal and alternatives to those proposals; data issues; community protections; possible emergency relief from regionalization; arbitration issues. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen,
(907)271-2809, at least 5 working days prior to the meeting date. Dated: February 8, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-2651 Filed 2-12-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648-XF38 Western Pacific Regional Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. SUMMARY: The 97th meeting of the Western Pacific Regional Fishery Management Council's (Council) Scientific and Statistical Committee
(SSC)will convene Monday, March 3, 2008, through Thursday March 6, 2008. See SUPPLEMENTARY INFORMATION for specific times, dates, and agenda items. ADDRESSES: The SSC meeting will be held at the Council Office Conference Room, 1164 Bishop St., Suite 1400, Honolulu, HI; telephone:
(808)522-8220. FOR FURTHER INFORMATION CONTACT: Kitty M. Simonds, Executive Director; telephone: (808)-522-8220. SUPPLEMENTARY INFORMATION: Dates and Times and Locations The SSC meeting will be held between 9 a.m. and 5 p.m. on Monday, March 3, 2008, and between 8:30 a.m. and 5 p.m. on Tuesday, Wednesday and Thursday, March 4-6, 2008. Monday, March 3, 2008, 9 a.m. 1. Introductions 2. Approval of Draft Agenda and Assignment of Rapporteurs 3. Approval of the Minutes of the 96th SSC Meeting 4. Report from the Pacific Fisheries Science Center Director 5. Insular Fisheries A. Update on Status of Main Hawaiian Islands
(MHI)Bottomfish Management and Monitoring 1. Data Collection, Processing and Analysis a. Catch Reports b. Dealer Reports c. Delinquencies 2. Review annual data by month for last three years 3. Federal regulations 4. State rules and regulations 5. Report on economic performance B. Bottomfish Risk Assessment Model (Action Item) C. In-Situ Recording of Hawaiian Deep Reef Slopes and Seamounts D. Hawaii Parrotfish Population Biology E. Public Comment F. Discussion and Action Tuesday, March 4, 2008, 8:30 a.m. 6. Pelagic Fisheries A. Longline Management 1. Hawaii Swordfish Fishery Effort (Action Item) 2. Mariana Archipelago Longline and Purse-Seine Closed Areas (Action Item) 3. American Samoa Longline Program Modifications (Action Item) B. Non-Longline Management 1. American Samoa Purse-Seine Closed Area (Action Item) 2. Non-Longline Pelagic Fishery Management (Action Item) C. American Samoa and Hawaii Longline Quarterly Reports D. Bycatch reduction strategies in the Hawaii LL fleet E. International Fisheries/Meetings 1. Climate Impacts on Oceanic Top Predators (CLIOTOP) 2. Western & Central Pacific Fisheries Commission (WCPFC) 3. Inter-American Tropical Tuna Commission (IATTC) 4. North Pacific Regional Fishery Management Organization 5. South Pacific Regional Fishery Management Organization 6. International Scientific Committee Billfish Working Group F. Public Comment G. Discussion and Action 7. Ecological Risk Assessment Workshop Report 8. Marine Recreational Fisheries Information Program
(MRIP)9. Protected Species A. Loggerhead Petition B. Loggerhead Workshop report C. Pelagic Fisheries Research Program Albatross Population Dynamics Workshop Report D. Potential Listing of Blackfooted Albatross under Endangered Species Act
(ESA)E. Update on ESA consultations Wednesday, March 5, 2008, 8:30 a.m. 10. Maximum Sustainable Yield
(MSY)Proxies Workshop Thursday, March 6, 2008, 8:30 a.m. 11. Program Planning A. 5 Year Research Plan B. Cooperative Research Program C. Pelagic Fisheries Research Program D. Annual Catch Limits E. Magnuson-Stevens Reauthorization Act
(MSRA)Ecosystem-based Management Workshop 12. Other Business A. 98th SSC Meeting 13. Summary of SSC Recommendations to the Council Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds,
(808)522-8220 (voice) or
(808)522-8226 (fax), at least 5 days prior to the meeting date. Authority: 16 U.S.C.1801 *et seq.* Dated: February 8, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-2650 Filed 2-12-08; 8:45 am] BILLING CODE 3510-22-S COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities Under OMB Review; Activities; Notice of Intent To Renew Collection 3038-0026, Gross Collection of ExChange-Set Margins for Omnibus Accounts AGENCY: Commodity Futures Trading Commission. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), this notice announces that the Information Collection Request
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collection and its expected costs and burden; it includes the actual data collection instruments [if any]. DATES: Comments must be submitted on or before March 14, 2008. FOR FURTHER INFORMATION OR A COPY CONTACT: Barbara S. Gold, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581,
(202)418-5430; Fax:
(202)418-5528; e-mail: *bgold@cftc.gov* and refer to OMB Control No. 3038-0026. SUPPLEMENTARY INFORMATION: *Title:* Gross Collection of Exchange-Set Margins for Omnibus Accounts (OMB Control No. 3038-0026). This is a request for extension of a currently approved information collection. *Abstract:* Commission Regulation 1.58 requires futures commission merchants to collect exchange-set margin for omnibus accounts on a gross, rather than a net, basis. This rule is promulgated pursuant to the Commission's rulemaking authority contained in sections 4c, 4d, 4f, 4g and 8a of the Commodity Exchange Act, 7 U.S.C. 6c, 6d, 6f, 6g and 12a (2000). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. *See* 46 FR 63035 (Dec. 30, 1981). The **Federal Register** notice with a 60-day comment period soliciting comments on this collection of information was published on December 3, 2007 (72 FR 67919). *Burden statement:* The respondent burden for this collection is estimated to average .08 hours per response. These estimates include the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* 150. *Estimated number of responses:* 48. *Estimated total annual burden on respondents:* 600 hours. *Frequency of collection:* On occasion. Send comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, to the addresses listed below. Please refer to OMB Control No. 3038-0026 in any correspondence. Barbara S. Gold, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581, and Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for CFTC, 725 17th Street, Washington, DC 20503. Dated: February 7, 2008. David A. Stawick, Secretary of the Commission. [FR Doc. E8-2641 Filed 2-12-08; 8:45 am] BILLING CODE 6351-01-P CORPORATION FOR NATIONAL AND COMMUNITY SERVICE Proposed Information Collection; Comment Request AGENCY: Corporation for National and Community Service. ACTION: Notice. SUMMARY: The Corporation for National and Community Service (hereinafter the “Corporation”), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirement on respondents can be properly assessed. Currently, the Corporation is soliciting comments concerning application instructions designed to be used for grant competitions which the Corporation sponsors from time to time. These competitions are designed and conducted, when appropriations are available, to address the Corporation's strategic initiatives or other priorities. Applicants will respond to the questions included in these instructions in order to apply for funding in these Corporation competitions. Copies of the information collection request can be obtained by contacting the office listed in the addresses section of this notice. DATES: Written comments must be submitted to the individual and office listed in the ADDRESSES section by April 14, 2008. ADDRESSES: You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1)*By mail sent to:* Corporation for National and Community Service; Attention Amy Borgstrom, Associate Director for Policy, Room 9515; 1201 New York Avenue, NW., Washington, DC, 20525.
(2)By hand delivery or by courier to the Corporation's mailroom at Room 8100 at the mail address given in paragraph
(1)above, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays.
(3)*By fax to:*
(202)606-3476, Attention Amy Borgstrom, Associate Director for Policy.
(4)Electronically through the Corporation's e-mail address system: *aborgstrom@cns.gov.* FOR FURTHER INFORMATION CONTACT: Amy Borgstrom,
(202)606-6930, or by e-mail at *aborgstrom@cns.gov.* SUPPLEMENTARY INFORMATION: The Corporation is particularly interested in comments that: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses). Background: These application instructions will be used by applicants for funding through Corporation competitions focusing on strategic initiatives or other priorities. The application is completed electronically using eGrants, the Corporation's web-based grants management system, or submitted via e-mail. This information collection instructs applicants to complete a three part narrative which includes program design, organizational capability, and budget. *Current Action:* CNCS Application Instructions. *Type of Review:* New. *Agency:* Corporation for National and Community Service. *Title:* CNCS Application Instructions. *OMB Number:* None. *Agency Number:* None. *Affected Public:* Current/prospective recipients of Corporation funding. *Total Respondents:* 600. *Frequency:* Depending on the availability of appropriations. *Average Time per Response:* Averages 8 hours. *Estimated Total Burden Hours:* 4,800 hours. *Total Burden Cost (capital/startup):* None. *Total Burden Cost (operating/maintenance):* None. Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record. Dated: February 5, 2008. Elizabeth D. Seale, Corporation for National and Community Service. [FR Doc. E8-2658 Filed 2-12-08; 8:45 am] BILLING CODE 6050-$$-P DEPARTMENT OF DEFENSE Office of the Secretary of Defense [DoD-2008-OS-0010] Privacy Act of 1974; System of Records AGENCY: National Security Agency/Central Security Service. ACTION: Notice to Add a System of Records. SUMMARY: The National Security Agency/Central Security Service proposes to add a system of records notice to its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action would be effective without further notice on March 14, 2008 unless comments are received which result in a contrary determination. ADDRESSES: Send comments to the National Security Agency/ Central Security Service, Office of Policy, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. FOR FURTHER INFORMATION CONTACT: Ms. Anne Hill at
(301)688-6527. SUPPLEMENTARY INFORMATION: The National Security Agency's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on February 6, 2008, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427). Dated: February 7, 2008. L.M. Bynum, Alternative OSD Federal Register Liaison Officer, Department of Defense. GNSA 24 System name: NSA/CSS Pre-Publication Review Records. System location: National Security Agency/Central Security Service, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000. Categories of individuals covered by the system: Current and former NSA/CSS employee, advisor, military assignee, or Agency contractor; other authors obligated to submit writings or oral presentations for pre-publication review; and individuals involved in pre-publication review. Categories of records in the system: Individual's full name, home telephone number, address, employment history, and possibly level of Education (type of degree), manuscripts and other writings submitted for pre-publication review, correspondence on pre-publication requests and appeals, and resumes. Authority for maintenance of the system: National Security Agency Act of 1959, as amended, 50 U.S.C. 402 note (Pub. L. 86-36), 50 U.S.C 403 (Pub. L. 80-253); 44 U.S.C. 3101; E.O. 12333; E.O. 12958; E.O. 12968; DoD Directive 5100.20, The National Security Agency and the Central Security Service; DoD Directive 5230.09, Clearance of DoD Information for Public Release; DoDI 5230.29, Security and Policy Review of DoD Information for Public Release; and NSA/CSS Policy 1-30, Review of NSA/CSS Information for Public Dissemination. Purpose(s): To maintain records relating to the pre-publication review of official NSA/CSS information intended for public dissemination. Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: To Federal agencies involved in a classification review of information containing National Security Agency as well as other agency and/or government information. The DoD ‘Blanket Routine Uses’ published at the beginning of the NSA/CSS's compilation of record systems also apply to this record system. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Paper records in file folders and electronic media. Retrievability: Individual's name, title of the pre-publication document, and the case number assigned to the FOIA request. Safeguards: Secured by a series of guarded pedestrian gates and checkpoints. Access to facilities is limited to security-cleared personnel and escorted visitors only. With the facilities themselves, access to paper and computer printouts are controlled by limited-access facilities and lockable containers. Access to electronic means is controlled by computer password protection. Retention and disposal: Records are permanently retained and will be transferred to the NSA/CSS Archives when no longer needed for operations. System manager(s) and address: Director of Policy, National Security Agency/Central Security Service, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. Notification procedure: Individuals seeking to determine if records about themselves are contained in this record system should address written inquiries to the Director of Policy, National Security Agency/Central Security Service, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. Written inquires should include individual's full name, address, and telephone number. Record access procedures: Individuals seeking access to records about themselves contained in this record system should address written inquiries to the Deputy Director of Policy, National Security Agency/Central Security Service, 9800 Savage Road, Suite 6248, Ft. George G. Meade, MD 20755-6248. Written inquires should include individual's full name, address, and telephone number. Contesting record procedures: The NSA/CSS rules for contesting contents and appealing initial determinations are published at 32 CFR part 322 or may be obtained by written request addressed to the Chief, Office of Policy, National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000. Record source categories: Individuals and other NSA personnel involved in the publications review process. Exemptions claimed for the system: None. [FR Doc. E8-2755 Filed 2-12-08; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary of Defense Renewal of Department of Defense Federal Advisory Committees AGENCY: DoD. ACTION: Renewal of Federal Advisory Committee. SUMMARY: Under the provisions of the Federal Advisory Committee Act of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.65, the Department of Defense gives notice that it is renewing the charter for the U.S. Air Force Scientific Advisory Board (hereafter referred to as the Board). The Board is a discretionary federal advisory committee established by the Secretary of Defense to provide the Department of the Air Force independent advice and recommendations on science and technology for continued air and space dominance. The Board, in accomplishing its mission:
(a)Provides independent technical advice to the U.S. Air Force leadership;
(b)studies topics deemed critical by the Secretary of the Air Force and the Chief of Staff of the U.S. Air Force;
(c)recommends applications of technology to improve U.S. Air Force capabilities; and
(d)provides an independent review of the quality and relevance of U.S. Air Force science and technology programs. The Board shall be composed of not more than 60 members, who are distinguished members of science and technology communities, industry and academia. Board members appointed by the Secretary of Defense, who are not federal officers or employees, shall serve as Special Government Employees under the authority of 5 U.S.C. 3109. Board members shall be appointed on an annual basis by the Secretary of Defense, and the Secretary of the Air Force shall select the Board's Chairperson from the total Board membership. In addition, the Secretary of the Air Force shall be authorized to appoint, as required, non-voting consultants to provide technical expertise to the Board. Board members and consultants, if required, shall, with the exception of travel and per diem for official travel, serve without compensation. However, the Secretary of the Air Force, at his discretion, may authorize compensation to Board members and consultants in accordance with existing statutes, Executive Orders and regulations. The Board shall be authorized to establish subcommittees, as necessary and consistent with its mission, and these subcommittees or working groups shall operate under the provisions of the Federal Advisory Committee Act of 1972, the Government in the Sunshine Act of 1976, and other appropriate federal regulations. Such subcommittees or workgroups shall not work independently of the chartered Board, and shall report all their recommendations and advice to the Board for full deliberation and discussion. Subcommittees or workgroups have no authority to make decisions on behalf of the chartered Board nor can they report directly to the Department of Defense or any federal officers or employees who are not Board members. SUPPLEMENTARY INFORMATION: The Board shall meet at the call of the Board's Designated Federal Officer, in consultation with the Board's chairperson. The Designated Federal Officer, pursuant to DoD policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with established DoD policies and procedures. The Designated Federal Officer or duly appointed Alternate Designated Federal Officer shall attend all committee meetings and subcommittee meetings. Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to the U.S. Air Force Scientific Advisory Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meetings of the U.S. Air Force Scientific Advisory Board. All written statements shall be submitted to the Designated Federal Officer for the U.S. Air Force Scientific Advisory Board, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the U.S. Air Force Scientific Advisory Board's Designated Federal Officer can be obtained from the GSA's FACA Database— *https://www.fido.gov/facadatabase/public.asp.* The Designated Federal Officer, pursuant to 41 CFR 102-3.150, will announce planned meetings of the U.S. Air Force Scientific Advisory Board. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question. FOR FURTHER INFORMATION CONTACT: Jim Freeman, Deputy Committee Management Officer for the Department of Defense, 703-601-2554, extension 128. Dated: February 7, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E8-2756 Filed 2-12-08; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Department of the Navy [USN-2008-0005] Privacy Act of 1974; System of Records AGENCY: Department of Navy. ACTION: Notice to add a system of records. SUMMARY: The Department of Navy proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. DATES: The changes will be effective on March 14, 2008 unless comments are received that would result in a contrary determination. ADDRESSES: Send comments to the Privacy Act Officer, Mrs. Doris Lama, Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350-2000. FOR FURTHER INFORMATION CONTACT: Mrs. Doris Lama at
(202)685-6545. SUPPLEMENTARY INFORMATION: The Department of Navy notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on February 6, 2008, to the House Committee on Government Oversight and Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget
(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427). Dated: February 7, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. NM05100-4 SYSTEM NAME: Driver Record Monitoring System (DRMS). SYSTEM LOCATION: *Primary Location:* SAMBA Holdings, 1730 Montano Road NW., Albuquerque, NM 87101-3200. *Secondary Locations:* Navy and Marine Corps activities. Official mailing addresses as published in the Standard Navy Distribution List that is available at *http://doni.daps.dla.mil/sndl.aspx* . CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM: Navy and Marine Corps active duty and reserve personnel with a driver's license issued by a U.S. state or territory. CATEGORIES OF RECORDS IN THE SYSTEM: Name, date of birth, driver's license number, state of license, pay grade, sex, and state driving records/histories. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 5041, Headquarters, Marine Corps; and 18 U.S.C. 2721, Drivers Privacy Protection Act. PURPOSE(S): To identify Navy and Marine Corps members (officers and enlisted) whose driving habits may indicate they pose a threat to health/safety and identify required training, counseling, mentoring, etc., that would result in preventing future accidents. ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: To provide state department of motor vehicles offices with the full names, state of driver license, driving license numbers, sex, and dates of birth of Navy and Marine Corps personnel for purpose of identifying and collecting driving records/histories for use by Navy and Marine Corps personnel. The DoD ‘Blanket Routine Uses' that appear at the beginning of the Navy's compilation of system of record notices also apply to this system. POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE: Paper and automated records. RETRIEVABILITY: Name and driver's license number. SAFEGUARDS: Computer facilities and terminals are located in areas accessible only by authorized personnel who are properly screened, cleared, and trained to work with automated systems of records. Computer terminals are protected by passwords, unique user IDs, and applicable layers of security access within the applications. Electronic and paper computer printouts and reports are made available only to authorized personnel having an official need-to-know. RETENTION AND DISPOSAL: Records are destroyed two years after individual completes program. SYSTEM MANAGER(S) AND ADDRESS: *Marine Corps:* Commandant of the Marine Corps, Safety Division, Ground Branch, 2 Navy Annex, Washington, DC 20380-1775. *Navy:* Commander, Naval Surface Forces (N41IH), 2841 Rendova Road, San Diego CA 92155-5490. *Record Holders:* Organizational elements of the Department of the Navy. Official mailing addresses are published in the Standard Navy Distribution List that is available at *http://doni.daps.dla.mil/sndl.aspx* . NOTIFICATION PROCEDURE: Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to their commanding officer. Official mailing addresses are published in the Standard Navy Distribution List that is available at *http://doni.daps.dla.mil/sndl.aspx* . Written requests should contain the member's full name and signature of the requester. RECORD ACCESS PROCEDURES: Individuals seeking access to information about themselves contained in this system of records should address written inquiries to their commanding officer. Official mailing addresses are published in the Standard Navy Distribution List that is available at *http://doni.daps.dla.mil/sndl.aspx* . Written requests should contain the member's full name and signature of the requester. CONTESTING RECORD PROCEDURES: The Navy's rules for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the System of Records Manager. RECORD SOURCE CATEGORIES: Individual; driving records; and activity records. EXEMPTIONS CLAIMED FOR THE SYSTEM: None. [FR Doc. E8-2754 Filed 2-12-08; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before April 14, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: February 7, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. *Office of Postsecondary Education* *Type of Review:* Reinstatement, with change, of a previously approved collection for which approval has expired. *Title:* Upward Bound Annual Performance Report. *Frequency:* Annually. *Affected Public:* Not-for-profit institutions. *Reporting and Recordkeeping Hour Burden:* *Responses:* 1,143. *Burden Hours:* 10,287. *Abstract:* Grantees in the Upward Bound Programs (Upward Bound, Upward Bound Math-Science, and Veterans Upward Bound) must submit this report annually. The Department uses the reports to evaluate the performance of grantees prior to awarding continuation funding and to assess grantees' prior experience at the end of the budget period. The Department will also aggregate the data across projects to provide descriptive information on the programs and to analyze their outcomes in response to the Government Performance and Results Act. A System of Records Notice
(SORN)for the Privacy Act System of Records associated with this information collection is underway. Privacy Data will not be retrieved until an approved SORN has been published in the **Federal Register** for 30 days, or is approved by OMB. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3582. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. 08-642 Filed 2-12-08; 8:45 am]
Connectionstraces to 60
Traces to 60 documents
U.S. Code
CFR
91 references not yet in our index
  • 8 CFR 214.1(a)(2)
  • 8 CFR 214.2(h)(5)(iv)
  • 8 CFR 214.2(h)(5)(ii)
  • 8 CFR 214.2(h)(5)(i)(A)
  • 8 CFR 214.2(h)(5)(i)(B)
  • 8 CFR 214.2(h)(5)(i)(C)
  • 8 CFR 214.2(h)(5)(v)
  • 8 CFR 214.2(h)(5)(vi)(A)
  • 8 CFR 214.2(h)(5)(viii)(C)
  • 8 CFR 214.2(h)(15)(ii)(C)
  • 8 CFR 214.2(h)(5)(viii)(B)
  • 8 CFR 274
  • 8 CFR 214.2(h)(2)(i)(D)
  • 8 CFR 214.2(h)(5)(viii)(A)
  • Pub. L. 104-208
  • 110 Stat. 3546
  • 8 CFR 214.2(h)(2)(iii)
  • 8 CFR 214.2(h)(5)(xi)(A)
  • 8 CFR 214.2(h)(11)(iii)
  • 8 CFR 214.2(h)(5)(xi)(B)
  • 8 CFR 214.2(h)(2)(i)(E)
  • 8 CFR 214.2(h)(5)(xi)
  • 8 CFR 214.2(h)(5)(vi)(B)(1)
  • 8 CFR 214.2(h)(5)(vi)(B)(2)
  • 8 CFR 214.2(h)(5)(vi)(B)(3)
  • 8 CFR 214.2(h)(5)(vi)(E)
  • 8 CFR 214.2(h)(5)(vi)
  • 8 CFR 214.2(h)(5)(ix)
  • 8 CFR 214.2(h)(2)(11)(ii)
  • 8 CFR 214.2(h)(5)(i)(F)
  • 8 CFR 214.2(h)(5)(ix)(C)
  • 8 CFR 214.2(h)(5)(x)
  • 8 CFR 214.2(h)(2)(i)(A)
  • 8 CFR 235.1(h)(1)
  • 8 CFR 215
  • 8 CFR 215.2
  • 8 CFR 214.2(h)(2)(vi)(B)
  • 5 USC 601-612
  • 13 CFR 121
  • 8 CFR 214
+ 51 more
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Proposed Rules
Notice of proposed rulemaking
U.S.C.§ 1101
U.S.C.§ 1324a
U.S.C.§ 1182
U.S.C.§ 1227
U.S.C.§ 1253
U.S.C.§ 1184
U.S.C.§ 601
Fed. Reg.Notices
Fed. Reg.Proposed Rules
F. App'x337 F.3d 1373
F. App'x899 F.2d 1185
F. Supp.346 F. Supp. 2d 1312
Cites 151 · showing 12Cited by 0 across 0 sources
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