2/26. The Supreme Court denied certiorari in Laws v. Sony Music Entertainment, a case regarding federal copyright preemption. See, Orders List [9 pages in PDF] at page 3.

This lets stand the May 24, 2006, opinion [21 pages in PDF] of the U.S. Court of Appeals (9thCir). The Court of Appeals held that Debra Laws' state law claims of invasion of privacy for the misappropriation of her name and voice, and misappropriation of her name and voice for a commercial purpose under California Civil Code § 3344, are preempted by 17 U.S.C. § 301. See, story titled "9th Circuit Attempts to Explain Copyright Preemption" in TLJ Daily E-Mail Alert No. 1,382, June 1, 2006.

There is a string of 9th Circuit opinions that fail to bring clarity to the subject of copyright preemption. See also, the September 13, 2001, opinion [27 pages in PDF], in Downing v. Abercrombie & Fitch, which is reported at 265 F.3d 994, and story titled "Ninth Circuit Rules in Downing v. Abercrombie" in TLJ Daily E-Mail Alert No. 268, September 14, 2001. And see, Midler v. Ford, 849 F.2d 460 (1989), and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (1992). The Supreme Court's denial of certiorari also lets stand the prevailing level of uncertainty in the 9th Circuit regarding the meaning of Section 301.

This case is Debra Laws v. Sony Music Entertainment, dba Epic Records, Sup. Ct. No. 06-481, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-57102. Judge Jay Bybee wrote the opinion of the Court of Appeals, in which Judges Jerome Farris and Ferdinand Fernandez joined. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-02038-LGB, Judge Lourdes Baird presiding. See also, Supreme Court docket.

2/27. The Electronic Frontier Foundation (EFF) filed a complaint [5 pages in PDF] in U.S. District Court (DC) against the Department of Justice (DOJ) alleging violation of the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552, in connection with its failure to produce copies of records pertaining to a electronic surveillance program conducted by the National Security Agency (NSA).

The EFF seeks records regarding NSA surveillance of electronic communications, which the DOJ has stated involves communications where one party is inside of the U.S., and the other party is outside of the U.S. This program was first publicly disclosed in December of 2005 by the New York Times. The NSA and DOJ use the term "Terrorist Surveillance Program" or "TSP". Until recently, it was conducted without obtaining either Title III orders, or orders under the Foreign Intelligence Surveillance Act (FISA).

On January 17, 2007, the DOJ wrote in a letter [PDF] to the U.S. Court of Appeals (6thCir) that "a Judge of the Foreign Intelligence Surveillance Court has issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization, and that, as a result of these orders, any electronic surveillance that was occurring as part of the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court. In light of these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires."

In addition, Attorney General Alberto Gonzales wrote to Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) regarding this matter.

See, stories titled "NSA to Obtain FISA Authority for Disputed Electronic Surveillance" in TLJ Daily E-Mail Alert No. 1,521, January 17, 2007, and "Gonzales Testifies Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,522, January 18, 2007.

White House Press Secretary Tony Snow also discussed this matter in a news briefing on January 17. He added that the FISA court has written for the DOJ rules and guidelines under which surveillance can be conducted.

Then, on January 23, 2007, the EFF submitted a FOIA request to the DOJ for "copies of all Foreign Intelligence Surveillance Court (``FISC´´) orders referenced by the Attorney General in his letter to Sens. Leahy and Specter, and all FISC rules and guidelines associated with such orders and/or referenced by Mr. Snow in the January 17 press briefing."

The DOJ has not given the EFF the requested records. The statutory time limit has expired. The EFF now wants the court to order the DOJ to process its requests and provide it with responsive records.

The EFF's counsel of record are Marcia Hoffman and David Sobel. Sobel stated in an EFF release that "While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications ... The burden is on the Justice Department to justify its failure to disclose the information we've requested."

Many federal agencies routinely violate the FOIA, and federal courts rarely enforce it.

Also, the FOIA contains exceptions which might be asserted by the DOJ in this case. 5 U.S.C. § 552(b) provides, in part, as follows:

"This section does not apply to matters that are --
  (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
  . . .
  (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings ..."

Back in 2002 the FISA Court of Review released, in redacted form, its opinion in In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev. 2002). That the FISA Court of Review, on its own, released a redacted opinion, provides the EFF with the argument that the DOJ can now produce a copy of the order referred to in January. Also, if there are matters that should not be released, they can be redacted, leaving the remainder of the opinion available for public inspection.

This case is Electronic Frontier Foundation v. Department of Justice, U.S. District Court for the District of Columbia, D.C. No. 1:07CV00403, Judge James Robertson presiding.

2/20. The U.S. District Court (DC) issued a Memorandum Opinion [17 pages in PDF] in Randolph v. ING Life Insurance and Casualty Company, a case regarding standing to sue for lost data.

Summary. The District Court held that it lacks jurisdiction over a purported class action against an insurance company alleging invasion of privacy and negligence in connection with the loss of a laptop computer containing personal information.

The District Court held that the plaintiffs lack standing because they failed to allege in their complaint a cognizable injury in fact.

The opinion suggests that actual identity theft would be an injury in fact, but that increased likelihood of becoming a victim of identity theft is not injury in fact. The plaintiffs in this case only alleged the latter.

The District Court's ruling is based upon its application of Article III, Section 2, of the Constitution, which provides that "The judicial Power shall extend to all Cases ... Controversies ..."

There are now several recent federal District Court opinions holding that injury in fact must be alleged in a lost data case.

It should also be noted that this is a lost laptop case, and that the main case relied upon by the District Court was similar in nature. The outcome might have been different if this had been a targeted data theft case. In this case a house burglar stole an employee's laptop. There is no allegation that the laptop was targeted for its data. Perhaps this should be contrasted with cases in which identity thieves, or criminal data brokers, steal for the purpose of obtaining personal data for illegal uses.

Background. ING Life Insurance and Casualty Company (ING), among other things, provides investment advice, administrative services, and record keeping to participants in the District of Columbia 457 Deferred Compensation Plan.

Regina Randolph and six other individual plaintiffs are current or former District of Columbia employees and participants in the plan. Two are currently police officers. The plaintiffs provided personally identifying information, including names, addresses and social security numbers, to ING.

A laptop computer containing their personal information was stolen from the home of an ING employee. ING disclosed the theft.

The District Court wrote that the "Plaintiffs do not allege that the burglary was anything other than a common burglary or that it was undertaken for the purpose of accessing Plaintiffs' Information." It added that "none of the Plaintiffs assert that they have actually been the victim of identity theft. Instead, Plaintiffs allege that the disclosure of their Information raises concerns about Plaintiffs' safety because, for example, Plaintiffs' Information could be used to find out where police personnel live."

The plaintiffs alleged in their complaint that they "have been exposed to a risk of substantial harm and inconvenience".

Randolph and six others filed a complaint in the Superior Court for the District of Columbia alleging two counts of invasion of privacy, one count of gross negligence, and one count of negligence. The complaint did not plead breach of fiduciary duty. The plaintiffs seek class action status. ING removed the action to the U.S. District Court (DC).

ING sought dismissal pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(1) and 12(b)(6). FRCP 12(b)(1) pertains to "lack of jurisdiction over the subject matter", while FRCP 12(b)(6) pertains to "failure to state a claim upon which relief can be granted".

District Court Opinion. The District Court remanded the case to the Superior Court pursuant to FRCP 12(b)(1). The District Court did not address the merits of the FRCP 12(b)(6) motion.

The court relied on the leading Supreme Court cases, including Allen v. Wright, 468 U.S. 737 (1984) and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), for general principles of standing.

The District Court reasoned that "As an Article III court, this Court's judicial power is limited to adjudicating actual ``cases´´ and ``controversies.´´" The District Court wrote that the case or controversy requirement encompasses the principle of standing, and that standing is an "irreducible constitutional minimum".

It continued that to satisfy the standing requirements, a plaintiff must establish that he or she has (1) suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, (2) which is fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision.

It added that to ground Article III standing, the injury alleged cannot be conjectural or hypothetical, remote, speculative, or abstract. It must be certainly impending.

The Court wrote that the "Plaintiffs in the instant action allege that they ``have been placed at a substantial risk of harm in the form of identity theft.´´ ... They fail, however, to allege any injury that is ``actual or imminent, not conjectural or hypothetical.´´ ... Plaintiffs clearly allege that their Information was stolen by a burglar, but they do not allege that the burglar who stole the laptop did so in order to access their Information, or that their Information has actually been accessed since the laptop was stolen. Plaintiffs’ allegations therefore amount to mere speculation that at some unspecified point in the indefinite future they will be the victims of identity theft. However, to ground Article III standing, ``the injury alleged cannot be conjectural or hypothetical, remote, speculative, or abstract. Rather it must be certainly impending.´´ ... Plaintiffs' claims that they are subject to an increased risk of identity theft and inconvenience as a result of the burglary therefore fail to allege an injury in fact." (Citations omitted.)

The District Court added that purchase of credit monitoring services, or other protection efforts, is not injury in fact either.

Also, while the plaintiffs did not plead breach of fiduciary duty, the District Court added that even if they had, they would still lack standing for failure to plead injury of fact.

This is a District Court opinion. There have also been several other recent District Court opinions (which are cited in the Memorandum Opinion) that have held that injury in fact is a prerequisite for standing in lost data cases. However, the Appeals Courts have yet to address this issue.

In addition, because this case was previously removed from the Superior Court for the District of Columbia to the District Court, and the District Court found that it lacks jurisdiction, it remanded the case to the Superior Court, rather than dismiss it. The case returns to the Superior Court, where the plaintiffs originally filed the case.

Article III defines the jurisdiction of the federal courts, not the state courts. However, the District of Columbia is not a state, and the Constitutional principles of standing apply in the Superior Court. Thus, if the Superior Court applies the Constitutional principles of standing in the same way as the District Court, it will dismiss. But then, different judges do not always apply the same principles in the same way.

ING is represented by Alan Charles Raul, Juan Morillo, and Stephen Nickelsburg of the Washington DC office of the law firm of Sidley Austin.

This case is Regina Randolph, et al. v. ING Life Insurance and Casualty Company, U.S. District Court for the District of Columbia, D.C. No. 06-1228 (CKK), Judge Colleen Kotelly presiding.

2/26. The Supreme Court denied certiorari in Fuji Kogyo v. Pacific Bay International, a trademark case regarding the registration of product designs as trademarks, to provide protection beyond the twenty year term of utility patents. See, Orders List [9 pages in PDF] at page 3. This lets stand the August 23, 2006, opinion [12 pages in PDF] of the U.S. Court of Appeals (6thCir). The District Court held that the trademarked product configurations were functional and therefore could not be protected. The Court of Appeals affirmed. This case is Fuji Kogjo Co., Ltd. v. Pacific Bay International, et al., Sup. Ct. No. 06-722, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 05-5854. The Court of Appeals heard an appeal from the U.S. District Court for the Middle District of Tennessee, at Nashville, D.C. 02-00042, Judge William Haynes presiding. See also, Supreme Court docket.

2/26. President Bush signed HR 742, the "Antitrust Modernization Commission Extension Act of 2007". This act merely extends for 30 days the term of the Antitrust Modernization Commission (AMC). See, White House release.

The House will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's weekly calendar.

The Senate will meet at 10:00 AM for morning business. At 2:15 PM it will resume consideration of the motion to proceed to S 184, the "Surface Transportation and Rail Security Act of 2007".

9:00 AM - 4:45 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee. See, notice in the Federal Register, February 12, 2007, Vol. 72, No. 28, at Pages 6547-6548. Location: American Geophysical Union, 2000 Florida Ave., NW.

5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 556, the "National Security Foreign Investment Reform and Strengthened Transparency Act of 2007", a bill pertaining to the Committee on Foreign Investment in the United States (CFIUS) process. Location: Room H-313, Capitol Building.

The House will meet at 10:00 AM for legislative business. It will consider HR 556, the "National Security Foreign Investment Reform and Strengthened Transparency Act of 2007", a bill pertaining to the Committee on Foreign Investment in the United States (CFIUS) process. See, Rep. Hoyer's weekly calendar.

Day two of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee. See, notice in the Federal Register, February 12, 2007, Vol. 72, No. 28, at Pages 6547-6548. Location: American Geophysical Union, 2000 Florida Ave., NW.

9:30 AM. The Consumer Electronics Association (CEA) will host a news conference regarding transitioning to digital television. The CEA's notice states that participants will announce a "comprehensive consumer education campaign to increase awareness of the nation’s transition to digital television, which will be completed on February 17, 2009". To participate by teleconference, call 877-829-1022. For more information, contact Megan Pollack at mpollock at ce dot org or 703-907-7668. Location: Zenger Room, National Press Club, 13th Floor, 529 14th St., NW.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services will hold a hearing on the "Consumer Issues". The witnesses will be Deborah Majoras (FTC Chairman), Nancy Nord (acting Chairman of the Consumer Product Safety Commission), Janell Duncan (Consumers Union), Rachel Weintraub (Consumer Federation of America), and Ari Schwartz (Center for Democracy and Technology). Location: Room 2220, Rayburn Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science will hold a hearing on the National Science Board (NSB). The witness will be Steven Beering (NSB Chairman). Location: Room 2359A, Rayburn Building.

10:00 AM. The House Science Committee will meet to mark up several bills, including HR 1068, a bill to amend the High-Performance Computing Act of 1991. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Comprehensive Immigration Reform". The witnesses will be Attorney General Alberto Gonzales and Secretary of Homeland Security Michael Chertoff. Location: Room 216, Hart Building.

11:30 AM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch. The speaker will be David Boyd (Director, Command, Control and Interoperability in the Department of Homeland Security). For more information, contact Robert Gurss at gurssr at apcomail dot org or 202-833-3800  Location: Akin Gump, 1133 New Hampshire Ave., NW.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "H.R. 251, the Truth in Caller ID Act of 2007". The Subcommittee may also mark up the bill at the conclusion of the hearing. See, HR 251. Location: Room 2322, Rayburn Building.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, and Science will hold a hearing titled "Overview of Science Funding". The witnesses will be Norman Augustine (former Ch/CEO of Lockheed Martin) and Alan Leshner (CEO of the American Association for the Advancement of Science). Location: Room 2359A, Rayburn Building.

3:00 PM. The House Judiciary Committee's (HCC) Antitrust Task Force will hold a hearing titled "Competition and the Future of Digital Music". This hearing will examine the proposed XM Sirius merger. See, notice and release. Location: Room 2141, Rayburn Building.

Extended deadline to submit comments to the Federal Bureau of Investigation's (FBI) Electronic Surveillance Technology Section (ESTS) regarding its Communications Assistance for Law Enforcement Act of 1994 (CALEA) related cost recovery process information collection activities. See, original notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69146-69147, which set the original comment deadline of January 29, 2007, and notice of extension in the Federal Register, January 29, 2007, Vol. 72, No. 18, at Pages 4045-4046.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-104 [9 pages in PDF] titled "A Scheme for PIV Visual Card Topography". It contains recommendations for federal agencies in the color coding of Personal Identity Verification (PIV) Cards.

The House will meet at 10:00 AM for legislative business. It will consider HR 800, a bill for the benefit of labor unions. See, Rep. Hoyer's weekly calendar.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice and Science will hold a hearing on the National Science Foundation (NSF). The witness will be Arden Bement. Location: Room 2237, Rayburn Building.

LOCATION CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) may hold a business meeting. The agenda includes consideration of S 236, the "Federal Agency Data Mining Reporting Act of 2007", and S 316, the "Preserve Access to Affordable Generics Act", a bill to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market. The agenda also includes consideration of several judicial nominees: Thomas Hardiman (to be a Judge of the U.S. Court of Appeals for the 3rd Circuit), John Preston Bailey (U.S.D.C., Northern District of West Virginia), Otis Wright (U.S.D.C., Central District of California), and George Wu (U.S.D.C., Central District of California). The SJC rarely follows its published agendas. Press contract, Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-2984. See, notice. Location: Room S-216, Capitol Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Universal Service". See, notice. Location: Room 253, Russell Building.

TIME CHANGE. 12:00 NOON - 3:00 PM. The Progress and Freedom Foundation (PFF) will host an event titled "Universal Service Reform: Are Reverse Auctions the Answer?". The speakers will be Shyamal Ghosh (former Director of the Indian Department of Telecommunications), Paul Milgrom (Stanford University), Vernon Smith (George Mason University), and Dennis Weller (Chief Economist of Verizon). See, notice. Lunch will be served. Location: Oriental Ballroom B, Mandarin Oriental Hotel, 1330 Maryland Ave., SW.

10:30 AM (or 15 minutes after the conclusion of a full Committee markup scheduled for 10:00 AM). The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Digital Future of the United States: Part I -- The Future of the World Wide Web". Location: Room 2123, Rayburn Building.

11:30 AM - 1;00 PM. The U.S. Chamber of Commerce (USCC) will host a lunch titled "The Sarbanes Oxley Act with Michael Oxley". See, notice. For more information, contact Patrick O'Neill at poneill at uschamber dot com or 202-463-3104. Location: USCC, 1615 H St., NW.

12:00 PM. Secretary of the Treasury Henry Paulson will give a speech on trade at an event hosted by the Economic Club of Washington (ECW). See, Treasury notice. Press contact: Judi Irastorza (ECW) at pcom2 at cox dot net or 703-765-6881. Location: Renaissance Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.

Deadline for local exchange carriers, providers of wired or wireless broadband connections, and non-reseller CMRS providers to submit Form 477 [MS Excel] to the Federal Communications Commission (FCC). See, FCC's Public Notice [PDF] (DA 07-117) and FCC's Form 477 instructions [17 pages in PDF].

Deadline to submit to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) the sixth annual reports from the 700 MHz Guard Band Managers and the fifth annual report from Access 220, LLC, a 220 MHz Band Manager. See, FCC's Public Notice [PDF] (DA 07-107).

Rep. Hoyer's weekly calendar [PDF] states that "No votes are expected in the House."

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Cable Committee will host a brown bag lunch titled "The Future of Program Access Regulation". For more information, contact Daphney Sheppard at dsheppard at sidley dot com or 202-736-8019. Location: Sidley Austin, 6th floor, 1501 K St., NW.

12:00 NOON - 1:30 PM. The U.S. Chamber of Commerce (USCC) will host an event titled "Sarbanes-Oxley: Costs, Benefits, and the Ongoing Debate". For more information, contact Henrietta Treyz at 202-463-5864 or htreyz at uschamber dot com. See, notice. Location: Room 2158 (Gold Room), Rayburn Building, Capitol Hill.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) in its TV white space proceeding. This FNPRM is FCC 06-156 in ET Docket Nos. 04-186 and 02-380. The FCC adopted this item at an October 12, 2006, meeting, and released it on October 18, 2006. See, story titled "FCC Adopts Order and FNPRM Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66897-66905.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cellco Partnership v. Broadcom, App. Ct. No. 2006-1514. Location: Room 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Motionless Keyboard v. Microsoft, App. Ct. No. 2006-1497, an appeal from the U.S. District Court (DOr) in a patent infringement case affecting, among other things, Microsoft's joy sticks and game controllers. The District Court granted defendants' motions for summary judgment of non-infringement and invalidity and entered final judgment in their favor on May 9, 2005. Then, the inventor, who is also the largest shareholder of Motionless Keyboard, moved to intervene pro se. On June 8, 2006, the Court of Appeals issued its opinion [PDF] affirming the District Court's denial of the motion to intervene. Location: Room 203, 717 Madison Place, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to Locus Telecommunications, Inc.'s petition for a declaratory ruling that calls to a prepaid calling card provider’s toll-free customer service numbers are not subject to payphone compensation or, in the alternative, to initiate a rulemaking. See, Public Notice [3 pages in PDF] (DA 07-513). This is proceeding is RM 11354.

9:00 AM - 5:00 PM. Day one of a two day meeting to the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, February 13, 2007, Vol. 72, No. 29, at Pages 6716-6717.

10:00 AM - 5:30 PM. The Securities and Exchange Commission (SEC) will host an event titled "International Financial Reporting Standards ``Roadmap´´ Roundtable". See, SEC release. Location: SEC Headquarters, Room LL-002 (Auditorium), 100 F St., NE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Second Further Notice of Proposed Rulemaking pertaining to aviation radio. The FCC adopted this item on October 4, 2006, and released it on October 10, 2006. This item is FCC 06-148 in WT Docket No. 01-289. See, notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Pages 70710-70715.

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