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Code · REGISTER · 2008-05-28 · U.S. Office of Personnel Management · Rules and Regulations

Rules and Regulations. Proposed rule with request for comments

116,245 words·~528 min read·/register/2008/05/28/08-1303

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

BILLING CODE 3510-22-S 73 103 Wednesday, May 28, 2008 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 532 RIN 3206-AL63 Prevailing Rate Systems; Change in Nonappropriated Fund Federal Wage System Survey Schedule From Fiscal Year to Calendar Year AGENCY: U.S. Office of Personnel Management. ACTION: Proposed rule with request for comments. SUMMARY: The U.S. Office of Personnel Management is issuing a proposed rule to change the annual schedule of nonappropriated fund
(NAF)Federal Wage System wage surveys from a fiscal year cycle to a calendar year cycle. The purpose of this change is to move certain wage surveys to a different time of year and thus optimize the data collection process for those areas. In addition, this change would more evenly distribute the workload for the agency responsible for conducting NAF surveys. DATES: We must receive comments on or before June 27, 2008. ADDRESSES: Send or deliver comments to Charles D. Grimes III, Deputy Associate Director for Performance and Pay Systems, Strategic Human Resources Policy Division, U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415-8200; e-mail *pay-performance-policy@opm.gov;* or FAX:
(202)606-4264. FOR FURTHER INFORMATION CONTACT: Madeline Gonzalez,
(202)606-2838; e-mail *pay-performance-policy@opm.gov;* or FAX:
(202)606-4264. SUPPLEMENTARY INFORMATION: As required by law, Federal Wage System
(FWS)wage surveys must be conducted on a 2-year cycle at annual intervals in each appropriated and nonappropriated fund
(NAF)FWS wage area. A full-scale wage survey is conducted in the first year of the 2-year cycle and an interim (wage-change) survey is conducted between each two consecutive full-scale wage surveys. The U.S. Office of Personnel Management
(OPM)is responsible for prescribing the beginning month of appropriated and NAF wage surveys and the fiscal year during which full-scale wage surveys are conducted. This proposed rule would change the nationwide schedule of NAF regular wage surveys at appendix B to subpart B of part 532 of title 5, Code of Federal Regulations, from a fiscal year cycle to a calendar year cycle. Since a Federal fiscal year straddles two calendar years (i.e., October to September) and only some NAF wage surveys are conducted in the first part of the fiscal year, not all NAF wage areas would be affected by this change. In addition, the lead agency does not need to change the timing of all NAF surveys because many are already conducted at the optimum time, considering agency resources and timing of private sector pay adjustments. Therefore, about one-third of the NAF wage areas would experience no change in the timing of their wage surveys. In the remaining NAF wage areas, the changes in survey schedule would vary from wage area to wage area. In some of the remaining NAF wage areas the wage surveys would be conducted earlier in the year and in others the wage surveys would be conducted later in the year. We note that the adjustment period for this change would be lengthy and some wage areas would require multiple surveys to comply with the 2-year cycle law. However, changing to a calendar year cycle would significantly simplify the scheduling of NAF surveys. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended by consensus that we adopt this change. This change would be effective in January 2009. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees. List of Subjects in 5 CFR Part 532 Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages. U.S. Office of Personnel Management. Linda M. Springer, Director. Accordingly, the U.S. Office of Personnel Management is proposing to amend 5 CFR part 532 as follows: PART 532—PREVAILING RATE SYSTEMS 1. The authority citation for part 532 continues to read as follows: Authority: 5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552. 2. In appendix B to subpart B, revise paragraph
(3)and the table to read as follows: Appendix B to Subpart B of Part 532—Nationwide Schedule of Nonappropriated Fund Regular Wage Surveys
(3)Whether full-scale surveys will be conducted in odd or even numbered calendar years. State Wage area Beginning month of survey Calendar year of full-scale survey odd or even Alabama Calhoun April Even. Madison April Even. Montgomery April Odd. Alaska Anchorage June Even. Arizona Maricopa October Even. Pima October Even. Yuma October Even. Arkansas Pulaski April Odd. California Kern September Odd. Los Angeles September Even. Monterey September Odd. Orange September Even. Riverside September Even. Sacramento February Odd. San Bernardino September Even. San Diego September Odd. San Joaquin February Odd. Santa Barbara September Even. Santa Clara September Odd. Solano September Odd. Ventura September Even. Colorado Arapahoe-Denver July Even. El Paso July Even. Connecticut New London July Even. Delaware Kent August Odd. District of Columbia Washington, DC August Even. Florida Bay January Even. Brevard January Odd. Miami-Dade January Odd. Duval January Odd. Escambia January Even. Hillsborough January Odd. Monroe January Odd. Okaloosa January Even. Orange January Even. Georgia Chatham March Odd. Clayton-Cobb-Fulton June Odd. Columbus June Odd. Dougherty March Odd. Houston April Odd. Lowndes March Odd. Richmond April Odd. Guam Guam September Even. Hawaii Honolulu May Even. Idaho Ada-Elmore July Odd. Illinois Lake April Even. St. Clair April Even. Kansas Leavenworth-Jackson-Johnson April Even. Sedgwick April Odd. Kentucky Christian-Montgomery February Even. Hardin-Jefferson March Even. Louisiana Bossier-Caddo March Odd. Orleans June Odd. Rapides March Odd. Maine Cumberland October Odd. York October Odd. Maryland Anne Arundel August Even. Charles-St. Mary's August Even. Frederick August Even. Harford May Even. Montgomery-Prince George's August Even. Massachusetts Hampden October Odd. Middlesex October Odd. Michigan Macomb May Odd. Minnesota Hennepin July Odd. Mississippi Harrison March Even. Lauderdale March Odd. Lowndes March Odd. Montana Cascade July Odd. Nebraska Douglas-Sarpy April Even. Nevada Churchill-Washoe January Even. Clark January Even. New Jersey Burlington August Odd. Monmouth August Odd. Morris August Odd. New Mexico Bernalillo February Odd. Curry June Odd. Dona Ana February Odd. New York Jefferson May Odd. Kings-Queens October Even. Niagara May Odd. Orange May Odd. North Carolina Craven March Even. Cumberland March Even. Onslow February Even. Wayne March Even. North Dakota Grand Forks July Odd. Ward July Odd. Ohio Greene-Montgomery April Odd. Oklahoma Comanche March Even. Oklahoma March Even. Pennsylvania Allegheny May Odd. Cumberland May Even. Montgomery August Odd. York May Even. Puerto Rico Guaynabo-San Juan February Even. Rhode Island Newport July Even. South Carolina Charleston February Even. Richland March Even. South Dakota Pennington June Even. Tennessee Shelby February Even. Texas Bell June Odd. Bexar June Even. Dallas June Even. El Paso February Odd. McLennan May Odd. Nueces June Even. Tarrant June Even. Taylor June Odd. Tom Green June Odd. Wichita March Even. Utah Davis-Salt Lake-Weber July Odd. Virginia Alexandria-Arlington-Fairfax August Even. Chesterfield-Richmond August Odd. Hampton-Newport News May Even. Norfolk-Portsmouth-Virginia Beach May Even. Prince William August Even. Washington Kitsap June Even. Pierce July Even. Snohomish July Even. Spokane July Odd. Wyoming Laramie July Even. [FR Doc. E8-11838 Filed 5-27-08; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 145, 146, and 147 [Docket No. APHIS-2007-0042] RIN 0579-AC78 National Poultry Improvement Plan and Auxiliary Provisions AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to amend the National Poultry Improvement Plan (the Plan) and its auxiliary provisions by providing new or modified sampling and testing procedures for Plan participants and participating flocks. The proposed changes were voted on and approved by the voting delegates at the Plan's 2006 National Plan Conference. These changes would keep the provisions of the Plan current with changes in the poultry industry and provide for the use of new sampling and testing procedures. DATES: We will consider all comments that we receive on or before July 28, 2008. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0042* to submit or view comments and to view supporting and related materials available electronically. • *Postal Mail/Commercial Delivery:* Please send two copies of your comment to Docket No. APHIS-2007-0042, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0042. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Mr. Andrew R. Rhorer, Senior Coordinator, Poultry Improvement Staff, National Poultry Improvement Plan, Veterinary Services, APHIS, USDA, 1498 Klondike Road, Suite 101, Conyers, GA 30094-5104;
(770)922-3496. SUPPLEMENTARY INFORMATION: Background The National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”) is a cooperative Federal-State-industry mechanism for controlling certain poultry diseases. The Plan consists of a variety of programs intended to prevent and control poultry diseases. Participation in all Plan programs is voluntary, but breeding flocks, hatcheries, and dealers must first qualify as “U.S. Pullorum-Typhoid Clean” as a condition for participating in the other Plan programs. The Plan identifies States, flocks, hatcheries, dealers, and slaughter plants that meet certain disease control standards specified in the Plan's various programs. As a result, customers can buy poultry that has tested clean of certain diseases or that has been produced under disease-prevention conditions. The regulations in 9 CFR parts 145, 146, and 147 (referred to below as the regulations) contain the provisions of the Plan. The Animal and Plant Health Inspection Service (APHIS, also referred to as “the Service”) of the U.S. Department of Agriculture (USDA, also referred to as “the Department”) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan. The proposed amendments discussed in this document are consistent with the recommendations approved by the voting delegates to the National Plan Conference that was held from September 7 to September 9, 2006. Participants in the 2006 National Plan Conference represented flockowners, breeders, hatcherymen, slaughter plants, and Official State Agencies from all cooperating States. The proposed amendments are discussed in detail below. Definitions We are proposing to amend the definition of *equivalent or equivalent requirements* in § 145.1 and the definition of *equivalent* in § 146.1. The definition for both these terms currently reads: “Requirements which are equal to the program, conditions, criteria, or classifications with which compared, as determined by the Official State Agency and with the concurrence of the Service.” We would add the words “or exceed” after the words “equal to,” in order to indicate that the requirements may also be more stringent or restrictive than the requirements with which they are being compared and still be considered equivalent. We would also add the words “they are” after the words “with which” for clarity. We are also proposing to add to the regulations definitions of a body within the NPIP, the NPIP Technical Committee, and a position within the NPIP, the Senior Coordinator. The NPIP Technical Committee would be defined in § 145.1 as: “A committee made up of technical experts on poultry health, biosecurity, surveillance, and diagnostics. The committee consists of representatives from the poultry and egg industries, universities, and State and Federal governments and is appointed by the Senior Coordinator and approved by the General Conference Committee.” The NPIP Technical Committee is currently referred to in the regulations in § 145.15; adding this definition will clarify what we mean by that term. The regulations in § 147.43(d)(1) refer to the Senior Coordinator and his staff administering the provisions of the plan. The definition of *Senior Coordinator* that we are proposing to add to § 145.1 would indicate what roles the Senior Coordinator plays in administering the plan. The Senior Coordinator's duties might include, but would not necessarily be limited to: • Serving as executive secretary of the General Conference Committee; • Serving as chairperson of the Plan Conference described in § 147.47; • Planning, organizing, and conducting the Plan Conference; • Reviewing NPIP authorized laboratories as described in proposed § 147.51 (see the section headed “Authorized Laboratories” later in this document); • Coordinating the State administration of the NPIP through periodic reviews of the administrative procedures of the Official State Agencies, according to the applicable provisions of the Plan and the Memorandum of Understanding required in §§ 145.2(a) and 146.2(a); • Coordinating rulemaking to incorporate the proposed changes of the provisions approved at the Plan conference into the regulations in 9 CFR parts 145, 146, and 147; • Directing the production of official NPIP publications; • Proposing an annual budget for plan activities and the General Conference Committee; and • Providing overall administration of the NPIP. Contact Representatives The regulations in §§ 145.2(a) and 146.2(a) state that the Department cooperates through a Memorandum of Understanding with the Official State Agency in the administration of the Plan. One key component of the Memorandum of Understanding is the Official State Agency's designation of a contact representative to serve as a liaison between the Service and the Official State Agency. The contact representative facilitates communication between the two organizations. While we have requested that Official State Agencies designate contact representatives in their Memoranda of Understanding, we currently do not require them to do so in the regulations. However, because this position is crucial to the effective operation of the NPIP, we are proposing to make the designation of a contact representative by the Official State Agency a requirement. To accomplish this, we would add a sentence to the end of §§ 145.2(a) and 146.2(a) that would read as follows: “In the Memorandum of Understanding, the Official State Agency must designate a contact representative to serve as a liaison between the Service and the Official State Agency.” Official Tests for Avian Influenza The regulations in §§ 145.14(d) and 146.13(b) set out the NPIP approved tests for avian influenza in breeding poultry and commercial poultry, respectively. These paragraphs provide for the use of the agar gel immunodiffusion
(AGID)test, under the procedures set forth in § 147.9, and the enzyme-linked immunosorbent assay (ELISA). The AGID test must be conducted on all ELISA-positive samples. Positive tests by AGID or ELISA must be further tested by Federal Reference Laboratories. Final judgment may be based upon further sampling or culture results. In addition, the tests must be conducted using antigens or test kits approved by the Service. Test kits for ELISA must be licensed by the Service and approved by the Official State Agency, and tests must be performed in accordance with the recommendations of the producer or manufacturer. Paragraph
(b)of § 146.13 further requires that the official determination of a flock as positive for the H5 or H7 subtypes of low pathogenic avian influenza may be made only by the Service's National Veterinary Services Laboratories (NVSL). This paragraph also states that the AGID and ELISA tests may be performed either on egg yolk or blood samples. Otherwise, §§ 145.14(d) and 146.13(b) are substantively identical. We are proposing to amend §§ 145.14(d) and 146.13(b) to include two agent detection tests in addition to the AGID and ELISA antibody detection tests. To accommodate the addition of the agent detection tests, we would reorganize §§ 145.14(d) and 146.13(b) by splitting each of those paragraphs into two subparagraphs. The requirements related to the antibody detection tests would then appear under the heading “Antibody detection tests” in §§ 145.13(d)(1) and 146.13(b)(1), respectively. We would indicate in both paragraphs that the AGID test must be conducted using reagents approved by the Department and the Official State Agency, and that it can be performed on egg yolk or blood samples. (The ELISA could still be performed on egg yolk or blood samples as long as it is performed in accordance with the recommendations of the producer or manufacturer.) We are also proposing to add the new provisions for agent detection tests in §§ 145.14(d)(2) and 146.13(b)(2), respectively. Authorized laboratories would be allowed to perform tests that detect influenza A matrix gene or protein, but not tests that determine hemagglutinin or neuraminidase subtypes; all tests that determine those subtypes should be performed by National Animal Health Laboratory Network members, to ensure the reliability of their results. Samples for agent detection testing would be collected from naturally occurring flock mortality or clinically ill birds, to increase the sensitivity of the testing. We would provide for the use of two agent detection tests: The real time reverse transcriptase/polymerase chain reaction (RRT-PCR) assay and the USDA-licensed type A influenza antigen capture immunoassay (ACIA). The RRT-PCR and the ACIA are rapid flock screening tools that can provide highly specific, scalable results on the same day (the RRT-PCR within 3 to 5 hours and the ACIA within 15 minutes). These tests would have significant value both as screening tests and as part of initial State response and containment plans to control avian influenza (as described in 9 CFR 56.10). The RRT-PCR tests would have to be conducted using reagents approved by the Department and the Official State Agency. The RRT-PCR would have to be conducted using the NVSL official protocol for RRT-PCR (AVPR01510) and be conducted by personnel who have passed an NVSL proficiency test. Positive results from the RRT-PCR would have to be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment could be based upon further sampling and appropriate tests for confirmation. The USDA-licensed type A influenza ACIA would have to be conducted using test kits approved by the Department and the Official State Agency and would have to be conducted in accordance with the recommendations of the producer or manufacturer. Positives on the ACIA would have to be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment could be based upon further sampling and appropriate tests for confirmation. Finally, we would amend § 145.14(d) to indicate there as well that the official determination of a flock as positive for the H5 or H7 subtypes avian influenza may be made only by NVSL. In a related change, we are proposing to move the requirements in § 145.15, “Approved tests,” to a new § 147.52. We would also add a new § 147.51 to describe the requirements for authorized laboratories; these proposed changes are discussed later in this document under the heading “Authorized Laboratories.” The new §§ 147.51 and 147.52 would be placed in a new subpart in 9 CFR part 147 to collect the provisions governing approval of laboratories and tests. Diagnostic Surveillance Plan for H5/H7 Low Pathogenic Avian Influenza In an interim rule published and effective September 26, 2006 (71 FR 53601-56333, Docket No. APHIS-2005-0109), we amended the regulations to establish a voluntary control program for the H5/H7 subtypes of low pathogenic avian influenza (H5/H7 LPAI) in commercial poultry—specifically, in table-egg layers, meat-type chickens, and meat-type turkeys. This voluntary control program includes a requirement for participating States to develop a diagnostic surveillance program that includes all poultry in the State, not just commercial poultry. The regulations governing the development of such a program are found in § 146.14. Participation in the voluntary control program is a condition for States and large producers to be eligible to receive 100 percent indemnity for costs related to an outbreak of H5/H7 LPAI under 9 CFR part 56. We are proposing to add a new § 145.15 that duplicates the regulations in § 146.14 to ensure that participants in the NPIP for breeding poultry are aware that States participating in the voluntary control program must develop a diagnostic surveillance program that includes both breeding and commercial poultry. Testing Requirements for U.S. Avian Influenza Clean Programs for Multiplier Egg-Type Chicken, Meat-Type Chicken, and Turkey Breeding Flocks The regulations set out requirements for the U.S. Avian Influenza Clean classifications for multiplier egg-type chicken breeding flocks, multiplier meat-type chicken breeding flocks, and multiplier turkey breeding flocks at §§ 145.23(h)(2), 145.33(l)(2), and 145.43(g)(2), respectively. These paragraphs all require that, for a multiplier breeding flock to retain the U.S. Avian Influenza Clean classification, a sample of at least 30 birds must be tested negative at intervals of 180 days, or a sample of fewer than 30 birds may be tested, and found to be negative, at any one time if all pens are equally represented and a total of 30 birds is tested within each 180-day period. However, due to the virulence of the avian influenza virus and the minute amount of infective fecal material and respiratory secretions required to transmit the virus and infect a flock, industry participants have determined that the 180-day interval between tests is too long to provide satisfactory assurance that the flocks being tested are U.S. Avian Influenza Clean for these types of poultry. The U.S. Avian Influenza Clean programs for primary breeding flocks of egg-type chickens, meat-type chickens, and turkeys (in §§ 145.73(f)(1), 145.83(g)(1), and 145.43(g)(1), respectively) require testing every 90 days. We believe this interval is appropriate for all flocks of these types of poultry. Therefore, we are proposing to replace references to the 180-day testing interval in §§ 145.23(h)(2), 145.33(l)(2), and 145.43(g)(2) with references to a 90-day testing interval. We believe this change would help to ensure that flocks with the U.S. Avian Influenza Clean classification are free of avian influenza. The regulations currently require that 30 birds be tested negative at intervals of 180 days. For multiplier breeding flocks of egg-type chickens and turkeys, we would retain the requirement that 30 birds be tested while reducing the interval at which they are tested to 90 days. For multiplier breeding flocks of meat-type chickens, we would require that 15 birds be tested negative every 90 days. Egg-type chicken and turkey breeding flocks receive much more regular supervision than meat-type chicken breeding flocks, and those industries determined that testing the same number of birds over a shorter interval would be practical. The changes to the testing requirement for meat-type chicken breeding flocks would result in the same number of these birds being tested as are tested under the current regulations, but would still increase the assurance that the flocks tested are U.S. Avian Influenza Clean by providing more frequent results. The waterfowl, exhibition poultry, and game bird breeding industry considered this change and determined that it is not appropriate at this time; multiplier waterfowl, exhibition poultry, and game bird breeding flocks participating in the U.S. Avian Influenza Clean program would continue to be tested at intervals of 180 days. Option for Reporting Poultry Sales for Waterfowl, Exhibition Poultry, and Game Bird Breeding Flocks and Products The regulations for the participation of waterfowl, exhibition poultry, and game bird breeding flocks in § 145.52 state that, subject to the approval of the Service and the Official State Agencies in the relevant States, participating flocks may report poultry sales by using printouts of computerized monthly shipping and receiving reports in lieu of Veterinary Services
(VS)Form 9-3, “Report of Sales of Hatching Eggs, Chicks, and Poults.” The regulations do not state what information would need to be included in such monthly shipping and receiving reports if they are used in lieu of VS Form 9-3. We are proposing to add requirements for these monthly shipping and receiving reports to the regulations. The regulations would state specifically that a hatchery invoice form (9-3I) approved by the Official State Agency and the Service may be used in lieu of VS Form 9-3 to identify poultry sales to clients. If the selling hatchery uses the 9-3I form, we would require that the following information be included on the form: • The form number “9-3I,” printed or stamped on the invoice; • The hatchery name and address; • The date of shipment; • The hatchery invoice number; • The purchaser name and address; • The quantity of products sold; • Identification of the products by bird variety or by NPIP stock code as listed in the NPIP APHIS 91-55-078 appendix; and • The appropriate NPIP illustrative design in § 145.10. One of the designs in § 145.10(b) or
(g)would have to be used. The following information would have to be provided in or near the NPIP design: ○ The NPIP State number and NPIP hatchery approval number; and ○ The NPIP classification for which product is qualified (e.g., U.S. Pullorum-Typhoid Clean). This change would ensure that reports provided in lieu of VS Form 9-3 would have standard information and make it easy to use such reports in place of that form. New U.S. Avian Influenza Clean Classification for Ostrich, Emu, Rhea, and Cassowary Breeding Flocks and Products Subpart F of 9 CFR part 145 contains the special Plan provisions for ostrich, emu, rhea, and cassowary breeding flocks and products. Section 145.63 contains the requirements for ostrich, emu, rhea, and cassowary breeding flocks to earn the U.S. Pullorum-Typhoid Clean classification. We are proposing to add a U.S. Avian Influenza Clean classification to § 145.63, in a new paragraph (b). This classification would be the basis from which the breeding-hatchery industry may conduct a program for the prevention and control of avian influenza. It would be intended to determine the presence of avian influenza in all ostrich, emu, rhea, and cassowary breeding flocks through routine serological surveillance of each participating breeding flock. Acceptable tests would include antigen and antibody detection tests, as approved by the Official State Agency. An ostrich, emu, rhea, or cassowary breeding flock, and the hatching eggs and chicks produced from it, would qualify for this classification when the Official State Agency determines that it has met one of the following requirements: • It is a primary breeding flock in which 10 percent of the flock, up to a maximum of 30 birds, has been tested negative for type A influenza virus with all pens represented equally and when the tested birds are more than 4 months of age. Positive samples would be further tested by an authorized laboratory. To retain this classification, a sample of at least 30 birds would have to be tested negative at intervals of 180 days, or a sample of less than 10 percent of the birds up to a maximum of 30 birds could be tested, and found to be negative, at any one time if all pens are equally represented and a total of 30 birds are tested within each 180-day period. • It is a multiplier breeding flock in which a minimum of 30 birds has been tested negative to type A influenza virus with all pens represented equally and when the tested birds are more than 4 months of age. Positive samples would be further tested by an authorized laboratory. To retain this classification, a sample of at least 30 birds would have to be tested negative at intervals of 180 days, or a sample of at least 10 percent of birds from each pen with all pens being represented would have to be tested negative at intervals of 180 days; or a sample of less than 10 percent of the birds could be tested, and found to be negative, at any one time if all pens are equally represented and a total of 10 percent of the birds are tested within each 180-day period. These requirements are similar to the requirements in the U.S. Avian Influenza Clean classification for waterfowl, exhibition poultry, and game bird breeding flocks and products. Audit Process for Commercial Poultry Slaughter Plants In part 146, which contains the NPIP provisions for commercial poultry, § 146.11 sets out the process for inspecting participating slaughter plants. Paragraph
(a)of § 146.11 requires each participating slaughter plant to be audited at least once annually or a sufficient number of times each year to satisfy the Official State Agency that the participating slaughter plant is in compliance with the provisions of 9 CFR part 146. Paragraph
(b)provides that on-site inspections of any participating flocks and premises will be conducted if a State Inspector determines that a breach of testing has occurred for the Plan programs for which the flocks are certified. Paragraph
(c)provides that the official H5/H7 LPAI testing records of all participating flocks and slaughter plants shall be examined annually by a State Inspector and that official H5/H7 LPAI testing records shall be maintained for 3 years. The regulations currently do not provide any detail regarding the audit process described in paragraph (a). We are proposing to describe this process in detail in the regulations, to inform regulated parties, trading partners, and the general public regarding the information we examine and the consequences if an audit finds that a slaughter plant is not complying with the regulations. The yearly audit would consist of an evaluation of 2 weeks' worth of records, selected at random, of the following data: • The actual flock slaughter date for each flock. This information would be required to come from a verifiable source. Verifiable sources would include electronic record systems that have oversight from the Department's Grain Inspection, Packers and Stockyards Administration or Food Safety and Inspection Service
(FSIS)documents such as FSIS Form 9061-2. • Laboratory test results for each flock slaughtered with the sample collection date and test result. The test would have to be NPIP-approved and performed in an authorized laboratory of the NPIP. We would redesignate current paragraphs
(b)and
(c)as paragraphs
(d)and (e), respectively, and add new paragraphs
(b)and
(c)to further describe the audit process. Under proposed paragraph (b), a flock would be considered to be not conforming to protocol if there are no test results available, if the flock was not tested within 21 days before slaughter, or if the test results for the flock were not returned before slaughter. Under proposed paragraph (c), two or more flocks that are found to be not conforming to protocol in the yearly audit for a slaughter plant would be cause for a deficiency rating for that plant. However, if the root cause for the deficiency was identified, corrected, and documented, the plant would be eligible for an immediate reevaluation of 2 additional weeks' worth of records, again selected at random. If no more than one missed flock was identified in this reevaluation, the plant would be considered in compliance and no further action would be required. Plants found to be deficient would have to provide a written corrective action plan to the auditor within 2 weeks of receipt of the deficiency rating. A followup audit on the information in proposed paragraphs (a)(1) and (a)(2) would occur within 90 days from the receipt of the corrective action plan. Slaughter plants would retain their Plan classification and could continue to use the Plan emblem during this process. However, a failure on the followup audit could result in disbarment from participation in the NPIP according to the procedures in § 146.12. Sampling at Commercial Meat-Type Turkey Slaughter Plants The regulations in § 146.43(a) set out the requirements meat-type turkey slaughter plants must fulfill in order to qualify for the U.S. H5/H7 Avian Influenza Monitored classification. Paragraphs (a)(1) and (a)(2) offer two options for qualifying for the classification: The plant must either test a sample of a minimum of 60 birds each month for antibodies to type A avian influenza virus or have an ongoing active and diagnostic surveillance program for the H5/H7 subtypes of avian influenza in which the number of birds tested is equivalent to 60 each month and that is approved by the Official State Agency and the Service. We are proposing to amend paragraph (a)(1) to indicate that a participating meat-type turkey slaughter plant may accept only meat-type turkeys from flocks where a minimum of 6 birds per flock has tested negative for antibodies to type A avian influenza virus with an approved test no more than 21 days prior to slaughter. This level of testing is sufficient to establish the meat-type turkey slaughter plant as U.S. H5/H7 Avian Influenza Monitored under the Plan. The proposed provisions would also explicitly allow for testing at the flock level (prior to slaughter), an option that has been requested by the meat-type turkey industry. Testing at slaughter would still be authorized under paragraph § 146.43(a)(2), which allows slaughter plants to use any ongoing active and diagnostic surveillance program for the H5/H7 subtypes of avian influenza in which the number of birds tested is equivalent to the number required in paragraph (a)(1) and that is approved by the Official State Agency and the Service. Testing at slaughter could fulfill this requirement, subject to approval by the Official State Agency and the Service. New U.S. H5/H7 Avian Influenza Classification for Raised-for-Release Upland Game Birds, Raised-for-Release Waterfowl, Commercial Upland Game Birds and Commercial Waterfowl The regulations in 9 CFR part 146 provide for the participation of commercial table-egg layers, commercial meat-type chickens, and commercial meat-type turkeys in the NPIP and in the U.S. H5/H7 Avian Influenza Monitored classification. The commercial upland game bird and waterfowl industries and the raised-for-release upland game bird and waterfowl industries have expressed interest in controlling H5/H7 avian influenza in their flocks by participating in part 146 and in a U.S. H5/H7 Avian Influenza Monitored classification. In this document, we are proposing to provide for such a classification. We would add provisions for the participation of these birds in the NPIP in a new Subpart E of part 146, titled “Special Provisions for Commercial Upland Game Birds, Commercial Waterfowl, Raised-for-Release Upland Game Birds, and Raised-for-Release Waterfowl.” Specifically, the subpart would provide for the participation of commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, and raised-for-release waterfowl premises in the Plan. It would also describe the testing that would be required for commercial upland game bird and commercial waterfowl slaughter plants and raised-for-release upland game bird and waterfowl premises to achieve the U.S. H5/H7 Avian Influenza Monitored classification. Section 146.51 of this new subpart would define the types of birds to which these special provisions would apply as follows: *Commercial upland game birds.* Upland game bird pheasants, quail, or partridges grown under confinement for the primary purpose of producing meat for human consumption. *Commercial waterfowl.* Domesticated ducks or geese grown under confinement for the primary purpose of producing meat for human consumption *Raised-for-release upland game birds.* Pheasants, quail, and partridge that are raised under confinement for release in game preserves and are not breeding stock. *Raised-for-release waterfowl.* Waterfowl that are raised under confinement for release in game preserves and are not breeding stock. This section defines commercial upland game bird and commercial waterfowl slaughter plants as plants that are federally inspected or under State inspection that FSIS has recognized as equivalent to Federal inspection. It also defines *shift* as: “The working period of a group of employees who are on duty at the same time.” Section 146.52, “Participation,” would state that participating commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, and raised-for-release waterfowl premises shall comply with applicable general provisions of subpart A of part 146 and the special provisions of proposed subpart E, which include the proposed testing requirements. However, the section would provide exemptions from the special provisions of subpart E for: • Commercial waterfowl and commercial upland game bird slaughter plants that slaughter fewer than 50,000 birds annually. • Raised-for-release upland game bird premises and raised-for-release waterfowl premises that raise fewer than 25,000 birds annually. The proposed size standard for commercial waterfowl and commercial upland game bird slaughter plants is consistent with the National Duck Council's definitions for such plants. The proposed size standard for raised-for-release upland game bird premises and raised-for-release waterfowl premises is consistent with the North American Gamebird Association's definition of a commercial premises of these types. Section 146.53, “Terminology and classification; slaughter plants and premises,” would set out active surveillance requirements for participating commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, and raised-for-release waterfowl premises. Paragraph
(a)would set out active surveillance requirements for commercial upland game bird slaughter plants and commercial waterfowl slaughter plants. The active surveillance requirements we are proposing to add in § 146.53(a) are intended for commercial upland game bird slaughter plants and commercial waterfowl slaughter plants that slaughter 50,000 or more of these types of poultry annually. However, smaller commercial upland game bird slaughter plants and commercial waterfowl slaughter plants are eligible to participate in the NPIP, as long as the State in which they are located participates in the NPIP. We believe that diagnostic surveillance in accordance with § 146.14 and inspections in accordance with § 146.11, which are required in the general provisions in subpart A, are adequate to determine whether H5/H7 LPAI is present on such premises. Under paragraph
(a)of proposed § 145.53, a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant would be eligible for the U.S. H5/H7 Avian Influenza Monitored classification if it meets one of the following requirements: • It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant where a minimum of 11 birds per shift are tested negative for the H5/H7 subtypes of avian influenza at slaughter; • It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant that only accepts commercial upland game birds or commercial waterfowl from flocks where a minimum of 11 birds per flock have been tested negative for antibodies to the H5/H7 subtypes of avian influenza no more than 21 days prior to slaughter; or • It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant that has an ongoing active and passive surveillance program for H5/H7 subtypes of avian influenza that is approved by the Official State Agency and the Service. Both of the first two of these proposed testing requirements would be sufficient to establish the commercial waterfowl or commercial upland game bird slaughter plants as U.S. H5/H7 Avian Influenza Monitored under the Plan, consistent with the other U.S. H5/H7 Avian Influenza Monitored classifications in 9 CFR part 146. Allowing participating slaughter plants to choose between them would give the slaughter plants some flexibility. Any ongoing active and diagnostic surveillance program that is approved by the Official State Agency and APHIS would have to test a number of birds equivalent to the other two options, but this by itself would not be sufficient to secure approval for the program; the Official State Agency and APHIS would have to agree that the detailed testing plan for the alternate program is sufficient to establish a level of confidence for the detection of AI that is equivalent to that of the other two options. Allowing participating slaughter plants to develop an alternative ongoing active and diagnostic surveillance program of equivalent efficacy would give the plants some additional flexibility. Paragraph
(b)would set out active surveillance requirements for raised-for-release upland game bird premises and raised-for-release waterfowl premises. The active surveillance requirements we are proposing to add in § 146.53(b) are intended for raised-for-release upland game bird premises and raised-for-release waterfowl premises that raise 25,000 or more of these types of poultry annually. However, smaller raised-for-release upland game bird premises and raised-for-release waterfowl premises are eligible to participate in the NPIP, as long as the State in which they are located participates in the NPIP. We believe that diagnostic surveillance in accordance with § 146.14, which is required in the general provisions in subpart A, is adequate to monitor whether H5/H7 LPAI is present on such premises. Under paragraph (b), a raised-for-release upland game bird premises or raised-for-release waterfowl premises would qualify for the U.S. H5/H7 Avian Influenza Monitored classification when the Official State Agency determines that a representative sample of 30 birds from the participating premises has been tested with negative results for the H5/H7 subtypes of avian influenza every 90 days. This testing would be for premises monitoring purposes and would not be intended to establish the premises as free of the H5/H7 subtypes of avian influenza. Because this change would expand the ranks of commercial poultry producers who are eligible to participate in the Plan, we would amend the definition of *commercial meat-type flock* in § 146.1 to include commercial upland game birds and commercial waterfowl; amend § 146.3 to reflect the participation of the commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, and raised-for-release waterfowl premises; make appropriate changes to § 146.6 to reflect the addition of the two new types of slaughter plants; and amend § 146.9 to indicate that the new participants may use the U.S. H5/H7 Avian Influenza Monitored illustrative design. We would amend § 147.45 to indicate that each cooperating State is entitled to one delegate for the program we are proposing to describe in a new subpart E in 9 CFR part 146. (In addition, in a final rule that was published in the **Federal Register** on January 12, 2007 (72 FR 1416-1426, Docket No. APHIS-2006-0008), and effective on February 12, 2007, we added new subparts G and H for primary egg-type and meat-type chicken breeding flocks, but neglected to update § 147.45 to indicate that each cooperating State would be entitled to one delegate for each of these subparts. We are proposing to correct that error in this document.) We would also amend § 147.46(a) to establish a committee to give preliminary considerations to proposed changes falling in the field of commercial upland game birds and waterfowl and raised-for-release upland game birds and waterfowl. Amendment to Standard AGID Test Procedure for Avian Influenza The regulations in § 147.9(a) describe the standard AGID test procedure for avian influenza. Within § 147.9(a), paragraph (a)(4)(i)(F) describes two options for placing AGID antigen, AI AGID positive control antiserum, and test sera into wells formed in agar on a petri plate. Paragraph (a)(4)(i)(F)( *1* ) describes a method (shown in figure 1) in which AGID antigen is placed in the center well, AI AGID positive control antiserum is placed in each of two opposite wells, and test sera are placed in each of the four remaining wells. Paragraph (a)(4)(i)(F)( *2* ) describes a method (shown in figure 2) in which AGID antigen is placed in the center well, AI AGID positive control antiserum is placed in each of three alternate peripheral wells, and test sera are placed in each of the three remaining wells. BILLING CODE 3410-34-P EP28MY08.003 EP28MY08.004 BILLING CODE 3410-34-C The arrangement in figure 1 provides a positive control line on one side of the test serum, thus providing for the development of lines of identity; the arrangement in figure 2 provides a positive control line on each side of the test serum, thus providing for the development of lines of identity on both sides of each test serum. While most positive test sera will result in clear-cut evidence of a positive agar gel reaction, there are times early in AI infection when the test sera may only contain small amounts of antibody. This will cause the tips of the lines of identity to bend slightly inward, which is indicative of a weak positive on the AGID. Having two lines converging towards a test well provides a better opportunity to have an accurate and precise interpretation of the positive reaction or to distinguish a nonspecific reaction. Therefore, we are proposing to remove the option described in paragraph (a)(4)(i)(F)( *1* ) from the regulations. A revised (a)(4)(i)(F) would only set out the second option; figure 1 would be removed, and figures 2 and 3 would be redesignated as figures 1 and 2, respectively. Laboratory Procedures for New Real-Time Polymerase Chain Reaction Test for Mycoplasma Gallisepticum Subpart D of 9 CFR part 147 sets out procedures to follow when performing molecular examinations for Plan diseases. We are proposing to add a new description of the laboratory procedures recommended for the real-time polymerase chain reaction
(PCR)test for *Mycoplasma gallisepticum* (MGLP ReTi) in § 147.31. The method described in proposed § 147.31 has been published in peer-reviewed journals and validated with over 1,200 samples. It has also been shown to be more sensitive than traditional isolation methods. Adding this testing procedure to the regulations would keep Plan molecular examination procedures current with recent science. A detailed description of the procedure can be found in the text of proposed § 147.31 that appears at the end of this document. In a related change, we are proposing to add a new paragraph (b)(5) to § 145.14(b), which describes the official tests for *M. gallisepticum* and *M. synoviae.* This new paragraph would state that the official molecular examination procedures for *M. gallisepticum* and *M. synoviae* are the PCR test described in § 147.30 and the real-time PCR test described in proposed § 147.31. Adding this language in § 145.14(b)(5) would clearly indicate that the tests described in § 147.30 and proposed § 147.31 are considered official tests of the Plan. Amendments to General Conference Committee Description The regulations in § 147.43(d) describe the duties and functions of the General Conference Committee
(GCC)of the National Poultry Improvement Plan in advising and administering the Plan. We are proposing to make two changes in this paragraph: • Paragraph (d)(4) of § 147.43 provides that the GCC will recommend whether new proposals (i.e., proposals that have not been submitted as provided in § 147.44) should be considered by the delegates to the Plan Conference. We would add that the GCC will consider each proposal submitted as provided in § 147.44 and make recommendations to subpart Committees and the Conference, and that it will meet jointly with the NPIP Technical Committee and consider the technical aspects and accuracy of each proposal. These amendments would reflect current Plan operations. • Paragraph (d)(6) provides that the GCC will serve as a forum for the study of problems relating to poultry health and as the need arises, to make specific recommendations to the Secretary of Agriculture concerning ways in which the Department may assist the industry in solving these problems. Because the GCC acts as an official advisory committee, we would remove the words “a forum” and replace them with the words “an official advisory committee.” Authorized Laboratories In the definitions in §§ 145.1 and 146.1, *authorized laboratory* is defined as a laboratory designated by an Official State Agency, subject to review by the Service, to perform the blood testing and bacteriological examinations provided for in 9 CFR part 145. Under this definition, the Service's review will include, but will not necessarily be limited to, checking records, laboratory protocol, check-test proficiency, periodic duplicate samples, and peer review. A satisfactory review will result in the authorized laboratory being recognized by the Service as a nationally approved laboratory qualified to perform the blood testing and bacteriological examinations provided for in 9 CFR part 145 or the diagnostic assays provided for in 9 CFR part 146. In this document, we are proposing to add more detailed requirements for authorized laboratories to the regulations. We would establish a new § 147.51 with the heading “Authorized laboratory minimum requirements.” This section would be added in a new subpart F with the heading “Authorized laboratories and approval of tests.” The introductory text of § 147.51 would state that the section contains minimum requirements that are intended to be the basis on which an authorized laboratory of the Plan can be evaluated to ensure that official Plan assays are performed and reported as described in 9 CFR part 147. A satisfactory evaluation would result in the laboratory being recognized by the NPIP office of the Service as an authorized laboratory qualified to perform the assays provided for in 9 CFR part 147. The minimum requirements would be the following: • *Check-test proficiency.* The laboratory would have to use a regularly scheduled check test for each assay that it performs. The check test serves to ensure the integrity of the testing procedure as it is being performed in the laboratory. • *Trained technicians.* The testing procedures at the laboratory would have to be run or overseen by a laboratory technician who has attended and satisfactorily completed Service-approved laboratory workshops for Plan-specific diseases within the past 3 years. This training requirement would ensure that the tests are being run consistently across authorized laboratories. • *Laboratory protocol.* Official Plan assays would have to be performed and reported as described in 9 CFR part 147. • *State site visit.* The Official State Agency would conduct a site visit and recordkeeping audit annually. • *Service review.* Authorized laboratories would be reviewed by the NPIP staff every 3 years. The Service's review might include, but would not necessarily be limited to, checking records, laboratory protocol, check-test proficiency, technician training, and peer review. This requirement (with the exception of the Service checking technician training) is taken from the current definition of *authorized laboratory* in § 145.1. • *Reporting.* A memorandum of understanding or other means would be used to establish testing and reporting criteria to the Official State Agency, including criteria that provide for reporting H5 and H7 low pathogenic avian influenza directly to the Service. *Salmonella pullorum* and *Mycoplasma* Plan disease reactors would have to be reported to the Official State Agency within 48 hours. • *Verification.* Random samples could also be required to be submitted for verification as specified by the Official State Agency. These requirements would ensure that authorized laboratories perform accurate and rigorous testing in the service of Plan programs. To reflect this change, we would revise the definitions of *authorized laboratory* in §§ 145.1 and 146.1. The new definitions would read: “An authorized laboratory is a laboratory that meets the requirements of § 147.51 and is thus qualified to perform the assays described in part 147 of this subchapter.” Miscellaneous Change In the January 2008 final rule mentioned earlier in this document, we removed and reserved paragraph
(b)of § 147.11, which contained footnotes 8 through 11 in 9 CFR part 147. However, we neglected to redesignate the other footnotes in that part to reflect the removal of those four footnotes. In this proposal, we would correct that error by redesignating footnotes 12 through 24 as footnotes 8 through 20. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. We are proposing to amend the Plan and its auxiliary provisions by providing new or modified sampling and testing procedures for Plan participants and participating flocks. The proposed changes were voted on and approved by the voting delegates at the Plan's 2006 National Plan Conference. These changes would keep the provisions of the Plan current with changes in the poultry industry and provide for the use of new sampling and testing procedures. The United States is the world's largest poultry producer, the second-largest egg producer, and the largest exporter of poultry meat. U.S. poultry meat production totals over 42 billion pounds annually; over four-fifths is broiler meat, most of the remainder is turkey meat, and a small fraction is other chicken meat. Cash receipts (see table 1) from sales of poultry and eggs (broilers, farm chickens, eggs, turkey, ducks, and other poultry) were about $28.9 billion in 2005 (with preliminary value for 2006 and forecasted value for 2007 being a little higher). 1 Of this total, 72 percent was from broilers, 14 percent from eggs, 11 percent from turkeys, and 3 percent from other poultry. 1 USDA/Economic Research Service (ERS), Farm Income/Cash receipts, 2002-2007. Table 1.—Cash Receipts for Poultry and Eggs, United States, 2000-05, 2006, and 2007 Commodity 2002 2003 2004 2005 2006 P 2007 F $1,000 Poultry/eggs 21,138,999 23,959,134 29,540,692 28,903,545 27,700,000 29,600,000 Broilers 13,437,700 15,214,945 20,446,096 20,901,934 19,000,000 20,100,000 Farm chickens 49,850 47,508 57,260 63,963 + + Chicken eggs 4,232,433 5,273,099 5,239,082 4,000,142 4,400,000 5,100,000 Turkeys 2,643,273 2,631,862 2,995,802 3,157,637 3,500,000 3,500,000 Ducks 15,300 19,200 20,900 21,390 + + Other poultry 760,443 772,521 781,553 758,479 800,000 900,000 P = preliminary, F = forecast, + = included in other poultry. Source: USDA/Economic Research Service (ERS), Farm Income/Farm cash Receipts, 1924-2005, 2006 P , and 2007 F ) *(http://www.ers.usda.gov/data/FarmIncome/finfidmuxls.htm).* In terms of tonnage, poultry production and trade exceeds that of beef or pork. For instance, in 2006, the U.S. produced 41.4 billion pounds of poultry meat, compared with 26.2 billion pounds of beef and 21 billion pounds of pork. The U.S. also produced 6.5 billion dozen eggs in 2006. Per capita consumption of poultry meat (103.8 pounds in 2006) exceeds per capita consumption of both beef (65.7 pounds) and pork (49.3 pounds). Furthermore, the U.S. exports more poultry meat (5.8 billion pounds in 2006) than beef and veal (1.2 billion pounds) or pork (3 billion pounds). 2 2 USDA/ERS, Livestock, Dairy, and Poultry Outlook/LDP-M-158, August 20, 2007. Broiler production is concentrated in a group of States stretching from Delaware south along the Atlantic coast to Georgia, then westward through Alabama, Mississippi, and Arkansas. The top broiler-producing State is Georgia, followed by Arkansas, Alabama, North Carolina, Mississippi, and Texas. Operations in these States account for over 65 percent of broiler cash receipts. Most U.S. broiler production is conducted under contract with broiler processors. The grower normally supplies the grow-out house with all the necessary heating, cooling, feeding, and watering systems. The grower also supplies the labor needed in growing the birds. The broiler processor supplies the chicks, feed, and veterinary medicines. The processor schedules transportation of the birds from the farm to the slaughter plant. In many cases, the processor also supplies the crews who place broilers into cages for transportation to the slaughter plant. The U.S. turkey industry produces over one-quarter of a billion birds annually, with the live weight of each bird averaging over 25 pounds. Production of turkeys is somewhat more scattered geographically than broiler production. The top five turkey-producing States are Minnesota, North Carolina, Missouri, Arkansas, and Virginia. The United States is by far the world's largest turkey producer, followed by the European Union. Even though exports are a major component of the U.S. turkey industry, the United States consumes more turkey per capita than any other country. U.S. egg operations produce over 77 billion eggs annually. Over three-fourths of egg production is for human consumption (the table-egg market). The remainder of production is for the hatching market. These eggs are hatched to provide replacement birds for the egg-laying flocks and broiler chicks for grow-out operations. The top five egg-producing States are Iowa, Ohio, Pennsylvania, Indiana, and California. 3 3 USDA/ERS, Livestock, Dairy, and Poultry Outlook/LDP-M-158, August 20, 2007. The United States is the world's largest exporter of poultry meat. Annual poultry meat exports totaled about 5.8 billion pounds in 2006, which is about 14.5 percent of U.S. production. (All trade statistics in this and the following paragraph are for 2006.) Demand for U.S. poultry meat products has fluctuated over the last several years due to changing economic conditions and currency exchange rates in major importing countries. The largest importers of U.S. broiler products are Russia, Mexico, China, Canada, Hong Kong, Turkey, Taiwan, Angola, South Korea, and Ukraine. Together, these markets accounted for over 74 percent of U.S. poultry meat exports, on a quantity basis. The United States imports only small amounts of poultry meat, accounting for less than two-tenths of 1 percent of domestic production. Over 98 percent of imports come from Canada. As in the case of poultry meat, U.S. exports of live poultry and exports of fresh shell eggs are widely distributed and significantly outweigh imports of these products. The United States exported 1.302 million eggs and imported 65.4 million eggs in 2006. The major importers of eggs are Canada, Mexico, Jamaica, United Kingdom, Hong Kong, Brazil, Trinidad and Tobago, Dominican Republic, Guyana, and Nicaragua. These countries altogether accounted for about 80 percent of U.S. egg exports. U.S. imports are mainly from Canada, China, France, and Taiwan. These countries together accounted for 91 percent of U.S. imports of eggs. The United States exported 51 million live poultry and imported 13.7 million live poultry in 2006. Major destinations include Canada, Mexico, China, Thailand, Peru, Colombia, Guatemala, Indonesia, Egypt, and El Salvador. These countries accounted for 70 percent of U.S. total live poultry exports. All U.S. imports of live poultry came from Canada, United Kingdom, and Italy. The decision to participate in the NPIP program is voluntary. Being a participating flock in NPIP has many benefits. These include: The flock being recognized as a participating member of NPIP; the flock having an approval number which may be used on shipping labels, certificates, invoices, and other documents for identification purposes; the flock being listed in the official *NPIP Directory of Participants;* free listing in various State fair brochures; and receiving emergency disease management updates. Furthermore, being a participant in the NPIP allows for greater ease in moving hatching eggs and live birds within a State, across State lines, and into international markets. In fact, most countries will not accept hatching eggs, live birds, table eggs, or broilers unless they can be shown to be from a NPIP participant. Any increased cost to NPIP participants due to the proposed rule would be minor compared to the expected benefits of the proposed program changes. Additional costs are likely to be minor because most of the participants already had been implementing these changes for several years. Even if additional tests were required, the additional number of birds tested would be very small compared to the size of flocks in the industry. Individual producers will continue to participate in the NPIP program only if the benefits they receive from participation outweigh the costs. Over 99 percent of poultry breeders and hatcheries, commercial table-egg layer flocks, and commercial meat-type chicken and turkey slaughter plants are Plan participants. Impact on Small Entities The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small entities. According to the Small Business Administration's (SBA's) Office of Advocacy, regulations create economic disparities based on size when they have a significant economic impact on a substantial number of small entities. Entities engaged in production of breeding stock and hatcheries would be affected by the rule. Currently there are four major firms that produce primary breeding stock of egg-type chickens, three breeders of meat-type chickens, two breeders of turkeys, and one firm producing breeding stock of both egg-type and meat-type chickens. 4 All of these are large facilities headquartered in the United States that operate in domestic and international markets, and would not be considered small entities. Few, if any, small producers would be directly affected by this proposed rule. 4 Mary E. Delany, *Genetic Diversity and Conservation of Poultry,* p.261, in W.M. Muir and S.E. Aggrey, *Poultry Genetics, Breeding and Biotechnology,* August 2003; Susanne Gura, *Livestock Genetics Companies: Concentration and Proprietary Strategies of an Emerging Power in the Global Economy (http://pastoralpeoples.org/docs/Livestock_genetics.pdf)* . Broiler operations (North American Industry Classification System [NAICS] code 112320), turkey operations (NAICS 112330), hatcheries (NAICS 112340), and other poultry operations (112390) could also be affected by the proposed changes. All of these operations are considered to be small if they have annual sales of $750,000 or less (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* ). Commercial egg producers (NAICS 112310) are considered small if they have annual sales of not more than $11.5 million. The broiler industry has evolved from small backyard flocks to fewer than 50 highly specialized, vertically integrated agribusiness firms. A measure of the changing structure is the number and size of chicken hatcheries. In 1973, there were 989 facilities that hatched all chickens in the United States. Those hatcheries had the capacity to incubate 436 million eggs at one time for an average capacity of 440,849 eggs. In 2006, there were 313 chicken hatcheries, with an incubator capacity of 910 million eggs for an average capacity of 2.9 million eggs. Similarly, there were 203 turkey hatching facilities with capacity to incubate 45 million eggs at one time, for an average capacity of 221,675 eggs. In 2006, there were 55 turkey hatcheries, with an incubator capacity of 39 million eggs for an average capacity of 703,927 eggs. 5 5 USDA, ERS, Hatchery Production, March 1975; Hatchery Production 2006 Summary, April 2007. We do not foresee any significant impact of the proposed rule on small entities. The NPIP is a voluntary program, so poultry producers can decide if it is beneficial for them to participate. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted:
(1)All State and local laws and regulations that are in conflict with this rule will be preempted;
(2)no retroactive effect will be given to this rule; and
(3)administrative proceedings will not be required before parties may file suit in court challenging this rule. Paperwork Reduction Act This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 9 CFR Parts 145, 146, and 147 Animal diseases, Poultry and poultry products, Reporting and recordkeeping requirements. Accordingly, we propose to amend 9 CFR parts 145, 146, and 147 as follows: PART 145—NATIONAL POULTRY IMPROVEMENT PLAN FOR BREEDING POULTRY 1. The authority citation for part 145 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 2. Section 145.1 is amended as follows: a. By revising the definition of *authorized laboratory* to read as set forth below. b. By adding, in alphabetical order, new definitions of *NPIP Technical Committee* and *Senior Coordinator* to read as set forth below. c. In the definition of *equivalent or equivalent requirements* , by adding the words “or exceed” after the words “equal to” and the words “they are” after the words “with which.” § 145.1 Definitions. *Authorized laboratory.* An authorized laboratory is a laboratory that meets the requirements of § 147.51 and is thus qualified to perform the assays described in part 147 of this subchapter. *NPIP Technical Committee.* A committee made up of technical experts on poultry health, biosecurity, surveillance, and diagnostics. The committee consists of representatives from the poultry and egg industries, universities, and State and Federal governments and is appointed by the Senior Coordinator and approved by the General Conference Committee. *Senior Coordinator.* An employee of the Service whose duties may include, but will not necessarily be limited to:
(1)Serving as executive secretary of the General Conference Committee;
(2)Serving as chairperson of the Plan Conference described in § 147.47;
(3)Planning, organizing, and conducting the Plan Conference;
(4)Reviewing NPIP authorized laboratories as described in § 147.51;
(5)Coordinating the State administration of the NPIP through periodic reviews of the administrative procedures of the Official State Agencies, according to the applicable provisions of the Plan and the Memorandum of Understanding;
(6)Coordinating rulemaking to incorporate the proposed changes of the provisions approved at the Plan conference into the regulations in parts 145, 146, and 147 of this subchapter;
(7)Directing the production of official NPIP publications;
(8)Proposing an annual budget for plan activities and the General Conference Committee; and
(9)Providing overall administration of the NPIP. 3. In § 145.2, paragraph
(a)is amended by adding a new sentence at the end of the paragraph to read as follows: § 145.2 Administration.
(a)* * * In the Memorandum of Understanding, the Official State Agency must designate a contact representative to serve as a liaison between the Service and the Official State Agency. 4. Section 145.14 is amended as follows: a. By adding a new paragraph (b)(5) to read as set forth below. b. By revising paragraph
(d)to read as set forth below. § 145.14 Blood testing.
(b)* * *
(5)The official molecular examination procedures for *Mycoplasma gallisepticum* and * M. synoviae* are the polymerase chain reaction
(PCR)test described in § 147.30 of this subchapter and the real-time PCR test described in § 147.31 of this subchapter.
(d)*For avian influenza.* The official tests for avian influenza are described in paragraphs (d)(1) and (d)(2) of this section.
(1)*Antibody detection tests—*
(i)*Enzyme-linked immunosorbent assay (ELISA).* ELISA must be conducted using test kits approved by the Department and the Official State Agency and must be conducted in accordance with the recommendations of the producer or manufacturer.
(ii)*The agar gel immunodiffusion
(AGID)test.*
(A)The AGID test must be conducted on all ELISA-positive samples.
(B)The AGID test must be conducted using reagents approved by the Department and the Official State Agency.
(C)Standard test procedures for the AGID test for avian influenza are set forth in § 147.9 of this subchapter. The test can be conducted on egg yolk or blood samples.
(D)Positive tests for the AGID must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(2)*Agent detection tests.* Tests that detect influenza A matrix gene or protein may be performed by an authorized laboratory. Tests that determine hemagglutinin or neuraminidase subtypes may not be performed by an authorized laboratory. Samples for agent detection testing should be collected from naturally occurring flock mortality or clinically ill birds.
(i)*The real time reverse transcriptase/polymerase chain reaction (RRT-PCR) assay.*
(A)The RRT-PCR tests must be conducted using reagents approved by the Department and the Official State Agency. The RRT-PCR must be conducted using the National Veterinary Services Laboratories
(NVSL)official protocol for RRT-PCR (AVPR01510) and must be conducted by personnel who have passed an NVSL proficiency test.
(B)Positive results from the RRT-PCR must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(ii)*USDA-licensed type A influenza antigen capture immunoassay (ACIA).*
(A)The USDA-licensed type A influenza ACIA must be conducted using test kits approved by the Department and the Official State Agency and must be conducted in accordance with the recommendations of the producer or manufacturer.
(B)Positive results from the ACIA must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(3)The official determination of a flock as positive for the H5 or H7 subtypes of avian influenza may be made only by NVSL. 5. Section 145.15 is revised to read as follows: § 145.15 Diagnostic surveillance program for low pathogenic avian influenza.
(a)The Official State Agency must develop a diagnostic surveillance program for H5/H7 low pathogenic avian influenza for all poultry in the State. The exact provisions of the program are at the discretion of the States. The Service will use the standards in paragraph
(b)of this section in assessing individual State plans for adequacy, including the specific provisions that the State developed. The standards should be used by States in developing those plans.
(b)Avian influenza must be a disease reportable to the responsible State authority (State veterinarian, etc.) by all licensed veterinarians. To accomplish this, all laboratories (private, State, and university laboratories) that perform diagnostic procedures on poultry must examine all submitted cases of unexplained respiratory disease, egg production drops, and mortality for avian influenza by both an approved serological test and an approved antigen detection test. Memoranda of understanding or other means must be used to establish testing and reporting criteria (including criteria that provide for reporting H5 and H7 low pathogenic avian influenza directly to the Service) and approved testing methods. In addition, States should conduct outreach to poultry producers, especially owners of smaller flocks, regarding the importance of prompt reporting of clinical symptoms consistent with avian influenza. § 145.23 [Amended] 6. In § 145.23, paragraphs (h)(2)(i) and (h)(2)(ii) are amended by removing the number “180” and replacing it with the number “90” each time it occurs. § 145.33 [Amended] 7. In § 145.33, paragraphs (l)(2)(i) and (l)(2)(ii) are amended by removing the number “30” and replacing it with the number “15” each time it occurs; and by removing the number “180” and replacing it with the number “90” each time it occurs § 145.43 [Amended] 8. In § 145.43, paragraphs (g)(2)(i) and (g)(2)(ii) are amended by removing the number “180” and replacing it with the number “90” each time it occurs. 9. In § 145.52, paragraph
(c)is revised to read as follows: § 145.52 Participation.
(c)Subject to the approval of the Service and the Official State Agencies in the importing and exporting States, participating flocks may report poultry sales to importing States by using either VS Form 9-3, “Report of Sales of Hatching Eggs, Chicks, and Poults” or by using a hatchery invoice form (9-3I) approved by the Official State Agency and the Service to identify poultry sales to clients. If the selling hatchery uses the 9-3I form, the following information must be included on the form:
(1)The form number “9-3I”, printed or stamped on the invoice;
(2)The hatchery name and address;
(3)The date of shipment;
(4)The hatchery invoice number;
(5)The purchaser name and address;
(6)The quantity of products sold;
(7)Identification of the products by bird variety or by NPIP stock code as listed in the NPIP APHIS 91-55-078 appendix; and
(8)The appropriate NPIP illustrative design in § 145.10. One of the designs in § 145.10(b) or
(g)must be used. The following information must be provided in or near the NPIP design:
(i)The NPIP State number and NPIP hatchery approval number; and
(ii)The NPIP classification for which product is qualified ( *e.g.* , U.S. Pullorum-Typhoid Clean). 10. In § 145.63, a new paragraph
(b)is added to read as follows: § 145.63 Terminology and classification; flocks and products.
(b)*U.S. Avian Influenza Clean.* This program is intended to be the basis from which the breeding-hatchery industry may conduct a program for the prevention and control of avian influenza. It is intended to determine the presence of avian influenza in all ostrich, emu, rhea, and cassowary breeding flocks through routine serological surveillance of each participating breeding flock. Acceptable tests include antigen and antibody detection tests, as approved by the Official State Agency. A flock, and the hatching eggs and chicks produced from it, will qualify for this classification when the Official State Agency determines that it has met one of the following requirements:
(1)It is a primary breeding flock in which 10 percent of the flock, up to a maximum of 30 birds, has been tested negative for type A influenza virus with all pens represented equally and when the tested birds are more than 4 months of age. Positive samples shall be further tested by an authorized laboratory. To retain this classification:
(i)A sample of at least 30 birds must be tested negative at intervals of 180 days, or
(ii)A sample of less than 10 percent of the birds up to a maximum of 30 birds may be tested, and found to be negative, at any one time if all pens are equally represented and a total of 30 birds are tested within each 180-day period.
(2)It is a multiplier breeding flock in which a minimum of 30 birds has been tested negative to type A influenza virus with all pens represented equally and when the tested birds are more than 4 months of age. Positive samples shall be further tested by an authorized laboratory. To retain this classification:
(i)A sample of at least 30 birds must be tested negative at intervals of 180 days, or
(ii)A sample of at least 10 percent of birds from each pen with all pens being represented must be tested negative at intervals of 180 days; or
(iii)A sample of less than 10 percent of the birds may be tested, and found to be negative, at any one time if all pens are equally represented and a total of 10 percent of the birds are tested within each 180-day period. PART 146—NATIONAL POULTRY IMPROVEMENT PLAN FOR COMMERCIAL POULTRY 11. The authority citation for part 146 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 12. Section 146.1 is amended as follows: a. By revising the definition of *authorized laboratory* and the first sentence of the definition of *commercial meat-type flock* to read as set forth below. b. In the definition of *equivalent* , by adding the words “or exceed” after the words “equal to” and the words “they are” after the words “with which.” § 146.1 Definitions. *Authorized laboratory.* An authorized laboratory is a laboratory that meets the requirements of § 147.51 and is thus qualified to perform the assays described in part 147 of this subchapter. *Commercial meat-type flock.* All of the meat-type chickens, meat-type turkeys, commercial upland game birds, or commercial waterfowl on one farm. * * * 13. In § 146.2, paragraph
(a)is amended by adding a new sentence at the end of the paragraph to read as follows: § 146.2 Administration.
(a)* * * In the Memorandum of Understanding, the Official State Agency must designate a contact representative to serve as a liaison between the Service and the Official State Agency. 14. Section 146.3 is amended by revising paragraph
(a)and the first sentence of paragraph
(c)to read as follows: § 146.3 Participation.
(a)Any table-egg producer, raised-for-release upland game bird premises, and raised-for-release waterfowl premises and any commercial upland game bird, commercial waterfowl, meat-type chicken or meat-type turkey slaughter plant, including its affiliated flocks, may participate in the Plan when the producer or plant has demonstrated, to the satisfaction of the Official State Agency, that its facilities, personnel, and practices are adequate for carrying out the relevant special provisions of this part and has signed an agreement with the Official State Agency to comply with the relevant special provisions of this part.
(c)A participating slaughter plant shall participate with all of the commercial upland game bird, commercial waterfowl, meat-type chicken and/or meat-type turkey flocks that are processed at the facility, including affiliated flocks. * * * 15. Section 146.6 is revised to read as follows: § 146.6 Specific provisions for participating slaughter plants.
(a)Only commercial upland game bird, commercial waterfowl, meat-type chicken, and meat-type turkey slaughter plants that are under continuous inspection by the Food Safety and Inspection Service of the Department or under State inspection that the Food Safety and Inspection Service has recognized as equivalent to Federal inspection may participate in the Plan.
(b)To participate in the Plan, meat-type chicken, meat-type turkey, and commercial upland game bird and commercial waterfowl slaughter plants must follow the relevant special provisions in §§ 146.33(a), 146.43(a), and 146.53(a), respectively, for sample collection and flock monitoring, unless they are exempted from the special provisions under §§ 146.32(b), 146.42(b), or 146.52(b), respectively. § 146.9 [Amended] 16. In § 146.9, paragraph
(a)is amended by removing the word “and” and adding the words “, and 146.53(a) and (b)” at the end of the second sentence, before the period. 17. Section 146.11 is amended as follows: a. By revising paragraph
(a)to read as set forth below. b. By redesignating paragraphs
(b)and
(c)as
(d)and (e), respectively. c. By adding new paragraphs
(b)and
(c)to read as set forth below. § 146.11 Inspections.
(a)Each participating slaughter plant shall be audited at least once annually or a sufficient number of times each year to satisfy the Official State Agency that the participating slaughter plant is in compliance with the provisions of this part. The yearly audit will consist of an evaluation of 2 weeks' worth of records, selected at random, of the following data:
(1)The actual flock slaughter date for each flock. This information must come from a verifiable source. Verifiable sources include electronic record systems that have oversight from the Department's Grain Inspectors, Packers and Stockyards Administration or Food Safety and Inspection Service
(FSIS)documents such as FSIS Form 9061-2.
(2)Laboratory test results for each flock slaughtered with the sample collection date and test result. The test must be NPIP approved and performed in an authorized laboratory of the NPIP.
(b)A flock will be considered to be not conforming to protocol if there are no test results available, if the flock was not tested within 21 days before slaughter, or if the test results for the flocks were not returned before slaughter.
(c)Two or more flocks that are found to be not conforming to protocol in the yearly audit for a slaughter plant shall be cause for a deficiency rating for that plant. However, if the root cause for the deficiency was identified, corrected, and documented, the plant will be eligible for an immediate reevaluation of 2 additional weeks' worth of records, again selected at random. If no more than one missed flock is identified in this reevaluation, the plant will be considered in compliance and no further action will be required. Plants found to be deficient must provide a written corrective action plan to the auditor within 2 weeks of receipt of the deficiency rating. A followup audit on the information in paragraphs (a)(1) and (a)(2) of this section will occur within 90 days from the receipt of the corrective action plan. Slaughter plants will retain their classification and may continue to use the Plan emblem in § 149.9(a) during this process. A failure on the followup audit may result in disbarment from participation according to the procedures in § 146.12. 18. In § 146.13, paragraph
(b)is revised to read as follows: § 146.13 Testing.
(b)*Avian influenza.* The official tests for avian influenza are described in paragraphs (b)(1) and (b)(2) of this section:
(1)*Antibody detection tests—*
(i)*Enzyme-linked immunosorbent assay (ELISA).* ELISA must be conducted using test kits approved by the Department and the Official State Agency and must be conducted in accordance with the recommendations of the producer or manufacturer.
(ii)*The agar gel immunodiffusion
(AGID)test.*
(A)The AGID test must be conducted on all ELISA-positive samples.
(B)The AGID test must be conducted using reagents approved by the Department and the Official State Agency.
(C)Standard test procedures for the AGID test for avian influenza are set forth in § 147.9 of this subchapter. The test can be conducted on egg yolk or blood samples.
(D)Positive tests for the AGID must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(2)*Agent detection tests.* Tests that detect influenza A matrix gene or protein may be performed by an authorized laboratory. Tests that determine hemagglutinin or neuraminidase subtypes may not be performed by an authorized laboratory. Samples for this testing should be collected from naturally occurring flock mortality or clinically ill birds.
(i)*The real time reverse transcriptase/polymerase chain reaction (RRT-PCR) assay.*
(A)The RRT-PCR tests must be conducted using reagents approved by the Department and the Official State Agency. The RRT-PCR must be conducted using the National Veterinary Services Laboratories
(NVSL)official protocol for RRT-PCR (AVPR01510) and must be conducted by personnel who have passed an NVSL proficiency test.
(B)Positive results from the RRT-PCR must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(ii)*USDA-licensed type A influenza antigen capture immunoassay (ACIA).*
(A)The USDA-licensed type A influenza ACIA must be conducted using test kits approved by the Department and the Official State Agency and must be conducted in accordance with the recommendations of the producer or manufacturer.
(B)Positive results from the ACIA must be further tested by Federal Reference Laboratories using appropriate tests for confirmation. Final judgment may be based upon further sampling and appropriate tests for confirmation.
(3)The official determination of a flock as positive for the H5 or H7 subtypes avian influenza may be made only by NVSL. 19. In § 146.43, in paragraph (a)(1), the first sentence is revised to read as follows: § 146.43 Terminology and classification; meat-type turkey slaughter plants.
(a)* * *
(1)It is a meat-type turkey slaughter plant that accepts only meat-type turkeys from flocks where a minimum of 6 birds per flock has tested negative for antibodies to type A avian influenza virus with an approved test no more than 21 days prior to slaughter. * * * 20. A new subpart E, “Special Provisions for Commercial Upland Game Birds, Commercial Waterfowl, Raised-for-Release Upland Game Birds, and Raised-for-Release Waterfowl,” §§ 146.51 through 146.53, is added to read as follows: Subpart E—Special Provisions for Commercial Upland Game Birds, Commercial Waterfowl, Raised-for-Release Upland Game Birds, and Raised-for-Release Waterfowl Sec. 146.51 Definitions. 146.52 Participation. 146.53 Terminology and classification; slaughter plants and premises. Subpart E—Special Provisions for Commercial Upland Game Birds, Commercial Waterfowl, Raised-for-Release Upland Game Birds, and Raised-for-Release Waterfowl § 146.51 Definitions. *Commercial upland game bird slaughter plant.* A commercial upland game bird slaughter plant that is federally inspected or under State inspection that the U.S. Department of Agriculture's Food Safety and Inspection Service has recognized as equivalent to Federal inspection. *Commercial upland game birds.* Upland game bird pheasants, quail, or partridges grown under confinement for the primary purpose of producing meat for human consumption. *Commercial waterfowl.* Domesticated ducks or geese grown under confinement for the primary purpose of producing meat for human consumption. *Commercial waterfowl slaughter plant.* A commercial waterfowl slaughter plant that is federally inspected or under State inspection that the U.S. Department of Agriculture's Food Safety and Inspection Service has recognized as equivalent to Federal inspection. *Raised-for-release upland game birds.* Pheasants, quail, and partridge that are raised under confinement for release in game preserves and are not breeding stock. *Raised-for-release waterfowl.* Waterfowl that are raised under confinement for release in game preserves and are not breeding stock. *Shift.* The working period of a group of employees who are on duty at the same time. § 146.52 Participation.
(a)Participating commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, and raised-for-release waterfowl premises shall comply with the applicable general provisions of Subpart A of this part and the special provisions of this subpart E.
(b)Commercial waterfowl and commercial upland game bird slaughter plants that slaughter fewer than 50,000 birds annually are exempt from the special provisions of this subpart E.
(c)Raised-for-release upland game bird premises and raised-for-release waterfowl premises that raise fewer than 25,000 birds annually are exempt from the special provisions of this subpart E. § 146.53 Terminology and classification; slaughter plants and premises. Participating flocks which have met the respective requirements specified in this section may be designated by the following terms and the corresponding designs illustrated in § 146.9 of this part:
(a)*U.S. H5/H7 Avian Influenza Monitored.* This program is intended to be the basis from which the commercial waterfowl and commercial upland game bird industry may conduct a program to monitor for the H5/H7 subtypes of avian influenza. It is intended to determine the presence of the H5/H7 subtypes of avian influenza in commercial waterfowl and commercial upland game birds through routine surveillance of each participating slaughter plant. A slaughter plant will qualify for this classification when the Official State Agency determines that it has met one of the following requirements:
(1)It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant where a minimum of 11 birds per shift are tested negative for the H5/H7 subtypes of avian influenza at slaughter;
(2)It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant that only accepts commercial upland game birds or commercial waterfowl from flocks where a minimum of 11 birds per flock have been tested negative for antibodies to the H5/H7 subtypes of avian influenza no more than 21 days prior to slaughter; or
(3)It is a commercial upland game bird slaughter plant or commercial waterfowl slaughter plant that has an ongoing active and passive surveillance program for H5/H7 subtypes of avian influenza that is approved by the Official State Agency and the Service.
(b)*U.S. H5/H7 Avian Influenza Monitored.* This program is intended to be the basis from which the raised-for-release upland game bird and raised-for-release waterfowl industries may conduct a program to monitor for the H5/H7 subtypes of avian influenza. It is intended to determine the presence of the H5/H7 subtypes of avian influenza through routine surveillance of each participating premises. A premises will qualify for the classification when the Official State Agency determines that a representative sample of 30 birds from the participating premises has been tested with negative results for the H5/H7 subtypes of avian influenza every 90 days. PART 147—AUXILIARY PROVISIONS ON NATIONAL POULTRY IMPROVEMENT PLAN 21. The authority citation continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 22. Section 147.9 is amended as follows: a. By revising paragraph (a)(4)(i)(F) to read as follows. b. By removing figure 1. c. By redesignating figures 2 and 3 as figures 1 and 2, respectively. § 147.9 Standard test procedures for avian influenza.
(a)* * *
(4)* * *
(i)* * *
(F)To prepare the wells, place 50 μl of avian influenza AGID antigen in the center well using a micropipette with an attached pipette tip. Place 50 μl AI AGID positive control antiserum in each of three alternate peripheral wells, and add 50 μl per well of test sera in the three remaining wells. This arrangement provides a positive control line on each side of the test serum, thus providing for the development of lines of identity on both sides of each test serum (see figure 1). Note: A pattern can be included with positive, weak positive, and negative reference serum in the test sera wells to aid in the interpretation of results (see figure 2). §§ 147.12, 147.14, 147.15, 147.16, 147.30 [Amended] 23. Sections 147.12, 147.14, 147.15, 147.16, and 147.30 are amended by redesignating footnotes 12 through and 24 as footnotes 8 through 20, respectively. 24. A new § 147.31 is added to read as follows: § 147.31 Laboratory procedures recommended for the real-time polymerase chain reaction test for Mycoplasma gallisepticum (MGLP ReTi).
(a)*DNA extraction.* Use Qiagen Qiamp Mini Kit for DNA extraction or equivalent validated technique/procedure. This kit utilizes the following methods: 100 μl of swab suspension incubates with 10 μl of proteinase K and 400 μl of lysis buffer at 56 °C for 10 minutes. Following incubation, 100 μl of 100 percent ethanol is added to lysate. Wash and centrifuge following extraction kit recommendations.
(b)*Primer selection.* A forward primer mglpU26 (5′-CTA GAG GGT TGG ACA GTT ATG-3′) located at nucleotide positions 765,566 to 765,586 of the *M. gallisepticum* R strain genome sequence; a reverse primer mglp164 (5′-GCT GCA CTA AAT GAT ACG TCA AA-3') located at nucleotide positions 765,448 to 765,470 of the *M. gallisepticum* R strain genome sequence; and a Taqman dual-labeled probe mglpprobe (5′-FAM-CAG TCA TTA ACA ACT TAC CAC CAG AAT CTG-BHQ1-3′) located at nucleotide positions 765,491 to 765,520 of the *M. gallisepticum* R strain genome should be used to amplify a 13-bp fragment of the lp gene.
(c)*MGLP ReTi.* Primers and probe should be utilized in a 25 μl reaction containing 12.5 μl of Quantitect Probe PCR 2X mix (Qiagen, Valencia, CA), 21 primers to a final concentration of 0.5 μmolar, and probe to a final concentration of 0.1 μmolar, 1 μl ofHK-UNG Thermolabile Uracil N-glycosylase (Epicentre, Madison, WI), 2 μl of water, and 5 μl of template. The reaction can be performed in a SmartCycler (Cepheid, Sunnyvale, CA) or other equivalent validated platform procedure for real-time thermocycler at 50 °C for 2 minutes; 95 °C for 15 minutes with optics OFF; and 40 cycles of 94 °C for 15 seconds followed by 60 °C for 60 seconds with optics ON. 21 Trade names are used in these procedures solely for the purpose of providing specific information. Mention of a trade name does not constitute a guarantee or warranty of the product by the U.S. Department of Agriculture or an endorsement over other products not mentioned.
(d)*Determination of positive.* For each MGLP ReTi assay reaction, the threshold cycle number (CT value) was determined to be the PCR cycle number at which the fluorescence of the reaction exceeded 30 units of fluorescence. For all samples tested, any MGLP reaction that has a recorded CT value was considered positive, while any MGLP reaction that had no recorded CT value was considered negative.
(e)*Controls.* Proper controls should be used when conducting the MGLP ReTi assay as an official test of the Plan. Positive, quantitative, extraction, and internal controls are commercially available from GTCAllison, LLC, Mocksville, NC. 25. Section 147.43 is amended as follows: a. By revising paragraph (d)(4) to read as set forth below. b. In paragraph (d)(6), by removing the words “a forum” and adding the words “an official advisory committee” in their place. § 147.43 General Conference Committee.
(d)* * *
(4)Consider each proposal submitted as provided in § 147.44 and make recommendations to subpart Committees and the Conference. Meet jointly with the NPIP Technical Committee and consider the technical aspects and accuracy of each proposal. Recommend whether new proposals (i.e., proposals that have not been submitted as provided in § 147.44) should be considered by the delegates to the Plan Conference. 26. In § 147.45, the first sentence is revised to read as follows: § 147.45 Official delegates. Each cooperating State shall be entitled to one official delegate for each of the programs prescribed in subparts B, C, D, E, F, G, and H of part 145 of this chapter and for each of the programs prescribed in subparts B, C, D, and E of part 146 of this chapter in which it has one or more participants at the time of the Conference. * * * 27. In § 147.46, a new paragraph (a)(9) is added to read as follows: § 147.46 Committee consideration of proposed changes.
(a)* * *
(9)Commercial upland game birds and waterfowl and raised-for-release upland game birds and waterfowl. 28. A new Subpart F, “Authorized Laboratories and Approved Tests,” §§ 147.51 and 147.52, is added to read as follows: Subpart F—Authorized Laboratories and Approved Tests Sec. 147.51 Authorized laboratory minimum requirements. 147.52 Approved tests. Subpart F—Authorized Laboratories and Approved Tests § 147.51 Authorized laboratory minimum requirements. These minimum requirements are intended to be the basis on which an authorized laboratory of the Plan can be evaluated to ensure that official Plan assays are performed and reported as described in this part. A satisfactory evaluation will result in the laboratory being recognized by the NPIP office of the Service as an authorized laboratory qualified to perform the assays provided for in this part.
(a)*Check-test proficiency.* The laboratory must use a regularly scheduled check test for each assay that it performs.
(b)*Trained technicians.* The testing procedures at the laboratory must be run or overseen by a laboratory technician who has attended and satisfactorily completed Service-approved laboratory workshops for Plan-specific diseases within the past 3 years.
(c)*Laboratory protocol.* Official Plan assays must be performed and reported as described in this part.
(d)*State site visit.* The Official State Agency will conduct a site visit and recordkeeping audit annually.
(e)*Service review.* Authorized laboratories will be reviewed by the Service (NPIP staff) every 3 years. The Service's review may include, but will not necessarily be limited to, checking records, laboratory protocol, check-test proficiency, technician training, and peer review.
(f)*Reporting.*
(1)A memorandum of understanding or other means shall be used to establish testing and reporting criteria to the Official State Agency, including criteria that provide for reporting H5 and H7 low pathogenic avian influenza directly to the Service.
(2)*Salmonella pullorum* and *Mycoplasma* Plan disease reactors must be reported to the Official State Agency within 48 hours.
(g)*Verification.* Random samples may also be required to be submitted for verification as specified by the Official State Agency. § 147.52 Approved tests.
(a)The procedures for the bacteriological examination of poultry and poultry environments described in this part are approved tests for use in the NPIP. In addition, all tests that use veterinary biologics (e.g., antiserum and other products of biological origin) that are licensed or produced by the Service and used as described in this part are approved for use in the NPIP.
(b)Diagnostic test kits that are not licensed by the Service (e.g., bacteriological culturing kits) may be approved through the following procedure:
(1)The sensitivity of the kit will be estimated in at least three authorized laboratories selected by the Service by testing known positive samples, as determined by the official NPIP procedures found in Subparts A, B, C, and D of this part. If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.
(2)The specificity of the kit will be estimated in at least three authorized laboratories selected by the Service by testing known negative samples, as determined by the official NPIP procedures found in this part. If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.
(3)The kit will be provided to the cooperating laboratories in its final form and include the instructions for use. The cooperating laboratories must perform the assay exactly as stated in the supplied instructions. Each laboratory must test a panel of at least 25 known positive clinical samples supplied by the manufacturer of the test kit. In addition, each laboratory will be asked to test 50 known negative clinical samples obtained from several sources, to provide a representative sampling of the general population. The identity of the samples must be coded so that the cooperating laboratories are blinded to identity and classification. Each sample must be provided in duplicate or triplicate, so that error and repeatability data may be generated.
(4)Cooperating laboratories will submit to the kit manufacturer all raw data regarding the assay response. Each sample tested will be reported as positive or negative, and the official NPIP procedure used to classify the sample must be submitted in addition to the assay response value.
(5)The findings of the cooperating laboratories will be evaluated by the NPIP technical committee, and the technical committee will make a recommendation regarding whether to approve the test kit to the General Conference Committee. If the technical committee recommends approval, the final approval will be granted in accordance with the procedures described in §§ 147.46 and 147.47. Done in Washington, DC, this 20th day of May 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-11739 Filed 5-27-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM01-8-010] Revised Public Utility Filing Requirements for Electric Quarterly Reports May 19, 2008. AGENCY: Federal Energy Regulatory Commission. ACTION: Notice seeking comments on proposed revisions to Electric Quarterly Report
(EQR)data dictionary. SUMMARY: In this notice, the Federal Energy Regulatory Commission (Commission) proposes to revise the EQR Data Dictionary to clarify the definition of Contract Commencement date. If adopted, this proposal will make reporting this information less burdensome and more accessible. DATES: Comments on the proposal are due June 27, 2008. ADDRESSES: You may submit comments on the proposal, identified by Docket No. RM01-8-010, by one of the following methods: • *Agency Web Site: http://www.ferc.gov.* Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures Section of the preamble. • *Mail:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures Section of the preamble for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Michelle Veloso (Technical Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8363. Gary D. Cohen (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8321. SUPPLEMENTARY INFROMATION: 1. The Commission is proposing to revise the Electric Quarterly Report
(EQR)Data Dictionary to clarify the definition of Contract Commencement Date in Field 22. Background 2. On April 25, 2002, the Commission issued Order No. 2001, a Final Rule establishing revised public utility filing requirements. 1 This rule revised the Commission's filing requirements to require companies subject to the Commission's regulations under section 205 of the Federal Power Act 2 to file quarterly reports that:
(1)Provide data identifying the utility on whose behalf the report is being filed (ID Data);
(2)summarize pertinent data about the utility's currently effective contracts (Contract Data); and
(3)summarize data about wholesale power sales the utility made during the reporting period (Transaction Data). The requirement to file EQRs replaced the requirement to file quarterly transaction reports summarizing a utility's market-based rate transactions and sales agreements that conformed to the utility's tariff. 1 *Revised Public Utility Filing Requirements,* Order No. 2001, 67 FR 31043 (May 8, 2002), FERC Stats. & Regs. ¶ 31,127 (Apr. 25, 2002), *reh'g denied,* Order No. 2001-A, 100 FERC ¶ 61,074, *reconsideration and clarification denied,* Order No. 2001-B, 100 FERC ¶ 61,342, *order directing filings,* Order No. 2001-C, 101 FERC ¶ 61,314 (2002), Order No. 2001-D, *order directing filings,* 102 FERC 61,334, Order No. 2001-E, *order refining filing requirements,* 105 FERC ¶ 61,352 (2003), *clarification order,* Order No.2001-F, 106 FERC ¶ 61,060 (2004), *order adopting EQR Data Dictionary,* Order No. 2001-G, 120 FERC ¶ 61,270 (2007), *order on reh'g and clarification,* Order No. 2001-H, 121 FERC ¶ 61,289 (2007). 2 16 U.S.C. 824d. 3. In Order No. 2001, the Commission also adopted a new section in its regulations, 18 CFR 35.10b, which requires that the EQRs are to be prepared in conformance with the Commission's software and guidance posted and available from the Commission website. This obviates the need to revise 18 CFR 35.10b to implement revisions to the software and guidance. Since the issuance of Order No. 2001, as need has arisen, the Commission has issued orders to resolve questions raised by EQR users and has directed Staff to issue additional guidance. 4. On September 24, 2007, the Commission issued Order No. 2001-G, adopting an EQR Data Dictionary that collected in one document the definitions of certain terms and values used in filing EQR data (previously provided in Commission orders and in guidance materials posted at the Commission's website) and providing formal definitions for fields that were previously undefined. On December 20, 2007, the Commission issued Order No. 2001-H, which addressed a pending request for rehearing and clarifying the information to be reported in several EQR data fields. 5. In Order 2001-H, the Commission defined Contract Commencement Date, (Field 22 in the Contract Data section of the EQR), as: The date the terms of the contract reported in the EQR were effective. If the terms reported in the Contract Data section of the EQR became effective or if service under those terms began on multiple dates ( *i.e.:* due to an amendment), the date to be reported as the Commencement Date is the date when service began pursuant to the most recent amendment to the terms reported in the Contract Data section of the EQR. 3 3 Order 2001-H, Data Dictionary at Field 22. There were no requests for rehearing or appeal filed in response to Order No. 2001-H. 6. On February 26, 2008, the Commission held an EQR Technical Conference to “review the EQR Data Dictionary and address questions from EQR users.” 4 During this technical conference, Contract Commencement Date was a topic of considerable discussion. 4 *See Notice of Electric Quarterly Reports Technical Conference,* January 7, 2008 ( *http://www.ferc.gov/EventCalendar/Files/20080108075834-RM01-8-000TC.pdf* ). 7. On March 3, 2008, the Commission issued notice of a proposal to revise the EQR Data Dictionary to clarify the requirement to report all ancillary service transactions, consistent with the Commission's decision in Order No. 697 5 that information about third party sales of ancillary services at market-based rates should be reported in EQR filings, rather than being reported on a separate OASIS-like Internet site. 6 5 *Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities,* Order No. 697, 72 FR 39904 (July 20, 2007), FERC Stats. & Regs. ¶ 31,252 (June 21, 2007), *clarifying order,* 121 FERC ¶ 61,260 (2007). 6 *Revised Public Utility Filing Requirements for Electric Quarterly Reports,* 73 FR 12983 (Mar. 11, 2008), FERC Stats. & Regs. ¶ 35,557 (Mar. 3, 2008) (March 2008 Notice). 8. On April 10, 2008, in its response to the March 2008 Notice, Edison Electric Institute
(EEI)included comments related to the definition of Commencement Date in Field 22. 7 Those issues are more pertinent to the notice we are issuing in the instant subdocket ( *i.e.* , RM08-1-010) than to the March 2008 Notice. We address those comments here. 7 EEI Comments, Docket No. RM08-1-009 (filed April 10, 2007). Discussion 9. In Order No. 2001-H, the Commission clarified the information that should be reported in the Contract Execution Date and Contract Commencement Date fields. The Commission's findings on the information that should be reported in the Contract Execution Date and Contract Commencement Date fields was based on commenters' argument that Contract Execution Date (Field No. 21) should reflect the date the contract was originally signed. 10. In Order No. 2001-G, the Commission determined that the date a contract was “materially amended” was to be reported as the Contract Execution Date. Commenters argued that it would be helpful if, despite contract revisions, the Contract Execution Date would remain the date the contract was first executed, for the entire life of the contract. 8 It was argued that this would help EQR users understand exactly what contract was being referenced. In response to these concerns, in Order No. 2001-H, the Commission was persuaded to have the Contract Execution Date stay unchanged for the life of the contract. 9 In addition, given the Commission's interest in tracking the date of contract revisions, Order No. 2001-H provided that amendment dates would be reported in the Contract Commencement Date field. Thus, the Commission determined in Order No. 2001-H that Contract Commencement Date should report “[t]he date the terms of the contract reported in the EQR were effective.” 10 The terms of each contract reported in the EQR are represented by the thirty-one fields in each record of the Contract Data Section. The Commission determined that any changes in the reporting of these thirty-one fields would require a change in the Contract Commencement Date field. 8 *See* Order No. 2001-H at P 8-9. 9 *Id.* at P 10. 10 *Id.* at Data Dictionary, Field 22. 11. At the February 2008 Technical Conference, Commission staff highlighted for EQR users the import of the changes adopted by the Commission in Order Nos. 2001-G and 2001-H. Although Order No. 2001-H was unchallenged when issued, some filers expressed concern at the February 2008 Technical Conference about the portion of the definition of Contract Commencement Date that describes using “the date when service began pursuant to the most recent amendment.” In addition, several participants were concerned that it would be difficult to identify the exact date when “service” begins. 12. The Contract Commencement Date is intended to reflect the effective date of either the contract or the most recent amendment. The language in question was added for clarity in two respects. First, where no effective date is provided in the contract or the amendment, the EQR filer should use the date service began under the contract as a substitute. Second, if there have been a number of amendments to the contract, the filer should use the date of the amendment that accounted for the most recent change in the terms reported in the EQR. 13. In its comments on the March 2008 Notice, EEI encouraged the Commission to confirm that Field 22 needs to be completed in conformance with the new definition only for contracts amended after January 1, 2008. EEI also suggests that the Commission should refine the definition of Contract Commencement Date so that revisions to Customer Company Name, Company DUNS Number, or Customer DUNS Number would not trigger a need for a revised Contract Commencement Date. EEI also suggests that Field 22 be given a different name that would better reflect the information that would be reported in this field. 11 11 EEI suggests that Field 22 be labeled as “Latest Modification Date.” 14. As a result of the discussions at the EQR Technical Conference and the points raised in the EEI comments in Docket No. RM01-8-009, the Commission invites comments on the following proposed definition of Contract Commencement Date: The date the terms of the contract reported in the Contract Products section of the EQR (Field Nos. 26 through 45) were effective. If the terms reported in the Contract Data section of the EQR became effective on multiple dates ( *i.e.:* due to one or more amendments), the date to be reported as the Commencement Date is the date the most recent amendment became effective. If the contract or the most recent reported amendment does not have an effective date, the date when service began pursuant to the contract or most recent reported amendment may be used. If the terms of the contract reported in the Contract Products section have not been amended since January 1, 2008, the initial date the contract became effective may be used. 15. The new definition clarifies the Commission's intention regarding the effective date of amendment. It also limits the types of changes that would require a new date to those affecting the products and services under the contract (the terms provided in Field Nos. 26 through 45); changes in the name of the counterparties to the contract, Field Nos. 15 and 16, for example, are not included. The new definition also allows the original contract commencement date to be used if the contract has not been amended since January 1, 2008, to simplify compliance with the revised requirement. 16. The Commission also invites comments regarding renaming Field 22 to “Commencement Date of Contract Terms” to reflect this revised definition. Comment Procedures 17. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due June 27, 2008. Comments must refer to Docket No. RM01-8-010, and must include the commenter's name, the organization they represent, if applicable, and their address. Comments may be filed either in electronic or paper format. 18. Comments may be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* The Commission accepts most standard word processing formats and commenters may attach additional files with supporting information in certain other file formats. Commenters filing electronically do not need to make a paper filing. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. 19. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. Document Availability 20. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( *http://www.ferc.gov* ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 21. From the Commission's Home Page on the Internet, this information is available in the eLibrary. The full text of this document is available in the eLibrary both in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 22. User assistance is available for eLibrary and the Commission's Web site during our normal business hours. For assistance contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at
(866)208-3676, or for TTY, contact
(202)502-8659. By direction of the Commission. Kimberly D. Bose, Secretary. Attachment A—Proposed Revisions to Electric Quarterly Report Data Dictionary Version 1.1 (issued December 21, 2007) EQR Data Dictionary Field # Field Required Value Definition ID Data 1 Filer Unique Identifier ✓ FR1 (Respondent)—An identifier (i.e., “FR1”) used to designate a record containing Respondent identification information in a comma-delimited
(csv)file that is imported into the EQR filing. Only one record with the FR1 identifier may be imported into an EQR for a given quarter. 1 Filer Unique Identifier ✓ FS# (where “#” is an integer) (Seller)—An identifier (e.g., “FS1”, “FS2”) used to designate a record containing Seller identification information in a comma-delimited
(csv)file that is imported into the EQR filing. One record for each seller company may be imported into an EQR for a given quarter. 1 Filer Unique Identifier ✓ FA1 (Agent)—An identifier (i.e., “FA1”) used to designate a record containing Agent identification information in a comma-delimited
(csv)file that is imported into the EQR filing. Only one record with the FA1 identifier may be imported into an EQR for a given quarter. 2 Company Name ✓ Unrestricted text (100 characters) (Respondent)—The name of the company taking responsibility for complying with the Commission's regulations related to the EQR. 2 Company Name ✓ Unrestricted text (100 characters) (Seller)—The name of the company that is authorized to make sales as indicated in the company's FERC tariff(s). This name may be the same as the Company Name of the Respondent. 2 Company Name ✓ Unrestricted text (100 characters) (Agent)—The name of the entity completing the EQR filing. The Agent's Company Name need not be the name of the company under Commission jurisdiction. 3 Company DUNS Number for Respondent and Seller Nine digit number The unique nine digit number assigned by Dun and Bradstreet to the company identified in Field Number 2. 4 Contact Name ✓ Unrestricted text (50 characters) (Respondent)—Name of the person at the Respondent's company taking responsibility for compliance with the Commission's EQR regulations. 4 Contact Name ✓ Unrestricted text (50 characters) (Seller)—The name of the contact for the company authorized to make sales as indicated in the company's FERC tariff(s). This name may be the same as the Contact Name of the Respondent. 4 Contact Name ✓ Unrestricted text (50 characters) (Agent)—Name of the contact for the Agent, usually the person who prepares the filing. 5 Contact Title ✓ Unrestricted text (50 characters) Title of contact identified in Field Number 4. 6 Contact Address ✓ Unrestricted text Street address for contact identified in Field Number 4. 7 Contact City ✓ Unrestricted text (30 characters) City for the contact identified in Field Number 4. 8 Contact State ✓ Unrestricted text (2 characters) Two character state or province abbreviations for the contact identified in Field Number 4. 9 Contact Zip ✓ Unrestricted text (10 characters) Zip code for the contact identified in Field Number 4. 10 Contact Country Name ✓ CA—Canada, MX—Mexico, US—United States, UK—United Kingdom Country (USA, Canada, Mexico, or United Kingdom) for contact address identified in Field Number 4. 11 Contact Phone ✓ Unrestricted text (20 characters) Phone number of contact identified in Field Number 4. 12 Contact E-Mail ✓ Unrestricted text E-mail address of contact identified in Field Number 4. 13 Filing Quarter ✓ YYYYMM A six digit reference number used by the EQR software to indicate the quarter and year of the filing for the purpose of importing data from csv files. The first 4 numbers represent the year (e.g. 2007). The last 2 numbers represent the last month of the quarter (e.g., 03=1st quarter; 06=2nd quarter, 09=3rd quarter, 12=4th quarter). Contract Data 14 Contract Unique ID ✓ An integer proceeded by the letter “C” (only used when importing contract data) An identifier beginning with the letter “C” and followed by a number (e.g., “C1”, “C2”) used to designate a record containing contract information in a comma-delimited
(csv)file that is imported into the EQR filing. One record for each contract product may be imported into an EQR for a given quarter. 15 Seller Company Name ✓ Unrestricted text (100 characters) The name of the company that is authorized to make sales as indicated in the company's FERC tariff(s). This name must match the name provided as a Seller's “Company Name” in Field Number 2 of the ID Data (Seller Data). 16 Customer Company Name ✓ Unrestricted text (70 characters) The name of the counterparty. 17 Customer DUNS Number ✓ Nine digit number The unique nine digit number assigned by Dun and Bradstreet to the company identified in Field Number 16. 18 Contract Affiliate ✓ Y (Yes), N
(No)The customer is an affiliate if it controls, is controlled by or is under common control with the seller. This includes a division that operates as a functional unit. A customer of a seller who is an Exempt Wholesale Generator may be defined as an affiliate under the Public Utility Holding Company Act and the FPA. 19 FERC Tariff Reference ✓ Unrestricted text (60 characters) The FERC tariff reference cites the document that specifies the terms and conditions under which a Seller is authorized to make transmission sales, power sales or sales of related jurisdictional services at cost-based rates or at market-based rates. If the sales are market-based, the tariff that is specified in the FERC order granting the Seller Market Based Rate Authority must be listed. 20 Contract Service Agreement ID ✓ Unrestricted text (30 characters) Unique identifier given to each service agreement that can be used by the filing company to produce the agreement, if requested. The identifier may be the number assigned by FERC for those service agreements that have been filed with and accepted by the Commission, or it may be generated as part of an internal identification system. 21 Contract Execution Date ✓ YYYYMMDD The date the contract was signed. If the parties signed on different dates, use the most recent date signed. 22 Commencement Date of Contract Terms ✓ YYYYMMDD The date the terms of the contract reported in the Contract Products section of the EQR (Field Nos. 26 through 45) were effective. If the terms reported in the Contract Data section of the EQR became effective on multiple dates (i.e.: due to one or more amendments), the date to be reported as the Commencement Date is the date the most recent amendment became effective. If the contract or the most recent reported amendment does not have an effective date, the date when service began pursuant to the contract or most recent amendment may be used. If the terms of the contract reported in the Contract Products section have not been amended since January 1, 2008, the initial date the contract became effective may be used. 23 Contract Termination Date If specified in the contract YYYYMMDD The date that the contract expires. 24 Actual Termination Date Extension If contract terminated YYYYMMDD The date the contract actually terminates. 25 Provision Description ✓ Unrestricted text Description of terms that provide for the continuation of the contract. 26 Class Name ✓ See definitions of each class name below. 26 Class Name ✓ F—Firm For transmission sales, a service or product that always has priority over non-firm service. For power sales, a service or product that is not interruptible for economic reasons. 26 Class Name ✓ NF—Non-firm For transmission sales, a service that is reserved and/or scheduled on an as-available basis and is subject to curtailment or interruption at a lesser priority compared to Firm service. For an energy sale, a service or product for which delivery or receipt of the energy may be interrupted for any reason or no reason, without liability on the part of either the buyer or seller. 26 Class Name ✓ UP—Unit Power Sale Designates a dedicated sale of energy and capacity from one or more than one specified generation unit(s). 26 Class Name ✓ N/A—Not Applicable To be used only when the other available Class Names do not apply. 27 Term Name ✓ LT—Long Term, ST—Short Term, N/A—Not Applicable Contracts with durations of one year or greater are long-term. Contracts with shorter durations are short-term. 28 Increment Name ✓ See definitions for each increment below. 28 Increment Name ✓ H—Hourly Terms of the contract (if specifically noted in the contract) set for up to 6 consecutive hours (≤6 consecutive hours). 28 Increment Name ✓ D—Daily Terms of the contract (if specifically noted in the contract) set for more than 6 and up to 60 consecutive hours (>6 and ≤60 consecutive hours). 28 Increment Name ✓ W—Weekly Terms of the contract (if specifically noted in the contract) set for over 60 consecutive hours and up to 168 consecutive hours (>60 and <168 consecutive hours). 28 Increment Name ✓ M—Monthly Terms of the contract (if specifically noted in the contract) set for more than 168 consecutive hours up to, but not including, one year (>168 consecutive hours and <1 year). 28 Increment Name ✓ Y—Yearly Terms of the contract (if specifically noted in the contract) set for one year or more (≥1 year). 28 Increment Name ✓ N/A—Not Applicable Terms of the contract do not specify an increment. 29 Increment Peaking Name ✓ See definitions for each increment peaking name below. 29 Increment Peaking Name ✓ FP—Full Period The product described may be sold during those hours designated as on-peak and off-peak in the NERC region of the point of delivery. 29 Increment Peaking Name ✓ OP—Off-Peak The product described may be sold only during those hours designated as off-peak in the NERC region of the point of delivery. 29 Increment Peaking Name ✓ P—Peak The product described may be sold only during those hours designated as on-peak in the NERC region of the point of delivery. 29 Increment Peaking Name ✓ N/A—Not Applicable To be used only when the increment peaking name is not specified in the contract. 30 Product Type Name ✓ See definitions for each product type below. 30 Product Type Name ✓ CB—Cost Based Energy or capacity sold under a FERC-approved cost-based rate tariff. 30 Product Type Name ✓ CR—Capacity Reassignment An agreement under which a transmission provider sells, assigns or transfers all or portion of its rights to an eligible customer. 30 Product Type Name ✓ MB—Market Based Energy or capacity sold under the seller's FERC-approved market-based rate tariff. 30 Product Type Name ✓ T—Transmission The product is sold under a FERC-approved transmission tariff. 30 Product Type Name ✓ Other The product cannot be characterized by the other product type names. 31 Product Name ✓ See Product Name Table, Appendix A Description of product being offered. 32 Quantity If specified in the contract Number with up to 4 decimals Quantity for the contract product identified. 33 Units If specified in the contract See Units Table, Appendix E Measure stated in the contract for the product sold. 34 Rate One of four rate fields (34, 35, 36, or 37) must be included Number with up to 4 decimals The charge for the product per unit as stated in the contract. 35 Rate Minimum One of four rate fields (34, 35, 36, or 37) must be included Number with up to 4 decimals Minimum rate to be charged per the contract, if a range is specified. 36 Rate Maximum One of four rate fields (34, 35, 36, or 37) must be included Number with up to 4 decimals Maximum rate to be charged per the contract, if a range is specified. 37 Rate Description One of four rate fields (34, 35, 36, or 37) must be included Unrestricted text Text description of rate. If the rate is currently available on the FERC website, a citation of the FERC Accession Number and the relevant FERC tariff including page number or section may be included instead of providing the entire rate algorithm. If the rate is not available on the FERC website, include the rate algorithm, if rate is calculated. If the algorithm would exceed the 150 character field limit, it may be provided in a descriptive summary (including bases and methods of calculations) with a detailed citation of the relevant FERC tariff including page number and section. If more than 150 characters are required, the contract product may be repeated in a subsequent line of data until the rate is adequately described. 38 Rate Units If specified in the contract See Rate Units Table, Appendix F Measure stated in the contract for the product sold. 39 Point of Receipt Balancing Authority (PORBA) If specified in the contract See Balancing Authority Table, Appendix B The registered NERC Balancing Authority (formerly called NERC Control Area) where service begins for a transmission or transmission-related jurisdictional sale. The Balancing Authority will be identified with the abbreviation used in OASIS applications. If receipt occurs at a trading hub specified in the EQR software, the term “Hub” should be used. 40 Point of Receipt Specific Location (PORSL) If specified in the contract Unrestricted text (50 characters). If “HUB” is selected for PORCA, see Hub Table, Appendix C The specific location at which the product is received if designated in the contract. If receipt occurs at a trading hub, a standardized hub name must be used. If more points of receipt are listed in the contract than can fit into the 50 character space, a description of the collection of points may be used. “Various,” alone, is unacceptable unless the contract itself uses that terminology. 41 Point of Delivery Balancing Authority (PODBA) If specified in the contract See Balancing Authority Table, Appendix B The registered NERC Balancing Authority (formerly called NERC Control Area) where a jurisdictional product is delivered and/or service ends for a transmission or transmission-related jurisdictional sale. The Balancing Authority will be identified with the abbreviation used in OASIS applications. If delivery occurs at the interconnection of two control areas, the control area that the product is entering should be used. If delivery occurs at a trading hub specified in the EQR software, the term “Hub” should be used. 42 Point of Delivery Specific Location (PODSL) If specified in the contract Unrestricted text (50 characters). If “HUB” is selected for PODCA, see Hub Table, Appendix C The specific location at which the product is delivered if designated in the contract. If receipt occurs at a trading hub, a standardized hub name must be used. 43 Begin Date If specified in the contract YYYYMMDDHHMM First date for the sale of the product at the rate specified. 44 End Date If specified in the contract YYYYMMDDHHMM Last date for the sale of the product at the rate specified. 45 Time Zone ✓ See Time Zone Table, Appendix D The time zone in which the sales will be made under the contract. Transaction Data 46 Transaction Unique ID ✓ An integer proceeded by the letter “T” (only used when importing transaction data) An identifier beginning with the letter “T” and followed by a number (e.g., “T1”, “T2”) used to designate a record containing transaction information in a comma-delimited
(csv)file that is imported into the EQR filing. One record for each transaction record may be imported into an EQR for a given quarter. A new transaction record must be used every time a price changes in a sale. 47 Seller Company Name ✓ Unrestricted text (100 Characters) The name of the company that is authorized to make sales as indicated in the company's FERC tariff(s). This name must match the name provided as a Seller's “Company Name” in Field 2 of the ID Data (Seller Data). 48 Customer Company Name ✓ Unrestricted text (70 Characters) The name of the counterparty. 49 Customer DUNS Number ✓ Nine digit number The unique nine digit number assigned by Dun and Bradstreet to the counterparty to the contract. 50 FERC Tariff Reference ✓ Unrestricted text (60 Characters) The FERC tariff reference cites the document that specifies the terms and conditions under which a Seller is authorized to make transmission sales, power sales or sales of related jurisdictional services at cost-based rates or at market-based rates. If the sales are market-based, the tariff that is specified in the FERC order granting the Seller Market Based Rate Authority must be listed. 51 Contract Service Agreement ID ✓ Unrestricted text (30 Characters) Unique identifier given to each service agreement that can be used by the filing company to produce the agreement, if requested. The identifier may be the number assigned by FERC for those service agreements that have been filed and approved by the Commission, or it may be generated as part of an internal identification system. 52 Transaction Unique Identifier ✓ Unrestricted text (24 Characters) Unique reference number assigned by the seller for each transaction. 53 Transaction Begin Date ✓ YYYYMMDDHHMM (csv import), MMDDYYYYHHMM (manual entry) First date and time the product is sold during the quarter. 54 Transaction End Date ✓ YYYYMMDDHHMM (csv import), MMDDYYYYHHMM (manual entry) Last date and time the product is sold during the quarter. 55 Time Zone ✓ See Time Zone Table, Appendix D The time zone in which the sales will be made under the contract. 56 Point of Delivery Balancing Authority (PODBA) ✓ See Balancing Authority Table, Appendix B The registered NERC Balancing Authority (formerly called NERC Control Area) abbreviation used in OASIS applications. 57 Point of Delivery Specific Location (PODSL) ✓ Unrestricted text (50 characters). If “HUB” is selected for PODBA, see Hub Table, Appendix C The specific location at which the product is delivered. If receipt occurs at a trading hub, a standardized hub name must be used. 58 Class Name ✓ See class name definitions below. 58 Class Name ✓ F—Firm A sale, service or product that is not interruptible for economic reasons. 58 Class Name ✓ NF—Non-firm A sale for which delivery or receipt of the energy may be interrupted for any reason or no reason, without liability on the part of either the buyer or seller. 58 Class Name ✓ UP—Unit Power Sale Designates a dedicated sale of energy and capacity from one or more than one specified generation unit(s). 58 Class Name ✓ BA—Billing Adjustment Designates an incremental material change to one or more transactions due to a change in settlement results. “BA” may be used in a refiling after the next quarter's filing is due to reflect the receipt of new information. It may not be used to correct an inaccurate filing. 58 Class Name ✓ N/A—Not Applicable To be used only when the other available class names do not apply. 59 Term Name ✓ LT—Long Term, ST—Short Term, N/A—Not Applicable Power sales transactions with durations of one year or greater are long-term. Transactions with shorter durations are short-term. 60 Increment Name ✓ See increment name definitions below. 60 Increment Name ✓ H—Hourly Terms of the particular sale set for up to 6 consecutive hours (≤ 6 consecutive hours) Includes LMP based sales in ISO/RTO markets. 60 Increment Name ✓ D—Daily Terms of the particular sale set for more than 6 and up to 60 consecutive hours (>6 and ≤ 60 consecutive hours) Includes sales over a peak or off-peak block during a single day. 60 Increment Name ✓ W—Weekly Terms of the particular sale set for over 60 consecutive hours and up to 168 consecutive hours (>60 and ≤ 168 consecutive hours). Includes sales for a full week and sales for peak and off-peak blocks over a particular week. 60 Increment Name ✓ M—Monthly Terms of the particular sale set for set for more than 168 consecutive hours up to, but not including, one year (>168 consecutive hours and < 1 year). Includes sales for full month or multi-week sales during a given month. 60 Increment Name ✓ Y—Yearly Terms of the particular sale set for one year or more (≥ 1 year). Includes all long-term contracts with defined pricing terms (fixed-price, formula, or index). 60 Increment Name ✓ N/A—Not Applicable To be used only when other available increment names do not apply. 61 Increment Peaking Name ✓ See definitions for increment peaking below. 61 Increment Peaking Name ✓ FP—Full Period The product described was sold during Peak and Off-Peak hours. 61 Increment Peaking Name ✓ OP—Off-Peak The product described was sold only during those hours designated as off-peak in the NERC region of the point of delivery. 61 Increment Peaking Name ✓ P—Peak The product described was sold only during those hours designated as on-peak in the NERC region of the point of delivery. 61 Increment Peaking Name ✓ N/A—Not Applicable To be used only when the other available increment peaking names do not apply. 62 Product Name ✓ See Product Names, Table, Appendix A Description of product being offered. 63 Transaction Quantity ✓ Number with up to 4 decimals The quantity of the product in this transaction. 64 Price ✓ Number with up to 6 decimals Actual price charged for the product per unit. The price reported cannot be averaged or otherwise aggregated. 65 Rate Units ✓ See Rate Units Table, Appendix F Measure appropriate to the price of the product sold. 66 Total Transmission Charge ✓ Number with up to 2 decimals Payments received for transmission services when explicitly identified. 67 Total Transaction Charge ✓ Number with up to 2 decimals Transaction Quantity (Field 63) times Price (Field 64) plus Total Transmission Charge (Field 66). EQR Data Dictionary Product Name Contract product Transaction product Definition Appendix A. Product Names BLACK START SERVICE ✓ ✓ Service available after a system-wide blackout where a generator participates in system restoration activities without the availability of an outside electric supply (ancillary Service). BOOKED OUT POWER ✓ Energy or capacity contractually committed bilaterally for delivery but not actually delivered due to some offsetting or countervailing trade (Transaction only). CAPACITY ✓ ✓ A quantity of demand that is charged on a $/KW or $/MW basis. CUSTOMER CHARGE ✓ ✓ Fixed contractual charges assessed on a per customer basis that could include billing service. DIRECT ASSIGNMENT FACILITIES CHARGE ✓ Charges for facilities or portions of facilities that are constructed or used for the sole use/benefit of a particular customer. EMERGENCY ENERGY ✓ Contractual provisions to supply energy or capacity to another entity during critical situations. ENERGY ✓ ✓ A quantity of electricity that is sold or transmitted over a period of time. ENERGY IMBALANCE ✓ ✓ Service provided when a difference occurs between the scheduled and the actual delivery of energy to a load obligation. EXCHANGE ✓ ✓ Transaction whereby the receiver accepts delivery of energy for a supplier's account and returns energy at times, rates, and in amounts as mutually agreed if the receiver is not an RTO/ISO. FUEL CHARGE ✓ ✓ Charge based on the cost or amount of fuel used for generation. GRANDFATHERED BUNDLED ✓ ✓ Services provided for bundled transmission, ancillary services and energy under contracts effective prior to Order No. 888's OATTs. INTERCONNECTION AGREEMENT ✓ Contract that provides the terms and conditions for a generator, distribution system owner, transmission owner, transmission provider, or transmission system to physically connect to a transmission system or distribution system. MEMBERSHIP AGREEMENT ✓ Agreement to participate and be subject to rules of a system operator. MUST RUN AGREEMENT ✓ An agreement that requires a unit to run. NEGOTIATED-RATE TRANSMISSION ✓ ✓ Transmission performed under a negotiated rate contract (applies only to merchant transmission companies). NETWORK ✓ Transmission service under contract providing network service. NETWORK OPERATING AGREEMENT ✓ An executed agreement that contains the terms and conditions under which a network customer operates its facilities and the technical and operational matters associated with the implementation of network integration transmission service. OTHER ✓ ✓ Product name not otherwise included. POINT-TO-POINT AGREEMENT ✓ Transmission service under contract between specified Points of Receipt and Delivery. REACTIVE SUPPLY & VOLTAGE CONTROL ✓ ✓ Production or absorption of reactive power to maintain voltage levels on transmission systems (Ancillary Service). REAL POWER TRANSMISSION LOSS ✓ ✓ The loss of energy, resulting from transporting power over a transmission system. REGULATION & FREQUENCY RESPONSE ✓ ✓ Service providing for continuous balancing of resources (generation and interchange) with load, and for maintaining scheduled interconnection frequency by committing on-line generation where output is raised or lowered and by other non-generation resources capable of providing this service as necessary to follow the moment-by-moment changes in load (Ancillary Service). REQUIREMENTS SERVICE ✓ ✓ Firm, load-following power supply necessary to serve a specified share of customer's aggregate load during the term of the agreement. Requirements service may include some or all of the energy, capacity and ancillary service products. (If the components of the requirements service are priced separately, they should be reported separately in the transactions tab.) SCHEDULE SYSTEM CONTROL & DISPATCH ✓ ✓ Scheduling, confirming and implementing an interchange schedule with other Balancing Authorities, including intermediary Balancing Authorities providing transmission service, and ensuring operational security during the interchange transaction (Ancillary Service). SPINNING RESERVE ✓ ✓ Unloaded synchronized generating capacity that is immediately responsive to system frequency and that is capable of being loaded in a short time period or non-generation resources capable of providing this service (Ancillary Service). SUPPLEMENTAL RESERVE ✓ ✓ Service needed to serve load in the event of a system contingency, available with greater delay than SPINNING RESERVE. This service may be provided by generating units that are on-line but unloaded, by quick-start generation, or by interruptible load or other non-generation resources capable of providing this service (Ancillary Service). SYSTEM OPERATING AGREEMENTS ✓ An executed agreement that contains the terms and conditions under which a system or network customer shall operate its facilities and the technical and operational matters associated with the implementation of network. TOLLING ENERGY ✓ ✓ Energy sold from a plant whereby the buyer provides fuel to a generator (seller) and receives power in return for pre-established fees. TRANSMISSION OWNERS AGREEMENT ✓ The agreement that establishes the terms and conditions under which a transmission owner transfers operational control over designated transmission facilities. UPLIFT ✓ ✓ A make-whole payment by an RTO/ISO to a utility. EQR Data Dictionary Balancing authority Abbreviation Outside US * Appendix B. Balancing Authority AESC, LLC—Wheatland CIN AEWC Alabama Electric Cooperative, Inc. AEC Alberta Electric System Operator AESO ✓ Alliant Energy Corporate Services, LLC—East ALTE Alliant Energy Corporate Services, LLC—West ALTW Ameren Transmission AMRN Ameren Transmission. Illinois AMIL Ameren Transmission. Missouri AMMO American Transmission Systems, Inc. FE Aquila Networks—Kansas WPEK Aquila Networks—Missouri Public Service MPS Aquila Networks—West Plains Dispatch WPEC Arizona Public Service Company AZPS Associated Electric Cooperative, Inc. AECI Avista Corp. AVA Batesville Balancing Authority BBA Big Rivers Electric Corp. BREC Board of Public Utilities KACY Bonneville Power Administration Transmission BPAT British Columbia Transmission Corporation BCTC ✓ California Independent System Operator CISO Carolina Power & Light Company—CPLW CPLW Carolina Power and Light Company—East CPLE Central and Southwest CSWS Central Illinois Light Co CILC Chelan County PUD CHPD Cinergy Corporation CIN City of Homestead HST City of Independence P & L Dept. INDN City of Tallahassee TAL City Water Light & Power CWLP Cleco Power LLC CLEC Columbia Water & Light CWLD Comision Federal de Electricidad CFE ✓ Constellation Energy Control and Dispatch—Arkansas PUPP Constellation Energy Control and Dispatch—City of Benton, AR BUBA Constellation Energy Control and Dispatch—City of Ruston, LA DERS Constellation Energy Control and Dispatch—Conway, Arkansas CNWY Constellation Energy Control and Dispatch—Gila River GRMA Constellation Energy Control and Dispatch—Harquehala HGMA Constellation Energy Control and Dispatch—North Little Rock, AR DENL Constellation Energy Control and Dispatch—West Memphis, Arkansas WMUC Dairyland Power Cooperative DPC DECA, LLC—Arlington Valley DEAA Duke Energy Corporation DUK East Kentucky Power Cooperative, Inc. EKPC El Paso Electric EPE Electric Energy, Inc. EEI Empire District Electric Co., The EDE Entergy EES ERCOT ISO ERCO Florida Municipal Power Pool FMPP Florida Power & Light FPL Florida Power Corporation FPC Gainesville Regional Utilities GVL Georgia System Operations Corporation GSOC Georgia Transmission Corporation GTC Grand River Dam Authority GRDA Grant County PUD No. 2 GCPD Great River Energy GRE Great River Energy GREC Great River Energy GREN Great River Energy GRES GridAmerica GA Hoosier Energy HE Hydro-Quebec, TransEnergie HQT ✓ Idaho Power Company IPCO Illinois Power Co. IP Illinois Power Co. IPRV Imperial Irrigation District IID Indianapolis Power & Light Company IPL ISO New England Inc. ISNE JEA JEA Kansas City Power & Light, Co KCPL Lafayette Utilities System LAFA LG & E Energy Transmission Services LGEE Lincoln Electric System LES Los Angeles Department of Water and Power LDWP Louisiana Energy & Power Authority LEPA Louisiana Generating, LLC LAGN Madison Gas and Electric Company MGE Manitoba Hydro Electric Board, Transmission Services MHEB ✓ Michigan Electric Coordinated System MECS Michigan Electric Coordinated System—CONS CONS Michigan Electric Coordinated System—DECO DECO MidAmerican Energy Company MEC Midwest ISO MISO Minnesota Power, Inc. MP Montana-Dakota Utilities Co. MDU Muscatine Power and Water MPW Nebraska Public Power District NPPD Nevada Power Company NEVP New Brunswick Power Corporation NBPC ✓ New Horizons Electric Cooperative NHC1 New York Independent System Operator NYIS North American Electric Reliability Council TEST Northern Indiana Public Service Company NIPS Northern States Power Company NSP NorthWestern Energy NWMT Ohio Valley Electric Corporation OVEC Oklahoma Gas and Electric OKGE Ontario—Independent Electricity Market Operator IMO ✓ OPPD CA/TP OPPD Otter Tail Power Company OTP P.U.D. No. 1 of Douglas County DOPD PacifiCorp-East PACE PacifiCorp-West PACW PJM Interconnection PJM Portland General Electric PGE Public Service Company of Colorado PSCO Public Service Company of New Mexico PNM Puget Sound Energy Transmission PSEI Reedy Creek Improvement District RC Sacramento Municipal Utility District SMUD Salt River Project SRP Santee Cooper SC SaskPower Grid Control Centre SPC ✓ Seattle City Light SCL Seminole Electric Cooperative SEC Sierra Pacific Power Co.—Transmission SPPC South Carolina Electric & Gas Company SCEG South Mississippi Electric Power Association SME South Mississippi Electric Power Association SMEE Southeastern Power Administration—Hartwell SEHA Southeastern Power Administration—Russell SERU Southeastern Power Administration—Thurmond SETH Southern Company Services, Inc. SOCO Southern Illinois Power Cooperative SIPC Southern Indiana Gas & Electric Co. SIGE Southern Minnesota Municipal Power Agency SMP Southwest Power Pool SWPP Southwestern Power Administration SPA Southwestern Public Service Company SPS Sunflower Electric Power Corporation SECI Tacoma Power TPWR Tampa Electric Company TEC Tennessee Valley Authority ESO TVA Trading Hub HUB TRANSLink Management Company TLKN Tucson Electric Power Company TEPC Turlock Irrigation District TIDC Upper Peninsula Power Co. UPPC Utilities Commission, City of New Smyrna Beach NSB Westar Energy—MoPEP Cities MOWR Western Area Power Administration—Colorado-Missouri WACM Western Area Power Administration—Lower Colorado WALC Western Area Power Administration—Upper Great Plains East WAUE Western Area Power Administration—Upper Great Plains West WAUW Western Farmers Electric Cooperative WFEC Western Resources dba Westar Energy WR Wisconsin Energy Corporation WEC Wisconsin Public Service Corporation WPS Yadkin, Inc. YAD * Balancing authorities outside the United States may only be used in the Contract Data section to identify specified receipt/delivery points in jurisdictional transmission contracts. EQR Data Dictionary HUB Definition Appendix C. Hub ADHUB The aggregated Locational Marginal Price (“LMP”) nodes defined by PJM Interconnection, LLC as the AEP/Dayton Hub. AEPGenHub The aggregated Locational Marginal Price (“LMP”) nodes defined by PJM Interconnection, LLC as the AEPGenHub. COB The set of delivery points along the California-Oregon commonly identified as and agreed to by the counterparties to constitute the COB Hub. Cinergy
(into)The set of delivery points commonly identified as and agreed to by the counterparties to constitute delivery into the Cinergy balancing authority. Cinergy Hub
(MISO)The aggregated Elemental Pricing nodes (“Epnodes”) defined by the Midwest Independent Transmission System Operator, Inc., as Cinergy Hub (MISO). Entergy
(into)The set of delivery points commonly identified as and agreed to by the counterparties to constitute delivery into the Entergy balancing authority. FE Hub The aggregated Elemental Pricing nodes (“Epnodes”) defined by the Midwest Independent Transmission System Operator, Inc., as FE Hub (MISO). Four Corners The set of delivery points at the Four Corners power plant commonly identified as and agreed to by the counterparties to constitute the Four Corners Hub. Illinois Hub
(MISO)The aggregated Elemental Pricing nodes (“Epnodes”) defined by the Midwest Independent Transmission System Operator, Inc., as Illinois Hub (MISO). Mead The set of delivery points at or near Hoover Dam commonly identified as and agreed to by the counterparties to constitute the Mead Hub. Michigan Hub
(MISO)The aggregated Elemental Pricing nodes (“Epnodes”) defined by the Midwest Independent Transmission System Operator, Inc., as Michigan Hub (MISO). Mid-Columbia (Mid-C) The set of delivery points along the Columbia River commonly identified as and agreed to by the counterparties to constitute the Mid-Columbia Hub. Minnesota Hub
(MISO)The aggregated Elemental Pricing nodes (“Epnodes”) defined by the Midwest Independent Transmission System Operator, Inc., as Minnesota Hub (MISO). NEPOOL (Mass Hub) The aggregated Locational Marginal Price (“LMP”) nodes defined by ISO New England Inc., as Mass Hub. NIHUB The aggregated Locational Marginal Price (“LMP”) nodes defined by PJM Interconnection, LLC as the Northern Illinois Hub. NOB The set of delivery points along the Nevada-Oregon border commonly identified as and agreed to by the counterparties to constitute the NOB Hub. NP15 The set of delivery points north of Path 15 on the California transmission grid commonly identified as and agreed to by the counterparties to constitute the NP15 Hub. NWMT The set of delivery points commonly identified as and agreed to by the counterparties to constitute delivery into the Northwestern Energy Montana balancing authority. PJM East Hub The aggregated Locational Marginal Price nodes (“LMP”) defined by PJM Interconnection, LLC as the PJM East Hub. PJM South Hub The aggregated Locational Marginal Price (“LMP”) nodes defined by PJM Interconnection, LLC as the PJM South Hub. PJM West Hub The aggregated Locational Marginal Price (“LMP”) nodes defined by PJM Interconnection, LLC as the PJM Western Hub. Palo Verde The switch yard at the Palo Verde nuclear power station west of Phoenix in Arizona. Palo Verde Hub includes the Hassayampa switchyard 2 miles south of Palo Verde. SOCO
(into)The set of delivery points commonly identified as and agreed to by the counterparties to constitute delivery into the Southern Company balancing authority. SP15 The set of delivery points south of Path 15 on the California transmission grid commonly identified as and agreed to by the counterparties to constitute the SP15 Hub. TVA
(into)The set of delivery points commonly identified as and agreed to by the counterparties to constitute delivery into the Tennessee Valley Authority balancing authority. ZP26 The set of delivery points associated with Path 26 on the California transmission grid commonly identified as and agreed to by the counterparties to constitute the ZP26 Hub. EQR Data Dictionary Time zone Definition Appendix D. Time Zone AD Atlantic Daylight AP Atlantic Prevailing AS Atlantic Standard CD Central Daylight CP Central Prevailing CS Central Standard ED Eastern Daylight EP Eastern Prevailing ES Eastern Standard MD Mountain Daylight MP Mountain Prevailing MS Mountain Standard NA Not Applicable PD Pacific Daylight PP Pacific Prevailing PS Pacific Standard UT Universal Time EQR Data Dictionary Units Definition Appendix E. Units KV Kilovolt KVA Kilovolt Amperes KVR Kilovar KW Kilowatt KWH Kilowatt Hour KW-DAY Kilowatt Day KW-MO Kilowatt Month KW-WK Kilowatt Week KW-YR Kilowatt Year MVAR-YR Megavar Year MW Megawatt MWH Megawatt Hour MW-DAY Megawatt Day MW-MO Megawatt Month MW-WK Megawatt Week MW-YR Megawatt Year RKVA Reactive Kilovolt Amperes FLAT RATE Flat Rate EQR Data Dictionary Rate units Definition Appendix F. Rate Units $/KV dollars per kilovolt $/KVA dollars per kilovolt amperes $/KVR dollars per kilovar $/KW dollars per kilowatt $/KWH dollars per kilowatt hour $/KW-DAY dollars per kilowatt day $/KW-MO dollars per kilowatt month $/KW-WK dollars per kilowatt week $/KW-YR dollars per kilowatt year $/MW dollars per megawatt $/MWH dollars per megawatt hour $/MW-DAY dollars per megawatt day $/MW-MO dollars per megawatt month $/MW-WK dollars per megawatt week $/MW-YR dollars per megawatt year $/MVAR-YR dollars per megavar year $/RKVA dollars per reactive kilovar amperes CENTS cents CENTS/KVR cents per kilovolt amperes CENTS/KWH cents per kilowatt hour FLAT RATE rate not specified in any other units [FR Doc. E8-11861 Filed 5-27-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2007-0075] RIN 1625-AA00 Safety Zone: Port of Ponce, Puerto Rico AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish moving and fixed safety zones around all vessels carrying Liquefied Natural Gas
(LNG)cargo in the waters of the Caribbean Sea and Bahia de Ponce, Puerto Rico. This action will protect the public from the inherent dangers of this highly volatile material by requiring vessel traffic to maintain a safe distance from LNG vessels operating near shore. DATES: Comments and related material must reach the Coast Guard on or before July 28, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2007-0075 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. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Ensign Rachael E. Love, Sector San Juan, Prevention Department, Waterways & Facilities Division, at
(787)289-2071. 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: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0075), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG.2007-0075) in the search box, and click “GO>>”. You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Sector San Juan, Prevention Department between 7:30 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose This rule is necessary to provide for the safety of life at sea by excluding vessel traffic from the waters immediately adjacent to liquefied natural gas
(LNG)carriers. LNG in any quantity poses a risk of fire or explosion due to its highly volatile nature. LNG carried by tank ships in bulk quantities can be hazardous to a port if sufficient precaution is not taken to reduce this risk. The proposed rule would require vessel traffic to maintain a 100-yard separation from LNG vessels transiting the harbor and 150-foot separation from LNG vessels moored pier-side. The purpose of this rule is to minimize the risk of vessel collision or allision with an LNG carrier, thereby reducing the risk of fire or explosion. Discussion of Proposed Rule This proposed rule would establish the following moving and fixed safety zones: A 100-yard zone surrounding all LNG vessels transiting north of Latitude 17°54′00″ N en route to or from the Puerto de Ponce waterfront facility in Bahia de Ponce, Puerto Rico; and a 150-foot zone surrounding all LNG vessels moored at the Puerto de Ponce waterfront facility in Bahia de Ponce, Puerto Rico. The Coast Guard will notify the public of effective periods by providing a broadcast notice to mariners on VHF Marine Band Radio, Channel 22A (156.8 MHz). Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary due to the infrequent arrival of LNG carriers and the small amount of commercial vessel traffic in Bahia de Ponce. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit a portion of Bahia de Ponce when an LNG vessel is transiting the harbor or moored at the Puerto de Ponce waterfront facility. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: The Port of Ponce receives only a few commercial vessel arrivals per week, and recreational boating traffic can easily transit around the regulated area. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect 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. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 165 Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Safety measures, and Waterways. Words of Issuance and Proposed Regulatory Text For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.771 to read as follows: § 165.771 Safety Zone; Bahia de Ponce, Puerto Rico.
(a)*Location.* The following area is established as a safety zone during the specified conditions:
(1)A 100 yard radius around any vessel carrying liquefied natural gas
(LNG)cargo while transiting north of Latitude 17°54′00″ N in the waters of the Caribbean Sea and the Bahia de Ponce, on approach to or departure from the Puerto de Ponce waterfront facility in Bahia de Ponce.
(2)The waters within 150 feet of any vessel carrying LNG cargo while moored at the Puerto de Ponce waterfront facility in Bahia de Ponce, between berths 4 and 7 at approximate position 17°58′12″ N, 066°37′08″ W.
(b)*Definitions.* The following definitions apply to this section: *Designated Representative* means Coast Guard Patrol Commander including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels and federal, state, and local officers designated by or assisting the COTP San Juan in the enforcement of the safety zone.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, anchoring, mooring or transiting in these zones is prohibited unless authorized by the Coast Guard Captain of the Port or a designated representative. Persons and vessels desiring to transit the Regulated Area may contact the U.S. Coast Guard Captain of the Port San Juan at telephone number 787-289-2041 or on VHF channel 16 (156.8 MHz).
(d)*Enforcement periods.* The Coast Guard will notify the maritime community of effective periods via a broadcast notice to mariners on VHF Marine Band Radio, Channel 22A (156.8 MHz). Dated: May 2, 2008. R.R. Rodriguez, Commander, U.S. Coast Guard, Acting Captain of the Port San Juan. BILLING CODE 4910-15-P EP28MY08.005 [FR Doc. E8-11864 Filed 5-27-08; 8:45 am] BILLING CODE 4910-15-C DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2007-0115] RIN 1625-AA87 Security Zone; Escorted Vessels, Charleston, SC, Captain of the Port Zone AGENCY: Coast Guard, DHS. ACTION: Interim rule with request for comments. SUMMARY: The Coast Guard is establishing a security zone around any vessel being escorted by one or more Coast Guard, State, or local law enforcement assets on the navigable waters of the Captain of the Port Zone, Charleston, South Carolina. This action is necessary to ensure the safe transit of escorted vessels as well as the safety and security of personnel and port facilities. No vessel or person is allowed inside the security zone unless authorized by the Captain of the Port or a designated representative. DATES: This interim rule is effective May 28, 2008. Comments and related material must reach the Docket Management Facility on or before June 27, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2007-0115 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. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call LT Calvin Summers at Sector Charleston
(843)720-3273. 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: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0115), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. For example, we may ask you to resubmit your comment if we are not able to read your original submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG-2007-0115) in the Search box, and click “Go >>.”. You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays or the Coast Guard Sector Charleston (WWM), 196 Tradd Street, Charleston, South Carolina 29401 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM and delaying the effective date would be contrary to public interest since the security zones around escorted vessels are necessary to ensure the safe transit of the escorted vessels as well as the public. Certain vessel movements are more vulnerable to terrorist acts and it would be contrary to the public interest to publish an NPRM that would delay the effective date of this rule. The Coast Guard coordinates escorts for vessels in the Captain of the Port Zone Charleston, South Carolina for the port's safety and security. Recently, recreational boaters have endangered themselves and others by not following the verbal guidance of on-scene law enforcement officials. To ensure safe boating, it is imperative that a standard exclusionary zone be broadcast and safe speeds be followed for all escorted vessels. For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose The terrorist attacks of September 2001 heightened the need for development of various security measures throughout the seaports of the United States, particularly around vessels and facilities whose presence or movement creates a heightened vulnerability to terrorist acts; or those for which the consequences of terrorist acts represent a threat to national security. The President of the United States has found that the security of the United States is and continues to be endangered following the attacks of September 11 (E.O. 13,273, 67 FR 56215, Sep. 3, 2002 and 72 FR 54205, Sep. 21, 2007). Additionally, national security and intelligence officials continue to warn that future terrorist attacks are likely. The ports within the Captain of the Port
(COTP)Charleston frequently receive vessels that require additional security, including, but not limited to, vessels carrying sensitive Department of Defense cargoes, vessels carrying dangerous cargoes, and foreign naval vessels. The COTP has determined that these vessels have a significant vulnerability to subversive activity by other vessels or persons, or, in some cases, themselves pose a risk to a port and the public within the COTP Zone, as described in 33 CFR 3.35-15. This rule enables the COTP Charleston to provide effective port security, while minimizing the public's confusion and easing the administrative burden of implementing separate temporary security zone rules for each escorted vessel. Discussion of Rule This rule establishes a security zone that prohibits persons and vessels from coming within 300 yards of all escorted vessels within the navigable waters of the COTP Charleston unless authorized by the Coast Guard COTP, or a COTP designated representative. Persons or vessels that receive permission to enter the security zone must proceed at a minimum safe speed and must comply with all orders issued by the COTP or a designated representative. No vessel or person may come within 50 yards of any escorted vessel. An escorted vessel will be defined as a vessel, other than a large U.S. naval vessel as defined in 33 CFR 165.2015, that is accompanied by one or more Coast Guard assets or other Federal, State or local law enforcement agency assets clearly identifiable by lights, vessel markings, or with agency insignia as listed below: Coast Guard surface or air asset displaying the Coast Guard insignia. State and/or local law enforcement asset displaying the applicable agency markings and/or equipment associated with the agency. When escorted vessels are moored, dayboards or other visual indications such as lights or buoys may be used. In all cases, broadcast notice to mariners will be issued to advise mariners of these restrictions. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The limited geographic area impacted by the security zone will not restrict the movement or routine operation of commercial or recreational vessels through the Ports within the Captain of the Port Zone Charleston. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit in the vicinity of escorted vessels. This rule would not have a significant impact on a substantial number of small entities because the zones are limited in size, in most cases leaving ample space for vessels to navigate around them. The zones will not significantly impact commercial and passenger vessel traffic patterns, and mariners will be notified of the zones via Broadcast Notice to Mariners. Where such space is not available and security conditions permit, the COTP will attempt to provide flexibility for individual vessels to transit through the zones as needed. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add 165.769 to read as follows: § 165.769 Security Zone; Escorted Vessels, Charleston, South Carolina, Captain of the Port.
(a)*Definitions* . The following definitions apply to this section: *COTP* means Captain of the Port Charleston, SC. *Designated representatives* means Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels, and federal, state, and local officers designated by or assisting the COTP, in the enforcement of the security zone. *Escorted vessel* means a vessel, other than a large U.S. naval vessel as defined in 33 CFR 165.2015, that is accompanied by one or more Coast Guard assets or other Federal, State or local law enforcement agency assets clearly identifiable by lights, vessel markings, or with agency insignia as listed below: Coast Guard surface or air asset displaying the Coast Guard insignia. State and/or local law enforcement asset displaying the applicable agency markings and/or equipment associated with the agency. When escorted vessels are moored, dayboards or other visual indications such as lights or buoys may be used. In all cases, broadcast notice to mariners will be issued to advise mariners of these restrictions. *Minimum safe speed* means the speed at which a vessel proceeds when it is fully off plane, completely settled in the water and not creating excessive wake. Due to the different speeds at which vessels of different sizes and configurations may travel while in compliance with this definition, no specific speed is assigned to minimum safe speed. In no instance should minimum safe speed be interpreted as a speed less than that required for a particular vessel to maintain steerageway. A vessel is not proceeding at minimum safe speed if it is:
(1)On a plane;
(2)In the process of coming up onto or coming off a plane; or
(3)Creating an excessive wake.
(b)*Regulated Area.* All navigable waters, as defined in 33 CFR 2.36, within the Captain of the Port Zone, Charleston, South Carolina 33 CFR 3.35-15.
(c)*Security Zone* . A 300-yard security zone is established around each escorted vessel within the regulated area described in paragraph
(b)of this section. This is a moving security zone when the escorted vessel is in transit and becomes a fixed zone when the escorted vessel is anchored or moored. A security zone will not extend beyond the boundary of the regulated area in this section.
(d)*Regulations.*
(1)The general regulations for security zones contained in § 165.33 of this part applies to this section.
(2)A vessel may request the permission of the COTP Charleston or a designated representative to enter the security zone described in paragraph
(c)of this section. If permitted to enter the security zone, a vessel must proceed at the minimum safe speed and must comply with the orders of the COTP or a designated representative. No vessel or person may enter the inner 50-yard portion of the security zone closest to the vessel.
(e)*Notice of Security Zone* . The COTP will inform the public of the existence or status of the security zones around escorted vessels in the regulated area by Broadcast Notice to Mariners. Coast Guard assets or other Federal, State or local law enforcement agency assets will be clearly identified by lights, vessel markings, or with agency insignia. When escorted vessels are moored, dayboards or other visual indications such as lights or buoys may be used.
(f)*Contact Information* . The COTP Charleston may be reached via phone at
(843)724-7616. Any on scene Coast Guard or designated representative assets may be reached via VHF-FM channel 16. Dated: May 15, 2008. M. F. McAllister, Captain, U.S. Coast Guard, Captain of the Port, Charleston, South Carolina. [FR Doc. E8-11863 Filed 5-27-08; 8:45 am] BILLING CODE 4910-15-P LEGAL SERVICES CORPORATION 45 CFR Parts 1606 and 1623 Termination, Limited Reductions in Funding, and Debarment Procedures; Recompetition; Suspension Procedures AGENCY: Legal Services Corporation. ACTION: Notice of Rulemaking Workshop; correction. SUMMARY: LSC recently published a notice regarding a Rulemaking Workshop it is conducting in connection with its rulemaking to consider revisions to its regulations on termination and suspension. The date for the Workshop listed in that notice has changed. FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, Vice President and General Counsel, Legal Services Corporation, 3333 K St., NW., Washington, DC 20007;
(202)295-1620 (phone); 202-337-6831
(fax)or *vfortuno@lsc.gov.* SUPPLEMENTARY INFORMATION: On May 13, 2008, the Legal Services Corporation published a notice in the **Federal Register** that it will be convening a Rulemaking Workshop in connection with its open rulemaking to consider revisions to 45 CFR part 1606, Termination and Debarment Procedures; Recompetition, and 45 CFR part 1623, Suspension. (73 FR 27483). That notice stated that the Workshop was going to occur on Tuesday, June 17, 2008. The date for the Workshop has been rescheduled to Thursday, June 26, 2008. Victor M. Fortuno, Vice President and General Counsel. [FR Doc. E8-11873 Filed 5-27-08; 8:45 am] BILLING CODE 7050-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [MD Docket No. 08-65; FCC 08-126] Assessment and Collection of Regulatory Fees For Fiscal Year 2008 AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. SUMMARY: The Commission will revise its Schedule of Regulatory Fees in order to recover the amount of regulatory fees that Congress has required it to collect for fiscal year 2008. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees under sections 9(b)(2) and 9(b)(3), respectively, for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees. DATES: Comments are due May 30, 2008, and reply comments are due June 6, 2008. ADDRESSES: You may submit comments, identified by MD Docket No. 08-65, 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. • *E-mail: ecfs@fcc.gov.* Include MD Docket No. 08-65 in the subject line of the message. • *Mail:* Commercial overnight mail (other than U.S. Postal Service Express Mail, and Priority Mail, must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. FOR FURTHER INFORMATION CONTACT: Mika Savir, Office of Managing Director at
(202)418-0384. SUPPLEMENTARY INFORMATION: *Adopted: May 7, 2008.* *Released: May 8, 2008.* *By the Commission:* Table of Contents Table of Contents Paragraph No. I. Introduction 1 II. Discussion 2 A. FY 2008 Regulatory Fee Assessment Methodology—Development of FY 2008 Regulatory Fees 4 1. Calculation of Revenue and Fee Requirements 4 2. Additional Adjustments to Payment Units 5 a. Commercial Mobile Radio Service (“CMRS”) Messaging Service 5 b. Regulatory Fee Obligations for AM Expanded Band Broadcasters 6 B. International Bearer Circuits 8 C. Administrative and Operational Issues 9 1. Use of Fee Filer 10 2. New Lock Box Bank 12 3. New Receiving Bank for Wire Payments 13 4. Proposals for Notification and Collection of Regulatory Fees 14 a. Interstate Telecommunications Service Providers (“ITSPs”) 17 b. Satellite Space Station Licensees 19 c. Media Services Licensees 21 d. CMRS Cellular and Mobile Services Assessments 24 e. Cable Television Subscribers 28 5. Streamlined Regulatory Fee Payment Process for CMRS Cellular and Mobile Providers 30 6. Future Streamlining of the Regulatory Fee Assessment and Collection Process 31 III. Procedural Matters 32 A. Payment of Regulatory Fees 32 1. De Minimis Fee Payment Liability 32 2. Standard Fee Calculations and Payment Dates 33 B. Enforcement 34 C. Initial Regulatory Flexibility Analysis 36 D. Initial Paperwork Reduction Act Analysis 37 E. Ex Parte Rules 38 F. Filing Requirements 39 IV. Order 44 V. Ordering Clauses 50 Attachments Attachment A Initial Regulatory Flexibility Analysis Attachment B Sources of Payment Unit Estimates for FY 2008 Attachment C Calculation of Revenue Requirements and Pro-Rata Fees Attachment D Proposed FY 2008 Schedule of Regulatory Fees Attachment E Factors, Measurements, and Calculations that Determine Station Contours and Population Coverages Attachment F FY 2007 Schedule of Regulatory Fees I. Introduction 1. Section 9 of the Communications Act of 1934, as amended (“the Act”), requires the Commission to assess fees to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities. 1 In this Notice of Proposed Rulemaking (“Notice”), we propose to collect $312,000,000 in regulatory fees for Fiscal Year (“FY”) 2008. In this proceeding we seek comment on several regulatory fee issues for FY 2008 and also announce the new lock box address for payments to the Commission. 1 47 U.S.C. 159. II. Discussion 2. In this Notice, we seek comment on the development of FY 2008 regulatory fees collected pursuant to section 9 of the Act. For FY 2008, we propose to retain the established methods and policies that the Commission has used to collect regulatory fees in the past except as discussed below. For the FY 2008 regulatory fee cycle, we propose to retain most of the administrative measures used for notification, assessment, and pre-billing of regulatory fees of previous years. As we have in previous years, we seek comment on ways to improve the Commission's administrative processes for notifying entities of their regulatory fee obligations and collecting their payments. 3. The Commission is obligated to collect $312,000,000 in regulatory fees during FY 2008 to fund the Commission's operations. Consistent with our established practice, we intend to collect these fees in the August-September 2008 time frame in order to collect the required amount by the end of the fiscal year. A. FY 2008 Regulatory Fee Assessment Methodology—Development of FY 2008 Regulatory Fees 1. Calculation of Revenue and Fee Requirements 4. For our FY 2008 regulatory fee assessment, we propose to use essentially the same section 9 regulatory fee assessment methodology adopted for FY 2007, except as discussed below. Each fiscal year, the Commission proportionally allocates to fee categories the total amount that must be collected through our section 9 regulatory fees. 2 Consistent with past practice, we propose to divide the FY 2008 payment amount by the number of payment units in each fee category to calculate the unit fee. For cases involving small fees, we propose to divide the resulting unit fee by the term of the license. We propose to round these fees consistent with the requirements of section 9(b)(2) of the Act. We seek comment on these proposals. 2 *See* Appendix C for the proposed FY 2008 regulatory fee assessment methodology, including a comparison to the FY 2007 results. 2. Additional Adjustments to Payment Units a. Commercial Mobile Radio Service (“CMRS”) Messaging Service 5. CMRS Messaging Services, which replaced the CMRS One-Way Paging fee category in FY 1997, includes all narrowband services. 3 Since FY 2002, we have proposed to continue our policy of maintaining the CMRS Messaging Service regulatory fee at the rate that was first established in FY 2002 4 ( *i.e.* , $0.08 per subscriber), noting that the subscriber base in this industry has declined significantly. 5 We found that maintaining the CMRS Messaging regulatory fee rate at $0.08 per subscriber, rather than allowing it to increase, was the appropriate level of relief to be afforded to the messaging industry. 6 In this NPRM we propose to maintain the messaging service regulatory fee at $0.08 per subscriber. We seek comment on this proposal. Commenters suggesting a different approach, *i.e.* , a proposal other than keeping the fee at $0.08 per subscriber, should provide industry data to support their position. 3 *See Assessment and Collection of Regulatory Fees for Fiscal Year 1997,* MD Docket No. 96-186, Report and Order, 12 FCC Rcd 17161, 17184-85, para. 60
(1997)( *“FY 1997 Report and Order”* ). 4 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2003,* MD Docket No. 03-83, Report and Order, 18 FCC Rcd 15985, 15992, para. 21
(2003)( *“FY 2003 Report and Order”* ). 5 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2007,* MD Docket No. 07-81, Notice of Proposed Rulemaking, 22 FCC Rcd 7975, 7978, para. 7
(2007)( *“FY 2007 NPRM”* ). The subscriber base in the paging industry declined 83 percent from 40.8 million to 7.1 million, from FY 1997 to FY 2007, according to FY 2007 collection data, as of September 30, 2007. 6 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2007,* MD Docket No. 07-81, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15712, 15715, para. 9
(2007)( *“FY 2007 Report and Order”* ). b. Regulatory Fee Obligations for AM Expanded Band Broadcasters 6. The Commission initiated the migration of existing standard band AM stations to the expanded band to reduce interference and congestion in the existing standard band. 7 AM expanded band radio stations, in the 1610-1700 kHz range, are currently exempt from payment of regulatory fees as a matter of policy. Standard band AM stations, in the 540-1600 kHz range, are subject to regulatory fees. Our decision several years ago not to require section 9 regulatory fee payments for AM expanded band stations was not a permanent exemption from regulatory fees for AM expanded band radio service. 8 7 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2005 and Assessment and Collection of Regulatory Fees for Fiscal Year 2004,* *MD* Docket Nos. 05-59 and 04-73, Report and Order and Order on Reconsideration, 20 FCC Rcd 12259, 12267, para. 25
(2005)( *“FY 2005 Report and Order”* ). 8 F *Y 2005 Report and Order,* 20 FCC Rcd at 12267, para. 25. 7. We now seek comment on the most efficient methods of assessing a regulatory fee on expanded band AM licenses. We seek comment particularly regarding those instances where the licensee chooses to retain the expanded band service while giving up the standard band station. 9 We also seek comment on whether we should impose a separate regulatory fee on an expanded band licensee that holds a standard band license and continues to operate both stations ( *i.e.* , the licensee is not migrating to the expanded band but is keeping two licenses). 9 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2005,* MD Docket No. 05-59, Notice of Proposed Rulemaking, 20 FCC Rcd 3885, 3896, para. 36 (2005). B. International Bearer Circuits 8. In our *FY 2006 NPRM* , 10 we noted that VSNL Telecommunications
(US)Inc. (“VSNL”) had filed a Petition for Rulemaking urging the Commission to revise its regulatory fee methodology for bearer circuits; 11 and that we issued a public notice designating the proceeding as RM-11312 and requesting comment on the petition. 12 We stated in our *FY 2006 Report and Order* that the issues presented in the Petition warrant consideration separately from the Commission's annual regulatory fee proceeding. 13 In our *FY 2007 NPRM,* we received a set of joint comments filed by seven submarine cable landing licensees urging the Commission to take similar action. 14 We grant VSNL's petition and seek comment herein on the methodology used to calculate regulatory fees for providers of international bearer circuits. We seek comment on whether the Commission should retain the current methodology used to these regulatory fees, or change or modify the methodology (and if so, how?). 10 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2006,* MD Docket No. 06-68, Notice of Proposed Rulemaking, 21 FCC Rcd 3708, 3718, n.20
(2006)( *“FY 2006 NPRM”* ). 11 *See* Petition for Rulemaking of VSNL Telecommunications
(US)Inc., RM-11312 (filed Feb. 6, 2006) (“VSNL Petition”). 12 *See* Consumer and Governmental Affairs Bureau, Reference Information Center, *Public Notice,* Report No. 2759 (rel. Feb. 15, 2006). 13 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2006,* MD Docket No. 06-68, Report and Order, 21 FCC Rcd 8092, 8098-99, para. 18
(2006)( *“FY 2006 Report and Order”* ). 14 *See* Joint Comments at 1. C. Administrative and Operational Issues 9. We seek comment on the administrative and operational processes used to collect the annual section 9 regulatory fees. These issues do not affect the amount of regulatory fees parties are obligated to submit; however, the administrative and operational issues affect the process of submitting payment. We invite comment on ways to improve these processes. 1. Use of Fee Filer 10. We continue to encourage regulatees to use the Commission's online electronic Fee Filer application. Using the Commission's Fee Filer application reduces paperwork burdens on payors because it eliminates the need to file a paper FCC Form 159. It also allows payors to make a single payment for pre-billed and non-billed regulatory fees. Regulatees submitting more than ten
(10)Form 159-Cs are strongly encouraged to use Fee Filer when sending their regulatory fee payment. 11. Regulatees who file their FCC Form 159 information online via Fee Filer may choose to pay by online ACH debit from a bank account, by online credit card, by check or money order, by wire, or by credit card on paper. Payors wishing to remit payment via check, money order, wire, or credit card on paper must print a Fee Filer-generated Form 159-E Remittance Voucher to accompany payment, in lieu of Form 159. We note that Fee Filer will accept credit card payments of up to $99,999.99; the FCC accepts ACH debits (via Fee Filer) from a bank account in any denomination. All online payments are considered received by the FCC at the time that the FCC accepts the payor's bank account information or authorizes the payor's credit card. 2. New Lock Box Bank 12. We advise all regulatees that the Commission has a new lock box bank. All lock box payments to the Commission for FY 2008 will be processed by U.S. Bank, St. Louis, Missouri, and payable to the FCC. For all regulatory fees, the address is: Federal Communications Commission, Regulatory Fees, P.O. Box 979084, St. Louis, MO 63197-9000. 3. New Receiving Bank for Wire Payments 13. We also advise all regulatees that the Commission has a new receiving bank for wire payments. The new receiving bank is the Federal Reserve Bank, New York, New York (TREAS NYC). When making a wire transfer, regulatees must fax a copy of their completed remittance instrument to U.S. Bank, St. Louis, Missouri at
(314)418-4232 at least one hour before initiating the wire transfer (but on the same business day), so as to not delay crediting their account. Wire transfers initiated after 6:00 p.m.
(EDT)will be credited the next business day. Complete instructions for making wire payments are posted at *http://www.fcc.gov/fees/wiretrans.html.* 4. Proposals for Notification and Collection of Regulatory Fees 14. *Public Notices and fact sheets.* In this section, we seek comment on the administrative processes that the Commission uses to notify regulatees and collect regulatory fees. Each year we post public notices and fact sheets pertaining to regulatory fees on our Web site. These documents contain information about the payment due date and the regulatory fee payment procedures. We will continue to post this information on *http://www.fcc.gov/fees/regfees.html.* We seek comment on ways to improve our regulatory fee public notices and fact sheets. 15. Regulatees are expected to pay their yearly regulatory fees by filing FCC Form 159 or by accessing the Commission's online Fee Filer application. 15 As a general practice, we will not send regulatory fee material to regulatees via surface mail. However, in the event that regulatees do not have access to the Internet, we will mail public notices and other relevant material upon request. Regulatees and the general public may request such information by contacting the FCC Financial Operations Help Desk at
(877)480-3201, Option 4. We seek comment on ways to improve our administrative processes. 15 *http://www.fcc.gov/fees/feefiler.html.* 16. *Pre-bills.* We will not send public notices and fact sheets to regulatees en masse; however, we propose to continue to send specific regulatory fee pre-bills or assessment notifications via surface mail to the select fee categories discussed below. 16 Pre-bills are hardcopy billing statements that the Commission mails to certain regulatees. The Commission currently sends pre-bills to interstate telecommunications service providers (“ITSPs”), satellite space station licensees (both geostationary and non-geostationary), to holders of Cable Television Relay Service (“CARS”) licenses, and earth station licensees. The remaining regulatees do not receive pre-bills. We seek comment on ways to improve this practice. Commenters should discuss whether we should add other regulatory fee categories to our pre-bill procedures. 16 An assessment is a proposed statement of the amount of regulatory fees owed by an entity to the Commission (or proposed subscriber count to be ascribed for purposes of setting the entity's regulatory fee) but it is not entered into the Commission's accounting system as a current debt. A pre-bill is considered an account receivable in the Commission's accounting system. Pre-bills reflect the amount owed and have a payment due date of the last day of the regulatory fee payment window. Consequently, if a pre-bill is not paid by the due date, it becomes delinquent and is subject to our debt collection procedures. *See also* 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910. a. Interstate Telecommunications Service Providers (“ITSPs”) 17. In FY 2001, we began mailing pre-completed FCC Form 159-W assessments to carriers in an effort to assist them in paying their ITSP regulatory fee. The fee amount on FCC Form 159-W was calculated from the FCC Form 499-A worksheet. Beginning in FY 2004, we mailed the completed FCC Form 159-W as a pre-bill, rather than as an assessment of amount due. Other than the manner in which Form 159- payments were entered into our financial system, carriers experienced no procedural changes regarding the use of the FCC Form 159-W when submitting payment of their ITSP regulatory fees. We seek comment on whether we should continue this pre-billing process for ITSPs in FY 2008. 18. In FY 2007, we adopted a proposal to round lines 14 (total subject revenues) and 16 (total regulatory fee owed) on FCC Form 159-W to the nearest dollar. This revision enabled the Commission to process the ITSP regulatory fee payments more quickly because rounding was no longer a hindrance that slowed the processing of payments. In FY 2008, we will continue to round lines 14 and 16 on FCC Form 159-W to the nearest dollar. We seek comment on other ways that we can improve our pre-billing initiative for ITSPs. b. Satellite Space Station Licensees 19. Beginning in FY 2004, we mailed regulatory fee pre-bills via surface mail to licensees in our two satellite space station service categories. Specifically, geostationary orbit space station (“GSO”) licensees received bills requesting regulatory fee payment for satellites that
(1)were licensed by the Commission and operational on or before October 1 of the respective fiscal year; and
(2)were not co-located with and technically identical to another operational satellite on that date ( *i.e.* , were not functioning as a spare satellite). Non-geostationary orbit space station (“NGSO”) licensees received pre-bills requesting regulatory fee payment for systems that were licensed by the Commission and operational on or before October 1 of the respective fiscal year. 20. For FY 2008, we propose to continue mailing pre-bills for our GSO and NGSO satellite space station categories. We seek comment on this proposal. We emphasize that the pre-bills that we propose to generate for our GSO and NGSO licensees will only be for the satellite or system aspects of their respective operations. GSO and NGSO licensees typically have regulatory fee obligations in other service categories ( *e.g.* , earth stations, broadcast facilities), and we expect satellite operators to meet their full fee payment obligation for all of their FCC holdings. We seek comment on our proposal to generate regulatory fee pre-bills for our two satellite space station service categories. c. Media Services Licensees 21. Beginning in FY 2003, we sent fee assessment notifications via surface mail to media services entities on a per-facility basis. The notifications provided the assessed fee amount for the facility in question, as well as the data attributes that determined the fee amount. We have since refined this initiative with improved results. 17 We propose to continue our assessment initiative for media services licensees in FY 2008. 18 We seek comment on this proposal. 17 Some of those refinements have been to provide licensees with a Commission-authorized Web site to update or correct any information concerning their facilities, and to amend their fee-exempt status, if need be. Also, our notifications now provide licensees with a telephone number to call in the event that they need customer assistance. The notifications themselves have been refined so that licensees of fewer than four facilities receive individual fee assessment postcards for their facilities; whereas licensees of four or more facilities now receive a single assessment letter that lists all of their facilities and the associated regulatory fee obligation for each facility. 18 We again propose to issue fee assessments for AM and FM Radio Stations, AM and FM Construction Permits, FM Translators/Boosters, VHF and UHF Television Stations, VHF and UHF Television Construction Permits, Satellite Television Stations, Low Power Television (``LPTV'') Stations and LPTV Translators/Boosters, to the extent that applicants, permittees and licensees of such facilities do not qualify as government entities or non-profit entities. Fee assessments have not been issued for broadcast auxiliary stations in prior years, nor will they be issued in FY 2008. 22. Consistent with procedures used last year, we propose to mail assessment notifications to licensees to their primary record of contact populated in our Consolidated Database System (“CDBS”) and to their secondary record of contact, if available. We seek comment on this proposal. We will continue to make the Commission-authorized Web site available to licensees to update or correct any information concerning their facilities and to amend their fee-exempt status, if need be. 19 If there is a change of address for the facility, it is the licensee's responsibility to make the address change in the Media Bureau's CDBS system, as well as in the Commission's Registration System (“CORES”). 19 The Commission-authorized Web site for media services licensees is *http://www.fccfees.com.* 23. Under our proposal, licensees must still submit a completed FCC Form 159 Remittance Advice with their fee payments. The assessment notifications, whether in the form of a letter or postcard, cannot be used as a substitute for a completed Form 159. d. CMRS Cellular and Mobile Services Assessments 24. As we have done in prior years, we propose to mail an assessment letter to Commercial Mobile Radio Service (“CMRS”) providers using data from the Numbering Resource Utilization Forecast (“NRUF”) report that is based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”). 20 This letter will include a listing of the carrier's Operating Company Numbers (“OCNs”) upon which the assessment is based. 21 Consistent with existing practice, the letters will not include OCNs with their respective assigned number counts, but rather, an aggregate total of assigned numbers for each carrier. We also propose to continue our procedure of giving entities an opportunity to revise their subscriber counts by sending two rounds of assessment letters—an initial assessment and a final assessment letter. We seek comment on this proposal. 20 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2005 and Assessment and Collection of Regulatory Fees for Fiscal Year 2004,* MD Docket Nos. 05-59 and 04-73, Report and Order and Order on Reconsideration, 20 FCC Rcd 12259, 12264, para. 38-44 (2005). 21 Id. 25. If the number of subscribers on the initial assessment letter differs from the subscriber count the service provider provided on its NRUF form, the carrier can correct its subscriber count by returning the assessment letter or by contacting the Commission and stating a reason for the change, such as the purchase or the sale of a subsidiary, including the date of the transaction, and any other information that will help to justify a reason for the change. If we receive no response or correction to our initial assessment letter, we will expect the fee payment to be based on the number of subscribers listed on the initial assessment. We will review all responses to initial assessment letters and determine whether a change in the number of subscribers is warranted. We will then generate and mail a final assessment letter. The final assessment letter will inform carriers as to whether or not we accept the changed number of subscribers. As in previous years, operators will certify their subscriber counts in Block 30 of the FCC Form 159 Remittance Advice when making their regulatory fee payments. We seek comment on our current procedures of assessing CMRS subscriber counts (for NRUF filers) and other ways to improve the process. 26. Some carriers may not be sent a letter of assessment because they had not filed the NRUF form. We propose that these carriers compute their fee payment using the standard methodology 22 that is currently in place for CMRS Wireless services ( *e.g.* , compute their subscriber counts as of December 31, 2007), and submit their payment accordingly on FCC Form 159. The Commission may audit the number of subscribers for which regulatory fees are paid, whether a carrier receives an assessment letter or computes the subscriber count itself. In the event that the Commission determines that the number of subscribers is inaccurate or that an insufficient reason is given for making a correction on the initial assessment letter, the Commission will assess the carrier for the difference between what was paid and what should have been paid. 22 Federal Communications Commission, *Regulatory Fees Fact Sheet: What You Owe—Commercial Wireless Services for FY 2005* at 1 (rel. Jul. 2005). 27. We, therefore, propose to
(1)derive the subscriber count from NRUF data based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”);
(2)provide carriers with an opportunity to revise their subscriber counts at the time when the initial assessment letter is mailed; and
(3)require carriers to confirm their subscriber counts at the aggregate level using data in the NRUF report. We seek comment on these proposals. e. Cable Television Subscribers 28. We propose to continue to permit cable television operators to base their regulatory fee payment on their company's aggregate year-end subscriber count, rather than requiring them to sub-report subscriber counts on a per community unit identifier (“CUID”) basis on the FCC Form 159 Remittance Advice. We seek comment on this proposal. Operators, after providing their company's aggregate subscriber count in Block 25A of the FCC Form 159, will still be required to certify the accuracy of the subscriber count in Block 30. This practice has worked well for the Commission the past three fiscal years and has eased administrative burdens for the cable television industry. 29. Beginning in FY 2006, we sent an electronic message to e-mail addresses populated in the Media Bureau's Cable Operations and Licensing System (“COALS”) to notify them of the amount and due date of regulatory fees for basic cable television subscribers. We propose to continue this effort for FY 2008, but we are not sure if this notification practice is effective. We seek comment on whether this practice of sending electronic e-mail notification to cable operators should be continued. 5. Streamlined Regulatory Fee Payment Process for CMRS Cellular and Mobile Providers 30. In FY 2006, we streamlined the CMRS payment process by eliminating the requirement for CMRS providers to identify their individual calls signs when making their regulatory fee payment, requiring instead for CMRS providers to pay their regulatory fees only at the aggregate subscriber level without having to identify their various call signs. 23 We propose to continue this practice in FY 2008. We seek comment on this proposal. In addition, to lessen the administrative burden on licensees, we proposed in FY 2007 to consolidate the CMRS cellular and CMRS mobile fee categories into one fee category and as one fee code, thereby eliminating the requirement for CMRS providers to separate their subscriber counts into CMRS cellular and CMRS mobile fee categories during the regulatory fee payment process. This consolidation of fee categories enabled the Commission to process payments more quickly and accurately. For FY 2008, we propose to continue this practice of combining the CMRS cellular and CMRS mobile fee categories into one regulatory fee category. We seek comment on this proposal. 23 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2006,* MD Docket No. 06-68, Report and Order, 21 FCC Rcd 8092, 8105, para. 48 (2006). 6. Future Streamlining of the Regulatory Fee Assessment and Collection Process 31. We continue to welcome comments concerning our commitment to reviewing, streamlining, and modernizing our statutorily required fee assessment and collection procedures. Our areas of particular interest include:
(1)The process for notifying licensees about changes in the annual Schedule of Regulatory Fees and how it can be improved;
(2)the most effective way to disseminate regulatory fee assessments and bills, *e.g.* , through surface mail, e-mail, list server using Listserv, online Web site, or some other mechanism;
(3)the fee payment process, including how the agency's online regulatory fee filing system (Fee Filer) can be enhanced;
(4)the timing of fee payments, including whether we should alter the existing section 9 regulatory fee payment window in any way; and
(5)the timing of fee assessments and pre-bills. III. Procedural Matters A. Payment of Regulatory Fees 1. De Minimis Fee Payment Liability 32. Consistent with past practice, regulatees whose total FY 2008 regulatory fee liability, including all categories of fees for which payment is due, amounts to less than $10 will be exempted from payment of FY 2008 regulatory fees. 2. Standard Fee Calculations and Payment Dates 33. The Commission will, for the convenience of payers, accept fee payments made in advance of the window for the payment of regulatory fees. Licensees are reminded that, under our current rules, the responsibility for payment of fees by service category is as follows: 24 24 As we noted earlier in our request for comments in possible adjustments to payment units, *e.g.* , para. 6-12, we seek comment addressing several areas in our regulatory fees. Such comments may result in modification of the fee calculations discussed above and the methodology stated below. *See, e.g.* , note 24. • *Media Services:* Regulatory fees must be paid for initial construction permits that were granted on or before October 1, 2007 for AM/FM radio stations, VHF/UHF television stations and satellite television stations. Regulatory fees must be paid for all broadcast facility licenses granted on or before October 1, 2007. In instances where a permit or license is transferred or assigned after October 1, 2007, responsibility for payment rests with the holder of the permit or license as of the fee due date. • *Wireline (Common Carrier) Services:* Regulatory fees must be paid for authorizations that were granted on or before October 1, 2007. In instances where a permit or license is transferred or assigned after October 1, 2007, responsibility for payment rests with the holder of the permit or license as of the fee due date. • *Wireless Services:* CMRS cellular, mobile, and messaging services (fees based upon a subscriber, unit or circuit count): Regulatory fees must be paid for authorizations that were granted on or before October 1, 2007. The number of subscribers, units or circuits on December 31, 2007 will be used as the basis from which to calculate the fee payment. • The first eleven regulatory fee categories in our Schedule of Regulatory Fees ( *see* Attachment D) pay what we refer to as “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount of their five-year or ten-year term of initial license, and only pay regulatory fees again when the license is renewed or a new license is obtained. We include these eleven categories in our Schedule of Regulatory Fees to publicize our estimates of the number of “small multi-year wireless” licenses that will be renewed or newly obtained in FY 2008. • *Multichannel Video Programming Distributor Services (cable television operators and CARS licensees):* Regulatory fees must be paid for the number of basic cable television subscribers as of December 31, 2007. 25 Regulatory fees also must be paid for CARS licenses that were granted on or before October 1, 2007. In instances where a CARS license is transferred or assigned after October 1, 2007, responsibility for payment rests with the holder of the license as of the fee due date. 25 Cable television system operators should compute their basic subscribers as follows: Number of single family dwellings + number of individual households in multiple dwelling unit (apartments, condominiums, mobile home parks, *etc.* ) paying at the basic subscriber rate + bulk rate customers + courtesy and free service. Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by basic annual subscription rate for individual households. Operators may base their count on “a typical day in the last full week” of December 2007, rather than on a count as of December 31, 2007. *But see* para. 8-12 above. • *International Services:* Regulatory fees must be paid for earth stations, geostationary orbit space stations and non-geostationary orbit satellite systems that were licensed and operational on or before October 1, 2007. In instances where a license is transferred or assigned after October 1, 2007, responsibility for payment rests with the holder of the license as of the fee due date. Regulatory fees must be paid for international bearer circuits based on the number of active circuits as of December 31, 2007. 26 26 Regulatory fees for International Bearer Circuits are to be paid by facilities-based common carriers that have active international bearer circuits in any transmission facility for the provision of service to an end user or resale carrier, which includes active circuits to themselves or to their affiliates. In addition, non-common carrier satellite operators must pay a fee for each circuit sold or leased to any customer, including themselves or their affiliates, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. Non-common carrier submarine cable operators are also to pay fees for any and all international bearer circuits sold on an indefeasible right of use (“IRU”) basis or leased to any customer, including themselves or their affiliates, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. Non-common carrier submarine cable operators are also to pay fees for any and all international bearer circuits provided as a private line service to an international common carrier authorized by the Commission to provide U.S. international common carrier services. *See Assessment and Collection of Regulatory Fees for Fiscal Year 2001,* MD Docket No. 01-76, Report and Order, 16 FCC Rcd 13525, 13593 (2001); *Regulatory Fees Fact Sheet: What You Owe—International and Satellite Services Licensees for FY 2004* at 3 (rel. July 2004) (the fact sheet is available on the FCC Web site at: ( *http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-249904A4.pdf* ). B. Enforcement 34. Regulatory fee payment must be received and stamped at the lockbox bank by the last day of the regulatory fee filing window, and not merely postmarked by the last day of the window. As a reminder to all licensees, section 9(c) of the Act requires us to impose an additional charge as a penalty for late payment of any regulatory fee. 27 A late payment penalty of 25 percent of the amount of the required regulatory fee will be assessed on the first day following the deadline date for filing of these fees. Failure to pay regulatory fees and/or any late penalty will subject regulatees to sanctions, including the Commission's Red Light Rule 28 and the provisions set forth in the Debt Collection Improvement Act of 1996 (“DCIA”). 29 We also assess administrative processing charges on delinquent debts to recover additional costs incurred in processing and handling the related debt pursuant to the DCIA and section 1.1940(d) of the Commission's rules. 30 These administrative processing charges will be assessed on any delinquent regulatory fee, in addition to the 25 percent late charge penalty. In case of partial payments (underpayments) of regulatory fees, the licensee will be given credit for the amount paid, but if it is later determined that the fee paid is incorrect or not timely paid, then the 25 percent late charge penalty (and other charges and/or sanctions, as appropriate) will be assessed on the portion that is not paid in a timely manner. 27 47 U.S.C. 159(c). 28 *See* 47 CFR 1.1910. 29 Delinquent debt owed to the Commission triggers application of the “red light rule” which requires offsets or holds on pending disbursements. 47 CFR 1.1910. In 2004, the Commission adopted rules implementing the requirements of the DCIA. *See Amendment of Parts 0 and 1 of the Commission's Rules,* MD Docket No. 02-339, Report and Order, 19 FCC Rcd 6540 (2004); 47 CFR part 1, subpart O, Collection of Claims Owed the United States. 30 47 CFR 1.1940(d). 35. We will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made. 31 Failure to pay regulatory fees can also result in the initiation of a proceeding to revoke any and all authorizations held by the entity responsible for paying the delinquent fee(s). 32 31 *See* 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910. 32 *See also* para. 122, below. C. Initial Regulatory Flexibility Analysis 36. An initial regulatory flexibility analysis (“IRFA”) is contained in Attachment A of the Appendix. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the Notice. The Commission will send a copy of the Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. D. Initial Paperwork Reduction Act Analysis 37. This Notice does not contain proposed or modified information collections subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. This Notice does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. 33 The forms already required by the Commission's regulatory fee process have been approved by the Office of Management and Budget under information collection 3060-0589. 33 *See* 44 U.S.C. 3506(c)(4). E. Ex Parte Rules 38. This is as a “permit-but-disclose” proceeding subject to the requirements under section 1.1206(b) of the Commission's rules. 34 *Ex parte* presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, *ex parte* or otherwise, are generally prohibited. Persons making oral *ex parte* presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. 35 Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b). 34 *See* 47 CFR 1.1206(b); see also 47 CFR 1.1202, 1.1203. 35 *See* 47 CFR 1.1206(b)(2). F. Filing Requirements 39. *Comments and Replies.* Pursuant to sections 1.415 and 1.419 of the Commission's rules, 36 interested parties may file comments on or before the dates indicated on the first page of this document. Comments may be filed using:
(1)The Commission's Electronic Comment Filing System (“ECFS”),
(2)the Federal Government's eRulemaking Portal, or
(3)procedures for filing paper copies. 37 36 *See id.* section 1.415, 1.419. 37 *See Electronic Filing of Documents in Rulemaking Proceedings,* 13 FCC Rcd 11322 (1998). 40. *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. 41. *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. 42. *Availability of Documents.* Comments, reply comments, and *ex parte* submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available free online, via ECFS. Documents will be available electronically in ASCII, Word, and/or Adobe Acrobat. 43. *Accessibility Information.* To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (“PDF”) at *http://www.fcc.gov.* IV. Order 44. In WT Docket No. 03-66 (the *“BRS/EBS Proceeding”* ), the Commission sought comment on proposed changes to the regulatory fee structure for BRS. 38 In 2006, the Commission adopted a new regulatory fee structure for BRS (the *“2006 Decision”* ). 39 Specifically, as noted in the *FY 2007 NPRM* , the Commission adopted a megahertz-based approach for BRS regulatory fees and, using a concept similar to the Commission's annual scale of regulatory fees for broadcast television stations, established in the *2006 Decision* three rate tiers based on the BTA ranking of each license. 40 Under the *2006 Decision* , BRS regulatory fees will use a MHz-based formula with three tiers of fees by markets. Instead of a flat fee amount per BRS license, BRS licensees will pay a fee in one of three fee categories based on Basic Trading Areas (“BTA”) ranked by population size. 41 The highest fee will be assessed to licenses in BTAs ranked 1-60, licenses in BTAs ranked 61-200 will have a lesser fee, and licenses for BTAs ranked 201-493 will pay the lowest fee. 42 38 *See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands* , WT Docket No. 03-66, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165, 14296, para. 357
(2004)( *“BRS/EBS Report and Order and FNPRM”* ). 39 *See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands,* WT Docket No. 03-66, Order on Reconsideration and Fifth Memorandum Opinion and Order and Third Memorandum Opinion and Order and Second Report and Order, 21 FCC Rcd 5606, 5756-59, para. 367-376
(2006)( *“2006 Decision”* ). 40 *See FY 2007 NPRM, 22 FCC Rcd at 7978, para. 8 n.8, citing the 2006 Decision.* The three tiers are based on three categories of Basic Trading Areas (“BTA”) population rankings: BTAs 1-60, BTAs 61-200, and BTAs 201-493. For BRS licensees that are licensed by geographic licensed service area (“GSA”), the BTA is the geographic center point of where its GSA is located. *See 2006 Decision,* 21 FCC Rcd at 5759, para. 376. 41 *See 2006 Decision,* 21 FCC Rcd at 5759, para. 376. 42 *Id.* 45. In the *FY 2007 NPRM* , we sought comment on the implementation of the new BRS fee structure. Specifically, we invited commenters to suggest a simple method of calculating BRS regulatory fees that incorporates the complexity of using both elements of the *2006 Decision* , namely, the three rate tiers, to be based on the BTA ranking of each license, and the per megahertz fee. 43 In particular, we invited comment on a formula or method for calculating regulatory fees that incorporates the *2006 Decision* in a manner “sensitive to rural operators in less densely populated areas. 44 43 *FY 2007 NPRM,* 22 FCC Rcd at 7978, para. 8. 44 *Id.* 46. In a *Further Notice of Proposed Rulemaking* , we proposed to use a weighted average approach based on the *2006 Decision* to establish three tiers of regulatory fees using a 3:2:1 ratio, *i.e.* , 3x for Tier 1, 2x for Tier 2, and 1x for Tier 3, where x equals the base fee amount (Pro-rated FY Revenue Requirement for BRS divided by the weighted total number of BRS payment units). 45 In adopting three fee tiers for BRS, the Commission considered that BTAs ranked 1-60 generally have a population of greater than one million, BTAs ranked 61-200 generally have population of 250,000 to one million, and BTAs ranked 201-493 have a population of less than 250,000. 46 45 *Assessment and Collection of Regulatory Fees for Fiscal Year 2007* , MD Docket No. 07-81, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15712, 15726-15727, para. 46-50
(2007)( *“2007 FNPRM”* ). 46 *Id.,* 22 FCC Rcd at 15724-15725, para. 49. 47. The second element of the *2006 Decision* involved setting a fee per megahertz of licensed BRS spectrum. However, throughout the nation, BTA-by-BTA, the BRS radio service and its licensees are in the midst of a multi-year transition to a new band plan that, among other things, is modifying the amount of spectrum designated and licensed for BRS. 47 Given the complexities associated with this “moving target,” we tentatively concluded that the public interest would be best served by implementing the fee per megahertz approach after the BRS transition concludes nationwide. 48 47 The transition plan creates a process for relocating Educational Broadband Service (“EBS”) licensees and BRS licensees from their current channel locations to their new spectrum blocks in the Lower Band Segment (“LBS”), Middle band Segment (“MBS”), or Upper Band Segment (“UBS”). The transition occurs by BTA and is undertaken by a proponent or multiple proponents. A proponent(s) must pay the cost of transitioning EBS licensees. The transition occurs in the following three phases: the Initiation Phase, the Transition Planning Phase, and the Transition Completion Phase. 48 *FY 2007 FNPRM,* 22 FCC Rcd at 15727, para. 50. 48. Comments on the *2007 FNPRM* were filed by WCA 49 and by the law firm of Blooston, Mordkofsky, Dickens, Duffy, & Prendergast, LLP (“BloostonLaw”). 50 WCA continues to advocate basing regulatory fees on a licensee's MHz/population, which the Commission has previously rejected. 51 WCA also advocates making no changes until the transition is complete. 52 BloostonLaw argues that there is insufficient information in the record to conclude that this proposal would benefit rural operators. 53 BloostonLaw also contends that the fee should be based on the population within the licensee's geographic service area. 54 49 Comments of the Wireless Communications Association International, Inc., MD Docket No. 07-81 (filed Sep. 17, 2007) (“WCA Comments”). 50 Comments, Blooston, Mordkofsky, Dickens, Duffy, & Prendergast, LLP, MD Docket No. 07-81 (filed Sep. 17, 2007) (“BloostonLaw Comments”). 51 WCA Comments at 3-5. 52 WCA Comments at 1. 53 BloostonLaw Comments at 1-3. 54 *Id.* at 3-4. 49. After reviewing the record, we now conclude that we will continue the current practice of charging a flat fee per license until the BRS/EBS transition to the new band plan. Neither of the commenters supported the proposal contained in the *2007 FNPRM* . Furthermore, WCA urges that no changes be made until the transition is complete. We also note that the transition is proceeding quickly. Transition initiation plans have been filed in 355 out of 493 BTAs, and the transition has been completed in 207 BTAs. 55 Any changes we adopt could not take effect until we adopt the changes, the Commission sends a report to Congress, and 90 days passes. If the transition is complete in 2009 or 2010, which seems possible, the interim system proposed in the *2007 FNPRM* could only be in place for one year. This effort would risk confusing licensees, and we believe that devoting Commission resources to implementing this interim system would be difficult to justify. Accordingly, we conclude that we will maintain the current system of charging a flat, per-license fee until the transition to the new band plan is complete. 55 As of 2/1/08. V. Ordering Clauses 50. Accordingly, *It is Ordered* that, pursuant to sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r), this Notice of Proposed Rulemaking and Order is hereby adopted. 51. *It is Further Ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Shall Send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration. Federal Communications Commission. Gloria J. Miles, Federal Register Liaison. Attachment A—Initial Regulatory Flexibility Analysis 52. As required by the Regulatory Flexibility Act (“RFA”), 56 the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on small entities by the policies and rules in the present NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed on or before the dates indicated on the first page of this NPRM. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 57 In addition, the NPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . 58 56 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612 has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847
(1996)(“CWAAA”). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”). 57 5 U.S.C. 603(a). 58 *Id.* I. Need for, and Objectives of, the Proposed Rules 53. This rulemaking proceeding is initiated to obtain comments concerning the Commission's proposed amendment of its Schedule of Regulatory Fees in the amount of $312,000,000, the amount that Congress has required the Commission to recover. The Commission seeks to collect the necessary amount through its proposed Schedule of Regulatory Fees in the most efficient manner possible and without undue public burden. II. Legal Basis 54. This action, including publication of proposed rules, is authorized under sections (4)(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended. 59 59 47 U.S.C. 154(i) and (j), 159, and 303(r). III. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 55. 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 and policies, if adopted. 60 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 61 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 62 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. 63 60 5 U.S.C. 603(b)(3). 61 5 U.S.C. 601(6). 62 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 63 15 U.S.C. 632. 56. *Small Businesses.* Nationwide, there are a total of 22.4 million small businesses, according to SBA data. 64 64 *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at p. 40 (July 2002). 57. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 65 65 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 58. *Small Governmental Jurisdictions.* The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 66 Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. 67 We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” 68 Thus, we estimate that most governmental jurisdictions are small. 66 5 U.S.C. 601(5). 67 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, p. 272, Table 415. 68 We assume that the villages, school districts, and special districts are small, and total 48,558. *See* U.S. Census Bureau, Statistical Abstract of the United States: 2006, section 8, p. 273, Table 417. For 2002, Census Bureau data indicate that the total number of county, municipal, and township governments nationwide was 38,967, of which 35,819 were small. *Id.* 59. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( *e.g.* , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” 69 The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. 70 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 69 15 U.S.C. 632. 70 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” *See* 15 U.S.C. 632(a) (“Small Business Act”); 5 U.S.C. 601(3) (“RFA”). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. *See* 13 CFR 121.102(b). 60. *Incumbent Local Exchange Carriers (“ILECs”).* Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 71 According to Commission data, 72 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed action. 71 13 CFR 121.201, North American Industry Classification System (NAICS) code 517110. 72 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, *“Trends in Telephone Service”* at Table 5.3, Page 5-5 (June 2005) ( *“Trends in Telephone Service”* ). This source uses data that are current as of October 1, 2004. 61. *Competitive Local Exchange Carriers (“CLECs”), Competitive Access Providers (“CAPs”), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 73 According to Commission data, 74 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 94 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed action. 73 13 CFR 121.201, NAICS code 517110. 74 “Trends in Telephone Service” at Table 5.3. 62. *Local Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 75 According to Commission data, 76 143 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 141 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by our proposed action. 75 13 CFR 121.201, NAICS code 517310. 76 “Trends in Telephone Service” at Table 5.3. 63. *Toll Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 77 According to Commission data, 78 770 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 747 have 1,500 or fewer employees and 23 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by our proposed action. 77 13 CFR 121.201, NAICS code 517310. 78 “Trends in Telephone Service” at Table 5.3. 64. *Payphone Service Providers (“PSPs”).* Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 79 According to Commission data, 80 654 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 652 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by our proposed action. 79 3 CFR 121.201, NAICS code 517110. 80 “Trends in Telephone Service” at Table 5.3. 65. *Interexchange Carriers (“IXCs”).* Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 81 According to Commission data, 82 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our proposed action. 81 13 CFR 121.201, NAICS code 517110. 82 “Trends in Telephone Service” at Table 5.3. 66. *Operator Service Providers (“OSPs”).* Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 83 According to Commission data, 84 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 20 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our proposed action. 83 13 CFR 121.201, NAICS code 517110. 84 “Trends in Telephone Service” at Table 5.3. 67. *Prepaid Calling Card Providers.* Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 85 According to Commission data, 86 89 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, an estimated 88 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by our proposed action. 85 13 CFR 121.201, NAICS code 517310. 86 “Trends in Telephone Service” at Table 5.3. 68. *800 and 800-Like Service Subscribers.* 87 Neither the Commission nor the SBA has developed a small business size standard specifically for 800 and 800-like service (“toll free”) subscribers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 88 The most reliable source of information regarding the number of these service subscribers appears to be data the Commission receives from Database Service Management on the 800, 866, 877, and 888 numbers in use. 89 According to our data, at the end of December 2004, the number of 800 numbers assigned was 7,540,453; the number of 888 numbers assigned was 5,947,789; the number of 877 numbers assigned was 4,805,568; and the number of 866 numbers assigned was 5,011,291. We do not have data specifying the number of these subscribers that are independently owned and operated or have 1,500 or fewer employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, we estimate that there are 7,540,453 or fewer small entity 800 subscribers; 5,947,789 or fewer small entity 888 subscribers; 4,805,568 or fewer small entity 877 subscribers, and 5,011,291 or fewer entity 866 subscribers. 87 We include all toll-free number subscribers in this category. 88 13 CFR 121.201, NAICS code 517310. 89 “Trends in Telephone Service” at Tables 18.4, 18.5, 18.6, and 18.7. 69. *International Service Providers.* There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 90 90 13 CFR 121.201, NAICS codes 517410 and 517910. 70. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” 91 For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. 92 Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. 93 Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 91 U.S. Census Bureau, 2002 NAICS Definitions, “517410 Satellite Telecommunications *”; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 92 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 517410. 93 *Id.* An additional 38 firms had annual receipts of $25 million or more. 71. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” 94 For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. 95 Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. 96 Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. 94 U.S. Census Bureau, 2002 NAICS Definitions, “517910 Other Telecommunications”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 95 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 517910. 96 *Id.* An additional 14 firms had annual receipts of $25 million or more. 72. *Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” 97 and “Cellular and Other Wireless Telecommunications.” 98 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 99 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 100 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 101 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 102 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 97 13 CFR 121.201, NAICS code 517211. 98 13 CFR 121.201, NAICS code 517212. 99 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517211. 100 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 101 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 517212. 102 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 73. *Internet Service Providers.* The SBA has developed a small business size standard for Internet Service Providers. This category comprises establishments “primarily engaged in providing direct access through telecommunications networks to computer-held information compiled or published by others.” 103 Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. 104 According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. 105 Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24,999,999. 106 Thus, under this size standard, the great majority of firms can be considered small entities. 103 Office of Management and Budget, North American Industry Classification System, p. 515 (1997). NAICS code 518111, “On-Line Information Services.” 104 13 CFR 121.201, NAICS code 518111. 105 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 4, Receipts Size of Firms Subject to Federal Income Tax: 1997, NAICS code 514191. 106 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 4, Receipts Size of Firms Subject to Federal Income Tax: 1997, NAICS code 514191. 74. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” 107 and “Cellular and Other Wireless Telecommunications.” 108 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 109 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 110 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 111 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 112 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 107 13 CFR 121.201, NAICS code 517211. 108 13 CFR 121.201, NAICS code 517212. 109 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517211. 110 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 111 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517212. 112 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 75. *Common Carrier Paging.* As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.” 113 Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, U.S. Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 114 Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. 115 Thus, under this category and associated small business size standard, the great majority of firms can be considered small. 113 13 CFR 121.201, NAICS code 517212. 114 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513321. 115 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513321. The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is “Firms with 1000 employees or more.” 76. In addition, in the *Paging Second Report and Order* , the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 116 A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. 117 The SBA has approved this definition. 118 An auction of Metropolitan Economic Area (“MEA”) licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold. 119 Fifty-seven companies claiming small business status won 440 licenses. 120 An auction of MEA and Economic Area (“EA”) licenses commenced on October 30, 2001, and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. 121 One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs commenced on May 13, 2003, and closed on May 28, 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses. 122 Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent *Trends in Telephone Service,* 408 private and common carriers reported that they were engaged in the provision of either paging or “other mobile” services. 123 Of these, we estimate that 589 are small, under the SBA-approved small business size standard. 124 We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition. 116 *Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems,* Second Report and Order, 12 FCC Rcd 2732, 2811-2812, paras. 178-181 ( *“Paging Second Report and Order”* ); *see also Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems,* Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 10030, 10085-10088, paras. 98-107 (1999). 117 *Paging Second Report and Order,* 12 FCC Rcd at 2811, para. 179. 118 *See* Letter from Aida Alvarez, Administrator, SBA, to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau (“WTB”), FCC (Dec. 2, 1998) ( *“Alvarez Letter 1998”* ). 119 *See* “929 and 931 MHz Paging Auction Closes,” Public Notice, 15 FCC Rcd 4858 (WTB 2000). 120 *See id.* 121 *See* “Lower and Upper Paging Band Auction Closes,” Public Notice, 16 FCC Rcd 21821 (WTB 2002). 122 *See* “Lower and Upper Paging Bands Auction Closes,” Public Notice, 18 FCC Rcd 11154 (WTB 2003). 123 “Trends in Telephone Service” at Table 5.3. 124 13 CFR 121.201, NAICS code 517211. 77. *Wireless Communications Services.* This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (“WCS”) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. 125 The SBA has approved these definitions. 126 The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities, and one bidder that won one license that qualified as a small business entity. 125 *Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS)* , Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997). 126 *See Alvarez Letter 1998.* 78. *1670-1675 MHz Services.* An auction for one license in the 1670-1675 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity. 79. *Wireless Telephony.* Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. 127 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. 128 According to *Trends in Telephone Service* data, 437 carriers reported that they were engaged in wireless telephony. 129 We have estimated that 260 of these are small under the SBA small business size standard. 127 13 CFR 121.201, NAICS code 517212. 128 13 CFR 121.201, NAICS code 517212. 129 “Trends in Telephone Service” at Table 5.3. 80. *Broadband Personal Communications Service.* The broadband personal communications services (“PCS”) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 130 For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 131 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. 132 No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. 133 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. 134 130 *See Amendment of Parts 20 and 24 of the Commission's Rules—Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap,* Report and Order, 11 FCC Rcd 7824, 7850-7852, paras. 57-60
(1996)( *“PCS Report and Order”* ); *see also* 47 CFR 24.720(b). 131 *See PCS Report and Order,* 11 FCC Rcd at 7852, para. 60. 132 *See Alvarez Letter 1998.* 133 FCC News, “Broadband PCS, D, E and F Block Auction Closes,” No. 71744 (rel. Jan. 14, 1997). 134 *See* “C, D, E, and F Block Broadband PCS Auction Closes,” *Public Notice,* 14 FCC Rcd 6688 (WTB 1999). 81. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. 135 Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction No. 58. There were 24 winning bidders for 217 licenses. 136 Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. 137 Of the 14 winning bidders, six were designated entities. 138 135 *See* “C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 2339 (2001). 136 *See* “Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58,” *Public Notice* , 20 FCC Rcd 3703 (2005). 137 *See* “Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71,” *Public Notice* , 22 FCC Rcd 9247 (2007). 138 *Id.* 82. *Narrowband Personal Communications Services.* The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. 139 Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. 140 To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. 141 A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. 142 A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. 143 The SBA has approved these small business size standards. 144 A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. 145 Three of these claimed status as a small or very small entity and won 311 licenses. 139 *Implementation of Section 309(j) of the Communications Act—Competitive Bidding Narrowband PCS* , Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 196, para. 46 (1994). 140 *See* “Announcing the High Bidders in the Auction of ten Nationwide Narrowband PCS Licenses, Winning Bids Total $617,006,674,” *Public Notice* , PNWL 94-004 (rel. Aug. 2, 1994); “Announcing the High Bidders in the Auction of 30 Regional Narrowband PCS Licenses; Winning Bids Total $490,901,787,” *Public Notice* , PNWL 94-27 (rel. Nov. 9, 1994). 141 *Amendment of the Commission's Rules to Establish New Personal Communications Services* , Narrowband PCS, Second Report and Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd 10456, 10476, para. 40
(2000)(“ *Narrowband PCS Second Report and Order* ”). 142 *Narrowband PCS Second Report and Order* , 15 FCC Rcd at 10476, para. 40. 143 *Id.* 144 *See Alvarez Letter 1998* . 145 *See* “Narrowband PCS Auction Closes,” *Public Notice* , 16 FCC Rcd 18663 (WTB 2001). 83. *Lower 700 MHz Band Licenses.* The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. 146 The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. 147 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. 148 Additionally, the lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (“MSA/RSA”) licenses. The third category is “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. 149 The SBA approved these small size standards. 150 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. 151 A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. 152 Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. 153 On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status. 146 *See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59)* , Report and Order, 17 FCC Rcd 1022
(2002)(“ *Channels 52-59 Report and Order* ”). 147 *See Channels 52-59 Report and Order* , 17 FCC Rcd at 1087-88, para. 172. 148 *See id.* 149 *See id,* 17 FCC Rcd at 1088, para. 173. 150 *See* Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, WTB, FCC (Aug. 10, 1999) (“ *Alvarez Letter 1999* ”). 151 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 17 FCC Rcd 17272 (WTB 2002). 152 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 18 FCC Rcd 11873 (WTB 2003). 153 *See id.* 84. The Commission recently reexamined its rules governing the 700 MHz band in the *700 MHz Second Report and Order.* 154 An auction of 700 MHz licenses commenced January 24, 2008. For the Lower 700 MHz band, 176 licenses over Economic Areas in the A Block, 734 licenses over Cellular Market Areas in the B Block, and 176 licenses over EAs in the E Block are available for licensing. 155 Winning bidders may be eligible for small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years), or very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years). 154 *Service Rules for the 698-746, 747-762 and 777-792 MHz Bands* , WT Docket No. 06-150, *Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems* , CC Docket No. 94-102, *Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones* , WT Docket No. 01-309, *Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services* , WT Docket 03-264, *Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules* , WT Docket No. 06-169, *Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band* , PS Docket No. 06-229, *Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010* , WT Docket No. 96-86, Second Report and Order, FCC 07-132
(2007)(“ *700 MHz Second Report and Order* ”). 155 *See* “Auction of 700 MHz Band Licenses Scheduled for January 16, 2008; Comment Sought on Competitive Bidding Procedures For Auction 73,” *Public Notice* , FCC Rcd 15004 (WTB 2007). 85. *Upper 700 MHz Band Licenses.* In the *700 MHz Second Report and Order,* the Commission revised its rules regarding Upper 700 MHz licenses. On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band are available for licensing: 12 licenses over Regional Economic Area Groupings (“REAGs”) in the C Block, and one nationwide license in the D Block. 156 Winning bidders may be eligible for small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years), or very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years). 156 *See id* . 86. *700 MHz Guard Band Licenses.* In the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 157 A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. 158 Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. 159 SBA approval of these definitions is not required. 160 An auction of 52 Major Economic Area (“MEA”) licenses commenced on September 6, 2000, and closed on September 21, 2000. 161 Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. 162 157 *See Service Rules for the 746-764 MHz Bands, and Revisions to Part 27 of the Commission's Rules* , Second Report and Order, 15 FCC Rcd 5299
(2000)(“ *746-764 MHz Band Second Report and Order* ”). 158 *See 746-764 MHz Band Second Report and Order* , 15 FCC Rcd at 5343, para. 108. 159 *See id.* 160 *See id.* , 15 FCC Rcd 5299, 5343, para. 108 n.246 (for the 746-764 MHz and 776-794 MHz bands, the Commission is exempt from 15 U.S.C. 632, which requires Federal agencies to obtain SBA approval before adopting small business size standards). 161 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice* , 15 FCC Rcd 18026 (2000). 162 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 4590 (WTB 2001). 87. *Specialized Mobile Radio.* The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio
(SMR)geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. 163 The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. 164 The SBA has approved these small business size standards for the 900 MHz Service. 165 The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. 166 A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses. 167 163 47 CFR 90.814(b)(1). 164 47 CFR 90.814(b)(1). 165 *See Alvarez Letter 1999* . 166 *See* “Correction to Public Notice DA 96-586 ‘FCC Announces Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz SMR in Major Trading Areas,’ ” *Public Notice* , 18 FCC Rcd 18367 (WTB 1996). 167 *See* “Multi-Radio Service Auction Closes,” *Public Notice* , 17 FCC Rcd 1446 (WTB 2002). 88. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. 168 In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. 169 Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business. 168 *See* “800 MHz Specialized Mobile Radio
(SMR)Service General Category (851-854 MHz) and Upper Band (861-865 MHz) Auction Closes; Winning Bidders Announced,” *Public Notice* , 15 FCC Rcd 17162 (2000). 169 *See* “800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 1736 (2000). 89. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. We assume, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA. 90. *220 MHz Radio Service—Phase I Licensees.* The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This category provides that a small business is a wireless company employing no more than 1,500 persons. 170 The Commission estimates that most such licensees are small businesses under the SBA's small business standard. 170 13 CFR 121.201, NAICS code 517212. 91. *220 MHz Radio Service—Phase II Licensees.* The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, the Commission adopted a small business size standard for defining “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 171 This small business standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. 172 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. 173 The SBA has approved these small size standards. 174 Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. 175 In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (“EAG”) Licenses, and 875 Economic Area
(EA)Licenses. Of the 908 licenses auctioned, 693 were sold. 176 Thirty-nine small businesses won 373 licenses in the first 220 MHz auction. A second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses. 177 A third auction included four licenses: 2 BEA licenses and 2 EAG licenses in the 220 MHz Service. No small or very small business won any of these licenses. 178 The Commission conducted a fourth auction in 2007 with three of the five winning bidders claiming small or very small business status. 179 171 *Amendment of Part 90 of the Commission's Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Service* , Third Report and Order, 12 FCC Rcd 10943, 11068-70, paras. 291-295 (1997). 172 *Id.* at 11068, para. 291. 173 *Id.* 174 *See* Letter from Aida Alvarez, Administrator, SBA, to Daniel Phythyon, Chief, WTB, FCC (Jan. 6, 1998) (“ *Alvarez to Phythyon Letter 1998* ”). 175 *See generally* “220 MHz Service Auction Closes,” *Public Notice* , 14 FCC Rcd 605 (1998). 176 *See* “FCC Announces It Is Prepared To Grant 654 Phase II 220 MHz Licenses After Final Payment Is Made,” *Public Notice* , 14 FCC Rcd 1085 (1999). 177 *See* “Phase II 220 MHz Service Spectrum Auction Closes,” *Public Notice* , 14 FCC Rcd 11218 (1999). 178 *See* “Multi-Radio Service Auction Closes,” *Public Notice* , 17 FCC Rcd 1446 (2002). 179 *See* “Auction of Phase II 220 MHz Service Spectrum Licenses Closes,” *Public Notice* , 22 FCC Rcd 11573 (WTB 2007). 92. *Private Land Mobile Radio (“PLMR”).* PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, “Cellular and Other Wireless Telecommunications.” This definition provides that a small entity is any such entity employing no more than 1,500 persons. 180 The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs. 181 180 *See* 13 CFR 121.201, NAICS code 517212. 181 *See generally* 13 CFR 121.201. 93. The Commission's 1994 Annual Report on PLMRs 182 indicates that at the end of fiscal year 1994, there were 1,087,267 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that the revised rules in this context could therefore potentially impact small entities covering a great variety of industries. 182 Federal Communications Commission, 60th Annual Report, Fiscal Year 1994, at para. 116. 94. *Fixed Microwave Services.* Fixed microwave services include common carrier, 183 private operational-fixed, 184 and broadcast auxiliary radio services. 185 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 186 The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. We note, however, that the common carrier microwave fixed licensee category includes some large entities. 183 *See* 47 CFR 101 et seq. (formerly, Part 21 of the Commission's Rules) for common carrier fixed microwave services (except Multipoint Distribution Service). 184 Persons eligible under parts 80 and 90 of the Commission's Rules can use Private Operational- Fixed Microwave services. *See* 47 CFR Parts 80 and 90. Stations in this service are called operational-fixed to distinguish them from common carrier and public fixed stations. Only the licensee may use the operational-fixed station, and only for communications related to the licensee's commercial, industrial, or safety operations. 185 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission's Rules. *See* 47 CFR Part 74. This service is available to licensees of broadcast stations and to broadcast and cable network entities. Broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile television pickups, which relay signals from a remote location back to the studio. 186 13 CFR 121.201, NAICS code 517212. 95. *39 GHz Service.* The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. 187 An additional size standard for “very small business” is: An entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 188 The SBA has approved these small business size standards. 189 The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. 187 *See Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands* , ET Docket No. 95-183, Report and Order, 12 FCC Rcd 18600 (1997). 188 *Id.* 189 *See* Letter from Aida Alvarez, Administrator, SBA, to Kathleen O'Brien Ham, Chief, Auctions and Industry Analysis Division, WTB, FCC (Feb. 4, 1998); *See* Letter from Hector Barreto, Administrator, SBA, to Margaret Wiener, Chief, Auctions and Industry Analysis Division, WTB, FCC (Jan. 18, 2002). 96. *Local Multipoint Distribution Service.* Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. 190 The auction of the 986 LMDS licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 191 An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 192 The SBA has approved these small business size standards in the context of LMDS auctions. 193 There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 32 small and very small businesses winning that won 119 licenses. 190 *See Rulemaking to Amend Parts 1, 2, 21, 25, of the Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band, Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services* , Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rule Making, 12 FCC Rcd 12545, 12689-90, para. 348
(1997)(“ *LMDS Second Report and Order* ”). 191 *See LMDS Second Report and Order* , 12 FCC Rcd at 12689-90, para. 348. 192 *See id.* 193 *See Alvarez to Phythyon Letter 1998.* 97. *218-219 MHz Service.* The first auction of 218-219 MHz (previously referred to as the Interactive and Video Data Service or IVDS) spectrum resulted in 178 entities winning licenses for 594 Metropolitan Statistical Areas (“MSAs”). 194 Of the 594 licenses, 567 were won by 167 entities qualifying as a small business. For that auction, the Commission defined a small business as an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. 195 In the *218-219 MHz Report and Order and Memorandum Opinion and Order,* we defined a small business as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. 196 A very small business is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not exceeding $3 million for the preceding three years. 197 The SBA has approved of these definitions. 198 A subsequent auction is not yet scheduled. Given the success of small businesses in the previous auction, and the prevalence of small businesses in the subscription television services and message communications industries, we assume for purposes of this analysis that in future auctions, many, and perhaps most, of the licenses may be awarded to small businesses. 194 *See* “Interactive Video and Data Service
(IVDS)Applications Accepted for Filing,” *Public Notice* , 9 FCC Rcd 6227 (1994). 195 *Implementation of Section 309(j) of the Communications Act—Competitive Bidding* , Fourth Report and Order, 9 FCC Rcd 2330 (1994). 196 *Amendment of Part 95 of the Commission's Rules to Provide Regulatory Flexibility in the 218-219 MHz Service, Report and Order and Memorandum Opinion and Order, 15 FCC Rcd 1497 (1999).* 197 *Id.* 198 *See Alvarez to Phythyon Letter 1998.* 98. *Location and Monitoring Service (“LMS”).* Multilateration LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. 199 A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $3 million. 200 These definitions have been approved by the SBA. 201 An auction for LMS licenses commenced on February 23, 1999, and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses. 199 *Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems* , Second Report and Order, 13 FCC Rcd 15182, 15192, para. 20
(1998)(“ *Automatic Vehicle Monitoring Systems Second Report and Order* ”); *see also* 47 CFR 90.1103. 200 *Automatic Vehicle Monitoring Systems Second Report and Order* , 13 FCC Rcd at 15192, para. 20; *see also* 47 CFR 90.1103. 201 *See Alvarez Letter 1998.* 99. *Rural Radiotelephone Service.* The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. 202 A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (“BETRS”). 203 In the present context, we will use the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. 204 There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies proposed herein. 202 The service is defined in section 22.99 of the Commission's Rules, 47 CFR 22.99. 203 BETRS is defined in section 22.757 and 22.759 of the Commission's Rules, 47 CFR 22.757 and 22.759. 204 13 CFR 121.201, NAICS code 517212. 100. *Air-Ground Radiotelephone Service.* 205 The Commission has previously used the SBA's small business definition applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. 206 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as small entities under the SBA definition. For purposes of assigning Air-Ground Radiotelephone Service licenses through competitive bidding, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $40 million. 207 A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. 208 These definitions were approved by the SBA. 209 In May 2006, the Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service licenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning bidders winning two Air-Ground Radiotelephone Services licenses. Neither of the winning bidders claimed small business status. 205 The service is defined in section 22.99 of the Commission's Rules, 47 CFR 22.99. 206 13 CFR 121.201, NAICS codes 517212. 207 *Amendment of Part 22 of the Commission's Rules to Benefit the Consumers of Air-Ground Telecommunications Services, Biennial Regulatory Review—Amendment of Parts 1, 22, and 90 of the Commission's Rules, Amendment of Parts 1 and 22 of the Commission's Rules to Adopt Competitive Bidding Rules for Commercial and General Aviation Air-Ground Radiotelephone Service* , WT Docket Nos. 03-103 and 05-42, Order on Reconsideration and Report and Order, 20 FCC Rcd 19663, para. 28-42 (2005). 208 *Id.* 209 *See* Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions and Spectrum Access Division, WTB, FCC (Sept. 19, 2005). 101. *Aviation and Marine Radio Services.* There are approximately 26,162 aviation, 34,555 marine (ship), and 3,296 marine (coast) licensees. 210 The Commission has not developed a small business size standard specifically applicable to all licensees. For purposes of this analysis, we will use the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 211 We are unable to determine how many of those licensed fall under this standard. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 62,969 licensees that are small businesses under the SBA standard. 212 In December 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For this auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million. 213 Further, the Commission made available Automated Maritime Telecommunications System (“AMTS”) licenses in Auctions 57 and 61. 214 Winning bidders could claim status as a very small business or a very small business. A very small business for this service is defined as an entity with attributed average annual gross revenues that do not exceed $3 million for the preceding three years, and a small business is defined as an entity with attributed average annual gross revenues of more than $3 million but less than $15 million for the preceding three years. 215 Three of the winning bidders in Auction 57 qualified as small or very small businesses, while three winning entities in Auction 61 qualified as very small businesses. 210 Vessels that are not required by law to carry a radio and do not make international voyages or communications are not required to obtain an individual license. *See* Amendment of Parts 80 and 87 of the Commission's Rules to Permit Operation of Certain Domestic Ship and Aircraft Radio Stations Without Individual Licenses, *Report and Order* , WT Docket No. 96-82, 11 FCC Rcd 14849 (1996). 211 13 CFR 121.201, NAICS code 517212. 212 A licensee may have a license in more than one category. 213 *Amendment of the Commission's Rules Concerning Maritime Communications* , PR Docket No. 92-257, Third Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998). 214 *See* “Automated Maritime Telecommunications System Spectrum Auction Scheduled for September 15, 2004, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Auction Procedures,” *Public Notice* , 19 FCC Rcd 9518 (WTB 2004); “Auction of Automated Maritime Telecommunications System Licenses Scheduled for August 3, 2005, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Auction Procedures for Auction No. 61,” *Public Notice* , 20 FCC Rcd 7811 (WTB 2005). 215 47 CFR 80.1252. 102. *Offshore Radiotelephone Service.* This service operates on several ultra high frequencies (“UHF”) television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. 216 There is presently 1 licensee in this service. We do not have information whether that licensee would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. 217 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 218 216 This service is governed by Subpart I of Part 22 of the Commission's Rules. *See* 47 CFR 22.1001-22.1037. 217 13 CFR 121.201, NAICS code 517212. 218 *Id.* 103. *Multiple Address Systems (“MAS”).* Entities using MAS spectrum, in general, fall into two categories:
(1)Those using the spectrum for profit-based uses, and
(2)those using the spectrum for private internal uses. With respect to the first category, the Commission defines “small entity” for MAS licenses as an entity that has average gross revenues of less than $15 million in the three previous calendar years. 219 “Very small business” is defined as an entity that, together with its affiliates, has average gross revenues of not more than $3 million for the preceding three calendar years. 220 The SBA has approved of these definitions. 221 The majority of these entities will most likely be licensed in bands where the Commission has implemented a geographic area licensing approach that would require the use of competitive bidding procedures to resolve mutually exclusive applications. The Commission's licensing database indicates that, as of January 20, 1999, there were a total of 8,670 MAS station authorizations. Of these, 260 authorizations were associated with common carrier service. In addition, an auction for 5,104 MAS licenses in 176 EAs began November 14, 2001, and closed on November 27, 2001. 222 Seven winning bidders claimed status as small or very small businesses and won 611 licenses. On May 18, 2005, the Commission completed an auction (Auction No. 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses. 219 *See Amendment of the Commission's Rules Regarding Multiple Address Systems* , Report and Order, 15 FCC Rcd 11956, 12008, para. 123 (2000). 220 *Id.* 221 *See Alvarez Letter 1999.* 222 *See* “Multiple Address Systems Spectrum Auction Closes,” *Public Notice* , 16 FCC Rcd 21011 (2001). 104. With respect to the second category, which consists of entities that use, or seek to use, MAS spectrum to accommodate internal communications needs, we note that MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the small business size standard developed by the SBA would be more appropriate. The applicable size standard in this instance appears to be that of “Cellular and Other Wireless Telecommunications”. This definition provides that a small entity is any such entity employing no more than 1,500 persons. 223 The Commission's licensing database indicates that, as of January 20, 1999, of the 8,670 total MAS station authorizations, 8,410 authorizations were for private radio service, and of these, 1,433 were for private land mobile radio service. 223 *See* 13 CFR 121.201, NAICS code 517212. 105. *1.4 GHz Band Licensees.* The Commission conducted an auction of 64 1.4 GHz band licenses, beginning on February 7, 2007, 224 and closing on March 8, 2007. 225 In that auction, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, had average gross revenues that exceed $15 million but do not exceed $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. 226 Neither of the two winning bidders sought designated entity status. 227 224 *See* “Auction of 1.4 GHz Bands Licenses Scheduled for February 7, 2007,” *Public Notice,* 21 FCC Rcd 12393 (WTB 2006). 225 *See* “Auction of 1.4 GHz Band Licenses Closes; Winning Bidders Announced for Auction No. 69,” *Public Notice,* 22 FCC Rcd 4714
(2007)(“Auction No. 69 Closing PN”). 226 *Id.,* Attachment C. 227 *See* Auction No. 69 Closing PN. 106. *Incumbent 24 GHz Licensees.* This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. 228 For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 229 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 230 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 231 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 232 Thus, under this second category and size standard, the majority of firms can, again, be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent 233 and TRW, Inc. It is our understanding that Teligent and its related companies have fewer than 1,500 employees, though this may change in the future. TRW is not a small entity. There are approximately 122 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 122 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies proposed herein. 228 13 CFR 121.201, NAICS code 517212. 229 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517211. 230 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 231 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517212. 232 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 233 Teligent acquired the DEMS licenses of FirstMark, the only licensee other than TRW in the 24 GHz band whose license has been modified to require relocation to the 24 GHz band. 107. *Future 24 GHz Licensees.* With respect to new applicants in the 24 GHz band, we have defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $15 million. 234 “Very small business” in the 24 GHz band is defined as an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. 235 The SBA has approved these definitions. 236 The Commission will not know how many licensees will be small or very small businesses until the auction, if required, is held. 234 *Amendments to Parts 1, 2, 87 and 101 of the Commission's Rules To License Fixed Services at 24 GHz,* Report and Order, 15 FCC Rcd 16934, 16967, para. 77
(2000)(“ *24 GHz Report and Order* ”); *see also* 47 CFR 101.538(a)(2). 235 *24 GHz Report and Order,* 15 FCC Rcd at 16967, para. 77; *see also* 47 CFR 101.538(a)(1). 236 *See* Letter from Gary M. Jackson, Assistant Administrator, SBA, to Margaret W. Wiener, Deputy Chief, Auctions and Industry Analysis Division, WTB, FCC (July 28, 2000). 108. *Broadband Radio Service.* Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (“MDS”) and Multichannel Multipoint Distribution Service (“MMDS”) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”) (previously referred to as the Instructional Television Fixed Service (“ITFS”)). 237 In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. 238 The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. 239 After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. 237 *Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act—Competitive Bidding,* MM Docket No. 94-131 and PP Docket No. 93-253, Report and Order, 10 FCC Rcd 9589, 9593, para. 7
(1995)(“ *MDS Auction R&O* ”). 238 47 CFR 21.961(b)(1). 239 47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction licenses, the applicable standard is SBA's small business size standard. 109. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, which includes all such companies generating $13.5 million or less in annual receipts. 240 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 241 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. 242 Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein. This SBA small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. 243 Thus, we estimate that at least 1,932 licensees are small businesses. 240 13 CFR 121.201, NAICS code 517510. 241 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510. 242 *Id.* An additional 61 firms had annual receipts of $25 million or more. 243 The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4)-(6). We do not collect annual revenue data on EBS licensees. 110. *Television Broadcasting.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” 244 The SBA has created a small business size standard for Television Broadcasting entities, which is: such firms having $13 million or less in annual receipts. 245 According to Commission staff review of the BIA Financial Network, Inc., Media Access Pro Television Database as of December 7, 2007, about 825 (66 percent) of the 1,250 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 controlaffiliations 246 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. 244 U.S. Census Bureau, 2002 NAICS Definitions, “515120 Television Broadcasting” (partial definition); *http://www.census.gov/epcd/naics02/def/NDEF515.HTM.* 245 13 CFR 121.201, NAICS code 515120. 246 “Concerns are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 CFR 21.103(a)(1). 111. In addition, 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 to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, 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. 112. There are also 2,117 low power television stations (“LPTV”). 247 Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard. 247 *FCC News Release,* “Broadcast Station Totals as of September 30, 2007.” 113. *Radio Broadcasting.* The SBA defines a radio broadcast entity that has $6 million or less in annual receipts as a small business. 248 Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public. 249 According to Commission staff review of the BIA Publications, Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945 commercial radio stations in the United States have revenue of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations with much higher revenue, and that in assessing whether a business concern qualifies as small under the above definition, such business (control) affiliations 250 are included. 251 Our estimate, therefore likely overstates the number of small businesses that might be affected by our action. 248 *See* OMB, North American Industry Classification System: United States, 1997, at 509
(1997)(Radio Stations) (NAICS code 515112). 249 *Id.* 250 “Concerns are affiliates of each other when one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 CFR 121.103(a)(1). 251 “SBA counts the receipts or employees of the concern whose size is at issue and those of all its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit, in determining the concern's size.” 13 CFR 121(a)(4). 114. * Auxiliary, Special Broadcast and Other Program Distribution Services.* This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. The applicable definitions of small entities are those, noted previously, under the SBA rules applicable to radio broadcasting stations and television broadcasting stations. 252 252 13 CFR 121.201, NAICS codes 513111 and 513112. 115. The Commission estimates that there are approximately 5,618 FM translators and boosters. 253 The Commission does not collect financial information on any broadcast facility, and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most commercial translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business ($6.5 million for a radio station or $13.0 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated. 254 253 *See* supra note 242. 254 15 U.S.C. 632. 116. *Cable and Other Program Distribution.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” 255 The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: All such firms having $13.5 million or less in annual receipts. 256 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 257 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. 258 Thus, under this size standard, the majority of firms can be considered small. 255 U.S. Census Bureau, 2002 NAICS Definitions, “517510 Cable and Other Program Distribution”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 256 256 13 CFR 121.201, NAICS code 517510. 257 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510. 258 *Id.* An additional 61 firms had annual receipts of $25 million or more. 117. *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. 259 Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. 260 In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. 261 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. 262 Thus, under this second size standard, most cable systems are small. 259 47 CFR 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. *Implementation of Sections of the 1992 Cable Act: Rate Regulation,* Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995). 260 These data are derived from: R.R. Bowker, *Broadcasting & Cable Yearbook 2006,* “Top 25 Cable/Satellite Operators,” pages A-8 & C-2; Warren Communications News, *Television & Cable Factbook 2006,* “Ownership of Cable Systems in the United States,” pages D-1805 to D-1857. 261 47 CFR 76.901(c). 262 Warren Communications News, *Television & Cable Factbook 2006,* “U.S. Cable Systems by Subscriber Size,” page F-2. The data do not include 718 systems for which classifying data were not available. 118. *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.” 263 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. 264 Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. 265 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, 266 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 263 47 U.S.C. 543(m)(2); *see* 47 CFR 76.901(f) & nn. 1-3. 264 47 CFR 76.901(f); *see* Public Notice, *FCC Announces New Subscriber Count for the Definition of Small Cable Operator,* 16 FCC Rcd 2225 (Cable Services Bureau, 2001). 265 These data are derived from: R.R. Bowker, *Broadcasting & Cable Yearbook 2006,* “Top 25 Cable/Satellite Operators,” pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, *Television & Cable Factbook 2006,* “Ownership of Cable Systems in the United States,” pages D-1805 to D-1857. 266 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. *See* 47 CFR 76.909(b). 119. *Open Video Services.* Open Video Service (“OVS”) systems provide subscription services. 267 The SBA has created a small business size standard for Cable and Other Program Distribution. 268 This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of these are currently providing service. 269 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 they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 24 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies proposed herein. 267 *See* 47 U.S.C. 573. 268 13 CFR 121.201, NAICS code 517510. 269 *See http://www.fcc.gov/csb/ovs/csovscer.html.* 120. *Cable Television Relay Service.* This service includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: All such firms having $13.5 million or less in annual receipts. 270 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 271 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. 272 Thus, under this size standard, the majority of firms can be considered small. 270 13 CFR 121.201, NAICS code 517510. 271 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510. 272 *Id.* An additional 61 firms had annual receipts of $25 million or more. 121. *Multichannel Video Distribution and Data Service.* MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. 273 These definitions were approved by the SBA. 274 On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. 275 Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status. 276 273 *Amendment of Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission's Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct Broadcast Satellite Licenses and their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to provide A Fixed Service in the 12.2-12.7 GHz Band,* ET Docket No. 98-206, Memorandum Opinion and Order and Second Report and Order, 17 FCC Rcd 9614, 9711, para. 252 (2002). 274 *See* Letter from Hector V. Barreto, Administrator, U.S. Small Business Administration, to Margaret W. Wiener, Chief, Auctions and Industry Analysis Division, WTB, FCC (Feb.13, 2002). 275 *See* “Multichannel Video Distribution and Data Service Auction Closes,” *Public Notice,* 19 FCC Rcd 1834 (2004). 276 *See* “Auction of Multichannel Video Distribution and Data Service Licenses Closes; Winning Bidders Announced for Auction No. 63,” *Public Notice,* 20 FCC Rcd 19807 (2005). 122. *Amateur Radio Service.* These licensees are held by individuals in a noncommercial capacity; these licensees are not small entities. 123. *Aviation and Marine Services.* Small businesses in the aviation and marine radio services use a very high frequency (“VHF”) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 277 Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars. 278 There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards. 277 13 CFR 121.201, NAICS code 517212. 278 *Amendment of the Commission's Rules Concerning Maritime Communications,* Third Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998). 124. *Personal Radio Services.* Personal radio services provide short-range, low power radio for personal communications, radio signaling, and business communications not provided for in other services. The Personal Radio Services include spectrum licensed under Part 95 of our rules. 279 These services include Citizen Band Radio Service (“CB”), General Mobile Radio Service (“GMRS”), Radio Control Radio Service (“R/C”), Family Radio Service (“FRS”), Wireless Medical Telemetry Service (“WMTS”), Medical Implant Communications Service (“MICS”), Low Power Radio Service (“LPRS”), and Multi-Use Radio Service (“MURS”). 280 There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. Under the RFA, the Commission is required to make a determination of which small entities are directly affected by the rules being proposed. Since all such entities are wireless, we apply the definition of cellular and other wireless telecommunications, pursuant to which a small entity is defined as employing 1,500 or fewer persons. 281 Many of the licensees in these services are individuals, and thus are not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities under an SBA definition that might be directly affected by the proposed rules. 279 47 CFR Part 90. 280 The Citizens Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service are governed by Subpart D, Subpart A, Subpart C, Subpart B, Subpart H, Subpart I, Subpart G, and Subpart J, respectively, of Part 95 of the Commission's rules. *See generally* 47 CFR Part 95. 281 13 CFR 121.201, NAICS Code 517212. 125. *Public Safety Radio Services.* Public Safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 282 There are a total of approximately 127,540 licensees in these services. Governmental entities 283 as well as private businesses comprise the licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity. 284 282 With the exception of the special emergency service, these services are governed by Subpart B of part 90 of the Commission's Rules, 47 CFR 90.15-90.27. The police service includes approximately 27,000 licensees that serve state, county, and municipal enforcement through telephony (voice), telegraphy
(code)and teletype and facsimile (printed material). The fire radio service includes approximately 23,000 licensees comprised of private volunteer or professional fire companies as well as units under governmental control. The local government service that is presently comprised of approximately 41,000 licensees that are state, county, or municipal entities that use the radio for official purposes not covered by other public safety services. There are approximately 7,000 licensees within the forestry service which is comprised of licensees from state departments of conservation and private forest organizations who set up communications networks among fire lookout towers and ground crews. The approximately 9,000 state and local governments are licensed to highway maintenance service provide emergency and routine communications to aid other public safety services to keep main roads safe for vehicular traffic. The approximately 1,000 licensees in the Emergency Medical Radio Service (“EMRS”) use the 39 channels allocated to this service for emergency medical service communications related to the delivery of emergency medical treatment. 47 CFR 90.15-90.27. The approximately 20,000 licensees in the special emergency service include medical services, rescue organizations, veterinarians, handicapped persons, disaster relief organizations, school buses, beach patrols, establishments in isolated areas, communications standby facilities, and emergency repair of public communications facilities. 47 CFR 90.33-90.55. 283 47 CFR 1.1162. 284 5 U.S.C. 601(5). IV. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 126. With certain exceptions, the Commission's Schedule of Regulatory Fees applies to all Commission licensees and regulatees. Most licensees will be required to count the number of licenses or call signs authorized, complete and submit an FCC Form 159 Remittance Advice, and pay a regulatory fee based on the number of licenses or call signs. 285 Interstate telephone service providers must compute their annual regulatory fee based on their interstate and international end-user revenue using information they already supply to the Commission in compliance with the Form 499-A, Telecommunications Reporting Worksheet, and they must complete and submit the FCC Form 159. Compliance with the fee schedule will require some licensees to tabulate the number of units ( *e.g.* , cellular telephones, pagers, cable TV subscribers) they have in service, and complete and submit an FCC Form 159. Licensees ordinarily will keep a list of the number of units they have in service as part of their normal business practices. No additional outside professional skills are required to complete the FCC Form 159, and it can be completed by the employees responsible for an entity's business records. 285 See 47 CFR 1.1162 for the general exemptions from regulatory fees. *E.g.,* Amateur radio licensees (except applicants for vanity call signs) and operators in other non-licensed services ( *e.g.* , Personal Radio, part 15, ship and aircraft). Governments and non-profit (exempt under section 501(c) of the Internal Revenue Code) entities are exempt from payment of regulatory fees and need not submit payment. Non-commercial educational broadcast licensees are exempt from regulatory fees as are licensees of auxiliary broadcast services such as low power auxiliary stations, television auxiliary service stations, remote pickup stations and aural broadcast auxiliary stations where such licenses are used in conjunction with commonly owned non-commercial educational stations. Emergency Alert System licenses for auxiliary service facilities are also exempt as are instructional television fixed service licensees. Regulatory fees are automatically waived for the licensee of any translator station that:
(1)Is not licensed to, in whole or in part, and does not have common ownership with, the licensee of a commercial broadcast station;
(2)does not derive income from advertising; and
(3)is dependent on subscriptions or contributions from members of the community served for support. Receive only earth station permittees are exempt from payment of regulatory fees. A regulatee will be relieved of its fee payment requirement if its total fee due, including all categories of fees for which payment is due by the entity, amounts to less than $10. 127. Each licensee must submit the FCC Form 159 to the Commission's lockbox bank after computing the number of units subject to the fee. Licensees may also file electronically to minimize the burden of submitting multiple copies of the FCC Form 159. Applicants who pay small fees in advance and provide fee information as part of their application must use FCC Form 159. 128. Licensees and regulatees are advised that failure to submit the required regulatory fee in a timely manner will subject the licensee or regulatee to a late payment penalty of 25 percent in addition to the required fee. 286 If payment is not received, new or pending applications may be dismissed, and existing authorizations may be subject to rescission. 287 Further, in accordance with the DCIA, federal agencies may bar a person or entity from obtaining a federal loan or loan insurance guarantee if that person or entity fails to pay a delinquent debt owed to any federal agency. 288 Nonpayment of regulatory fees is a debt owed the United States pursuant to 31 U.S.C. 3711 *et seq.* and the DCIA. Appropriate enforcement measures as well as administrative and judicial remedies, may be exercised by the Commission. Debts owed to the Commission may result in a person or entity being denied a federal loan or loan guarantee pending before another federal agency until such obligations are paid. 289 286 47 CFR 1.1164. 287 47 CFR 1.1164(c). 288 Public Law 104-134, 110 Stat. 1321 (1996). 289 31 U.S.C. 7701(c)(2)(B). 129. The Commission's rules currently provide for relief in exceptional circumstances. Persons or entities may request a waiver, reduction or deferment of payment of the regulatory fee. 290 However, timely submission of the required regulatory fee must accompany requests for waivers or reductions. This will avoid any late payment penalty if the request is denied. The fee will be refunded if the request is granted. In exceptional and compelling instances (where payment of the regulatory fee along with the waiver or reduction request could result in reduction of service to a community or other financial hardship to the licensee), the Commission will defer payment in response to a request filed with the appropriate supporting documentation. 290 47 CFR 1.1166. V. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 130. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives:
(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. 291 In the *NPRM,* we have sought comment on alternatives that might simplify our fee procedures or otherwise benefit filers, including small entities, while remaining consistent with our statutory responsibilities in this proceeding. 291 5 U.S.C. 603. 131. Several categories of licensees and regulatees are exempt from payment of regulatory fees. Also, waiver procedures provide regulatees, including small entity regulatees, relief in exceptional circumstances. VI. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 132. None. Attachment B—Sources of Payment Unit Estimates for FY 2008 In order to calculate individual service fees for FY 2008, we adjusted FY 2007 payment units for each service to more accurately reflect expected FY 2008 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (“ULS”), International Bureau Filing System (“IBFS”), Consolidated Database System (“CDBS”) and Cable Operations and Licensing System (“COALS”), as well as reports generated within the Commission such as the Wireline Competition Bureau's *Trends in Telephone Service* and the Wireless Telecommunications Bureau's *Numbering Resource Utilization Forecast.* We tried to obtain verification for these estimates from multiple sources and, in all cases; we compared FY 2008 estimates with actual FY 2007 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated exactly. These include an unknown number of waivers and/or exemptions that may occur in FY 2008 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2008 payment units are based on FY 2007 actual payment units, it does not necessarily mean that our FY 2008 projection is exactly the same number as FY 2007. We have either rounded the FY 2008 number or adjusted it slightly to account for these variables. Fee category Sources of payment unit estimates Land Mobile (All), Microwave, 218-219 MHz, Marine (Ship & Coast), Aviation (Aircraft & Ground), GMRS, Amateur Vanity Call Signs, Domestic Public Fixed Based on Wireless Telecommunications Bureau (“WTB”) projections of new applications and renewals taking into consideration existing Commission licensee data bases. Aviation (Aircraft) and Marine
(Ship)estimates have been adjusted to take into consideration the licensing of portions of these services on a voluntary basis. CMRS Cellular/Mobile Services Based on WTB projection reports, and FY 07 payment data. CMRS Messaging Services Based on WTB reports, and FY 07 payment data. AM/FM Radio Stations Based on CDBS data, adjusted for exemptions, and actual FY 2007 payment units. UHF/VHF Television Stations Based on CDBS data, adjusted for exemptions, and actual FY 2007 payment units. AM/FM/TV Construction Permits Based on CDBS data, adjusted for exemptions, and actual FY 2007 payment units. LPTV, Translators and Boosters, Class A Television Based on CDBS data, adjusted for exemptions, and actual FY 2007 payment units. Broadcast Auxiliaries Based on actual FY 2007 payment units. BRS (formerly MDS/MMDS) Based on WTB reports and actual FY 2007 payment units. Cable Television Relay Service (“CARS”) Stations Based on data from Media Bureau's COALS database and actual FY 2007 payment units. Cable Television System Subscribers Based on publicly available data sources for estimated subscriber counts and actual FY 2007 payment units. Interstate Telecommunication Service Providers Based on FCC Form 499-Q data for the four quarters of calendar year 2007, the Wireline Competition Bureau projected the amount of calendar year 2007 revenue that will be reported on 2008 FCC Form 499-A worksheets in April, 2008. Earth Stations Based on International Bureau (“IB”) licensing data and actual FY 2007 payment units. Space Stations (GSOs & NGSOs) Based on IB data reports and actual FY 2007 payment units. International Bearer Circuits Based on IB reports and actual FY 2007 payment units. International HF Broadcast Stations, International Public Fixed Radio Service Based on IB reports and actual FY 2007 payment units. Attachment C—Calculation of FY2008 Revenue Requirements and Pro-Rata Fees Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted along with the application at the time the application is filed. BILLING CODE 6712-01-P EP28MY08.006 EP28MY08.007 EP28MY08.008 Attachment D—Proposed FY 2008 Schedule of Regulatory Fees Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted along with the application at the time the application is filed. EP28MY08.009 EP28MY08.010 BILLING CODE 6712-01-C FY 2008 Schedule of Regulatory Fees (continued) FY 2008 Radio Station Regulatory Fees Population served AM class A AM class B AM class C AM class D FM classes A, B1 & C3 FM classes B, C, C0, C1 & C2 <=25,000 $650 $500 $450 $525 $600 $775 25,001-75,000 1,325 1,025 650 775 1,225 1,375 75,001-150,000 1,975 1,275 875 1,300 1,675 2,550 150,001-500,000 2,975 2,175 1,325 1,550 2,600 3,325 500,001-1,200,000 4,300 3,325 2,200 2,575 4,125 4,900 1,200,001-3,000,00 6,600 5,100 3,300 4,125 6,700 7,850 >3,000,000 7,925 6,125 4,175 5,150 8,550 10,200 Attachment E—Factors, Measurements, and Calculations that go into Determining Station Signal Contours and Associated Population Coverages AM Stations For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phasing, spacing and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (“RMS”) figure milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or modified standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in section73.150 and 73.152 of the Commission's rules. 292 Radiation values were calculated for each of 360 radials around the transmitter site. Next, estimated soil conductivity data was retrieved from a database representing the information in FCC Figure R3 293 . Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area. 292 47 CFR 73.150 and 73.152. 293 *See Map* of Estimated *Effective Ground Conductivity in the United States,* 47 CFR 73.190 Figure R3. FM Stations The greater of the horizontal or vertical effective radiated power (“ERP”)
(kW)and respective height above average terrain (“HAAT”)
(m)combination was used. Where the antenna height above mean sea level (“HAMSL”) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50-50) propagation curves specified in 47 CFR 73.313 of the Commission's rules to predict the distance to the principal community (70 dBu (decibel above 1 microVolt per meter) or 3.17 mV/m) contour for each of the 360 radials. 294 The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the polygon. The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area. 294 294 47 CFR 73.313. Attachment F—FY 2007 Schedule of Regulatory Fees Fee category Annual regulatory fee (U.S. $'s) PLMRS (per license) (Exclusive Use) (47 CFR part 90) 35 Microwave (per license) (47 CFR part 101) 40 218-219 MHz (Formerly Interactive Video Data Service) (per license) (47 CFR part 95) 55 Marine
(Ship)(per station) (47 CFR part 80) 10 Marine (Coast) (per license) (47 CFR part 80) 30 General Mobile Radio Service (per license) (47 CFR part 95) 5 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 15 PLMRS (Shared Use) (per license) (47 CFR part 90) 15 Aviation (Aircraft) (per station) (47 CFR part 87) 5 Aviation (Ground) (per license) (47 CFR part 87) 10 Amateur Vanity Call Signs (per call sign) (47 CFR part 97) 1.17 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .18 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Broadband Radio Service (formerly MMDS/MDS) (per license sign) (47 CFR part 21) 325 Local Multipoint Distribution Service (per call sign) (47 CFR part 101) 325 AM Radio Construction Permits 400 FM Radio Construction Permits 575 TV (47 CFR part 73) VHF Commercial Markets 1-10 64,300 Markets 11-25 46,350 Markets 26-50 31,075 Markets 51-100 20,000 Remaining Markets 5,125 Construction Permits 5,125 TV (47 CFR part 73) UHF Commercial Markets 1-10 19,650 Markets 11-25 19,450 Markets 26-50 10,800 Markets 51-100 6,300 Remaining Markets 1,750 Construction Permits 1,750 Satellite Television Stations (All Markets) 1,100 Construction Permits—Satellite Television Stations 550 Low Power TV, TV/FM Translators & Boosters (47 CFR part 74) 345 Broadcast Auxiliary (47 CFR part 74) 10 CARS (47 CFR part 78) 185 Cable Television Systems (per subscriber) (47 CFR part 76) .75 Interstate Telecommunication Service Providers (per revenue dollar) .00266 Earth Stations (47 CFR part 25) 185 Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes Direct Broadcast Satellite Service (per operational station) (47 CFR part 100) 109,200 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 116,475 International Bearer Circuits (per active 64KB circuit) 1.05 International Public Fixed (per call sign) (47 CFR part 23) 1,875 International
(HF)Broadcast (47 CFR part 73) 795 FY 2007 Schedule of Regulatory Fees (continued) FY 2007 Radio Station Regulatory Fees Population served AM class A AM class B AM class C AM class D FM classes A, B1 & C3 FM classes B, C, C0, C1 & C2 <=25,000 $625 $475 $400 $475 $575 $725 25,001-75,000 1,225 925 600 725 1,150 1,250 75,001-150,000 1,825 1,150 800 1,200 1,600 2,300 150,001-500,000 2,750 1,950 1,200 1,425 2,475 3,000 500,001-1,200,000 3,950 2,975 2,000 2,375 3,900 4,400 1,200,001-3,000,00 6,075 4,575 3,000 3,800 6,350 7,025 >3,000,000 7,275 5,475 3,800 4,750 8,075 9,125 [FR Doc. E8-11891 Filed 5-27-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 15 and 54 [MB Docket No. 07-148; FCC 08-119] DTV Consumer Education Initiative AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: The Commission asks whether the eligible telecommunications carrier
(ETC)obligation to provide monthly digital television
(DTV)transition notices to low-income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on-air DTV transition education on their systems. DATES: Comments for this proceeding are due on or before June 27, 2008; reply comments are due on or before July 14, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. You may submit comments, identified by MB Docket No. 07-148, 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. FOR FURTHER INFORMATION CONTACT: For more information on this proceeding, please contact Lyle Elder, *Lyle.Elder@fcc.gov,* or Eloise Gore, *Eloise.Gore@fcc.gov,* of the Media Bureau, Policy Division,
(202)418-2120. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams on
(202)418-2918, or via the Internet at *PRA@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Further Notice of Proposed Rulemaking in MB Docket No. 07-148, FCC 08-119, adopted April 23, 2008 and released April 23, 2008. 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. These documents 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). Summary of the Notice of Proposed Rulemaking I. Further Notice of Proposed Rulemaking 1. As discussed in the *Order on Reconsideration of the Consumer Education Initiative Order,* the revised ETC education rules require that ETCs provide monthly transition notices to their low-income (Lifeline/Link-Up) customers. This requirement is similar to the one proposed by Chairmen Dingell and Markey in their Letter to the Commission, in which they suggested that the Commission “require, as an interim measure, that telecommunications carriers that receive funds under the Low Income Federal universal service program * * * notify each of their low income customers of the digital transition and include such a notice in their required Lifeline and Link-Up publicity efforts.” On April 15, 2008, during Chairman Martin's testimony before the House Committee on Energy and Commerce's Subcommittee on Telecommunications and the Internet, Congressman Fred Upton suggested that the Commission explore revising these rules to require that ETCs provide monthly notices to all of their subscribers, rather than just low-income subscribers. Such a revision would ensure a wider reach for DTV transition notices as the February 17, 2009, deadline approaches, but could increase expenses for ETCs. What is the appropriate balance for the Commission's Rules in this area? We seek comment on this proposal. 2. The first Notice of Proposed Rulemaking, 72 FR 46014 August 16, 2007, in this proceeding sought comment on “other initiatives that the Commission can and should undertake to educate the public on the DTV transition.” In response to this request, some commenters proposed that the Commission require MVPDs to provide on-air DTV transition education on their systems. We seek comment on this proposal. As the National Cable and Telecommunications Association
(NCTA)has noted, the cable industry, for instance, is already engaged in a “$200 million digital TV transition consumer education campaign, highlighted by English and Spanish language television commercials.” Should we require MVPDs, such as cable and direct broadcast satellite operators, to provide on-air DTV transition education on their systems as we have for TV broadcasters? We seek comment on what entities should be covered and the on-air educational efforts that should be required. II. Procedural Matters A. Initial Regulatory Flexibility Analysis 3. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible economic impact on a substantial number of small entities by the rules proposed in this Further Notice of Proposed Rulemaking (“FNPRM”). 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 Further Notice as indicated on the first page of the Order. The Commission will send a copy of the Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . 1. Need for, and Objectives of, the Proposals 4. This FNPRM seeks comment on a proposal to require that ETCs provide monthly notices to all of their subscribers, rather than just low-income subscribers as required by the current rules. It also seeks comment on a proposal to require MVPDs to provide on-air DTV transition education on their systems. It seeks comment on whether, as a policy matter, the Commission should impose such requirements. 2. Legal Basis 5. The authority for the action proposed in this rulemaking is contained in Sections 1, 2, 4(i), 7, 254, 303, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 254, 303, and 309. 3. Description and Estimate of the Number of Small Entities to Which the Proposals Will Apply 6. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act. 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 Small Business Administration (SBA). The rules adopted herein will directly affect small ETCs. A description of these small entities, as well as an estimate of the number of such small entities, is provided below. 7. *Incumbent Local Exchange Carriers (LECs).* Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,307 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,307 carriers, an estimated 1,019 have 1,500 or fewer employees and 288 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses. 8. *Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 859 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities. 9. *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. 10. *Cable System Operators (Rate Regulation Standard).* The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995. Since then, some of those companies may have grown to serve more than 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,439 small entity cable system operators that may be affected by the rules and policies adopted herein. 11. *Cable System Operators (Telecom Act Standard).* 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 there are 67,700,000 subscribers in the United States. Therefore, 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. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,450. 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 is unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934. 12. *Private Cable Operators
(PCOs)also known as Satellite Master Antenna Television (SMATV) Systems.* PCOs, also known as SMATV systems or private communication operators, are video distribution facilities that use closed transmission paths without using any public right-of-way. PCOs acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. The SBA definition of small entities for Cable and Other Program Distribution includes PCOs and, thus, small entities are defined as all such companies generating $13.5 million or less in annual receipts. Currently, there are more than 150 members in the Independent Multi-Family Communications Council (IMCC), the trade association that represents PCOs. Individual PCOs often serve approximately 3,000-4,000 subscribers, but the larger operations serve as many as 15,000-55,000 subscribers. In total, PCOs currently serve approximately one million subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten PCOs, we believe that a substantial number of PCOs qualify as small entities. 13. *Satellite Carriers.* The term “satellite carrier” includes entities providing services as described in 17 U.S.C. 119(d)(6) using the facilities of a satellite or satellite service licensed under part 25 of the Commission's rules to operate in Direct Broadcast Satellite (“DBS”) or Fixed-Satellite Service (“FSS”) frequencies. As a general practice, not mandated by any regulation, DBS licensees usually own and operate their own satellite facilities as well as package the programming they offer to their subscribers. In contrast, satellite carriers using FSS facilities often lease capacity from another entity that is licensed to operate the satellite used to provide service to subscribers. These entities package their own programming and may or may not be Commission licensees themselves. In addition, a third situation may include an entity using a non-U.S. licensed satellite to provide programming to subscribers in the United States pursuant to a blanket earth station license. Since 2007, the SBA has recognized satellite television distribution services within the broad economic census category of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and we will use those figures to gauge the prevalence of small businesses in this category. 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. 14. *Direct Broadcast Satellite
(DBS)Service.* DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. Because DBS provides subscription services, DBS falls within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. Currently, only two operators—DirecTV and EchoStar Communications Corporation (“EchoStar”)—hold licenses to provide DBS service, which requires a great investment of capital for operation. Both currently offer subscription services and report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS licensee. Nevertheless, given the absence of specific data on this point, we acknowledge the possibility that there are entrants in this field that may not yet have generated $13.5 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated. 15. *Fixed-Satellite Service (“FSS”).* The FSS is a radiocommunication service between earth stations at a specified fixed point or between any fixed point within specified areas and one or more satellites. The FSS, which utilizes many earth stations that communicate with one or more space stations, may be used to provide subscription video service. Therefore, to the extent FSS frequencies are used to provide subscription services, FSS falls within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. Although a number of entities are licensed in the FSS, not all such licensees use FSS frequencies to provide subscription services. Both of the DBS licensees (EchoStar and DirecTV) have indicated interest in using FSS frequencies to broadcast signals to subscribers. It is possible that other entities could similarly use FSS frequencies, although we are not aware of any entities that might do so. 16. *Home Satellite Dish
(HSD)Service.* Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled
(free)programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. There are approximately 30 satellites operating in the C-band, which carry more than 500 channels of programming combined; approximately 350 channels are available free of charge and 150 are scrambled and require a subscription. HSD is difficult to quantify in terms of annual revenue. HSD owners have access to program channels placed on C-band satellites by programmers for receipt and distribution by MVPDs. Commission data show that, as of June 2005, there were 206,358 households authorized to receive HSD service. The Commission has no information regarding the annual revenue of the four C-Band distributors. 17. *Open Video Systems (OVS).* The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified 25 OVS operators with some now providing service. Broadband service providers
(BSPs)are currently the only significant holders of OVS certifications or local OVS franchises, even though OVS is one of four statutorily-recognized options for local exchange carriers
(LECs)to offer video programming services. As of June 2005, BSPs served approximately 1.4 million subscribers, representing 1.5 percent of all MVPD households. Affiliates of Residential Communications Network, Inc. (“RCN”), which serves about 371,000 subscribers as of June 2005, is currently the largest BSP and 14th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities. 18. *Wireless Cable Systems.* Wireless cable systems use the Broadband Radio Service (“BRS”), formerly Multipoint Distribution Service (“MDS”), and Educational Broadband Service (“EBS”), formerly Instructional Television Fixed Service (“ITFS”), frequencies in the 2 GHz band to transmit video programming and provide broadband services to residential subscribers. These services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. Nonetheless, they appear to fall within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. We estimate that the number of wireless cable subscribers is approximately 100,000, as of March 2005. Id. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. 19. *Wireless Cable Systems (Commission Auction Standard).* The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. In addition to the 48 small businesses that have held BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not participate in the MDS auction must rely on the SBA definition of small entities for Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. The most current Census Bureau data, however, are from the last economic census of 2002, and so we will rely on the previous size standard, Cable and Other Program Distribution, which provides that a small entity is one with $13.5 million or less in annual receipts. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, we estimate that there are approximately 850 small MDS (or BRS) providers as defined by the SBA and the Commission's auction rules. 20. Educational institutions are included in this analysis as small entities; however, the Commission has not defined a small business size standard for ITFS (now EBS). In addition, the term “small entity” under SBREFA applies to small organizations (nonprofits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4)-(6). We do not collect annual revenue data on ITFS licensees. We estimate that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of these licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small businesses. 21. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. In addition, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. 4. Description of Projected Reporting, Record Keeping, and Other Compliance Requirements for Small Entities 22. The FNPRM seeks comment on a rule that would impose compliance requirements on small ETCs. Small ETCs currently have an obligation to provide DTV transition notices on a monthly basis to their Lifeline and Link-up customers. These obligations would be increased by the rule contemplated in this Further Notice, but would not change in kind. Small ETCs will need to spend money printing the notices, and may either forgo advertising revenue as a result of dedicating bill space to DTV transition notices, or spend additional money mailing the notices separately. The FNPRM also seeks comment on a rule that would impose compliance requirements on small MVPDs. Small MVPDs would be required to provide on-air DTV transition education on their systems. Production costs would likely be minimal or nonexistent due to the already-produced PSAs available in the market. MVPDs may have to forgo advertising revenue as a result of dedicating available air time to DTV transition notices, or spend money reserving such time if they do not already have advertising time available. 5. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 23. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which 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. We seek comment on the applicability of any of these alternatives to affected small entities. 24. The requirements proposed in the FNPRM would impose costs on small ETCs and MVPDs, but would result in wider knowledge about the DTV transition, which could have an indirect positive impact on other small entities, including television broadcasters, consumer electronics manufacturers and retailers, and MVPDs themselves. We invite small entities to submit comments on how the Commission could further minimize potential burdens on small entities if the proposal in the FNPRM is ultimately adopted. 6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 25. None. B. Initial Paperwork Reduction Act Analysis 26. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (“OMB”) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” C. Ex Parte Rules 27. *Permit-But-Disclose.* This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under Section 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b). D. Filing Requirements 28. *Comments and Replies.* Pursuant to Sections 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before June 27, 2008, and reply comments on or before July 14, 2008 using:
(1)The Commission's Electronic Comment Filing System (“ECFS”),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. • *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554. 29. *Availability of Documents.* Comments, reply comments, and *ex parte* submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. 30. *Accessibility Information.* To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format
(PDF)at: *http://www.fcc.gov.* E. Additional Information 31. For more information on this Order on Reconsideration and Further Notice of Proposed Rulemaking, please contact Lyle Elder, *Lyle.Elder@fcc.gov,* or Eloise Gore, *Eloise.Gore@fcc.gov,* of the Media Bureau, Policy Division,
(202)418-2120. III. Ordering Clauses 32. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration and Further Notice of Proposed Rulemaking, including the Supplemental Final and Initial Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E8-11889 Filed 5-27-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R2-ES-2008-0065; 1111 FY07 MO-B2] Endangered and Threatened Wildlife and Plants; Initiation of Status Review for the Northern Mexican Gartersnake ( Thamnophis eques megalops) AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice; initiation of status review and solicitation of new information. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the initiation of a status review for the northern Mexican gartersnake ( *Thamnophis eques megalops* ). Through this action, we encourage all interested parties to provide us information regarding the status of, and any potential threat to, the northern Mexican gartersnake. DATES: To allow us adequate time to conduct this review, we request that information be submitted on or before July 14, 2008. ADDRESSES: You may submit information by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R2-ES-2008-0065; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all information on *http://www.regulations.gov.* This generally means that we will post any personal information you provide us (see the Information Solicited section below for more information). FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951; telephone 602-242-0210; facsimile 602-242-2513. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Information Solicited To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the northern Mexican gartersnake ( *Thamnophis eques megalops* ). We request any additional information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties on the status of the northern Mexican gartersnake throughout its range, including:
(1)Information from the United States and Mexico regarding the subspecies' historical and current population status, distribution, and trends; taxonomy; biology and ecology; and habitat selection;
(2)Information on the effects of potential threat factors in the United States and Mexico that are the basis for a listing determination under section 4(a) of the Act, which are:
(a)The present or threatened destruction, modification, or curtailment of the subspecies' habitat or range;
(b)Overutilization for commercial, recreational, scientific, or educational purposes;
(c)Disease or predation;
(d)The inadequacy of existing regulatory mechanisms; or
(e)Other natural or manmade factors affecting its continued existence. Please note that submissions merely stating support or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, because section 4(b)(1)(A) of the Act (16 U.S.C. 1531 *et seq.* ) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will determine whether listing is warranted, not warranted, or warranted but precluded. You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section. If you submit information via *http://www.regulations.gov,* your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on *http://www.regulations.gov.* Information and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov,* or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ). Background Section 4(b)(3)(A) of the Endangered Species Act
(Act)of 1973, as amended (16 U.S.C. 1531 *et seq.* ), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition and supporting information submitted with the petition. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the **Federal Register** . Section 4(b)(3)(B) also requires that, for any petition to revise the Lists of Threatened and Endangered Wildlife and Plants that contains substantial scientific or commercial information that the action may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned action is:
(a)Not warranted,
(b)warranted, or
(c)warranted but precluded by other pending proposals. Such 12-month findings are to be published promptly in the **Federal Register** . On December 19, 2003, we received a petition from the Center for Biological Diversity requesting that we list the northern Mexican gartersnake as threatened or endangered, and that we designate critical habitat concurrently with the listing. On May 17, 2005, the petitioners filed a complaint for declaratory and injunctive relief, challenging our failure to issue a 90-day finding in response to the petition as required by 16 U.S.C. 1533(b)(3)(A) and (B). In a stipulated settlement agreement, we agreed to submit a 90-day finding to the **Federal Register** by December 16, 2005, and, if the petition presented substantial scientific information indicating that listing the northern Mexican gartersnake may be warranted, submit a 12-month finding to the **Federal Register** by September 15, 2006 ( *Center for Biological Diversity* v. *Norton* , CV-05-341-TUC-CKJ (D. Az)). On January 4, 2006, we published our 90-day finding that the petition presented substantial scientific information indicating that listing the northern Mexican gartersnake may be warranted and initiated a 12-month status review (71 FR 315). On September 26, 2006, we published our 12-month finding that listing of the northern Mexican garter snake was not warranted because we determined that not enough information on the subspecies' status and threats in Mexico was known at that time (71 FR 56227). Since the time of the 12-month finding, a formal opinion has been issued by the Solicitor of the Department of the Interior, “The Meaning of In Danger of Extinction Throughout All or a Significant Portion of Its Range” (U.S. DOI 2007), which provides further guidance on how to conduct a detailed analysis of whether a species is in danger of extinction throughout a significant portion of its range. In December 2007, the Service withdrew the September 26, 2007, 12-month finding. This notice initiates a new status review for the northern Mexican gartersnake that is consistent with current policies, including any subsequent analysis relevant to the “significant portion of its range.” We will incorporate any new information received as requested above. At this time, we are soliciting new information on the status of and potential threats to the northern Mexican gartersnake. We will base our new determination as to whether listing is warranted on a review of the best scientific and commercial information available, including all such information received as a result of this notice. For more information on the biology, habitat, and range of the northern Mexican gartersnake, please refer to our previous 90-day finding published in the **Federal Register** on January 4, 2006 (71 FR 315), and our previous 12-month finding published in the **Federal Register** on September 26, 2006 (71 FR 56227). Author The primary author of this notice is the staff of the Arizona Ecological Services Office. Authority The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 *et seq.* ). Dated: May 9, 2008. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E8-11756 Filed 5-27-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 RIN 0648-AR72 Fisheries of the Exclusive Economic Zone Off Alaska; Improved Retention/Improved Utilization AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of availability of a proposed amendment to a fishery management plan; request for comments. SUMMARY: The North Pacific Fishery Management Council (Council) has submitted Amendment 72 to the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMP)to NMFS for review. If approved, Amendment 72 would revise the FMP to state that the Council will annually review information on the discard of shallow-water flatfish in Gulf of Alaska
(GOA)groundfish fisheries. After review of this annual information, the Council may recommend revisions to retention and utilization requirements if the discard rate for shallow-water flatfish falls above or below a specified threshold. This action is necessary to support the Council's initiatives to monitor and reduce bycatch in the GOA groundfish fisheries. The intended effect of this action is to conserve and manage the groundfish resource in the GOA in accordance with the Magnuson-Stevens Fishery Conservation and Management Act. DATES: Comments on Amendment 72 must be received on or before July 28, 2008. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AR72”, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at *http://www.regulations.gov* . • Mail: P. O. Box 21668, Juneau, AK 99802. • Fax:
(907)586-7557. • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file
(pdf)formats only. FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442. SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan or fishery management plan amendment that it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Council has submitted Amendment 72 to NMFS for review. If approved, Amendment 72 would revise the FMP to state that the Council will annually review the discards of shallow-water flatfish in GOA groundfish fisheries. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, publish a notice in the **Federal Register** to notify the public that the FMP amendment is available for review and comment. This notice of availability for Amendment 72 satisfies this requirement. The Secretary of Commerce approved Amendment 49 to the FMP in 1997 (62 FR 65379) to improve the retention and utilization (IR/IU) of shallow-water flatfish. The Council recommended IR/IU measures for this species group after determining that the percentage of shallow-water flatfish catch that was discarded was greater than the percentage of most other GOA groundfish species catch that was discarded. However, implementation of IR/IU measures for shallow-water flatfish in the GOA was delayed by Amendment 49 until January 1, 2003, to provide vessels additional time to make vessel or plant modifications to meet IR/IU requirements. Groundfish species included in the GOA shallow-water flatfish group primarily include flathead sole, rock sole, yellowfin sole, butter sole, starry flounder, English sole, sand sole, and Alaska plaice. Regulations at 50 CFR 679.27(c)(2) establish the IR/IU requirements for shallow-water flatfish implemented under Amendment 49. When shallow-water flatfish are open to directed fishing, a catcher vessel must retain all fish of that species brought onboard the vessel, and a catcher/processor must make and retain a primary product from all fish of that species brought onboard the vessel. When shallow-water flatfish are closed to directed fishing, a catcher vessel must retain all shallow-water flatfish up to the maximum retainable amount (MRA), and a catcher/processor must make and retain a primary product from all fish of that species brought onboard the vessel up to the point that the round-weight equivalent of primary products onboard equals the MRA for that species. These shallow-water flatfish IR/IU requirements currently apply to all vessels with Federal fishing permits participating in any GOA groundfish fishery, regardless of the gear type used. In 2003, after implementation of Amendment 49 provisions for shallow-water flatfish IR/IU, the Council again reviewed discard data on shallow-water flatfish in each GOA target fishery. This review revealed that discards of shallow-water flatfish between 1995 and 2001 were less than 5 percent in all GOA groundfish target fisheries with the exception of the Western GOA flathead sole, Western GOA offshore Pacific cod, and Central GOA shallow-water flatfish fisheries. Because three target fisheries exceeded shallow-water flatfish discards of 5 percent in some years but did not exceed average shallow-water flatfish discards of 20 percent, the Council expressed interest in tracking fisheries that exceeded a 5 percent discard threshold for shallow-water flatfish. Since implementation of shallow-water flatfish IR/IU in 2003, shallow-water flatfish discards have not exceeded 5 percent of the total groundfish catch in any GOA groundfish fishery. The highest shallow-water flatfish discard rates in these years have been in the trawl fisheries for Pacific cod in the Western GOA (2.9 percent in 2003 and 2.1 percent in 2006) and shallow-water flatfish fisheries in the Central GOA ( 2.4 percent in 2004 and 2.9 percent in 2005). While many groundfish vessels are able to meet a long-term goal of reducing shallow-water flatfish discards by consistently remaining under a 5 percent discard rate, members of the GOA fishing industry reported to the Council that complete elimination of shallow-water flatfish discards is costly if some vessels do not have viable markets for small retained amounts of these species. Furthermore, the sorting and retention of small amounts of shallow-water flatfish species can involve high handling costs onboard vessels. In recommending Amendment 72, the Council considered National Standard 9 of the Magnuson-Stevens Act, which requires that conservation and management measures minimize bycatch (discards) to the extent practicable. The Council recognized the benefits of continuing shallow-water flatfish IR/IU at 50 CFR 679.27(c)(2), and the groundfish retention that accrues from those regulations. However, the Council also recognized the benefits that would accrue from annually monitoring shallow water flatfish discards and evaluating whether IR/IU regulations continue to minimize discards and maximize catch utilization in the GOA groundfish fisheries to the extent practicable. The Council believed that this combination of regulations and annual review would provide an incentive for vessels in the GOA to maintain a high standard of retention for shallow-water flatfish. Amendment 72 would add the following text to the FMP: “The Council will annually review the discards of shallow-water flatfish in all GOA fisheries. The Council may recommend that NMFS initiate rulemaking to add or remove a fishery from shallow-water flatfish improved retention/improved utilization requirements if the three-year rolling average discard rate of shallow-water flatfish in any fishery falls above or below 5 percent.” Under Amendment 72, NMFS would provide an annual report to the Council that would estimate the discard of shallow-water flatfish as a percentage of total groundfish catch by area and target fishery. This report would identify shallow-water flatfish discard rates that exceed 5 percent of total groundfish catch in a target fishery annually and over a three-year period. Based on that information, the Council could recommend a regulatory amendment to revise shallow-water flatfish IR/IU requirements. This FMP amendment does not require any new regulations or revisions to existing regulations. Shallow-water flatfish would continue to be one of three GOA IR/IU species categories in 50 CFR part 679, along with pollock and Pacific cod. Any future revisions to shallow-water flatfish IR/IU regulations would be contingent on the Council establishing the need to modify these requirements, initiating an analysis, and proposing a regulatory amendment that could be approved by the Secretary of Commerce. Any subsequent recommendation by the Council to consider changing IR/IU requirements for shallow-water flatfish would need to clearly define the group of vessels that would be exempted from shallow-water flatfish IR/IU requirements, recognizing that IR/IU requirements are more effectively enforced if the vessels subject to these requirements can be clearly identified by vessel or gear characteristics. Enforcement of IR/IU requirements that differ by target fishery are more difficult to enforce because vessels may participate in multiple target fisheries at a time or switch between target fisheries. Public comments are being solicited on Amendment 72. Comments received by the closing date will be considered in the approval/disapproval decision on the amendment. To be considered, written comments must be received by NMFS, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period. Authority: 16 U.S.C. 773 *et seq.* , 1801 *et seq.* , 3631 *et seq.* ; Pub. L. 108-447. Dated: May 22, 2008. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-11880 Filed 5-27-08; 8:45 am] BILLING CODE 3510-22-S 73 103 Wednesday, May 28, 2008 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request May 22, 2008. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Agricultural Marketing Service *Title:* Laboratory Approval Programs. *OMB Control Number:* 0581-NEW. *Summary of Collection:* The Agricultural Marketing Act
(AMA)of 1946, as amended, provides analytical testing services that facilitate marketing and allow products to obtain grade designations or meet marketing or quality standards. Pursuant to this authority, AMS develops and maintains laboratory certification and approval programs as needed by the agricultural industry, to support domestic and international marketing of U.S. products. To ensure that a laboratory is capable of accurately performing the specified analyses, it must adhere to certain good laboratory practice and show technical proficiency in the required areas. *Need and Use of the Information:* Checklist and form have been developed that ask the laboratory for information concerning procedures, the physical facility, employees, and their training. The laboratory must also provide Standard Operating Procedures for the analyses and quality assurance. The laboratory certification and approval programs are voluntary, fee for service, and for admission into one of these programs a laboratory must have a client who requires the specific testing. It is necessary to collect and require a laboratory to attest to the performance elements necessary to determine the credibility of the laboratory. To do less would be a disservice to the agricultural community. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 82. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 5,695. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E8-11871 Filed 5-27-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request May 22, 2008. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Rural Housing Service *Title:* 7 CFR 1951-E, “Servicing of Community and Direct Business Programs Loans and Grants”. *OMB Control Number:* 0575-0066. *Summary of Collection:* Rural Development (Agency) is the credit agency for agriculture and rural development for the U.S. Department of Agriculture. The Community Facilities program is authorized to make loans and grants for the development of essential community facilities primarily serving rural residents. The Direct Business and Industry Program is authorized to make loans to improve, develop, or finance business, industry, and employment, and improve the economic and environmental climate in rural communities. Section 331 and 335 of the Consolidated Farm and Rural Development Act, as amended, authorizes the Secretary of Agriculture, acting through the Agency, to establish provisions for security servicing policies for the loans and grants in question. If there is a problem which exists, a recipient of the loan, grant, or loan guarantee must furnish financial information which is used to aid in resolving the problem through reamortization, sale, transfer, debt restructuring, liquidation, or other means provided in the regulations. *Need and Use of the Information:* The Agency will collect information from applicants, borrowers, consultants, lenders and attorneys. This information is used to determine applicant/borrower eligibility and project feasibility for various servicing actions. The information enables field staff to ensure that borrowers operate on a sound basis and use loan and grant funds for authorized purposes. *Description of Respondents:* State, Local or Tribal Government; not-for-profit institutions. *Number of Respondents:* 587. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 1,042. Rural Housing Service *Title:* RD 3550-28, “Authorization Agreement for Preauthorization Payments”; RD 1951-65, “Customer Initiated Payments (CIP)” and RD 1951-66, “Fedwire Worksheet”. *OMB Control Number:* 0575-0184. *Summary of Collection:* Rural Development
(RD)uses electronic methods for receiving and processing loan payments and collections. These electronic collection methods are approved by Treasury and include Preauthorized Debits (PAD), Customer Initiated Payments (CIP), and FedWire. These electronic collection methods provide the borrower the ability to submit their loan payments the day prior to, or the day of their installment due date. To administer these electronic payment methods, RD will use approved agency forms for collecting financial institution routing information. Form RD 3550-28, Authorization Agreement for Preauthorized Payments, is prepared by the borrower to authorize RD to electronically collect regular loan payments from a borrower's account at a financial institution
(FI)as preauthorized debits. Form RD 1951-65 is prepared by the borrower to enroll in CIP. CIP is an electronic collection method that enables borrowers to input payment data to a contract bank via telephone (touch tone and voice) or computer terminal. Form RD 1951-66, FedWire Worksheet, is completed by the borrower to establish an electronic FedWire format with their FI. *Need and Use of the Information:* RD will request that borrowers make payments electronically via PAD, CIP, or FedWire. The information is collected only once unless the FI routing information changes. If the information were not collected, RD would be unable to collect loan payments electronically. *Description of Respondents:* Not-for-profit institutions; Business or other for-profit; State, Local or Tribal Government. *Number of Respondents:* 23,520. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 11,761. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E8-11872 Filed 5-27-08; 8:45 am] BILLING CODE 3410-XT-P DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation Funding Opportunity Title: Crop Insurance Education in Targeted States (Targeted States Program) *Announcement Type:* Modification—Competitive Cooperative Agreements This announcement modifies the Request for Application Notice published in the **Federal Register** , January 22, 2008 (Vol. 73, No. 14, Pages 3681—3688). The Dates, Summary, and Further Information Contact portions have been modified. *CFDA Number:* 10.458. DATES: Applications are due by 5 p.m. EDT, June 12, 2008. SUMMARY: The following paragraph has been added to the beginning of the Summary portion of the January 22, 2008, **Federal Register** Notice: The Risk Management Agency
(RMA)did not receive complete and valid application packages for the State of Delaware under the original Request for Application Notice published in the **Federal Register** on January 22, 2008, for the Crop Insurance Education in Targeted States Program (Targeted States Program). RMA is re-announcing its Funding Opportunity—Request for Applications under the Targeted States Program for the State of Delaware. Applicants who previously submitted an application under the January 22, 2008, Targeted States Program Request for Applications Notice for Delaware must reapply in accordance with the original Notice published in the **Federal Register** on January 22, 2008. All other portions and sections of the full text Notice remain unchanged. FOR FURTHER INFORMATION CONTACT: Applicants and other interested parties are encouraged to contact: Michelle Fuller, USDA-RMA-RME, phone: 202-720-6356, fax: 202-690-3605, e-mail: *RMA.Risk-Ed@rma.usda.gov.* You may also obtain information regarding this announcement from the RMA Web site at: *http://www.rma.usda.gov/aboutrma/agreements/.* Signed in Washington, DC, on May 21, 2008. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E8-11810 Filed 5-27-08; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF AGRICULTURE Forest Service Notice of Meeting; Federal Lands Recreation Enhancement Act (Title VIII, Pub. L. 108-447) AGENCY: Rocky Mountain Region, USDA Forest Service. ACTION: Notice of Meeting. SUMMARY: The Colorado Recreation Resource Advisory Committee will tentatively meet in Golden, CO. The purpose of the meeting is to continue to provide the new committee members with the information they need to be effective committee members and review several fee proposals. These fee proposals will tentatively include several new cabin rentals and fee changes for: the Green Mountain Reservoir/Cataract Lake fee area and the Arapaho National Recreation Area. DATES: The meeting will be held June 24 from 9 a.m.-4:30 p.m. This meeting will only be held if a quorum is present. ADDRESSES: The meeting will be at the American Mountaineering Center at 710 10th Street in Golden, Colorado, in conference rooms C&D on the 1st floor. Parking is available on the north and east sides of the building. Send written comments to Steve Sherwood, Designated Federal Official, 740 Simms Street, Golden, CO 80401 or *ssherwood@fs.fed.us.* FOR FURTHER INFORMATION CONTACT: Paul E. Cruz, Colorado Recreation Resource Advisory Committee Acting Coordinator, at 970-295-6614 or *pecruz@fs.fed.us.* SUPPLEMENTARY INFORMATION: The meeting is open to the public. Committee discussion is limited to Forest Service, Bureau of Land Management staff and Committee members. Persons who wish to bring recreation fee matters to the attention of the Committee may file written statements with the Committee staff. Written comments received at least a week before the meeting will be available for committee review. Written comments received less than a week before the meeting may not be available for committee referral. There will be time on the agenda for verbal comments (5 minutes per person) and the Chairperson may ask for comments from the public at any time during the meeting. All persons wishing to address the committee must sign in at the door. Check for the status of the meeting, the final agenda and a final list of the fee proposals to be reviewed at: *http://www.fs.fed.us/r2/recreation.* The Recreation RAC is authorized by the Federal Land Recreation Enhancement Act, which was signed into law by President Bush in December 2004. Dated: May 19, 2008. Steve Sherwood, DFO, Colorado Recreation Resource Advisory Committee. [FR Doc. E8-11621 Filed 5-27-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Rural Utilities Service Hertford Renewable Energy, LLC: Notice of Intent To Hold Public Scoping Meetings and Prepare an Environmental Assessment AGENCY: Rural Utilities Service, USDA. ACTION: Notice of intent to hold public scoping meetings and prepare an Environmental Assessment (EA). SUMMARY: The Rural Utilities Service (RUS), an Agency delivering the United States Department of Agriculture
(USDA)Rural Development Utilities Programs, hereinafter referred to as Rural Development and/or the Agency, intends to hold public scoping meetings and prepare an Environmental Assessment
(EA)in connection with potential impacts related to projects proposed by Hertford Renewable Energy, LLC (HRE), with headquarters in Winter Park, FL. The proposal consists of the construction of a 50 Megawatt
(MW)biomass power plant. The proposed power plant would be located in Hertford County, North Carolina on Joe Holloman Road. HRE is requesting the Agency to provide financial assistance for the proposed action. DATES: The Agency will conduct a Scoping Meeting in an open house format, seeking the input of the public and other interested parties. The meeting will be held from 5 p.m. until 7 p.m., on June 10, 2008. Comments regarding the proposed action may be submitted (orally or in writing) at the public scoping meetings or in writing within 30 days after the scoping meeting to Rural Development at the address provided in this notice. ADDRESSES: The June 10, 2008, meeting will be held at the Roanoke Chowan Community College, Jernigan Auditorium, 109 Community College Road, Ahoskie, NC 27910, Phone: 252-862-1200. For further information, please contact Stephanie Strength, Environmental Protection Specialist, USDA, Rural Development Utilities Programs, Engineering and Environmental Staff, 1400 Independence Avenue, SW., Stop 1571, Washington, DC 20250-1571, telephone
(202)720-0468, or e-mail *stephanie.strength@wdc.usda.gov.* An Electric Alternatives Evaluation and Macro Corridor Study Report, prepared by Hertford Renewable Energy, LLC, will be presented at the public scoping meetings. The Report will be available for public review at the Agency's address provided in this notice, at the Agency's Web site: *http://www.usda.gov/rus/water/ees/ea.htm,* at Hertford Renewable Energy, LLC, 152 Lincoln Avenue, Winter Park, FL 32789 and at the: Hertford County Library, 303 West Tryon Street, Winton, NC 27986, Phone: 252-358-7855; Ahoskie Public Library, 210 E. Church Street, Ahoskie, NC 27910, Phone: 252-332-5500. SUPPLEMENTARY INFORMATION: Hertford Renewable Energy, LLC proposes to construct a 50 MW biomass power plant on approximately 93 acres on Joe Holloman Road east of Millennium, NC. A wastewater line may be required off-site. It is anticipated that all of the facilities would be in service in 2011. Government agencies, private organizations, and the public are invited to participate in the planning and analysis of the proposed project. Representatives from the Agency and Hertford Renewable Energy, LLC will be available at the scoping meeting to discuss the Agency's environmental review process, describe the project, the need for the project, alternatives under consideration, and to discuss the scope of environmental issues to be considered, answer questions, and accept comments. Comments regarding the proposed action may be submitted (orally or in writing) at the public scoping meetings or in writing within 30 days after the June 10, 2008, scoping meeting to Rural Development at the address provided in this notice. From information provided in the alternative evaluation and site selection study, input that may be provided by government agencies, private organizations, and the public, Hertford Renewable Energy, LLC will use to prepare an environmental analysis to be submitted to the Agency for review. The Agency will use the environmental analysis to determine the significance of the impacts of the project and if acceptable will adopt it as its environmental assessment of the project. The Agency's environmental assessment of the project would be available for review and comment for 30 days. Should the Agency determine, based on the Environmental Assessment of the project, that the impacts of the construction and operation of the power plant would not have a significant environmental impact, it will prepare a finding of no significant impact. Public notification of a finding of no significant impact would be published in the **Federal Register** and in newspapers with a circulation in the project area. Any final action by the Agency related to the proposed project will be subject to, and contingent upon, compliance with environmental review requirements as prescribed by the Agency's environmental policies and procedures (7 CFR part 1794). Dated: May 20, 2008. Mark S. Plank, Director, Engineering and Environmental Staff, USDA/Rural Development Utilities Programs. [FR Doc. E8-11812 Filed 5-27-08; 8:45 am] BILLING CODE 3410-15-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). *Agency:* U.S. Census Bureau. *Title:* The American Community Survey. *OMB Control Number:* 0607-0810. *Form Number(s):* ACS-1, ACS-1(SP), ACS-1PR, ACS-1PR(SP), ACS-1(GQ), ACS-1(PR)(GQ), GQFQ, ACS CATI (HU), ACS CAPI (HU), ACS Reinterview (HU), GQ Reinterview. *Type of Request:* Revision of a currently approved collection. *Burden Hours:* 1,994,500. *Number of Respondents:* 3,220,000. *Average Hours Per Response:* Household Questionnaire—38 minutes; Group Quarters Facility Questionnaire—15 minutes; Group Quarters Individual Questionnaire—25 minutes; Reinterview—10 minutes. *Needs and Uses:* The U.S. Census Bureau requests authorization from the Office of Management and Budget
(OMB)to continue conducting the American Community Survey (ACS). The Census Bureau has developed a methodology to collect and update every year demographic, social, economic, and housing data that are essentially the same as the “long-form” data that the Census Bureau traditionally has collected once a decade as part of the decennial census. Federal and state government agencies use such data to evaluate and manage federal programs and to distribute funding for various programs that include food stamp benefits, transportation dollars, and housing grants. State, county, and community governments, nonprofit organizations, businesses, and the general public use information like housing quality, income distribution, journey-to-work patterns, immigration data, and regional age distributions for decision-making and program evaluation. In years past, the Census Bureau collected the long-form data only once every 10 years, which become out of date over the course of the decade. To provide more timely data, the Census Bureau developed the ACS. The ACS blends the strength of small area estimation with the high quality of current surveys. There is an increasing need for current data describing lower geographic detail. The ACS is now the only source of data available for small-area levels across the Nation and in Puerto Rico. In addition, there is an increased interest in obtaining data for small subpopulations such as groups within the Hispanic, Asian, and American Indian populations, the elderly, and children. The ACS provides current data throughout the decade for small areas and subpopulations. The ACS began providing up-to-date profiles in 2006 for areas and population groups of 65,000 or more people, providing policymakers, planners, and service providers in the public and private sectors with information every year—not just every 10 years. The ACS program will provide estimates annually for all states and for all medium and large cities, counties, and metropolitan areas. For smaller areas and population groups, it will take 3 to 5 years to accumulate information to provide accurate estimates. After that period of time, the multiyear estimates will be updated annually. Using the Master Address File
(MAF)from the decennial census that is updated each year, we will select a sample of addresses, mail survey forms each month to a new group of potential households, and attempt to conduct interviews over the telephone with households that have not responded. Upon completion of the telephone follow-up, we will select a sub-sample of the remaining households, which have not responded, typically at a rate of one in three, to designate a household for a personal interview. Census will also conduct interviews with a sample of residents at a sample of group quarters
(GQ)facilities. Collecting these data from a new sample of housing unit
(HU)and GQ facilities every month will provide more timely data and will lessen respondent burden in the 2010 Census. Census will release a yearly microdata file, similar to the Public Use Microdata Sample file of the Census 2000 long-form records. In addition, we will produce total population summary tabulations similar to the Census 2000 tabulations down to the block group level. The microdata files, tabulated files, and their associated documentation are available through the Internet. The goals of the ACS are to: • Provide federal, state, and local governments an information base for the administration and evaluation of government programs; • Improve the 2010 Census; and • Provide data users with timely demographic, housing, social, and economic data updated every year that can be compared across states, communities, and population groups. For the 2009 ACS, modified data collection materials based upon results of the 2007 ACS Content Test will be used. The content of the proposed 2009 ACS questionnaire and data collection instruments for both HU and GQ operations reflect 2007 tested changes to content, instructions, and forms design. Census plan to add a new question on field of degree
(FOD)of a person's bachelor's degree beginning in 2009. We also plan to reinstate a ‘duration of vacancy' question asked of contacts for vacant units during the non-response follow-up modes of data collection. *Affected Public:* Individuals or households. *Frequency:* Monthly. *Respondent's Obligation:* Mandatory. *Legal Authority:* Title 13 U.S.C., Sections 141, 193 and 221. *OMB Desk Officer:* Brian Harris-Kojetin,
(202)395-7314. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dhynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail ( *bharrisk@omb.eop.gov* ). Dated: May 22, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-11858 Filed 5-27-08; 8:45 am] BILLING CODE 3510-07-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the emergency provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). *Agency:* National Institute of Standards and Technology (NIST). *Title:* Technology Innovation Program Application Requirements. *Form Number(s):* NIST-1022. *OMB Approval Number:* None. *Type of Request:* Emergency submission. *Burden Hours:* 11,100. *Number of Respondents:* 300. *Average Hours Per Response:* 37. *Needs and Uses:* The Technology Innovation Program
(TIP)is a competitive cost sharing program designed to assist U.S. businesses and institutions of higher education or other organizations, such as national laboratories and nonprofit research institutions, to support, promote, and accelerate innovation in the United States through high-risk, high-reward research in areas of critical national need. High-risk, high-reward research is research that: a. has the potential for yielding transformational results with far-ranging or wide-ranging implications; b. addresses areas of critical national need that support, promote, and accelerate innovation in the United States and is within NIST's areas of technical competence; and is too novel or spans too diverse a range of disciplines to fare well in the traditional peer-review process. *Affected Public:* U.S. businesses and institutions of higher education or other organizations, such as national laboratories and nonprofit research institutions. *Frequency:* Annually. *Respondent's Obligation:* Required to obtain or retain a benefit. *OMB Desk Officer:* Jasmeet Seehra,
(202)395-3123. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent by June 20, 2008, to Jasmeet Seehra, OMB Desk Officer, FAX number
(202)395-5806 or via the Internet at *Jasmeet_K._Seehra@omb.eop.gov* . Dated: May 22, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-11859 Filed 5-27-08; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). *Agency:* National Oceanic and Atmospheric Administration (NOAA). *Title:* Coral Reef Valuation Study. *OMB Approval Number:* None. *Form Number(s):* None. *Type of Request:* Regular submission. *Burden Hours:* 990. *Number of Respondents:* 1,980. *Average Hours Per Response:* 30 minutes. *Needs and Uses:* This is a national survey using two independently recruited Internet panels: the American National Election Study
(ANES)Internet Panel and Stanford's Major Research Instrumentation Panel
(MRI)Internet Panel. The survey is designed to yield information that can be used to estimate total economic values for protection and restoration of Hawaii's coral reef ecosystems. The survey addresses the public's preferences and economic values for the use of no-take areas as a management tool and the public's preferences and economic values for restoring damaged coral reefs. NOAA is a member of the U.S. Coral Reef Task Force (CRTF), which was established in June 1998 through Executive Order
(EO)13089. As a member of the CRTF, and in support of the U.S. Coral Reef Initiative, NOAA has significant responsibilities for managing U.S. coral reef habitats and undertaking scientific studies to better manage the nation's coral reef resources. In March 2000, the task force approved the first-ever National Action Plan to Conserve Coral Reefs pursuant to the Coral Reef Conservation Act (16 U.S.C. 6401-6409). The Action Plan identifies 13 major goals, including five that the proposed research addresses:
(1)Conduct strategic research,
(2)understand the social and economic factors of coral reef ecosystems,
(3)improve the use of marine protected areas (MPAs),
(4)restore damaged reefs, and
(5)improve outreach and education about coral reef ecosystems. In support of NOAA's fulfillment of these goals, this study is designed to develop a survey instrument to elicit economic values for Hawaiian coral reef ecosystems at the national level. The overall objective of this project is to develop economically valid and reliable national estimates of individuals' values for alternative Hawaiian coral reef protection and improvement options. *Affected Public:* Individuals or households. *Frequency:* One-time only. *Respondent's Obligation:* Voluntary. *OMB Desk Officer:* David Rostker,
(202)395-3897. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number
(202)395-7285, or *David_Rostker@omb.eop.gov* . Dated: May 22, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-11860 Filed 5-27-08; 8:45 am] BILLING CODE 3510-JE-P DEPARTMENT OF COMMERCE International Trade Administration A-570-928, A-791-821, A-552-803 Postponement of Preliminary Determinations of Antidumping Duty Investigations; Uncovered Innerspring Units from the People's Republic of China, South Africa, and the Socialist Republic of Vietnam AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: May 28, 2008. FOR FURTHER INFORMATION CONTACT: Erin Begnal at
(202)482-1442 or Scot Fullerton at
(202)482-1386 (People's Republic of China), Office 9; Dmitry Vladimirov at
(202)482-0665 or Minoo Hatten at
(202)482-1690 (South Africa), Office 5; Eugene Degnan at
(202)482-0414 or Robert Bolling at
(202)482-3434 (Socialist Republic of Vietnam), Office 8, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: Postponement of Preliminary Determinations On January 28, 2008, the Department of Commerce (the Department) published in the **Federal Register** the initiation of the antidumping investigations on uncovered innerspring units from the People's Republic of China (PRC), South Africa, and the Socialist Republic of Vietnam (Vietnam). See *Uncovered Innerspring Units from the People's Republic of China, South Africa, and the Socialist Republic of Vietnam: Initiation of Antidumping Duty Investigations* , 73 FR 4817 (January 28, 2008) (Initiation Notice). The notice of initiation stated that the Department would issue its preliminary determinations for these investigations no later than 140 days after the date of issuance of the initiation, in accordance with section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act). On May 20, 2008, the petitioner, Leggett & Platt Inc., made a request pursuant to 19 CFR 351.205(b)(2) and
(e)for a 50-day postponement of the preliminary determinations. 1 The petitioner requested postponement of the preliminary determinations in order to allow the Department additional time to do a thorough investigation of the respondents in these investigations. 1 Although the petitioner did not file its request 25 days or more before the scheduled date of the preliminary determination, the Department has determined to accept the request pursuant to its authority under 19 CFR 351.302(b). We find that good cause exists to extend the deadline in order to allow the Department additional time to analyze the questionnaire responses in the investigation of uncovered innerspring units from the PRC. Further, for purposes of administrative efficiency, the Department concludes that the Vietnam, South Africa and PRC cases should remain on a consistent timeline. For the reason identified by the petitioner and because there are no compelling reasons to deny the request, the Department is postponing the deadline for the preliminary determinations under section 733(c)(1)(A) of the Act by 50 days to July 30, 2008. The deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations, unless extended. This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1). Dated: May 21, 2008. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E8-11854 Filed 5-27-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration (A-427-827) Sodium Metal from France: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The U.S. Department of Commerce (the Department) preliminarily determines that sodium metal from France (sodium metal) is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margin of sales at LTFV is listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending the provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination. EFFECTIVE DATE: May 28, 2008. FOR FURTHER INFORMATION CONTACT: Dennis McClure or Joy Zhang, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone
(202)482-5973 or
(202)482-1168, respectively. SUPPLEMENTARY INFORMATION: Background On October 23, 2007, E.I. DuPont de Nemours & Co. Inc. (the petitioner) filed a petition on sodium metal from France. In a supplement to the petition, the petitioner provided information demonstrating reasonable grounds to believe or suspect that sales of sodium metal in the home market were made at prices below the fully absorbed cost of production (COP), within the meaning of section 773(b) of the Act, and requested that the Department conduct a sales-below-cost investigation. *See* November 8, 2007, supplement to the petition at page 10. We found that the petitioner provided a reasonable basis to believe or suspect that the French producer was selling sodium metal in France at prices below the COP. *See* section 773(b)(2)(A)(i) of the Act. On November 13, 2007, the Department initiated the antidumping duty investigation of sodium metal from France. *See Sodium Metal from France: Notice of Initiation of Antidumping Duty Investigation* , 72 FR 65295 (November 20, 2007) ( *Initiation Notice* ). The Department also initiated a country-wide sales-below-cost investigation and requested that respondent, MSSA S.A.S, respond to section D of the Department's antidumping questionnaire. *See Initiation Notice* ; *see also* the Department's questionnaire issued to MSSA S.A.S. on January 4, 2008. The Department requested comments on model-matching criteria in its letter to interested parties, dated November 16, 2007. On December 6, 2007, the petitioner submitted comments on the model-matching criteria. On December 13, 2007, MSSA S.A.S., MSSA Company, and Columbia Sales International (collectively, MSSA) submitted comments on the proposed model-matching criteria. On December 14 and 17, 2007, the petitioner submitted additional comments on the proposed model-matching criteria. On December 19, 2007, MSSA responded to the petitioner's comments concerning model-matching criteria. For an explanation of the model-matching criteria used, *see Model Match* section, below. On December 6, 2007, the United States International Trade Commission
(ITC)preliminarily determined that there is a reasonable indication that the industry in the United States is materially injured by reason of imports of sodium metal from France that are alleged to be sold in the United States at LTFV. *See Sodium Metal From France* , Investigation No. 731-TA-1135 ( *Preliminary* ), 73 FR 15777 (March 25, 2008). The ITC notified the Department of these findings. On December 14, 2007, MSSA wrote to inform the Department that its home market may not be viable because most of its sales in most markets are governed by long-term contracts. In addition, MSSA also explained that the Department may need to expand the period of investigation
(POI)to capture sales from one of its larger contracts in the United States. On December 19, 2007, the petitioner submitted a letter arguing against extending the POI. On December 20, 2007, MSSA submitted a response to the petitioner's comments on extending the POI. *See Date of Sale/Market Viability* section, below. On February 8, 2008, the Department received the Section A questionnaire response from MSSA. On February 20, 2008, the Department received a letter from MSSA explaining that it had made a small percentage of sales to affiliated parties in the United States for further manufacturing and downstream sales and asked that it be excused from reporting these sales. On February 25, 2008, the Department received the Sections B and C response from MSSA. 1 On March 6, 2008, MSSA responded to the Department's Section A supplemental questionnaire. 1 For Section B, MSSA originally reported third-country sales to Germany using invoice date as the date of sale. On March 7, 2008, the petitioner filed a sales-below-cost allegation based on sales to Germany. On March 18, 2008, the Department postponed the preliminary determination of the instant antidumping duty investigation. *See Sodium Metal from France: Postponement of Preliminary Determination of Antidumping Duty Investigation* , 73 FR 14440 (March 18, 2008). After reviewing the Sections B and C response from MSSA, the Department issued a supplemental questionnaire to MSSA on March 10, 2008. On March 21, 2008, the Department notified MSSA that we found that the home market was viable and were requiring it to respond to Section B and Section D of the questionnaire with regard to the French market. *See Date of Sale/Market Viability* section, below. On April 4, 2008, we received MSSA's Section B response with regard to the French market. On April 11, 2008, we received MSSA's supplemental Sections B and C response. On April 16, 2008, we issued an additional supplemental Sections B and C questionnaire to MSSA. On April 14 and 21, 2008, we received MSSA's Section D response. On April 21, 2008, the petitioner submitted a targeted dumping allegation and comments on MSSA's Section A and C responses. On April 22, 2008, the Department issued a supplemental questionnaire with regard to Sections A and C. On April 28, 2008, MSSA responded to the Department's April 16, 2008, supplemental Sections B and C questionnaire. On April 30, 2008, MSSA responded to the Department's April 22, 2008, supplemental questionnaire with regard to Sections A and C. On April 25, 2008, the Department issued a Section D supplemental questionnaire. MSSA responded to the Section D supplemental questionnaire on May 2 and 7, 2008. On April 30, 2008, the Department requested that the petitioner respond to additional questions with regard to its targeted dumping allegation. The petitioner responded on May 6, 2008. On May 7, 2008, MSSA requested that the Department postpone the final determination and extend the provisional measures. *See Postponement of Final Determination and Extension of Provisional Measures* section, below. Targeted Dumping Allegation The petitioner submitted an allegation of targeted dumping on April 21, 2008. *See* section 777A(d)(1)(B) of the Act. In its allegation, the petitioner asserts that there are patterns of constructed export prices
(CEPs)for comparable merchandise that differ significantly among purchasers. We note that all of MSSA's U.S. sales are CEP sales. The Department requested additional information and clarification from the petitioner with respect to its targeted dumping allegation. *See* Letter from James Terpstra to the petitioner, dated May 1, 2008. On May 6, 2008, the petitioner provided its response. On May 16, 2008, MSSA argued that the petitioner miscalculated the gross unit price of the alleged largest targeted customer. New Targeted Dumping Test The statute allows the Department to employ the average-to-transaction methodology if: 1) there is a pattern of export prices that differ significantly among purchasers, regions, or periods of time, and 2) the Department explains why such differences cannot be taken into account using the average-to-average or transaction-to-transaction methodology. 2 2 Section 777A(d)(1)(B) of the Act. In the recent post-preliminary determination memorandum in the antidumping investigation of new pneumatic off-the-road tires for the People's Republic of China, the Department applied a new targeted dumping standard and methodology for analyzing targeted dumping allegations. 3 3 *See* Memorandum to David M. Spooner, “Post-Preliminary Determination of Targeted Dumping” (May 19, 2008), (OTR Tires Targeted Dumping Memorandum). This new test was first applied in the investigations of certain steel nails from the United Arab Emirates and the People's Republic of China. We conducted a customer-targeted dumping analysis for MSSA using the methodology described in the OTR Tires Targeted Dumping Memorandum. This is also the test put forward in the Department's *Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations; Request for Comment* , 73 FR 26371 (May 9, 2008). The methodology we employed involves a two-stage test: the first stage addresses the pattern requirement, and the second stage addresses the significant difference requirement. All price comparisons have been done on the basis of identical merchandise ( *i.e.* , by control number or CONNUM). The test procedures are the same for customer, regional, and time period targeted dumping allegations, 4 even though the example given in the general description below applies to customer targeting. 4 The petitioner made no targeted dumping allegations based on region or time period in this investigation. In the first stage of the test, referred to as the “standard deviation test,” the Department determined, on an exporter-specific basis, the share of the alleged targeted customer's purchases of subject merchandise (by sales value) that are at prices more than one standard deviation below the weighted-average price to all customers of that exporter, targeted and non-targeted. We calculated the standard deviation on a product-specific basis ( *i.e.* , CONNUM by CONNUM) using the POI-wide average prices (weighted by sales value) for each alleged targeted customer and each distinct non-targeted customer. If that share did not exceed 33 percent of the total value of the exporter's sales of subject merchandise to the alleged targeted customer, then the pattern requirement is not met and the Department did not conduct the second stage of the test. However, if that share exceeded 33 percent of the total value of the exporter's sales of subject merchandise to the alleged targeted customer, then the pattern requirement is met and the Department proceeded to the second stage of the test. Specifically, the Department examined in the second stage all of the sales of identical merchandise ( *i.e.* , by CONNUM) by that exporter to the alleged targeted customer. From those sales, we determined the total value of sales for which the difference between
(i)the sales-weighted-average price to the alleged targeted customer and
(ii)the next higher sales-weighted-average price to a non-targeted customer exceeded the average price gap (weighted by sales value) for the non-targeted group. 5 Each of the price gaps in the non-targeted group was weighted by the combined sales value associated with the pair of prices to non-targeted customers that make up the price gap. In doing this analysis, the alleged targeted customers were not included in the non-targeted group; each alleged targeted customer's average price was compared to only the average prices to non-targeted customers. If the share of the sales that met this test exceeded five percent of the total sales value of subject merchandise to the alleged targeted customer, 6 the significant difference requirement was met and the Department determined that customer targeting occurred. 5 The next higher price is the sales-weighted-average price to the non-targeted group that is above the sales-weighted-average price to the alleged targeted group. For example, if the sales-weighted-average price to the alleged targeted group is $7.95 and the sales-weighted-average prices to the non-targeted group are $8.30, $8.25, and $7.50, we would calculate the difference between $7.95 and $8.25 because this is the next higher price in the non-targeted group above $7.95 (the average price to the targeted group). 6 For example: If non-targeted A's weighted-average price is $1.00 with a total sales value of $100 and non-targeted B's weighted-average price is $0.95 with a total sales value of $120, then the difference of $0.05 ($1.00−$0.95) would be weighted by $220 ($100 + $120). Once the Department determined that the customer pattern-of-price differences were significant, we applied the transaction-to-average methodology to any targeted sales and applied the average-to-average methodology to the remaining non-targeted sales. 7 When calculating the weighted-average margin, we combined the margin calculated for the targeted sales with the margin calculated for the non-targeted sales, without offsetting any margins found among the targeted sales. 7 Consistent with 19 CFR 351.414(f)(2), we have limited our application of the average-to-transaction methodology to the targeted sales under 19 CFR 351.414(f)(1)(i). As specified in the preamble to the regulations, the Department will apply the average-to-transaction methodology solely to address the practice of targeting. *See Antidumping Duties; Countervailing Duties* ; 62 FR 27296, 27375 (May 19, 1997). In the preamble, the Department indicated that where the targeting is so widespread that it is administratively impractical to segregate targeted sales prices from the normal pricing behavior of the company, it may be necessary to apply the average-to-transaction methodology to all sales of a particular respondent. In this case, however, we are able to segregate the targeted sales prices, by customer, where appropriate, from the normal pricing behavior of the company and, therefore, have limited our application of the average-to-transaction methodology to the sales to the targeted group. We based all of our targeted dumping calculations on the U.S. net price (“NETPRIU”) determined in our margin program in our Preliminary Calculation Memorandum. *See* “Calculation Memorandum for the Preliminary Determination - MSSA,” dated May 21, 2008, (Preliminary Calculation Memorandum) on file in the Central Records Unit, Room 1117 of the main Department building. Results of the Application of the New Targeted Dumping Test For purposes of this preliminary determination on targeted dumping, we have applied the above-described test to the U.S. sales data reported by MSSA. Our observations and results are discussed in more detail in a separate memorandum placed on the record of this investigation. *See* Preliminary Calculation Memorandum. We preliminarily determine that there is no pattern of constructed export prices for comparable merchandise that differs significantly among customers for MSSA. Therefore, we applied the average-to-average methodology to all U.S. sales by MSSA. Comments by Interested Parties Parties may comment on the Department's overall preliminary determination application of the new targeted dumping test in this proceeding. Consistent with 19 CFR 351.309(c)(2), all comments should be filed in the context of the case and rebuttal briefs. *See* the “Public Comment” section below for details regarding the briefing schedule for this investigation. Period of Investigation The POI is October 1, 2006 to September 30, 2007. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of the Investigation The merchandise covered by this investigation includes sodium metal (Na), in any form and at any purity level. Examples of names commonly used to reference sodium metal are sodium metal, sodium, metallic sodium, and natrium. The merchandise subject to this investigation is classified in the Harmonized Tariff Schedule of the United States (HTSUS) subheading 2805.11.0000. The American Chemical Society Chemical Abstract Service
(CAS)has assigned the name “Sodium” to sodium metal. The CAS registry number is 7440-23-5. For purposes of the investigation, the narrative description is dispositive, not the tariff heading, CAS registry number or CAS name, which are provided for convenience and customs purposes. Model Match We have taken into account the comments filed by MSSA and the petitioner concerning model-matching criteria. We have used the following criteria for model matching, since both parties were in substantial agreement with the product characteristics. In accordance with section 771(16) of the Act, all products produced by the respondent covered by the description in the *Scope of Investigation* section, above, and sold in France during the POI are considered to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We have relied on five criteria to match U.S. sales of subject merchandise to comparison market sales of the foreign like product: 1) calcium impurity, 2) potassium impurity, 3) chloride/bromide impurity, 4) oxygen impurity, and 5) form. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed above. On January 4, 2008, the Department issued the questionnaire containing the criteria identified above. *See* the Department's antidumping questionnaire issued to MSSA on January 4, 2008, at pages B-8 through B-10 and C-7 through C-9. Date of Sale/Market Viability Section 351.401(i) of the Department's regulations states that the Department normally will use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. Therefore, where there were no long-term contracts which were signed and effective, during the POI, we determined that the invoice date established the material terms of sale. The regulations further provide that the Department may use a date other than the date of the invoice if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established. The Department has a long-standing practice of finding that, where shipment date precedes invoice date, shipment date better reflects the date on which the material terms of sale are established. *See* 19 CFR 351.401(i); *see also Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp from Thailand* , 69 FR 76918 (December 23, 2004), and accompanying Issues and Decision Memorandum at Comment 10; and *Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel Beams from Germany* , 67 FR 35497 (May 20, 2002), and accompanying Issues and Decision Memorandum at Comment 2. Therefore, we used the earlier of shipment date or invoice date as the date of sale in accordance with our practice. In MSSA's original response to Section B of the questionnaire, MSSA reported its response based upon the invoice date as the date of sale, which indicated that France was not a viable home market. Therefore, MSSA reported sales to Germany as its viable market for comparison to its U.S. sales. In our review of MSSA's sales contracts, we determined that some contracts did establish the material terms of sale because no changes to the material terms were made. Therefore, where those contracts were signed and the effective date was within the POI, we used the effective date as the date of sale for those sales made pursuant to those contracts. *See* Preliminary Calculation Memorandum. Fair Value Comparisons To determine whether sales of sodium metal from France were made in the United States at less than normal value (NV), we compared the CEP to the NV, as described in the *Constructed Export Price* and *Normal Value* sections below. In accordance with section 777A(d)(1) of the Act, we calculated the weighted-average prices for NV and compared these to the weighted-average of CEP. Constructed Export Price A. Affiliation Through Agency In accordance with section 771(33)(G) of the Act, we are treating Columbia Sales International as an affiliate of MSSA. During the POI, MSSA made sales to unaffiliated customers in the United States through three channels of distribution. The first two channels of distribution are sales by MSSA Co. with the assistance of Columbia Sales International, its exclusive U.S. sales agent. The third channel includes sales purchased by Columbia Sales International and resold to the unaffiliated U.S. customer. In MSSA's March 6, 2008, supplemental response, MSSA responded to additional questions concerning its relationship with Columbia Sales International. In Exhibit A-Supp-1, MSSA provided its “Exclusive Agency Agreement” with Columbia Sales International. The “Exclusive Agency Agreement” and other information on the record indicate that Columbia Sales International and MSSA are affiliated through a principal/agent relationship. *See* , *e.g.* , *Stainless Steel Sheet and Strip in Coils from Taiwan: Final Results and Partial Rescission of Antidumping Duty Administrative Review* , 67 FR 6682 (February 13, 2002), and accompanying Issues and Decision Memorandum at Comment 23, upheld in *Chia Far Industrial Factory Co. v. United States* , 343 F. Supp. 2d 1344, 1356 (CIT 2004) (“when there exists a principal who has the potential to control pricing and/or the terms of sale through the end-customer, Commerce will find agency and thus affiliation”). Furthermore, as explained in the *Notice of Final Determination of Sales at Less than Fair Value: Engineered Processed Gas Turbo-Compressor Systems, Whether Assembled or Unassembled, and Whether Complete or Incomplete, from Japan* , 62 FR 24392, 24402-24403 (May 5, 1997), the Department may examine a range of criteria to determine if an agency relationship exists. For example, the Department may look at
(1)the foreign producer's role in negotiating price and other terms of sale;
(2)the extent of the foreign producer's interaction with the U.S. customer;
(3)whether the agent/reseller maintains inventory;
(4)whether the agent/reseller takes title to the merchandise and bears the risk of loss;
(5)whether the agent/reseller further processes or otherwise adds value to the merchandise;
(6)the means of marketing a product by the producer to the U.S. customer in the pre-sale period; and
(7)whether the identity of the producer on sales documentation inferred such an agency relationship during the sales transactions. Due to the proprietary nature of MSSA's response, we have applied these factors to the facts of this case and included further analysis in our Preliminary Calculation Memorandum. B. Calculation of U.S. Price For the price to the United States, we used CEP in accordance with section 772(b) of the Act. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the sale to the first unaffiliated purchaser in the United States of the subject merchandise. We based CEP on the packed prices charged to the first unaffiliated customer in the United States and the applicable terms of sale. In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including U.S. warehouse expense, inland freight, insurance, brokerage & handling, demurrage, international freight, and U.S. customs duties. For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (cost of credit and warranty). These expenses include certain indirect selling expenses incurred by affiliated U.S. distributors. *See* Preliminary Calculation Memorandum. We also deducted from CEP an amount for profit in accordance with sections 772(d)(3) and
(f)of the Act. Normal Value A. Home Market Viability and Comparison Market Selection To determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the respondents' volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B)(i) of the Act, because MSSA had an aggregate volume of home market sales of the foreign like product that was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable. *See Date of Sale/Market Viability* section, above. *See also* March 21, 2008, Memorandum to The File, Subject: Determination of French Market as a Viable Market. B. Arm's-Length Test MSSA reported that its sales of the foreign like product were made to unaffiliated customers. Therefore, the arm's-length test is not applicable to MSSA's sales of the foreign like product. C. Cost of Production Analysis Based on our analysis of the petitioner's allegation stated in the petition, we found that there were reasonable grounds to believe or suspect that MSSA's sales of sodium metal in the home market were made at prices below its COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a sales-below-cost investigation to determine whether MSSA had sales that were made at prices below its COP. *See* November 8, 2007, supplement to the petition at page 10. *See also* ; *Initiation Notice* at page 65297. 1. Calculation of Cost of Production In accordance with section 773(b)(3) of the Act, we calculated MSSA's COP based on the sum of its costs of materials and conversion for the foreign like product, plus amounts for general and administrative expenses and interest expenses ( *see Test of Comparison Market Sales Prices* section, below, for the treatment of home market selling expenses). The Department relied on the COP data submitted by MSSA in response to the Department's supplemental section D questionnaire. 2. Test of Comparison Market Sales Prices On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses. 3. Results of the COP Test Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POI were at prices less than the COP, we determined that such sales were made in “substantial quantities.” *See* section 773(b)(2)(C) of the Act. Further, the sales were made within an extended period of time, in accordance with section 773(b)(2)(B) of the Act, because we examined below-cost sales occurring during the entire POI. In such cases, because we compared prices to POI-average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. Our preliminary findings show that we did not find that more than 20 percent of MSSA's sales were at prices less than the COP and did not exclude any sales as a result of the COP test. Therefore, we used all of MSSA's home market sales as the basis for determining NV. D. Calculation of Normal Value Based on Comparison Market Prices We based home market prices on packed prices to unaffiliated purchasers in France. We adjusted the starting price for insurance, inland freight, and freight revenue, where appropriate, pursuant to section 773(a)(6)(B)(ii) of the Act. When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise. *See* 19 CFR 351.411(b). E. Level of Trade/Constructed Export Price Offset In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade
(LOT)as the CEP transaction. In identifying LOTs for comparison market sales ( *i.e.* , NV based on home market), we consider the starting prices before any adjustments. For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act. *See Micron Technology, Inc. v. United States* , 243 F.3d 1301, 1314 (Fed. Cir. 2001). To determine whether NV sales are at a different LOT than EP or CEP transactions, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in the LOTs between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP-offset provision). MSSA reported sales made through one LOT corresponding to one channel of distribution in the home market. In the U.S. market, MSSA reported one LOT corresponding to three channels of distribution. MSSA made sales through its U.S. affiliates ( *i.e.* , CEP sales). In our analysis, we determined that there is one LOT in the home market and one LOT in the U.S. market. We have found that home market sales are at a more advanced LOT than the CEP sales made through its U.S. affiliates. Accordingly, we have made CEP offsets to NV. For a detailed description of our LOT methodology and a summary of the LOT findings for these preliminary results, see our analysis contained in the Preliminary Calculation Memorandum. Currency Conversion We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. All-Others Rate Pursuant to section 735(c)(5)(A) of the Act, the all-others rate is equal to the weighted average of the estimated weighted-average dumping margins of all respondents investigated, excluding zero or *de minimis* margins. MSSA is the only respondent in this investigation and its rate is neither zero nor *de minimis* . Therefore, for purposes of determining the all-others rate and pursuant to section 735(c)(5)(A) of the Act, we are using the weighted-average dumping margin calculated for MSSA for the all-others rate, as referenced in the *Suspension of Liquidation* section, below. Verification As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination. Suspension of Liquidation In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection
(CBP)to suspend liquidation of all entries of sodium metal from France that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the **Federal Register** . We are also instructing CBP to require a cash deposit or the posting of a bond equal to the weighted-average dumping margin, as indicated in the chart below. These suspension-of-liquidation instructions will remain in effect until further notice. The weighted-average dumping margin is as follows: Manufacturer/Exporter Weighted-Average Margin (percent) MSSA S.A.S. 62.62 All Others 62.62 Disclosure We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b). ITC Notification In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of sodium metal from France are materially injuring, or threaten material injury to, the U.S. industry. Because we have postponed the deadline for our final determination to 135 days from the date of the publication of this preliminary determination, the ITC will make its final determination within 45 days of our final determination. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the verification report in this proceeding. *See* 19 CFR 351.309(c)(1)(i). Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline date for the submission of case briefs. *See* 19 CFR 351.309(d)(1) and (2). A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette. In accordance with section 774 of the Act, the Department will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the rebuttal brief deadline date at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain:
(1)The party's name, address, and telephone number;
(2)the number of participants; and
(3)a list of the issues to be discussed. *See* 19 CFR 351.310(c). At the hearing, oral presentations will be limited to issues raised in the briefs. Postponement of Final Determination and Extension of Provisional Measures Pursuant to section 735(a)(2) of the Act, on May 7, 2008, MSSA, which accounts for a significant proportion of exports of sodium metal from France, requested that in the event of an affirmative preliminary determination in this investigation, the Department fully extend the final determination ( *i.e.* , postpone its final determination by 60 days). In its May 7, 2008, letter, MSSA also requested, pursuant to 733(d) of the Act, that in the event of an affirmative preliminary determination in this investigation, the Department extend the maximum duration of provisional measures from four months to six months from the date of implementation. *See* 735(a)(2) of the Act and 19 CFR 351.210(e)(2). In accordance with section 733(d) of the Act and 19 CFR 351.210(b)(2)(ii), because
(1)our preliminary determination is affirmative,
(2)the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and
(3)no compelling reason for denial exists, we are granting MSSA's request and are postponing the final determination until no later than 135 days after the publication of this notice in the **Federal Register** . Suspension of liquidation will be extended accordingly. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: May 21, 2008. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E8-11876 Filed 5-27-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XI10 Endangered Species; File No. 10037 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Issuance of permit. SUMMARY: Notice is hereby given that Dr. Douglas Peterson, Warnell School of Forest Resources (Fisheries Division), University of Georgia, Athens, Georgia 30602, has been issued a permit to take shortnose sturgeon (Acipenser brevirostrum) for purposes of scientific research. ADDRESSES: The permit and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727)824-5312; fax (727)824-5309. FOR FURTHER INFORMATION CONTACT: Malcolm Mohead or Kate Swails, (301)713-2289. SUPPLEMENTARY INFORMATION: On September 11, 2007, notice was published in the **Federal Register** (72 FR 51803) that a request for a scientific research permit to take shortnose sturgeon had been submitted by the above-named individual. The requested permit has been issued under the authority of 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). Dr. Peterson is authorized to conduct research on shortnose sturgeon for five years to assess the abundance, age structure, distribution, movement, and critical habitat on the Ogeechee River, Georgia, and will also investigate the adverse effects of estrogenic compounds. Researchers may capture up to 150 shortnose sturgeon annually using gill and trammel nets and also anesthetize, measure, weigh, tissue and fin-ray sample, and PIT tag these fish. A subset of up to 10 sturgeon annually (no more than 40 during the permit life) will be laparoscoped and implanted with internal radio tags; a subset of up to 5 sturgeon annually (no more than 20 during the permit life) will be laparoscoped and fitted with external radio tags; and a subset of up to 12 sturgeon will be health evaluated using laparoscopy and venipuncture annually. The unintentional mortality of up to 2 shortnose sturgeon annually is permitted. Additionally researchers may also lethally collect up to 40 shortnose sturgeon eggs/larvae annually using buffer pads in order to document spawning. 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 or threatened species, and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: May 21, 2008. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-11884 Filed 5-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XH97 Endangered Species; File No. 1595-02 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of permit modification. SUMMARY: Notice is hereby given that Mr. Michael M. Hastings, University of Maine, 5717 Corbett Hall, Orono, ME 04469, has been issued a modification to scientific research Permit No. 1595-01. ADDRESSES: The modification and related documents are available for review upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9300; fax (978)281-9394. FOR FURTHER INFORMATION CONTACT: Brandy Belmas or Malcolm Mohead, (301)713-2289. SUPPLEMENTARY INFORMATION: On February 7, 2008, notice was published in the **Federal Register** (73 FR 7261) that a modification of Permit No. 1595, issued April 18, 2007 (72 FR 19469), had been requested by the above-named individual. The requested modification has been granted under the authority of 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 222-226). In addition to all research activities authorized under Permit No. 1595-01, this modification authorizes the:
(1)increase in the amount of annual take of shortnose sturgeon ( *Acipenser brevirostrum* ) from 100 to 200 fish;
(2)addition of D-net sampling as a method of shortnose sturgeon egg and larvae collection;
(3)addition of non-lethal blood sampling; and
(4)the appointment and removal of research personnel. This modification is valid through the expiration date of the original permit, March 31, 2012. Issuance of this modification, 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 or threatened species, and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: May 21, 2008. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-11883 Filed 5-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [OMB Control No. 9000-0144] Federal Acquisition Regulation; Information Collection; Payment by Electronic Fund Transfer AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0144). SUMMARY: Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation
(FAR)Secretariat will be submitting to the Office of Management and Budget
(OMB)a request to review and approve an extension of a currently approved information collection requirement concerning payment by electronic fund transfer. This OMB clearance currently expires on October 31, 2008. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. DATES: Submit comments on or before July 28, 2008. ADDRESSES: Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden should be submitted to the General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW, Room 4035, Washington, DC 20405. FOR FURTHER INFORMATION CONTACT Ms. Meredith Murphy, Contract Policy Division, GSA
(202)208-6925. SUPPLEMENTARY INFORMATION: A. Purpose The FAR requires certain information to be provided by contractors which would enable the Government to make payments under the contract by electronic fund transfer (EFT). The information necessary to make the EFT transaction is specified in clause 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, which the contractor is required to provide prior to award, and clause 52.232-34, Payment by Electronic Funds Transfer—Other than Central Contractor Registration, which requires EFT information to be provided as specified by the agency to enable payment by EFT. B. Annual Reporting Burden *Respondents:* 14,000. *Responses Per Respondent:* 10. *Annual Responses:* 140,000. *Hours Per Response:* .5. *Total Burden Hours:* 70,000. *OBTAINING COPIES OF PROPOSALS:* Requesters may obtain a copy of the information collection documents from the General Services Administration, FAR Secretariat (VPR), Room 4035, 1800 F Street, NW, Washington, DC 20405, telephone
(202)501-4755. Please cite OMB Control No. 9000-0144, Payment by Electronic Fund Transfer, in all correspondence. Dated: May 15, 2008. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E8-11445 Filed 5-27-08; 8:45 am] BILLING CODE 6820-EP-S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [OMB Control No. 9000-0013] Federal Acquisition Regulation; Information Collection; Cost or Pricing Data Requirements and Information Other Than Cost or Pricing Data AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Notice of request for an extension to an existing OMB clearance. SUMMARY: Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation
(FAR)Secretariat has submitted to the Office of Management and Budget
(OMB)a request to review and approve an extension of a currently approved information collection requirement concerning cost or pricing data requirements and information other than cost or pricing data. A request for public comments was published in the **Federal Register** at 72 FR 696140, on November 27, 2007. No comments were received. This OMB clearance expires on August 31, 2008. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. DATES: Submit comments on or before June 27, 2008. ADDRESSES: Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW., Room 4035, Washington, DC 20405. FOR FURTHER INFORMATION CONTACT: Edward Chambers, Contract Policy Division, GSA
(202)501-3221. SUPPLEMENTARY INFORMATION: A. Purpose The Truth in Negotiations Act requires the Government to obtain certified cost or pricing data under certain circumstances. Contractors may request an exemption from this requirement under certain conditions and provide other information instead. B. Annual Reporting Burden *Respondents:* 33,332. *Responses Per Respondent:* 6. *Total Responses* : 199,992. *Hours Per Response:* 50.51. *Total Burden Hours:* 10,101,684. *OBTAINING COPIES OF PROPOSALS:* Requesters may obtain a copy of the information collection documents from the General Services Administration, FAR Secretariat (VPR), Room 4035, 1800 F Street, NW., Washington, DC 20405, telephone
(202)501-4755. Please cite OMB Control No. 9000-0013, Cost or Pricing Data Requirements and Information Other Than Cost or Pricing Data, in all correspondence. Dated: May 16, 2008. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E8-11813 Filed 5-27-08; 8:45 am] BILLING CODE 6820-EP-S 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 July 28, 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: May 21, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Institute of Education Sciences *Type of Review:* New. *Title:* National Study on Alternate Assessments Teacher Survey. *Frequency:* Annually. *Affected Public:* State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* *Responses:* 200. *Burden Hours:* 445. *Abstract:* The National Study on Alternate Assessments
(NSAA)Teacher Survey will examine the use of alternate assessments based on alternate achievement standards by surveying a sample of teachers who use these assessments with students who have significant cognitive disabilities. The survey will study motivation and expectations, professional capacity and support, instructional resources, and opportunity to learn academic content. 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 3695. 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. E8-11870 Filed 5-27-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Filing May 20, 2008. Allegheny Electric Cooperative, Inc. Docket No. EL07-56-003 Borough of Chambersburg, Pennsylvania City and Towns of Hagerstown, Thurmont, and Williamsport, Maryland District of Columbia Office of the People's Counsel Illinois Citizens Utility Board Indiana Office of Utility Consumer Counsel Maryland Office of People's Counsel New Jersey Division of Rate Counsel Office of the Attorney General of Virginia, Division of Consumer Counsel Office of the Ohio Consumers' Counsel Old Dominion Electric Cooperative Pennsylvania Office of Consumer Advocate PJM Industrial Customer Coalition Southern Maryland Electric Cooperative, Inc. State of Delaware, Division of the Public Advocate Complainants v. PJM Interconnection L.L.C. Respondent Organization of PJM States, Inc. Docket No. EL07-58-003 District of Columbia Public Service Commission Indiana Utility Regulatory Commission Kentucky Public Service Commission Maryland Public Service Commission New Jersey Board of Public Utilities North Carolina Utilities Commission Pennsylvania Public Utility Commission Virginia State Corporation Commission Complainants v. PJM Interconnection, L.L.C. Respondent Take notice that on May 12, 2008, PJM Interconnection, L.L.C., filed Rate Schedule FERC No. 46, Market Monitoring Services Agreement and Rate Schedule FERC No. 47, Service Level Agreement, in compliance with the Commission's March 21, 2008 Order, *Allegheny Elec. Coop., Inc.* v. *PJM Interconnection L.L.C.,* 122 FERC ¶ 61,257, at P 26 & Ordering Para.
(2008)(March 21 Order). Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov* . Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. Comment Date: 5 p.m. Eastern Time on June 2, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-11833 Filed 5-27-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL03-230-004] Entergy Services, Inc.; Notice of Filing May 20, 2008. Take notice that on May 15, 2008, Entergy Services, Inc., filed a response to the Commission's April 15, 2008, Data Request. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov.* Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov,* using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov,* or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. *Comment Date:* 5 p.m. Eastern Time on June 5, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-11834 Filed 5-27-08; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-RCRA-2007-1127, FRL-8571-8] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Requirements for Generators, Transporters, and Waste Management Facilities Under the RCRA Hazardous Waste Manifest System (Renewal); EPA ICR No. 0801.16; OMB Control No. 2050-0039 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request
(ICR)has been forwarded to the Office of Management and Budget
(OMB)for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost. DATES: Additional comments may be submitted on or before June 27, 2008. ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-RCRA-2007-1127, to
(1)EPA, either online using *www.regulations.gov* (our preferred method), or by e-mail to *rcra-docket@epa.gov* , or by mail to: RCRA Docket (28221T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and
(2)OMB, by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Bryan Groce, Office of Solid Waste, (mail code 5302P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-308-8750; fax number: 703-308-8433; e-mail address: *groce.bryan@epa.gov.* SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 5, 2008 (73 FR 6721), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-RCRA-2007-1127, which is available for online viewing at *www.regulations.gov* , or in person viewing at the Resource Conservation and Recovery Act
(RCRA)Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is
(202)566-1744, and the telephone number for the RCRA Docket is
(202)566-0270. Use EPA's electronic docket and comment system at *www.regulations.gov* , to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to *www.regulations.gov* . *Title:* Requirements for Generators, Transporters, and Waste Management Facilities Under the RCRA Hazardous Waste Manifest System (Renewal). *ICR numbers:* EPA ICR No. 0801.16, OMB Control No. 2050-0039. *ICR Status:* This ICR is scheduled to expire on May 31, 2008. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* The Resource Conservation and Recovery Act (RCRA), as amended, establishes a national program to assure that hazardous waste management practices are conducted in a manner that is protective of human health and the environment. EPA's authority to require compliance with the manifest system stems primarily from RCRA section 3002(a)(5). This section mandates a hazardous waste manifest “system” to assure that all hazardous waste generated is designated for and arrives at the appropriate treatment, storage, and disposal facility. An essential part of this manifest system is the Uniform Hazardous Waste Manifest (Form 8700-22). The manifest is a tracking document that accompanies the waste from its generation site to its final disposition. The manifest lists the wastes that are being shipped and the final destination of the waste. The manifest system is a self-enforcing mechanism that requires generators, transporters, and owner/operators of treatment, storage, and disposal facilities to participate in hazardous waste tracking. In addition, the manifest provides information to transporters and waste management facility workers on the hazardous nature of the waste, identifies wastes so that they can be managed appropriately in the event of an accident, spill, or leak, and ensures that shipments of hazardous waste are managed properly and delivered to their designated facilities. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 1.8 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* Businesses and Farms that generate, transport or receive hazardous waste. *Estimated Number of Respondents:* 190,628. *Frequency of Response:* Each shipment. *Estimated Total Annual Hour Burden:* 3,743,122. *Estimated Total Annual Cost:* $109,934,365, which includes $106,862,075 annualized labor and $3,072,290 for capital or O&M costs. *Changes in the Estimates:* There is an increase of 478,131 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This increase is due to an increase in the projected number of responses from 1,762,276 previously to 2,074,900. Dated: May 21, 2008. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E8-11856 Filed 5-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2008-0118; FRL-8572-3] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Determine Percentage of High Evaporative Emissions Vehicles in On-Road Fleet, EPA ICR Number 2292.01, OMB Control Number 2060-NEW AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request
(ICR)has been forwarded to the Office of Management and Budget
(OMB)for review and approval. This is a request for a new collection. This ICR describes the nature of the information collection and its estimated burden and cost. DATES: Additional comments may be submitted on or before June 27, 2008. ADDRESSES: Submit your comments, referencing docket ID number EPA-HQ-OAR-2008-0118, to
(1)EPA online using *www.regulations.gov* (our preferred method), by e-mail to *a-and-r-docket@epa.gov* , or by mail to: EPA Docket Center, Environmental Protection Agency, Air and Radiation Docket and Information Center, Mail Code 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and
(2)OMB at: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Constance Hart, Assessment and Standards Division, Office of Transportation and Air Quality, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number:
(734)214-4340; fax number:
(734)214-4939; e-mail address: *hart.connie@epa.gov.* SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 14, 2008 (73 FR 8661), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2008-0118, which is available for public viewing at the Air Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. Use EPA's electronic docket and comment system at *www.regulations.gov* , to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to *www.regulations.gov* . *Title:* Determine Percentage of High Evaporative Emissions Vehicles in On-road Fleet. *ICR Number:* EPA ICR No. 2292.01, OMB Control No. 2060-NEW. *ICR Status:* This ICR is for a new information collection activity. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* In response to recommendations from the National Research Council of the National Academy of Sciences, EPA is initiating a systematic data collection to estimate the fraction of light-duty vehicles with high levels of evaporative emissions. Data to be collected include vehicle type, recent repair history and “in-use” or “real-world” evaporative emission rates. The collection is a test program, to be conducted by the Office of Transportation and Air Quality
(OTAQ)in the Office of Air and Radiation (OAR). This study will combine novel, newly developed test procedures with statistical survey design to estimate the number of vehicles with high evaporative emissions. The new procedures will be developed in a pilot study that will precede the actual test program. Development of new test procedures employing new technology and test methods promises to substantially reduce the cost of evaporative emissions measurement as well as improve the accuracy of these estimates. The test program itself will be conducted in Region 6, and participation in the program shall be voluntary. The pilot program shall be conducted in EPA Region 8, and participation in it shall also be voluntary. Evaporative emissions will be measured using a variety of methods that will include Remote Sensing, an infra-red camera specifically designed to detect fugitive hydrocarbon emissions and a hydrocarbon sniffer designed for automotive applications. Remote sensing data will be collected prior to a standard I/M test as the vehicle approaches the facility. Those owners solicited that agree to participate in the program shall be provided with a rental car and their vehicle immediately subjected to the test protocol outlined below as resources permit. Following quality-assurance and analysis, the data will be stored in OTAQ's Mobile Source Observation Database. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 2 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* Private individuals. *Estimated Number of Respondents:* 2000 . *Frequency of Response:* 1. *Estimated Total Annual Hour Burden:* 3530. *Estimated Total Annual Cost:* $91,533, includes $0 annualized capital or O&M costs. *Changes in the Estimates:* This is a new collection so there is no change from a previously approved burden. Dated: May 21, 2008. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E8-11865 Filed 5-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-RCRA-2007-1116, FRL-8571-9] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Facility Ground-Water Monitoring Requirements (Renewal); EPA ICR No. 0959.13; OMB Control No. 2050-0033 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request
(ICR)has been forwarded to the Office of Management and Budget
(OMB)for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost. DATES: Additional comments may be submitted on or before June 27, 2008. ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-RCRA-2007-1116, to
(1)EPA, either online using *http://www.regulations.gov* (our preferred method), or by e-mail to *rcra-docket@epa.gov,* or by mail to: RCRA Docket (28221T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and
(2)OMB, by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: William Schoenborn, Office of Solid Waste, (mail code 5303P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-308-8483; fax number: 703-308-8617; e-mail address: *schoenborn.william@epa.gov* . SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On January 25, 2008 (73 *FR* 4554), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received one comment during the comment period, which is addressed in the ICR. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-RCRA-2007-1116, which is available for online viewing at *http://www.regulations.gov* , or in person viewing at the Resource Conservation and Recovery Act
(RCRA)Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is
(202)566-1744, and the telephone number for the RCRA Docket is
(202)566-0270. Use EPA's electronic docket and comment system at *http://www.regulations.gov,* to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *http://www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to *http://www.regulations.gov* . *Title:* Facility Ground-Water Monitoring Requirements (Renewal). *ICR numbers:* EPA ICR No. 0959.13, OMB Control No. 2050-0033. *ICR Status:* This ICR is scheduled to expire on May 31, 2008. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* This ICR examines the ground-water monitoring standards for permitted and interim status facilities at 40 CFR parts 264 and 265, as specified. The ground-water monitoring requirements for regulated units follow a tiered approach whereby releases of hazardous contaminants are first detected (detection monitoring), then confirmed (compliance monitoring), and if necessary, are required to be cleaned up (corrective action). Each of these tiers requires collection and analysis of ground-water samples. Owners or operators that conduct ground-water monitoring are required to report information to the oversight agencies on releases of contaminants and to maintain records of ground-water monitoring data at their facilities. The goal of the ground-water monitoring program is to prevent and quickly detect releases of hazardous contaminants to groundwater, and to establish a program whereby any contamination is expeditiously cleaned up as necessary to protect human health and environment. Subtitle C of the Resource Conservation and Recovery Act of 1976
(RCRA)creates a comprehensive program for the safe management of hazardous waste. Section 3004 of RCRA requires owners and operators of facilities that treat, store, or dispose of hazardous waste to comply with standards established by EPA that are to protect the environment. Section 3005 provides for implementation of these standards under permits issued to owners and operators by EPA or authorized States. Section 3005 also allows owners and operators of facilities in existence when the regulations came into effect to comply with applicable notice requirements to operate until a permit is issued or denied. This statutory authorization to operate prior to permit determination is commonly known as “interim status.” Owners and operators of interim status facilities also must comply with standards set under Section 3004. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 123 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* Business or other for-profit; and State, local, or Tribal governments. *Estimated Number of Respondents:* 989. *Frequency of Response:* quarterly, semi-annually, and annually. *Estimated Total Annual Hour Burden:* 121,577. *Estimated Total Annual Cost:* $27,818,073, includes $4,628,246 annualized labor and $23,189,829 capital or O&M costs. *Changes in the Estimates:* There is an increase of 26,380 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. The reason for the increase in hourly burden is an increase in the universe from 824 for the previous ICR to 989 for this renewal, which can be explained by improvements in the RCRAInfo database, allowing for more accurate counts. Dated: May 21, 2008. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E8-11888 Filed 5-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-ORD-2008-0204; FRL-8572-4] Board of Scientific Counselors, Land Research Program Mid-Cycle Review Meetings—Spring 2008 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency, Office of Research and Development (ORD), gives notice of one meeting of the Board of Scientific Counselors
(BOSC)Land Mid-Cycle Subcommittee. DATES: The meeting (a teleconference call) will be held on Tuesday, June 24, from 12 p.m. to 2 p.m. EDT. The meetings may adjourn early if all business is finished. Requests for the draft agenda or for making oral presentations at the meeting will be accepted up to 1 business day before the meeting. ADDRESSES: Participation in the conference call will be by teleconference only—meeting rooms will not be used. Members of the public may obtain the call-in number and access code for the call from Heather Drumm, whose contact information is listed under the FOR FURTHER INFORMATION CONTACT section of this notice. Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2008-0204, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail:* Send comments by electronic mail (e-mail) to: *ORD.Docket@epa.gov,* Attention Docket ID No. EPA-HQ-ORD-2008-0204. • *Fax:* Fax comments to:
(202)566-0224, Attention Docket ID No. EPA-HQ-ORD-2008-0204. • *Mail:* Send comments by mail to: Board of Scientific Counselors, Land Mid-Cycle Subcommittee Meeting—Spring 2008 Docket, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-ORD-2008-0204. • *Hand Delivery or Courier.* Deliver comments to: EPA Docket Center (EPA/DC), Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. EPA-HQ-ORD-2008-0204. Note: this is not a mailing address. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-ORD-2008-0204. 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. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *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 Board of Scientific Counselors, Land Mid-Cycle Subcommittee Meeting—Spring 2008 Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the ORD Docket is
(202)566-1752. FOR FURTHER INFORMATION CONTACT: The Designated Federal Officer via mail at: Heather Drumm, Mail Drop 8104-R, Office of Science Policy, Office of Research and Development, Environmental Protection Agency, 1300 Pennsylvania Ave. NW., Washington, DC 20460; via phone/voice mail at:
(202)564-8239; via fax at:
(202)565-2911; or via e-mail at: *drumm.heather@epa.gov.* SUPPLEMENTARY INFORMATION: General Information Any member of the public interested in receiving a draft BOSC agenda or making a presentation at the meeting may contact Heather Drumm, the Designated Federal Officer, via any of the contact methods listed in the FOR FURTHER INFORMATION CONTACT section above. In general, each individual making an oral presentation will be limited to a total of three minutes. Proposed agenda items for the meeting include, but are not limited to finalizing the subcommittee's draft report and discussing the rating component for the Land research program. The meeting is open to the public. *Information on Services for Individuals with Disabilities:* For information on access or services for individuals with disabilities, please contact Heather Drumm at
(202)564-8239 or *drumm.heather@epa.gov.* To request accommodation of a disability, please contact Heather Drumm, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. Dated: May 15, 2008. Jeff Morris, Acting Director, Office of Science Policy. [FR Doc. E8-11874 Filed 5-27-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 *et seq.* ) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at *www.ffiec.gov/nic/* . Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 20, 2008. **A. Federal Reserve Bank of Richmond** (A. Linwood Gill, III, Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528: *1. Blue Ridge Bank Holdings, Inc., Asheville, North Carolina;* to become a bank holding company through the retention of 100 percent of the voting securities of Blue Ridge Savings Bank, Incorporated, Asheville, North Carolina. Board of Governors of the Federal Reserve System, May 22, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. E8-11845 Filed 5-27-08; 8:45 am] BILLING CODE 6210-01-S GENERAL SERVICES ADMINISTRATION [OMB Control No. 3090-0027] General Services Administration Acquisition Regulation; Information Collection; Contract Administration, Quality Assurance (GSAR Parts 542 and 546; GSA Form 1678, and GSA Form 308) AGENCY: Office of the Chief Acquisition Officer, GSA. ACTION: Notice of request for comments regarding a renewal to an existing OMB clearance. SUMMARY: Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the General Services Administration will be submitting to the Office of Management and Budget
(OMB)a request to review and approve an extension of a currently approved information collection requirement regarding contract administration, and quality assurance. The clearance currently expires on July 31, 2008. Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate and based on valid assumptions and methodology; and ways to enhance the quality, utility, and clarity of the information to be collected. DATES: Submit comments on or before: July 28, 2008. FOR FURTHER INFORMATION CONTACT: Ms. Jeritta Parnell, Procurement Analyst, Contract Policy Division, at telephone
(202)501-4082 or via e-mail to *jeritta.parnell@gsa.gov* . ADDRESSES: Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the Regulatory Secretariat (VPR), General Services Administration, Room 4035, 1800 F Street, NW., Washington, DC 20405. Please cite OMB Control No. 3090-0027, Contract Administration, Quality Assurance (GSAR Parts 542 and 546; GSA Form 1678, and GSA Form 308), in all correspondence. SUPPLEMENTARY INFORMATION: A. Purpose Under certain contracts, because of reliance on contractor inspection in lieu of Government inspection, GSA’s Federal Supply Service
(FSS)requires documentation from its contractors to effectively monitor contractor performance and ensure that it will be able to take timely action should that performance be deficient. B. Annual Reporting Burden *Respondents* : 4,604 *Total Responses* : 116,869 *Total Burden Hours* : 7,830 *Obtaining Copies of Proposals* : Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4035, Washington, DC 20405, telephone
(202)501-4755. Please cite OMB Control No. 3090-0027, Contract Administration, Quality Assurance (GSAR Parts 542 and 546; GSA Form 1678, and GSA Form 308), in all correspondence. Dated: May 20, 2008 Al Matera, Director,Office of Acquisition Policy. [FR Doc. E8-11849 Filed 5-27-08; 8:45 am] BILLING CODE 6820-61-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention National Center for Injury Prevention and Control/Initial Review Group, (NCIPC/IRG) In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting for the aforementioned review group: *Times and Date:* 2 p.m.-2:30 p.m., June 18, 2008 (Open). 2:30 p.m.-4 p.m., June 18, 2008 (Closed). *Place:* CDC, Chamblee Campus, Building 106, 4770 Buford Highway, Atlanta, GA 30341. Toll Free: 888-793-2154, Participant Passcode: 4424802. *Status:* Portions of the meetings will be closed to the public in accordance with provisions set forth in Section 552b(c)(4) and (6), Title 5, U.S.C., and the Determination of the Director, Management Analysis and Services Office, CDC, pursuant to Section 10(d) of Public Law 92-463. *Purpose:* This group is charged with providing advice and guidance to the Secretary, Department of Health and Human Services, and the Director, CDC, concerning the scientific and technical merit of grant and cooperative agreement applications received from academic institutions and other public and private profit and nonprofit organizations, including State and local government agencies, to conduct specific injury research that focuses on prevention and control. *Matters To Be Discussed:* The meeting will include the discussion and voting of the peer reviews conducted in response to Fiscal Year 2008 Requests for Applications related to the following individual research announcements: RFA-CE-08-001, Youth Violence Prevention through Community-Level Change (U49); RFA-CE-08-002, Grants for Traumatic Injury Biomechanics and their Severity (R01); RFA-CE-08-003, Research for Preventing Violence and Violence-Related Injury (R01); RFA-CE-08-004, Translation Research to prevent Motor Vehicle-related crashes and Injuries to Teen Drivers and their Passengers (R01); RFA-CE-08-005, Dissertation Grant Awards for Doctoral Candidates for Violence-Related Injury Prevention Research in Minority Communities (R36); RFA-CE-08-006, Feasibility of Acute Concussion Management in the Emergency Dept (U49); RFA-CE-08-007, Assessing the Effects of Interpersonal Violence Prevention on Suicide (U49); RFA-TS-08-001, Program of Exposure-Dose Reconstruction and Computational Methods to Quantify Exposures to Hazardous Substances (U01); and RFA-EH-08-001, Program to Assess Health Effects Associated with Exposures to Volcanic Emissions and Environmental Air Pollutants (P78). Agenda items are subject to change as priorities dictate. *Contact Person for More Information:* Jane Suen, Dr. P.H., M.S., Executive Secretary, NCIPC IRG, CDC, 4770 Buford Highway, NE., M/S F-62, Atlanta, Georgia 30341, telephone 770/488-4281. The Director, Management Analysis and Services Office has been delegated the authority to sign **Federal Register** notices pertaining to announcements of meetings and other committee management activities for both CDC and the Agency for Toxic Substances and Disease Registry. Dated: May 19, 2008. Elaine L. Baker, Director, Management Analysis and Services Office, Centers for Disease Control and Prevention. [FR Doc. E8-11720 Filed 5-27-08; 8:45 am] BILLING CODE 4163-18-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2008-N-0280] Potential for a Registry of Breast Cancer Treatment Using Thermal Ablation Devices; Request for Comments AGENCY: Food and Drug Administration, HHS. ACTION: Notice; request for comments. SUMMARY: The Food and Drug Administration
(FDA)is requesting comments on whether a registry could facilitate standardization of feasibility trials studying local treatment of small breast cancers with different thermal ablation devices and therapies (i.e. cryoablation, focused ultrasound, interstitial laser, microwave, radiofrequency ablation). FDA is specifically interested in understanding how breast cancer ablation feasibility trials can be constructed so that there exists standardized evaluation of tissue biopsy pathology, selection of tumors amenable to ablation, image guidance for ablation, post-ablation imaging and assessment, and tissue pathology of ablated specimens. The agency seeks to facilitate its understanding of local treatment for breast cancer using thermal ablation devices. DATES: Submit written or electronic comments by November 24, 2008. ADDRESSES: Submit written comments concerning this document to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to *http://www.regulations.gov* . To ensure timelier processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FOR FURTHER INFORMATION CONTACT: Binita Ashar or Long Chen, Center for Devices and Radiological Health (HFZ-500), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850, 240-276-3600, e-mail: *binita.ashar@fda.hhs.gov* or *long.chen@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: I. Background On July 24, 2003, FDA's General and Plastic Surgery Devices Advisory Panel discussed issues pertaining to the use of thermal ablation devices to percutaneously or non-invasively treat breast cancer by causing coagulation necrosis of the tumor. The panel discussed clinical trial issues pertaining to the local treatment of breast cancer using thermal ablation versus operative resection. The panel addressed the following topics:
(1)The level of evidence that would be required, in initial studies of treatment of primary breast cancer by minimally invasive ablation followed by immediate lumpectomy for pathologic examination of margins (i.e. ablate and resect studies), to permit initiation of studies that use minimally invasive ablation to definitively treat the cancer without followup resection (i.e., ablate and follow studies);
(2)the type of pivotal study that could demonstrate the efficacy of a thermal ablation device to provide local breast cancer treatment in lieu of lumpectomy;
(3)how to mitigate concerns regarding the effect of thermal ablation on surrounding breast tissue and radio/chemosensitivity; and
(4)the limitations of breast imaging and its effect on patient selection and treatment followup. This panel's discussion of these issues has significantly affected FDA's regulation of these technologies. Investigators studying the feasibility of thermal ablation devices for the treatment of breast cancers have refined their techniques. In fact, there have been small studies demonstrating nearly 100 percent ablation accuracy. Unfortunately, the lack of uniformity among different feasibility study protocols has resulted in various study results that cannot be easily compared. Uniformity with respect to standardized evaluation of tissue biopsy pathology, selection of tumors amenable to ablation, image guidance for ablation, timing of ablation (with respect to lymph node biopsy, radiation therapy and chemotherapy), post-ablation imaging and assessment, and tissue pathology of ablated specimens would facilitate the assembly of results across both studies and ablation modalities and better allow the formulation of science-based hypotheses regarding best practices for breast cancer ablation therapy. The purpose of this critical path effort is to motivate the breast cancer ablation industry to standardize its feasibility study protocols so that data emerging are comparable in all respects except for the specific ablation modality. Such data could be used to hypothesize best practices and potentially serve as the basis for larger prospective clinical trials. II. Registry Development and Implementation FDA seeks comments on the possible role that a registry of breast cancer treatment using thermal ablation devices could have on advancing the development of thermal ablation devices. FDA is interested specifically on the role of such a registry on establishing standard imaging, pathological evaluation, and ablation timing protocols. In addition, FDA is interested in receiving comments on the feasibility, utility, benefits, and costs involved in the development and implementation of such standardization and on FDA's role in such a process. A. Development of a Registry of Breast Cancer Treatment Using Thermal Ablation Devices The agency believes that a registry for breast cancer treatments using thermal ablation devices would motivate the development and implementation of standardized protocols for pathology and imaging assessments for diagnosis and treatment of breast cancers, and followup of thermally ablated breast cancers. In addition, there would be a central place for information regarding patient selection factors, device attributes, device treatment settings and strategy, and device use integration into the multimodality treatment plan for patients with breast cancer. The patient selection, device attributes, device treatment settings and strategy, and patient treatment regimen information could include the following: Patient Selection Demographics; Tumor imaging characteristics; Tumor size; Tumor nodal status; Tumor metastases; Tumor histology; and Tumor markers Device Attributes Manufacturer, make, and model; and Unique device attributes (e.g., size, length, configuration, software version) Device Treatment Settings and Strategy Thermal ablation modality; Tumor imaging modality for treatment localization; Treatment settings used to achieve ablation (relevant to modality used); and Treatment strategy (e.g. method for overlapping treatments, target ablation volume, method of catheter positioning) Treatment Regimen Care path (i.e. timing of ablation with respect to chemotherapy, operative therapy and/or radiation therapy); Device application (e.g. time, target temperature, impedance, temperature achieved); Anesthesia; Chemotherapy treatment; Operative treatment; Radiation treatment; and Image guidance. Patient Followup Duration; Imaging (e.g. MRI field, name of contrast agent, dose, pulse sequence used, post processing); Pathology assessment protocol of the ablated specimen; Adverse events; and Long term patient outcomes (i.e. overall survival, disease free survival, local recurrence). B. Primary Benefits of Implementing a Registry of Breast Cancer Treatment Using Thermal Ablation Devices We believe that the registry could be used to share experience. Practitioners could then refine best practices for imaging and pathologic assessment of breast cancers treated using thermal ablation. Such uniformity could identify conditions under which imaging might be a good surrogate for pathology and might serve to identify genotypes of responders versus nonresponders. This information could help our understanding of the safety and effectiveness associated with thermal ablation device use for breast cancer treatment and could better inform the decisions made by study investigators who are considering expanding their study into pivotal trials. C. Ancillary Benefits There may also be secondary or ancillary benefits from the use of a registry for thermal device ablation treatments for breast cancer. These benefits include improved data management across the industry of thermal ablation devices and associated healthcare cost savings. A registry could also facilitate the automatic capture of important information about the learning curve associated with thermal device use and patient factors affecting thermal ablation device use. This registry could also be used to help validate imaging findings with long term pathological assessments and patient outcomes. III. Agency Request for Information In light of the potential benefits highlighted previously, FDA is interested in gathering information about the feasibility, utility, benefits, and costs associated with the development and implementation of a registry of breast cancer treatment using thermal ablation devices. We are also interested in obtaining information about existing registries that may be modified to include breast cancer thermal ablation information and parties that would be interested in collaborating with the agency on this effort. Therefore, we invite comments and available data on the following questions: Stakeholder Role and Involvement for Developing a Registry of Breast Cancer Treatment Using Thermal Ablation Devices 1. What should be the role, if any, of FDA in the development and implementation of a registry for breast cancer treatments using thermal ablation devices? 2. What are the incentives for establishing uniform, standardized imaging and pathological assessment techniques for such a registry? 3. What are the barriers for establishing a registry for breast cancer thermal ablation treatments? What suggestions would you have for overcoming these barriers? 4. Are there academic groups, industry groups, professional societies, or other organizations that would be interested in partnering with FDA and/or other entities to develop or implement a registry for breast cancer treatments using thermal ablation devices? 5. What existing databases could be feasibly modified to serve as the repository of a registry for breast cancer treatments using thermal ablation and meet the needs of all involved stakeholders? Developing a Registry of Breast Cancer Treatments Using Thermal Ablation Devices 6. How should a registry for breast cancer treatments using thermal ablation devices be developed? What data analysis methods need to be considered when developing the registry data set? 7. Have you implemented some form of a registry for breast cancer thermal ablation treatments already? Please describe the extent of implementation, and type of data being collected. 8. Should a registry be considered for all thermal ablation device applications for cancer treatment? If yes, why? If not, what thermal ablation device uses should be considered for data capture in a registry? 9. What solutions have you developed or do you think could be developed for addressing the various technical use, pathological, imaging and other treatment assessment problems that might arise in developing and implementing a registry for breast cancer or other cancer treatments using thermal ablation devices? Criteria for Data Inclusion from Breast Cancer Treatments Using Thermal Ablation Devices 10. What is the minimum data set that should be associated with a device use session? Would this minimum data set differ for different devices? If so, how? 11. How would the data in the minimum data set be used to improve patient safety? What other data would improve patient safety? 12. How and by whom should the registry and its associated minimum data set be obtained and maintained? 13. What information should be accessible by the public, healthcare providers, professional organizations, FDA, other Federal Agencies, the industry, and individual manufacturers? How would the information be accessible? 14. What type of proprietary information needs to be excluded? 15. Should data from all thermal ablation device investigators be included or should the data be limited to include only investigators that have received a certain level of training for device use? Registry Benefits and Costs 16. From your perspective, how could a registry be best used among competing manufacturers of similar product lines? What obstacles do you see in using such an approach for justifying marketing claims? 17. From your perspective, should data previously collected or currently being collected be incorporated by investigators studying the effects of thermal ablation treatment for breast cancer be included in the registry? If so, why, and under what circumstances? If not, why not? 18. From your perspective, what specific public health and patient safety benefits could be gained from having a standardized registry for breast cancer treatments using thermal ablation devices? In addition, how would such a system contribute to meeting device recall and adverse event reporting requirements, and to reducing medical error? Please submit detailed data to support benefits you identify. 19. From your perspective, what are the startup costs measured in time and other resources associated with the development, implementation, and use of a registry for breast cancer treatments using thermal ablation devices? Please submit detailed data to support these cost estimates. 20. If you have already implemented a form of a registry for breast or other cancer treatments using thermal ablation devices, what investments in equipment, training, and other human and physical resources were necessary to implement the use of such a database? What factors influenced your decision to implement such a system? 21. From your perspective, what are the obstacles to implementing or using a registry for breast cancer treatments using thermal ablation devices? IV. Comments Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this document. Submit a single copy of electronic copies or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at *http://www.regulations.gov* . V. References The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified the Web site address, but is not responsible for subsequent changes to the Web site after this document publishes in the **Federal Register** .) 1. Panel transcript and questions regarding percutaneous and thermal ablation treatment of breast cancer in lieu of operative resection (see *http://www.fda.gov/OHRMS/DOCKETS/AC/03/questions/3973q1_Breast%20ca%20Questions.htm* and *http://www.fda.gov/OHRMS/DOCKETS/AC/03/transcripts/3973t1.htm* . 2. Gliklich, R.E., N.A Dreyer, eds. “Registries for Evaluating Patient Outcomes: A User's Guide.” (Prepared by Outcome DEcIDE Center [Outcome Sciences, Inc. dba Outcome] under Contract No. HHSA29020050035I TO1.) AHRQ Publication No. 07-EHC001-1. Rockville, MD: Agency for Healthcare Research and Quality. April 2007. 3. Goldberg, S.N., et al. “Image Guided Tumor Ablation: Proposal for Standardization of Terms and Reporting Criteria,” *Radiology* 2003; 228: 335-345. 4. Goldberg, S.N., et al. “Image Guided Tumor Ablation: Standardization of Terminology and Reporting Criteria,” *Journal of Vascular and Interventional Radiology* 2005; 16: 765-778. Dated: May 19, 2008. Jeffrey Shuren, Assistant Commissioner for Policy and Planning. [FR Doc. E8-11899 Filed 5-27-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Office of the Secretary [Docket No. DHS-2008-0050] Data Privacy and Integrity Advisory Committee AGENCY: Office of the Secretary, DHS. ACTION: Notice of Federal Advisory Committee Meeting. SUMMARY: The Data Privacy and Integrity Advisory Committee will meet on June 11, 2008 in Arlington, VA. This meeting will be open to the public. DATES: The Data Privacy and Integrity Advisory Committee will meet on Wednesday, June 11, 2008 from 9 a.m. to 12 p.m. and 1:30 p.m. to 4 p.m. Please note that the meeting may close early if the committee has completed its business. ADDRESSES: The meeting will be held in Galleries I and II of the Hilton Arlington Hotel, 950 North Stafford Street, Arlington, Virginia 22203. Send written materials, comments, and requests to make oral presentations to Ken Hunt, Executive Director, Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528. Written materials, comments, and requests to make oral presentations at the meeting should reach the contact person listed by June 5, 2008. Requests to have a copy of your material distributed to each member of the committee prior to the meeting should reach the persons listed under FOR FURTHER INFORMATION CONTACT , below, by June 5, 2008. Persons wishing to make comments or who are unable to attend or speak at the meeting may submit comments at any time. All submissions received must include the docket number: DHS-2008-0050 and may be submitted by any one of the following methods: • *Federal Rulemaking Portal: http://www.regulations.gov.* Follow instructions for submitting comments on the Web site. • *E-mail: PrivacyCommittee@dhs.gov.* Include docket number in the subject line of the message. • *Fax:*
(866)466-5370. • *Mail:* Mr. Ken Hunt, Executive Director, Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528. *Instructions:* All submissions received must include the words “Department of Homeland Security Data Privacy and Integrity Advisory Committee” and the docket number: DHS-2008-0050. Comments received will also be posted without alteration at *http://www.regulations.gov,* including any personal information provided. *Docket:* For access to the docket to read background documents or comments received by the DHS Data Privacy and Integrity Committee, go to *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy Officer, or Ken Hunt, Executive Director, Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528, by telephone
(703)235-0780 or by fax
(703)235-0442, or by e-mail *PrivacyCommittee@dhs.gov.* SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). During the meeting, the DHS Chief Privacy Officer will provide an update on the activities of the DHS Privacy Office. In the morning session, invited speakers will discuss the Privacy and Civil Liberties Oversight Board and the DHS Office for Civil Rights and Civil Liberties. The Subcommittees will update the Committee on their current work. In the afternoon session, speakers will discuss privacy protections and concerns within E-Verification. A tentative agenda is posted on the Privacy Advisory Committee Web site at *http://www.dhs.gov/privacy.* At the discretion of the Chair, members of the public may make brief (i.e., no more than three minutes) oral presentations from 3:30 p.m.—4 p.m. If you would like to make an oral presentation at the meeting, please register in advance or sign up on the day of the meeting. If you would like a copy of your material(s) distributed to each member of the committee in advance, please submit 22 copies to Ken Hunt by June 5, 2008. Information on Services for Individuals With Disabilities For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ken Hunt as soon as possible. Dated: May 20, 2008. Hugo Teufel, Chief Privacy Officer. [FR Doc. E8-11875 Filed 5-27-08; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF HOMELAND SECURITY U.S. Citizenship and Immigration Services Agency Information Collection Activities: Form N-300, Extension of a Currently Approved Information Collection; Comment Request ACTION: 30-Day Notice of Information Collection Under Review: Form N-300, Application to File Declaration of Intention; OMB Control No. 1615-0078. The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget
(OMB)for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the **Federal Register** on March 3, 2008, at 73 FR 11431 allowing for a 60-day public comment period. USCIS did not receive any comments for this information collection. The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 27, 2008. This process is conducted in accordance with 5 CFR 1320.10. Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget
(OMB)USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at *rfs.regs@dhs.gov,* and to the OMB USCIS Desk Officer via facsimile at 202-395-6974 or via email at *kastrich@omb.eop.gov.* When submitting comments by e-mail please make sure to add OMB Control Number 1615-0078. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, *e.g.* , permitting electronic submission of responses. *Overview of this information collection:*
(1)*Type of Information Collection:* Extension of a currently approved information collection.
(2)*Title of the Form/Collection:* Application to File Declaration of Intention.
(3)*Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection:* Form N-300. U.S. Citizenship and Immigration Services.
(4)*Affected public who will be asked or required to respond, as well as a brief abstract: Primary:* Individuals or Households. This form will be used by permanent residents to file a declaration of intention to become a citizen of the United States. This collection is also used to satisfy documentary requirements for those seeking to work in certain occupations or professions, or to obtain various licenses.
(5)*An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond:* 433 responses at 45 minutes (.75) per response.
(6)*An estimate of the total public burden (in hours) associated with the collection:* 325 annual burden hours. If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS website at: *http://www.regulations.gov/search/index.jsp.* If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529,
(202)272-8377. Dated: May 20, 2008. Stephen Tarragon, Acting Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security. [FR Doc. E8-11819 Filed 5-27-08; 8:45 am] BILLING CODE 9111-97-P DEPARTMENT OF HOMELAND SECURITY U.S. Citizenship and Immigration Services [CIS No. 2445-08; DHS Docket No. USCIS-2008-0004] RIN 1615-ZA68 Submission of Revised Form I-821, Application for Temporary Protected Status AGENCY: U.S. Citizenship and Immigration Services (USCIS), DHS. ACTION: Notice. SUMMARY: This Notice announces that effective June 27, 2008 only Form I-821, Application for Temporary Protected Status with a revision date of October 17, 2007, will be accepted for filing applications for Temporary Protected Status (TPS). The Form I-821, with the October 17, 2007, revision date can be found on the USCIS Web site at *http://www.uscis.gov.* Accordingly, beginning on June 27, 2008, if you are a national of a country currently designated for Temporary Protected Status
(TPS)(or an alien with no nationality who last habitually resided in a country currently designated for TPS), you must submit your application for initial registration or re-registration using the Form I-821 with the October 17, 2007, revision date. Individuals who have already filed for the most recent TPS registration or re-registration periods effective for their specific countries do not need to submit this revised Form I-821 until the next re-registration period for their country's TPS designation. DATES: This Notice is effective June 27, 2008. After June 27, 2008, only Form I-821 with the October 17, 2007, revision date will be accepted by USCIS. FOR FURTHER INFORMATION CONTACT: Shelly Sweeney, Status and Family Branch, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone
(202)272-1533. This is not a toll-free call. Note: The phone number provided here is solely for questions regarding this notice and the information contained herein. It is not for individual case status inquiries. Applicants seeking information about the status of their individual case can check Case Status Online available on the USCIS Web site at *http://www.uscis.gov,* or applicants may call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833). SUPPLEMENTARY INFORMATION: What is Form I-821? Form I-821 is an application used by aliens to apply for TPS for the first time, as well as by aliens applying to re-register for TPS. The current version of Form I-821 can be found at *http://www.uscis.gov.* What version of the Form I-821 will USCIS accept? Any alien who files an initial application or re-registration application for TPS on or after June 27, 2008, must submit Form I-821 with the October 17, 2007, revision date. Why will USCIS not accept prior versions of Form I-821? The Form I-821 with the October 17, 2007, revision date contains additional questions regarding the applicant's eligibility for TPS that are not contained on the Form I-821 with prior revision dates. As such, previous versions of Form I-821 will no longer be accepted by USCIS. What will happen if you file previous versions of Form I-821? Beginning on June 27, 2008, USCIS will no longer accept any versions of Form I-821 dated prior to the October 17, 2007, revision date. TPS applications received containing previous versions of Form I-821 will be rejected and returned to the applicant, with accompanying fees for resubmission with the proper version of Form I-821. Where should you file the revised Form I-821? For filing instructions, refer to the most recently published **Federal Register** notice for the specific country designation under which you are applying. You may also check the USCIS Web site at *http://www.uscis.gov* or contact the USCIS National Customer Service Center at 1-800-375-5283. Can I electronically file the revised form I-821? If you are filing for re-registration during the re-registration period for your country and do not need to submit supporting documentation with your application, you may file your application electronically. To file your application electronically, follow the directions on the USCIS Web site at *http://www.uscis.gov.* You may not file your application electronically if you are filing for TPS for the first time. Paperwork Reduction Act The use of the revised Form I-821 has been approved by the Office of Management and Budget under the Paperwork Reduction Act. The OMB Control Number for this collection is 1615-0043. Dated: May 9, 2008. Jonathan R. Scharfen, Acting Director, U.S. Citizenship and Immigration Services. [FR Doc. E8-11816 Filed 5-27-08; 8:45 am] BILLING CODE 9111-97-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [FWS-R3-ES-2008-N0078; 30120-1113-0000-F6] Endangered and Threatened Species Permit Applications AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of availability of permit applications; request for comments. SUMMARY: The following applicants have applied for permits to conduct certain activities with endangered species. DATES: We must receive written comments on or before June 27, 2008. ADDRESSES: Regional Director, Attn: Peter Fasbender, U.S. Fish and Wildlife Service, Ecological Services, 1 Federal Drive, Fort Snelling, MN 55111-4056; electronic mail, *permitsR3ES@fws.gov.* FOR FURTHER INFORMATION CONTACT: Peter Fasbender
(612)713-5343. SUPPLEMENTARY INFORMATION: Endangered Species The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ) (Act), with some exceptions, prohibits activities affecting endangered species unless authorized by a permit from the Service. Before issuing a permit, we invite public comment on it. Accordingly, we invite public comment on the following applicants' permit applications for certain activities with endangered species authorized by section 10(a)(1)(A) of the Act and the regulations governing the taking of endangered species (50 CFR part17). Submit your written data, comments, or requests for copies of the complete applications to the address shown in ADDRESSES . Permit Number TE089872 *Applicant:* Macalester College, St. Paul, Minnesota. The applicant requests a permit renewal to take Higgins' eye pearlymussel ( *Lampsilis higginsi* ) and winged mapleleaf ( *Quadrula fragosa* ) in Minnesota and Wisconsin. This permit renewal is requested to continue long-term mussel and habitat monitoring in the St. Croix River aimed at enhancement of survival of the species in the wild. Permit Number TE125333-1 *Applicant:* Francesca Cuthbert, University of Minnesota, St. Paul, Minnesota. The applicant requests a permit renewal to take piping plover ( *Charadrius melodus* ) in Michigan and Wisconsin. The research entails capture and marking of piping plovers, erecting nesting enclosures to improve nesting success, and salvaging eggs and nestlings to enhance the survival of the species in the wild. Permit Number TE130900 Applicant: EnviroScience, Incorporated, Stow, Ohio. The applicant requests a permit renewal to take (collect) listed fish and mussel species throughout Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. The following species may be collected and temporarily held in the course of surveys and habitat studies to determine presence or absence of the species: Clubshell ( *Pleurobema clava* ), Northern riffleshell ( *Epioblasma torulosa rangiana* ), Orange-footed pimpleback pearlymussel ( *Plethobasus cooperianus* ), Pink mucket pearlymussel ( *Lampsilis orbiculata* ), Rough pigtoe ( *Pleurobema plenum* ), Purple cat's paw pearlymussel ( *Epioblasma obliquata obliquata* ), White cat's paw pearlymussel ( *Epioblasma obliquata perobliqua* ), Fanshell ( *Cyprogenia stegaria* ), Fat pocketbook ( *Potamilus capax* ), Higgins' eye pearlymussel ( *Lampsilis higginsi* ), Winged mapleleaf ( *Quadrula fragosa* ), White wartyback (Plethobathus cicatricosus), Fat three-ridge ( *Amblema neislerii* ), Chipola slabshell ( *Elliptio chipolaensis* ), Purple bankclimber ( *Elliptoideus sloatianus* ), Upland combshell ( *Epioblasma metrastriata* ), Southern acornshell ( *Epioblasma othcaloogeniss* ), Fine-lined pocketbook ( *Lampsilis altilis* ), Shiny-rayed pocketbook ( *Lampsilis subangulata* ), Alabama moccasinshell ( *Medionidus acutissimus* ), Coosa moccasinshell ( *Medionidus parvulus* ), Gulf moccasinshell ( *Medionidus penicillatus* ), Ochlockonee moccasinshell ( *Medionidus simpsonianus* ), Southern clubshell ( *Pleurobema decisum* ), Southern pigtoe ( *Pleurobema georgianum* ), Ovate clubshell ( *Pleurobema perovatum* ), Triangular kidneyshell ( *Ptychobrachus greeni* ), Oval pigtoe ( *Pleurobema pyriforme* ), Shortnose sturgeon ( *Acipenser brevirostrum* ), Blue shiner ( *Cyprinella caerulea* ), Cherokee darter ( *Etheostoma scotti* ), Etowah darter ( *Etheostoma etowahae* ), Amber darter ( *Percina antesella* ), Goldline darter ( *Percina aurolineata* ), Conasauga logperch ( *Percina jenkinsi* ), and Snail darter ( *Percina tanasi* ). Activities are proposed to identify listed species within proposed project areas and to assist in the development of methods and alternatives to minimize or avoid impacts to those listed species. Surveys are used to enhance survival of the species in the wild. Permit Number: TE135267 *Applicant:* Robert Vande Kopple, Pellston, Michigan. The applicant requests a permit renewal to take Hungerford's crawling water beetle ( *Brachius hungerfordi* ). The scientific research involves surveying potential habitat to document the species range and to determine dietary habits of the species. The work is aimed at enhancement of survival of the species in the wild. Permit Number TE144832 *Applicant:* Detroit Zoological Society, Royal Oak, MI. The applicant requests a permit amendment to take piping plover ( *Charadrius melodus* ) in Michigan. The Detroit Zoological Society currently holds a permit to take Karner blue butterfly ( *Lycaeides melissa samuelis* ) in Michigan for a captive rearing study and are requesting the same authority for piping plover eggs salvaged from abandoned nests in the wild. The work is a collaborative effort between the applicant and the University of Minnesota, who will salvage the eggs from abandoned nests. The applicant will incubate the eggs, hand raise the chicks, and release fledglings to the wild. The scientific research is aimed at enhancement of survival of the species in the wild. Permit Number TE179707 *Applicant* : Sanders Environmental Inc., Bellefonte, Pennsylvania. The applicant requests a permit to take the Indiana bat ( *Myotis sodalis* ) throughout Illinois, Indiana, Iowa, Michigan, Missouri, Ohio, and Wisconsin. The activities proposed involve capture and marking individual bats to identify populations of this listed species and to develop methods to minimize or avoid project related impacts. The surveys are used to formulate project features aimed at enhancement of survival of the species in the wild. Permit Number TE179708 *Applicant:* Western EcoSystems Technology, Inc., Cheyenne, Wyoming. The applicant requests a permit to take the Indiana bat ( *Myotis sodalis* ) throughout its range. The activities proposed involve capture and marking individual bats to identify populations of this listed species and to develop methods to minimize or avoid project-related impacts. The surveys are used to formulate project features aimed at enhancement of survival of the species in the wild. Permit Number TE179711 *Applicant:* Bernardin-Lochmueller & Associates, Evansville, Indiana. The applicant requests a permit to take the Indiana bat ( *Myotis sodalis* ) throughout the range of the species. The activities proposed involve capture and marking individual bats to identify populations of this listed species and to develop methods to minimize or avoid project-related impacts. The surveys are used to formulate project features aimed at enhancement of survival of the species in the wild. Permit Number TE182430 *Applicant:* Nicholas Owens, Oak Brook, IL. The applicant requests a permit to take Fanshell ( *Cyprogenia stegaria* ), Pink Mucket pearlymussel ( *Lampsilis abrupta* ), Higgins' eye pearlymussel ( *Lampsilis higginsi* ), Orangefoot Pimpleback pearlymussel ( *Plethobasus cooperianus* ), Clubshell ( *Pleurobema clava* ), and Fat Pocketbook ( *Potamilus capax* ) throughout the States of Illinois and Indiana. This permit is requested to determine presence or absence of species in conjunction with other projects, and is aimed at enhancement of survival of the species in the wild. Permit Number TE182436 *Applicant:* Illinois Natural History Survey, Champaign, IL. The applicant requests a permit to take the Indiana bat ( *Myotis sodalis* ) throughout the State of Illinois. This permit is requested to determine presence or absence of the species and to determine distribution of the species. Activities are aimed at enhancement of survival of the species in the wild. Public Comments We solicit public review and comments on these permit applications. Please refer to the respective permit number when you submit comments. Comments and materials we receive are available for public inspection, by appointment, during normal business hours at the address shown in the ADDRESSES section. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. National Environmental Policy Act
(NEPA)In compliance with NEPA (42 U.S.C. 4321 *et seq.* ), we have made an initial determination that the activities proposed in these permits are categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Dated: May 13, 2008. Kyla Hastie, Acting Assistant Regional Director, Ecological Services, Region 3, Fort Snelling, Minnesota. [FR Doc. E8-11835 Filed 5-27-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [FWS-R1-FHC-2008-N00133; 81331-1334-8TWG-W4] Trinity Adaptive Management Working Group AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of meeting. SUMMARY: The Trinity Adaptive Management Working Group (TAMWG) affords stakeholders the opportunity to give policy, management, and technical input concerning Trinity River (California) restoration efforts to the Trinity Management Council (TMC). This notice announces a TAMWG meeting, which is open to the public. DATES: TAMWG will meet from 1 p.m. to 5 p.m. on Monday, June 9, 2008 and from 8:30 to 1 on Tuesday, June 10, 2008. ADDRESSES: The meeting will be held at the Weaverville Victorian Inn, 1709 Main St., 299 West, Weaverville, CA 96093. FOR FURTHER INFORMATION CONTACT: Randy A. Brown of the U.S. Fish and Wildlife Service, 1655 Heindon Road, Arcata, CA 95521; telephone:
(707)822-7201. Randy A. Brown is the TAMWG Designated Federal Officer. For background information and questions regarding the Trinity River Restoration Program (TRRP), please contact Douglas Schleusner, Executive Director, Trinity River Restoration Program, P.O. Box 1300, 1313 South Main Street, Weaverville, CA 96093; telephone:
(530)623-1800; E-mail: *dschleusner@mp.usbr.gov* SUPPLEMENTARY INFORMATION: Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), this notice announces a meeting of the (TAMWG). Primary objectives of the meeting will include discussion of the following topics: • Reservoir operations, minimum pool criteria, and carryover storage policies, • Steelhead population trends and Trinity River Hatchery steelhead production, • TRRP decision making/CDR situation assessment, • Updates on TRRP budget, flow schedule, monitoring activities, and • TAMWG membership appointments. Completion of the agenda is dependent on the amount of time each item takes. The meeting could end early if the agenda has been completed. Dated: May 13, 2008. Joseph Polos, Supervisory Fishery Biologist, Arcata Fish and Wildlife Office, Arcata, CA. [FR Doc. E8-11837 Filed 5-27-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Minerals Management Service [Docket No. MMS-2008-OMM-0026] MMS Information Collection Activity: 1010-0057, 30 CFR Part 250, Subpart C, Pollution Prevention and Control, Correction of an Information Collection Request; Submitted for Office of Management and Budget
(OMB)Review; Comment Request AGENCY: Minerals Management Service (MMS), Interior. ACTION: Notice of an information collection (1010-0057) extension. SUMMARY: This is a correction to the May 2, 2008 (73 FR 24308), request for comments. This notice is necessary to correct the hour burden for the requirements in § 250.301(a) in the burden table. The information collection request
(ICR)concerns the paperwork requirements in the regulations under 30 CFR Part 250, Subpart C, “Pollution Prevention and Control.” DATES: Submit written comments by July 28, 2008. ADDRESSES: You may submit comments by any either of the following methods listed below. • Electronically: go to *http://www.regulations.gov.* Under the tab “More Search Options,” click Advanced Docket Search, then select “Minerals Management Service” from the agency drop-down menu, then click “submit.” In the Docket ID column, select MMS-2008-OMM-0026 to submit public comments and to view supporting and related materials available for this rulemaking. Information on using *Regulations.gov,* including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. The MMS will post all comments. • Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Cheryl Blundon; 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Information Collection 1010-0057” in your subject line and mark your message for return receipt. Include your name and return address in your message text. FOR FURTHER INFORMATION CONTACT: Cheryl Blundon, Regulations and Standards Branch,
(703)787-1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations that require the subject collection of information. SUPPLEMENTARY INFORMATION: *Title:* 30 CFR Part 250, Subpart C, “Pollution Prevention and Control.” *OMB Control Number:* 1010-0057. *Abstract:* The Outer Continental Shelf
(OCS)Lands Act, as amended (43 U.S.C. 1331 *et seq.* and 43 U.S.C. 1801 *et seq.* ), authorizes the Secretary of the Interior (Secretary) to prescribe rules and regulations to administer leasing of the OCS. Such rules and regulations will apply to all operations conducted under a lease. Operations on the OCS must preserve, protect, and develop oil and natural gas resources in a manner that is consistent with the need to make such resources available to meet the Nation's energy needs as rapidly as possible; to balance orderly energy resource development with protection of human, marine, and coastal environments; to ensure the public a fair and equitable return on the resources of the OCS; and to preserve and maintain free enterprise competition. Section 1332(6) states that “operations in the [O]uter Continental Shelf should be conducted in a safe manner by well-trained personnel using technology, precautions, and techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstruction to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property, or endanger life or health.” Section 1334(a)(8) requires that regulations prescribed by the Secretary include provisions “for compliance with the national ambient air quality standards pursuant to the Clean Air Act (42 U.S.C. 7401 *et seq.* ), to the extent that activities authorized under this Act significantly affect the air quality of any State.” Section 1843(b) calls for “regulations requiring all materials, equipment, tools, containers, and all other items used on the Outer Continental Shelf to be properly color coded, stamped, or labeled, wherever practicable, with the owner's identification prior to actual use.” This information collection
(IC)request for comments concerns the regulations at 30 CFR Part 250, Subpart C, Pollution Prevention and Control. It also covers the related Notices to Lessees and Operators
(NTLs)that the Minerals Management Service
(MMS)issues to clarify and provide additional guidance on some aspects of the regulations. We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited release.” No items of a sensitive nature are collected. Responses are mandatory. *Frequency:* On occasion, monthly, or annually, daily for inspection recordkeeping; varies by section. *Estimated Number and Description of Respondents:* Approximately 130 Federal OCS oil and gas or sulphur lessees and 17 states. *Estimated Reporting and Recordkeeping “Hour” Burden:* The currently approved annual reporting burden for this collection is 226,451 hours. The following chart details the individual components and respective hour burden estimates of this ICR. In calculating the burdens, we assumed that respondents perform certain requirements in the normal course of their activities. We consider these to be usual and customary and took that into account in estimating the burden. Citation 30 CFR 250 subpart C and NTL(s) Reporting and recordkeeping requirement Hour burden Reporting Requirements 300(b)(1),
(2)Obtain approval to add petroleum-based substance to drilling mud system or approval for method of disposal of drill cuttings, sand, & other well solids, including those containing NORM 3 300(c) Mark items that could snag or damage fishing devices 0.5 300(d) Report items lost overboard 1 303(a) thru (d), (i), (j); 304(a),
(f)Submit, modify, or revise Exploration Plans and Development and Production Plans; submit information required under 30 CFR part 250, subpart B Burden covered under 1010-0151. 303(k); 304(a),
(g)Collect and report air quality emissions related data (such as facility, equipment, fuel usage, and other activity information) for input into State and regional planning organizations modeling 3 hrs per month × 12 months = 36 303(k); 304(a),
(g)Monitor air quality emissions and submit data to MMS or to a State (new 1-year study of sites in the western/ central GOM area on ozone and regional haze air quality; data collection in 2005; report submitted in 2006) 2 hours per month × 12 months = 24 303(l); 304(h) Collect and submit meteorological data (not routinely collected) None planned in the next 3 years. 304(a),
(f)Affected State may submit request to MMS for basic emission data from existing facilities to update State's emission inventory 4 304(e)(2) Submit compliance schedule for application of best available control technology
(BACT)40 304(e)(2) Apply for suspension of operations Burden covered under 1010-0114. 304(f) Submit information to demonstrate that exempt facility is not significantly affecting air quality of onshore area of a State 15 300-304 General departure and/or alternative compliance requests not specifically covered elsewhere in subpart C regulations 2 Recordkeeping Requirements 300(d) Record items lost overboard on daily operations report 1 301(a) Inspect drilling/production facilities daily for pollution; maintain inspection/repair records 2 years Manned facilities − 1/4 hr/day × 365 days = 91.25 Unmanned facilities − 1/12 hr × every 3rd day (365/3 = 122 days) = 10.17 *Estimated Reporting and Recordkeeping “Non-Hour Cost” Burden:* We have identified no non-hour cost burdens for this collection. *Public Disclosure Statement:* The PRA (44 U.S.C. 3501, *et seq.* ) provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. *Comments:* Before submitting an ICR to OMB, PRA section 3506(c)(2)(A) requires each agency “* * * to provide notice * * * and otherwise consult with members of the public and affected agencies concerning each proposed collection of information * * *”. Agencies must specifically solicit comments to:
(a)Evaluate whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful;
(b)evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(c)enhance the quality, usefulness, and clarity of the information to be collected; and
(d)minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology. Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased:
(i)Before October 1, 1995;
(ii)to comply with requirements not associated with the information collection;
(iii)for reasons other than to provide information or keep records for the Government; or
(iv)as part of customary and usual business or private practices. We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB. *Public Comment Procedures:* Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. *MMS Information Collection Clearance Officer:* Arlene Bajusz
(202)208-7744. Dated: May 20, 2008. E.P. Danenberger, Chief, Office of Offshore Regulatory Programs. [FR Doc. E8-11809 Filed 5-27-08; 8:45 am] BILLING CODE 4310-MR-P INTERNATIONAL TRADE COMMISSION [Investigation No. 332-352] Andean Trade Preference Act: Impact on the U.S. Economy and on Andean Drug Crop Eradication AGENCY: United States International Trade Commission. ACTION: Notice of public hearing and opportunity to submit comments in connection with the 2007 report on the Andean Trade Preference Act (ATPA). SUMMARY: Section 206 of the ATPA (19 U.S.C. 3204) requires the Commission to report biennially to the Congress by September 30 of each reporting year on the economic impact of the Act on U.S. industries and U.S. consumers, as well as on the effectiveness of the Act in promoting drug-related crop eradication and crop substitution efforts by beneficiary countries. This series of biennial reports was instituted as investigation No. 332-352, *Andean Trade Preference Act: Impact on the U.S. Economy and on Andean Drug Crop Eradication.* The Commission has scheduled a public hearing for its 2008 ATPA report, covering calendar year 2007, for July 22, 2008. DATES: July 9, 2008: Deadline for filing requests to appear at the public hearing. July 15, 2008: Deadline for filing pre-hearing briefs and statements. July 22, 2008: Public hearing. July 29, 2008: Deadline for filing post-hearing briefs and statements and all other written submissions. September 30, 2008: Transmittal of Commission report to Committee on Ways and Means. ADDRESSES: All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street, SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street, SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://www.usitc.gov/secretary/edis.htm.* FOR FURTHER INFORMATION CONTACT: James Stamps (202-205-3227, or *james.stamps@usitc.gov* ) or Nannette Christ (202-205-3263, or *nannette.christ@usitc.gov* ), Country and Regional Analysis Division, Office of Economics, U.S. International Trade Commission, Washington, DC 20436. General information concerning the Commission may be obtained by accessing its Internet server ( *http://www.usitc.gov* ). *Background:* Section 206 of the Andean Trade Preference Act
(ATPA)(19 U.S.C. 3204) requires that the Commission submit biennial reports to the Congress regarding the economic impact of the Act on U.S. industries and consumers and, in conjunction with other agencies, the effectiveness of the Act in promoting drug-related crop eradication and crop substitution efforts of the beneficiary countries. Section 206(b) of the Act requires that each report include:
(1)The actual effect of ATPA on the U.S. economy generally as well as on specific domestic industries which produce articles that are like, or directly competitive with, articles being imported under the Act from beneficiary countries;
(2)the probable future effect that ATPA will have on the U.S. economy generally and on such domestic industries; and
(3)the estimated effect that ATPA has had on drug-related crop eradication and crop substitution efforts of beneficiary countries. Notice of institution of the investigation and the schedule for such reports under section 206 of ATPA was published in the **Federal Register** of March 10, 1994 (59 FR 11308). The thirteenth report, covering calendar year 2007, is to be submitted by September 30, 2008. *Public Hearing:* A public hearing in connection with this investigation will be held at the U.S. International Trade Commission Building, 500 E Street, SW., Washington, DC, beginning at 9:30 a.m. on July 22, 2008. Requests to appear at the public hearing should be filed with the Secretary, no later than 5:15 p.m., July 9, 2008, in accordance with the requirements in the “Submissions” section below. All pre-hearing briefs and statements should be filed not later than 5:15 p.m., July 15, 2008, and all post-hearing briefs and statements should be filed not later than 5:15 p.m., July 29, 2008. In the event that, as of the close of business on July 9, 2008, no witnesses are scheduled to appear at the hearing, the hearing will be canceled. Any person interested in attending the hearing as an observer or nonparticipant may call the Secretary to the Commission (202-205-2000) after July 9, 2008, for information concerning whether the hearing will be held. *Written Submissions:* In lieu of or in addition to participating in the hearing, interested parties are invited to submit written statements concerning this investigation. All written submissions should be addressed to the Secretary, and should be received not later than 5:15 p.m., July 29, 2008. All written submissions must conform with the provisions of section 201.8 of the Commission's *Rules of Practice and Procedure* (19 CFR 201.8). Section 201.8 requires that a signed original (or a copy so designated) and fourteen
(14)copies of each document be filed. In the event that confidential treatment of a document is requested, at least four
(4)additional copies must be filed, in which the confidential information must be deleted (see the following paragraph for further information regarding confidential business information). The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures, *http://www.usitc.gov/secretary/fed_reg_notices/rules/documents/handbook_on_electronic_filing.pdf* ). Persons with questions regarding electronic filing should contact the Secretary (202-205-2000). Any submissions that contain confidential business information must also conform with the requirements of section 201.6 of the *Commission's Rules of Practice and Procedure* (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “non-confidential” version, and that the confidential business information be clearly identified by means of brackets. All written submissions, except for confidential business information, will be made available for inspection by interested parties. Committee staff has indicated that the Committee intends to make the Commission's report available to the public in its entirety, and has asked that the Commission not include any confidential business information or national security classified information in the report that the Commission sends to the Committee. Any confidential business information received by the Commission in this investigation and used in preparing this report will not be published in a manner that would reveal the operations of the firm supplying the information. Issued: May 21, 2008. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-11842 Filed 5-27-08; 8:45 am] BILLING CODE 7020-02-P INTERNATIONAL TRADE COMMISSION [Inv. No. 337-TA-649] In the Matter of Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (IV); Notice of Investigation AGENCY: U.S. International Trade Commission. ACTION: Institution of investigation pursuant to 19 U.S.C. 1337. SUMMARY: Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 21, 2008, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Tessera, Inc. of San Jose, California. A supplement to the complaint was filed on May 14, 2008. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain semiconductor chips with minimized chip package size and products containing same that infringe certain claims of U.S. Patent No. 5,679,977, U.S. Patent No. 5,852,326 and U.S. Patent No. 6,433,419. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The complainant requests that the Commission institute an investigation and, after the investigation, issue exclusion orders and cease and desist orders. ADDRESSES: The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at *http://www.usitc.gov* . The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov* . FOR FURTHER INFORMATION CONTACT: Kecia J. Reynolds, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone
(202)205-2580. *Authority:* The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2007). *Scope of Investigation:* Having considered the complaint, the U.S. International Trade Commission, on May 20, 2008, *ordered that* —
(1)Pursuant to subsection
(b)of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain semiconductor chips with minimized chip package size or products containing same that infringe one or more of claims 1, 2, 6, 12, 16-19, 21, 24-26, and 29 of U.S. Patent No. 5,852,326; claims 1-11, 14, 15, 19, and 22-24 of U.S. Patent No. 6,433,419; and claim 17 of U.S. Patent No. 5,679,977; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2)For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a)The complainant is—Tessera, Inc., 3099 Orchard Drive, San Jose, California 95134.
(b)The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served: ASE Inc., 26 Chin Third Road, Nantze Export Processing Zone, Nantze, Kaohsiung, Taiwan. ASE Test Limited, 10 West Fifth Street, Nantze Export Processing Zone, Kaohsiung, Taiwan. ASE (U.S.) Inc., 3590 Peterson Way, Santa Clara, California 95054. ChipMOS Technologies Inc., No. 1 R&D Road 1, Science Based Industrial Park, Hsinchu, Taiwan. ChipMOS Technologies (Bermuda) Ltd., 11F, No. 3, Lane 91, Dongmei Road, Hsinchu, Taiwan. ChipMOS USA Inc., 2890 N 1st Street, San Jose, California 95134. Siliconware Precision Industries, Co., Ltd., No. 123, Sec. 3, Da Fong Road, Tantzu, Taichung, Taiwan. Siliconware USA Inc., 1735 Technology Drive, #300, San Jose, California 95110. STATS Chippac
(BVI)Limited, Craigmuir Chambers, Road Town, Tortola, British Virgin Islands. STATS Chippac, Ltd., 10 Ang Mo Kio Street 65, #50-17/20, Techpoint, Singapore 569059. STATS Chippac, Inc., 47400 Kato Road, Fremont, California 94538.
(c)The Commission investigative attorney, party to this investigation, is Kecia J. Reynolds, Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3)For the investigation so instituted, the Honorable Theodore Essex is designated as the presiding administrative law judge. Any order deciding a motion for stay should be issued in the form of an initial determination (ID). Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown. Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent. Issued: May 21, 2008. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-11844 Filed 5-27-08; 8:45 am] BILLING CODE 7020-02-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-627] In the Matter of Certain Short Wavelength Semiconductor Lasers and Products Containing Same; Notice of Commission Decision Not To Review an Initial Determination Granting Complainant's Motion To Amend the Complaint to Add Five Additional Respondents AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 6) issued by the presiding administrative law judge (“ALJ”) granting a motion to file an amended complaint adding five additional respondents in the above-captioned investigation. FOR FURTHER INFORMATION CONTACT: Paul M. Bartkowski, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)708-5432. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov.* The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov.* Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on
(202)205-1810. SUPPLEMENTARY INFORMATION: This investigation was instituted on January 3, 2008, based on a complaint filed by Seoul Semiconductor Company, Ltd. (“SSC”) of Seoul, Korea. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of short wavelength semiconductor lasers (“SWCLs”) and products containing the same that infringe claim 1 of U.S. Patent No. 5,321,713. The complaint initially named Nichia Corporation (“Nichia”) of Tokushima, Japan as the sole respondent. On April 22, 2008, SSC moved to file an amended complaint naming the following five additional respondents: Hitachi, Ltd. of Tokyo, Japan; Hitachi America, Ltd. of Brisbane, CA; Panasonic Communications Co., Ltd. of Fukuoka, Japan; Matsushita Electric Industrial Co., Ltd. of Osaka, Japan; and LaCie Ltd. of Hillsboro, OR. On May 1, 2008, the Commission investigative attorney filed a response conditionally supporting the motion and Nichia filed an opposition to the motion. On May 2, 2008, the ALJ issued the subject ID granting the motion. No petitions for review were filed. The Commission has determined not to review the subject ID. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.14 and 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.14, 210.42). Issued: May 21, 2008. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-11843 Filed 5-27-08; 8:45 am] BILLING CODE 7020-02-P DEPARTMENT OF JUSTICE Notice of Lodging of Two Amendments to Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) Consistent with Section 122(d) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(d), and 28 CFR 50.7, notice is hereby given that on May 20, 2008, the United States lodged two amendments to the Consent Decree approved by the Court on February 23, 2001 in *United States of America* v. *Abex Aerospace Division, et al,* Civil No. 00-cv-012471 TJH(JWJx) (USDC C.D. Cal.). The original Consent Decree resolved the liability of certain defendants for the “Phase 1a Area” of the Site under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. 9606 and 9607, as amended, and Section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. 6973, as alleged in the Complaint filed in this matter. The First Amendment primarily amends the Statement of Work under the original Consent Decree to add certain response activities necessary to address indoor air contamination observed at an indoor roller skating rink located adjacent to the Omega Chemical Corporation Superfund Site, listed on the National Priorities List on January 19, 1999, 64 FR 2950 (“Site”). The Second Amendment adds additional Settling Work Defendants, and Settling Cash Defendants to those covered by the original Consent Decree, as amended. The Second Amendment also incorporates additional volume and related payments of certain original Settling Cash Defendants, and corrects certain omissions and typographical errors in the caption. The Department of Justice will receive for a period of thirty
(30)days from the date of this publication comments relating to the Consent Decree Amendments. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to *pubcomment-ees.enrd@usdoj.gov* or mailed to P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-06529. The Consent Decree Amendments may be examined at U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105 (contact Stephen Berninger, Esq.
(415)972-3909). During the public comment period, the Consent Decree Amendments may also be examined on the following Department of Justice Web site, *http://www.usdoj.gov/enrd/Consent_Decrees.html* . A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, U.S. Department of Justice, P.O. Box 7611, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood ( *tonia.fleetwood@usdoj.gov* ), fax no.
(202)514-0097, phone confirmation number
(202)514-1547. In requesting a copy from the Consent Decree Library, please refer to *United States of America* v. *Abex Aerospace Division, et al,* Civil No. 00-cv-012471 TJH(JWJx) (USDC C.D. Cal.) (DOJ Ref. No. 90-11-3-06529), and enclose a check in the amount of $57.25 (25 cents per page reproduction cost) payable to the U.S. Treasury or, if by e-mail or fax, forward a check in that amount to the Consent Decree Library at the stated address. Henry S. Friedman, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. E8-11846 Filed 5-27-08; 8:45 am] BILLING CODE 4410-15-P DEPARTMENT OF JUSTICE Drug Enforcement Administration [No. 06-45] Paul H. Volkman; Denial of Application On February 10, 2006, I, the Deputy Administrator of the Drug Enforcement Administration, issued an Order to Show Cause and Immediate Suspension of Registration to Paul H. Volkman, M.D. (Respondent), of Chillicothe, Ohio. The Order immediately suspended Respondent's DEA Certificate of Registration, AV6952837, as a practitioner, on the grounds that his continued registration during the pendency of the proceeding “would constitute an imminent danger to public health and safety because of the substantial likelihood that [he] will continue to divert controlled substances to persons who will abuse these products.” *Id.* at 12. More specifically, the Show Cause Order alleged that in twelve instances, Respondent had prescribed multiple controlled substances to persons who, within days, died of overdoses of the drugs. *Id.* at 9-11. The Show Cause Order further alleged that Respondent had issued prescriptions to these persons for multiple controlled substances including opiates in schedule II (oxycodone) and/or schedule III (hydrocodone); schedule IV benzodiazepines such as diazepam and valium; and carisoprodol, a non-controlled drug which is nonetheless highly abused. *Id.; see also id.* at 3. Relatedly, the Order alleged that in July 2005, the assistant coroner for the county in which Respondent was practicing, had notified DEA “that his staff [had] observed an increase in emergency room overdoses and believed that several recent drug-related deaths involving young [and] otherwise healthy individuals could be attributed to the consumption of large amounts of oxycodone, hydrocodone and alprazolam,” which Respondent had dispensed. *Id.* at 8. The Show Cause Order also alleged that DEA had received information from various distributors that Respondent was ordering excessive quantities of controlled substances. *Id.* Relatedly, the Show Cause Order alleged that during 2004, Respondent was the largest practitioner-purchaser of oxycodone in the country having purchased 438,000 dosage units, when the average amount of this drug purchased by other physicians “was only 4,792 dosage units.” *Id.* at 2. The Show Cause Order further alleged that DEA investigators interviewed several of Respondent's patients who informed them that Respondent had prescribed controlled substances without performing physical examinations, that the clinic charged between $160 and $200 for an office visit, and that the clinic required that the patients pay cash and would not accept third-party payments from insurers, Medicare, Medicaid or worker's compensation. *Id.* at 4. The Show Cause Order also alleged that on various dates, confidential sources had visited the clinic, and that Respondent had issued these persons prescriptions for controlled substances without performing physical examinations and other medical tests. *Id.* at 5. The Show Cause Order specifically alleged that on two occasions, the confidential sources had told the clinic's employees that their pain levels were “one or two” and “zero” on a scale of one-to-ten (with the latter being the most severe); that upon Respondent's asking them how they felt, the sources had told him “fair” and “pretty good”; and that Respondent, without performing a physical exam on either person, immediately issued to each of them, prescriptions for 180 tablets of hydrocodone/acetaminophen 10/650 mg., 90 tablets of diazepam 10 mg., and 60 tablets of carisoprodol. *Id.* at 5-6. Both sources then allegedly filled the prescriptions at Respondent's clinic for an additional charge. *Id.* at 6. The Show Cause Order further alleged that in May 2005, DEA investigators received information from another confidential source who acknowledged his/her involvement in diverting controlled substances. *Id.* The source allegedly identified Respondent as a physician who would write prescriptions for Oxycontin and other controlled substances without performing a physical examination; the source allegedly stated that he and a friend had obtained from Respondent prescriptions for drugs which they then sold on the street. *Id.* Next, the Show Cause Order alleged that in July 2005, DEA investigators conducted an accountability audit of the controlled substances which were ordered under Respondent's registration by the clinic where he worked. *Id.* at 7. The investigators allegedly found that Respondent did not maintain dispensing records in violation of Federal regulations. *Id.* Moreover, Respondent allegedly “could not account for more than 850,000 dosage units of controlled substances that were ordered and dispensed under [his] DEA registration.” *Id.* The Order specifically alleged that Respondent was short nearly 89,000 dosage units of alprazolam 2 mg., nearly 48,000 dosage units of diazepam 10 mg., 77,000 dosage units of hydrocodone/apap 1 (10/500 mg.), and more than 126,000 dosage units of hydrocodone/apap 10/650. *Id.* With respect to drugs containing oxycodone, the Order alleged, *inter alia,* that Respondent was short more than 49,000 dosage units of oxycodone 5 mg., 48,506 dosage units of oxycodone/apap (5/325 mg.), 165,500 dosage units of Roxicodone 15 mg., and 130,000 dosage units of Roxicodone 30 mg. *Id.* at 7-8. 1 Apap is the abbreviation for acetaminophen. Respondent requested a hearing on the allegations, and the matter was assigned to Administrative Law Judge
(ALJ)Gail Randall. Following various extensions which both parties sought, as well as pre-hearing procedures, 2 a hearing was held in Columbus, Ohio on December 5-8, 2006, and January 9-10, 2007. At the hearing, both parties submitted documentary evidence and presented the testimony of witnesses. 2 While Respondent requested an expedited hearing, on March 17, 2006, his first counsel withdrew. ALJ at 2. While on May 2, 2006, a new counsel entered an appearance on Respondent's behalf, on October 10, 2006, a third counsel entered a notice of appearance. *Id.* Following the hearing, the Government submitted a brief containing its proposed findings, conclusions of law, and recommendations. Respondent chose not to submit a post-hearing brief and instead filed a petition for review with the Sixth Circuit. On June 20, 2007, the ALJ issued her recommended decision (hereinafter cited as ALJ). In her decision, the ALJ found that “[t]he record contains abundant evidence to demonstrate that the Respondent did not issue prescriptions 'in the usual course of his professional practice,”' and that he “failed to limit his prescribing of controlled substances to cases where such medication would be provided for a legitimate medical purpose.” ALJ at 39-40 (citation omitted). More specifically, the ALJ concluded that “without adequate physical examinations and development of medical histories, the Respondent failed to adequately diagnose the patients,” and yet “prescribed controlled substances even when interacting with a patient for the first time.” *Id.* at 40. The ALJ further noted that “Respondent prescribed the same combinations of controlled substances to a majority of his patients, again without adequate examinations or ongoing diagnoses,” and that “[t]his combination of drugs was common in the drug-abuse community” and was known as “a cocktail or the trifecta.” *Id.* (int. quotation and citations omitted). Finally, the ALJ noted that “Respondent treated at least sixteen patients between June of 2003 and February of 2006 who died of drug-related causes,” and that “Respondent's lack of adequate monitoring of these patients directly contributed to [their] deaths.” *Id.* at 41. The ALJ further noted that Respondent was dispensing controlled substances “obtained through the use of [his] DEA registration,” *id.,* and yet failed to maintain the required inventory and dispensing records and “to adequately supervise the individuals to whom he had delegated such dispensing responsibilities.” *Id.* at 43. Moreover, Respondent “was unable to account for over one million tablets of controlled substances.” *Id.* at 42. Finally, the ALJ noted that Respondent had failed to accept responsibility for his conduct. *Id.* at 44. The ALJ thus concluded that the Government had established a prima facie case that Respondent's continued registration would be inconsistent with the public interest. *Id.* at 45. Because Respondent had failed to “justify his past conduct” and “to provide adequate assurances that his future handling of controlled substances would meet the standards required of a DEA registrant,” the ALJ recommended that I revoke his registration and deny his pending applications to renew and modify his registration. *Id.* Respondent filed exceptions to the ALJ's decision raising numerous issues, and the Government filed a response. More specifically, Respondent contends that the Government failed to provide adequate notice and thus violated his rights under the Due Process Clause because it expanded its presentation beyond the allegations of the Show Cause Order, Exceptions at 4-10; that the proceeding violated his First Amendment rights because the ALJ failed to exclude an e-mail which the Government introduced into evidence in which Respondent portrayed the Agency, the ALJ, and the prosecuting attorney in a “not flattering” manner, *id.* at 10-11; that the Agency was unlawfully regulating the practice of medicine, *id.* at 11-12; that the ALJ failed to consider his evidence; and that records which he subpoenaed were not turned over to him. 3 3 To the extent that Respondent's exceptions are based on the ALJ's weighing of the evidence or alleged failure to consider certain evidence, the ALJ's decision is only a recommendation. *See* 21 CFR 1316.65(a). As ultimate factfinder, I have carefully considered the entire record including the ALJ's report and Respondent's exceptions. Having considered the record as a whole, I reject each of Respondent's exceptions. While I do not adopt all of the ALJ's factual findings, I adopt the ALJ's conclusions of law that Respondent repeatedly dispensed controlled substances outside of the usual course of professional practice and without a legitimate medical purpose. I also adopt her conclusions with respect to Respondent's failure to maintain proper records and properly supervise clinic employees, as well as his inability to account for large quantities of controlled substances. Finally, I adopt the ALJ's conclusion that the Government has established its prima *facie case* that Respondent's registration is inconsistent with the public interest and that Respondent has not demonstrated that he can be entrusted with a registration. As explained below, Respondent did not file a timely renewal application in accordance with agency rules, and therefore, there is no existing registration to revoke or modify. Respondent did, however, apply for a registration; that application will be denied. I make the following findings. Findings Respondent formerly held DEA Certificate of Registration, AV6952837, which authorized him to dispense controlled substances in schedules II through V, and which expired on May 31, 2006. GX 1. Between April 16, 2003, and November 18, 2003, Respondent's registered location was Tri-State Health Care (hereinafter, Tri-State), 1200 Gay Street, Portsmouth, Ohio. GX 2. Between November 19, 2003, and September 11, 2005, Respondent's registered location was 1219 Findlay St., Portsmouth, *id.,* which apparently was Tri-State's new location. GX 11, at 2 (inspection report of Ohio State Board of Pharmacy). Subsequently, Respondent left Tri-State, and on September 12, 2005, Respondent changed his registered location to 1310 Center St., Portsmouth. GX 2. On May 12, 2006, at which time his registration was suspended and which was less than forty-five days before the expiration of his registration, Respondent applied for a renewal of his registration and requested an address change to his home in Chicago, Illinois. *Id.,* *see also* RX P at 1. Respondent holds both an M.D. and Ph.D. from the University of Chicago and has practiced as an emergency room physician, as well as in family practice and pediatrics. *Id.* at 3. Respondent testified that in the course of his practice, he had two medical malpractice cases which his insurers settled without his consent and his admitting liability, and “two cases [that] resulted in judgments against” him. Tr. 1400. According to Respondent, by 2003, the awards and settlements totaled “over a million-and-a-half dollars,” and as a result, he was “unable to obtain malpractice insurance.” *Id.* As a consequence, Respondent “could no longer work in emergency medicine, and * * * couldn't work for another clinic * * * because virtually every clinic that required hospital coverage of nighttime patients requires the doctor to have insurance.” *Id.* Respondent therefore needed to find a job which did not require malpractice insurance. *Id.* Searching on the internet, Respondent found a job posting for Tri-State Health Care in Portsmouth, Ohio. *Id.* at 1400-01. During discussions with Tri-State's owner, Ms. Denise Huffman, Respondent was told that he did not need malpractice insurance to work for her clinic. *Id.* at 1401. Respondent accepted the position, and in June 2003, he obtained board certification in pain management. *Id.* at 1402. In April 2003, Respondent began working at Ms. Huffman's clinic under an “informal handshake” agreement which paid him $5000 a week to start; his pay was later raised to $5500. *Id.* at 1404. Ms. Huffman was not a licensed physician and was “not any type of a health care professional” even though she was running “a pain clinic.” *Id.* Respondent “did not think” to ask to see Ms. Huffman's licenses or verify her credentials. *Id.* at 1404. Respondent further maintained that he “didn't know that I should have done” that, and that he did not find out that he should have made these inquiries until being advised of this (“two years later”) by one of his attorneys. *Id.* In light of Respondent's thirty years of experience in the medical profession and his educational background, I find implausible Respondent's testimony regarding his failure to verify whether Ms. Huffman was properly licensed. Ms. Huffman's daughter Alice was Tri-State's office manager. ALJ at 3-4 (stipulated findings). According to the report of Agent Kevin Kinneer of the Ohio State Board of Pharmacy, Alice Huffman was a “former employee and patient of Dr. [David] Proctor,” GX 12, at 4, a convicted drug dealer. Tr. 1014-15. Mr. Chad Ball, who was Alice Huffman's boyfriend (and subsequently became her husband), worked as a security guard at the clinic. Tr. 521, 530. Other employees included Chris Helton (who also worked as security guard) and Denise Huffman's nieces, Ms. Tara Bentley and Ms. Elizabeth Madden. *Id.* at 530. Respondent was the only licensed physician and DEA registrant at the clinic. *Id.* at 530-31. 4 4 To clarify, the clinic did not hold a DEA registration. During an interview with a DEA diversion investigator (DI), Ms. Denise Huffman stated that Tri-State “was a full cash business” and did no “third-party billing.” *Id.* at 543. The DI further testified that Ms. Huffman stated that “it would not be cost effective to have somebody file a medical insurance claim.” *Id.* at 544. 5 Tri-State charged $200 for an office visit. *Id.* at 854-56. 5 The record does, however, contain a document entitled “UTILIZATION REVIEW—NOTICE OF DENIAL” issued by Liberty Mutual Managed Care, Inc., which is addressed to Respondent at Tri-State's Findlay St. address. GX 65. This document stated that Liberty Mutual had performed a utilization review for the Kentucky Worker's Compensation program of a “proposed treatment/service request” for a patient named “Paul Huffman,” and determined that it did not meet “nationally accepted practice protocols.” *Id.* More specifically, the document noted that “[t]he request for oxycodone 425 pills per month (fourteen/day) and Valium 125 pills per month (four/day) is not medically necessary or appropriate. The current narcotic situation is not beneficial in that the claimant is taking narcotics around the clock.” *Id.* Beginning in the summer of 2003, numerous pharmacies refused to fill Respondent's prescriptions. Tr. 1428-29. Accordingly, Respondent and Denise Huffman decided that they “should institute a dispensary on-site” so that they could provide pain medicines for their patients. *Id.* Respondent agreed that his registration could be used to order controlled substances, *id.* at 1550, and Tri-State proceeded to order large quantities of both oxycodone, a schedule II controlled substance, and combination hydrocodone/apap, a schedule III controlled substance. GX 10. For example, between August 18, 2003, and December 30, 2003, Tri-State ordered nearly 136,000 dosage units of oxycodone under Respondent's DEA registration. *Id.* at 140. During 2004, Tri-State ordered more than 457,000 dosage units of oxycodone under his registration. *Id.* at 143. Finally, between January 1, 2005, and September 2, 2005 (shortly before he left Tri-State), the clinic ordered more than 414,000 dosage units of oxycodone under his registration. *Id.* at 145. Respondent was the largest practitioner-purchaser of oxycodone in the nation during both 2004 and the first nine months of 2005. *Id.* at 5 & 28. Moreover, Respondent's purchases of oxycodone dwarfed that of other Ohio-based practitioners. For example, during the last six months of 2003, Respondent purchased more than twenty-eight times the amount of oxycodone purchased by the second largest Ohio-based practitioner (4,800 dosage units); by contrast, the fourth through thirteenth largest purchasers bought only between 300 to 100 dosage units. *Id.* at 51. In 2004, Respondent purchased nearly 110 times the amount of oxycodone purchased by the second largest Ohio-based practitioner (4,160 dosage units); by contrast, the third through tenth largest practitioners purchased between 3,228 and 400 dosage units. *Id.* at 29. Finally, in a little more than the first eight months of 2005, Respondent purchased approximately thirty-eight times the amount of oxycodone purchased by the second largest Ohio-based practitioner-purchaser; by contrast, the sixth through tenth largest practitioner-purchasers bought between 600 and 240 dosage units. *Id.* at 7. With respect to hydrocodone, between July 24, 2003, and the end of that year, Respondent purchased 222,600 dosage units. *Id.* at 148. In 2004, Respondent purchased 263,500 dosage units, and in a little more than the first eight months of 2005, he purchased 168,500 dosage units of the drug. *Id.* at 150-52. Between 2003 and 2005, Respondent ranked between the eleventh to twenty-third largest purchaser nationwide of combination hydrocodone drugs, and was the largest Ohio-based practitioner-purchaser of combination hydrocodone drugs by a wide margin. 6 *Id.* at 72-73, 95-96, 118-20. 6 In the first nine months of 2005, Respondent purchased 11 times the amount of hydrocodone purchased by the second largest Ohio-based practitioner; in 2004, he purchased 11.7 times the amount purchased by the second largest Ohio-based practitioner; in the last six months of 2003, he purchased approximately 16.5 times the amount purchased by the second largest Ohio-based practitioner. *Id.* at 73-74, 96-97, 120-21. A DEA DI subsequently obtained a report of the prescriptions written by Respondent that were filled by Kentucky pharmacies during 2004 from the State of Kentucky's KASPER system. 7 Upon review of the data, the DI found that Respondent had prescribed three or more drugs per visit to 419 of his patients and that Respondent had issued three or more prescriptions per visit 1974 times. GX 71. The DI further found that 54 percent of Respondent's prescribing involved “three or more prescriptions per visit,” and that in 1065 separate instances, Respondent had prescribed four drugs including oxycodone, hydrocodone, a benzodiazepine, and carisoprodol. *Id.* at 2. The DI also found that during 2004, Kentucky pharmacies dispensed 647,440 dosage units of oxycodone and 537,691 dosage units of hydrocodone pursuant to Respondent's prescriptions. *Id.* 7 KASPER is the “Kentucky All Scheduled Prescriptions Electronic Reporting” program. GX 71. Under KASPER, pharmacies are required to periodically report to the State all scheduled-drug prescriptions that they dispense. Physicians are also able to access the database to determine whether their patients are obtaining controlled substances from other practitioners. GX 26, Tr. 1030. These figures do not, however, include prescriptions issued by Respondent which were filled at pharmacies in Ohio and other States; nor do they include the prescriptions dispensed at Tri-State. The Investigations of Respondent As found above, in April 2003, Respondent commenced his employment at Tri-State. On April 17, 2003, one day after Respondent obtained his DEA registration at Tri-State's 1200 Gay Street location, Agent Kevin Kinneer of the Ohio State Board of Pharmacy received two reports from Portsmouth pharmacists regarding Respondent's prescribing practices. GX 12, at 1-2. The first pharmacist reported that Respondent was “writing large quantities of narcotics and benzodiazepines,” and that his patients were presenting “prescriptions for 180 to 300 tablets of Lorcet 10/650 mgs.,” *id.* , a schedule III controlled substance containing hydrocodone and acetaminophen. ALJ at 5. The pharmacist further reported that some patients had “two types of narcotic prescriptions,” that the prescriptions were for a quantity beyond the “manufacturer's suggested [daily] supply of Tylenol [acetaminophen] intake,” and that “[t]hese patients also had prescriptions [for] Xanax 2 mg. and a Soma [carisoprodol] prescription.” *Id.* The pharmacist further reported that “many of the patients are prior problem patients” of a physician (Dr. Proctor), 8 who had been convicted of drug trafficking and is currently incarcerated. *Id.* at 1-2; Tr. 1015. According to the pharmacist, these persons “had prior drug abuse problems” including arrests on drug charges. GX 12, at 1-2. The pharmacist also told Agent Kinneer that “he would not fill any of” Respondent's prescriptions. *Id.* at 2. 8 The pharmacist also stated that these individuals were patients of another problem physician, Dr. Williams. GX 12, at 2. The testimony indicates that another area physician, Dr. Fortune Williams, was convicted of drug trafficking, but his conviction was overturned on appeal. Tr. 1016. It is unclear whether the pharmacist's reference to Dr. Williams was to this individual. The second pharmacist told Agent Kinneer that he had “refused to fill prescriptions for high quantities of narcotics and Xanax 2mgs and Soma [that were] prescribed by” Respondent. *Id.* The pharmacist further notified Agent Kinneer that Respondent was prescribing “duplicate therapy of narcotics” and large amounts of acetaminophen. *Id.* Approximately two months later, another Portsmouth-area pharmacist informed Agent Kinneer of “trouble with [Respondent's] patients.” *Id.* More specifically, the pharmacist reported that on or about June 11, 2003, five persons came in a van to his pharmacy and that one of them “smelled of beer and dope.” *Id.* These persons all presented “the same type of prescriptions” and the pharmacist refused to fill them. *Id.* ; Tr. 255-56. One week later on June 18, 2003, Respondent telephoned Agent Kinneer and complained that local pharmacists were refusing to fill his prescriptions. Tr. 256. Respondent demanded that the Board order the pharmacists to fill his prescriptions. *Id.* ; GX 12, at 3. Agent Kinneer told Respondent that he was not going to do so because the pharmacists had the right to exercise their own professional judgment in practicing pharmacy. GX 12, at 3; Tr. 256. Throughout the summer of 2003, Agent Kinneer received further complaints from pharmacists about Respondent's prescribing practices. GX 12, at 3. These included that many of the patients were from Kentucky, West Virginia and Tennessee; that Respondent was writing prescriptions for multiple narcotics, Xanax 2 mg. and carisoprodol “for the same patient [in] high quantities”; that the prescriptions were for drugs with “a high abuse potential”; that “[f]amily members within the same address [were] receiving the same type of controlled substance”; that “many of the patients” were known “to be drug abusers”; and that some of the patients had “large amounts of cash on their person.” *Id.* Agent Kinneer also received information that Respondent had called pharmacists and demanded that they fill his prescriptions. *Id.* Moreover, between July and September 2003, pharmacists in Columbus and Cincinnati notified Agent Kinneer that persons were presenting prescriptions issued by Respondent. *Id.* at 5. On July 22, 2003, Agent Kinneer (and another state agent) visited Tri-State to conduct an inspection pursuant to Respondent's obtaining of a clinic license, which under Ohio law, was required “to obtain controlled substances to dispense out of [the] clinic.” Tr. 244; *see also* GX 12, at 3. During the inspection, Alice Huffman told the agents that a bodyguard patrolled the parking area and monitored the waiting room. 9 GX 12, at 3-4. The agents observed the security arrangements, explained recordkeeping requirements, provided Respondent and Ms. Huffman with copies of the applicable federal and state laws and regulations, and gave Respondent the license. *Id.* at 4. 9 It is unclear whether there were multiple bodyguards on the premises. During an inspection conducted on December 30, 2003, Agent Kinneer noted that there were two bodyguards at the clinic. On December 30, 2003, Agent Kinneer and another agent went to Tri-State's new address at 1219 Findlay St. to conduct an inspection for a new license. *Id.* at 5. Agent Kinneer found numerous violations including incomplete dispensing logs for several controlled substances. GX 11, at 2. More specifically, the dispensing log for hydrocodone/apap 10/650 had not been completed since August 15, 2003. *Id.* Respondent had, however, ordered thousands of dosage units of this drug after August 15th. *See* GX 10, at 147-48. As for the other controlled substances the clinic was dispensing, Agent Kinneer found that the last entries for both Xanax 1 mg., and diazepam 10 mg., had been made on August 15, 2003. 10 GX 11, at 2. He also found that while the log for hydrocodone/apap 10/325 mg. had been started on August 11, 2003, the last entry was dated the following day. *Id.* 10 Both logs were started on July 30, 2003. GX 11, at 2. Agent Kinneer further found that numerous DEA 222 forms, which are required to order schedule II controlled substances, were not properly completed. *Id.* He observed that Alice Huffman, who was not a registered pharmacist, was dispensing drugs without obtaining Respondent's final approval. *Id.* at 3-5. He also found “four vials of unmarked pills with unknown medications [in] the dispensing area.” *Id.* at 6. In his report, Agency Kinneer further stated that he “found this clinic not to be your normal Doctor's Office.” *Id.* In support of his conclusion, Agent Kinneer noted that there was a Glock handgun in the dispensing area, that there were two night sticks and a four-foot long club with leather straps, and that these were “things that [he] normally would not see in a physician's office or a dispensing area.” Tr. 259-60; GX 12, at 7. Agent Kinneer also noted that Respondent was treating both Denise and Alice Huffman, that he had prescribed narcotics for them, and that both appeared to be “over medicated.” GX 12, at 6. In his testimony, Agent Kinneer also related that he had received reports that “there would be 20 to 30 cars lined up outside of [Respondent's] practice,” and that people would be lined up waiting to enter the clinic. Tr. 260-61; *see also* Tr. 455-56 (testimony of Detective John Koch, Scioto County Sheriff's Office that he observed a “large group of people outside the office,” and that he had “never seen that outside of a doctor's office, where groups of people would hang out”). Agent Kinneer thus concluded that Respondent was running a “prescription mill.” *Id.* at 260. Nonetheless, on February 4, 2004, following receipt of a letter from Respondent which stated that Tri-State was “now currently in compliance with all issues” found at the inspection and that “[a]ll log books are current and up to date and are being kept current,” GX 11, 11 Agent Kinneer delivered a new license to Tri-State and obtained Respondent's dispensing records. GX 12, at 6. The same day, Agent Kinneer contacted three distributors (Cardinal, McKesson, and Moore Medical) to obtain copies of Respondent's purchases from them. GX 12, at 6-7. 11 While the letter is dated January 19, 2003, it references the December 30, 2003 inspection report. *See* GX 11. I thus find that the letter was actually sent on January 19, 2004. As discussed below, during a search warrant which was executed on June 7, 2005, Tri-State did not have any logbooks for 2004. *See* Tr. 612. The purchase records showed, *inter alia,* that between October 13, 2003, and January 12, 2004, Respondent had purchased 277,500 tablets of Roxicodone 30 mg., a schedule II controlled substance. GX 12, at 7. Moreover, between August 18, 2003, and January 6, 2004, Respondent purchased 65,700 tablets of oxycodone hcl 5 mg., and 59,000 tables of oxycodone/apap (5/325 mg.). *Id.* The records also showed that between July 24, 2003, and October 21, 2003, Respondent purchased more than 57,000 dosage units of combination hydrocodone/apap drugs in 10/325 mg., 10/500 mg., and 10/650 mg. strengths. 12 *Id* . Furthermore, between various dates, he had purchased more than 32,600 dosage units of benzodiazepines including alprazolam in 1 mg. and .5 mg. strengths, and both diazepam and lorazepam in 10 mg. strength. 13 *Id* . at 7. 12 Respondent was also purchasing large quantities of combination hydrocodone/apap drugs from PD-RX Pharmaceuticals, Inc., during this period *See* GX 10, at 147-48. 13 According to the testimony of a detective with the narcotics unit of the Scioto County Sheriff's Office, the illegal trafficking of prescriptions drugs is “[t]he number one [drug] problem” in the County. Tr. 444. The Detective further testified that oxycodone, which is the “most abused” drugs sells “for between 30 and 40 dollars per pill” of thirty milligram strength, that Xanax sells for “between $5 and $12” per pill depending upon its strength, and that combination hydrocodone drugs sell for “between $7 to $15” per pill. Id. at 450. In late June 2003, a Diversion Investigator
(DI)with DEA's Columbus, Ohio office received a phone call from a pharmacist in Kenova, Ohio. Tr. 472, 508, GX 6. The pharmacist inquired as to whether Respondent had an active DEA registration; he also told the DI that he was “receiving numerous prescriptions for OxyContin and Percocet,” as well as Lorcet, Xanax and Soma (carisoprodol), which Respondent had written. Tr. 472-73, 508. The pharmacist also stated that between June 1, 2003, and July 15, 2003, Respondent's “prescriptions had tripled” and that the prescriptions were for “very large” quantities. *Id.* at 473. The pharmacist further told the DI that the persons who were presenting prescriptions from Respondent “were lining up outside” of his pharmacy to get them filled. *Id.* at 507-08. The DI further testified that she had received phone calls from numerous other pharmacies regarding Respondent's prescribing practices including pharmacies that were located in Northern Kentucky and Columbus, Ohio. *Id.* 476. The pharmacists reported that Respondent was prescribing “very high quantities” of OxyContin, Percocet, Lortab, Xanax, and Somas, and that the patients were paying cash for their drugs. 14 14 The DI also received information from an FBI task force officer. Tr. 475. The officer told the DI that an informant had obtained a prescription from Respondent without the latter having performed an evaluation on him, and that Denise Huffman had filled the prescription for “approximately $200.” *Id* . The DI did not, however, testify as to what drug was involved. *See id.* The DI also received a phone call from a DI in Forth Worth, Texas, regarding a report from McKesson, a distributor, that Respondent had ordered large quantities of combination hydrocodone/apap. Tr. 482. More specifically, McKesson had reported that on August 7, 2003, Respondent ordered thirty 100-count bottles of combination hydrocodone/apap, and on August 15, 2003, he ordered forty 100-count bottles of the drug. *Id.* Moreover, on August 22, 2003, Respondent ordered twenty 100-count bottles of combination hydrocodone/apap, as well as twenty 100-count bottles of alprazolam. *Id.* ; see also GX 15, at 3-5. Thereafter, the DI obtained copies of invoices documenting Respondent's purchases of controlled substances from McKesson and other distributors. GX 14-16. In November 2003, the Columbus-based DI was contacted by another Portsmouth-based physician who informed her that “there were numerous patients that were coming from [Respondent's] office” who were seeking detoxification treatment. Tr. 483. The physician related that Respondent had put the patients on excessive amounts of opiates such as OxyContin, Percocet, and hydrocodone. *Id.* The physician also told the DI that Respondent was telling the patients to go to particular pharmacies to get their prescriptions filled. 15 *Id.* at 484. 15 The DI also testified that she had been informed that one of Respondent's “patients” had contacted DEA regarding her visit with Respondent. *Id* . The patient related that she had taken a friend with her to the clinic and had been “scolded” for doing so by Denise Huffman, the clinic owner, because “she didn't like anybody coming with patients,” *id* . at 486, and “law enforcement was watching the building.” *Id.* at 488. The patient further stated that Respondent had prescribed Soma and an analgesic even though he “only saw her for a couple of minutes” and had little interest in reviewing her x-ray. *Id.* at 485. Because of what was going on at the clinic, the patient decided to see another physician. *Id* . at 486. Respondent's office repeatedly refused to send her records to her new physician and the patient had to retain an attorney to obtain them. *Id.* at 486-87. Thereafter, DEA investigators obtained records from various pharmacies pertaining to Respondent's prescriptions. *Id.* 489; see also GX 18-20, 22-25. A DI also obtained from the State of Kentucky the previously mentioned KASPER report. *See* GX 26. Moreover, in April-May 2005, the Agency also obtained records pertaining to Respondent's purchases from four distributors (PD-RX Pharmaceuticals, Cardinal, McKesson, and Moore Medical). *See* GX 29. On June 7, 2005, DEA investigators executed a search warrant at the Tri-State facility and seized the controlled substances that were on the premises, patient records, invoices, DEA Form 222s, and financial records. 16 Tr. 541, 696-97. One of the DIs interviewed Denise Huffman, Tri-State's owner. Denise Huffman told the DI that based on what Respondent “told her to order,” she would order the controlled substances from the distributors. *Id.* at 543. Ms. Huffman also stated that the clinic did not do third-party billing and was a “full cash business.” *Id.* Ms. Huffman further related that her daughter Alice and Respondent “were in complete control of the dispensing center.” *Id.* at 545. 16 “To accommodate” Respondent, the investigators made copies of the medical records and provided them to the clinic before “the summer ended.” Tr. 697. The DI also interviewed Alice Huffman, who confirmed that Tri-State “was a cash only business” with “no third-party billing.” *Id.* at 544. Alice Huffman admitted that she filled “all the prescriptions and was supposed to keep the records,” including the dispensing records, but did not. *Id.* Alice Huffman further stated that “she wasn't sure” if there were any inventories and “didn't know if they” would be accurate if there were any. *Id.* at 545. When asked by the DI whether she was aware of whether any of Tri-State's patients had overdosed, Huffman gave the names of two persons “that she believed had overdosed on prescriptions that were written from the clinic.” 17 *Id.* 17 The circumstances surrounding the overdose of one of these persons ( K.R.) is discussed below. The same day, DEA investigators attempted to interview Respondent at his residence, but he declined. *Id.* at 691. Later that day, Respondent arrived at the clinic and he eventually agreed to an interview. *Id.* at 692. Regarding the interview, the DI testified that Respondent “declined to talk” when asked about the deaths of Tri-State's patients. *Id.* at 694. Respondent further maintained that he was an independent contractor and serving as a “loc[um] ten[ens]” practitioner 18 who had found his position on the internet. *Id.* at 695. Respondent could not, however, “recall what company * * * he was a loc[um] ten[ens] for,” *id.,* and, of course, had been working at Tri-State for more than two years at that point. 18 As commonly understood, the term “locum tenens” means “one filling an office for a time or temporarily taking the place of another.” *Webster's Collegiate Dictionary* 684 (10th ed. 1998). Moving on to other subjects, Respondent stated that the clinic did not have a physical therapist on its staff and he was not sure whether the clinic even had a nurse. *Id.* at 695. Respondent also told the DI that he “rarely recommend[ed] people to other physicians” and that “for the most part,” he did not associate with other area physicians. *Id.* at 695-96. On the same day that the warrant was executed, DEA investigators attempted to conduct an accountability audit. *Id.* at 546. The investigators inventoried all of the controlled substances that were being seized. *Id.* at 613-14. Consistent with Alice Huffman's testimony, the DIs did not find either any initial or biannual inventories as required by Federal regulations. *Id.* at 615. Nor were there any dispensing logs for the year 2004. *Id.* at 612. Using records subsequently obtained from various distributors, the DI was able to determine the amounts of the various controlled substances Respondent purchased during the audit period and concluded that there were substantial shortages of the drugs. *Id.* at 615. These records also showed that Respondent had ordered large quantities of alprazolam (2 mg.) and diazepam (10 mg.), hydromorphone (4 mg.), and both oxycodone and combination hydrocodone in various strengths. GX 30. I find it unnecessary to make findings regarding the actual amounts of the shortages. 19 Instead, I find that Respondent authorized the ordering of large quantities of numerous controlled substances, and that the disposition of these drugs cannot be adequately accounted for because Respondent failed to maintain accurate records. 19 Because Tri-State had no inventories, the DI used the starting figure of “0” for each drug. Under the heading for the closing inventory, the audit chart stated “as of 12-31-04.” GX 30. The DI testified, however, that the actual inventory was taken on June 7, 2005. Tr. 613. The record does not establish how the DI arrived at the inventory figures for December 31, 2004. There was also testimony that during the search, Denise Huffman stated that the dispensing logs “were probably at her house.” Tr. 669. Eventually, Ms. Huffman produced logbooks for 2005; Ms. Huffman admitted, however, that there were no records for 2004. *Id.* at 670. The DI further testified that the logbooks were provided only after the Government provided copies of the patient files subsequent to the search. *Id.* at 674-75. The logbooks “were brand new,” and appeared to have been newly created based on the copies of the medical records. *Id.* On September 9, 2005, Respondent's relationship with Tri-State ended. *Id.* at 1433-34. Respondent initially saw patients at his apartment in Portsmouth. *Id.* at 1434-35. Regarding his activities at this location, a DEA Investigator testified that he had interviewed the friend
(DC)of one of Respondent's deceased patients (M.R.). Tr. 761. DC told the investigator that he and M.R. “knew that [Respondent] was writing prescriptions without any type of medical examination.” *Id.* Accordingly, they decided to see Respondent (at his Center St., Portsmouth) address to obtain drugs that they could sell on the street. *Id.* DC related that upon his arrival at Respondent's office, he encountered a former girlfriend who was now working for Respondent. *Id.* at 762. After filling out various forms, the ex-girlfriend asked DC what he was taking. *Id.* DC asked her: “what is he writing?” *Id.* She then wrote out “prescriptions for oxycodone, a hydrocodone product, and Xanax.” *Id.* DC further related that Respondent did not physically examine him. Respondent signed the prescriptions and engaged in small talk with DC before Respondent left the exam room. *Id.* at 763-64. On October 4, 2005, the Portsmouth Police Department executed a warrant at Respondent's apartment and seized various items including patient files. 20 *Id.* at 1436-37. The Chief of Police also issued a condemnation notice, which in Respondent's words, ordered him “to immediately vacate the premises.” *Id.* at 1437. 20 Respondent testified that the seizure occurred because the police “were bigger than I was, and they decided that they were going to come in and do that.” Tr. 1436. He also maintained that the “search warrant * * * contained a lot of frankly irrelevant materials.” *Id.* Respondent did not, however, produce any evidence that a court had quashed the warrant. Approximately a week later, Respondent relocated to Chillicothe, Ohio. *Id.* at 1437-38. On February 6, 2006, DEA investigators obtained a warrant to search Respondent's Chillicothe office. GX 78. On February 10, 2006, the warrant was executed and additional patient files were seized. GX 73. A DI subsequently reviewed the 1258 patient files that were seized during both the June 2005 search of Tri-State and the February 2006 search of Respondent's Chillicothe office. *Id.* Most significantly, the DI determined that 900 of the patient files lacked documentation that Respondent had performed a physical examination on the patient. *Id.* During the course of the investigation, DEA investigators received information from various sources including family members, friends, emergency room physicians, and various coroners indicating that sixteen persons had died of drug overdoses shortly after seeing Respondent. Tr. 617-20; *see also* GXs 32-60. For example, the widow of J.R. testified that her husband had obtained prescriptions from Respondent for Oxycontin, oxycodone, hydrocodone, valium, and Soma, and was receiving as many as 622 pills per month. Tr. 40, 42-43. At one point J.R. attempted to commit suicide and was hospitalized; J.R., however, was released. *Id.* at 81-82. On November 18, 2003, J.R. visited Respondent. Id. at 53; GX 61. On the morning of November 20, 2003, J.R. was found dead in the bathroom. Tr. 52. According to the Deputy Coroner's report, there were four pill bottles on the bathroom sink: two bottles were labeled as containing oxycodone (Rx'd on 10/3/03 and 10/20/03) although both were found empty; one contained 12 tablets of diazepam out of the original 90 count which was prescribed on 11/18/03; and one bottle contained three methadone tablets. See GX 60, at 4. Respondent was listed as the prescriber on the two oxycodone and the diazepam bottles. *Id.* No prescriber was listed on the bottle which contained methadone. Id. The coroner found that the immediate cause of J.R.'s death was an “overdose” due to multiple drug intoxication. GX 60, at 1. *See* also GX 59. According to J.R.'s widow, her husband was addicted to drugs. Tr. 33, 45. She also testified that her husband was selling some of his drugs to pay for his visits with Respondent. *Id.* at 64. According to her testimony, her husband had told her that Respondent “was trying to give him [S]omas also and to take them, and that [Respondent] said if he didn't take them to sell them.” *Id.* at 42. J.R.'s step-daughter corroborated this testimony. More specifically, she testified that her step-father had “said that I could get more if I wanted. [Respondent] offered me [S]omas, and I told him that I was allergic to them, and he [Respondent] said sell them, trade them, whatever you need to do.” 21 *Id.* at 104. 21 While Soma (carisoprodol) is a prescription drug, it is not a controlled substance. It is, however, a highly abused drug which metabolizes into meprobamate, a schedule IV depressant. *See* 21 CFR 1308.14(c); ALJ Ex. 11, at 4; Tr. 934 (testimony of Dr. Wheeler). Respondent's statements to J.R. to sell or trade the drug are nonetheless relevant to show his knowledge and intent. During the June 2005 search of Tri-State, DEA investigators “could not find [J.R.'s] medical chart.” *Id.* at 706; see also id. at 709. The investigators did, however, find a “sign-in sheet” which indicated that J.R. had visited Respondent on November 18, 2003, two days before his death. *Id.* ; see also GX 61. DEA did, however, obtain the medical charts of six “patients” who died while under Respondent's care and provided these to L. Douglas Kennedy, M.D., for his review. GX 74. Dr. Kennedy holds medical licenses in Kentucky, Ohio, and Florida, and board certifications in anesthesiology and pain medicine. GX 63, at 9. He has been a fellow in pain medicine at the Cleveland Clinic Foundation, served as an assistant professor of anesthesiology and director of the chronic pain management program at the University of Kentucky Medical Center, and has approximately fifteen years experience as the medical director of a pain management practice. GX 63, at 1-2. Dr. Kennedy has also lectured on pain management at numerous symposia and conferences. *Id.* at 3-7. Dr. Kennedy was qualified as an expert witness in the standard of care in pain management and the prescribing of controlled substances for the treatment of chronic pain. Tr. at 1021-22. Dr. Kennedy specifically reviewed records including Respondent's patient files for six individuals (M.C., S.H., S.J., C.J., D.P, and K.R.). GX 74, at 1-5; *see also* Tr. 1084-89. He also “reviewed past or concurrent medical records present on [Respondent's] ‘patient' charts from other physicians [and]/or medical facilities,” police reports, as well as death certificates, autopsy, coroner's, and post-mortem toxicology reports. GX 74, at 1. In his report, Dr. Kennedy further stated that he had reviewed, and was “generally familiar with, regulations including Ohio Administrative Code, Chapter 4731-21 on Intractable Pain,” the Federation of State Medical Board's Model Policy for the Use of Controlled Substances for the Treatment of Pain, and “other applicable standards and guidelines with respect to pain management and the prescription of controlled substances for same.” *Id.* at 2. 22 22 While much of the cross-examination of Dr. Kennedy focused on his reliance on the Kentucky guidelines, in both his report and testimony, Dr. Kennedy made clear that he had also reviewed the Ohio Administrative Code. *See* Tr. 1198-1203. When Dr. Kennedy offered to explain why Respondent also violated the Ohio regulations, Respondent's counsel declined to pursue this line of questioning. *Id.* at 1202-03. Dr. Kennedy specifically noted that the drugs Respondent prescribed “were present in the Toxicology Testing post-mortem and were the primary (in some cases the only) cause of death.” 23 *Id* . at 4. He further found that Respondent “practiced ‘polypharmacy[,]’ prescribing multiple controlled substances at the same time.” *Id.* at 5. Relatedly, Dr. Kennedy observed that Respondent “averaged 3.8 controlled substance prescriptions for each ‘patient’ visit,” and that “[t]his increased the likelihood of sedation, respiratory depression and death.” *Id.* He also noted that “[d]eath occurred on average * * * [three] days after the last visit with [Respondent] [with] some [occurring] the next day.” *Id.* 23 With respect to patient M.C., the record establishes that she saw Respondent on January 8, 2004, and died on January 10, 2004, at the age of 32. GX 84, at 6-7; GX 44. During the January 8 visit, Respondent issued her three prescriptions: one for 300 tablets of Norco (hydrocodone/apap 10/325); one for 60 tablets of oxycodone 30 mg.; and one for 120 tablets of Xanax 2 mg. GX 84, at 6-7. The coroner concluded that M.C. died from “intoxication” caused “by the combined effects of oxycodone and hydrocodone.” GX 42 & 44. With respect to patient S.H., the record establishes that he saw Respondent on April 19, 2005, and died the next morning at the age of 33. GX 84, at 12-14; GX 38, at 3. During the April 19 visit, Respondent issued him prescriptions for 360 tablets of oxycodone (15 mg.) with an instruction to take 12 per day; 120 tablets of Valium (10 mg.); 30 tablets of Xanax (2 mg.), and another drug Carafate, which is not controlled. GX 84, at 12-13. Respondent also issued an RX for an MRI during this visit. The coroner concluded that S.H. overdosed and died of the “acute combined effects of oxycodone, diazepam, and alprazolam.” GX 38, at 1. With respect to S.J., the record establishes that she saw Respondent on both September 16 and September 29, 2005. On September 16, Respondent prescribed to her 270 tablets of oxycodone 30 mg.; 270 tablets of Percocet 5/325 (oxycodone/apap); 60 tables of Xanax (2 mg.), and 120 tablets of Soma
(350)even though her pain was indicated as being “2/10.” GX 84, at 21-24. On September 26, 2005, Respondent prescribed to S.J. an additional 135 tablets of both Percocet 5/325 and oxycodone 30. *Id.* at 25-26. The form documenting the 9/26/05 visit does not contain any indication of a medical complaint and the entry for “Pain: Location, Description, Duration” is blank. *Id.* at 26. S.J. died September 30, 2005; the coroner concluded that the cause of death was “[m]ultiple drug intoxication, with acute bronchopneumonia contributing.” GX 55, at 2. The coroner further noted that S.J., who was 30 years old, had ingested oxycodone, alprazolam, cocaine and diphenhydramine. *Id.* at 2-3. With respect to K.R., the record establishes that on March 8, 2004, Respondent gave her two separate prescriptions for 90 tablets of oxycodone 30 mg., a prescription for 180 tablets of Lorcet 10/650 (hydrocodone/apap), and a prescription for 120 Xanax (2 mg.). GX 84, at 10. The progress note for the visit suggests that Respondent also gave her a prescription for Soma 350. *Id.* at 11. K.R, who was 39 years old, died the following day of a drug overdose. GX 51, at 2. The toxicology report indicates that oxycodone, benzodiazepines, and carisoprodol /meprobamate were present. *Id.* at 3. Dr. Kennedy specifically noted that Respondent had “essentially doubled” K.R.'s medication “the day before she died,” and that he saw “no indication for her being on the medicines in the first place, let alone [Respondent's] doubling them.” Tr. 1090. With respect to C.J., the record establishes that on October 16, 2003, Respondent gave him prescriptions for 120 tablets of oxycodone 30 mg., 180 tablets of Percocet 10/650 (oxycodone/apap); 180 Xanax 2 mg., and 90 Soma 350 mg. GX 84, at 3-5. The progress note indicated that C.J.'s pain level was 5-6/10, and his spasms were 0/10. *Id.* at 5. C.J. died five days later; the coroner determined that the cause of his death was “acute opioid (oxycodone) toxicity.” With respect to D.P., the record establishes that on August 11, 2004, Respondent issued to him prescriptions for 300 tablets of oxycodone 30 mg., 360 tablets of hydrocodone/apap (10/325), 120 tablets of alprazolam 2 mg., and 180 tablets of carisoprodol 350 mg. GX 26, at 385. D.P. filled the first two prescriptions the same day, and filled the latter two the next day. *Id.* According to the chart, D.P. reported that his pain level was “O-1/10,” and his spasms were “0/10.” GX 84, at 17. There is a notation “See Cleve. Clinic Report,” but the note does not say what the referral was for. *Id.* There is also a notation that Rx Express Pharmacy had been called and D.P. had not filled either the Soma or Xanax prescriptions, *Id.* ; he did, however, fill them the next day. *Id.* While the record does not contain D.P.'s death certificate, the testimony establishes that he died on August 12, 2004. Tr. 736. Moreover, the toxicology report confirmed the presence of oxycodone in D.P.'s blood. GX 34, at 2. According to the spreadsheet compiled by Dr. Kennedy, there is a handwritten note on a preliminary toxicology sheet which states that D.P.'s death was caused by “acute oxycodone toxicity.” GX 82. Dr. Kennedy further described Respondent's practices as “prescrib[ing] drug ‘cocktails’ * * * often including an opioid[] (often 2-3 types), a benzodiazepine, and Soma.” *Id.* at 3. According to Dr. Kennedy, Respondent's prescribing practices “greatly increased the chance for drug abuse, diversion, [and]/or addiction.” *Id.* Moreover, based upon his review of the “patient charts” (which is more fully set forth in GX 82), Dr. Kennedy found that Respondent “did not establish a doctor-patient relationship on initial visits, and did not establish or maintain such a relationship on followup visits.” GX 74, at 3. Relatedly, Dr. Kennedy noted that “[t]here was inadequate or no history [and] physical examination,” that “[t]here was seldom any diagnostic testing or past medical record present,” and that “[w]here there was, [Respondent] did not rely upon it for medical decision making.” *Id.* at 4. Dr. Kennedy also observed “[t]here existed no plan to diagnose or treat the person's problem(s),” and that “[t]he ‘plan of care’ was essentially the same for every person: drugs (predominately controlled substances), for which no medical necessity was established.” *Id.* Moreover, once Respondent began his “ ‘plan of care’ * * * [he] continued [it] with no reassessment as to effect, success, or ill effects.” *Id.* Relatedly, Dr. Kennedy found that Respondent “did not regularly and consistently address pain complaints with other methods, for example, nonprescription drugs, non-controlled substance prescription drugs, physical therapy or behavioral medicine consultation, before resorting to controlled substance prescriptions.” *Id.* at 3. Dr. Kennedy also concluded that Respondent “ignored and failed to obtain necessary testing and consultations (with Behavioral Medicine, Psychiatry, or Addiction Medicine) that would have identified and then allowed treatment for abuse and addiction as well as identifying those persons who may have been diverting the drugs.” *Id.* at 5. More specifically, Dr. Kennedy found that Respondent “rarely tested, checked for, or heeded signs of addiction (he rarely performed in office urinary drug screens). When he did perform in office urinary drug screens, the tests were inadequate.” 24 *Id.* at 3. As Dr. Kennedy explained, if a test does not pick up a drug that a physician has prescribed, it raises the possibility that the “person could have been selling those drugs.” Tr. 1091. Dr. Kennedy further noted that Respondent “prescribed and continued to prescribe controlled substances to persons who exhibited behavior consistent with possible drug abuse, addiction [and]/or diversion.” *Id.* at 3. 24 According to Dr. Kennedy's spreadsheet, Respondent did not perform a single urinary drug screen on M.C., even though she made five visits to him over a four month period. GX 82. Notably, M.C.'s toxicology report was positive for cannabinoids. *Id.* Dr. Kennedy thus concluded that M.C.'s use of marijuana “most likely would have been picked up by [Respondent] if he had checked, triggering an addiction medicine [and]/or law enforcement evaluation.” *Id.* According to Dr. Wayne Wheeler, who also testified as an expert witness for the Government, M.C.'s emergency room records indicate that on August 5, 2003, she had been in a car accident; a drug test done at the hospital indicated that she was positive for marijuana and “the police report indicated she had taken Soma and Percocet and lost control of her vehicle.” Tr. 946. Dr. Kennedy noted that S.J. “had been dismissed in 2003 for falsifying symptoms and cancer records.” GX 82. Respondent did not, however, perform a drug screen on S.J. *Id.* Dr. Wheeler noted that S.J. had made “multiple visits to the emergency room” for conditions (falls, headaches, dental pain) that are the “hallmarks of * * * pill-seeking behavior” because it is “very hard to find objective evidence” that the patient is not telling the truth. Tr. 948. Dr. Kennedy also noted that Respondent did not perform a single drug screen on D.P., even though he had visited Respondent seventeen times over the course of sixteen months and had received a total of 74 controlled-substance prescriptions from him. GX 82. Respondent performed only a single drug screen on S.H., even though he was a patient for more than two years and saw Respondent thirteen times. *Id.* He also noted that S.H. had previously been treated at Tri-State (albeit at a different location) and that records of an earlier visit indicated an abnormal drug screen in that S.H. indicated that he was currently taken Lortab 10/500 and the screen was negative. *Id.* Moreover, S.H. had previously been hospitalized for mental illness; these records indicated that S.H. had stated that “he has smoked pot [and], taken Cocaine.” *Id.* Moreover, S.H. had a Xanax bottle which had been filled ten days earlier but was then empty. S.H. had also stated that he was out of medications and that prior to his admission, he was taking Xanax, Oxycontin, and oxycodone. *Id.* The note also stated that S.H. had a history of “significant alcohol abuse” and “[s]uicidal ideation with family member stating that the patient does have the potential for self-destructive behavior.” *Id.* Moreover, the patient had tested positive for benzodiazepines and cocaine but negative for opiates. *Id.* As Dr. Kennedy noted in the spreadsheet, “[t]here are numerous ‘red flags’ for significant mental illness * * * with medication non-compliance, drug abuse & addiction (polysubstance abuse), and general non-compliance with treatment recommendations.” *Id.* Respondent performed a single drug screen on C.J., who was his patient for more than six months and saw him seven times. *Id.* During the screen, only cocaine and THC were checked for. *Id.* Finally, with respect to K.R., who was a patient for nearly eleven months and made 14 office visits during this period, Dr. Kennedy noted in his spreadsheet that Respondent had obtained two in-office drug screens. GX 82. On cross-examination, it appeared that both screens were ordered by a different physician, who was practicing in Tri-State's South Shore, KY office, and not Respondent. *Id.* ; *see also* Tr. 1182-83, 1186. The first of these occurred on December 1, 2003, nearly eight months after K.R.'s first visit; the second drug screen was obtained on January 23, 2004. GX 82. Dr. Kennedy noted that the first screen did not test for oxycodone and that the second test did not check for specific opiates or benzodiazepines. *Id.* Dr. Wheeler noted that while Respondent had referred K.R. to a yoga class, she went only one time and decided not to go back. Tr. 949. According to Dr. Wheeler, allowing the patient to quit after one class does not give that treatment “modality a reasonable chance to produce any positive results.” *Id.* Dr. Kennedy thus concluded that Respondent “did not establish” a bona-fide doctor patient relationship or “any relationship adequate for prescribing controlled substances on the [patient's] initial visit” or “on subsequent visits.” *Id.* at 4. Most significantly, he concluded that Respondent “knowingly and intentionally distribute[d] prescriptions for oxycodone and other controlled substances not for a legitimate medical purpose and beyond the bounds of medical practice.” *Id.* Finally, Dr. Kennedy concluded that Respondent's “distribution of multiple and regular controlled substances resulted in the death” of “all [six]” patients whose records he examined, and that “each one of these [six] deaths was preventable.” *Id.* at 4-5. 25 25 The Government also called to testify Dr. Wayne Wheeler, who is licensed in Ohio and other states, and holds board certifications in both emergency and occupational medicine, as well as quality assurance and utilization review. Tr. 907-08. Dr. Wheeler also has extensive experience in emergency medicine and has served as a deputy coroner of Scioto County, Ohio, since 1990. GX 69, at 2. Dr. Wheeler is a member of the Ohio Medical Malpractice Commission, a board member of the Ohio Patient Safety Institute, and Chairman of the Ethics Committee at the Southern Ohio Medical Center of Portsmouth. *Id.* Dr. Wheeler was accepted as an expert in occupational medicine. Tr. 915. Dr. Wheeler testified that prescription drug abuse is “a particular problem in Scioto County.” *Id.* at 917. Dr. Wheeler explained that in treating a chronic pain patient, a physician must determine the patient's complaint, the history of the problem including “what therapies have been tried” and “who has been taking care of the problem,” and how the condition has “developed.” *Id.* at 922. Dr. Wheeler also testified that the treating physician “need[s] to get a past medical history, which included other injuries, other illnesses,” including “psychiatric histories” and “social backgrounds.” *Id.* Next, the physician should do “a top-to-bottom physical exam.” *Id.* Finally, if other practitioners have been “caring for [the] patient, it become * * * fairly important that you get their records and find out what they have done and what their impressions have been.” *Id.* at 923. Dr. Wheeler explained that patients sometimes “don't really understand what has been told them about their condition or they cover up material or just intentionally leave it out.” *Id.* Dr. Wheeler further testified that in evaluating a patient, it is “essential” to determine if there is “a history of overdosing on drugs” or of psychiatric problems. *Id.* at 927. He also explained that he would have his patients sign releases so that he could obtain the patients' records from the other physicians who had previously treated them, as well as emergency room and hospital records. *Id.* at 928. According to Dr. Wheeler, obtaining emergency room records is “not a terribly laborious or complicated process.” *Id.* at 951. On cross-examination, Dr. Wheeler further explained that while it was not his experience that a hospital would fail to provide the records to a physician, a patient is entitled to her medical record. *Id.* at 988. While Dr. Wheeler acknowledged that “pain is very subjective,” he added that some patients exaggerate their pain level. *Id.* Moreover, he would not prescribe a narcotic unless he “truly believed” the patient was “experiencing pain somewhere in the 5 to 6 level.” *Id.* Dr. Wheeler particularly noted that drug abusers “have long track records of pain-medicine seeking behavior” with multiple visits to emergency rooms. *Id.* at 929. On cross-examination, Dr. Kennedy acknowledged that K.R's medical records indicated that Respondent had performed a physical exam on her on April 17, 2003, which was the date of K.R.'s first visit to him. 26 Tr. 1174-78. However, during his lengthy cross-examination of Dr. Kennedy, Respondent's counsel did not establish that Respondent had ever performed a followup physical examination or that he properly monitored K.R. 26 Dr. Kennedy noted that Respondent's diagnosis of “left sciatica” was “odd, because the left straight leg raise had a greater range of motion than did the right.” * Id.* at 1177. Moreover, Dr. Kennedy noted that during K.R.'s first visit with Respondent, the latter proceeded to prescribe what Dr. Kennedy termed the “cocktail” or “trifecta” of Soma, Xanax, and Lorcet 10, which is “one of the highest doses of hydrocodone.” *Id.* at 1178. 27 While Respondent testified as to the general rationale for his prescribing practices, 28 *id.* at 1416-18, he did not testify regarding his prescribing to the six deceased patients and presented no expert testimony refuting Dr. Kennedy's opinion that there was no legitimate medical purpose for prescribing these drugs in combination. GX 64, at 2; GX 74, at 5 (noting that prescribing this combination of drugs “increased the likelihood of sedation, respiratory depression and death”); Tr. 1047 (noting that the “cocktail * * * is very popular amongst those individuals who go to doctors’ offices to take drugs to abuse them, [and] not [use them] for legitimate medical purposes”); *see also id.* at 1036-37; 1189. Moreover, Respondent did nothing to impeach Dr. Kennedy's findings with respect to the remaining five deceased patients (M.C., S.H., S.J., C.J. and D.P.). 27 Respondent's counsel also cross-examined Dr. Kennedy about two referrals that K.R. was given, one for a neurosurgeon, the other for a neurologist. Tr. at 1183-84; 1186-87. Neither document was admitted into the record, and the testimony suggests that both referrals were issued by a doctor who was working at a Tri-State Clinic in South Shore, Kentucky, and not Respondent. *Id.* Moreover, Respondent's counsel did not establish that K.R. ever went to either specialist, and Respondent did not testify that he had reviewed a report from either specialist. 28 In his testimony, Respondent described at length the role of opiates in the treatment of pain; he testified that he used both oxycodone and hydrocodone because “it was perfectly appropriate, as well as usually necessary, to treat chronic severe intractable pain with two opiates, usually a stronger or long acting one [oxycodone], as well as a shorter acting one,” hydrocodone, which he used “for [his] breakthrough medicine.” 1418. As support for his testimony, Respondent cited various guidelines, Ohio's regulations, and a document of frequently asked questions published by this Agency and two other entities. Tr. 1412-15. He also justified his prescribing of carisoprodol on the grounds that “I learned that almost [all] of my patients complained of severe muscle spasms * * * usually radiating down one or both legs.” *Id.* at 1415. Finally, he justified his prescribing of either Valium (diazepam) or Xanax (alprazolam) on the ground that “virtually all of these patients needed medicine to help them sleep.” 1417-18. He also justified his prescribing of benzodiazepines as medically necessary to relieve muscle spasms. *Id.* In his defense, Respondent testified that when he “started seeing these patients, they were all new to me, and so I had to evaluate all of them pretty much from scratch.” *Id.* at 1407. Respondent maintained that he “did a physical exam on all of them, and evaluated their complaints, evaluated the medical records that were in the charts, as far as prior treatments, prior x-rays, prior MRIs, prior lab tests, prior consultations with other physicians.” 29 *Id.* Relatedly, he asserted that “[v]irtually all the patients that I found had previous consultations with neurosurgeons or neurologists,” and “[m]ost of them had surgery one or more times,” and “extensive injections given by neurosurgeons, which they reported to me had done very little to treat their pain.” *Id.* at 1409. 29 Respondent maintained that he “would always” do a physical exam during his first visit with a patient. *Id.* at 1469. He further testified that he would not necessarily do a new physical exam at a subsequent visit because in “many instances,” there was “no new factor to evaluate.” *Id.* Respondent further testified that “[m]ost of” his patients “had run the gamut of treatment from specialists, and were still in severe chronic pain,” and “fit the diagnosis and the category of chronic intractable pain patients” who “would need medicine on a continuing basis for the rest of their lives [as] there was no other treatment available to them which would in any way alleviate their pain.” *Id.* He also maintained that “I at all times attempted to verify that all the patients were in fact genuine patients who had a legitimate need and requirement for pain medication.” *Id.* at 1407. He also testified that if he did see a patient who would be helped by surgery, he would refer them to the Cleveland Clinic. *Id.* at 1410. 30 30 He also testified that he arranged for a yoga instructor to come to Portsmouth, and that the instructor did so “two days a week” for about “the better part of a year,” when Ms. “Huffman decided that she did not want to subsidize the * * * instructor any longer.” Tr. 1411-12. Respondent further testified that “each and every one of” his patients “signed narcotic contracts” which set forth that his patients were “to take their medicine” as he prescribed it and how the patients were to secure the drugs. *Id.* 1420. Relatedly, Respondent testified that he directed that the Tri-State staff call in his patients for random pill counts and that his patients were subject to “random drug screens.” *Id.* at 1421. He further asserted that he sent his patient to two hospitals “for more extensive blood and urine tests,” *id.* at 1424, and that he dismissed those patients who were non-compliant and referred them to addiction treatment programs. *Id.* at 1444. Respondent further testified that “at all times,” he documented his diagnosis, *id.* at 1471, and that he “always wrote my justification and my thinking as to why I put patients on certain medicines, and I believe that would be apparent in any reading of my charts.” *Id.* at 1472. Moreover, he maintained that he would document the patients' “response to the medication,” and any “adverse [drug] effect” and changes in medication. *Id.* at 1473. He also contended that “[a]t all times [he] would look for signs of diversion” such as abnormal drug tests and physical signs of “intravenous drug abuse or perhaps intranasal drug abuse.” *Id.* at 1474. Regarding the six deceased patients whose files Dr. Kennedy reviewed, Respondent's testimony was limited to a discussion of their autopsies and toxicology results, with in some instances, Respondent disputing the findings that the patients had taken drugs in amounts that could be definitively shown to be the cause of their deaths. *See* 1475-86.; *id.* at 1481 (testifying that “post mortem values of opiates are irrelevant to any determination of cause of death,” because the values only show “the patient having ingested those compounds, but could not speak to whether they were involved in the cause of death.”); *id.* at 1482-83 (testifying regarding toxic levels of meprobamate). However, with respect to several patients, the coroners found that these individuals had ingested not only opiates, but opiates in combination with benzodiazepines (S.H.), opiates in combination with a benzodiazepine and illicit drugs (S.J.), or opiates in combination with benzodiazepines and carisoprodol (K.R.). Moreover, even with respect to those patients who were found to have ingested only opiates, I reject Respondent's testimony either because there were other findings consistent with the Coroner's finding (M.C., GX 42; noting presence of extreme pulmonary edema, which according to Dr. Wheeler, “typically occurs when someone has overdosed on a narcotic drug [or] narcotic drugs,” Tr. 945), or because I presume that the officials performing the autopsies are competent and reviewed other information (including the clinical history, EMS run sheet, and emergency room report) that is relevant in determining the cause of death. Tr. 1196-97. The ALJ did not make a credibility finding pertaining to this portion of Respondent's testimony. She did, however, find that she “doubt[ed] Respondent's credibility” with respect to his testimony regarding his treatment practices such as whether he took medical histories and performed physical exams, had his patients sign narcotic contracts, called patients in for pill counts, and performed drug screens. ALJ at 34-35. As the ALJ explained, “[n]either Dr. Wheeler nor Dr. Kennedy testified about finding such safeguards in the patient charts they reviewed for this proceeding.” *Id.* at 35. I adopt the ALJ's credibility finding. While I acknowledge that there is evidence that Respondent performed a physical exam during K.R's initial visit, he did not introduce any evidence to corroborate that he performed a physical exam on any of the five other patients whose records were reviewed by Dr. Kennedy. Notably, Respondent was provided with the patients files for these six patients and testified that he always documented his findings. Tr. 1471. Moreover, there was other evidence suggesting that Respondent frequently failed to perform physical exams including testimony regarding an interview with DC, Tr. 762-64, and a DI's analysis that in 900 of the 1258 patient files she reviewed, there was no documentation that Respondent had performed a physical exam. GX 73. Furthermore, Dr. Kennedy's review of the six patient files establishes that Respondent rarely performed drug screens on those patients. *See* n.22. For example, Respondent did not perform a single drug screen on D.P., even though he issued 74 controlled-substances prescriptions to him during some seventeen visits over a sixteen-month period. GX 82. He performed but a single drug screen on S.H., even though he saw S.H. thirteen times over a period of two years. *Id.* This evidence, which is unrebutted by any documentary evidence, gives ample reason to reject Respondent's testimony. 31 31 In his exceptions, Respondent notes that he attempted to subpoena records from a hospital that would have showed that he “routinely and consistently ordered urine drug screens on his patients.” Exceptions at 13. Respondent states: “[o]f course, such records were simply ‘not available,’ ” implying that there is a conspiracy to deny him access to records that would vindicate him. According to Respondent: “[t]he non-production of the forgoing documents, records, and evidence fits synergistically with the course of conduct of the hearing before the ALJ and stands as a poignant indictment of the legality of the process utilized by the agency.” *Id.* at 14. The letter from King's Daughters Medical Center merely stated that the hospital was “unable to retrieve the information * * * from our system without patient specific information.” RX T. My review of the subpoena indicates that it sought “records of all urine drug screens ordered by [Respondent] from April 2003, through February 2006.” RX O, at 5. Respondent offered no evidence that the records could, in fact, be retrieved based solely on his name, and there is no evidence that he subsequently provided patient names to the hospital. Moreover, none of Respondent's other evidence (including the various exhibits he submitted on pain management and the testimony of his witnesses) rebuts Dr. Kennedy's ultimate findings that Respondent did not establish and maintain valid doctor-patient relationships with the six deceased patients and that his prescribing lacked a legitimate medical purpose and was outside of the usual course of professional practice. Only one of Respondent's three witnesses (I.A.) testified that she knew one of the deceased patients (D.P.), and she did not even know that D.P. had died of a drug overdose. Tr. 1286-87. Ms. I.A., who worked at Tri-State, and apparently did so only “a few hours now and then,” *id.* at 1284, testified that she “opened the doors,” “basically answered the phones,” “pulled charts, and once in a while . . . would write a few patients up if somebody was gone” based on what the patient told her. *Id.* at 1287-88. Ms. I.A. had no personal knowledge of Respondent's treatment of any of the six patients whose files were reviewed by Dr. Kennedy. 32 32 While Ms. I.A. testified that Respondent had sent her to several specialists, Tr. 1268, this testimony is not probative of Respondent's treatment of the six deceased patients whose files were reviewed by Dr. Kennedy. It should also be noted that I.A. was related to Denise Huffman, *id.* at 1288-89, and had testified before a grand jury on matters related to her employment at Tri-State. *Id.* Ms. I.A. also testified that Respondent ordered that blood be drawn on any patient he prescribed to, *id.* at 1318, yet there was no evidence of blood tests being performed on any of the six patients with the possible exception of a test done on S.H. at King's Daughters Hospital on March 2, 2005 (although it is unclear whether the test was a urine screen or blood test). GX 82. Based on the weight of the evidence, I reject this testimony. S.S. (who was I.A.'s sister) also testified. S.S. did not work at Tri-State and started working for Respondent only after his falling out with the Huffmans; her employment was thus limited to the time he worked out of his Portsmouth apartment and in Chillicothe. *Id.* at 1328-29. S.S. testified that she “would set up the charts” and obtain information from both the patients and the hospitals to corroborate their stories. *Id.* at 1331. S.S. further testified that Respondent “usually required his patients to have at least a year of therapy.” *Id.* at 1332. S.S. further maintained that “we obtained histories. We did physicals. We did the drug exams” and monitored the patients' “drug levels.” *Id.* S.S. did not, however, have any knowledge regarding Respondent's treatment of patients (other than her sister) at Tri-State and offered no testimony regarding his treatment of the six deceased patients. Respondent's remaining witness (E.S.M.) likewise worked for him for only two months at his Chillicothe office. *Id.* at 1363. While E.S.M. testified that Respondent made “a lot of referrals,” and that “[h]e was very strict with” monitoring patient compliance, *id.* at 1368, she did not work under him during the period in which he treated the six patients whose files were reviewed by Dr. Kennedy. Furthermore, at the time she was employed by him, Respondent clearly had reason to know that he was the subject of criminal investigations because various law enforcement authorities had twice searched his offices. Under these circumstances, even if true, evidence that Respondent was making referrals, was closely monitoring his patients and attempting to corroborate their stories, and performing physical exams, is not probative of Respondent's practices while he was employed at Tri-State. Finally, as for his exhibits, most of them are only marginally relevant to the issues in this case. While one of Respondent's Exhibits (an FAQ supported by DEA, the Last Acts Partnership, and the Univ. of Wisconsin) indicates that it may be appropriate “on a case by case basis” to prescribe more than one opiate including a short-acting one to address “breakthrough pain,” RX I, at 25; nothing in this document refutes the testimony of the Government's experts regarding the medical propriety of Respondent's prescribing of the trifecta and quadfecta cocktails. Moreover, this document notes the importance of “tak[ing] a detailed history and perform[ing] an appropriate physical examination,” “[s]creen[ing] for addictive behaviors of other family members,” and “[i]dentify[ing] concurrent psychiatric illness.” *Id.* at 31. The document further notes that the physician should “[c]onsider multiple approaches to the treatment of chronic pain” including “[n]onpharmacological and nonopioid analgesic approaches.” *Id.* The document also explains that the physician should “[r]ecognize that opioid therapy is as much a ‘therapeutic trial’ as any other treatment[,]” and that “[i]f the benefits are not clear, or the risks of adverse effects are not easily managed, the therapy can be modified or stopped.” *Id.* Relatedly, the document suggests that the physician “[s]tructure the treatment in a manner that maintains the safety of the patient, and increases both the patient's ability to maintain control and the clinician's ability to identify medication misuse.” *Id.* at 37. Among the measures which the document recommends that a physician employ are: “the prescribing of small quantities,” “the use of a single drug (typically a long-acting opioid”), “pill counts,” and “regular screening of urine toxicology (to provide evidence of therapeutic adherence and non-use of other drugs).” *Id.* As found above, the credible evidence establishes that Respondent rarely followed these recommendations. Most significantly, as found above, there is abundant evidence that Respondent did not regularly perform physical exams, rarely conducted drug screenings, rarely used methods other than prescribing controlled substances to treat the six deceased patients, and continued to prescribe controlled substances to persons whose behavior was consistent with either diversion or self-abuse. Moreover, as found above, Respondent's testimony that he complied with these standards is not credible. Contrary to Respondent's contention, this document does not support Respondent. Discussion Respondent's Exceptions Two of Respondent's remaining exceptions raise constitutional claims which are not intertwined with the merits. Accordingly, they will be discussed before addressing the application of the public interest standard. 33 33 Respondent's exception that DEA is engaged in the unlawful regulation of the practice of medicine will be discussed in the public interest analysis. The first of these is Respondent's contention that the Government was allowed to introduce over his objection an e-mail in which “Respondent expresse[d] some opinions about the DEA, the ALJ, and the prosecuting DEA attorney,” which “are not flattering.” Exceptions at 10. Respondent notes that he “objected based upon relevance, prejudice, and intentional inflammation of the factfinder,” that the evidence was not relevant “to the factual issues in dispute,” and the admission of the evidence punished him “for merely expressing his Constitutionally protected opinions.” *Id.* Respondent is correct that the e-mail was not relevant to any issue in the case. The e-mail does not contain any evidence that is probative of either the allegations that he failed to maintain proper records and could not account for large quantities of controlled substances, or the allegations that his prescribing of controlled substances to various patients violated Federal law. GX 83. The Government's contention at the hearing that the e-mail was relevant because Respondent made “disparaging remarks” about the proceeding, DEA counsel and the ALJ, and that this “raise[s] questions about judgment, and [is] therefore relevant to the public interest consideration,” Tr. 1506, finds no support in the decisions of this Agency. While a registrant's judgment may be relevant in determining the public interest, what makes it relevant is the nexus between the registrant's judgment and the performance of his obligations under the CSA and DEA regulations. As one example, entrusting one's registration to someone without doing a background check and failing to adequately supervise that person reflects poor judgment that is relevant in the public interest determination. *See, e.g., Rose Mary Jacinta Lewis,* 72 FR 4035, 4040 (2007). In contrast to his conduct, the opinions expressed by Respondent in his e-mail do not establish whether he committed any violations in the past or whether he is likely to do so in the future. The e-mail should not have been admitted into evidence and Respondent should not have been questioned about it. That being said, the Administrative Procedure Act recognizes a rule of prejudicial error. *See* 5 U.S.C. 706. The ALJ did not rely on the e-mail in her recommended decision. Most significantly, having concluded that it is irrelevant, as ultimate factfinder, I have not considered it. Respondent's exception is therefore rejected. Respondent's second constitutionally based exception is that the Agency violated his right to Due Process because it failed to provide him with “fair notice” of its “theory of the case” because the Government was repeatedly allowed to introduce “evidence which grossly exceeded the scope of the February 2006 show cause order.” Exceptions at 5 (citation omitted). While acknowledging that each of the unnamed patients listed in the Show Cause Order (most of whom were alleged to have died shortly after obtaining prescriptions from Respondent, see Show Cause Order at 9-11), were identified by the Government in its March 2006 pre-hearing statement, Respondent contends that the Government was allowed to introduce evidence “about more than *twenty-five* specific patients,” and that this “effectively expanded” the scope of the hearing “without proper notice or any realistic chance to defend.” Exceptions at 6. Respondent also notes that the Government was allowed to ask him “about many more patients by reading names from a spreadsheet.” *Id.* Respondent did not, however, identify who the twenty-five patients were by citation of either the transcript or exhibits. *See* 21 CFR 1316.66(a) (“[t]he party shall include a statement of supporting reasons for such exceptions together with evidence of record (including specific and complete citations of the pages of the transcript and exhibits)”). Respondent has therefore failed to properly preserve this exception. 34 34 It appears that the twenty-five patients included those patients who were listed on the KASPER report as having obtained controlled substances from Respondent ( *see* GX 26, Exceptions at 8 n.6); the Government merely asked Respondent whether he recalled each of these patients. Tr. 1521-29. Respondent has made no showing that the Government failed to timely provide this document to him. In any event, I do not rely on this portion of his testimony. Respondent also argues that he was denied a meaningful opportunity to respond to the Government's case because it used “patient charts to prepare its own expert witnesses,” but denied him “timely access to these charts.” Exceptions at 7. Respondent contends that “it was essential to a meaningful hearing that [he] receive copies of the very same charts the [G]overnment used in order to procure expert opinion testimony from their own witnesses.” *Id.* Respondent further argues that he “asked for the charts,” but the Government would not provide them because it had decided not to enter them into the record. *Id.* Respondent acknowledges, however, that the Government provided him with nine patient charts, including five of the charts which were reviewed by Dr. Kennedy. Exceptions at 8 n.6. Moreover, the record establishes that Respondent received all six of the patient files which Dr. Kennedy reviewed in creating his report on Respondent's prescribing to the six deceased patients. Tr. 1126-27. While Respondent contends that he did not have enough time to review the charts and consult an expert witness because the Government turned over the charts only four days before the hearing convened, Exceptions at 8 n.6, Respondent ignores that the hearing was adjourned for approximately one month and that the ALJ allowed him to defer his cross-examination of Dr. Kennedy until the hearing reconvened. Tr. 1094-95. Respondent thus had a meaningful opportunity to prepare for his cross-examination of Dr. Kennedy, as well as to retain an expert witness to review the patient files which Dr. Kennedy reviewed. Accordingly, there is no merit to his contention that the proceeding violated his rights under the Due Process Clause. 35 35 While it is true that DEA's regulations and the Administrative Procedure Act require that an Order to Show Cause contain “a summary of the matters of fact and law asserted,” 21 CFR 1301.37(c), an agency is not required “to give every [Respondent] a complete bill of particulars as to every allegation that [he] will confront.” *Boston Carrier, Inc.,* v. *ICC,* 746 F.2d 1555, 1560 ( *DC* Cir. 1984). As the ALJ explained at the hearing, the Show Cause Order only sets forth the parameters of the proceedings. *See Medicine Shoppe-Jonesborough,* 73 FR 364, 368 (2008). The actual conduct of the proceeding is controlled by the pre-hearing statements. Respondent also raises an exception based on the ALJ's denial of his request for a subpoena requiring Dr. Kennedy to produce “[c]opies of all opinion reports evaluating medical care by physicians written for the DEA from December 2001 through December 2006.” RX O, at 1. The ALJ denied Respondent's “request absent any further justification.” *Id.* at 2. Respondent did not, however, provide any further justification. Accordingly, this exception is without merit. *See* 5 U.S.C. 555(d); 21 U.S.C. 875 & 876. At Respondent's request, the ALJ issued a subpoena which directed DEA to provide patient release forms it had obtained from Dr. Joseph Delzotto. *Id.* at 1-3. Upon receipt of the subpoena, DEA searched its case files and found no such documents. *Id.* at 10. Respondent has made no showing that this was not the case. The Public Interest Analysis Respondent's Registration Status At the outset, the scope of this proceeding must be determined. As found above, Respondent's registration expired on May 31, 2006, and he did not submit a renewal application (and his request for a modification) until May 12, 2006. While one of the Government's exhibits states that because Respondent filed a renewal application, his registration has “remained in effect on a day-to-day basis pending the resolution of administrative proceedings,” the document cited no authority for this statement which is contrary to Agency regulations. GX 2. Under the Administrative Procedure Act, “[w]hen [a] licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.” 5 U.S.C. 558(c). When, however, a Show Cause Order has been issued to a registrant, DEA's regulation provides that: [i]n the event that an applicant for reregistration (who is doing business under a registration previously granted and not revoked or suspended) has applied for reregistration at *least 45 days before the date on which the existing registration is due to expire,* and the Administrator has issued no order on the application on the date on which the existing registration is due to expire, the existing registration shall automatically be extended and continue in effect until the date on which the Administrator so issues his/her order. The Administrator may extend any other existing registration under the circumstances contemplated in this section even though the registrant failed to apply for reregistration at least 45 days before expiration of the existing registration, if the Administrator finds that such extension is not inconsistent with public health and safety. 21 CFR 1301.36(i) (emphasis added). Notwithstanding that he had previously been served with a Show Cause Order, Respondent did not file his renewal application until nineteen days before his registration expired. Accordingly, Respondent did not make a timely renewal application in accordance with agency rules; his registration has not remained in effect pending the resolution of this proceeding. *See* 5 U.S.C. 558(c). Moreover, in light of the allegations of the Show Cause Order (and the facts found above), the extension of his registration pending this Final Order would be manifestly “inconsistent with public health and safety.” 21 CFR 1301.36(i). I therefore conclude that Respondent's registration has expired. 36 36 No footnote. Respondent did, however, submit a renewal application and a request for modification, which under Agency regulation, is “handled in the same manner as an application for registration.” 21 CFR 1301.51. Accordingly, Respondent does have an application pending before the Agency. The Public Interest Factors Section 303(f) of the Controlled Substances Act
(CSA)provides that an application for a practitioner's registration may be denied upon a determination “that the issuance of such registration would be inconsistent with the public interest.” 21 U.S.C. 823(f). In making the public interest determination, the CSA requires the consideration of the following factors:
(1)The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2)The applicant's experience in dispensing * * * controlled substances.
(3)The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4)Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5)Such other conduct which may threaten the public health and safety. *Id.* “These factors are considered in the disjunctive.” *Robert A. Leslie, M.D.,* 68 FR 15227, 15230 (2003). I “may rely on any one or a combination of factors, and may give each factor the weight [I] deem[] appropriate in determining whether * * * an application for registration [should be] denied.” *Id.* Moreover, I am “not required to make findings as to all of the factors.” *Hoxie* v. *DEA* , 419 F.3d 477, 482 (6th Cir. 2005); *see also* *Morall* v. *DEA* , 412 F.3d 165, 173-74 (DC Cir. 2005). Having considered all of the factors, I conclude that factors two, four, and five amply demonstrate that issuing a registration to Respondent “would be inconsistent with the public interest.” 21 U.S.C. 823(f). In this matter, there is abundant evidence that Respondent repeatedly violated Federal law by prescribing controlled substances without a legitimate medical purpose and outside of the course of professional practice. Moreover, the evidence also establishes that Respondent authorized Tri-State personnel to use his registration to order huge quantities of controlled substances and that he failed to ensure the accountability of these drugs by maintaining lawfully required records. Accordingly, Respondent's application will be denied. Factors Two and Four—Respondent's Experience in Dispensing Controlled Substances and Record of Compliance With Applicable Laws Respondent's Prescribing Practices One of the principal issues in this case is whether the prescriptions Respondent issued complied with Federal law. While Respondent maintains that his prescribing practices were compliant with the State of Ohio's regulations of the practice of medicine, the evidence conclusively establishes that Respondent used his prescribing authority to act as a drug pusher. Under a longstanding DEA regulation, a prescription for a controlled substance is not “effective” unless it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). This regulation further provides that “an order purporting to be a prescription issued not in the usual course of professional treatment * * * is not a prescription within the meaning and intent of [21 U.S.C. 829] and * * * the person issuing it, shall be subject to the penalties provided for violations of the provisions of law related to controlled substances.” *Id.* In *Gonzalez* v. *Oregon* , the Supreme Court explained that “the prescription requirement * * * ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, [it] also bars doctors from peddling to patients who crave the drugs for those prohibited uses.” 546 U.S. 243, 274
(2006)(citing *United States* v. *Moore,* 423 U.S. 122, 135 & 143 (1975)). It is fundamental that a practitioner must establish and maintain a bona-fide doctor-patient relationship in order to be acting “in the usual course of * * * professional practice” and to issue a prescription for a “legitimate medical purpose.” *See Moore* , 423 U.S. at 142-43 (noting that the evidence established that physician “exceeded the bounds of ‘professional practice,’ ” when “he gave inadequate physical examinations or none at all,” “ignored the results of the tests he did make,” and “took no precautions against * * * misuse and diversion”). Moreover, as I have explained, “the CSA looks to state law in determining whether a physician has established [and is maintaining] a valid doctor-patient relationship.” *United Prescription Services, Inc.* , 72 FR 50397, 50407
(2007)(citing DEA, *Dispensing and Purchasing Controlled Substances over the Internet* , 66 FR 21181, 21182-83 (2001)). *See also Kamir Garces-Mejias* , 72 FR 54931, 54935
(2007)(citing numerous state practice standards violated by physician). Respondent argues that under *Gonzales* , DEA “cannot lawfully determine and enforce a national medical standard of care.” Exceptions at 11. Respondent further contends that because “ *Gonzales* directs that the states retain the power to set parameters on the practice of medicine, [and he] produced evidence that his prescribing practices conformed with Ohio law,” DEA cannot act against his federal registration. *Id.* Relatedly, Respondent argues that whether he “did or did not conform his conduct to the mandates of Ohio law is a question for the State Medical Board of Ohio—not DEA.” *Id.* at 12. Respondent's argument that he was in compliance with the Ohio regulations is not factually correct; his contention that the Agency is exceeding its authority and usurping the State's role in regulating the practice of medicine is also mistaken. As found above, Respondent's testimony that he complied with Ohio law was not credible. Under Ohio law, “when utilizing any prescription drug for the treatment of intractable pain on a protracted basis or when managing intractable pain with prescription drugs in amounts that may not be appropriate when treating other medical conditions, a practitioner shall” perform: [a]n initial evaluation of the patient * * * and documented in the patient's record that includes a relevant history, including complete medical, pain, alcohol and substance abuse histories; an assessment of the impact of pain on the patient's physical and psychological functions; a review of previous diagnostic studies and previously utilized therapies; an assessment of coexisting illnesses, diseases or conditions; and *an appropriate physical examination.* Ohio Admin. Code R. 4731-21-02(A) (emphasis added). There is ample evidence that Respondent failed to obtain adequate histories and perform adequate physical exams including the testimony of Dr. Kennedy and the DI's review of Respondent's patient files which found that there was no documentation of a physical exam in 900 of the files as required by Ohio law. This conclusion is also supported by the testimony regarding the interview of DC, who obtained three controlled-substance prescriptions from Respondent without the latter having performed a physical exam. Moreover, the Ohio regulations require that “[t]he practitioner's diagnosis of intractable pain shall be made after having the patient evaluated by one or more other practitioners who specialize in the treatment of the anatomic area, system, or organ of the body perceived as the source of the pain.” Ohio Admin. Code R. 4731-21-02(A)(4)(a). Furthermore, “[t]he practitioner shall maintain a copy of any report made by any practitioner to whom referral for evaluation was made under this” provision. 37 *Id.* With respect to the six deceased patients, there is no credible evidence that Respondent had them evaluated by specialists 38 or relied on reports that a specialist had prepared “within a reasonable period of time” before diagnosing them as having intractable pain. *Id.* R. 4731-21-02(4)(b). 37 The practitioner is not “required to obtain such an evaluation, if the practitioner obtains a copy of medical records or a detailed written summary thereof showing that the patient has been evaluated and treated within a reasonable period of time by a specialist.” Ohio Admin. Code R. 4731-21-02(A)(4)(b). The practitioner must, however “obtain and review all available medical records or detailed written summaries thereof of prior treatment of the intractable pain or the condition underlying the intractable pain.” *Id.* Moreover, under this regulation, the practitioner is required to “maintain a copy of any record or report * * * on which [he] relied.” *Id.* 38 While there is evidence in a progress note dated 8/11/04 that D.P. had been referred to the Cleveland Clinic, the note does not indicate what the referral was for and when it occurred. At the time, D.P. had been seeing Respondent since April 2003. Respondent argues that while Dr. Kennedy “claim[ed] to be aware of the Ohio guidelines,” he was “painfully unfamiliar with the controlling state standards.” Exceptions at 12 (citing Tr. 1202-03). While it is true that much of Dr. Kennedy's testimony focused on the Kentucky guidelines, he also testified that “there is no significant variation between the” Ohio standards and the Kentucky guidelines. Tr. 1203. Moreover, when Dr. Kennedy offered to display the Ohio provisions to the court and explain how Respondent “violated the Ohio Code,” Respondent's counsel declined to pursue this line of questioning. *See Id.* Furthermore, in his report, Dr. Kennedy made clear that he had reviewed and was generally familiar with the Ohio standards for treating intractable pain (as well as other professional standards such as those issued by the Federation of State Medical Boards). GX 74, at 2; *see also* Tr. 1075 (expressing opinion that Respondent knew better because of “the guidelines that were published by the State Medical Board of Ohio [and] the Kentucky Board of Medical Licensure that were well circulated”). Respondent further argues that I should reject Dr. Kennedy's testimony because “it was clear that he had not studied the chart * * * and was unable to harmonize his criticism of [Respondent's] care with the actual patient record then in front of him.” Exceptions at 11. Respondent then argues that Dr. Kennedy “admittedly worked from summaries, print-outs, and other documents created by the government or himself, based on pharmacy records—without any meaningful review and reliance on the patient record itself.” *Id.* Respondent does not, however, support these contentions with any citations to the record. *See* 21 CFR 1316.66. Moreover, in both his report and testimony, Dr. Kennedy made clear that for each of the patients, he had “reviewed records obtained from [Respondent's] office” including his “clinical records.” *See also* GX 74, at 1-2; *see also* Tr. 1068. While it is true that Respondent showed that he had performed a physical exam on K.R. at apparently her first visit (which also coincided with when he started working for Tri-State), he made no such showing with respect to the other five patients. Moreover, even with respect to K.R., Respondent did not establish that he complied with the Ohio standards and maintained a valid doctor-patient relationship with her. Indeed, Respondent offered no testimony specific to his treatment of the six deceased patients and did not submit their patient files into the record. Accordingly, I adopt Dr. Kennedy's opinion that Respondent “distributed prescriptions for oxycodone and other controlled substances not for a legitimate medical purpose and beyond the usual course of professional practice.” GX 74, at 3. Respondent further argues that the Agency is acting “in direct contravention to *Gonzales* ” because it “sought to pass judgment upon the medical care [he] rendered.” Exceptions at 11. Relatedly, Respondent contends that whether he complied with Ohio law “is a question for the State Medical Board of Ohio [and] not DEA.” *Id.* at 12. It is true that in enacting the CSA, Congress did not adopt a federal standard for determining whether a valid doctor-patient relationship exists. Rather, on this issue, the CSA recognizes the traditional role of the States in regulating the practice of medicine. *See Gonzales* , 546 U.S. at 270. The CSA therefore looks to state law in determining whether there is a valid doctor-patient relationship. *United Prescription Services* , 72 FR at 50407; *Dispensing and Purchasing Controlled-Substances over the Internet, 66 FR at 21182-83.* Determining whether Respondent established and maintained a valid doctor-patient relationship with the six deceased patients under Ohio law is thus a necessary and permissible incident of determining whether Respondent complied with the prescription requirement of Federal law. *Cf* . 21 U.S.C. 823(f)(4) (directing consideration of applicant's “[c]ompliance with applicable State * * * or local laws relating to controlled substances”). Whether Respondent complied with Ohio law in prescribing controlled substances is thus not only a question for the Ohio Medical Board, but also a question for the Attorney General, who has been entrusted with the authority under Federal law to determine whether the granting of a registration to dispense controlled substances is consistent with the public interest. *See Id.* section 823(f); *Id.* § 824(a) (granting Attorney General authority to revoke a registration where a registrant has committed acts inconsistent with the public interest). DEA's reliance on Ohio's medical practice standards thus does not exceed this Agency's authority as set forth in Gonzales. 39 39 By contrast, *Gonzales* did not involve reliance on a State's medical practice standards but the issuance of an interpretive rule, unsupported by a grant of Congressional authority, which would have barred conducted permitted by state law. *See* 546 U.S. at 274-75. Moreover, as Gonzales recognized, prior to 1984, “the Attorney General was required to register any physician who was authorized by his State [and] could only deregister a physician who falsified his application, was convicted of a felony relating to controlled substances, or had his state license or registration revoked.” *Id.* at 261. In 1984, however, the CSA was amended to grant “the Attorney General the authority to deny a registration to an applicant ‘if he determines that the issuance of such registration would be inconsistent with the public interest.” ’ *Id.* (quoting 21 U.S.C. 823(f)). Respondent's prescribing practices are therefore properly considered in this proceeding. Accordingly, Respondent's arguments are without merit. Because the evidence establishes that Respondent lacked a “legitimate medical purpose” and acted outside of “the usual course of his professional practice” in distributing numerous controlled-substance prescriptions to the six deceased patients (and others), he violated Federal law. This conclusion provides reason alone to conclude that granting his application “would be inconsistent with the public interest.” 21 U.S.C. 823(f). The Record Keeping Violations The record also contains extensive evidence that Respondent violated Federal law by failing to keep proper records for the controlled substances that were ordered and dispensed under his registration at Tri-State. Respondent agreed that his registration could be used to order and dispense controlled substances for Tri-State's customers. Tr. 1550. As the record establishes, Respondent agreed to this because numerous pharmacists were questioning his prescriptions and refusing to fill them. Tr. 1428-29. Moreover, Respondent told Denise Huffman what drugs to order. *Id.* at 543. Respondent rapidly became the largest practitioner-purchaser in the nation of oxycodone, a schedule II controlled substance which is highly sought after by drug-abusers, and which commands top dollar in the illicit market. As found above, his purchases dwarfed that of other Ohio-based practitioners who purchased the drug. Moreover, Respondent also became—by a wide margin—the largest Ohio-based practitioner-purchaser of combination hydrocodone/apap drugs. 40 40 The record further establishes that Respondent also ordered large quantities of hydromorphone, another schedule II controlled substance, 21 CFR 1308.12(b)(1), and several benzodiazepines, which are schedule IV controlled substances. *Id.* 1308.14(c). During the 2005 search, there were also no records documenting the handling of these drugs. Respondent proceeded to order hundreds of thousands of dosage units of these drugs (136,000 dosage units of oxycodone between 8/18/03 and 12/30/03; 222,600 dosage units of hydrocodone between 7/24/03 and 12/30/03) 41 which he distributed, and was required to maintain purchasing, inventory and dispensing records. *See* 21 U.S.C. 827(a); 21 CFR 1304.03(b) (requiring dispenser to keep records); *see also* 21 CFR 1304.11 (requiring initial and biennial inventories), *id.* 1304.22(c) (requiring maintenance of receiving and dispensing records). When, however, on December 30, 2003, Agent Kinneer of the Ohio State Board of Pharmacy inspected Tri-State, he found that the clinic had not made any entries in several controlled-substance dispensing logs in more than four months. *See* GX 11, at 2; GX 12, at 5. Respondent was thus already repeatedly violating Federal law. 41 As found above, in 2004, Respondent ordered 457,000 dosage units of oxycodone and 263,500 dosage units of hydrocodone/apap. Moreover, during the little more than eight months of 2005 when he worked at Tri-State, Respondent ordered 414,000 dosage units of oxycodone and 168,500 dosage units of hydrocodone. Thereafter, in January 2004, Respondent represented to the Ohio Board that “[a]ll log books are current and up to date and are being kept current.” GX 11. He also stated that “[a]ll controlled medication being dispensed * * * is being logged as it is filled.” GX 11. Notwithstanding Respondent's representations to the state board, on June 7, 2005, DEA investigators could not find any dispensing logs for the year 2004, and Denise Huffman admitted that there were no such logs. Tr. 670. Under Federal regulations, however, Respondent was required to maintain these records for a period of two years. *See* 21 U.S.C. 827(b). Moreover, given the circumstances in which the 2005 logs were not at the clinic but were later provided to the Government only after copies of the patient files were given to the clinic (following the search), and that the logs appeared to be brand new, it is most unlikely that these were accurate records. In any event, the various dispensing logs were required to be maintained at the clinic. *See* 21 CFR 1304.04(1). Respondent thus repeatedly violated Federal law by failing to maintain the required records and did so over a sustained period of time. It is no defense that Respondent delegated this responsibility to Ms. Huffman. 42 Tr. 1511. 42 As I have previously explained, when a registrant authorizes another person to perform acts under his registration, he is responsible for that individual's misuse of the registration and failure to perform required acts. *See Rose Mary Jacinta Lewis* , 72 FR 4035, 4040 (2007); *see also Summer Grove Pharmacy* , 54 FR 28522, 28523 (1989). Aggravating these violations is the fact that he ordered extraordinary quantities of various highly abused controlled substances and that there is no way—given the wholly deficient recordkeeping—to determine where these drugs have gone. Recordkeeping is one of the CSA's central features; a registrant's accurate and diligent adherence to this obligation is absolutely essential to protect against the diversion of controlled substances. Given the extraordinary quantities of controlled substances which Respondent ordered and his complete lack of accountability for them, it is likely that most of these drugs were diverted. Respondent's failure to maintain accurate records (assuming that they were ever accurately maintained beyond August 2003, 43 *see* GX 11, at 2), provides a further reason—which is sufficient by itself—to conclude that granting him a registration would “be inconsistent with the public interest.” 21 U.S.C. 823(f). 43 While Agent Kinneer stated in his report that during his February 2004 visit, Respondent and Alice Huffman gave him dispensing logs, no such logs were found during the June 2005 search. At the hearing, Respondent testified that “as far as I was concerned, as far as my knowledge of Ohio law, Federal law, standards of care of pain management, and anything else I could find, I had done nothing wrong, and was following absolutely prescribed procedures that I should in every respect.” Tr. 1439. I beg to differ. As the record shows, Respondent is an egregious violator of the CSA's requirements with respect to both his prescribing practices and compliance with the Act's recordkeeping requirements. 44 And even assuming—given the remedial purpose of proceedings under section 303—that there could be circumstances in which an egregious violator of the Act might convincingly establish that he has reformed, Respondent has offered no credible evidence to demonstrate that he can be entrusted with a new registration. Accordingly, I conclude that granting Respondent's application for a new registration would be “inconsistent with the public interest.” 45 21 U.S.C. 823(f). 44 There is also evidence in the record that Respondent told a patient (J.R.) to sell a drug
(Soma)if he did not take it. Tr. 42 & 104. While Soma is not controlled under Federal law, the evidence is nonetheless probative of Respondent's intent. 45 In light of the extensive evidence of Respondent's misconduct, I conclude that it is unnecessary to make findings regarding the remaining factors. Order Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of Paul H. Volkman, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective June 27, 2008. Dated: May 16, 2008. Michele M. Leonhart, Deputy Administrator. [FR Doc. E8-11851 Filed 5-27-08; 8:45 am] BILLING CODE 4410-09-P MERIT SYSTEMS PROTECTION BOARD Agency Information Collection Activities; Proposed Collection AGENCY: Merit Systems Protection Board. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board
(MSPB)announces that it is planning to submit a request for a three-year extension of an Information Collection Request
(ICR)to the Office of Management and Budget (OMB). Before submitting this ICR to OMB for review and approval, MSPB is soliciting comments on specific aspects of its information collection activities as described below. DATES: Written comments must be received on or before June 27, 2008. ADDRESSES: Submit written comments on the collection of information to Dr. Dee Ann Batten, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to Dr. Dee Ann Batten at
(202)653-6772, ext. 1411. SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. The MSPB intends to ask for a three-year renewal of its Generic Clearance Request for Voluntary Customer Surveys, OMB Control No. 3124-0012. Executive Order 12862, “Setting Customer Service Standards,” mandates that agencies identify their customers and survey them to determine the kind and quality of services they want and their level of satisfaction with existing services. In this regard, we are soliciting comments on the public reporting burden. The reporting burden for the collection of information on this request is estimated to vary from 5 minutes to 30 minutes, with an average of 15 minutes, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. In the estimated annual reporting burden listed below, the reason that the annual number of respondents differs from the number of total annual responses is that the latter figure assumes a 60% response rate. Our experience has been that fewer than 60% of those invited to participate in our voluntary customer surveys avail themselves of that opportunity. In addition, the MSPB invites comments on
(1)Whether the proposed collection of information is necessary for the proper performance of MSPB's functions, including whether the information will have practical utility;
(2)the accuracy of MSPB's estimate of burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Estimated Annual Reporting Burden 5 CFR parts Annual number of respondents Frequency per response Total annual responses Hours per response (average) Total hours 1201, 1208, and 1209 2,500 1 1,500 0.25 375 William D. Spencer, Clerk of the Board. [FR Doc. E8-11877 Filed 5-27-08; 8:45 am] BILLING CODE 7401-01-P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice (08-048)] NASA Advisory Council; Science Committee; Planetary Science Subcommittee; Meeting AGENCY: National Aeronautics and Space Administration. ACTION: Notice of meeting. SUMMARY: The National Aeronautics and Space Administration
(NASA)announces a meeting of the Planetary Science Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The Meeting will be held for the purpose of soliciting from the scientific community and other persons scientific and technical information relevant to program planning. DATES: Monday, June 23, 2008, 8:30 a.m. to 6:30 p.m., and Tuesday, June 24, 2008, 8:30 a.m. to 4:30 p.m. ADDRESSES: NASA Goddard Space Flight Center, Building 1, Room E100E, 8800 Greenbelt Road, Greenbelt, Maryland 20771. FOR FURTHER INFORMATION CONTACT: Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546,
(202)358-4452, fax
(202)358-4118, or *mnorris@nasa.gov.* SUPPLEMENTARY INFORMATION: The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics: —Planetary Science Division Update; —Analysis Group and Management Operations Working Group Reports; —Update on International Mars Architecture for Returning Samples; —Evaluation of the Government Performance and Results Act Outcomes; —Discussion with the New Associate Administrator for Science Mission Directorate. It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information no less than 15 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; social security number; green card information (resident alien number, expiration date); visa information (number, type, expiration date); passport information (number, country of issue, expiration date); employer/affiliation information (name of institution, title/position, address, country of employer, telephone, email address); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information 4 working days in advance by contacting Marian Norris via e-mail at *mnorris@nasa.gov* or by telephone at
(202)358-4452. Dated: May 20, 2008. P. Diane Rausch, Advisory Committee Management Officer, National Aeronautics and Space Administration. [FR Doc. E8-11805 Filed 5-27-08; 8:45 am] BILLING CODE 7510-13-P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Agency Information Collection Activities: Submission for OMB Review; Comment Request AGENCY: National Archives and Records Administration (NARA). ACTION: Notice. SUMMARY: NARA is giving public notice that the agency has submitted to OMB for approval the information collection described in this notice. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995. DATES: Written comments must be submitted to OMB at the address below on or before June 27, 2008 to be assured of consideration. ADDRESSES: Send comments to Desk Officer for NARA, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5167. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301-837-1694 or fax number 301-713-7409. SUPPLEMENTARY INFORMATION: Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for this information collection on March 11, 2008 (73 FR 13019 and 13020). No comments were received. NARA has submitted the described information collection to OMB for approval. In response to this notice, comments and suggestions should address one or more of the following points:
(a)Whether the proposed information collection is necessary for the proper performance of the functions of NARA;
(b)the accuracy of NARA's estimate of the burden of the proposed information collection;
(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 the use of information technology; and
(e)whether small businesses are affected by this collection. In this notice, NARA is soliciting comments concerning the following information collection: *Title:* Authorization for Release of Military Medical Patient Records, Request for Information Needed to Locate Medical Records, Request for Information Needed to Reconstruct Medical Data, and Questionnaire about Military Service. *OMB number:* 3095-0039. *Agency form number:* NA Forms 13036, 13042, 13055, and 13075. *Type of review:* Regular. *Affected public:* Veterans, their authorized representatives, state and local governments, and businesses. *Estimated number of respondents:* 79,800. *Estimated time per response:* 5 minutes. *Frequency of response:* On occasion (when respondent wishes to request information from a military personnel, military medical, and dependent medical record). *Estimated total annual burden hours:* 6,650 hours. *Abstract:* The information collection is prescribed by 36 CFR 1228.162. In accordance with rules issued by the Department of Defense
(DOD)and the Department of Transportation (DOT, U.S. Coast Guard), the National Personnel Records Center
(NPRC)of the National Archives and Records Administration
(NARA)administers military personnel and medical records of veterans after discharge, retirement, and death. In addition, NRPC administers the medical records of dependents of service personnel. When veterans, dependents, and other authorized individuals request information from or copies of documents in military personnel, military medical, and dependent medical records, they must provide on forms or in letters certain information about the veteran and the nature of the request. A major fire at the NPRC on July 12, 1973, destroyed numerous military records. If individuals' requests involve records or information from records that may have been lost in the fire, requesters may be asked to complete NA Form 13075, Questionnaire about Military Service, or NA Form 13055, Request for Information Needed to Reconstruct Medical Data, so that NPRC staff can search alternative sources to reconstruct the requested information. Requesters who ask for medical records of dependents of service personnel and hospitalization records of military personnel are asked to complete NA Form 13042, Request for Information Needed to Locate Medical Records, so that NPRC staff can locate the desired records. Certain types of information contained in military personnel and medical records are restricted from disclosure unless the veteran provides a more specific release authorization than is normally required. Veterans are asked to complete NA Form 13036, Authorization for Release of Military Medical Patient Records, to authorize release to a third party of a restricted type of information found in the desired record. Dated: May 21, 2008. Martha Morphy, Assistant Archivist for Information Services. [FR Doc. E8-11922 Filed 5-27-08; 8:45 am] BILLING CODE 7515-01-P NUCLEAR REGULATORY COMMISSION [Docket No.: 40-8027] Notice of Availability of the Environmental Impact Statement for the Reclamation of Sequoyah Fuels Corporation Site in Gore, Oklahoma, NUREG-1888 AGENCY: U.S. Nuclear Regulatory Commission. ACTION: Notice of availability of Final Environmental Impact Statement. FOR FURTHER INFORMATION CONTACT: Allen Fetter, Project Manager, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone:
(301)415-8556; e-mail: *allen.fetter@nrc.gov.* SUMMARY: Notice is hereby given that the U.S. Nuclear Regulatory Commission
(NRC)is issuing a Final Environmental Impact Statement
(EIS)for the Sequoyah Fuels Corporation
(SFC)license amendment application, dated January 28, 2003, and subsequently revised by letters dated February 27, 2004, and July 30, 2004, for the surface reclamation of SFC's former uranium conversion site near Gore, Oklahoma. The Final EIS also addresses the SFC license amendment application dated June 12, 2003, for groundwater corrective actions at the SFC site. The Final EIS discusses the purpose and need for SFC's proposed surface reclamation activities and groundwater corrective actions and reasonable alternatives to the proposed action, including the no-action alternative. The Final EIS also discusses the environment potentially affected by the SFC proposal, presents and compares the potential environmental impacts resulting from the proposed action and its alternatives, and identifies mitigation measures that could eliminate or lessen the potential environmental impacts. Based on the final evaluation in the Final EIS, the NRC environmental review staff has concluded that the proposed action would have small effects on the physical environment and human communities with the exception of land use, for which the impact would be moderate. This Final EIS reflects the final analysis of environmental impacts of the proposed actions and its alternatives, including the consideration of public comments received by the NRC. ADDRESSES: The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The Final EIS and its appendices may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html,* using the Agencywide Documents Access and Management System (ADAMS) accession number ML081300103 for the Final EIS. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room Reference staff at 1
(800)397-4209,
(301)415-4737 or by e-mail to *pdr.resource@nrc.gov.* The Final EIS is also available for inspection at the Commission's Public Document Room, U.S. NRC's Headquarters Building, 11555 Rockville Pike (first floor), Rockville, Maryland. Upon written request and to the extent supplies are available, a single copy of the Final EIS can be obtained for a fee by writing to the Office of the Chief Information Officer, Reproduction and Distribution Services Section, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by electronic mail at *Distribution.Resource@nrc.gov;* or by fax at
(301)415-2289. SUPPLEMENTARY INFORMATION: The NRC staff has prepared this Final EIS in response to two license amendment requests submitted by SFC for the surface reclamation and groundwater restoration at SFC's former uranium conversion site near Gore, Oklahoma. The Final EIS was prepared by the staff of the NRC and its contractor, Ecology & Environment, Inc., in compliance with the National Environmental Policy Act
(NEPA)and the NRC's regulations for implementing NEPA (10 CFR Part 51). The NRC staff published a Notice of Intent to prepare an EIS for the Sequoyah Fuels Corporation Site and to conduct a scoping process, in the **Federal Register** on October 20, 1995 (60 FR 54260). The public scoping meeting was held in Gore, Oklahoma on November 15, 1995. Following the NRC's 2002 reclassification of waste at the SFC site as 11e.(2) byproduct material and transfer of the NRC regulatory oversight to Appendix A of Part 40, NRC held a rescoping meeting on May 13, 2003 (68 FR 20033). The Rescoping Summary Report was issued in November 2003 (ADAMS Accession No.: ML033170349). The NRC staff prepared and issued a Draft EIS in September 2007; notice of the availability of the Draft EIS appeared in the **Federal Register** on September 21, 2007 (72 FR 54080). Public comments on the Draft EIS were accepted by the NRC staff until November 5, 2007. The NRC staff's responses to these comments and copies of the submitted comments are provided in appendices to the Final EIS. The Final EIS describes the proposed action and reasonable alternatives to the proposed action, including the no-action alternative, and describes the proposed mitigation measures. The NRC staff assesses the impacts of the proposed action and it's alternative on public and occupational health, air quality, water resources, waste management, geology and soils, noise, ecology resources, land use, transportation, historical and cultural resources, visual and scenic resources, socioeconomics, accidents and environmental justice. Additionally, the Final EIS analyzes and compares the costs and benefits of the proposed action. After weighing the impacts, costs, and benefits of the proposed action and comparing alternatives, the NRC staff, in accordance with 10 CFR 51.91(d), sets forth its final NEPA recommendation regarding the proposed action. The NRC staff recommends that the proposed action be approved, unless safety issues mandate otherwise. Dated at Rockville, Maryland, this 21st day of May, 2008. For the U.S. Nuclear Regulatory Commission. Scott C. Flanders, Deputy Director, Environmental Protection and Performance Assessment Directorate, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs. [FR Doc. E8-11869 Filed 5-27-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Sunshine Federal Register Notice Date: Weeks of May 26, June 2, 9, 16, 23, 30, 2008. Place: Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland. Status: Public and Closed. Week of May 26, 2008 Tuesday, May 27, 2008 1:30 p.m. NRC All Hands Meeting (Public Meetings), Marriott Bethesda North Hotel, 5701 Marinelli Road, Rockville, MD 20852. Wednesday, May 28, 2008 9:25 a.m. Affirmation Session (Public Meeting) (Tentative): a. AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), Docket No. 50-219-LR, Citizens' Petition for Review of LBP-07-17 and Other Interlocutory Decisions in the Oyster Creek Proceeding (Tentative). b. Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee License Renewals, Docket Nos. 50-219-LR, 50-247-LR, 50-286-LR, 50-293-LR, 50-271-LR, Petition to Suspend Proceedings (Tentative). c. U.S. Department of Energy (High Level Waste Repository: Pre-Application Matters), Docket No. PAPO-00—The State of Nevada's Notice of Appeal from the PAPO Board's January 4, 2008 and December 12, 2007 Orders and The State of Nevada's Motion to File a Limited Reply (Tentative). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* 9:30 a.m. Briefing on Equal Employment Opportunity
(EEO)and Workforce Planning (Public Meeting) ( *Contact:* Kristin Davis,
(301)492-2266). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* Week of June 2, 2008—Tentative Wednesday, June 4, 2008 9 a.m. Briefing on Results of the Agency Action Review Meeting
(AARM)(Public Meeting) ( *Contact:* Shaun Anderson,
(301)415-2039). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* Thursday, June 5, 2008 1:30 p.m. Meeting with Advisory Committee on Reactor Safeguards
(ACRS)(Public Meeting) ( *Contact:* Tanny Santos,
(301)415-7270). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* Week of June 9, 2008—Tentative There are no meetings scheduled for the Week of June 9, 2008. Week of June 16, 2008—Tentative There are no meetings scheduled for the Week of June 16, 2008. Week of June 23, 2008—Tentative Friday, June 27, 2008 9:30 a.m. Periodic Briefing on New Reactor Issues (Public Meeting) ( *Contact:* Donna Williams,
(301)415-1322). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* Week of June 30, 2008—Tentative Tuesday, July 1, 2008 9 a.m. Hearing: Diablo Canyon, 10 CFR Part 2, Subpart K Proceeding, Oral Arguments (Public Meeting) ( *Contact:* John Cordes,
(301)415-1600). This meeting will be Webcast live at the Web address— *http://www.nrc.gov.* * The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll,
(301)415-1662. The NRC Commission Meeting Schedule can be found on the Internet at: *http://www.nrc.gov/about-nrc/policy-making/schedule.html.* The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g., braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-492-2279, *TDD:* 301-415-2100, or by e-mail at *REB3@nrc.gov.* Determinations on requests for reasonable accommodation will be made on a case-by-case basis. This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to *dkw@nrc.gov.* Dated: May 22, 2008. R. Michelle Schroll, Office of the Secretary. [FR Doc. 08-1303 Filed 5-23-08; 10:44 am]
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  • 5 CFR 532
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  • 7 CFR 3015
  • 7 USC 8301-8317
  • 7 CFR 2.22
  • 18 CFR 35
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 45 CFR 1606
  • 45 CFR 1623
  • 47 CFR 1
  • 47 CFR 1.1161(c)
  • 47 CFR 1.1910
  • 47 CFR 1.1940(d)
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 1.1206(b)
  • 47 CFR 1.1202
  • 47 CFR 1.1206(b)(2)
  • 110 Stat. 847
  • 3 CFR 121.201
  • 47 CFR 24.720(b)
  • 47 CFR 90.814(b)(1)
  • 47 CFR 101
  • 47 CFR 74
  • 47 CFR 90.1103
  • 47 CFR 22.99
  • 47 CFR 22.757
  • 47 CFR 80.1252
  • 47 CFR 22.1001-22
  • 47 CFR 101.538(a)(2)
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U.S.C.§ 824d
C.F.R.§ 35.10
U.S.C.§ 605
F. Supp.343 F. Supp. 2d 1344
F. App'x243 F.3d 1301
F. App'x746 F.2d 1555
Cites 189 · showing 12Cited by 0 across 0 sources
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