Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2006-04-06 · Federal Aviation Administration (FAA), DOT · Notices

Notices. Notice of proposed rulemaking

49,012 words·~223 min read·/register/2006/04/06/06-3201

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

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23715; Airspace Docket No. 06-AAL-08] Proposed Modification of Offshore Airspace Area: Control 1487L; AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to modify the Control 1487L offshore airspace area in the vicinity of the Sitka Rocky Gutierrez Airport, Sitka, AK; Merle K. Mudhole Smith Airport, Cordova, AK; and Middleton Island Airport, Middleton Island, AK, by lowering the affected airspace floors associated within Control 1487L.
The FAA is proposing these actions to provide additional controlled airspace for the safety of aircraft executing instrument flight rules
(IFR)operations at the Sitka Rocky Gutierrez, Merle K. Mudhole, and Middleton Island Airports. DATES: Comments must be received on or before May 22, 2006. ADDRESSES: Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify FAA Docket No. FAA-2005-23715 and Airspace Docket No. 06-AAL-08, at the beginning of your comments. You may also submit comments through the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Ken McElroy, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2006-23715 and Airspace Docket No. 06-AAL-08) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://dms.dot.gov.* Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2006-23715 and Airspace Docket No. 06-AAL-08.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM's An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov.* Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov.* , or the **Federal Register** 's Web page at *http://www.gpoaccess.gov/fr/index.html.* You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 222 West 7th Avenue 14, Anchorage, AK 99513. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to modify the Control 1487L airspace area, AK, by lowering the floor from 5,500 feet mean sea level
(MSL)to as low as 700 feet MSL in the vicinity of the Sitka Rocky Gutierrez Airport, Merle K. Mudhole Smith Airport and Middleton Island Airport. This action also proposes to provide offshore airspace in the vicinity of Merle K. Mudhole Smith Airport, AK, by lowering the offshore airspace floor from 5,500 feet MSL to 1,200 feet MSL. Additionally, this action would re-designate the existing class E airspace at Anchorage, AK, by extending Control 1487L airspace area westward to the 12-mile shoreline limit within the 149.5-mile radius associated with Anchorage, AK Class E airspace, and clarify offshore airspace descriptions within already established domestic Class E airspace at Anchorage and Cordova. The FAA is proposing these actions to provide additional controlled airspace for the safety of aircraft executing IFR operations at the Sitka Rocky Gutierrez, Merle K. Mudhole Smith, and Middleton Island Airports, and to correctly designate the existing Class E airspace for Anchorage and Cordova, AK. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(DOT)Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. ICAO Considerations As part of this proposal relates to navigable airspace outside the United States, this notice is submitted in accordance with the International Civil Aviation Organization
(ICAO)International Standards and Recommended Practices. The application of International Standards and Recommended Practices by the FAA, Office of System Operations Airspace and AIM, Airspace & Rules, in areas outside the United States domestic airspace, is governed by the Convention on International Civil Aviation. Specifically, the FAA is governed by Article 12 and Annex 11, which pertain to the establishment of necessary air navigational facilities and services to promote the safe, orderly, and expeditious flow of civil air traffic. The purpose of Article 12 and Annex 11 is to ensure that civil aircraft operations on international air routes are performed under uniform conditions. The International Standards and Recommended Practices in Annex 11 apply to airspace under the jurisdiction of a contracting state, derived from ICAO. Annex 11 provisions apply when air traffic services are provided and a contracting state accepts the responsibility of providing air traffic services over high seas or in airspace of undetermined sovereignty. A contracting state accepting this responsibility may apply the International Standards and Recommended Practices that are consistent with standards and practices utilized in its domestic jurisdiction. In accordance with Article 3 of the Convention, state-owned aircraft are exempt from the Standards and Recommended Practices of Annex 11. The United States is a contracting state to the Convention. Article 3(d) of the Convention provides that participating state aircraft will be operated in international airspace with due regard for the safety of civil aircraft. Since this action involves, in part, the designation of navigable airspace outside the United States, the Administrator is consulting with the Secretary of State and the Secretary of Defense in accordance with the provisions of Executive Order 10854. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, is amended as follows: Paragraph 6007 Offshore Airspace Areas. Control 1487L [Amended] That airspace extending upward from 8,000 feet MSL within 149.5 miles of the Anchorage VOR/DME clockwise from the 090°((T)/065°(M) radial to the 185°(T)/160°(M) radial of the Anchorage VOR/DME; and that airspace extending upward from 5,500 feet MSL within the area bounded by a line beginning at lat. 58°19′58″ N., long. 148°55′07″ W.; to lat. 59°08′34″ N., long. 147°16′06″ W.; thence counterclockwise via the arc of a 149.5-mile radius centered on the Anchorage VOR/DME to the intersection of the 149.5-mile radius arc and a point 12 miles from and parallel to the U.S. coastline; thence southeast 12 miles from and parallel to the U.S. coastline to a point 12 miles offshore on the Vancouver FIR boundary; to lat. 54°32′57″ N., long. 133°11′29″ W.; to lat. 54°00′00″ N., long. 136°00′00″ W.; to lat. 52°43′00″ N., long. 135°00′00″ W.; to lat. 56°45′42″ N., long. 151°45′00″ W.; to the point of beginning; and that airspace extending upward from 1,200 feet MSL within the area bounded by a line beginning at lat. 59°33′25″ N., long. 141°03′22″ W.; thence southeast 12 miles from and parallel to the U.S. coastline to lat. 58°56′18″ N., long. 138°45′19″ W.; to lat. 58°40′00″ N., long. 139°30′00″ W.; to lat. 59°00′00″ N., long.141°10′00″ W.; to the point of beginning, and that airspace within 85 miles of the Biorka Island VORTAC, and that airspace within 42 miles of the Middleton Island VOR/DME, and that airspace within 30 miles of the Glacier River NDB; and that airspace extending upward from 700 feet MSL within 14 miles of the Biorka Island VORTAC and within 4 miles west and 8 miles east of the Biorka Island VORTAC 209°(T)/181°(M) radial extending to 16 miles southwest of the VORTAC. The portion within Canada is excluded. Issued in Washington, DC, on March 30, 2006. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E6-4973 Filed 4-5-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 878 [Docket No. 2006N-0109] General and Plastic Surgery Devices; Reclassification of the Topical Oxygen Chamber for Extremities AGENCY: Food and Drug Administration, HHS. ACTION: Proposed rule. SUMMARY: The Food and Drug Administration
(FDA)is proposing to reclassify the topical oxygen chamber for extremities
(TOCE)from class III (premarket approval) into class II (special controls). The device is intended to surround a patient's limb and apply humidified oxygen to aid healing of chronic skin ulcers such as bedsores. Elsewhere in this issue of the **Federal Register** , FDA is publishing a notice of availability of the draft guidance document that the agency proposes to use as a special control for the device. DATES: Submit written or electronic comments by July 5, 2006. See section VIII of this document for the proposed effective date of a final rule based on this proposed rule. ADDRESSES: You may submit comments, identified by Docket No. 2006N-0109, by any of the following methods: *Electronic Submissions* Submit electronic comments in the following ways: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Agency Web site: *http://www.fda.gov/dockets/ecomments* . Follow the instructions for submitting comments on the agency Web site. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described in the *Electronic Submissions* portion of this paragraph. *Instructions* : All submissions received must include the agency name and Docket No(s). and Regulatory Information Number
(RIN)(if a RIN number has been assigned) for this rulemaking. All comments received may be posted without change to *http://www.fda.gov/ohrms/dockets/default.htm* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket* : For access to the docket to read background documents or comments received, go to *http://www.fda.gov/ohrms/dockets/default.htm* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Charles N. Durfor, Center for Devices and Radiological Health (HFZ-410), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-594-3090, ext. 134. SUPPLEMENTARY INFORMATION: I. Background A. Regulatory Authorities The Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301 *et* *seq* .), as amended by (among other amendments) the Medical Device Amendments of 1976 (the 1976 amendments) (Public Law 94-295) and the Safe Medical Devices Act
(SMDA)(Public Law 101-629) established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the act (21 U.S.C. 360c) established three categories (classes) of devices, depending on the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval). Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendments devices, are classified after FDA has taken the following steps:
(1)Received a recommendation from a device classification panel (an FDA advisory committee);
(2)published the panel's recommendation for comment, along with a proposed regulation classifying the device; and
(3)published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures. Devices that were not in commercial distribution prior to May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act) into class III without any FDA rulemaking process. Postamendments devices require premarket approval, unless FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and 21 CFR part 807) of the regulations. A preamendments device that has been classified into class III may be marketed, by means of premarket notification procedures, without submission of a premarket approval application
(PMA)until FDA issues a final regulation under section 515(b) of the act (21 U.S.C. 360e(b)) requiring premarket approval. In 1990, the SMDA added section 515(i) to the act. This section requires FDA to issue an order to manufacturers of preamendments class III devices for which no final regulation requiring the submission of PMAs has been issued to submit to the agency a summary of, and a citation to, any information known or otherwise available to them respecting such devices, including adverse safety and effectiveness information that has not been submitted under section 519 of the act (21 U.S.C. 360i). Section 519 of the act requires manufacturers, importers, and device user facilities to submit adverse event reports of certain device-related events and reports of certain corrective actions taken. Section 515(i) of the act also directs FDA to either revise the classification of the device into class I or class II or require the device to remain in class III and establish a schedule for the issuance of a rule requiring the submission of PMAs for those devices. In the **Federal Register** of May 6, 1994 (59 FR 23731), FDA announced the availability of a document setting forth its strategy for implementing the provisions of the SMDA that require FDA to review the classification of preamendments class III devices. Under this plan, the agency divided preamendments class III devices into the following three groups: Group 1 devices are devices that FDA believes raise significant questions of safety and/or effectiveness, but are no longer used or are in very limited use; group 2 devices are devices that FDA believes have a high potential for being reclassified into class II; and group 3 devices are devices that FDA believes are not likely candidates for reclassification. In the **Federal Register** of August 14, 1995 (60 FR 41986), FDA published an order for Group 2 preamendment class III devices, including the TOCE, requiring the submission of safety and effectiveness information in accordance with the preamendments class III strategy to implement section 515(i) of the act (515(i) summary). The order describes in detail the format for submitting the type of information required by section 515(i) of the act so that the information submitted would clearly support reclassification or indicate that the device should be retained in class III. This order was updated in the **Federal Register** of June 13, 1997 (62 FR 32355). Reclassification of classified preamendments devices is governed by section 513(e) of the act. This section provides that FDA may, by rulemaking, reclassify a device based upon “new information.” The reclassification can be initiated by FDA or by the petition of an interested person. The term “new information,” as used in section 513(e) of the act, includes information developed as a result of a re-evaluation of the data before the agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g., *Holland Rantos* v. *United States Department of Health, Education, and Welfare* , 587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978); *Upjohn* v. *Finch* , 422 F.2d 944 (6th Cir. 1970); *Bell* v. *Goddard* , 366 F.2d 177 (7th Cir. 1966).) Re-evaluation of the data previously before the agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of changes in “medical science.” (See *Upjohn* v. *Finch* , supra, 422 F.2d at 951.) However, regardless of whether data before the agency are past or new data, the “new information” upon which reclassification under section 513(e) of the act is based must consist of “valid scientific evidence,” as defined in section 513(a)(3) of the act and 21 CFR 860.7(c)(2). FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. For the purpose of reclassification, the valid scientific evidence upon which the agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending PMA. (See section 520(c) of the act (21 U.S.C. 360j(c)).) B. Device Description The TOCE is currently identified as a device intended to surround hermetically a patient's limb and apply humidified oxygen topically at a pressure slightly greater than atmospheric pressure to aid healing of chronic skin ulcers or bed sores. C. Regulatory History of the Device In 1988, the agency issued a final rule classifying this device into class III (53 FR 23856, June 24, 1988). In the preamble to the classification final rule, FDA cited two documents that found little scientific evidence to support the safety and effectiveness of the device. FDA stated that there was a potential for widespread use of the device in the treatment of skin sores in the elderly and infirm. FDA concluded that the device presented a potential unreasonable risk of illness or injury to these patients if there were not adequate data to assure its safety and effectiveness. In addition, FDA found that the device was purported or represented to be for a use, the treatment of decubitus ulcers, that was of substantial importance in preventing impairment of human health. Accordingly, the agency classified the device into class III. In August 1997, in response to FDA's order for the submission of information on the TOCE, two manufacturers submitted 515(i) summaries of safety and effectiveness information to the agency for the TOCE (Refs. 1 and 2). These 515(i) summaries recommended that the device be reclassified into class II and provided information to assist FDA in reclassifying the device. FDA referred the 515(i) submissions to the General and Plastic Surgery Devices Panel (GPS Panel) for their recommendation on the requested reclassification. At a public meeting on November 17, 1998, the GPS Panel recommended that the device be retained in class III (Ref. 3). The GPS Panel based their recommendation on the information in the 515(i) submissions of safety and effectiveness information; the information provided by FDA; testimony presented at the meeting by manufacturers of the device, a physician user of the device, and FDA; and the Panel's deliberations at the meeting. The GPS Panel believed that the effectiveness of the TOCE remained unestablished. The Panel also concluded that special controls, in addition to general controls, were insufficient to provide a reasonable assurance of the safety and effectiveness of the device and that there was insufficient information, primarily a lack of effectiveness information, to establish special controls. Accordingly, the GPS panel recommended premarket approval to provide reasonable assurance of the device's effectiveness. The Panel recommended that the call for premarket approval be of low priority to allow manufacturers of the device sufficient time to conduct studies that would establish the effectiveness of the device. II. Proposed Rule As discussed in more detail in the following paragraph, FDA is proposing to reclassify the TOCE from class III to class II (special controls). FDA believes that new information now exists to establish special controls, that, in addition to the general controls, will provide a reasonable assurance of the safety and effectiveness of this device. In addition, FDA is proposing minor revisions to the device description (see 21 CFR 878.5650) intended to more accurately describe this device type. FDA is proposing to remove the term hermetically and to clarify that bedsores are chronic skin ulcers. FDA proposes to identify the TOCE as follows: A topical oxygen chamber for extremities is a device that is intended to surround a patient's limb and apply humidified oxygen topically at a pressure slightly greater than atmospheric pressure to aid healing of chronic skin ulcers such as bedsores. III. Risks to Health After considering the information in the 515(i) submissions for the two devices, the GPS Panel's recommendation, the published literature, and Medical Device Reports, FDA has evaluated the risks to health associated with use of the TOCE and determined that the following risks to health are associated with its use. A. Infection If the device cannot be sterilized, an infection can occur. FDA also notes that some TOCEs are for single patient use and some are for multiple patient use. If a TOCE for multiple patient use cannot be adequately sterilized between use in multiple patients, there is a high potential for transmission of infection between patients because these patients are already immunologically compromised. B. Fire and Explosion The risk of fire and explosion is common to all devices that are used in an atmosphere of pure oxygen. C. Local Tissue Damage The therapeutic topical oxygen pressure range, which is only slightly above atmospheric pressure, is very narrow and is critical to maintain. Excessive topical oxygen pressure (higher than 22 millimeters of mercury) can occlude local arterial circulation, decreasing local tissue circulation, which could cause local tissue damage. D. Adverse Tissue Reaction Adverse tissue reaction is a risk common to all devices that contact compromised skin. Incompatible materials or impurities in the materials may increase the severity of a local tissue reaction or cause a system tissue reaction. E. Electrical Shock Electrical shock is also a risk common to electrical devices that contact compromised skin. IV. Summary of the Reasons for the Reclassification FDA believes that the TOCE should be reclassified into class II because special controls, in addition to general controls, can be established to provide reasonable assurance of the safety and effectiveness of the device. In addition, there is now experience in the clinical community and adequate effectiveness information sufficient to establish special controls to provide such assurance. V. Summary of the Data Upon Which the Reclassification is Based New information has become available since the 1998 GPS Panel meeting on the clinical effectiveness of the device. Specifically, three recent studies (two prospective and one retrospective) report safe use and adequate healing of wounds using the TOCE. Two studies compared standard wound care with TOCE treatment for gangrenous or necrotic wounds (Refs. 4 and 5), and the third study evaluated the clinical effectiveness of TOCE treatment of chronic ulcers, post-surgical wounds, and acute trauma-induced wounds (Ref. 6). These three studies demonstrated adequate healing for an acceptable number of wounds. Investigators reported no complications related to TOCE use in these three studies. VI. Special Controls FDA believes that the draft guidance document entitled “Class II Special Controls Guidance: Topical Oxygen Chamber for Extremities” (draft special controls guidance document), in addition to general controls, can be an adequate special control to address the risks to health associated with the use of the TOCE device described in section III of this document. FDA agrees with the GPS Panel that in 1998 the effectiveness of the TOCE was not established. FDA now believes that the new information cited previously (Refs. 4 to 6) provides sufficient supporting evidence regarding effectiveness. Thus, the agency now believes that the draft special controls guidance document, which incorporates voluntary consensus standards, device performance testing, and labeling, addresses the GPS Panel's concerns. Elsewhere in this issue of the **Federal Register** , FDA is publishing a notice of availability of the draft guidance document that the agency intends to use as the special control for this device. The draft special controls guidance document contains specific recommendations for device performance testing and other information that should be included in a premarket notification (510(k)) submission. For example, the draft special controls guidance document addresses the following issues: sterility, fire and explosion control, oxygen pressure control, biocompatibility, electrical safety testing, and labeling. In the following table 1, FDA has identified the risks to health associated with the use of the device in the first column and the recommended mitigation measures identified in the draft special controls guidance document in the second column. These recommendations will also help ensure that the device has appropriate performance characteristics and labeling for its use. Following the effective date of any final reclassification rule based on this proposal, any firm submitting a 510(k) submission for this device will need to address the issues covered in the draft special controls guidance document. However, the firm need only show that its device meets the recommendations of the draft special controls guidance document or in some other way provides equivalent assurances of safety and effectiveness. **Table 1** Identified Risk Recommended Mitigation Measures Infection Section 7: Sterility Section 12: Clinical Studies Section 13: Labeling Fire and Explosion Section 8: Fire and Explosion Control Section 13: Labeling Local Tissue Damage Section 9: Oxygen Pressure Control Section 13: Labeling Adverse Tissue Reaction Section 10: Biocompatibility Electrical Shock Section 11: Electrical Safety Testing Section 13: Labeling VII. FDA's Findings As discussed previously, FDA believes the TOCE should be reclassified into II because special controls, in addition to general controls, provide reasonable assurance of the safety and effectiveness of the devices, and there is sufficient information to establish special controls to provide such assurance. FDA, therefore, is proposing to reclassify the device into class II and establish the draft class II special controls guidance document as a special control for the device. Section 510(m) of the act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the act, if the agency determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness and, therefore, the device is not exempt from the premarket notification requirements. FDA review of performance characteristics will provide reasonable assurance that acceptable levels of performance for both safety and effectiveness are addressed before marketing clearance. Thus, persons who intend to market this device must submit to FDA a 510(k) submission containing information on the TOCE and receive a substantial equivalence determination from the agency before marketing the device. VIII. Proposed Effective Date FDA proposes that any final regulation based on this proposal become effective 30 days after its date of publication in the **Federal Register** . IX. Environmental Impact The agency has determined under 21 CFR 25.34(b) that this proposed reclassification action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. X. Analysis of Impacts FDA has examined the impacts of the proposed rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this proposed rule is not a significant regulatory action as defined by the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Reclassification of this device from class III to class II will relieve all manufacturers of the device of the cost of complying with the premarket approval requirements of section 515 of the act. Because reclassification will reduce the regulatory costs with respect to this device, the agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $115 million, using the most current
(2003)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount. XI. Federalism FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the proposed rule, if finalized, would not contain policies that would have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency tentatively concludes that the proposed rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement has not been prepared. XII. Paperwork Reduction Act of 1995 FDA tentatively concludes that this proposed rule contains no collections of information. Therefore, clearance by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520) is not required. FDA also tentatively concludes that the draft special controls guidance document does not contain new information collection provisions that are subject to review and clearance by OMB under the PRA. Elsewhere in this issue of the **Federal Register** , FDA is publishing a notice announcing the availability of the draft guidance document entitled “Class II Special Controls Guidance: Topical Oxygen Chamber for Extremities”; the notice contains an analysis of the paperwork burden for the draft guidance. XIII. Comments Interested persons may submit to the Division of Dockets Management Branch (see ADDRESSES ) written or electronic comments regarding this document. Submit a single copy of electronic comments 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. XIV. References The following references have been placed on display in the Division of dockets management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m. Monday through Friday. 1. 515(i) Submission submitted by Gaymar Industries, Inc., Orchard Park, NY, dated August 4, 1997, received August 11, 1997. 2. 515(i) Submission submitted by Stephen's Medical Inc./Wound Cure, Inc., Northbrook, IL, dated August 11, 1997, received August 12, 1997. 3. General and Plastic Surgery Devices Panel, Transcript, November 17, 1998, pages 120-201. 4. Heng, M.C.Y., J. Harker, V.B. Bardakjian, and H. Ayvazian, “Enhanced Healing and Cost-Effectiveness of Low Pressure Oxygen Therapy in Healing Necrotic Wounds: A feasibility study of technology transfer,” Ostomy Wound Management, 46: 52-60, 2000. 5. Heng, M.C.Y., J. Harker, G. Csathy, C. Marshall, J. Brazier, S. Socorro, and E.P. Gomez, “Angiogenesis in Necrotic Ulcers Treated with Hyperbaric Oxygen,” Ostomy Wound Management, 46: 18-32, 2000. 6. Kalliainen, L.K., G.M. Gordillo, R. Schlanger, and C.K. Sen, “Topical oxygen as an adjunct to wound healing: a clinical case series,” Pathophysiology 9: 81-87, 2003. List of Subjects in 21 CFR Part 878 Medical devices. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 878 be amended as follows: PART 878—GENERAL AND PLASTIC SURGERY DEVICES 1. The authority citation for 21 CFR part 878 continues to read as follows: Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 371. 2. Section 878.5650 is revised in Subpart F to read as follows: § 878.5650 Topical oxygen chamber for extremities.
(a)*Identification* . A topical oxygen chamber for extremities is a device that is intended to surround a patient's limb and apply humidified oxygen topically at a pressure slightly greater than atmospheric pressure to aid healing of chronic skin ulcers such as bedsores.
(b)*Classification* . Class II (special controls). The special control for the device is FDA's “Class II Special Controls Guidance: Topical Oxygen Chamber for Extremities.” See § 878.1(e) for the availability of this guidance document. Dated: March 27, 2006. Linda S. Kahan, Deputy Director, Center for Devices and Radiological Health. [FR Doc. E6-4962 Filed 4-5-06; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-06-017] RIN 1625-AA09 Drawbridge Operation Regulations; Atlantic Intracoastal Waterway (Alternate Route), Dismal Swamp Canal, NC AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish regulations that govern the operation of the new Dismal Swamp Canal Bridge, at the Alternate Route of the Atlantic Intracoastal Waterway
(AICW)mile 28.0, in South Mills, NC. The proposed regulations will maintain a level of operational capabilities that will continue to provide for the reasonable needs of the North Carolina Department of Parks and Recreation Visitor Center, at Dismal Swamp, and vessel navigation. DATES: Comments and related material must reach the Coast Guard on or before June 5, 2006. ADDRESSES: You may mail comments and related material to Commander (obr), Fifth Coast Guard District, Federal Building, 4th Floor, 431 Crawford Street, Portsmouth, VA 23704-5004. The Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (obr), Fifth Coast Guard District between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6422. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05-06-017, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like a return receipt, please enclose a stamped, self-addressed postcard or envelope. We will consider all submittals received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander (obr), Fifth Coast Guard District 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 The North Carolina Department of Parks and Recreation (NC Parks and Recreation) will own and operate this proposed new swing-type bridge at the Alternate Route of the AICW mile 28.0 across Dismal Swamp Canal. This proposed rule will allow the Dismal Swamp Canal Bridge to remain open to vessel traffic, closing only for pedestrian crossings and periodic maintenance. This proposed rule will also allow the Dismal Swamp Canal Bridge to be operated from a remote location at the Dismal Swamp Visitors Center. NC Parks and Recreation has installed closed circuit cameras in the area of the bridge mounted on the fender systems on both sides. Infrared sensors have also been installed to cover the swing radius of the bridge. This equipment enhances the controller's ability to monitor vessel traffic from the remote location. The controller will also monitor marine channel 13. The proposed rule will require the draw to remain in the open-to-navigation position and only close to allow pedestrians (visitors to the park) to cross the bridge, and for periodic maintenance, and then the bridge will immediately reopen to navigation once the pedestrians have crossed the bridge. This will provide for an even flow of vessel traffic along the Dismal Swamp. Discussion of Proposed Rule The Coast Guard proposes to adopt new regulations to govern the operation of the Dismal Swamp Canal Bridge, at mile 28.0, in South Mills, NC. The Coast Guard proposes to insert this new specific regulation at 33 CFR § 117.820. The rule will allow the draw of the bridge to be remotely-operated by Park Service Rangers at the Dismal Swamp Visitors Center. The draw will remain in the open position for navigation and shall only be closed for the crossing of pedestrians and periodic maintenance authorized in accordance with 33 CFR Subpart A. Before the Dismal Swamp Visitor Center Bridge closes for any reason, the remote operator will monitor waterway traffic in the area. The bridge will only be closed if the operator's visual inspection shows that the channel is clear and there are no vessels transiting in the area. While the Dismal Swamp Visitor Center Bridge is moving from the full open to the full closed position, the operator will maintain constant surveillance of the navigation channel to ensure that no conflict with maritime traffic exists. In the event of failure or obstruction of monitoring equipment, the operator will stop and return the bridge to the full open position to vessels. Before closing the draw, the channel traffic lights will change from flashing green to flashing red and the horn will sound five short blasts. Five short blasts of the horn will continue until the bridge is seated and locked down to vessels, the channel traffic lights will continue to flash red. When pedestrian traffic has cleared, the horn will automatically sound one prolonged blast followed by one short blast to indicate that the draw of the Dismal Swamp Canal Bridge is about to return to its full open position to vessels. During the open swing movement, the channel traffic lights will flash red until the bridge is in the full open position. In the full open position to vessels, the bridge channel lights will flash green. 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Although the Dismal Swamp Canal Bridge will be untended and operated from a remote location, mariners can continue their transits because the bridge will remain open to mariners, only to be closed for pedestrian crossings or periodic maintenance. 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 not have a significant economic impact on a substantial number of small entities for the following reason. The rule allows the Dismal Swamp Canal Bridge to operate remotely and requires the bridge to remain in the open position to vessels the majority of the time, only closing for pedestrian crossings or periodic maintenance. 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. 04-121), 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 Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District,
(757)398-6222. 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 will 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 affect 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 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 proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation because it has been determined that the promulgation of operating regulations for drawbridges are categorically excluded. List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); § 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. Add new § 117.820 immediately following the undesignated center heading North Carolina to read as follows: § 117.820 Atlantic Intracoastal Waterway (Alternate Route), Dismal Swamp Canal. The draw of the Dismal Swamp Canal Bridge, mile 28.0 at South Mills, NC, shall operate as follows:
(a)The draw shall remain in the open position for navigation. The draw shall only be closed for pedestrian crossings or periodic maintenance authorized in accordance with Subpart A of this part.
(b)The bridge shall be remotely operated by the Park Service Rangers at the Dismal Swamp Visitors Center. The remote operator shall monitor vessel traffic with closed circuit cameras and infrared sensors covering the swing radius. Operational information will be provided 24 hours a day on marine channel 13.
(c)The bridge shall not be operated from the remote location in the following events: Failure or obstruction of the infrared sensors, closed-circuit cameras or marine-radio communications, or when remote operator's visibility is impaired.
(d)Before the bridge closes for any reason, the remote operator will monitor waterway traffic in the area. The bridge shall only be closed if the off-site remote operator's visual inspection shows that the channel is clear and there are no vessels transiting in the area. While the bridge is moving, the operator shall maintain constant surveillance of the navigation channel.
(e)Before closing the draw, the channel traffic lights will change from flashing green to flashing red, the horn will sound five short blasts. Five short blasts of the horn will continue until the bridge is seated and locked down to vessels, the channel traffic lights will continue to flash red.
(f)When pedestrian traffic has cleared, the horn will automatically sound one prolonged blast followed by one short blast to indicate the draw is opening to vessel traffic. During the opening swing movement, the channel traffic lights will flash red until the bridge returns to the fully open position. In the full open position to vessels, the bridge channel lights will flash green. Dated: March 23, 2006. L.L. Hereth, Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-4899 Filed 4-5-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-024] RIN 1625-AA09 Drawbridge Operation Regulations; Chelsea River, Chelsea, MA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to temporarily change the drawbridge operation regulations governing the operation of the P.J. McArdle Bridge, across the Chelsea River at mile 0.3, between East Boston and Chelsea, Massachusetts. This proposed rule would allow the bridge to remain closed from 9 a.m. to 5 p.m. on June 17, 2006, to facilitate the Third Annual Chelsea River Revel Festival and the running of the Chelsea River Revel 5K Road Race. Vessels that can pass under the bridge without a bridge opening may do so at all times. DATES: Comments and related material must reach the Coast Guard on or before May 8, 2006. ADDRESSES: You may mail comments and related material to Commander (dpb), First Coast Guard District Bridge Branch, 408 Atlantic Avenue, Boston, Massachusetts, 02110, or deliver them to the same address between 7 a.m. and 3 p.m., Monday through Friday, except, Federal holidays. The telephone number is
(617)223-8364. The First Coast Guard District, Bridge Branch, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the First Coast Guard District, Bridge Branch, 7 a.m. to 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. John McDonald, Project Officer, First Coast Guard District,
(617)223-8364. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-06-024), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, 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. Public Meeting We do not now plan to hold a public meeting; however, you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, 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 The P.J. McArdle Bridge across the Chelsea River at mile 0.3, has a vertical clearance of 21 feet at mean high water and 30 feet at mean low water in the closed position. The existing drawbridge operation regulations listed at 33 CFR 117.593 require the bridge to open on signal at all times. On March 6, 2006, the Chelsea Creek Action Group
(CCAG)requested a temporary change to the regulation that governs the operation of the P.J. McArdle Bridge. The temporary regulation would allow the bridge to remain closed to vessel traffic from 9 a.m. to 5 p.m. on Saturday, June 17, 2006, in the interest of public safety during the Third Annual Chelsea River Revel Festival and 5K Road Race. Vessels that can pass under the bridge without a bridge opening may do so at all times. Discussion of Proposed Rule This proposed change would suspend § 117.593 and temporarily add a new § 117.T594. The P.J. McArdle Bridge would remain in the closed position from 9 a.m. to 5 p.m. in the interest of public safety during the Third Annual Chelsea River Revel Festival and the running of the Chelsea River Revel 5K Road Race. The 5K Road Race does not actually cross over the bridge; however, the Chelsea River passes through the middle of the festival which takes place on both sides of the Chelsea River in East Boston and Chelsea. A large volume of pedestrian traffic is anticipated to cross over the bridge during the festival. It would not be in the best interest of public safety and the coordination of this public event to have the bridge open during the time period this event is in progress. The Chelsea River is predominantly transited by commercial tugs, barges, oil tankers. The Coast Guard coordinates this closure annually with the oil facilities and the one recreational marina which are upstream from the bridge. This temporary rule is expected to meet the present and anticipated needs of navigation. Under this proposed temporary rule, all drawbridges across the Chelsea River would open on signal; except that the P.J. McArdle Bridge, at mile 0.3, would need not open for the passage of vessel traffic from 9 a.m. to 5 p.m. on June 17, 2006. The opening signal for each drawbridge would remain two prolonged blasts followed by two short blasts and one prolonged blast. The acknowledging signal would remain three prolonged blasts when the draw can be opened immediately and two prolonged blasts when the draw cannot be opened or is open and must be closed. 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 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under the regulatory policies and procedures of DHS is unnecessary. This conclusion is based on the fact that the bridge will only be closed for 8 hours in the interest of public safety during the running of the 5K Road Race on June 17, 2006. Vessels that can pass under the draw without a bridge opening may do so at all times during the time the bridge is closed. 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 section 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 conclusion is based on the fact that the bridge will only be closed for 8 hours in the interest of public safety during the running of the 5K Road Race on June 17, 2006. Vessels that can pass under the draw without a bridge opening may do so at all times during the time the bridge is closed. 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 us in writing at, Commander (dpb), First Coast Guard District, Bridge Branch, One South Street, New York, NY 10004. The telephone number is
(212)668-7165. 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 affect 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 M16475.1D, 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 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 proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environment documentation. Under figure 2-1, paragraph (32)(e) of the instruction, an “Environmental Analysis Checklist” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review. List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); § 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. On June 17, 2006, from 9 a.m. to 5 p.m., § 117.593 is suspended and a new § 117.T594 is added to read as follows: § 117.T594 Chelsea River.
(a)All drawbridges across the Chelsea River shall open on signal; except that the P.J. McArdle Bridge, mile 0.3, need not open for the passage of vessel traffic from 9 a.m. to 5 p.m. on June 17, 2006.
(b)The opening signal for each drawbridge is two prolonged blasts followed by two short blasts and one prolonged blast. The acknowledging signal is three prolonged blasts when the draw can be opened immediately and two prolonged blasts when the draw cannot be opened or is open and must be closed. Dated: March 21, 2006. David P. Pekoske, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-4900 Filed 4-5-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE United States Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2006-0005] RIN 0651-AC01 Changes to Eliminate the Disclosure Document Program AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rule making. SUMMARY: The United States Patent and Trademark Office (Office) implemented the Disclosure Document Program in 1969 in order to provide an alternative form of evidence of conception of an invention to, for example, a “self-addressed envelope” containing a disclosure of an invention. It appears, however, that few, if any, inventors obtain any actual benefit from a disclosure document, and some inventors who use the Disclosure Document Program believe that they are actually filing an application for a patent. In addition, a provisional application for patent affords better benefits and protection to inventors than a disclosure document. Therefore, the Office is proposing to eliminate the Disclosure Document Program. *Comment Deadline Date:* To be ensured of consideration, written comments must be received on or before May 8, 2006. No public hearing will be held. ADDRESSES: Comments should be sent by electronic mail message over the Internet addressed to *ddp.comments@uspto.gov.* Comments may also be submitted by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or by facsimile to
(571)273-7735, marked to the attention of Catherine M. Kirik. Although comments may be submitted by mail or facsimile, the Office prefers to receive comments via the Internet. If comments are submitted by mail, the Office prefers that the comments be submitted on a DOS formatted 3 1/2 inch disk accompanied by a paper copy. Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the Office Internet Web site (address: *http://www.uspto.gov* ). Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or phone number, should not be included in the comments. FOR FURTHER INFORMATION CONTACT: Catherine M. Kirik, Office of the Commissioner for Patents, by telephone at
(571)272-8040, by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or by facsimile to
(571)273-0170, marked to the attention of Catherine M. Kirik. SUPPLEMENTARY INFORMATION: An inventor may file a disclosure document with the Office which includes a written description and drawings of his or her invention in sufficient detail to enable a person of ordinary skill in the art to make and use the invention to establish a date of conception of an invention in the United States under 35 U.S.C. 104 prior to the application filing date. The inventor must sign the disclosure document and include a separate signed cover letter identifying the papers as a disclosure document. A disclosure document does not require either a claim in compliance with 35 U.S.C. 112, ¶2, or an inventor's oath (or declaration) under 35 U.S.C. 115, and is not accorded a patent application filing date. A disclosure document is to be destroyed by the Office after two years unless it is referred to in a separate letter in a related provisional or nonprovisional application filed within those two years. The filing fee for a disclosure document is $10. *See* 37 CFR 1.21(c). The Office published a notice in September of 1998 seeking input from the general public on whether the Office should eliminate the Disclosure Document Program. *See Changes to Implement the Patent Business Goals,* 63 FR 53498, 53527-28 (Oct. 5, 1998), 1215 *Off. Gaz. Pat. Office* 87 (Oct. 27, 1998) (advance proposed rule). The Office received a number of comments supporting the elimination of the Disclosure Document Program, but did not receive any input from the independent inventor community and, therefore, decided to delay eliminating the Disclosure Document Program. *See Changes to Implement the Patent Business Goals,* 64 FR 53772, 53776-77 (Oct. 4, 1998), 1215 *Off. Gaz. Pat. Office* 87 (Oct. 27, 1998) (proposed rule). The Office has determined that it is now appropriate to propose elimination of the Disclosure Document Program because, *inter alia* , independent inventors have become more familiar with and are using provisional applications more often than they were in 1998, and provisional applications provide more protections for independent inventors than disclosure documents. The Office implemented the Disclosure Document Program in 1969 in order to provide an alternative form of evidence of conception of an invention to forms such as a “self-addressed envelope” form of evidence. *See Disclosure Document Program,* 34 FR 6003 (Apr. 2, 1969), 861 *Off. Gaz. Pat. Office* 1 (May 6, 1969). Since June of 1995, however, applicants have been able to file a provisional application for patent, which provides better benefits and protection to inventors than a disclosure document. A provisional application must contain a specification in compliance with 35 U.S.C. 112, ¶1, and drawings, if drawings are necessary to understand the invention described in the specification. A provisional application must name the inventors and be accompanied by a separate cover sheet identifying the papers as a provisional application. The basic filing fee for a provisional application by a small entity is $100.00. *See* 37 CFR 1.16(d). A provisional application does not require a claim under 35 U.S.C. 112, ¶2, or an inventor's oath (or declaration) under 35 U.S.C. 115. While a nonprovisional application must be filed within twelve months of the filing date of a provisional application in order for the inventor to claim the benefit of the provisional application under 35 U.S.C. 119(e), the file of a provisional application is retained by the Office for at least twenty years, or longer if it is referenced in a patent or patent application publication. With respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of a provisional application, the provisional application is considered a constructive reduction to practice of an invention as of the filing date accorded the application, if it describes the invention in sufficient detail to enable a person of ordinary skill in the art to make and use the invention and discloses the best mode known by the inventor for carrying out the invention. Thus, the disclosure requirements for a provisional application are similar to the disclosure requirements for a disclosure document, and a provisional application provides users with a filing date without starting the patent term period. Therefore, almost any papers filed as a proper disclosure document may also be filed as a provisional application. A provisional application is, however, more valuable to an inventor than a disclosure document. A provisional application, just like a nonprovisional application, establishes a constructive reduction to practice date with respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of the provisional application and disclosed in the provisional application in the manner required by 35 U.S.C. 112, ¶1, and can be used under the Paris Convention to establish a priority date for foreign filing. A disclosure document, however, may only be used as evidence of a date of conception of an invention under 35 U.S.C. 104. A disclosure document is not a patent application and the filing of a disclosure document does not establish a constructive reduction to practice date for an invention described therein. Thus, to use a disclosure document to establish prior invention under 35 U.S.C. 102(g) or under 37 CFR 1.131, an inventor may rely on the disclosure document to demonstrate that he or she conceived of the invention first, but the inventor may also be required to demonstrate that he or she was reasonably diligent from a date just prior to:
(1)The date of conception by the other party in an interference proceeding; or
(2)effective date of a reference being used by the Office to reject one or more claims of an application until the inventor's actual or constructive reduction to practice. With respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of a provisional application and disclosed in the provisional application in the manner required by 35 U.S.C. 112, ¶1, however, the provisional application may be used to establish a constructive reduction to practice date as of the filing date of the provisional application. Under 35 U.S.C. 102(b), any public use or sale of an invention in the U.S. or description of an invention in a patent or a printed publication anywhere in the world more than one year prior to the filing of a patent application on that invention will bar the grant of a patent. In addition, many foreign countries currently have what is known as an “absolute novelty” requirement which means that a public disclosure of an invention anywhere in the world prior to the filing date of an application for patent will act as a bar to the granting of any patent directed to the invention disclosed. Since a disclosure document is not a patent application, it does not help an inventor avoid the forfeiture of U.S. or foreign patent rights. Discussion of Specific Rules Title 37 of the Code of Federal Regulations, Part 1, is proposed to be amended as follows: *Section 1.21:* Section 1.21(c) currently sets forth a fee ($10.00) for filing a disclosure document. Section 1.21 is proposed to be amended to remove and reserve paragraph
(c)in view of the proposed elimination of the Disclosure Document Program. Rule Making Considerations Regulatory Flexibility Act For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities. *See* 5 U.S.C. 605(b). There is no statutory provision relating to the disclosure document program. The program dates back to 1969, when commercial services were not as abundantly available. Now, there are numerous commercially available “electronic notebooks” that may be used to document evidence of conception of an invention. In addition, inventors may still use a “self-addressed envelope” to mail documents to themselves or they may maintain a logbook containing fixed pages that may be witnessed to document evidence of conception of an invention. Thus, the program is no longer necessary. Executive Order 13132 This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). Executive Order 12866 This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993). Paperwork Reduction Act The information collection requirements being suspended by this rule were approved in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) by the Office of Management and Budget
(OMB)under 0651-0030 disclosure documents. Suspension of the reporting requirements under 0651-0030 is expected to reduce the public reporting burden by 4,445 hours and $236,000. This proposed rule would thus not impose any additional reporting or record keeping requirements on the public. Interested persons are requested to send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Robert J. Spar, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 1 Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and recordkeeping requirements, Small businesses. For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2). 2. Section 1.21 is amended by removing and reserving paragraph (c). § 1.21 Miscellaneous fees and charges.
(c)[Reserved] Dated: March 29, 2006. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E6-4833 Filed 4-5-06; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2003-0199; FRL-8055-2] RIN 2060-AL98 Alternative Work Practice To Detect Leaks From Equipment AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule amendment. SUMMARY: Numerous EPA air pollution standards require specific work practices for equipment leak detection and repair (LDAR). The current work practice requires the use of a monitor which meets required performance specifications. This work practice is based on 25-year-old technology. New technology has been developed which we believe provides equal, or better, environmental protection than that provided by the current work practice. This action proposes a voluntary alternative work practice
(AWP)for finding leaking equipment using optical gas imaging. DATES: *Comments.* Submit comments on or before June 5, 2006, or 30 days after the date of any public hearing, if later. *Public Hearing.* If anyone contacts the EPA requesting to speak at a public hearing by April 26, 2006, a public hearing will be held on May 4, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2003-0199, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • E-mail: *a-and-r-docket@epa.gov.* • Fax:
(202)566-1741. • Mail: Air Docket, EPA, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. • Hand Delivery: EPA, 1301 Constitution Avenue, NW., Room B102, Washington, DC 20460. 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-OAR-2003-0199. 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 law. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The Web site *http://www.regulations.gov* 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 *http://www.regulations.gov.* Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by law. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. *Public Hearing.* If a public hearing is held, it will begin at 10 a.m. and will be held at the EPA facility complex in Research Triangle Park, North Carolina, or at an alternate facility nearby. Persons interested in presenting oral testimony or inquiring as to whether a public hearing is to be held must contact Mr. David Markwordt; Coatings and Chemicals Group; Sector Policies and Programs Division; EPA; Research Triangle Park, NC 27711; telephone
(919)541-0837. FOR FURTHER INFORMATION CONTACT: For additional information on the proposed rule amendment, review the reports listed in the SUPPLEMENTARY INFORMATION section. *General and technical information.* Mr. David Markwordt, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (C439-03), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone
(919)541-0837, facsimile number
(919)541-0942, electronic mail (e-mail) address: “ *markwordt.david@epa.gov.* ” SUPPLEMENTARY INFORMATION: *Regulated Entities.* The regulated categories and entities affected by the proposed rule amendment include, but are not limited to: Category NAICS * Examples of regulated entities Industry 325 Chemical manufacturers. 324 Petroleum refineries, and manufacturers of coal products. * North American Information Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the national emission standards. To determine whether your facility would be affected by the national emission standards, you should examine the applicability criteria in 40 CFR parts 60, 61, 63 and 65, including, but not limited to: Part 60, subparts A, Kb, VV, XX, DDD, GGG, KKK, QQQ, and WWW; part 61, subparts F, L, V, BB, and FF; part 63, subparts G, H, I, R, S, U, Y, CC, DD, EE, GG, HH, OO, PP, QQ, SS, TT, UU, VV, YY, GGG, HHH, III, JJJ, MMM, OOO, VVV, FFFF, and GGGGG; and part 65, subparts A, F, and G. If you have any questions regarding the applicability of the national emission standards to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of today's proposed rule amendment will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the proposed rule amendment will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/.* The TTN provides information and technology exchange in various areas of air pollution control. *Reports for Public Comment.* We have prepared a summary memorandum covering the rationale for the proposed rule amendment. The memorandum is entitled: “Basis and Purpose for the Alternative Leak Detection and Repair
(LDAR)Work Practice,” and is in Docket ID No. EPA-HQ-OAR-2003-0199. See the preceding *Docket* section for docket information and availability. *Outline.* The information presented in this preamble is organized as follows: I. Background Information A. What is the current LDAR work practice? B. What are the current LDAR requirements? C. What is the statutory basis for these requirements? D. How can the existing requirements be changed? E. Why is EPA proposing consideration of an alternative LDAR work practice? F. How does the new optical gas imaging technology work? G. How were emission reductions estimated for LDAR programs originally? H. What did the Agency do to compare existing and proposed work practice effectiveness? I. How well does the new technology work? J. How does this proposed voluntary work practice promote development of innovative technology? K. Request for comments II. Summary of the Regulatory Action III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act I. Background Information A. What is the current LDAR work practice? Numerous EPA air pollution control standards require specific work practices for LDAR. These practices require plant operators to periodically inspect designated equipment for leaks. The work practice currently employed requires the use of a monitor which meets the performance specifications of EPA Reference Method 21. The monitor is a portable instrument that is used to detect leaks of volatile organic compounds
(VOC)and/or hazardous air pollutants
(HAP)at the leak interface of the equipment component. The work practice requires periodic monitoring of the equipment, usually on a quarterly basis. A “leak” is generally defined under the current rules as 10,000 parts per million by volume
(ppmv)of VOC and 500 ppmv of HAP, as measured by the monitor (i.e., the EPA Reference Method 21 instrument). B. What are the current LDAR requirements? U.S. refineries, chemical manufacturers, and other industries are required to identify leaks using EPA Reference Method 21 for processes and streams described in various subparts of 40 CFR parts 60, 61, 63 and 65, including, but not limited to: Part 60, subparts A, Kb, VV, XX, DDD, GGG, KKK, QQQ, and WWW; part 61, subparts F, L, V, BB, and FF; part 63, subparts G, H, I, R, S, U, Y, CC, DD, EE, GG, HH, OO, PP, QQ, SS, TT, UU, VV, YY, GGG, HHH, III, JJJ, MMM, OOO, VVV, FFFF, and GGGGG; and part 65, subparts A, F, and G. Currently, covered facilities must periodically monitor each regulated component (e.g., pump, valve, connector, closed vent system, etc.) with an EPA Reference Method 21 instrument. The frequency of such monitoring may vary from each month to every 4 years depending on the subpart and the piece of equipment being monitored. If equipment is found to be leaking, the equipment is tagged and required to be repaired within a specified time. The current LDAR work practice involves placing an EPA Reference Method 21 instrument probe at the leak interface
(seal)of a component and registering a VOC and/or HAP concentration. We developed a correlation which relates the mass rate of VOC or HAP leaking from the component to the concentration registered by the instrument. EPA and some State agencies have established different concentration thresholds which define a leak. If the concentration exceeds the leak definition, then the component must be repaired. EPA's leak definition varies from 500 ppmv to 10,000 ppmv depending on the type of component and the specific subpart. After the LDAR program has been used for a few periods, the number of leaks detected decreases because pre-existing leaks have been repaired and may not leak for extended periods of time. Although repair costs decrease as the number of leaks are reduced, the costs of conducting EPA Reference Method 21 monitoring remains constant, resulting in a decrease in cost-effectiveness. C. What is the statutory basis for these requirements? Current LDAR requirements are primarily applicable to sources through EPA work practice standards promulgated under Clean Air Act
(CAA)section 111 (New Source Performance Standards (NSPS)) and section 112 (National Emission Standards for Hazardous Air Pollutants (NESHAP)). These sections authorize EPA to promulgate work practice standards in lieu of numerical emission standards where “it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard” because the regulated pollutants “cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant * * * or [because] the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” 42 U.S.C. 7412(h)(1), (2); see also 42 U.S.C. 7411(h)(1), (2). In promulgating such standards, we are not required to mandate a single work practice applicable to all sources in a source category but may instead provide several AWP options. Indeed, the United States Court of Appeals for the District of Columbia Circuit has indicated that EPA may provide sources with multiple work practice compliance options if EPA demonstrates that at least one of these options is cost effective and “expressly provides for the alternative in the standard.” *Arteva Specialties S.R.R.L., d/b/a KoSa* v. *EPA* , 323 F.3d 1088, 1092 (DC Cir. 2003). D. How can the existing requirements be changed? Once promulgated, EPA retains the authority to provide additional work practice alternatives. Such authority exists under EPA's general authority to review and amend its regulations as appropriate, e.g., 42 U.S.C. 7411(b)(1)(B), 42 U.S.C. 7412(d)(6). E. Why is EPA proposing to consider an alternative LDAR work practice? On November 17, 2000, the American Petroleum Institute
(API)requested a meeting with EPA to initiate discussion regarding approval of an alternative LDAR work practice based on the proposed work practice's “equivalency” with the current EPA Reference Method 21 based LDAR work practice. While the request did not indicate if it was invoking EPA(s general rulemaking authority or the AWP provisions of CAA sections 111 and 112, EPA has treated the request as being for a general rulemaking because API's request was not specific to any single source category. API(s request was based upon ongoing studies involving API, EPA, and the Department of Energy designed to provide guidance for conducting LDAR programs in a more cost-effective manner. These studies began with a 1997 study conducted by API. It evaluated data collected under the LDAR program by seven Los Angeles, California, refineries in the South Coast Air Quality Management District (SCAQMD). The data was examined to help determine:
(1)The design and operational characteristics that influence leaks from equipment; and
(2)whether a sub-population of chronic leakers existed which could be the primary focus of a more cost-effective LDAR program. SCAQMD requires refineries to screen all accessible components quarterly (valves, connectors etc.) and defines a leak as equal to, or greater than, 1,000 ppmv as registered with an EPA Reference Method 21 instrument. The API study analyzed 11.5 million LDAR program monitoring values collected over 5 1/2 years, 1991 to mid-1996. The data were analyzed to determine if certain component designs or component applications (e.g., gate valves vs. globe valves, different process units, or different frequencies of actuation) are more susceptible to leaks. The refinery screening study showed that about 0.13 percent of components contribute greater than 90 percent of controllable fugitive emissions. This small population of large leakers is random over time, type of component, and process unit. Thus, no clear criteria exist for predicting which components are likely to leak. Consequently, the refining industry began to analyze alternative work practices/technologies to find leaking equipment more efficiently. The outgrowth of this analysis was the development of a work practice based on optical gas imaging. F. How does the new optical gas imaging technology work? Currently available optical gas imaging technologies fall into two general classes, active and passive. The active type uses a laser beam that is reflected by the background. The attenuation of the beam passing through a hydrocarbon cloud provides the optical image. The passive type uses ambient illumination to detect the difference in heat radiance of the hydrocarbon cloud. The principle of operation of the active system is the production of an optical image by reflected (backscattered) laser light, where the laser wavelength is such that it is strongly absorbed by the gas of interest. The system illuminates the scene with infrared light and a video camera-type scanner picks up the backscattered infrared light. The camera converts this backscattered infrared light to an electronic signal, which is displayed in real-time as an image. Since the scanner is only sensitive to illumination from the infrared light source and not the sun, the camera is capable of displaying an image in either day or night conditions. The passive instrument has a tuned optical lens, which is in some respects like “night-vision” glasses. It selects and displays a video image of light of a particular frequency range and filters out the light outside of that frequency range. In one design, by superimposing the filtered light (at a frequency that displays VOC gas) on a normal video screen, the instrument (or camera) displays the VOC cloud in real time in relationship to the surrounding process equipment. The operator can see a plume of VOC gas emanating from a leak. G. How were emission reductions estimated for LDAR programs originally? The most accurate technique for measuring mass emissions from leaking equipment requires the “bagging,” or physical isolation, of each component leak and subsequent measurement. This technique is estimated to cost approximately $500 per component. Facilities may have as many as a million components, making bagging each component impractical and prohibitively expensive. The original EPA studies correlated EPA Reference Method 21 measurement values (i.e., screening values) with a mass emissions rate from limited bagging results as a way to estimate emissions from the total population of components. The resulting correlation equations enable the calculation of emissions from the total population of equipment by plugging all measured EPA Reference Method 21 screening values into those equations. EPA used the original screening values from uncontrolled plants to determine both the amount of uncontrolled emissions and which leaks require repair. The original studies showed that mass emissions associated with EPA Reference Method 21 screening values equal to, or greater than, 10,000 ppmv represented 95 percent of the total emissions, but involved only 5 percent of all the equipment. Based on the correlation approach, the 10,000 ppmv leak definition, in conjunction with the quarterly periodic detection requirement, reduces emissions by approximately 70 to 80 percent. Because the cost of direct emission measurement, i.e., bagging each component, is so expensive, the correlation approach is the only cost-effective way to estimate emissions. However, there is some uncertainty associated with any emission estimates based on using the correlation equations. These uncertainties arise because the correlation equations do not take into account the inherent variability of equipment leak emissions recorded through direct periodic measurements. We are unable to determine whether leak rates are constant or intermittent, how effective repair is, and whether leaks are chronic or random. Also, the calculation of emission estimates from leaking equipment using correlation equations cannot be used with instruments other than the EPA Reference Method 21 instruments, i.e., organic vapor analyzers. In other words, the correlation equations and emission factors are directly linked to EPA Reference Method 21. Therefore, it was necessary to develop a methodology specifically for the purpose of comparing existing and alternative work practices. H. What did the Agency do to compare existing and proposed work practice effectiveness? Any new work practice must be as equally protective of the environment as the current work practice. Because it is too costly to measure mass emissions directly, EPA developed a computer model that allows the simulation of leaks as well as the effect of various leak definitions and monitoring frequencies. This model performs a side by side comparison of alternative work practices to the current EPA Reference Method 21 based work practice. 1. How does the model work? The model's four basic steps can be summarized as follows: —Select an uncontrolled population of process equipment components with known EPA Reference Method 21 field data which has been used to estimate mass emission rates, —Simulate each work practice for each equipment component to determine the work practice's response to mass emission leak rates, —Identify leakers by comparing each work practice's response to the various leak definitions. Reduce emissions from detected leakers to simulate the effect of being repaired, and —Calculate total emissions for both the current work practice and alternative work practices. 2. What are the issues in developing the comparative work practices model? —To make an equivalency determination of any AWP requires modeling of an uncontrolled facility. The control effectiveness of the current EPA Reference Method 21 based work practice was based on facility leak rates dating from the 1970s. EPA Reference Method 21 plant emissions data from the 1970s provided the basis for the regulatory requirements for refinery and chemical plants at that time. These facilities were uncontrolled; that is, these facilities did not have LDAR programs in place at the time. The original uncontrolled baseline EPA Reference Method 21 data used to develop the existing work practice would have been appropriate to make the comparison. Unfortunately, this 25-year-old database is no longer available. The only uncontrolled data available were from natural gas processing plants which were used in the modeled comparison. These plants were screened with EPA Reference Method 21 instruments in the early 1990s as part of an EPA/industry effort to develop emission factors for the refinery and gas processing industries. —There is a large variance in EPA Reference Method 21 screening values for a given mass emission rate. That is, the empirical data show that the EPA Reference Method 21 instrument will register different ppmv concentrations for the same mass emission leak. Based on a 1993 petroleum industry study, EPA developed a statistical relationship between measured (bagged) mass emissions and the associated measured EPA Reference Method 21 screening values. The study contained a database of 337 paired values (i.e., mass emissions rate (kg/hr) and screening value
(ppmv)for each valve). This statistical relationship established the probability of registering an EPA Reference Method 21 screening value for a given range of mass emissions. The statistical relationship was then used to simulate detection of leaks by the EPA Reference Method 21 work practice in the computer model. The model selects a screening value for the current EPA Reference Method 21 work practice for each mass emission rate associated with the population of uncontrolled equipment. The modeling program compares the screening value of EPA Reference Method 21 to various leak definitions to determine if a leak would be detected. Similarly, the model assigns a mass rate detection limit to the AWP. For each component with a leak at or above the assigned mass detection limit, the program specifies detection by the AWP. —The model must also consider the frequency of applying the work practice. The emission control effectiveness of any work practice is a function of both its ability to detect leakage and the frequency of monitoring. An equivalent work practice may require more frequent monitoring, depending on its mass rate threshold for detecting leaks. A work practice which detects leaks at a higher mass rate than the current work practice would need to be practiced more frequently than the current periodic requirement of once a quarter. A more frequent monitoring requirement becomes necessary because higher mass emissions reductions from large leaks, found earlier, are offset to some degree by smaller leaks which go undetected. —The AWP mass detection limit and monitoring frequency were varied and modeled to determine the equivalent mass emission reduction to the existing work practice. For both the existing work practice and the AWP, the model then reduces emissions from components found leaking to simulate emissions from repaired components. Finally, total emissions from the AWP are compared to emissions from the current work practice. Modeling results showed a work practice repeated bimonthly with a detection limit of 60 grams per hour (g/hr) range was equivalent to the existing work practice. The model also showed a work practice repeated semi-quarterly with a detection limit of 85 g/hr range was equivalent to the existing work practice. The model generated different detection limits for the 500 and 10,000 ppmv thresholds in existing rules. The proposed rule reflects the mass detection limit for 500 ppmv, i.e., the more stringent limit which provides equivalency for both leak definitions. I. How well does the new technology work? Lab and field data demonstrate that the optical gas imaging technology can routinely detect leaks at a mass rate of approximately 60 g/hr. The imaging technology has negligible variance associated with its ability to detect leaks of 60 g/hr. Five laboratory and field tests have been conducted using optical gas imaging for fugitive emissions monitoring at both refineries and petrochemical plants. Each test used at least one of the imager types: CO <sup>2</sup> laser imager, “fiber” laser imager, and passive IR imager. In each case, the imager was successfully tested at chemical plants or refineries. Based on the model used to compare existing and proposed work practice effectiveness, a leak mass rate of 60 g/hr was determined as the equivalent for an AWP. The tests conducted on the optical gas imaging technology showed that the imagers could detect a leak with a mass rate of as low as 1 g/hr. Several evaluations have been conducted to demonstrate the ability of the optical gas imaging technology to detect a range of VOC under typical plant operating conditions. The technology currently available has been shown to detect propylene, ethylene, formaldehyde, acetaldehyde, isoprene, all butanes, 1,3 butadiene, toluene, all pentenes, all pentanes, all trimethybenzenes, all xylenes, all ethyletoluenes, and all hexenes. In one test, a side-by-side comparison of EPA Reference Method 21 and the optical gas imaging device was conducted. This study took place at two different plants and tested four different imagers: Two passive IR imagers, long-wave BAGI imager, and mid-wave BAGI imager. A total of 66 leaks were discovered at the two sites. The imagers detected 31 leaks and the EPA Reference Method 21 instrument detected 49 leaks. The imagers and the EPA Reference Method 21 instrument found 14 of the same leaks. Neither method for detecting leaks discovered all leaking equipment at the test sites. Of the leaks discovered by the imagers, leak mass rates ranged between 1 g/hr and over 100 g/hr. The imagers did detect all leaks with leak mass rates greater than 60 g/hr, thus supporting the conclusion that the optical gas imaging device will detect leaks above the 60 g/hr threshold. J. How does the proposed voluntary work practice promote development of innovative technology? Several field and laboratory studies have been conducted to demonstrate the use of optical gas imaging for fugitive emissions monitoring. In both the laboratory and field tests, the technology has been shown to find leaks. However, some of these laboratory and field tested units are prototypes which are not yet commercially available. Vendors will only manufacture the technology if there is a demand for the equipment. Our current regulations do not allow companies to use the new technology. Thus, we propose to add amendatory language to allow companies to elect an AWP based on the new technology. Allowing this AWP will, therefore, encourage development of this technology because it should open the market driven by regulatory requirements to optical gas imaging equipment. K. Request for Comments We are requesting comment on the need for clarifying language in individual subparts, the use of optical gas imaging technology for monitoring closed vent systems, and opportunities for reduced recordkeeping and reporting burden. We are contemplating incorporating the appropriate rule language for the AWP into the General Provisions of 40 CFR parts 60, 61, 63, and 65. The new work practice requirements are nearly identical to the existing work practice requirements with the exception of the instrument used to detect the leaks. Therefore, rather than amending all of the applicable subparts, we are considering amending only the General Provision language of each part. These amendments would be intended to allow for the use of the optical gas imaging technology. Facilities choosing to demonstrate compliance with LDAR requirements by using the AWP would continue to comply with all the non-instrumentation requirements of the existing subparts. We are requesting public comment regarding whether the proposed amendatory language provides sufficient legal authority for a source to utilize the AWP for complying with the LDAR requirements. Additionally, we are requesting public comment on whether the amendatory language clearly explains what requirements a source must satisfy if using the AWP. Current subparts language includes many requirements specific to the EPA Reference Method 21 based work practice, specifically to the Method 21 instrument itself. Although the specific EPA Reference Method 21 requirements would not be applicable to a source using the AWP, that language may confuse a source regarding what requirements would apply. We are, therefore, seeking comment on whether the amendatory language provided in today's notice sufficiently enables a source to identify the applicable requirements for using the AWP, or whether it is necessary to amend all of the existing subparts to clarify which of the existing requirements apply only to the EPA Reference Method 21 based work practice. Current requirements specify annual monitoring of closed vent systems with an EPA Reference Method 21 instrument. Vent systems used to route emissions to control devices are required to be closed. The original ppmv threshold was set at 5 percent of the leak definition (10,000 ppmv) or 500 ppmv. This threshold has never been changed even though the leak definition for many standards was lowered to 500 ppmv. The modeled results show a similar mass limit threshold for both 500 and 10,000 ppmv. This suggests the optical gas imaging technology as specified for LDAR could be used to satisfy the closed vent system monitoring requirements. We could use the same approach we used originally, that is, use 5 percent of the new threshold, i.e., 3 g/hr as the basis for monitoring closed vent systems. We are soliciting comment on the appropriateness of also using the optical gas imaging technology for closed vent systems. Facilities subject to current rules will, for the purpose of the alternative LDAR work practice, still rely on the current rule language for all recordkeeping and reporting requirements which are not specific to the use of the EPA Reference Method 21 instrument. We are soliciting comment on alternative recordkeeping and reporting requirements which may be feasible with the optical gas imaging technology. II. Summary of the Regulatory Action The proposed AWP allows owners or operators to identify leaking equipment using an optical gas imaging instrument instead of a leak monitor prescribed in 40 CFR part 60, Appendix A-7. The new work practice requirements are identical to the existing work practice requirements except for those requirements which are directly or indirectly associated with the instrument used to detect the leaks. For example, owners or operators are still subject to the existing difficult to and unsafe to monitor, repair, recordkeeping, and reporting requirements. If a leak is identified using the optical gas imaging instrument, then the leak must be re-screened after repair using the imaging instrument. Owners or operators must use an optical gas imaging instrument capable of imaging compounds in the streams that are regulated by the applicable rule. The imaging instrument must provide the operator with an image of the leak and the leak source. Prior to using the optical gas imaging instrument, owners and operators must determine the mass flow rate that the imaging instrument will be required to image. The optical gas imaging instrument may either meet a minimum detection sensitivity mass flow rate (provided in the proposed AWP), or owners or operators may calculate the mass flow rate for their process by prorating a standard detection sensitivity emission rate (provided in the proposed AWP) using equations provided in the amendatory language. If the owner or operator chooses to prorate the standard detection sensitivity, they must conduct an engineering analysis to identify the stream containing the lowest mass fraction of chemicals that have to be identified as detectable. Owners or operators must conduct a daily instrument check to confirm that the optical gas imaging equipment is able to detect leaks at the emission rate specified in the amendatory language (or calculated by the owner or operator). The instrument check consists of using the optical gas imaging instrument to view the mass flow rate required to be met exiting a gas cylinder. Owners or operators using the AWP must keep records of the detection sensitivity level used for the optical gas imaging instrument; the analysis to determine the stream containing the lowest mass fraction of detectable chemicals; the basis of the mass fraction emission rate calculation; documentation of the daily instrument check (either with the video recording device, electronically, or written in a log book); and the video record of the leak survey. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether a regulation is “significant” and, therefore, subject to Office of Management and Budget
(OMB)review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)Raise novel or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Because the proposed amendments are voluntary and expected to reduce burden, it has been determined that the proposed amendment is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review. B. Paperwork Reduction Act This action does not impose any new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. *et seq.* Today's proposed decision provides plant operators with an alternative method for identifying equipment leaks but does not change the recordkeeping and reporting requirements in the various subparts of CFR parts 60, 61, 63 and 65. However, EPA anticipates that this proposed action will change the burden estimates developed and approved for the existing national emission standards by reducing the labor hours necessary to identify equipment leaks. An ICR document (EPA ICR No. 2210.01) was prepared for this action to estimate the costs associated with reading and understanding the proposed alternatives, purchasing an optical imaging instrument, and initial training of plant personnel. The ICR has been submitted for approval to the Office of Management and Budget
(OMB)under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The annual public burden for this collection of information (averaged over the first 3 years after the effective date of the final rule) is estimated to total 3,027 labor hours per year and a total annual cost of $2,260,048. EPA has established a public docket for this action (Docket ID number EPA-HQ-OAR-2003-0199) which can be found at *http://www.regulations.gov.* The ICR for this proposal is included in the public docket. 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. 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 ICR for this proposal will be submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The OMB control numbers for the ICRs developed for the existing national emission regulations under CFR parts 60, 61, 63 and 65 are listed in 40 CFR part 9 and 48 CFR chapter 15. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's proposed amendment on small entities, small entity is defined as:
(1)A small business whose parent company has fewer than 100 to 1,500 employees, or a maximum of $5 million to $18.5 million in revenues, depending on the size definition for the affected North American Industry Classification System (NAICS) code;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. It should be noted that the small business definition applied to each industry by NAICS code is that listed in the Small Business Administration
(SBA)size standards (13 CFR part 121). After considering the economic impact of today's proposed amendment on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. Today's proposed amendment imposes no additional burden on facilities impacted by existing EPA regulations because this action allows for an AWP to existing requirements and is voluntary. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that today's proposed amendment does not contain a Federal mandate that may result in expenditures of $100 million or more to State, local, and tribal governments in the aggregate, or to the private sector in any 1 year. Therefore, today's proposed amendment is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, today's proposed amendment does not significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's proposed decision is not subject to section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The phrase “policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Today's proposed amendment does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of the Executive Order do not apply to today's proposed amendment. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Today's proposed amendment does not have tribal implications. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to today's proposed amendment. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. Today's proposed amendment is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risk addressed by this action presents a disproportionate risk to children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Today's proposed amendment is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that today's proposed amendment is not likely to have any adverse energy impacts. I. National Technology Transfer and Advancement Act Under section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, all Federal agencies are required to use voluntary consensus standards
(VCS)in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires Federal agencies to provide Congress, through annual reports to OMB, with explanations when the agency does not use available and applicable VCS. Today's proposed amendment does not involve technical standards. Therefore, the requirements of the NTTAA are not applicable. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Equipment leaks, and Alternative monitoring. Dated: March 31, 2006. Stephen L. Johnson, Administrator. For reasons set out in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is proposed to be amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Section 60.2 is amended by adding the definitions for “Engineering analysis,” “Gas imaging instrument,” “Imaging,” and “Stream” in alphabetical order to read as follows: *Engineering analysis* means the assessment of the imaging technology's capability to detect leaks at the specified sensitivity level for each component. *Imaging* means making visible on a screen an emission plume which is otherwise invisible to the naked eye. Optical *gas imaging instrument* means an instrument which makes visible on a screen an emission plume which is otherwise invisible to the naked eye. *Stream* means gasoline or any other stream for which no constituent exceeds one percent of the stream by weight. 3. Section 60.18 is amended by: a. The section heading is revised; b. Revising paragraph
(a)introductory text; and c. Adding paragraphs (g), (h), and
(i)to read as follows: § 60.18 General Control Device and Work Practice Requirements.
(a)*Introduction.* This section contains requirements for control devices used to comply with applicable subparts of parts 60 and 61. The requirements are here for administrative convenience and only apply to facilities covered by subparts referring to this section. This section also contains requirements for an alternative work practice used to identify leaking equipment. This alternative is placed here for administrative convenience and is available to all subparts in 40 CFR parts 60, 61, 63, and 65 that require monitoring of leaking equipment with a 40 CFR part 60, Appendix A-7, Method 21 monitor.
(g)Alternative Work Practice for Monitoring Equipment for Leaks. Paragraphs
(h)and
(i)of this section apply to all leaking equipment.
(h)This section contains an alternative work practice used to identify leaking equipment. Specifically, this section allows a source to use an optical gas imaging instrument as described in paragraph (i)(1) of this section instead of a 40 CFR part 60, Appendix A-7, Method 21 monitor. This alternative is available to all subparts in 40 CFR parts 60, 61, 63, and 65 that require monitoring of leaking equipment with a 40 CFR part 60, Appendix A-7, Method 21 monitor.
(1)An owner or operator of an affected source subject to CFR parts 60, 61, 63, or 65 can choose to comply with the requirements in paragraph
(i)of this section instead of using the 40 CFR part 60, Appendix A-7, Method 21 monitor to identify leaking components.
(2)Any leak identified in paragraph (i)(3) of this section must be tagged for repair.
(3)Re-screening after repairing a leaking component must be conducted using the same method used to identify the leaking component.
(i)Owners or operators of an affected source who choose to use the alternative work practice shall comply with the requirements of paragraphs (i)(1) through (i)(4) of this section.
(1)Instrument Specifications. The optical gas imaging instrument must meet the following requirements:
(i)Image the compounds in the streams for which it will be used to monitor leaks, and
(ii)Provide the operator with an image of the potential leak points for a component and the regulated species at the standard detection sensitivity level selected from Table A, within the distance to be used in the daily instrument check of paragraph (i)(2) of this section, provided the instrument has been properly adjusted to the manufacturer's prescribed settings.
(2)Daily Instrument Check. Daily prior to beginning any leak monitoring work you must test the optical gas imaging instrument at the mass flow rate determined in paragraph (i)(2)(i) of this section in accordance with the procedure specified in paragraphs (i)(2)(ii) through (i)(2)(iv) of this section, unless an alternative method to demonstrate daily instrument checks has been approved in accordance with paragraph (i)(2)(v) of this section.
(i)The mass flow rate to be used in the daily instrument check shall be determined in accordance with either paragraphs (i)(2)(i)(A) or (i)(2)(i)(B) of this section.
(A)Calculate a mass flow rate using paragraphs (i)(2)(i)(A)( *1* ) and (i)(2)(i)(A)( *2* ) of this section. ( *1* ) For a specified population of components to be imaged by the instrument, perform an engineering analysis to identify the stream containing the lowest mass fraction of chemicals that have to be identified as detectable, within the distance to be used in paragraph (i)(2)(iv) of this section, at or below the standard detection sensitivity level. ( *2* ) Multiply the standard detection sensitivity level in Table A by the mass fraction of detectable chemicals from the stream identified in paragraph (i)(2)(i)(A)( *1* ) of this section to determine the mass flow rate to be used in the daily instrument check, using the following equation. EP06AP06.042 Where: E <sup>dic</sup> = Mass flow rate for the daily instrument check, grams per hour. X <sup>i</sup> = Mass fraction of detectable chemical(s) i seen by the optical gas imaging instrument, within the distance to be used in paragraph (i)(2)(iv) of this section, at or below the standard detection sensitivity level, Esds. E <sup>sds</sup> = Standard detection sensitivity from Table A, grams per hour. k = Total number of detectable chemicals emitted from the leaking equipment and seen by the optical gas imaging instrument.
(B)Use the minimum detection sensitivity level specified in Table A as the mass flow rate for the daily instrument check. The calculations specified in paragraph (i)(2)(i)(A) of this section are not required if the daily instrument check is performed at the minimum detection sensitivity level.
(ii)Start the optical gas imaging instrument according to the manufacturer's instructions, ensuring that all appropriate settings conform to the manufacturer's instructions.
(iii)Use any gas chosen by the user that can be viewed by the optical gas imaging instrument and that has a purity of no less than 98 percent.
(iv)Establish a mass flow rate by using the following procedures:
(A)Position a cylinder of the gas in a secured upright position.
(B)Set up the optical gas imaging instrument at a recorded distance from the outlet or leak orifice of the flow meter that will not be exceeded in the actual performance of the leak survey. Do not exceed the operating parameters of the flow meter.
(C)Open the valve on the flow meter to set a flow rate that will create a mass emission rate equal to the mass rate specified in paragraph (i)(1) of this section while observing the gas flow through the optical gas imaging instrument viewfinder. When an image of the gas emission is seen through the viewfinder at the required emission rate, make a record of the reading on the flow meter.
(v)If you wish to use an alternative method to demonstrate daily instrument checks, then you must apply to the Administrator for approval of the alternative under § 60.13(i).
(3)Leak Survey Procedure. Operate the optical gas imaging equipment to image every regulated component in accordance with the instrument manufacturer's operating parameters.
(4)Recordkeeping. You must keep the following records:
(i)The detection sensitivity level used for the optical gas imaging instrument.
(ii)The analysis of the component population to determine the stream containing the lowest mass fraction of detectable chemicals in paragraph (i)(2)(i)(A)( *1* ) of this section.
(iii)The technical basis for the mass fraction used in the equation in paragraph (i)(2)(i)(A)( *2* ) of this section.
(iv)The daily instrument check. You may document the daily instrument check using either a video recording device, electronic recordkeeping, or written entry into a log book.
(v)Recordkeeping requirements in the applicable subpart. A video record must be used to document the leak survey results. Table A.—Detection Sensitivity Levels Monitoring frequency Monitoring frequency
(days)Detection sensitivity level (grams per hour) Standard Minimum Bi-Monthly 60 60 6.0 Semi-Quarterly 45 85 8.5 Monthly 30 100 10.0 [FR Doc. E6-5005 Filed 4-5-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 745 [EPA-HQ-OPPT-2005-0049; FRL-7775-1] RIN 2070-AC83 Lead; Renovation, Repair, and Painting Program; Extension of Comment Period AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; extension of comment period. SUMMARY: On January 10, 2006, EPA proposed new requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint in the **Federal Register** . The proposal supports the attainment of the Federal government's goal of eliminating childhood lead poisoning by 2010. The proposal discussed requirements for training renovators and dust sampling technicians; certifying renovators, dust sampling technicians, and renovation firms; accrediting providers of renovation and dust sampling technician training; and for renovation work practices. This notice announces a 45-day extension of the comment period for the Renovation, Repair, and Painting Program proposed rule. This extension is necessary to provide the public with an opportunity to review and comment on materials recently added to the docket. DATES: The comment period previously expiring on April 10, 2006, is extended to May 25, 2006. ADDRESSES: For detailed instructions on the submission of comments, follow the instructions provided under ADDRESSES in the **Federal Register** document of January 10, 2006. FOR FURTHER INFORMATION CONTACT: *For general information contact:* Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact:* Mike Wilson, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)566-0521; e-mail address: *wilson.mike@epa.gov* . SUPPLEMENTARY INFORMATION: I. Does this Action Apply to Me? The Agency included in the proposed rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . II. What Action is the Agency Taking? In the **Federal Register** of January 10, 2006 (71 FR 1588) (FRL-7755-5), EPA proposed new requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint. In addition, EPA announced in the **Federal Register** of March 2, 2006 (71 FR 10628) (FR 7762-7), the availability of supplemental materials added to the docket. EPA has received requests for extension of the comment period from Owens Corning, National Multi Housing Council, National Association of Home Builders, Painting and Decorating Contractors of America, National Association of Realtors, National Paint and Coatings Association, and Atrium Environmental Health and Safety Services. To allow additional time for comment EPA is extending the comment period established in the **Federal Register** issued on January 10, 2006 (71 FR 1588), for an additional 45 days. As extended, the comment period for this proposal expires May 25, 2006. Prior to this extension, the comment period was scheduled to expire on April 10, 2006. III. What is the Agency's Authority for Taking this Action? The training, certification and accreditation requirements and work practice standards were proposed pursuant to the authority of TSCA section 402(c)(3), 15 U.S.C. 2682(c)(3), as amended by Title X of the Housing and Community Development Act of 1992, Public Law 102-550 (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992). The Model State Program and amendments to the regulations on the authorization of State and Tribal programs with respect to renovators and dust sampling technicians were proposed pursuant to section 404 of TSCA, 15 U.S.C. 2684. IV. Do Any Statutory and Executive Order Reviews Apply to this Action? No. This action is not a rulemaking, it merely extends the date by which public comments must be submitted on a proposed rule that EPA published in the **Federal Register** of January 10, 2006 (71 FR 1588). For information about the applicability of the regulatory assessment requirements to the proposed rule, please refer to the discussion in Unit VIII. of that document (at 71 FR 1620). List of Subjects in Part 745 Environmental protection, Housing renovation, Lead, Lead-based paint, Reporting and recordkeeping requirements. Dated: March 31, 2006. Margaret Schneider, Acting Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances. [FR Doc. E6-4998 Filed 4-5-06; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [MD Docket No. 06-68; FCC 06-38] Assessment and Collection of Regulatory Fees For Fiscal Year 2006 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 2006. 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 April 14, 2006, and reply comments are due April 21, 2006. ADDRESSES: You may submit comments, identified by MD Docket No. 06-68, 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. 06-68 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: Roland Helvajian, Office of Managing Director at
(202)418-0444 or Rob Fream, Office of Managing Director at
(202)418-0408. SUPPLEMENTARY INFORMATION: *Adopted:* March 22, 2006. *Released:* March 27, 2006. By the Commission. Table of Contents Heading I. Introduction II. Discussion A. FY 2006 Regulatory Fee Assessment Methodology 1. Development of FY 2006 Regulatory Fees a. Calculation of Revenue and Fee Requirements b. Additional Adjustments to Payment Units 2. Commercial Mobile Radio Service
(CMRS)Messaging Service 3. Regulatory Fees for Direct Broadcast Service
(DBS)Providers and Cable Television Operators 4. Broadband Radio Service (BRS)/Educational Broadband Service
(EBS)B. Administrative and Operational Issues 1. Mandatory Use of Fee Filer 2. Proposals for Notification and Collection of Regulatory Fees a. Interstate Telecommunications Service Providers (ITSPs)—Billed b. Satellite Space Station Licensees—Billed c. Additional Service Categories for Billing or Assessing d. Media Services Licensees—Assessed e. Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Services—Assessed f. Cable Television Subscribers—Assessed 3. Streamlined Regulatory Fee Payment Process for CMRS Providers 4. Future Streamlining of the Regulatory Fee Assessment and Collection Process III. Procedural Matters A. Payment of Regulatory Fees 1. De Minimis Fee Payment Liability 2. Standard Fee Calculations and Payment Dates B. Enforcement C. Initial Regulatory Flexibility Analysis D. Initial Paperwork Reduction Act of 1995 Analysis E. Ex Parte Rules F. Filing Requirements IV. Ordering Clauses Attachments Attachment A Initial Regulatory Flexibility Analysis Attachment B Sources of Payment Unit Estimates for FY 2006 Attachment C Calculation of FY 2006 Revenue Requirements and Pro-Rata Fees Attachment D FY 2006 Schedule of Regulatory Fees Attachment E Factors, Measurements, and Calculations that Determine Station Contours and Population Coverages Attachment F FY 2005 Schedule of Regulatory Fees I. Introduction 1. In this *Notice of Proposed Rulemaking (NPRM)* , we propose to collect $288,771,000 in regulatory fees for Fiscal Year
(FY)2006, pursuant to section 9 of the Communications Act of 1934, as amended (the Act). These fees are mandated by Congress and are collected to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities. 1 1 47 U.S.C. 159(a). II. Discussion 2. In this *NPRM* , we seek comment on the development of FY 2006 regulatory fees collected pursuant to section 9 of the Act. For FY 2006, we tentatively propose to retain the established method, policies, and priorities. In addition to the assessment methodology, the Commission typically seeks comment on various administrative and operational issues affecting the collection of regulatory fees. For the FY 2006 regulatory fee cycle, we propose to retain the same administrative measures used for notification and assessment of regulatory fees in previous years, such as generating pre-completed regulatory fee assessment forms for certain regulatees. Consistent with past practice, we invite comments and suggestions 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 $288,771,000 in regulatory fees during FY 2006 to fund the Commission's operations. Consistent with our established practice, we plan to collect these regulatory fees in the August-September 2006 time frame in order to collect the required amount by the end of the fiscal year. In addition to the $288,771,000 amount above, pursuant to section 3013 of the Deficit Reduction Act (Public Law 109-171), the Commission is required to assess and collect an additional $10,000,000 in fiscal year 2006 as offsetting receipts. 2 We seek comment on how the Commission should implement this provision. Specifically, we seek comment on whether the Commission should assess the additional $10,000,000 on application fees, on regulatory fees, or from some other form of assessment. 2 Section 3013 of Public Law 109-171 reads as follows, “In addition to any fees assessed under the Communications Act of 1934 (47 U.S.C. 151 *et seq.* ), the Federal Communications Commission shall assess extraordinary fees for licenses in the aggregate amount of $10,000,000, which shall be deposited in the Treasury during fiscal year 2006 as offsetting receipts.” A. FY 2006 Regulatory Fee Assessment Methodology 1. Development of FY 2006 Regulatory Fees a. Calculation of Revenue and Fee Requirements 4. We propose to use, for the purpose of our FY 2006 regulatory fee assessment, the same section 9 regulatory fee assessment methodology adopted for FY 2005. Each fiscal year, the Commission proportionally allocates the total amount that must be collected via section 9 regulatory fees. The results of our proposed FY 2006 regulatory fee assessment methodology (including a comparison to the prior year's results) are contained in Appendix C. For FY 2006, we propose to use the receipts collected through the FY 2005 regulatory fees as a base for calculating the amount the Commission must collect in FY 2006. To collect the $288,771,000 required by law, we propose to adjust the FY 2005 amount upward by 3.1 percent. 3 Consistent with past practice, we propose to divide the FY 2006 amount by the number of payment units in each fee category to determine the unit fee. 4 As in prior years, for cases involving small fees ( *e.g.* , licenses that are renewed over a multiyear term), we propose to divide the resulting unit fee by the term of the license. We propose to round these unit fees consistent with the requirements of section 9(b)(2). 3 Note that the required increase in regulatory fee payments of approximately 3.1 percent in FY 2006 is reflected in the revenue that is expected to be collected from each service category. Because this expected revenue is adjusted each year by the number of estimated payment units in a service category, the actual fee itself is sometimes increased by a number other than 3.1 percent. For example, in industries where the number of units is declining and the expected revenue is increasing, the impact of the fee increase may be greater. 4 In many instances, the regulatory fee amount is a flat fee per licensee or regulatee. However, in some instances the fee amount represents a unit subscriber fee (such as for Cable, Commercial Mobile Radio Service
(CMRS)Cellular/Mobile and CMRS Messaging), a per unit fee (such as for International Bearer Circuits), or a fee factor per revenue dollar (Interstate Telecommunications Service Provider fee). The payment unit is the measure upon which the fee is based, such as a licensee, regulatee, subscriber fee, etc. b. Additional Adjustments to Payment Units 5. In calculating the FY 2006 regulatory fees proposed in Attachment D, we further adjusted the FY 2005 list of payment units (Attachment B) based upon licensee databases and industry and trade group projections. Whenever possible, we verified these estimates from multiple sources to ensure the accuracy of these estimates. In some instances, Commission licensee databases were used, while in other instances, actual prior year payment records and/or industry and trade association projections were used in determining the payment unit counts. 5 Where appropriate, we adjusted and/or rounded our final estimates to take into consideration variables that may impact the number of payment units, such as waivers and/or exemptions that may be filed in FY 2005, and fluctuations in the number of licensees or station operators due to economic, technical, or other reasons. Therefore, when we state that our estimated FY 2006 payment units are based on FY 2005 actual payment units, the number may have been rounded or adjusted slightly to account for these variables. 5 The databases we consulted include, but are not limited to, the Commission's Universal Licensing System (ULS), International Bureau Filing System (IBFS), and Consolidated Database System (CDBS). We also consulted industry sources including, but not limited to, *Television & Cable Factbook* by Warren Publishing, Inc. and the *Broadcasting and Cable Yearbook* by Reed Elsevier, Inc., 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 and Annual CMRS Competition Report.* For additional information on source material, see Attachment B. 6. Additional factors are considered in determining regulatory fees for AM and FM radio stations. These factors are facility attributes and the population served by the radio station. The calculation of the population served is determined by coupling current U.S. Census Bureau data with technical and engineering data, as detailed in Attachment E. Consequently, the population served, as well as the class and type of service (AM or FM), determines the regulatory fee amount to be paid. 6 6 In addition, beginning in FY 2005, we established a procedure by which we set regulatory fees for AM and FM radio and VHF and UHF television Construction Permits each year at an amount no higher than the lowest regulatory fee in that respective service category. For example, the regulatory fee for a Construction Permit for an AM radio station will never be more than the regulatory fee for an AM Class C radio station serving a population of less than 25,000. 2. Commercial Mobile Radio Service
(CMRS)Messaging Service 7. Since FY 2003, the Commission has maintained the CMRS Messaging regulatory fee at the rate that was established in FY 2002 ( *i.e.* , $0.08 per subscriber). We have maintained, rather than increased, this rate to account for the messaging industry's declining subscriber base. 7 We note that between FY 1997 and FY 2005, for example, the CMRS Messaging subscriber base declined 75.3 percent from 40.8 million to 10.1 million, respectively. 8 We seek comment on whether we should continue the same approach for regulatory fees applicable to the messaging industry. Specifically, should we maintain the industry's regulatory fee at $0.08 per subscriber in FY 2006? 7 *See* , e.g., Assessment and Collection of Regulatory Fees for Fiscal Year 2003; Report and Order, 18 FCC Rcd 15985, 15992, at paragraph (2003). 8 The 40.8 million number represents a unit estimate from the FY 1997 regulatory fee order, and the 10.1 million figure represents the number of paid units as of fiscal year end 2005. 3. Regulatory Fees for Direct Broadcast Service
(DBS)Providers and Cable Television Operators 8. We seek comment on the appropriate regulatory fee structure for both cable operators and DBS providers. Since the inception of the Commission regulatory fee program, we have assessed section 9 regulatory fees on cable operators using a per-subscriber approach, which is consistent with the statute. By contrast, section 9 regulatory fee assessments for DBS providers are based on a per-license approach. In the FY 2005 regulatory fee proceeding, the cable industry generally argued that the Commission should modify the regulatory fee assessment for DBS providers to a per-subscriber approach. 9 In the FY 2005 proceeding, we concluded that no changes were warranted at that time and therefore retained the regulatory fee assessment methodology used for DBS providers since FY 1995. We seek comment on whether we should retain the existing regulatory fee assessment methodology for cable operators and DBS providers for the purposes of our FY 2006 regulatory fee assessment. Commenters proposing a fee change should identify the Commission rulemaking proceeding(s) or change(s) in law that they believe warrant a modification of our fee assessment methodology for DBS operators. To the extent parties argue the regulatory fee assessment process should be changed, they should identify the legal basis that would justify a change and explain how the benefits of the proposed change outweigh the costs of the established assessment methodology. 9 Assessment and Collection of Regulatory Fees for Fiscal Year 2005, *Report and Order and Order on Reconsideration* , 20 FCC Rcd 12259, 12264, at paragraph 10
(2005)( *FY 2005 R&O and Order on Recon* ). 4. Broadband Radio Service (BRS)/Educational Broadband Service
(EBS)9. We are exploring regulatory fee issues for BRS/EBS in a separately pending BRS/EBS proceeding. 10 To the extent that any changes to our regulatory fee rules are adopted in this separate BRS/EBS proceeding, we propose not to implement such regulatory fee changes in the FY 2006 schedule of section 9 Regulatory Fees. 10 *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 *et al., Report & Order and Further Notice of Proposed Rulemaking* , 19 FCC Rcd 14165, 14293-97, at paragraphs 351-359
(2004)( *R&O and FNPRM* ). B. Administrative and Operational Issues 10. We invite comment on the administrative and operational processes used to collect the annual section 9 regulatory fees. Although these issues do not affect the amount of regulatory fees parties are obligated to submit, the administrative and operational issues affect the process of submitting payment. We generally invite comment on ways to improve these processes. 1. Mandatory Use of Fee Filer 11. We continue to encourage regulatees to use the Commission's online electronic Fee Filer application. Since this application was introduced in 2000, entities who will be submitting more than twenty-five
(25)Form 159-Cs have been strongly encouraged to use Fee Filer when sending their regulatory fee payment. We seek comment on the impact to the public if the Commission was to institute the mandatory use of Fee Filer for large-volume section 9 regulatory fee payers. Mandatory use of Fee Filer by large-volume payers could ease both the Commission's administrative burden and those of high-volume payers, as well. We seek comment on whether any such mandatory usage requirement should be based on a pre-determined dollar amount, or on the number of transactions necessary to make payment. If mandatory usage were to be based on a dollar amount, what amount should be pre-determined? If based on the number of transactions conducted by a single entity, at what threshold should mandatory usage be established? Commenters should be aware that, for FY 2006, the Commission seeks solely to establish a record on this topic. In the event that, after receiving comments, the Commission deems this proposal to be an improvement, the use of Fee Filer would only become mandatory in FY 2007 or later. 2. Proposals for Notification and Collection of Regulatory Fees 12. In this section, we seek comment on the administrative processes that the Commission uses to notify regulatees and collect regulatory fees. Each year, we generate public notices and fact sheets that notify regulatees of the fee payment due date and provide additional information regarding regulatory fee payment procedures. Consistent with our established practice, we propose to provide public notices, fact sheets and all other relevant material on our Web site at *http://www.fcc.gov/fees/regfees.html* for the FY 2006 regulatory fee cycle. As a general practice, we will not send such material 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 HelpDesk at
(877)480-3201, Option 4. 13. Although we will not send public notices and fact sheets to regulatees en masse, we will send specific regulatory fee bills or assessments via surface mail or e-mail to the select fee categories discussed below. 11 We are pursuing our billing initiatives as part of our effort to modernize our financial practices. These initiatives also serve the purpose of providing licensees with notification of upcoming regulatory fees. Eventually, we intend to expand our billing initiatives to include all regulatory fee service categories. 11 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 accounts receivable system as a current debt. By contrast, a bill is automatically recognized as a debt owed to the Commission. Bills reflect the amount owed and have a Fee Due Date of the last day of the regulatory fee payment window. Consequently, if a bill is not paid by the Fee 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)—Billed 14. In FY 2001, we began sending pre-completed FCC Form 159-W assessments to carriers in an effort to assist them in paying the Interstate Telecommunications Service Provider
(ITSP)regulatory fee. The fee amount on FCC Form 159-W was calculated from the FCC Form 499-A report, which carriers are required to submit by April 1st of each year. Throughout FY 2002 and FY 2003, we refined the FCC Form 159-W to simplify the regulatory fee payment process. 12 Beginning in FY 2004, the pre-completed FCC Form 159-W was sent to carriers as a bill, rather than as an assessment of amount due. Other than the manner in which Form 159-W 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. For FY 2006, we propose to continue our Form 159-W billing initiative for ITSPs. We seek comment on this proposal and on ways that we could improve our billing initiative for ITSPs. 12 Beginning in FY 2002, Form 159-W included a payment section at the bottom of the form that allowed carriers the opportunity to send in Form 159-W in lieu of completing Form 159 Remittance Advice Form. b. Satellite Space Station Licensees—Billed 15. Beginning in FY 2004, we mailed regulatory fee bills via surface mail to licensees in our two satellite space station service categories. Specifically, geostationary orbit space station
(GSO)licensees receive 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 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. 16. For FY 2006, we propose to continue our billing initiative for our GSO and NGSO satellite space station categories. We emphasize that the 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 (such as earth stations, broadcast facilities, etc.), and we expect satellite operators to meet their full fee payment obligations for their entire portfolio of FCC licenses. We seek comment on our proposal to generate regulatory fee bills for our two satellite space station service categories. c. Additional Service Categories for Billing or Assessing 17. We are currently exploring the feasibility of expanding our section 9 regulatory fee billing or assessing initiatives to three additional service categories in FY 2006. The service categories are Earth Stations, Cable Television Relay Service Stations
(CARS)and the Local Multipoint Distribution Service (LMDS). We believe that billing or assessing can be accomplished for these categories because they are comprised of relatively few payment units (in comparison to many other categories in our Schedule of Regulatory Fees), and because the Commission maintains licensing databases for each of the three categories. Depending on progress made throughout this year, we may be in a position to generate bills or assessments for Earth Station, CARS and LMDS licensees in FY 2006. Any assessment initiative may occur solely online, whereby licensees would be instructed to visit a Commission-authorized Web site to view their regulatory fee obligations. Licensees would then be able to update or correct any information concerning their license, or to certify their fee-exempt status, if appropriate. The web site would be available to licensees throughout this summer. We seek comment on our intent to expand our billing/assessment initiatives to these service categories. d. Media Services Licensees—Assessed 18. Beginning in FY 2003, we sent fee assessment postcards via surface mail to media services entities on a per-facility basis. The postcards notified licensees of the date when fee payments were due; provided the assessed fee amount for the facility, as well as other data attributes that we used to determine the fee amount; and, beginning in FY 2004, provided licensees with a telephone number to call (Financial Operations Help Desk) in the event that they needed customer assistance. We propose to continue our assessment initiative for media services licensees this year in a similar fashion. 13 13 Fee assessments are proposed to be issued 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 2006. 19. Consistent with procedures used last year, we propose to mail a single round of postcards to licensees and their other known points of contact listed in CDBS (Consolidated Database System) and in CORES (Commission Registration System), the Commission's two official databases for media services. By doing so, licensees and their other points of contact will all be furnished with the same information for each facility in question so that they can designate among themselves the payer of this year's fee. Mailing postcards to all interested parties at different addresses on file for each facility also encourages all parties to visit a Commission-authorized Web site to update or correct any information concerning the facility, or to certify their fee-exempt status, if appropriate. The Web site will be available to licensees throughout this summer. 14 We seek comment on our proposal to generate fee assessment postcards for media services entities. 14 The Commission-authorized Web site for media services licensees is *http://www.fccfees.com.* 20. In the past, some media services licensees have mistakenly mailed their postcards back to the Commission stapled to payment checks. We emphasize that under our proposal, licensees must still submit a completed FCC Form 159 Remittance Advice with their fee payments, despite having received an assessment postcard. The postcards may not be used as a substitute for a completed Form 159. We cannot guarantee that a licensee's regulatory fee payment will be posted accurately against the licensee's account if the licensee does not submit a completed Form 159 along with its fee payment. 21. We also emphasize that the most important data element that media services licensees need to include on their Form 159 is their *facility ID number* . The facility ID number is a unique identifier that remains constant over the course of a facility's existence. Despite the fact that we prominently display a facility ID number on the facility's postcard, and our Form 159 filing instructions require payers to provide their facility ID number (and associated call sign) for the facility in question, we continue to receive many incomplete Form 159s that do not provide the facility ID number for the facility for which the fee is being paid. e. Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Services—Assessed 22. As in FY 2005, 15 we propose to send an assessment letter to Commercial Mobile Radio Service
(CMRS)providers using data that is based on the Numbering Resource Utilization Forecast
(NRUF)form, which includes a list of the carrier's Operating Company Numbers
(OCNs)upon which the assessment is based. 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 amend their subscriber counts by sending two rounds of assessment letters—an initial assessment and a final assessment letter. 15 *See FY 2005 R&O and Order on Recon.* , 20 FCC Rcd 12259, 12264, at paragraphs 38-44. 23. 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 (a telephone number will be provided) 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. 24. If we receive no response to our initial assessment letter, we will assume that the initial assessment is correct and 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 a final assessment letter that informs carriers as to whether or not we accept the changed number of subscribers. 25. 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. As an additional enhancement this year to this assessment process, we propose to include porting information ( *e.g.* , information on the number of “ports in” and “ports out”) in our assessment letters so that licensees can account for any differences between the data submitted in their NRUF report and the Commission's assessment count. 26. Although an initial and a final assessment letter will be mailed to carriers that have filed an NRUF form, it is conceivable that some carriers will not be sent any letters of assessment because they did not file the NRUF form. We propose that these carriers compute their fee payment using the standard methodology 16 that is currently in place for CMRS Wireless services ( *e.g.* , compute their subscriber counts as of December 31, 2005), and submit their payment accordingly on FCC Form 159. However, regardless of whether a carrier receives an assessment letter or computes the subscriber count itself, the Commission reserves the right, under the Communications Act, to audit the number of subscribers for which regulatory fees are paid. 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, we note that the Commission reserves the right to assess the carrier for the difference between what was paid and what should have been paid. 16 Federal Communications Commission, *Regulatory Fees Fact Sheet: What You Owe—Commercial Wireless Services for FY 2005* at 1 (rel. July 2005). 27. In summary, we 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”), which should reflect a more accurate subscriber count;
(2)provide carriers with the opportunity to revise their subscriber count in an initial assessment letter, and
(3)require carriers to confirm their subscriber counts on an aggregate basis using data in the NRUF report. f. Cable Television Subscribers—Assessed 28. We propose to conduct a regulatory fee assessment initiative for the cable television industry consistent with the process the Commission used in FY 2005. Specifically, we propose to generate fee assessment letters for the cable operators who are on file as having paid regulatory fees the previous fiscal year for their basic cable subscribers. Also, as an additional means of notifying cable television regulatees of their section 9 regulatory fee payment obligations for FY 2006, we propose to send an e-mail reminder to all of the operators' e-mail addresses that are populated in the Media Bureau's Cable Operations and Licensing System (COALS). We seek comment on our proposed assessment initiative and on our intention to use company e-mail addresses in COALS. 29. Our assessment letter to each operator will
(1)Announce the due date for payment of regulatory fees;
(2)reflect the subscriber count for which the operator paid regulatory fees in FY 2005—and thus certified as having served as of December 31, 2004; and
(3)request that the operator access a Commission-authorized Web site to provide its aggregate subscriber count as of December 31, 2005. If the number of subscribers as of December 31, 2005 differs from that as reported for last year, operators will be required to provide a brief explanation for the differing subscriber counts and indicate when the difference occurred. Cable operators who do not have access to the Internet will be able to contact the FCC Financial Operations Help Desk to provide their subscriber count as of December 31, 2005. We seek comment on this proposed assessment initiative. 30. Some cable operators may not have made regulatory fee payments in FY 2005 and, as a result, will not receive an assessment letter for FY 2006 regulatory fees. For example, a new company may have become operational after the first day of the fiscal year and therefore did not have a regulatory fee obligation in FY 2005; or an existing company did not make a payment because it filed a petition for waiver of regulatory fees for FY 2005 based on financial hardship. Regardless of the circumstance, we emphasize that not receiving a regulatory fee assessment letter in FY 2006 does not excuse an operator from its obligation to pay FY 2006 regulatory fees. All non-exempt cable operators, not only those that made payments in FY 2005 and/or receive assessment letters for FY 2006 fees, are required to make payments. 31. We also propose to retain the payment procedures for cable television operators that we have had in place for the past two fiscal years. That is, we will continue to permit cable television operators to base their payment on their company's aggregate subscriber count as of December 31, 2005, rather than requiring them to sub-report subscriber counts on a per community unit identifier
(CUID)basis on the FCC Form 159 Remittance Advice. After providing their company's aggregate subscriber count in Block 25A of the FCC Form 159, operators will still be required to certify the accuracy of the subscriber count in Block 30. 32. Finally, regarding the cable television industry's annual payment obligation for section 9 regulatory fees, we seek comment on ways in which we could reduce the gap between the number of estimated payment units that we establish for each fiscal year and the number of actual payment units that we receive for that fiscal year. The Commission does not have a universal reporting requirement by which all cable television operators would report the number of basic cable television subscribers that they serve throughout all of their cable television systems. 17 Our estimates of the number of basic television subscribers are based on reviews of prior year regulatory fee payments made by cable operators and subscriber data published in publicly available data sources. As a result, the aggregate number of actual payment units made by the cable television industry may differ from the estimated number of units. We seek comments and/or proposals that address this situation. 17 The number of basic cable television subscribers served is the basis from which cable television operators are required to calculate their annual section 9 regulatory fee payment obligations. 3. Streamlined Regulatory Fee Payment Process for CMRS Providers 33. We propose to allow those CMRS Cellular, Mobile, and Messaging service providers that pay using an FCC Form 159 or the automated Fee Filer system to pay their subscriber totals at the aggregate level without having to identify and associate their subscriber counts with calls signs. We are requiring CMRS Cellular/Mobile providers to use the aggregate subscriber totals from their Numbering Resource Utilization Forecast report (NRUF), 18 netted for porting; therefore, it is consistent for CMRS providers (Cellular, Mobile, and Messaging) to pay their subscriber totals at the aggregate level without having to associate these subscriber counts with their respective call signs. We believe that eliminating the requirement to identify subscribers at the call sign level will improve the Commission's efficiency in processing regulatory fee payments, as well as reduce the administrative burden on licensees during the payment process. We seek comment on whether eliminating the requirement for CMRS providers to identify their call signs when making their regulatory fee payment will in any manner disrupt the processes by which providers determine and calculate their subscriber totals. 18 For more information on our proposed regulatory fee assessment initiative for CMRS providers this fiscal year, *see also* Section II.B.2.E. of this *NPRM.* 4. Future Streamlining of the Regulatory Fee Assessment and Collection Process 34. 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, 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 bills. III. Procedural Matters A. Payment of Regulatory Fees 1. De Minimis Fee Payment Liability 35. Consistent with past practice, regulatees whose *total* FY 2006 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 2006 regulatory fees. 2. Standard Fee Calculations and Payment Dates 36. The Commission will, for the convenience of payers, accept fee payments made in advance of the normal formal 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:
(a)*Media Services:* Regulatory fees must be paid for AM/FM radio station and VHF/UHF television station initial construction permits that were issued on or before October 1, 2005, and for all broadcast facility licenses granted on or before October 1, 2005. However, in instances where a permit or license is transferred or assigned after October 1, 2005, responsibility for payment rests with the holder of the permit or license as of the Fee Due Date.
(b)*Wireline (Common Carrier) Services:* Fees must be paid for any authorization that was granted on or before October 1, 2005. However, in instances where a permit or license is transferred or assigned after October 1, 2005, responsibility for payment rests with the holder of the permit or license as of the Fee Due Date.
(c)*Wireless Services:* Commercial Mobile Radio Service
(CMRS)cellular, mobile, and messaging services (fees based upon a subscriber, unit or circuit count): Fees must be paid for any authorization that was issued on or before October 1, 2005. The number of subscribers, units or circuits on December 31, 2005 will be used as the basis from which to calculate the fee payment. The first eleven fee categories in our Attachment D, Schedule of Regulatory Fees, pay what the Commission refers to as “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount of the 5-year or 10-year term of initial license, and only pay fees again at the time of license renewal. As a result, the Commission does not collect regulatory fees for these eleven fee categories on an annual basis.
(d)*Multichannel Video Programming Distributor Services (cable television operators and CARS licensees):* The number of basic cable television subscribers on December 31, 2005 will be used as the basis from which to calculate the fee payment. 19 For CARS licensees, fees must be paid for any license that was granted on or before October 1, 2005. In instances where a CARS license is transferred or assigned after October 1, 2005, responsibility for payment rests with the holder of the license as of the Fee Due Date. 19 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 2005, rather than on a count as of December 31, 2005.
(e)*International Services:* For earth stations and geostationary orbit space stations, regulatory fees must be paid for stations that were licensed and operational on or before October 1, 2005. In instances where a license is transferred or assigned after October 1, 2005, responsibility for payment rests with the holder of the license as of the Fee Due Date. For non-geostationary orbit satellite systems, fees must be paid for systems that were licensed and operational on or before October 1, 2005. In instances where a license is transferred or assigned after October 1, 2005, responsibility for payment rests with the holder of the license as of the Fee Due Date. For international bearer circuits, payment is calculated on a per-active circuit basis as of December 31, 2005. 20 20 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. *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)* . On February 6, 2006, VSNL Telecommunications
(US)Inc. filed a Petition for Rulemaking urging the Commission to reform the current International Bearer Circuit Fee rules and policies as applied to non-common carrier submarine cable operators. *See* Petition for Rulemaking of VSNL Telecommunications
(US)Inc., RM-11312 (filed February 6, 2006). This Petition remains pending before the Commission, which has issued a Public Notice requesting comment on the petition. *See* Consumer and Governmental Affairs Bureau, Reference Information Center, *Public Notice* , Report No. 2759 (released February 15, 2006). The Commission intends to resolve the complex issues presented by this Petition separately, and any comments on these issues filed in the instant proceeding will be incorporated into, and addressed, with those filed on the Petition for Rulemaking. B. Enforcement 37. As a reminder to all licensees, section 159(c) of the Communications Act requires us to impose an additional charge as a penalty for late payment of any regulatory fee. As in years past, 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. 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. Failure to pay regulatory fees and/or any late penalty will subject regulatees to sanctions, including the Commission's Red Light Rule ( *see* 47 CFR 1.1910) and the provisions set forth in the Debt Collection Improvement Act of 1996 (DCIA). 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 § 1.1940(d) of the Commission's Rules. These administrative processing charges will be assessed on any delinquent regulatory fee, in addition to the 25 percent late charge penalty. Partial underpayments of regulatory fees are treated in the following manner. 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, the 25 percent late charge penalty will be assessed on the portion that is not paid in a timely manner. 38. Furthermore, our regulatory fee rules provide that 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. See 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910. 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). C. Initial Regulatory Flexibility Analysis 39. With respect to this *NPRM* , an Initial Regulatory Flexibility Analysis (IRFA), is contained in Attachment A of the Appendix. 21 Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the *NPRM* specified *infra* . The Commission will send a copy of the *NPRM* , including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 21 *See* 5 U.S.C. 603. In addition, the *NPRM* and the IRFA (or summaries thereof) will be published in the **Federal Register** . D. Initial Paperwork Reduction Act of 1995 Analysis 40. This document does not contain proposed or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it 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, *see* 44 U.S.C. 3506(c)(4). Completion of the 159 family of forms required by the Commission's regulatory fee payment process is already approved by the Office of Management and Budget under information collections 3060-0589 and 3060-0949. E. Ex Parte Rules 41. *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. 22 *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. 23 Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b). 22 *See* 47 CFR 1.1206(b); *see also* 47 CFR 1.1202 and 1.1203. 23 *See* 47 CFR 1.1206(b)(2). F. Filing Requirements 42. *Comments and Replies.* Pursuant to sections 1.415 and 1.419 of the Commission's rules, 24 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)by filing paper copies. 25 24 *See id.* §§ 1.415, 1.419. 25 *See Electronic Filing of Documents in Rulemaking Proceedings,* 13 FCC Rcd 11322 (1998). 43. *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 website 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. 44. *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. 45. *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. 46. *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. Ordering Clauses 47. 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 is hereby *adopted.* *It is further ordered* that the Commission's Consumer Information Bureau, Reference Information Center, *shall send* a copy of this *NPRM,* including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. Attachment A: Initial Regulatory Flexibility Analysis 48. As required by the Regulatory Flexibility Act (RFA), 26 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 document. The Commission will send a copy of the *NPRM,* including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 27 In addition, the *NPRM* and IRFA (or summaries thereof) will be published in the **Federal Register** . 28 26 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). 27 5 U.S.C. 603(a). 28 *Id.* I. Need for, and Objectives of, the Proposed Rules 49. This rulemaking proceeding is initiated to obtain comments concerning the Commission's proposed amendment of its Schedule of Regulatory Fees in the amount of $288,771,000, 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 50. 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. 29 29 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 51. 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. 30 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 31 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 32 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. 33 30 5 U.S.C. 603(b)(3). 31 5 U.S.C. 601(6). 32 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** .” 33 15 U.S.C. 632. 52. *Small Businesses.* Nationwide, there are a total of 22.4 million small businesses, according to SBA data. 34 34 *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002). 53. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 35 35 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 54. *Small Governmental Jurisdictions.* The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 36 As of 1997, there were approximately 87,453 governmental jurisdictions in the United States. 37 This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer than 50,000, and of which 1,498 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 84,098 or fewer. 36 5 U.S.C. 601(5). 37 U.S. Census Bureau, *Statistical Abstract of the United States* : 2000, Section 9, pages 299-300, Tables 490 and 492. 55. 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.” 38 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. 39 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. 38 15 U.S.C. 632. 39 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). 56. *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. 40 According to Commission data, 41 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. 40 13 CFR 121.201, North American Industry Classification System (NAICS) code 517110 (changed from 513310 in October 2002). 41 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “ *Trends in Telephone Service* ” at Table 5.3, Page 5-5 (June 2005) (hereinafter “ *Trends in Telephone Service* ”). This source uses data that are current as of October 1, 2004. 57. *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. 42 According to Commission data, 43 820 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 820 carriers, an estimated 726 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. 42 13 CFR 121.201, NAICS code 517110 (changed from 513310 in October 2002). 43 “Trends in Telephone Service” at Table 5.3. 58. *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. 44 According to Commission data, 45 143 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. 44 13 CFR 121.201, NAICS code 517310 (changed from 513330 in October 2002). 45 “ *Trends in Telephone Service* ” at Table 5.3. 59. *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. 46 According to Commission data, 47 770 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. 46 13 CFR 121.201, NAICS code 517310 (changed to 513330 in October 2002). 47 “ *Trends in Telephone Service* ” at Table 5.3. 60. *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. 48 According to Commission data, 49 654 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. 48 3 CFR 121.201, NAICS code 517110 (changed from 513310 in October 2002). 49 “ *Trends in Telephone Service* ” at Table 5.3. 61. *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. 50 According to Commission data, 51 316 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. 50 13 CFR 121.201, NAICS code 517110 (changed from 513310 in October 2002). 51 “ *Trends in Telephone Service* ” at Table 5.3. 62. *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. 52 According to Commission data, 53 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. 52 13 CFR 121.201, NAICS code 517110 (changed from 513310 in October 2002). 53 “ *Trends in Telephone Service* ” at Table 5.3. 63. *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. 54 According to Commission data, 55 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. 54 13 CFR 121.201, NAICS code 517310 (changed from 513330 in October 2002). 55 “ *Trends in Telephone Service* ” at Table 5.3. 64. *800 and 800-Like Service Subscribers.* 56 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. 57 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. 58 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 not independently owned and operated or have more than 1,500 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. 56 We include all toll-free number subscribers in this category, including those for 888 numbers. 57 13 CFR 121.201, NAICS code 517310 (changed from 513330 in October 2002). 58 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “ *Trends in Telephone Service,* ” Tables 18.4, 18.5, 18.6, and 18.7, (June 2005). 65. *International Service Providers.* The Commission has not developed a small business size standard specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad categories of Satellite Telecommunications and Other Telecommunications. Under both categories, such a business is small if it has $12.5 million or less in average annual receipts. 59 For the first category of Satellite Telecommunications, Census Bureau data for 1997 show that there were a total of 324 firms that operated for the entire year. 60 Of this total, 273 firms had annual receipts of under $10 million, and an additional 24 firms had receipts of $10 million to $24,999,999. Thus, the majority of Satellite Telecommunications firms can be considered small. 59 13 CFR 121.201, NAICS codes 517410 and 517910 (changed from 513340 and 513390 in October 2002). 60 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 513340 (issued October 2000). 66. The second category—Other Telecommunications—includes “establishments primarily engaged in * * * 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.” 61 According to Census Bureau data for 1997, there were 439 firms in this category that operated for the entire year. 62 Of this total, 424 firms had annual receipts of $5 million to $9,999,999 and an additional six firms had annual receipts of $10 million to $24,999,990. Thus, under this second size standard, the majority of firms can be considered small. 61 Office of Management and Budget, North American Industry Classification System, page 513
(1997)(NAICS code 513390, changed to 517910 in October 2002). 62 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 513390 (issued October 2000). 67. *Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” 63 and “Cellular and Other Wireless Telecommunications.” 64 Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 65 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. 66 Thus, under this category and associated small business size standard, the great majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, U.S. Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. 67 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 68 Thus, under this second category and size standard, the great majority of firms can, again, be considered small. 63 13 CFR 121.201, NAICS code 513321 (changed to 517211 in October 2002). 64 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 65 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 (issued October 2000). 66 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 (issued October 2000). 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.” 67 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513322 (issued October 2000). 68 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513322 (issued October 2000). 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.” 68. *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.” 69 Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. 70 According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. 71 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. 72 Thus, under this size standard, the great majority of firms can be considered small entities. 69 Office of Management and Budget, North American Industry Classification System, page 515 (1997). NAICS code 514191, “On-Line Information Services” (changed to current name and to code 518111 in October 2002). 70 13 CFR 121.201, NAICS code 518111. 71 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 (issued October 2000). 72 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 (issued October 2000). 69. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” 73 Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category Cellular and Other Wireless Telecommunications firms, U.S. Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. 74 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 75 Thus, under this category and size standard, the great majority of firms can be considered small. According to the most recent *Trends in Telephone Service* data, 604 carriers reported that they were engaged in the provision of cellular service, personal communications service, or specialized mobile radio telephony services, which are placed together in the data. 76 We have estimated that 427 of these are small, under the SBA small business size standard. 77 73 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 74 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513322 (issued October 2000). 75 U.S. Census Bureau, 1997 Economic Census, Subject Series: “Information,” Table 5, Employment Size of Firms Subject to Federal Income Tax: 1997, NAICS code 513322 (issued October 2000). 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 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “ *Trends in Telephone Service* ” at Table 5.3, page 5-5 (June 2005). This source uses data that are current as of October 1, 2004. 77 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “ *Trends in Telephone Service* ” at Table 5.3, page 5-5 (June 2005). This source uses data that are current as of October 1, 2004. 70. *Common Carrier Paging.* The SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.” 78 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. 79 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. 80 Thus, under this category and associated small business size standard, the great majority of firms can be considered small. 78 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 79 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 (issued October 2000). 80 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 (issued October 2000). 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.” 71. 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. 81 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. 82 The SBA has approved this definition. 83 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. 84 Fifty-seven companies claiming small business status won 440 licenses. 85 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. 86 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. 87 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. 88 Of these, we estimate that 589 are small, under the SBA-approved small business size standard. 89 We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition. 81 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, at paragraphs 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, at paragraphs 98-107 (1999). 82 *Paging Second Report and Order,* 12 FCC Rcd at 2811, at paragraph 179. 83 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998. 84 *See* “929 and 931 MHz Paging Auction Closes,” *Public Notice,* 15 FCC Rcd 4858 (WTB 2000). 85 *See* “929 and 931 MHz Paging Auction Closes,” *Public Notice,* 15 FCC Rcd 4858 (WTB 2000). 86 *See* “Lower and Upper Paging Band Auction Closes,” *Public Notice,* 16 FCC Rcd 21821 (WTB 2002). 87 *See* “Lower and Upper Paging Bands Auction Closes,” *Public Notice,* 18 FCC Rcd 11154 (WTB 2003). 88 *See Trends in Telephone Service,* Industry Analysis Division, Wireline Competition Bureau, Table 5.3 (Number of Telecommunications Service Providers by Size of Business) (June 2005). 89 13 CFR 121.201, NAICS code 517211. 72. 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. 90 The SBA has approved these definitions. 91 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. An auction for one license in the 1670-1674 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity. 90 Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS), *Report and Order* , 12 FCC Rcd 10785, 10879, at paragraph 194 (1997). 91 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998. 73. *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. 92 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. 93 According to the most recent *Trends in Telephone Service* data, 719 carriers reported that they were engaged in wireless telephony. 94 We have estimated that 427 of these are small under the SBA small business size standard. 92 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 93 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 94 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “ *Trends in Telephone Service* ” at Table 5.3, page 5-5 (June 2005). This source uses data that are current as of October 1, 2004. 74. *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. 95 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. 96 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. 97 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. 98 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. 99 95 *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, at paragraphs 57-60 (1996); *see also* 47 CFR 24.720(b). 96 *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, 7852, at paragraph 60. 97 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998. 98 FCC News, “Broadband PCS, D, E and F Block Auction Closes,” No. 71744 (released January 14, 1997). 99 *See* “C, D, E, and F Block Broadband PCS Auction Closes,” *Public Notice* , 14 FCC Rcd 6688 (WTB 1999). 75. 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. 100 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. 100 *See* “C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 2339 (2001). 76. *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. 101 Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. 102 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. 103 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. 104 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. 105 The SBA has approved these small business size standards. 106 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. 107 Three of these claimed status as a small or very small entity and won 311 licenses. 101 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, at paragraph 46 (1994). 102 *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 (released 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 (released Nov. 9, 1994). 103 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, at paragraph 40 (2000). 104 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, at paragraph 40 (2000). 105 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, at paragraph 40 (2000). 106 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998. 107 *See* “Narrowband PCS Auction Closes,” Public Notice, 16 FCC Rcd 18663 (WTB 2001). 77. *Lower 700 MHz Band Licenses.* We adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. 108 We have 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. 109 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. 110 Additionally, the lower 700 MHz Service has a third category of small business status that may be claimed 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. 111 The SBA has approved these small size standards. 112 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. 113 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. 114 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. 115 108 See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), *Report and Order* , 17 FCC Rcd 1022 (2002). 109 *See* Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), *Report and Order* , 17 FCC Rcd 1022, 1087-88, at paragraph 172 (2002). 110 *See* Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), *Report and Order* , 17 FCC Rcd 1022, 1087-88, at paragraph 172 (2002). 111 *See* Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), *Report and Order* , 17 FCC Rcd 1022, 1088, at paragraph 173 (2002). 112 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999. 113 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 17 FCC Rcd 17272 (WTB 2002). 114 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 18 FCC Rcd 11873 (WTB 2003). 115 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 18 FCC Rcd 11873 (WTB 2003). 78. *Upper 700 MHz Band Licenses.* The Commission released a Report and Order, authorizing service in the upper 700 MHz band. 116 This auction, previously scheduled for January 13, 2003, has been postponed. 117 116 Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, *Second Memorandum Opnion and Order* , 16 FCC Rcd 1239 (2001). 117 *See* “Auction of Licenses for 747-762 and 777-792 MHz Bands (Auction No. 31) Is Rescheduled,” *Public Notice* , 16 FCC Rcd 13079 (WTB 2003). 79. *700 MHz Guard Band Licenses* . In the 700 MHz Guard Band Order, we 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. 118 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. 119 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. 120 SBA approval of these definitions is not required. 121 An auction of 52 Major Economic Area
(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. 122 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. 123 118 *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). 119 *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, 5343, at paragraph 108 (2000). 120 *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, 5343, at paragraph 108 (2000). 121 *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, 5343, at paragraph 108, note 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). 122 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice* , 15 FCC Rcd 18026 (2000). 123 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 4590 (WTB 2001). 80. *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. 124 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. 125 The SBA has approved these small business size standards for the 900 MHz Service. 126 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. 127 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. 128 124 47 CFR 90.814(b)(1). 125 47 CFR 90.814(b)(1). 126 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999. We note that, although a request was also sent to the SBA requesting approval for the small business size standard for 800 MHz, approval is still pending. 127 *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). 128 *See* “Multi-Radio Service Auction Closes,” *Public Notice* , 17 FCC Rcd 1446 (WTB 2002). 81. 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. 129 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 sold. 130 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. 129 *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). 130 *See* , “800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 1736 (2000). 82. 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. 83. *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. 131 According to the Census Bureau data for 1997, only twelve firms out of a total of 1,238 such firms that operated for the entire year in 1997, had 1,000 or more employees. 132 If this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business standard. 131 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 132 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 513322 (October 2000). 84. *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, we 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. 133 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. 134 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. 135 The SBA has approved these small size standards. 136 Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. 137 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. 138 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. 139 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. 140 133 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, at paragraphs 291-295 (1997). 134 *Id.* at 11068, at paragraphs 291. 135 *Id.* 136 *See* Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated January 6, 1998. 137 *See* *generally* “220 MHz Service Auction Closes,” *Public Notice* , 14 FCC Rcd 605 (WTB 1998). 138 *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 (WTB 1999). 139 *See* “Phase II 220 MHz Service Spectrum Auction Closes,” *Public Notice* , 14 FCC Rcd 11218 (WTB 1999). 140 *See* “Multi-Radio Service Auction Closes,” *Public Notice* , 17 FCC Rcd 1446 (WTB 2002). 85. *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 could use the definition for “Cellular and Other Wireless Telecommunications.” This definition provides that a small entity is any such entity employing no more than 1,500 persons. 141 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. Moreover, because PMLR licensees generally are not in the business of providing cellular or other wireless telecommunications services but instead use the licensed facilities in support of other business activities, we are not certain that the Cellular and Other Wireless Telecommunications category is appropriate for determining how many PLMR licensees are small entities for this analysis. Rather, it may be more appropriate to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs. 142 141 *See* 13 CFR 121.201, NAICS code 517212. 142 *See generally* 13 CFR 121.201. 86. The Commission's 1994 Annual Report on PLMRs 143 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. Because any entity engaged in a commercial activity is eligible to hold a PLMR license, the revised rules in this context could potentially impact every small business in the United States. 143 Federal Communications Commission, 60th Annual Report, Fiscal Year 1994, at paragraph 116. 87. *Fixed Microwave Services* . Fixed microwave services include common carrier, 144 private operational-fixed, 145 and broadcast auxiliary radio services. 146 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. 147 The Commission does not have data specifying the number of these licensees that have 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 up to 22,015 common carrier fixed licensees and up to 61,670 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 noted, however, that the common carrier microwave fixed licensee category includes some large entities. 144 *See* 47 CFR 101 et seq. (formerly, Part 21 of the Commission's Rules) for common carrier fixed microwave services (except Multipoint Distribution Service). 145 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. 146 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. 147 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 88. *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. 148 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. 149 The SBA has approved these small business size standards. 150 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. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and polices proposed herein. 148 *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). 149 *Id.* 150 *See* Letter to Kathleen O'Brien Ham, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Feb. 4, 1998) (VoIP); *See* Letter to Margaret Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Hector Barreto, Administrator, Small Business Administration, dated January 18, 2002 (WTB). 89. *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. 151 The auction of the 986 Local Multipoint Distribution Service
(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. 152 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. 153 The SBA has approved these small business size standards in the context of LMDS auctions. 154 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 business bidders winning that won 119 licenses. 151 *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, at paragraph 348 (1997). 152 *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, at paragraph 348 (1997). 153 *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, at paragraph 348 (1997). 154 *See* Letter to Dan Phythyon, Chief, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Jan. 6, 1998). 90. *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). 155 Of the 594 licenses, 567 were won by 167 entities qualifying as a small business. For that auction, we 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. 156 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. 157 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. 158 The SBA has approved of these definitions. 159 At this time, we cannot estimate the number of licenses that will be won by entities qualifying as small or very small businesses under our rules in future auctions of 218-219 MHz spectrum. 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 all, of the licenses may be awarded to small businesses. 155 *See* “Interactive Video and Data Service
(IVDS)Applications Accepted for Filing,” *Public Notice,* 9 FCC Rcd 6227 (1994). 156 Implementation of Section 309(j) of the Communications Act—Competitive Bidding, *Fourth Report and Order, 9* FCC Rcd 2330 (1994). 157 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). 158 *Id.* 159 *See* Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated January 6, 1998. 91. 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. 160 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. 161 These definitions have been approved by the SBA. 162 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. We cannot accurately predict the number of remaining licenses that could be awarded to small entities in future LMS auctions. 160 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, at paragraph 20 (1998); *see also* 47 CFR 90.1103. 161 Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems, *Second Report and Order,* 13 FCC Rcd at 15192, at paragraph 20; *see also* 47 CFR 90.1103. 162 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated February 22, 1999. 92. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. 163 A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). 164 The Commission uses 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. 165 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. 163 The service is defined in § 22.99 of the Commission's Rules, 47 CFR 22.99. 164 BETRS is defined in §§ 22.757 and 22.759 of the Commission's Rules, 47 CFR 22.757 and 22.759. 165 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 93. *Air-Ground Radiotelephone Service.* The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. 166 We will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. 167 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small under the SBA small business size standard. 166 The service is defined in § 22.99 of the Commission's Rules, 47 CFR 22.99. 167 13 CFR 121.201, NAICS codes 513322 (changed to 517212 in October 2002). 94. *Aviation and Marine Radio 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. 168 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. 169 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. 168 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 169 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). 95. *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. 170 There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. 171 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 172 170 This service is governed by Subpart I of Part 22 of the Commission's Rules. See 47 CFR 22.1001-22.1037. 171 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 172 *Id.* 96. *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. 173 “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. 174 The SBA has approved of these definitions. 175 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. 176 Seven winning bidders claimed status as small or very small businesses and won 611 licenses. 173 *See* Amendment of the Commission's Rules Regarding Multiple Address Systems, *Report and Order,* 15 FCC Rcd 11956, 12008, at paragraph 123 (2000). 174 *Id.* 175 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated June 4, 1999. 176 *See* “Multiple Address Systems Spectrum Auction Closes,” *Public Notice,* 16 FCC Rcd 21011 (2001). 97. 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 definitions developed by the SBA would be more appropriate. The applicable definition of small entity in this instance appears to be the “Cellular and Other Wireless Telecommunications” definition under the SBA rules. This definition provides that a small entity is any entity employing no more than 1,500 persons. 177 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. 177 *See* 13 CFR 121.201, NAICS code 517212. 98. *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. 178 According to U.S. Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. 179 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 180 Thus, under this size standard, the great majority of firms can 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 181 and TRW, Inc. It is our understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity. 178 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 179 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Employment Size of Firms Subject to Federal Income Tax: 1997,” Table 5, NAICS code 513322 (issued October 2000). 180 *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 “Firms with 1,000 employees or more.” 181 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. 99. *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. 182 “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. 183 The SBA has approved these definitions. 184 The Commission will not know how many licensees will be small or very small businesses until the auction, if required, is held. 182 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, at paragraph 77
(2000)(24 GHz Report and Order); *see also* 47 CFR 101.538(a)(2). 183 24 GHz Report and Order, 15 FCC Rcd at 16967, at paragraph 77; *see also* 47 CFR 101.538(a)(1). 184 *See* Letter to Margaret W. Wiener, Deputy Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Gary M. Jackson, Assistant Administrator, Small Business Administration, dated July 28, 2000. 100. *Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and Instructional Television Fixed Service.* Multichannel Multipoint Distribution Service
(MMDS)systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service
(MDS)and Instructional Television Fixed Service (ITFS). 185 In connection with the 1996 MDS auction, the Commission defined “small business” as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. 186 The SBA has approved of this standard. 187 The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). 188 Of the 67 auction winners, 61 claimed status as a small business. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold 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. 189 185 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, * Report and Order, * 10 FCC Rcd 9589, 9593, at paragraph 7
(1995)(MDS Auction R&O). 186 47 CFR 21.961(b)(1). 187 *See* Letter to Margaret Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Bureau, from Gary Jackson, Assistant Administrator for Size Standards, Small Business Administration, dated March 20, 2003 (noting approval of $40 million size standard for MDS auction). 188 Basic Trading Areas
(BTAs)were designed by Rand McNally and are the geographic areas by which MDS was auctioned and authorized. *See* MDS Auction R&O, 10 FCC Rcd 9608, at paragraph 34. 189 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 for “other telecommunications” (annual receipts of $12.5 million or less). *See* 13 CFR 121.201, NAICS code 517910. 101. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, 190 which includes all such companies generating $12.5 million or less in annual receipts. 191 According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. 192 Of this total, 1,180 firms had annual receipts of under $10 million, and an additional 52 firms had receipts of $10 million or more but less than $25 million. 193 Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the proposed rules and policies. 190 13 CFR 121.201, NAICS code 517510. 191 *Id.* 192 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4 (issued October 2000). 193 *Id.* 102. Finally, while SBA approval for a Commission-defined small business size standard applicable to ITFS is pending, educational institutions are included in this analysis as small entities. 194 There are currently 2,032 ITFS licensees, and all but 100 of these licenses are held by educational institutions. Thus, we tentatively conclude that at least 1,932 ITFS licensees are small businesses. 194 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. 103. *Television Broadcasting.* The Small Business Administration defines a television broadcasting station that has no more than $12 million in annual receipts as a small business. 195 Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” 196 According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States have revenues of $12 million or less. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations 197 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. There are also 2,117 low power television stations (LPTV). 198 Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA definition. 195 *See* OMB, North American Industry Classification System: United States, 1997 at 509
(1997)(NAICS code 513120, which was changed to code 515120 in October 2002). 196 OMB, North American Industry Classification System: United States, 1997, at 509
(1997)(NAICS code 513120, which was changed to code 51520 in October 2002). This category description continues, “These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or from external sources.” Separate census categories pertain to businesses primarily engaged in producing programming. *See id.* , at 502-05, NAICS code 51210. Motion Picture and Video Production: code 512120, Motion Picture and Video Distribution, code 512191, Teleproduction and Other Post-Production Services, and code 512199, Other Motion Picture and Video Industries. 197 “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 121.103(a)(1). 198 FCC News Release, “Broadcast Station Totals as of September 30, 2005.” 104. 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. 105. *Radio Broadcasting.* The SBA defines a radio broadcast entity that has $6 million or less in annual receipts as a small business. 199 Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public. 200 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 201 are included. 202 Our estimate, therefore likely overstates the number of small businesses that might be affected by our action. 199 *See* OMB, North American Industry Classification System: United States, 1997, at 509
(1997)(Radio Stations) (NAICS code 513111, which was changed to code 515112 in October 2002). 200 *Id.* 201 “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). 202 “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). 106. *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. 203 203 13 CFR 121.201, NAICS codes 513111 and 513112. 107. The Commission estimates that there are approximately 3,868 FM translators and boosters. 204 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 ($5 million for a radio station or $10.5 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. 205 204 FCC News Release, “Broadcast Station Totals as of September 30, 2004.” 205 15 U.S.C. 632. 108. *Cable and Other Program Distribution.* This category includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, and subscription television services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. 206 According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. 207 Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies proposed herein. 206 13 CFR 121.201, NAICS code 513220 (changed to 517510 in October 2002). 207 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization)”, Table 4, NAICS code 513220 (issued October 2000). 109. *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. 208 The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995. 209 Since then, some of those companies may have grown to serve over 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 proposed herein. 208 47 CFR 76.901(e). The Commission developed this definition based on its determination that a small cable system operator is one with annual revenues of $100 million or less. Implementation of Sections of the 1992 Cable Act: Rate Regulation, *Sixth Report and Order and Eleventh Order on Reconsideration,* 10 FCC Rcd 7393 (1995). 209 Paul Kagan Associates, Inc., Cable TV Investor, February 29, 1996 (based on figures for December 30, 1995). 110. *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.” 210 The Commission has determined that there are 63,000,000 subscribers in the United States. 211 Therefore, an operator serving fewer than 630,000 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. 212 Based on available data, the Commission estimates that the number of cable operators serving 630,000 subscribers or fewer, totals 1,450. 213 The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, 214 and therefore are 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. 210 47 U.S.C. 543(m)(2). 211 *See* FCC Announces New Subscriber Count for the Definition of Small Cable Operator, *Public Notice* , DA 01-158 (January 24, 2001). 212 47 CFR 76.901(f). 213 *See* FCC Announces New Subscriber Count for the Definition of Small Cable Operators, *Public Notice* , DA-01-0158 (released January 24, 2001). 214 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 § 76.901(f) of the Commission's rules. *See* 47 CFR 76.909(b). 111. *Open Video Services.* Open Video Service
(OVS)systems provide subscription services. 215 The SBA has created a small business size standard for Cable and Other Program Distribution. 216 This standard provides that a small entity is one with $12.5 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. 217 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. 215 *See* 47 U.S.C. 573. 216 13 CFR 121.201, NAICS code 513220 (changed to 517510 in October 2002). 217 *See* http://www.fcc.gov/csb/ovs/csovscer.html (current as of March 2002). 112. *Cable Television Relay Service.* This service includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has defined a small business size standard for Cable and other Program Distribution, consisting of all such companies having annual receipts of no more than $12.5 million. 218 According to Census Bureau data for 1997, there were 1,311 firms in the industry category Cable and Other Program Distribution, total, that operated for the entire year. 219 Of this total, 1,180 firms had annual receipts of $10 million or less, and an additional 52 firms had receipts of $10 million or more but less than $25 million. 220 Thus, under this standard, we estimate that the majority of providers in this service category are small businesses that may be affected by the proposed rules and policies. 218 13 CFR 121.201, NAICS code 517510. 219 U.S. Census Bureau, 1997 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4 (issued October 2000). 220 *Id.* 113. *Multichannel Video Distribution and Data Service* . MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. No auction has yet been held in this service, although an action has been scheduled for January 14, 2004. 221 Accordingly, there are no licensees in this service. 221 “Auctions of Licenses in the Multichannel Video Distribution and Data Service Rescheduled for January 14, 2004,” *Public Notice,* DA 03-2354 (August 28, 2003). 114. *Amateur Radio Service.* These licensees are believed to be individuals, and therefore are not small entities. 115. *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. 222 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. 223 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. 222 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 223 Amendment of the Commission's Rules Concerning Maritime Communications, *Third Report and Order and Memorandum Opinion and Order,* 13 FCC Rcd 19853 (1998). 116. *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. 224 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). 225 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. 226 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. 224 47 CFR Part 90. 225 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. 226 13 CFR 121.201, NAICS Code 517212. 117. *Public Safety Radio Services.* Public Safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 227 There are a total of approximately 127,540 licensees in these services. Governmental entities 228 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. 229 227 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. 228 47 CFR 1.1162. 229 5 U.S.C. 601(5). IV. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 118. 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 (“FCC Remittance Advice”), and pay a regulatory fee based on the number of licenses or call signs. 230 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. 230 The following categories are exempt from the Commission's Schedule of Regulatory Fees: 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. 119. 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. 120. 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. 231 If payment is not received, new or pending applications may be dismissed, and existing authorizations may be subject to rescission. 232 Further, in accordance with the Debt Collection Improvement Act of 1996, 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. 233 Nonpayment of regulatory fees is a debt owed the United States pursuant to 31 U.S.C. 3711 *et seq.* , and the *Debt Collection Improvement Act of 1996* , Public Law 194-134. 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. 234 231 47 CFR 1.1164. 232 47 CFR 1.1164(c). 233 Public Law 104-134, 110 Stat. 1321 (1996). 234 31 U.S.C. 7701(c)(2)(B). 121. 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. 235 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. 235 47 CFR 1.1166. V. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 122. 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. As described in Section III of this IRFA, *supra* , we have created procedures in which all fee-filing licensees and regulatees use a single form, FCC Form 159, and have described in plain language the general filing requirements. We have sought comment on other alternatives that might simplify our fee procedures or otherwise benefit small entities, while remaining consistent with our statutory responsibilities in this proceeding. 123. *The Omnibus Appropriations Act for FY 2006* , Public Law 109-108, requires the Commission to revise its Schedule of Regulatory Fees in order to recover the amount of regulatory fees that Congress, pursuant to Section 9(a) of the Communications Act, as amended, has required the Commission to collect for Fiscal Year
(FY)2006. 236 As noted, we seek comment on the proposed methodology for implementing these statutory requirements and any other potential impact of these proposals on small entities. 236 47 U.S.C. 159(a). 124. We have previously used cost accounting data for computation of regulatory fees, but found that some fees which were very small in previous years would have increased dramatically and would have a disproportionate impact on smaller entities. The methodology we are proposing in this *Notice of Proposed Rulemaking* minimizes this impact by limiting the amount of increase and shifting costs to other services which, for the most part, are larger entities. 125. Several categories of licensees and regulatees are exempt from payment of regulatory fees. *See, e.g.* , footnote 230, *supra* . VI. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 126. None. Attachment B: Sources of Payment Unit Estimates for FY 2006 In order to calculate individual service fees for FY 2006, we adjusted FY 2005 payment units for each service to more accurately reflect expected FY 2006 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 the Commission's Universal Licensing System (ULS), International Bureau Filing System
(IBFS)and Consolidated Database System (CDBS), 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 2006 estimates with actual FY 2005 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 2006 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. Therefore, when we note, for example, that our estimated FY 2006 payment units are based on FY 2005 actual payment units, it does not necessarily mean that our FY 2006 projection is *exactly* the same number as FY 2005. It means that we have either rounded the FY 2006 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 Mobile Services Based on Wireless Telecommunications Bureau estimates. CMRS Messaging Services Based on Wireless Telecommunications Bureau Competition Report estimates. AM/FM Radio Stations Based on estimates from Media Bureau estimates, adjusted for exemptions, and actual FY 2005 payment units. UHF/VHF Television Stations Based on Media Bureau estimates as well as actual FY 2005 payment units. AM/FM/TV Construction Permits Based on Media Bureau estimates as well as actual FY 2005 payment units. LPTV, Translators and Boosters Based on actual FY 2005 payment units. Broadcast Auxiliaries Based on actual FY 2005 payment units. BRS (formerly MDS/MMDS) Based on Wireless Telecommunications Bureau estimates and actual FY 2005 payment units. Cable Television Relay Service
(CARS)Stations Based on actual FY 2005 payment units. Cable Television System Subscribers Based on Media Bureau industry estimates of subscriber counts, and actual FY 2005 payment units. Interstate Telecommunication Service Providers Based on actual FY 2005 interstate revenues reported on Telecommunications Reporting Worksheet, adjusted for FY 2006 revenue growth/decline for industry, and projections by the Wireline Competition Bureau. Earth Stations Based on actual FY 2005 payment estimates and projected FY 2006 units. Space Stations (GSOs & NGSOs) Based on International Bureau licensee data base estimates. International Bearer Circuits Based on FY 2005 actual units. International HF Broadcast Stations, International Public Fixed Radio Service Based on International Bureau estimates. Attachment C: Calculation of FY 2006 Revenue Requirements and Pro-Rata Fees Regulatory fees for the first ten categories 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. Fee category FY 2006 payment units Years FY 2005 revenue estimate Pro-rated FY 2006 revenue requirement* Computed new FY 2006 regulatory fee Rounded new FY 2006 regulatory fee Expected FY 2006 revenue PLMRS (Exclusive Use) 2,200 10 370,000 380,547 17 15 330,000 PLMRS (Shared use) 25,000 10 2,300,000 2,365,564 9 10 2,500,000 Microwave 2,000 10 1,560,000 1,604,469 80 80 1,600,000 218-219 MHz (Formerly IVDS) 3 10 1,500 1,543 51 50 1,500 Marine
(Ship)8,000 10 700,000 719,954 9 10 800,000 GMRS 17,000 5 525,000 539,966 6 5 425,000 Aviation (Aircraft) 6,000 10 370,000 380,547 6 5 300,000 Marine (Coast) 600 10 100,000 102,851 17 15 90,000 Aviation (Ground) 1,500 10 120,000 123,421 8 10 150,000 Amateur Vanity Call Signs 8,500 10 166,443 171,188 2.01 2.01 171,188 AM Class A 69 1 202,950 213,431 3,093 3,100 213,900 AM Class B 1,612 1 2,467,600 2,556,655 1,586 1,575 2,538,900 AM Class C 950 1 860,400 893,691 941 940 893,000 AM Class D 1,769 1 2,874,625 2,977,802 1,683 1,675 2,963,075 FM Classes A, B1 & C3 3,068 1 6,013,875 6,234,202 2,032 2,025 6,212,700 FM Classes B, C, C0, C1 & C2 2,908 1 7,333,425 7,599,534 2,613 2,625 7,633,500 AM Construction Permits 60 1 35,030 36,245 604 375 22,500 FM Construction Permits 1 59 1 53,900 55,770 945 550 32,450 Satellite TV 123 1 132,225 136,813 1,112 1,100 135,300 Satellite TV Construction Permit 3 1 1,605 1,661 554 555 1,665 VHF Markets 1-10 44 1 2,664,925 2,757,388 62,668 62,675 2,757,700 VHF Markets 11-25 61 1 2,725,175 2,819,728 46,225 46,225 2,819,725 VHF Markets 26-50 72 1 2,305,800 2,385,803 33,136 33,125 2,385,000 VHF Markets 51-100 118 1 2,218,400 2,295,370 19,452 19,450 2,295,100 VHF Remaining Markets 211 1 975,875 1,009,734 4,785 4,775 1,007,525 VHF Construction Permits 9 1 28,575 29,566 3,285 3,275 29,475 UHF Markets 1-10 84 1 1,682,100 1,742,992 20,750 20,750 1,743,000 UHF Markets 11-25 79 1 1,384,475 1,435,040 18,165 18,175 1,435,825 UHF Markets 26-50 115 1 1,155,750 1,198,378 10,421 10,425 1,198,875 UHF Markets 51-100 162 1 992,250 1,028,286 6,347 6,350 1,028,700 UHF Remaining Markets 181 1 312,225 323,058 1,785 1,775 321,275 UHF Construction Permits 1 26 1 53,475 55,330 2,128 1,775 46,150 Broadcast Auxiliaries 24,000 1 250,000 258,674 11 10 240,000 LPTV/Translators/Boosters 2,900 1 1,145,500 1,185,245 409 410 1,189,000 CARS Stations 850 1 139,500 144,340 170 170 144,500 Cable TV Systems 63,000,000 1 46,800,000 48,423,784 0.769 0.77 48,510,000 Interstate Telecommunication Service Providers 53,100,000,000 1 131,220,000 135,772,841 0.00255693 0.00256 135,936,000 CMRS Mobile Services (Cellular/Public Mobile) 203,000,000 1 39,380,000 41,153,670 0.203 0.20 40,600,000 CMRS Messaging Services 6,500,000 1 896,000 519,756 0.08 0.08 520,000 BRS 2 1,767 1 459,000 473,579 268 270 477,090 LMDS 330 1 84,150 88,417 268 270 89,100 International Bearer Circuits 5,300,000 1 7,261,000 7,512,929 1.42 1.42 7,526,000 International Public Fixed 1 1 1,800 1,862 1,862 1,850 1,850 Earth Stations 3,500 1 697,000 721,183 206 205 717,500 International HF Broadcast 5 1 3,825 3,958 792 790 3,950 Space Stations (Geostationary) 87 1 9,065,925 9,380,479 107,822 107,825 9,380,775 Space Stations (Non-Geostationary 6 1 674,550 697,954 116,326 116,325 697,950 ****** Total Estimated Revenue to be Collected 280,765,853 290,515,198 290,116,743 ****** Total Revenue Requirement 280,098,000 288,771,000 288,771,000 Difference 667,853 1,744,198 1,345,743 * 1.030964163 factor applied based on the amount Congress designated for recovery through regulatory fees (Public Law 109-108 and 47 U.S.C. 159(a)(2)). 1 The AM and FM Construction Permits and the UHF Construction Permit revenues were adjusted to set the regulatory fee to an amount no higher than the lowest licensed fee for that class of service. 2 MDS/MMDS category was renamed Broadband Radio Service (BRS). *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 et al, *Report & Order and Further Notice of Proposed Rulemaking* , 19 FCC Rcd 14165, 14169, at paragraph 6
(2004)( *R&O and FNPRM* ). Attachment D: FY 2006 Schedule of Regulatory Fees Regulatory fees for the first eleven categories 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. Fee category Annual regulatory fee (U.S. $'s) PLMRS (per license) (Exclusive Use) (47 CFR part 90) 15 Microwave (per license) (47 CFR part 101) 80 218-219 MHz (Formerly Interactive Video Data Service) (per license) (47 CFR part 95) 50 Marine
(Ship)(per station) (47 CFR part 80) 10 Marine (Coast) (per license) (47 CFR part 80) 15 General Mobile Radio Service (per license) (47 CFR part 95) 5 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 10 PLMRS (Shared Use) (per license) (47 CFR part 90) 10 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) 2.01 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .20 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Broadband Radio Service (formerly MMDS/MDS) (per license) (47 CFR part 21) 270 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 270 AM Radio Construction Permits 375 FM Radio Construction Permits 550 TV (47 CFR part 73) VHF Commercial: Markets 1-10 62,675 Markets 11-25 46,225 Markets 26-50 33,125 Markets 51-100 19,450 Remaining Markets 4,775 Construction Permits 3,275 TV (47 CFR part 73) UHF Commercial: Markets 1-10 20,750 Markets 11-25 18,175 Markets 26-50 10,425 Markets 51-100 6,350 Remaining Markets 1,775 Construction Permits 1,775 Satellite Television Stations (All Markets) 1,100 Construction Permits—Satellite Television Stations 555 Low Power TV, TV/FM Translators & Boosters (47 CFR part 74) 410 Broadcast Auxiliaries (47 CFR part 74) 10 CARS (47 CFR part 78) 170 Cable Television Systems (per subscriber) (47 CFR part 76) .77 Interstate Telecommunication Service Providers (per revenue dollar) .00256 Earth Stations (47 CFR part 25) 205 Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes DBS Service (per operational station) (47 CFR part 100) 107,825 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 116,325 International Bearer Circuits (per active 64KB circuit) 1.42 International Public Fixed (per call sign) (47 CFR part 23) 1,850 International
(HF)Broadcast (47 CFR part 73) 790 FY 2006 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 <=25,000 625 475 375 450 550 725 25,001-75,000 1,225 925 575 700 1,125 1,250 75,001-150,000 1,825 1,150 775 1,150 1,550 2,300 150,001-500,000 2,750 1,950 1,150 1,375 2,375 3,000 500,001-1,200,000 3,950 2,975 1,925 2,300 3,775 4,400 1,200,001-3,000,00 6,075 4,575 2,875 3,675 6,150 7,025 >3,000,000 7,275 5,475 3,650 4,600 7,850 9,125 Attachment E: Factors, Measurements and Calculations That Determine Station Contours and 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 §§ 73.150 and 73.152 of the Commission's rules. 237 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 238 . 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 was 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. 237 47 CFR 73.150 and 73.152. 238 *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
(kW)and respective height above average terrain
(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. 239 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. 239 47 CFR 73.313. Attachment F: FY 2005 Schedule of Regulatory Fees Fee category Annual regulatory fee (U.S. $'s) PLMRS (per license) (Exclusive Use) (47 CFR part 90) 10 Microwave (per license) (47 CFR part 101) 60 218-219 MHz (Formerly Interactive Video Data Service) (per license) (47 CFR part 95) 50 Marine
(Ship)(per station) (47 CFR part 80) 10 Marine (Coast) (per license) (47 CFR part 80) 10 General Mobile Radio Service (per license) (47 CFR part 95) 5 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 5 PLMRS (Shared Use) (per license) (47 CFR part 90) 5 Aviation (Aircraft) (per station) (47 CFR part 87) 5 Aviation (Ground) (per license) (47 CFR part 87) 15 Amateur Vanity Call Signs (per call sign) (47 CFR part 97) 2.19 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .22 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Multipoint Distribution Services (MMDS/MDS) (per license sign) (47 CFR part 21) 255 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 255 AM Radio Construction Permits 310 FM Radio Construction Permits 550 TV (47 CFR part 73) VHF Commercial: Markets 1-10 61,975 Markets 11-25 44,675 Markets 26-50 32,025 Markets 51-100 18,800 Remaining Markets 4,625 Construction Permits 3,175 TV (47 CFR part 73) UHF Commercial: Markets 1-10 20,025 Markets 11-25 17,525 Markets 26-50 10,050 Markets 51-100 6,125 Remaining Markets 1,725 Construction Permits 1,725 Satellite Television Stations (All Markets) 1,075 Construction Permits—Satellite Television Stations 535 Low Power TV, TV/FM Translators & Boosters (47 CFR part 74) 395 Broadcast Auxiliary (47 CFR part 74) 10 CARS (47 CFR part 78) 155 Cable Television Systems (per subscriber) (47 CFR part 76) .72 Interstate Telecommunication Service Providers (per revenue dollar) .00243 Earth Stations (47 CFR part 25) 205 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) 111,925 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 112,425 International Bearer Circuits (per active 64KB circuit) 1.37 International Public Fixed (per call sign) (47 CFR part 23) 1,800 International
(HF)Broadcast (47 CFR part 73) 765 FY 2005 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 <=25,000 625 475 375 450 550 725 25,001-75,000 1,225 925 550 675 1,125 1,250 75,001-150,000 1,825 1,150 750 1,125 1,550 2,300 150,001-500,000 2,750 1,950 1,125 1,350 2,375 3,000 500,001-1,200,000 3,950 2,975 1,875 2,250 3,750 4,400 1,200,001-3,000,00 6,075 4,575 2,825 3,600 6,100 7,025 >3,000,000 7,275 5,475 3,575 4,500 7,750 9,125 [FR Doc. 06-3201 Filed 4-5-06; 8:45 am]
Connectionstraces to 55
Traces to 55 documents
U.S. Code
77 references not yet in our index
  • 14 CFR 71
  • 21 CFR 878
  • Pub. L. 94-295
  • Pub. L. 101-629
  • 21 CFR 807
  • 587 F.2d 1173
  • 422 F.2d 944
  • 366 F.2d 177
  • 5 USC 601-612
  • Pub. L. 104-4
  • 44 USC 3501-3520
  • 33 CFR 117
  • Pub. L. 04-121
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 102-587
  • 106 Stat. 5039
  • Pub. L. 104-121
  • 37 CFR 1
  • 40 CFR 60
  • 323 F.3d 1088
  • 40 CFR 9
  • 13 CFR 121
  • Pub. L. 104-113
  • 40 CFR 745
  • Pub. L. 102-550
  • 47 CFR 1
  • Pub. L. 109-171
  • 47 CFR 1.1161(c)
  • 47 CFR 1.1910
  • 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
+ 37 more
Citation graph
cites case law
Notices
Notice of proposed rulemaking
Fed. Reg.Notices
Fed. Reg.Notices
U.S.C.§ 106
C.F.R.§ 71.1
U.S.C.§ 301
U.S.C.§ 360c
U.S.C.§ 360
U.S.C.§ 360e
U.S.C.§ 360i
F. App'x587 F.2d 1173
F. App'x422 F.2d 944
F. App'x366 F.2d 177
Cites 132 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

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

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.