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 · 2007-05-02 · Food and Drug Administration, HHS · Rules and Regulations

Rules and Regulations. Final rule

87,768 words·~399 min read·/register/2007/05/02/07-2156

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

BILLING CODE 3410-30-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 510 New Animal Drugs; Change of Sponsor's Address AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect a change of sponsor's address for Alpharma, Inc. DATES: This rule is effective May 2, 2007. FOR FURTHER INFORMATION CONTACT: David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail: *david.newkirk@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Alpharma, Inc., One Executive Dr., Ft. Lee, NJ 07024, has informed FDA of a change of address to 440 Rte. 22, Bridgewater, NJ 08807. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 510 Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 510 is amended as follows: PART 510—NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 510 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e. 2. In § 510.600, in the table in paragraph (c)(1), revise the entry for “Alpharma, Inc.”; and in the table in paragraph (c)(2), revise the entry for “046573” to read as follows: § 510.600 Names, addresses, and drug labeler codes of sponsors of approved applications.
(c)* * *
(1)* * * Firm name and address Drug labeler code * * * * * Alpharma, Inc., 440 Rte. 22, Bridgewater, NJ 08807 046573 * * * * *
(2)* * * Drug labeler code Firm name and address * * * * * 046573 Alpharma, Inc., 440 Rte. 22, Bridgewater, NJ 08807 * * * * * Dated: April 24, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-8322 Filed 5-1-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Fenbendazole Paste AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; technical amendment. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to correct an inadvertent error in the conditions of use of fenbendazole paste in horses and cattle. This action is being taken to improve the accuracy of the animal drug regulations. DATES: This rule is effective May 2, 2007. FOR FURTHER INFORMATION CONTACT: George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019, e-mail: *george.haibel@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: FDA is amending the animal drug regulations in 21 CFR 558.95 to correct an inadvertent error in the conditions of use of fenbendazole paste in horses and cattle. The error in the agency's regulations was introduced in a final rule reflecting the approval of a supplemental new animal drug application that published in the **Federal Register** on March 9, 2007 (72 FR 10595). This action is being taken to improve the accuracy of the animal drug regulations. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. Section 520.905c is revised to read as follows: § 520.905c Fenbendazole paste.
(a)*Specifications* . Each gram of paste contains 100 milligrams
(mg)fenbendazole (10 percent).
(b)*Sponsor* . See No. 057926 in § 510.600(c) of this chapter.
(c)*Related tolerances* . See § 556.275 of this chapter.
(d)*Special considerations* . See § 500.25 of this chapter.
(e)*Conditions of use* —(1) *Horses* —(i) *Indications for use and amounts* —(A) For control of large strongyles ( *Strongylus edentatus* , *S. equinus* , *S. vulgaris* ), small strongyles, pinworms ( *Oxyuris equi* ), and ascarids ( *Parascaris equorum* ): 2.3 mg per pound (/lb) of body weight, or for foals and weanlings (less than 18 months of age), 4.6 mg/lb of body weight. Retreatment at intervals of 6 to 8 weeks may be required.
(B)For control of arteritis caused by the fourth-stage larvae of S. vulgaris: 4.6 mg/lb of body weight daily for 5 days. Treatment should be initiated in the spring and repeated in 6 months.
(C)For treatment of encysted mucosal cyathostome (small strongyle) larvae including early third-stage (hypobiotic), late third-stage, and fourth-stage larvae: 4.6 mg/lb of body weight daily for 5 consecutive days.
(D)Fenbendazole paste 10 percent may be used concomitantly with approved forms of trichlorfon for the indications provided in paragraph (e)(1)(i)(A) of this section and for treating infections of stomach bots as provided in § 520.2520.
(ii)*Limitations* . Do not use in horses intended for human consumption.
(2)*Cattle* —(i) *Amount* . 2.3 mg/lb of body weight. Retreatment may be needed after 4 to 6 weeks.
(ii)*Indications for use* . For the removal and control of lungworms ( *Dictyocaulus viviparus* ), stomach worms ( *Haemonchus contortus* , *Ostertagia ostertagi* , *Trichostrongylus axei* ), and intestinal worms ( *Bunostomum phlebotomum* , *Nematodirus helvetianus* , *Cooperia punctata* , *C. oncophora* , *Trichostrongylus colubriformis* , and *Oesophagostomum radiatum* ).
(iii)*Limitations* . Cattle must not be slaughtered within 8 days following last treatment. Dated: April 24, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-8391 Filed 5-1-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05-06-112] RIN 1625-AA87 Security Zone; Severn River and College Creek, Annapolis, MD AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is establishing a permanent security zone on certain waters of the Severn River and College Creek. This action is necessary to ensure the security of high-ranking public officials and safeguard the public at large against terrorist acts or incidents during activities associated with the U.S. Naval Academy graduation ceremony, held annually on the Friday before the Memorial Day holiday in May. This rule prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the zone, unless specifically exempt under the provisions in this rule or granted specific permission from the Coast Guard Captain of the Port Baltimore. DATES: This rule is effective May 25, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05-06-112 and are available for inspection or copying at Commander, Coast Guard Sector Baltimore, 2401 Hawkins Point Road, Building 70, Waterways Management Division, Baltimore, Maryland 21226-1791 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Ronald Houck, at Coast Guard Sector Baltimore, Waterways Management Division, at telephone number
(410)576-2674 or
(410)576-2693. SUPPLEMENTARY INFORMATION: Regulatory Information On February 12, 2007, we published a notice of proposed rulemaking
(NPRM)entitled “Security Zone; Severn River and College Creek, Annapolis, MD” in the **Federal Register** (72 FR 6512). We received four letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . It took longer to respond to comments than expected. While we did not change the rule, in response to comments we examined ways to ensure that enforcement of the rule would cause minimal disruption to local vessel operators. Background and Purpose The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. Due to increased awareness that future terrorist attacks are possible the Coast Guard, as lead federal agency for maritime homeland security, has determined that the Captain of the Port Baltimore must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This security zone is part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks. In this particular rulemaking, to address the aforementioned security concerns before, during and after the annual U.S. Naval Academy graduation ceremony, and to take steps to prevent the catastrophic impact that a terrorist attack against high-ranking public officials and the public at large before, during and after this highly-publicized event would have on the public interest, the Captain of the Port, Baltimore, Maryland is establishing a security zone upon all waters of the Severn River, from shoreline to shoreline, bounded by a line drawn from Horseshoe Point, at 38°59′47.6″ N, 076°29′33.2″ W; eastward across the Severn river to a point located at 39°00′01.5″ N, 076°29′08.5″ W; and a line drawn from Biemans Point, at 38°59′14.4″ N, 076°28′30.1″ W; westward across the Severn River to a point 38°59′03.5″ N, 076°28′50.0″ W, located on the Naval Academy waterfront. This security zone includes the waters of College Creek eastward of the King George Street Bridge. This security zone will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against a large number of participants during the event. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on the U.S. Naval Academy before, during and after its annual graduation ceremony would have on the large number of participants, and the surrounding area and communities, a security zone is prudent for this type of event. Discussion of Comments and Changes The Coast Guard received a total of four pieces of written correspondence in response to the NPRM. No public meeting was requested and none was held. What follows is a review of, and the Coast Guard's response to, the issues and questions that were presented by these commenters concerning the proposed regulations.
(1)All commenters indicated that the proposed rule would effectively cut off the Severn River to all waterway traffic, including commercial and recreational vessels. We do not intend to restrict commercial and recreational vessels from transiting to or departing from areas outside the zone. Similar to past U.S. Naval Academy graduation ceremony activities, during the enforcement of the temporary security zone on the Severn River and College Creek in Annapolis, Maryland, the COTP will allow persons and vessels not deemed a security threat to be authorized by on-scene patrol vessels to enter, operate within, and depart the zone without loitering, anchoring, fishing and crabbing.
(2)Two commenters indicated that the proposed rule would be ineffective, since the U.S. Naval Academy graduation ceremony is held a considerable distance away from the Severn River and College Creek, at the Navy-Marine Corps Memorial Stadium. Activities associated with the U.S. Naval Academy graduation ceremony require that security measures be taken at locations other than during the commencement address.
(3)Two commenters indicated that the proposed rule would be insuffient, since the zone does not encompass all of the U.S. Naval Academy grounds. In an attempt to impose the least amount of adverse impact on waterway traffic, the security measures expected before, during, and after the U.S. Naval Academy graduation ceremony do not require further restrictions upon adjacent waterways. After reviewing all comments, no changes to the proposed regulatory text were made. Our final rule remains the same as our proposed rule. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This security zone will encompass only a small portion of the waterway and vessels or persons may be allowed to enter this zone with permission of the Captain of the Port, Baltimore, Maryland. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Severn River and College Creek from 7:30 a.m. to 2 p.m. on the Friday before the Memorial Day holiday annually. This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than seven hours, on one day, annually. Although the security zone will apply to the entire width of the river, smaller vessels not constrained by their draft, which are more likely to be small entities, may request permission from the Captain of the Port Baltimore, Maryland to enter the zone at telephone number
(410)576-2693, or through Coast Guard vessels enforcing the zone via Marine Band Radio, VHF channel 16 (156.8 MHz). Additionally, before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river to allow mariners to make alternative plans for transiting the affected areas. Because the zone is of limited size, it is expected that there will be minimal disruption to the maritime community. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. However, we received no requests for assistance from any small entities. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes a security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.509 to read as follows: § 165.509 Security Zone; Severn River and College Creek, Annapolis, MD.
(a)*Definitions.* For purposes of this section, the *Captain of the Port, Baltimore, Maryland* means the Commander, Coast Guard Sector Baltimore, Maryland or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port, Baltimore, Maryland to act on his or her behalf.
(b)*Location.* The following area is a security zone: All waters of the Severn River, from shoreline to shoreline, bounded by a line drawn from Horseshoe Point, at 38°59′47.6″ N, 076°29′33.2″ W; eastward across the Severn river to a point located at 39°00′01.5″ N, 076°29′08.5″ W; and a line drawn from Biemans Point, at 38°59′14.4″ N, 076°28′30.1″ W; westward across the Severn River to a point 38°59′03.5″ N, 076°28′50.0″ W, located on the Naval Academy waterfront. This security zone includes the waters of College Creek eastward of the King George Street Bridge (NAD 1983).
(c)*Regulations.*
(1)The general regulations governing security zones found in § 165.33 apply to the security zone described in paragraph
(b)of this section.
(2)Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port, Baltimore, Maryland.
(3)Persons or vessels requiring entry into or passage through the security zone must first request authorization from the Captain of the Port, Baltimore to seek permission to transit the area. The Captain of the Port, Baltimore, Maryland can be contacted at telephone number
(410)576-2693. The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port, Baltimore, Maryland and proceed at the minimum speed necessary to maintain a safe course while within the zone.
(d)*Enforcement.* The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State, and local agencies.
(e)*Enforcement period.* This section will be enforced annually on the Friday before the Memorial Day holiday in May from 7:30 a.m. to 2 p.m. local time. Dated: April 20, 2007. Brian D. Kelley, Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland. [FR Doc. E7-8447 Filed 5-1-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0323; FRL-8122-8] Glyphosate; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation amends the tolerance expression for glyphosate to include the dimethylamine
(DMA)salt of glyphosate. Dow AgroScienes, LLC requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective May 2, 2007. Objections and requests for hearings must be received on or before July 2, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0323. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. 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 in the electronic docket at *http://www.regulations.gov* ,or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Vickie Walters, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-305-5704; e-mail address: *walters.vickie.epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0323 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before July 2, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0323, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of February 7, 2007 (72 FR 5706) (FRL-8111-8), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7025) by Dow AgroSciences, LLC, 9330 Zionsville Rd, Indianapolis, IN 46268 . The petition requested that 40 CFR 180. 364
(a)be amended by adding glyphosate dimethylammoniun salt or dimethalamine salt of glyphosate (n-phosphonemethyl)glycine resulting from the application of glyphosate and the isopropylamine salt of glyphosate, ethanolamine salt of glyphosate, and the ammonium potassium salt of glyphosate. That notice referenced a summary of the petition prepared by Dow AgroSciences, LLC, the registrant, which has been placed in the public docket, *http://www.regulations.gov.* Dow requested this change to support registration of pesticide products containing the dimethylamine salt of glyphosate. There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA is revising the tolerance expression for 40 CFR 180.364
(a)to read: “Tolerances are established for residues of glyphosate *N* -(phosphonomethyl)glycine resulting from the application of glyphosate, the isoprpylamine salt of glyphosate, the ethanolamine salt of glyphosate, and the dimethylamine salt of glyphosate, the ammonium salt of glyphosate, the potassium salt of glyphosate, in or on the following food commodities:” This change corrects a spelling error that occurred in the notice of filing and deletes glyphosate dimethylammonium salt, as this is another name for the dimethylamine salt of glyphosate. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” These provisions were added to the FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned- revising the tolerance expression for 40 CFR 180.364
(a)to read: “Tolerances are established for residues of glyphosate *N* -(phosphonomethyl)glycine resulting from the application of glyphosate, the isopropylamine salt of glyphosate, the ethanolamine salt of glyphosate, the dimethylamine salt of glyphosate, the ammonium salt of glyphosate, and the potassium salt of glyphosate, in or on the following food commodities.” The DMA salt of glyphosate dissociates to glyphosate and the dimethylamine ion. Because the DMA salt disassociates to glyphosate acid, as does the currently listed salts, no increased tolerances or risks are expected from the addition of the dimethylamine salt of glyphosate to the tolerance expression. Toxicological profile and current risk assessments for glyphosate are discussed in the final rule published in the **Federal Register** of December 20, 2006 (71 FR 76180) (FRL-8105-9) which established tolerances for residues of glyphosate in or on sunflower; safflower; noni; pea, dry; and vegetable, legume, group 6 except soybean and pea, dry. Based on the risk assessments discussed in the notice above, EPA concludes that there is a reasonable certainty that no harm will result to the general population and to infants and children from aggregate exposure glyphosate residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methods are available for analysis of residues of glyphosate in or on plant and livestock commodities. These methods include gas liquid chromatography
(GLC)(Method I in Pesticides Analytical Manual (PAM II; the limit of detection is 0.05 part per million (ppm)) and High Performance Liquid Chromatography
(HPLC)with fluorometric detection. The HPLC procedure has undergone successful Agency validation, and was recommended for inclusion in PAM II. A gas chromatography/mass spectrometry (GC/MS) method for glyphosate crops has also been validated by EPA's Analytical Chemistry Laboratory (ACL). The HPLC and GC/MS methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits Codex and Mexican maximum residue levels
(MRLS)are established for residues of glyphosate per se and Canadian MRLs are established for the combined residues of glyphosate and animomethylphosphonic acid
(AMPA)on a variety raw agricultural commodities. No international harmonization issues are associated with the addition of the dimethylamine salt of glyphosate to the tolerance expression. V. Conclusion Therefore, tolerance expression for 40 CFR 180.364
(a)is revised to read: “Tolerances are established for residues of glyphosate *N* -(phosphonomethyl)glycine resulting from the application of glyphosate, the isoprpylamine salt of glyphosate, the ethanolamine salt of glyphosate, the dimethylamine salt of glyphosate, the ammonium salt of glyphosate, and the potassium salt of glyphosate, in or on the following food commodities.” VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4.) This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 17, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.364, paragraph
(a)is amended by revising the introductory text to read as follows: §180.364 Glyphosate; tolerances for residues.
(a)*General* . Tolerances are established for residues of glyphosate *N* -(phosphonomethyl)glycine resulting from the application of glyphosate, the isopropylamine salt of glyphosate, the ethanolamine salt of glyphosate, the dimethylamine salt of glyphosate, the ammonium salt of glyphosate, and the potassium salt of glyphosate in or on the following food commodities: [FR Doc. E7-8000 Filed 5-1-07; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1715; MB Docket No. 05-328; RM-10577; RM-11343; RM-11344] Radio Broadcasting Service; Broken Bow and Millerton, OK AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division: grants a counterproposal (RM-11343) filed by Charles Crawford to allot Channel 265C2 at Millerton, Oklahoma; dismisses a petition for rule making (RM-10577) per petitioner Jeraldine Anderson's request; and dismisses a counterproposal (RM-11344) per petitioner Katherine Pyeatt's request. Channel 265C2 can be allotted at Millerton, Oklahoma in compliance with the Commission's minimum distance separation requirements at 34-03-37 North Latitude and 94-54-04 West Longitude with a site restriction of 13.3 kilometers (8.2 miles) northeast of the community's reference. DATES: Effective May 31, 2007. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau,
(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order, * MB Docket No. 05-328, adopted April 13, 2007, and released April 16, 2007. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com. * The Commission will send a copy of this *Report and Order * in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see * 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Oklahoma, is amended by adding Millerton, Channel 265C2. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-8359 Filed 5-1-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1713; MB Docket No. 06-77; RM-11324; RM-11334] Radio Broadcasting Services; Burkesville, KY; Belle Meade, TN; Edinburgh, IN; Goodlettsville, TN; Greensburg, KY; Hendersonville, TN; Hodgenville, KY; Hope, IN; Horse Cave, KY; Lebanon, Lebanon Junction, Lewisport, Louisville, Lyndon, KY; Manchester and Millersville, TN; New Haven, KY; Springfield and St. Matthews, KY; Tell City and Versailles, IN AGENCY: Federal Communications Commission. ACTION: Final rule, dismissal of petition for reconsideration. SUMMARY: This document dismisses a Petition for Reconsideration filed by Indiana University and denies a Petition for Reconsideration filed by Indiana Community Radio Corporation both directed to the *Report and Order * in this proceeding. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau
(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the *Memorandum Opinion and Order * in MB Docket No. 06-77, adopted April 13, 2007, and released April 16, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com. * The Commission will not send a copy of this *Memorandum Opinion and Order * pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Pub. L. 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, Pub. L. 107-198, *see * 44 U.S.C. 3506(c)(4). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-8360 Filed 5-1-07; 8:45 am] BILLING CODE 6712-01-P 72 84 Wednesday, May 2, 2007 Proposed Rules DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-149856-03] RIN 1545-BD01 Dependent Child of Divorced or Separated Parents or Parents Who Live Apart AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: This document contains proposed regulations relating to a claim that a child is a dependent by parents who are divorced, legally separated under a decree of separate maintenance, separated under a written separation agreement, or who live apart at all times during the last 6 months of the calendar year. The proposed regulations reflect amendments under the Working Families Tax Relief Act of 2004 (WFTRA) and the Gulf Opportunity Zone Act of 2005 (GOZA). DATES: Written or electronic comments or a request for a public hearing must be received by July 31, 2007. ADDRESSES: Send submissions to CC:PA:LPD:PR (REG-149856-03), Room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-149856-03), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the IRS internet site via the Federal eRulemaking Portal at *http://www.regulations.gov* (indicate IRS and REG-149856-03). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Victoria Driscoll
(202)622-4920; concerning the submission of comments and/or a request for a hearing, Regina Johnson
(202)622-3175 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The IRS and the Department of the Treasury, as part of their continuing efforts to reduce paperwork and respondent burden, invite the general public to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data are provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents is properly assessed. The IRS and the Department solicit comments on the information collection request
(ICR)included in this proposed regulatory action. A copy of the ICR may be obtained by contacting the OMB Unit, SE:W:CAR:MP:T:T:SP, Internal Revenue Service, Room 6406, 1111 Constitution Ave., NW., Washington, DC 20224. The collection of information in this proposed rule is being reviewed by the Office of Management and Budget
(OMB)in accordance with the Paperwork Reduction Act of 1995 in connection with OMB Control Number 1545-0074. This control number is assigned to all information collections associated with individual tax returns (series 1040 and associated forms and schedules, and related regulatory information collections). Information collections associated with control number 1545-0074 are subject to annual public comment and approval by OMB in accordance with the Paperwork Reduction Act. The collection of information in these proposed regulations is in § 1.152-4(d). The information will help the IRS determine if a taxpayer may claim a child as a dependent when the parents of the child are divorced or separated or lived apart at all times during the last six months of a calendar year. The collection of information is required to obtain a benefit. The information will be reported on IRS Form 8332. The time needed to complete and file this form will vary depending on individual circumstances. The estimated burden for individual taxpayers filing this form is included in the estimates shown in the instructions for their individual income tax return. The public is invited to provide comments on this information collection, particularly comments that: Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility; Evaluate the burden of the proposed collection of information, including how the burden on those who are to respond may be minimized, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, such as permitting electronic submission of responses; and Enhance the quality, utility, and clarity of the information to be collected. Comments should be sent to the Office of Information and Regulatory Affairs, OMB, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Department of the Treasury. Comments may be submitted through July 2, 2007. Background This document contains proposed amendments to 26 CFR part 1 relating to section 152(e) and the entitlement of divorced or separated parents or parents who live apart at all times during the last 6 months of the calendar year to claim a child as a dependent. Under section 151, a taxpayer may deduct an exemption amount for a dependent. Section 152, as amended by section 201 of WFTRA (Public Law No. 108-311, 118 Stat. 1166), defines *dependent* in general as a qualifying child or a qualifying relative. Section 152(c), which defines qualifying child, states that the qualifying child must have the same principal place of abode as the taxpayer for more than one-half of the taxable year. Section 152(c)(1)(B). Section 152(c)(4)(B) provides that, if both parents of a child claim the child as a qualifying child and do not file a joint return together, the child is treated as the qualifying child of the parent with whom the child resides for the longer period of time during the taxable year. If the child resides with both parents for an equal amount of time during the taxable year, the child is treated as the qualifying child of the parent with the higher adjusted gross income. As part of the definition of a qualifying relative, section 152(d)(1)(C) requires that the taxpayer provide over one-half of the individual's support for the calendar year. The principal place of abode requirement of section 152(c)(1)(B), the tie-breaking rule of section 152(c)(4)(B), and the support rule of section 152(d)(1)(C), do not apply if section 152(e) applies. Section 152(e), which was amended by section 404 of GOZA (Public Law No. 109-135, 119 Stat. 2577), provides rules for parents who
(1)are divorced or legally separated under a decree of divorce or separate maintenance,
(2)are separated under a written separation agreement, or
(3)live apart at all times during the last 6 months of the calendar year. Under section 152(e)(1), a child of parents described in section 152(e) is treated as the qualifying child or qualifying relative of the noncustodial parent if the child receives over one-half of the child's support during the calendar year from the child's parents, the child is in the custody of one or both of the child's parents for more than one-half of the calendar year, and the requirements of section 152(e)(2) or section 152(e)(3) are met. The requirements of section 152(e)(2) are met if the custodial parent signs a written declaration that the custodial parent will not claim a child as a dependent for a taxable year and the noncustodial parent attaches the declaration to the noncustodial parent's tax return. The requirements of section 152(e)(3) are met if a qualified pre-1985 instrument allocates the dependency exemption to the noncustodial parent and the noncustodial parent provides at least $600 for the support of the child during the calendar year. Section 152(e)(4) defines *custodial parent* as the parent having custody for the greater portion of the calendar year and *noncustodial parent* as the parent who is not the custodial parent. If a child is treated as the qualifying child or qualifying relative of the noncustodial parent under section 152(e), then that parent may claim the child for purposes of the dependency deduction under section 151 and the child tax credit under section 24, if the other requirements of those provisions are met. Whether a child is a qualifying child for purposes of head of household filing status, the child and dependent care credit, or the earned income credit, is determined without regard to section 152(e). See sections 2(b)(1)(A)(i) (head of household), 21(e)(5) (dependent care credit), and 32(c)(3) (earned income credit). The special rule of section 152(e)(1) for parents living apart during the last six months of the calendar year was added by section 423(a) of the Deficit Reduction Act of 1984 (Public Law No. 98-369, 98 Stat. 494) (the 1984 Act). The 1984 Act also amended the exceptions in section 152(e)(2). Regulations under section 152(e)(1) and
(2)(§ 1.152-4 of the Income Tax Regulations) were published on March 20, 1971, and amended on October 15, 1971, and August 20, 1979. Temporary regulations reflecting the amendments made by the 1984 Act (§ 1.152-4T) were published on August 31, 1984. Explanation of Provisions These proposed regulations update § 1.152-4 by deleting obsolete provisions, revising language to improve clarity, and incorporating the provisions of § 1.152-4T. The proposed regulations also provide guidance on issues that have arisen in the administration of section 152(e). 1. Definition of Custodial Parent Under the proposed regulations, the custodial parent is the parent with whom the child resides for the greater number of nights during the calendar year. The noncustodial parent is the parent who is not the custodial parent. The proposed regulations further provide that, if a child is temporarily absent from a parent's home for a night, the child is treated as residing with the parent with whom the child would have resided for the night. However, if the child resides with neither parent for a night, for example because another party is entitled to custody of the child for that night, the child is treated as not residing with either parent for that night. Comments are requested specifically on alternative methods of allocating nights when a child resides with neither parent and whether nights residing with neither parent should not be allocated to either parent. The proposed regulations provide a tie-breaking rule that, if a child resides with each parent for an equal number of nights during the calendar year, the parent with the higher adjusted gross income for the calendar year is treated as the custodial parent. Cf. section 152(c)(4)(B). Sections 151 and 152, not state law, determine whether a divorced or separated parent may claim an exemption for a child for Federal income tax purposes. A state court order or decree does not operate to allocate the federal exemption between parents. 2. Requirements for Release of the Right To Claim a Child Section 152(e)(2) provides that a custodial parent may release a claim to an exemption for a child by signing a written declaration (in such form and manner as the Secretary may prescribe by regulations) that he or she will not claim the child as a dependent. The noncustodial parent must attach the written declaration to the tax return to claim a dependency exemption for the child. Section 1.152-4T, Q&A-3, states that the written declaration may be made on a form developed by the IRS. Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, currently is used for this purpose. The temporary regulations further provide that any declaration not made on that form must conform to the substance of the form. Section 1.152-4T, Q&A-4, states that a claim to an exemption may be released for a single year, for a number of years, or for all future years, as specified in the declaration. The proposed regulations incorporate these rules and further provide that a written declaration must include an unconditional statement that the custodial parent will not claim the child as a dependent for the specified year or years. A statement is unconditional if it does not expressly condition the custodial parent's waiver of the right to claim the child as a dependent on the noncustodial parent's meeting of an obligation such as the payment of support. The written declaration must specify the year or years for which the release is effective. A written declaration that does not specify a year or years has no effect. A written declaration that specifies all future years is treated as specifying the first taxable year after the taxable year the release is executed and all subsequent taxable years. A court order or decree may not serve as the written declaration required by section 152(e)(2). 3. Revocation of Release of Claim The proposed regulations provide that a custodial parent who released the right to claim a child may revoke the release for future taxable years by providing written notice of the revocation to the other parent. The revocation may be made on a form designated by the IRS, such as Form 8332, which may be revised for this purpose, or by a written declaration that conforms to the substance of that form, whether or not the release was made on the form, and must specify the year or years for which the revocation is effective. A revocation that does not specify a year or years has no effect. A revocation that specifies all future years is treated as specifying the first taxable year after the taxable year the revocation is executed and all subsequent taxable years. The revocation may be effective no earlier than the taxable year that begins in the first calendar year after the calendar year in which the parent revoking the release provides notice of the revocation to the other parent. The parent revoking the release must attach the original or a copy of the revocation to the parent's tax return for any taxable year the parent claims the exemption as a result of the revocation, and keep a copy of the revocation and evidence of delivery of written notice of revocation to the noncustodial parent. 4. Never Married Parents In *King* v. *Commissioner* , 121 T.C. 24 (2003), the United States Tax Court decided that section 152(e) applies to parents who had never married each other. The parents lived apart for the years at issue, and each had claimed a dependency deduction for the same child. In concluding that the Form 8332 executed by the custodial parent released her claim to the deduction, the court determined that section 152(e)(1)(A)(iii), which refers to parents who “live apart at all times during the last 6 months of the calendar year,” encompasses both married parents and parents who never married each other. The proposed regulations follow the decision in *King* v. *Commissioner.* 5. Effective Date The regulations are proposed to apply to taxable years beginning after the date the regulations are published as final regulations in the **Federal Register** . Special Analyses This notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Requests for a Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the **Federal Register** . Drafting Information The principal author of these regulations is Victoria J. Driscoll of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendment to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by adding an entry to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.152-4 also issued under 26 U.S.C. 152(e). **Par. 2.** Section 1.152-4 is revised to read as follows: § 1.152-4 Special rule for a child of divorced or separated parents or parents who live apart.
(a)*In general* . A taxpayer may claim a dependency deduction for a child (as defined in section 152(f)(1)) only if the child is the qualifying child of the taxpayer under section 152(c) or the qualifying relative of the taxpayer under section 152(d). Section 152(c)(4)(B) provides that a child who is claimed as a qualifying child by parents who do not file a joint return together is the qualifying child of the parent with whom the child resided for a longer period of time during the taxable year or, if the child resided with both parents for an equal period of time, of the parent with the higher adjusted gross income. However, a child is treated as the qualifying child or qualifying relative of the noncustodial parent if the custodial parent releases the claim to the exemption under section 152(e) and this section.
(b)*Release of claim by custodial parent* —(1) *In general* . Under section 152(e)(1), notwithstanding section 152(c)(1)(B), (c)(4)(B), and (d)(1)(C), a child is treated as the qualifying child or qualifying relative of the noncustodial parent (as defined in paragraph
(c)of this section) if the requirements of paragraphs (b)(2) and (b)(3) of this section are met.
(2)*Support, custody, and parental status* . The requirements of this paragraph (b)(2) are met if the parents of the child provide over one-half of the child's support for the calendar year, the child is in the custody of one or both parents for more than one-half of the calendar year, and the parents—
(i)Are divorced or legally separated under a decree of divorce or separate maintenance;
(ii)Are separated under a written separation agreement; or
(iii)Live apart at all times during the last 6 months of the calendar year whether or not they are or were married.
(3)*Release of claim to child* . The requirements of this paragraph (b)(3) are met if—
(i)The custodial parent signs a written declaration that the custodial parent will not claim the child as a dependent for the taxable year beginning in that calendar year and the noncustodial parent attaches the declaration to the noncustodial parent's return for the taxable year; or
(ii)A qualified pre-1985 instrument, as defined in section 152(e)(3)(B), effective for the taxable year beginning in that calendar year, provides that the noncustodial parent is entitled to the dependency exemption for the child and the noncustodial parent provides at least $600 for the support of the child during the calendar year.
(c)*Custodial parent* —(1) *In general* . The *custodial parent* is the parent with whom the child resides for a greater number of nights during the calendar year, and the *noncustodial parent* is the parent who is not the custodial parent.
(2)*Absences* . For purposes of this paragraph (c), when a child resides with neither parent for a night, the child is treated as residing with the parent with whom the child would have resided for the night but for the absence. However, if the child would have resided with neither parent for a night during an absence (for example, because a court awarded custody of the child to a third party for the period of absence), the child is treated as residing with neither parent for the night of the absence.
(3)*Special rule for equal number of nights* . If a child is in the custody of one or both parents for more than one-half of the calendar year and the child resides with each parent for an equal number of nights during the calendar year, the parent with the higher adjusted gross income for the calendar year is treated as the custodial parent.
(d)*Written declaration* —(1) *Form of declaration* —(i) *In general* . The written declaration under paragraph (b)(3)(i) of this section must constitute the custodial parent's unconditional release of the parent's claim to the child as a dependent for the year or years for which the declaration is effective. A declaration is unconditional if it does not expressly condition the custodial parent's release of the right to claim the child as a dependent on the noncustodial parent's meeting of an obligation such as the payment of support. A written declaration must name the noncustodial parent to whom the exemption is released. A written declaration must specify the year or years for which it is effective. A written declaration that does not specify a year or years has no effect. A written declaration that specifies all future years is treated as specifying the first taxable year after the taxable year of execution and all subsequent taxable years. A court order or decree may not serve as the written declaration.
(ii)*Form designated by IRS* . A written declaration may be made on a form designated by the IRS (currently Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents). A written declaration not on the form designated by the IRS must conform to the substance of that form.
(2)*Attachment to return* . A noncustodial parent must attach the original written declaration to the parent's return for the taxable year in which the child is claimed as a dependent. If a release of a claim to a child is for more than one year, the noncustodial parent must attach the original written declaration to the parent's return for the first taxable year for which the release is effective. The noncustodial parent must attach a copy of the written declaration to the parent's return for each subsequent taxable year for which the noncustodial parent claims the child as a dependent.
(3)*Revocation of written declaration* —(i) *In general* . A written declaration described in paragraph (d)(1) of this section may be revoked by providing written notice of the revocation to the other parent. The revocation may be effective no earlier than the taxable year that begins in the first calendar year after the calendar year in which the parent revoking the written declaration provides the written notice.
(ii)*Form of revocation* . The revocation may be made on a form designated by the IRS whether or not the written declaration was made on a form designated by the IRS. A revocation not on that form must conform to the substance of the form. The revocation must specify the year or years for which the revocation is effective. A revocation that does not specify a year or years has no effect. A revocation that specifies all future years is treated as specifying the first taxable year after the taxable year the revocation is executed and all subsequent taxable years.
(iii)*Attachment to return* . The custodial parent must attach the original revocation to the parent's return for the taxable year for which the custodial parent claims a child as a dependent. If a revocation is for more than one year, the custodial parent must attach the original revocation to the parent's return for the first taxable year for which the revocation is effective and a copy of the revocation to the parent's return for each subsequent taxable year for which the custodial parent claims the child as a dependent. The custodial parent must keep a copy of the revocation and evidence of delivery of written notice of the revocation to the noncustodial parent.
(e)*Coordination with other sections* . A child who is treated as the qualifying child or qualifying relative of the noncustodial parent under section 152(e) and this section is treated as a dependent of both parents for purposes of sections 105(b), 132(h)(2)(B), and 213(d)(5).
(f)*Examples* . The provisions of this section are illustrated by the following examples which assume that each taxpayer's taxable year is the calendar year, one or both of the child's parents provide over one-half of the child's support for the calendar year, the child is in the custody of one or both parents for more than one-half of the calendar year, and the child otherwise meets the requirements of a qualifying child under section 152(c). In addition, in each of the examples, there is no qualified pre-1985 instrument in effect. The examples are as follows: Example 1.
(i)B and C, the parents of Child, are divorced. In 2007, Child resides with B for 7 months and with C for 5 months. B signs a Form 8332 for 2007 allowing C to claim Child as a dependent for that year.
(ii)Under paragraph
(c)of this section, B is the custodial parent of Child in 2007 because B is the parent with whom Child resides for the greater number of nights in 2007. Because B signs a Form 8332, under paragraph
(b)of this section, Child is treated as the qualifying child of C if C attaches the Form 8332 to C's 2007 return. Example 2.
(i)D and E, the parents of Child, are divorced. In 2007, Child resides with D for 7 months and with E for 5 months. D, the custodial parent, does not execute a Form 8332 or similar declaration for 2007.
(ii)Because D does not execute a Form 8332 or similar declaration for 2007, section 152(e) and this section do not apply to determine whether Child is treated as the qualifying child of D or E. Instead, whether Child is the qualifying child of D or E is determined under section 152(c). Example 3. F and G, who never married, are the parents of Child. In 2007, Child spends alternate weeks residing with F and G. During a week when Child is residing with F, F gives Child permission to spend a night at the home of a friend. Under paragraph (c)(2) of this section, the night Child spends at the friend's home is treated as a night in which Child resides with F for purposes of determining whether Child is residing with F or G for the greater number of nights in the calendar year. Example 4. J and K are the divorced parents of Child. In 2007, Child spends alternate periods residing with J or K. In August of 2007, J and Child spend 10 nights together in a hotel while on vacation. Under paragraph
(c)of this section, the 10 nights when J and Child are on vacation are treated as nights in which Child resides with J for purposes of determining whether Child is residing with J or K for the greater number of nights in the calendar year. Example 5.
(i)In 2006, L and M, the parents of Child, execute a written separation agreement. The agreement provides that Child will live with L and that M will make monthly child support payments to L. The agreement further provides that L will not claim Child as a dependent in 2007 and in subsequent alternate years. The agreement does not expressly condition L's agreement not to claim Child as a dependent on M's payment of child support or any other condition. The agreement contains all the other information requested on Form 8332. M attaches the agreement to M's tax returns for 2007 and 2009.
(ii)In 2008, M fails to provide child support for Child, and L signs a Form 8332 revoking the release of L's right to claim Child as a dependent for 2009 and delivers a copy of the Form 8332 to M. L attaches the Form 8332 revoking the release to L's tax return for 2009 and keeps a copy of the revocation and evidence of delivery of written notice to M.
(iii)M may claim Child as a qualifying child for 2007 because L releases the right to claim Child as a dependent under paragraph (b)(3) of this section by executing the separation agreement, and M attaches the separation agreement to M's tax return in accordance with paragraphs (d)(1) and (d)(2) of this section. The separation agreement qualifies as a written declaration under paragraph (d)(1) of this section because L's agreement not to claim Child as a dependent is not conditioned on M's payment of support or meeting of any other obligation, and the agreement otherwise conforms to the substance of Form 8332. For 2009, only L may claim Child as a qualifying child because in 2008 L revokes the release of the claim in accordance with paragraph (d)(3) of this section, and the revocation takes effect in 2009, the taxable year that begins in the first calendar year after L provides written notice of the revocation to M. Example 6. The facts are the same as *Example 5* , except that the agreement expressly states that L agrees not to claim Child as a dependent only if M is current in the payment of support for Child at the end of the calendar year. The separation agreement does not qualify as a written declaration under paragraph (d)(1) of this section because L's agreement not to claim Child as a dependent is conditioned on M's payment of support. Therefore, M may not claim Child as a qualifying child in 2007 or 2009. Example 7.
(i)N and P are the divorced parents of Child. Child resides with N for ten months and with P for two months in each year 2007 through 2009. In 2007, N provides a written statement to P that provides that N will not claim Child as a dependent but does not specify a year or years. P attaches the statement to P's returns for 2007 through 2009.
(ii)Because the written statement provided by N does not specify the year or years for which P may claim Child as a qualifying child, under paragraph (d)(1) of this section, the written statement is not a written declaration that conforms to the substance of Form 8332. Therefore, P may not claim Child as a qualifying child in 2007 through 2009. Example 8.
(i)R and S are the divorced parents of Child. Child resides solely with R. The divorce decree requires S to pay child support to R and requires R to execute a Form 8332 to release the right to claim Child as a qualifying child to S. R fails to sign a Form 8332 for 2007, and S attaches an unsigned Form 8332 to S's return for 2007.
(ii)Child is the qualifying child of R for 2007. The order in the divorce decree requiring R to execute a Form 8332 is ineffective to allocate the right to claim Child as a qualifying child to S. Furthermore, under paragraph (d)(1) of this section, the unsigned Form 8332 does not conform to the substance of Form 8332. Therefore, S may not claim Child as a qualifying child in 2007.
(iii)If, however, R executes a Form 8332 for 2007 and S attaches the Form 8332 to S's return, then S may claim Child as a qualifying child for 2007 under paragraph (d)(1) of this section.
(g)*Effective date* . This section applies to taxable years beginning after the date these regulations are published as final regulations in the **Federal Register** . Kevin M. Brown, Deputy Commissioner for Services and Enforcement. [FR Doc. E7-8378 Filed 5-1-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-014] RIN 1625-AA00 Safety Zone; Baileys Harbor Fireworks, Baileys Harbor, WI AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish a temporary safety zone on Baileys Harbor. This zone is intended to restrict vessels from a portion of Baileys Harbor during the Baileys Harbor July 5, 2007 fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays. DATES: Comments and related material must reach the Coast Guard on or before May 17, 2007. ADDRESSES: You may mail comments and related material to Commander, Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207. The Sector Lake Michigan Prevention Department 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 Sector Lake Michigan Prevention Department between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. 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 [CGD09-07-014], 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 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. But you may submit a request for a meeting by writing to the Sector Lake Michigan Prevention Department at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Lake Michigan has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks. The comment period for this rule has been abbreviated to 15 days in order to provide a full 30 day notice period after publication before the rule becomes effective. Discussion of Proposed Rule A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Baileys Harbor fireworks display. The fireworks display will occur between 9 p.m. (local) and 11 p.m. (local) on July 5, 2007. The safety zone for the fireworks will encompass all waters of Lake Michigan, Baileys Harbor, within the arc of a circle with a 600-foot radius from the fireworks launch site located in position 45°04′03″ N, 087°06′08″ W (NAD 83). All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard will only use this safety zone for two hours on the date specified. This safety zone has been designed to allow vessels to transit unrestricted to portions of the harbor not affected by the zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this zone. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Baileys Harbor on Lake Michigan off Baileys Harbor, WI, between 9 p.m. (local) and 11 p.m. (local) on July 5, 2007. The safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only 2 hours. Vessel traffic can safely pass around the safety zone. 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 (Public Law 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 CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect the 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 and Department of Homeland Security Management Directive 5100.1, which guide 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This proposed rule establishes a regulated navigation area and as such is covered by this paragraph. A preliminary “Environmental Analysis Check List” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for Part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T09-014 to read as follows: § 165.T09-014 Safety zone; Baileys Harbor Fireworks, Baileys Harbor, WI.
(a)*Location* . The following area is a temporary safety zone: all waters of Lake Michigan, Baileys Harbor, within the arc of a circle with a 600-foot radius from the fireworks launch site located in position 45°04′03″ N, 087°06′08″ W (NAD 83).
(b)*Effective period* . This regulation is effective from 9 p.m. to 11 p.m. on July 5, 2007.
(c)*Regulations* .
(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his designated on-scene representative.
(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan or his on-scene representative. Dated: April 17, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-8445 Filed 5-1-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0036; FRL-8120-3] Chloroneb, Cypermethrin, Methidathion, Nitrapyrin, Oxyfluorfen, Pirimiphos-methyl, Sulfosate, Tebuthiuron, Thiabendazole, Thidiazuron, and Tribuphos; Proposed Tolerance Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revoke certain tolerances for the fungicides chloroneb and thiabendazole; the herbicide sulfosate; the defoliant thidiazuron; the insecticides cypermethrin, methidathion, and pirimiphos-methyl; and the soil microbiocide nitrapyrin. Also, EPA is proposing to modify certain tolerances for the fungicides chloroneb and thiabendazole; the herbicides oxyfluorfen and tebuthiuron; the defoliants thidiazuron and tribuphos; the insecticides cypermethrin, methidathion, and pirimiphos-methyl; and the soil microbiocide nitrapyrin. In addition, EPA is proposing to establish new tolerances for the fungicides chloroneb and thiabendazole; the herbicide oxyfluorfen; the defoliants thidiazuron and tribuphos; the insecticides cypermethrin, methidathion, and pirimiphos-methyl; and the soil microbiocide nitrapyrin. The regulatory actions proposed in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q). DATES: Comments must be received on or before July 2, 2007. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2007-0036, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2007-0036. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The Federal regulations.gov website 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 regulations.gov, your e- mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Joseph Nevola, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone number:
(703)308-8037; e-mail address: *nevola.joseph@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. C. What Can I do if I Wish the Agency to Maintain a Tolerance that the Agency Proposes to Revoke? This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the **Federal Register** under FFDCA section 408(f) if needed. The order would specify data needed and the time frames for its submission, and would require that within 90 days some person or persons notify EPA that they will submit the data. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA. EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings. II. Background A. What Action is the Agency Taking? EPA is proposing to revoke, remove, modify, and establish specific tolerances for residues of the fungicides chloroneb and thiabendazole; the herbicides oxyfluorfen, sulfosate, and tebuthiuron; the defoliants thidiazuron and tribuphos; the insecticides cypermethrin, methidathion, and pirimiphos-methyl; and the soil microbiocide nitrapyrin in or on commodities listed in the regulatory text. EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision
(RED)and Report of the Food Quality Protection Act
(FQPA)Tolerance Reassessment Progress and Risk Management Decision
(TRED)for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419, telephone 1
(800)490-9198; fax 1
(513)489-8695; internet at *http://www.epa.gov/ncepihom/* and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, telephone 1
(800)553-6847 or
(703)605-6000; internet at *http://www.ntis.gov/* . Electronic copies of REDs and TREDs are available on the internet for chloroneb, cypermethrin, nitrapyrin, oxyfluorfen, tebuthiuron, and thidiazuron in public dockets EPA-HQ-OPP-2004-0369, EPA-HQ-OPP-2005-0293, EPA-HQ-OPP-2004-0283, EPA-HQ-OPP-2002-0255, EPA-HQ-OPP-2002-0146, and EPA-HQ-OPP-2004-0382, respectively, at *http://www.regulations.gov/* and for methidathion, pirimiphos-methyl, thiabendazole, and tribuphos at *http://www.epa.gov/pesticides/reregistration/status.htm* . A RED for sulfosate was not needed because it was registered after November 1, 1984 and not subject to reregistration eligibility, and because its tolerances were reassessed at the time of the addition of a tolerance for a new use, as described below in Unit II.A., a TRED document was no longer needed for the purpose of tolerance reassessment. The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies, provided that the tolerance is safe. The evaluation of whether a tolerance is safe is a separate inquiry. EPA recommends the raising of a tolerance when data show that: • Lawful use (sometimes through a label change) may result in a higher residue level on the commodity; and • The tolerance remains safe, notwithstanding increased residue level allowed under the tolerance. In REDs, Chapter IV on “Risk management, Reregistration, and Tolerance reassessment” typically describes the regulatory position, FQPA assessment, cumulative safety determination, determination of safety for U.S. general population, and safety for infants and children. In particular, the human health risk assessment document which supports the RED describes risk exposure estimates and whether the Agency has concerns. In TREDs, the Agency discusses its evaluation of the dietary risk associated with the active ingredient and whether it can determine that there is a reasonable certainty (with appropriate mitigation) that no harm to any population subgroup will result from aggregate exposure. EPA also seeks to harmonize tolerances with international standards set by the Codex Alimentarius Commission, as described in Unit III. Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and paper copies for chloroneb, cypermethrin, nitrapyrin, tebuthiuron, and thidiazuron can be found under their respective public docket numbers, identified in Unit II.A. Paper copies for methidathion, oxyfluorfen, pirimiphos-methyl, thiabendazole, and tribuphos are available in the public docket for this rule. Electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at *http://www.regulations.gov/* . You may search for docket number EPA-HQ-OPP-2007-0036, then click on that docket number to view its contents. EPA has determined that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable. EPA has found that the tolerances that are proposed in this document to be modified, are safe; i.e., that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C). (Note that changes to tolerance nomenclature do not constitute modifications of tolerances). These findings are discussed in detail in each RED or TRED. The references are available for inspection as described in this document under SUPPLEMENTARY INFORMATION . In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person, in comments on the proposal, indicates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated. 1. *Chloroneb* . Currently, chloroneb tolerances are set forth in 40 CFR 180.257(a) for residues of chloroneb and its metabolite 2,5-dichloro-4-methoxyphenol, calculated as chloroneb. The Agency determined, as described in the Residue Chemistry Chapter document, that residues of concern include the conjugate of 2,5-dichloro-4-methoxyphenol. Therefore, EPA is proposing to revise the tolerance expression to include the conjugated as well as free metabolite in 40 CFR 180.257(a) as follows: Tolerances are established for residues of the fungicide chloroneb (1,4-dichloro-2,5-dimethoxybenzene) and its metabolite 2,5-dichloro-4-methoxyphenol (free and conjugated), calculated as chloroneb, in or on the following raw agricultural commodities. Also, in 40 CFR 180.257(a), EPA is proposing to remove the “(N)” designation from all entries to conform to current Agency administrative practice, where the “(N)” designation means negligible residues. The tolerance in 40 CFR 180.257(a) for chloroneb residues of concern in or on cotton, forage should be revoked because the Agency no longer considers this commodity to be a significant livestock feed item, and therefore, is no longer needed. Consequently, EPA is proposing to revoke the tolerance in 40 CFR 180.257(a) on cotton, forage. Based on available data from beans, undelinted cottonseed, soybeans, sugarbeet roots and sugarbeet tops that showed combined chloroneb residues of concern at <0.1 ppm, EPA determined that these tolerances should be increased from 0.1 ppm and set at the limit of quantitation
(LOQ)of 0.2 ppm. Therefore, the Agency is proposing in 40 CFR 180.257(a) to increase the tolerances to 0.2 ppm for the following: Bean and revise to bean, dry, seed and bean, succulent; beet, sugar, roots; beet, sugar, tops; cotton, undelinted seed; and soybean and revise to soybean, seed. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the translation of available data from cowpea forage and soybean forage that showed combined chloroneb residues of concern as high as <2.0 ppm, EPA determined that the expected residues on cowpea hay and soybean hay would be <2.0 ppm and tolerances on cowpea hay and soybean hay should be established at 2.0 ppm. Therefore, the Agency is proposing in 40 CFR 180.257(a) to establish tolerances on cowpea, hay and soybean, hay, each at 2.0 ppm. Based on cotton metabolism data that showed combined chloroneb residues of concern from cottonseed treatment were as high as 0.256 ppm on cotton gin byproducts, EPA determined that a tolerance on cotton gin byproducts should be established at 1.0 ppm. Therefore, the Agency is proposing in 40 CFR 180.257(a) to establish a tolerance on cotton, gin byproducts at 1.0 ppm. In addition, EPA is proposing to revise commodity terminology in newly recodified 40 CFR 180.257(a) to conform to current Agency practice as follows: “bean, forage” to “cowpea, forage.” There are no Codex MRLs for chloroneb. 2. *Cypermethrin* . Based on available cattle exaggerated feeding data (0.83x and 2.8x maximum theoretical dietary burden or MTDB) for cypermethrin, EPA calculated that the maximum expected residues in muscle, fat, kidney, liver, whole milk and milk cream at 1x MTDB to be 0.084 ppm, 0.699 ppm, 0.025 ppm, <0.0036 ppm, 0.084 ppm, and 0.378 ppm, respectively. Therefore, the Agency determined that tolerances for the meat of cattle, goats, horses and sheep should be increased from 0.05 to 0.2 ppm in order to harmonize with Codex, and tolerances for the fat of cattle, goats, horses, and sheep should be increased from 0.05 to 1.0 ppm. In addition, the Agency determined that the tolerance level in 40 CFR 180.418(a)(2) for zeta-cypermethrin on milk fat (reflecting 0.10 in whole milk) at 2.5 ppm (based on a slightly higher theoretical dietary burden for cattle than cypermethrin) is also appropriate for cypermethrin and therefore the tolerance on milk should be revised to milk fat and increased from 0.05 to 2.5 ppm. Consequently, EPA is proposing to increase the tolerances in 40 CFR 180.418(a)(1) on cattle, meat; goat, meat; horse, meat; and sheep, meat to 0.2 ppm; cattle, fat; goat, fat; horse, fat; and sheep, fat to 1.0 ppm; and milk to 2.5 ppm and revise the commodity terminology to milk, fat (reflecting 0.10 in whole milk). The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available cattle exaggerated feeding data and a 10-fold lower MTDB of cypermethrin for swine in comparison with cattle, EPA calculated that the maximum expected residues in muscle, fat, kidney, and liver of swine at 1x MTDB to be 0.0084 ppm, 0.0699 ppm, 0.0025 ppm, and <0.00036 ppm, respectively. Therefore, the tolerances on hog fat should be increased from 0.05 to 0.1 ppm in 40 CFR 180.418(a)(1) and decreased from 1.0 to 0.1 ppm in 40 CFR 180.418(a)(2). Consequently, EPA is proposing to increase the tolerance in 40 CFR 180.418(a)(1) on hog, fat to 0.1 ppm and decrease the tolerance on hog, fat in 40 CFR 180.418(a)(2) to 0.1 ppm. Also, while the Agency determined that the tolerance on hog meat is adequate at 0.05 ppm in 40 CFR 180.418(a)(1), it believes that it should be decreased from 0.2 to 0.05 ppm in 40 CFR 180.418(a)(2). Consequently, EPA is proposing to decrease the tolerance on hog, meat in 40 CFR 180.418(a)(2) to 0.05 ppm. In addition, because the Agency expects cypermethrin residues on kidney and liver to be below the livestock method LOQ of 0.05 ppm, it believes that there is no reasonable expectation of detecting finite residues of cypermethrin or zeta-cypermethrin residues in or on hog, meat byproducts and therefore the tolerances are no longer needed under 40 CFR 180.6(a)(3). Consequently, the Agency is proposing to revoke the tolerances on hog, meat byproducts in both 40 CFR 180.418(a)(1) and (a)(2). The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available poultry exaggerated feeding data (14.3x MTDB) of cypermethrin, EPA calculated that the maximum expected residues in kidney, liver, and muscle of poultry at 1x MTDB is each at <0.0007 ppm, which is below the livestock method LOQ of 0.05 ppm and LOD of 0.01 ppm, 0.02 ppm in poultry fat, and 0.0086 ppm in egg. Therefore, EPA determined that there is no reasonable expectation of detecting finite residues of cypermethrin in poultry meat or meat byproducts and the poultry meat byproducts tolerance in 180.418(a)(2) is no longer needed under 40 CFR 180.6(a)(3). However, the Agency believes that tolerances of 0.05 ppm should be established on egg, poultry fat, and poultry meat in order to harmonize with Codex. Consequently, the Agency is proposing to revoke the tolerances in 40 CFR 180.418(a)(2) on poultry, meat byproducts and establish tolerances in 40 CFR 180.418(a)(1) on egg; poultry, fat; and poultry, meat at 0.05 ppm. Based on available field trial data that showed cypermethrin residues as high as 3.4 ppm in or on head lettuce, EPA determined that the tolerance should be decreased from 10.0 to 4.0 ppm. Also, since the use of zeta-cypermethrin on head lettuce is covered by the tolerance on leafy vegetables except Brassica, the Agency has determined that the tolerance on head lettuce is no longer needed in 40 CFR 180.418(a)(2). Therefore, the Agency is proposing in 40 CFR 180.418(a)(1) to decrease the tolerance on lettuce, head to 4.0 ppm and revoke the tolerance on lettuce, head in 40 CFR 180.418(a)(2). Based on data that showed cypermethrin residues as high as 8.84 ppm in or on cotton gin byproducts, EPA determined that a tolerance on cotton gin byproducts should be established at 11.0 ppm. Therefore, the Agency is proposing in 40 CFR 180.418(a)(1) to establish a tolerance on cotton, gin byproducts at 11.0 ppm. Because the tolerance expired on June 30, 2005, EPA is proposing to remove the entry for the time-limited tolerance on mustard seed from 40 CFR 180.418(b). In addition, EPA is proposing to revise commodity terminology to conform to current Agency practice as follows: in 40 CFR 180.418(a)(1), “onion, dry bulb” to “onion, bulb;” and in 40 CFR 180.418(a)(2), “dried, shelled pea and bean, except soybean (Crop subgroup 6C)” to “pea and bean, dried shelled, except soybean, subgroup 6C;” “edible podded legume vegetables (Crop subgroup 6A)” to “vegetable, legume, edible podded, subgroup 6A;” “leafy vegetables except Brassica” to “vegetable, leafy, except brassica, group 4;” “onion, dry bulb” to “onion, bulb;” “sorghum, forage” to “sorghum, grain, forage;” “sorghum, grain” to “sorghum, grain, grain;” “succulent, shelled pea and bean (Crop subgroup 6B)” to “pea and bean, succulent shelled, subgroup 6B;” and “vegetable, fruiting, except cucurbits (Crop group 8)” to “vegetable, fruiting, group 8.” Because there is an existing tolerance on grass forage, in this case via a group tolerance, there is no need to include sorghum, forage, forage in the revision of the commodity terminology for sorghum forage. In the **Federal Register** of December 13, 2006 (71 FR 74802) (FRL-8064-3), EPA published a direct final rule which finalized certain pesticide tolerance nomenclature changes. In both 40 CFR 180.418(a)(1) and (a)(2), the changes from “Brassica leafy” to “Vegetable, brassica, leafy group 5” were not correct because there are existing tolerances for subgroup 5A and therefore the terminology “Brassica, leafy” should have been changed so as to denote subgroup 5B. Therefore, EPA is proposing to revise “Vegetable, brassica, leafy group 5” (formerly “Brassica, leafy”) to “Brassica, leafy greens, subgroup 5B” in both 40 CFR 180.418(a)(1) and (2). The proposed tolerance actions herein for cypermethrin and zeta-cypermethrin, to implement the recommendations of the cypermethrin RED, reflect use patterns in the U.S. which support a different tolerance than the Codex value on Brassica vegetables, cottonseed, head lettuce, and milk because of differences in good agricultural practices and determination of secondary residue levels in livestock commodities. However, compatibility exists for bulb onions and meat byproducts, and will exist between the proposed reassessed U.S. tolerances and Codex MRLs for cypermethrin residues in or on egg, poultry meat; and meat of cattle, goats, horses, and sheep. 3. *Methidathion* . Because residues of methidathion in or on pecans and walnut at 0.05 ppm and peach at 0.05 ppm are covered by the existing group tolerance on nut (0.05 ppm) and stone fruit (0.05 ppm), respectively, EPA determined that these individual tolerances are no longer needed, and therefore should be revoked. Consequently, EPA is proposing to revoke the tolerances in 40 CFR 180.298(a) on peach, pecan, and walnut. Based on available data that showed residues of methidathion as high as 3.6 ppm in or on oranges, EPA determined that the tolerance on citrus fruit (except mandarins) should be increased from 2.0 to 4.0 ppm. Therefore, the Agency is proposing in 40 CFR 180.298(a) to revise the tolerance on fruit, citrus (except mandarins) to fruit, citrus, group 10, except tangerine and increase the tolerance to 4.0 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Also, based on available data that showed residues of methidathion concentrate an average of 118x in oil processed from methidathion-treated oranges, EPA determined that a tolerance on citrus oil should be established at 420.0 ppm. Therefore, the Agency is proposing in 40 CFR 180.298(a) to establish a tolerance on citrus, oil at 420.0 ppm. The methidathion IRED recommended both recodifying the tolerances for alfalfa, alfalfa hay, grass, and grass hay (revising grass and grass hay to timothy and timothy hay) from 40 CFR 180.298(a) into
(c)as regional tolerances and decreasing them from 12.0 to 5.0 ppm because section 24(c) FIFRA registrations had existed which allowed application to alfalfa and grass intended for haying, green chopping or grazing to be fed to livestock provided that the registrations were revised to impose a 21-day pre-harvest interval
(PHI)and limited the amount of active ingredient per acre to timothy or timothy/alfalfa stands to 1 pound per cutting. From available data that showed residues of methidathion ranged from 0.13 to 25.0 ppm up to 12 days post-application and field trial data which demonstrated that residues of methidathion decline rapidly with time, EPA calculated that residues would be <5.0 ppm with a 21-day PHI. However, while currently existing section 24(c) FIFRA registrations for use of methidathion on timothy and timothy hay have a 21-day PHI, a rate up to 1 lb. per acre per cutting, and a restriction against the grazing or harvesting of treated timothy and timothy hay for feeding to any animal that may enter the human food chain, one registration in Idaho that expires on December 31, 2007 does not specify a restriction against treated hay, seed, or seed screenings from entering the human food chain (unlike the other registrations). Therefore, the Agency believes that the grass and grass hay tolerances would no longer be needed shortly after December 31, 2007; i.e., after the Idaho registration expires. Consequently, EPA is proposing to recodify the tolerances on grass and grass, hay from 40 CFR 180.298(a) to (c), revise their commodity terminology to timothy, forage and timothy, hay, respectively, decrease the tolerances from 12.0 to 5.0 ppm, and revoke them with an expiration/revocation date of March 31, 2008. In addition, section 24(c) FIFRA registrations exist for methidathion use on alfalfa grown for seed production, a non-food/non-feed use (that include restrictions against grazing/feeding on alfalfa, including seed, seed screenings and hay for human consumption or animal feed). However, while one of those registrations (for use on alfalfa with a 21-day PHI and rate up to 1 lb. per acre per cutting in Idaho that expires on December 31, 2007) has a restriction against the grazing or harvesting of treated alfalfa for feeding to any animal that may enter the human food chain, it does not specify a restriction against treated hay, seed, or seed screenings from entering the human food chain. Therefore, the Agency believes that the alfalfa and alfalfa hay tolerances would no longer be needed shortly after December 31, 2007. Consequently, EPA is proposing to recodify the tolerances on alfalfa and alfalfa, hay from 40 CFR 180.298(a) to (c), decrease them to 5.0 ppm, revoke them with an expiration/revocation date of March 31, 2008, and revise the commodity terminology for alfalfa to alfalfa, forage. Also, EPA is proposing to revise commodity terminology in 40 CFR 180.298(a) to conform to current Agency practice as follows: “fruit, pome” to “fruit, pome, group 11;” “fruit, stone” to “fruit, stone, group 12;” “nut” to “nut, tree, group 14;” and “sorghum, forage” to “sorghum, grain, forage” and “sorghum, forage, forage;” “sorghum, grain” to “sorghum, grain, grain.” The proposed tolerance actions herein for methidathion, to implement the recommendations of the methidathion RED, reflect use patterns in the U.S. which support a different tolerance than the Codex value on citrus fruits (except tangerines), as well as tolerances on pome fruit, stone fruit, tangerines (mandarins), and safflower seeds, which are to be maintained at their existing levels. However, compatibility with Codex MRLs exists for U.S. tolerances on globe artichokes, grain sorghum, pecans, sunflower seeds, and walnuts. 4. *Nitrapyrin* . Based on ruminant and poultry data feeding the maximum theoretical dietary burden of 6-chloropicolinic acid, EPA determined that there is no reasonable expectation of finite residues of nitrapyrin's metabolite 6-chloropicolinic acid, free or conjugated, in any livestock or poultry commodities. (Because 6-chloropicolinic acid is the only residue expected in crops treated with nitrapyrin, it was appropriate to feed 6-chloropicolinic acid instead of nitrapyrin). Therefore, tolerances on the fat, meat, and meat byproducts of cattle, goats, hogs, horses, sheep, and poultry are no longer needed under 40 CFR 180.6(a)(3). Consequently, the Agency is proposing to revoke the tolerances in 40 CFR 180.350 for the combined residues of nitrapyrin and 6-chloropicolinic acid in or on cattle, fat; cattle, meat; cattle, meat byproducts; goat, fat; goat, meat; goat, meat byproducts; hog, fat; hog, meat; hog, meat byproducts; horse, fat; horse, meat; horse, meat byproducts; sheep, fat; sheep, meat; and sheep, meat byproducts; poultry, fat; poultry, meat; and poultry, meat byproducts. Based on available data showing combined nitrapyrin and 6-chloropicolinic acid residues as high as 0.315 ppm on sorghum forage, EPA determined that the tolerance for sorghum forage should be increased from 0.1 to 0.5 ppm. Therefore, EPA is proposing to increase the tolerance in 40 CFR 180.350(a) on sorghum, forage to 0.5 ppm and revise it to “sorghum, forage, forage” and “sorghum, grain, forage.” The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available data showing combined nitrapyrin and 6-chloropicolinic acid residues as high as 0.35 ppm on wheat grain, 1.436 ppm on wheat forage, and 4.8 ppm on wheat straw, EPA determined that the tolerances for wheat grain, forage, and straw should be increased from 0.1 to 0.5 ppm, 0.5 to 2.0 ppm and 0.5 to 6.0 ppm, respectively. Therefore, EPA is proposing to increase the tolerances in 40 CFR 180.350(a) on wheat, grain to 0.5 ppm, wheat, forage to 2.0 ppm, and wheat, straw to 6.0 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on field trial data that supported an increased tolerance for wheat grain from 0.1 to 0.5 ppm and processing data that showed concentration of 6-chloropicolinic acid in wheat bran by 5.5x and wheat shorts by 2.2x, but not in flour (nitrapyrin was not detectable in any processed wheat product), EPA determined that tolerances should be established for wheat bran at 3.0 ppm and wheat milled byproducts, except flour at 2.0 ppm. Therefore, the Agency is proposing to establish tolerances in 40 CFR 180.350(a) for combined residues of nitrapyrin and its metabolite 6-chloropicolinic acid in or on wheat, bran at 3.0 ppm, and wheat, milled byproducts, except flour at 2.0 ppm. Based on field trial data that supported a tolerance of 0.1 ppm for corn grain and processing data that showed concentration of 6-chloropicolinic acid in field corn screenings and grits after both dry and wet milling by 1.4x and 1.45x, respectively, but not in sweet corn fractions processed from sweet corn, EPA determined that a tolerance should be established for field corn milled byproducts at 0.2 ppm. Therefore, the Agency is proposing to establish a tolerance in 40 CFR 180.350(a) for combined residues of nitrapyrin and its metabolite 6-chloropicolinic acid in or on corn, field, milled byproducts at 0.2 ppm. Also, in 40 CFR 180.350(a), EPA is proposing to remove the “(N)” designation from all entries to conform to current Agency administrative practice, where the “(N)” designation means negligible residues. In addition, in 40 CFR 180.350(a), EPA is proposing to revise the commodity terminology for “corn, forage” to “corn, field, forage” and “corn, sweet, forage;” “corn, grain” to “corn, field, grain” and “corn, pop, grain;” “corn, stover” to “corn, field, stover,” “corn, pop, stover,” and “corn, sweet, stover;” and “sorghum, grain” to “sorghum, grain, grain.” There are no Codex MRLs for nitrapyrin. 5. *Oxyfluorfen* . Based on available data that showed residues of oxyfluorfen as high as 0.03 ppm in or on mint hay, EPA determined that the tolerance on mint hay (peppermint and spearmint) should be decreased from 0.1 to 0.05 ppm. Therefore, the Agency is proposing in 40 CFR 180.381(a) to revise the commodity terminology for mint hay into separate tolerances on peppermint, tops and spearmint, tops and decrease each tolerance to 0.05 ppm. Based on available exaggerated (5x to 7x MTDB) cattle feeding data that showed residues of oxyfluorfen as high as <0.003 ppm in milk, 0.007 ppm in fat, <0.003 ppm in meat, <0.003 ppm in kidney, and <0.003 ppm in liver, EPA expected residues below the LOQ (0.01 ppm) in milk, fat, meat, and meat byproducts at the 1x MTDB for cattle. The Agency determined that the tolerances on milk and the fat, meat and meat byproducts of cattle, goats, hogs, horses, and sheep should be set at the LOQ and decreased from 0.05 to 0.01 ppm. Therefore, EPA is proposing in 40 CFR 180.381(a) to decrease the tolerances on milk; cattle, fat; cattle, meat; cattle, meat byproducts; goat, fat; goat, meat; goat, meat byproducts; hog, fat; hog, meat; hog, meat byproducts; horse, fat; horse, meat; horse, meat byproducts; sheep, fat; sheep, meat; and sheep, meat byproducts to 0.01 ppm. Based on available exaggerated (2.0x MTDB) poultry feeding data that showed residues of oxyfluorfen as high as 0.024 ppm in eggs, 0.163 ppm in fat, 0.004 ppm in meat, and 0.006 ppm in liver, EPA expected residues of 0.012 ppm in egg, 0.082 ppm in fat, 0.002 ppm in meat, and 0.003 ppm in liver at the 1x MTDB for poultry. The Agency determined that the tolerances should be decreased on egg from 0.05 to 0.03 ppm, meat and meat byproducts from 0.05 to 0.01 ppm, and increased on fat from 0.05 to 0.2 ppm. Therefore, EPA is proposing in 40 CFR 180.381(a) to decrease the tolerances on egg to 0.03 ppm, poultry, meat to 0.01 ppm, poultry, meat byproducts to 0.01 ppm, and increase the tolerance on poultry, fat to 0.2 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available data that showed oxyfluorfen residues from use of oxyfluorfen on grass grown for seed in Oregon and Washington were not detectable (<0.03 ppm) in or on grass forage, hay, and seed screenings, EPA determined that the reassessed animal commodity tolerances are adequate to cover any residue contribution from regional registration uses of oxyfluorfen on grasses grown for seed and tolerances should be established on grass forage, hay, and seed screenings at 0.05 ppm. Therefore, the Agency is proposing to establish tolerances in 40 CFR 180.381(c) on grass, forage; grass, hay; and grass, seed screenings; each at 0.05 ppm. In addition, EPA is proposing to revise commodity terminology in 40 CFR 180.381 to conform to current Agency practice as follows: “banana (including plantain)” to “banana;” “coffee, bean” to “coffee, bean, green;” “corn, grain” to “corn, field, grain” and “corn, pop, grain;” “onion, dry bulb” to “onion, bulb;” “taro, corm and leaves” to “taro, corm” and “taro, leaves. Moreover, it should be noted that use of oxyfluorfen on plantains is covered by the existing tolerance at 0.05 ppm for banana under 40 CFR 180.1(g), and there is no need to establish a separate tolerance on plantains at 0.05 ppm. Also, because use of oxyfluorfen on garlic is covered by the existing tolerance at 0.05 ppm for onion bulb under 40 CFR 180.1(g), there is no need to establish a separate tolerance on garlic at 0.05 ppm as had been recommended in the RED. There are no Codex MRLs for oxyfluorfen. 6. *Pirimiphos-methyl* . Currently, pirimiphos-methyl tolerances are established in 40 CFR 180.409 and expressed for the combined residues of the insecticide parent and metabolite O-(2-ethylamino-6-methyl-pyrimidin-4-yl) O,O-dimethyl phosphorothioate and, in free and conjugated form, the metabolites 2-diethylamino-6-methyl-pyrimidin-4-ol, 2-ethylamino-6-methyl-pyrimidin-4-ol, and 2-amino-6-methyl-pyrimidin-4-ol. However, because EPA has determined that the endpoint chosen for dietary risk assessment is cholinesterase inhibition, the non-cholinesterase-inhibiting hydroxypyrimidine metabolites no longer need to be included for the purpose of tolerance regulation. Also, in an effort to harmonize with Codex, the Agency determined that the residue to be regulated in commodities is pirimiphos-methyl per se. Therefore, EPA is proposing in 40 CFR 180.409(a) to revise the tolerance expression to residues of pirimiphos-methyl per se as follows: Tolerances are established for residues of the insecticide pirimiphos-methyl (O-(2-diethylamino-6-methyl-4-pyrimidinyl) O,O-dimethyl phosphorothioate) in or on the following raw agricultural commodities. Based on available exaggerated (4x to 40x MTDB) cattle feeding data from which EPA determined that detectable residues are not reasonably expected in meat, and residues calculated at 1x MTDB would be expected at 0.01 ppm in fat, and <0.01 ppm in both kidney and liver, the Agency determined that tolerances should be decreased and set at the LOQ of 0.02 ppm for residues in the fat and meat byproducts of ruminants and fat in poultry. Because the tolerances on kidney and liver of cattle, goats, hogs, horses, and sheep should be decreased from 2.0 to 0.02 ppm and tolerances on meat byproducts of cattle, goats, hogs, horses, and sheep should be decreased from 0.2 to 0.02 ppm, residues in or on liver and kidney will be covered by the reassessed tolerances on meat byproducts and separate tolerances on kidney and liver are no longer needed and should be revoked. Therefore, EPA is proposing in 40 CFR 180.409(a) to revoke the separate tolerances on cattle, kidney; cattle, liver; goat, kidney; goat, liver; hog, kidney; hog, liver; horse, kidney; horse, liver; sheep, kidney; and sheep, liver; and decrease the tolerances on cattle, fat; cattle, meat byproducts; goat, fat; goat, meat byproducts; hog, fat; hog, meat byproducts; horse, fat; horse, meat byproducts; poultry, fat; sheep, fat; and sheep, meat byproducts to 0.02 ppm. Based on the cattle feeding data, with current registrations, the tolerance for cattle meat can be classified under 40 CFR 180.6(a)(3); i.e. there is no reasonable expectation of finite residues, and therefore was recommended by the Agency in the pirimiphos-methyl RED to be revoked. In the **Federal Register** of July 31, 2002 (67 FR 49606) (FRL-7191-4), EPA published a rule which finalized certain tolerance actions for a number of pesticide active ingredients, including pirimiphos-methyl. In a response to a comment from Schering-Plough Animal Health Corporation on cattle tolerances and pending registration of a pour-on product, the Agency announced that it would not take action on revoking the tolerance for cattle meat at that time. However, since then, the pending registration application for a pour-on product formulation was withdrawn by Schering-Plough Animal Health Corporation. Currently, there are still active ear tag registrations. The Agency has determined that the use of impregnated materials (ear tags) on non-lactating dairy cattle and beef cattle does not contribute to significant secondary residues in livestock (calculated contribution is a dietary equivalent to <0.01 ppm, which is less than the dietary LOQ of 0.02 ppm). Therefore, under 40 CFR 180.6(a)(3), EPA is proposing to revoke the tolerance in 40 CFR 180.409 on cattle, meat. While there is a Codex MRL for pirimiphos-methyl on meat at 0.01 mg/kg, EPA notes that the definition of “meat” under Codex is different than in U.S. tolerances and Codex has not established pirimiphos-methyl MRLs for fat or meat byproducts. Based on available processing data that showed residues of pirimiphos-methyl with an average concentration factor of 3.8x in aspirated grain fractions of corn and a highest average field trial
(HAFT)of 4.87 ppm in or on corn grain, EPA determined that a tolerance should be established at 20.0 ppm. Therefore, EPA is proposing to establish a tolerance in 40 CFR 180.409(a) on grain, aspirated fractions at 20.0 ppm. In addition, EPA is proposing to revise commodity terminology in 40 CFR 180.409 to conform to current Agency practice as follows: “corn” to “corn, field, grain” and “corn, pop, grain.” 7. *Sulfosate* . Because sulfosate was registered after November 1, 1984, it was not subject to eligibility for reregistration under FIFRA and therefore a RED was not needed. Existing tolerances were reassessed according to the FQPA standard when new tolerances were established on September 11, 1998 (63 FR 48597)(FRL-6026-6) and therefore a TRED was not needed. However, the last U.S. registrations for the herbicide sulfosate (sulfonium, trimethyl-salt with N- (phosphonomethyl)glycine (1:1)) were canceled on October 15, 2004, due to non-payment of registration maintenance fees, and a notice was published in the **Federal Register** on October 27, 2004 (69 FR 62666)(FRL-7683-7). Therefore, the tolerances are no longer needed. In the **Federal Register** notice of October 27, 2004 (69 FR 62666), EPA stated that cancellation orders generally permit registrants to continue to sell and distribute existing stocks of the canceled products until January 15, 2005. However, during follow-up communication, the registrant informed the Agency that it did not produce sulfosate after 2002 and sold the remaining existing stocks of sulfosate in 2003. Nor is the registrant supporting the import tolerance on banana. Therefore, the Agency believes that end users have had sufficient time to exhaust existing stocks and for treated commodities to have cleared the channels of trade. Consequently, EPA is proposing to revoke tolerances in 40 CFR 180.489 on the following: Almond, hulls (of which no more than 0.30 ppm is trimethylsulfonium (TMS)); banana (imported only); cattle, fat; cattle, kidney; cattle, meat byproducts, except kidney; cattle, meat; corn, field, forage; corn, field and pop, grain (of which no more than 0.10 ppm is TMS); corn, field and pop, stover (of which no more than 0.20 ppm is TMS); corn, sweet, forage (of which no more than 5.0 ppm is TMS); corn, sweet, kernel plus cob with husks removed (of which no more than 0.10 ppm is TMS); corn, sweet, stover (of which no more than 65 ppm is TMS); cotton, gin byproducts (of which no more than 35 ppm is TMS); cotton, undelinted seed (of which no more than 10 ppm is TMS); crop group 2: Leaves of root and tuber vegetables (human food or animal feed (except radish) group (of which no more than 0.20 ppm is TMS); crop group 8: Vegetable, fruiting (except cucurbits) group; crop subgroup 1-A: Root vegetables (except radish) subgroup (of which no more than 0.10 ppm is TMS); crop subgroup 1-C: Tuberous and corm vegetables subgroup (of which no more than 0.50 ppm is TMS); crop subgroup 6-A: Edible-podded legume vegetables subgroup (of which no more than 0.3 ppm is TMS); crop subgroup 6-B: Succulent shelled pea and bean subgroup (of which no more than 0.1 ppm is TMS); crop subgroup 6C: Dried shelled pea and bean (except soybean and animal feed) subgroup (of which no more than 1.5 ppm is TMS); egg; fruit, citrus, group 10; fruit, pome, group 11; fruit, stone, group 12; goat, fat; goat, kidney; goat, meat byproducts, except kidney; goat, meat; grain, aspirated fractions (of which no more than 720 ppm is TMS); grape; grape, raisin (of which no more than 0.05 ppm is TMS); hog, fat; hog, kidney; hog, meat byproducts, except kidney; hog, meat; horse, fat; horse, kidney; horse, meat byproducts, except kidney; horse, meat; milk; nut, tree, group 14; pistachio; poultry, fat; poultry, meat byproducts; poultry, meat; prune (of which no more than 0.05 ppm is TMS); radish, roots (of which no more than 15 ppm is TMS); radish, tops (of which no more than 8.0 ppm is TMS); sheep, fat; sheep, kidney; sheep, meat byproducts, except kidney; sheep, meat; sorghum, grain, forage (of which no more than 0.10 ppm is TMS); sorghum, grain, grain (of which no more than 15 ppm is TMS); sorghum, grain, stover (of which no more than 60 ppm is TMS); soybean, forage (of which no more than 1 ppm is TMS); soybean, hay (of which no more than 2 ppm is TMS); soybean, hulls (of which no more than 25 ppm is TMS); soybean, seed (of which no more than 13 ppm is TMS); wheat, bran (of which no more than 6.0 ppm is TMS); wheat, forage (of which no more than 30 ppm is TMS); wheat, grain (of which no more than 2.5 ppm is TMS); wheat, hay (of which no more than 0.50 ppm is TMS); wheat shorts (of which no more than 0.5 ppm is TMS); wheat, shorts (of which no more than 5.0 ppm is TMS); wheat, straw (of which no more than 0.5 ppm is TMS); and wheat, straw (of which no more than 40 ppm is TMS). 8. *Tebuthiuron* . Currently, the tolerance expression in 40 CFR 180.390 regulates for the herbicide tebuthiuron and its metabolites containing the dimethylethyl thiadiazole moiety. Because the Agency has determined that the residues of concern in plants are tebuthiuron and its metabolites *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, EPA is proposing to revise the tolerance expression for plant commodities from 40 CFR 180.390 to 180.390(a)(1) with tolerances established for the combined residues of tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea) and its metabolites *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea. Also, because the Agency has determined that the residues of concern in fat, meat, kidney, and liver are tebuthiuron and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, 2-dimethylethyl-5-amino-1,3,4-thiadiazole, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, EPA is proposing to revise the tolerance expression for these animal commodities from 40 CFR 180.390 to 180.390(a)(2) with tolerances established for the combined residues of tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea) and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, 2-dimethylethyl-5-amino-1,3,4-thiadiazole, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea. In addition, because the Agency has determined that the residues of concern in milk are tebuthiuron and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, and *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, EPA is proposing to revise the tolerance expression for milk from 40 CFR 180.390 to 180.390(a)(3) with a tolerance established for the combined residues of tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea) and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, and *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea. Based on the MTDB for beef cattle and available exaggerated ruminant feeding data (2.07x), combined tebuthiuron residues of concern in the milk, fat, meat, kidney, and liver of cattle were expected by the Agency at 1x to be as high as 0.57 ppm, 0.39 ppm, 0.67 ppm, 1.66 ppm, and 3.44 ppm, respectively. Therefore, tolerances on the fat and meat of cattle, goats, horses, and sheep should be decreased from 2.0 to 1.0 ppm; tolerances on meat byproducts of cattle, goats, horses, and sheep should be increased from 2.0 to 5.0 ppm; and tolerance on milk should be increased from 0.3 to 0.8 ppm. Consequently, EPA is proposing in 40 CFR 180.390(a)(2) to decrease tolerances on cattle, fat; cattle, meat; goat, fat; goat, meat; horse, fat; horse, meat; sheep, fat; and sheep, meat to 1.0 ppm; and increase tolerances on cattle, meat byproducts; goat, meat byproducts; horse, meat byproducts; and sheep, meat byproducts to 5.0 ppm. Also, EPA is proposing in 40 CFR 180.390(a)(3) to increase the tolerance on milk to 0.8 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Also, EPA is proposing to revise 40 CFR 180.390 by adding separate paragraphs (b), (c), and (d), and reserving those sections for tolerances with section 18 emergency exemptions, regional registrations, and indirect or inadvertent residues, respectively. There are no Codex MRLs for tebuthiuron. 9. *Thiabendazole* . Currently, thiabendazole tolerances are established in 40 CFR 180.242(a)(1) and expressed for residues of the fungicide thiabendazole (2-(4-thiazolyl)benzimidazole in or on plant commodities. However, EPA has determined that for the purpose of tolerance regulation that its metabolite benzimidazole (free and conjugated) should be included as a residue of concern in or on plant commodities. Therefore, EPA is proposing in 40 CFR 180.242(a)(1) to revise the tolerance expression as follows: Tolerances are established for the combined residues of the fungicide thiabendazole (2-(4-thiazolyl)benzimidazole) and its metabolite benzimidazole (free and conjugated) in or on the following raw agricultural commodities. Currently, thiabendazole tolerances are established in 40 CFR 180.242(a)(2) and expressed for combined residues of thiabendazole and its metabolite 5-hydroxythiabendazole in or on animal commodities. However, EPA has determined that for the purpose of tolerance regulation that its metabolites 5-hydroxythiabendazole (free and conjugated) and benzimidazole should be included as residues of concern in animal commodities. Therefore, EPA is proposing in 40 CFR 180.242(a)(2) to revise the tolerance expression as follows: Tolerances are established for the combined residues of thiabendazole (2-(4- thiazolyl)benzimidazole) and its metabolites 5-hydroxythiabendazole (free and conjugated) and benzimidazole in or on the following raw agricultural commodities. Currently, time-limited thiabendazole tolerances for emergency exemptions are established in 40 CFR 180.242(b) and expressed for residues of thiabendazole. However, EPA has determined that for the purpose of tolerance regulation that its metabolite benzimidazole (free and conjugated) should be included as a residue of concern in plant commodities. Therefore, EPA is proposing in 40 CFR 180.242(b) to revise the tolerance expression as follows: Time-limited tolerances are established for the combined residues of thiabendazole (2-(4-thiazolyl)benzimidazole) and its metabolite benzimidazole (free and conjugated), in connection with use of the pesticide under section 18 emergency exemptions granted by EPA. The tolerances are specified in the following table. The tolerances will expire on the dates specified in the table. Because thiabendazole residues of concern on postharvest banana pulp will be covered by the tolerance in 40 CFR 180.242(a)(1) on banana, postharvest at 3.0 ppm, a separate tolerance on postharvest banana pulp at 0.4 ppm is no longer needed, and therefore that tolerance on postharvest banana pulp should be revoked. Furthermore, currently, the Agency considers the raw agricultural commodity to be the whole banana and not just the pulp. Therefore, EPA is proposing to revoke the tolerance in 40 CFR 180.242(a)(1) for thiabendazole residues of concern in or on banana, pulp, postharvest. Because there have been no registered uses of thiabendazole for squash since 1993 and rice since 1999, the tolerances on hubbard squash, rice hulls, rice rough, and rice straw are no longer needed. Therefore, EPA is proposing to revoke the tolerances in 40 CFR 180.242(a)(1) for thiabendazole residues of concern in or on squash, hubbard; rice, hulls; rice, rough; and rice, straw. Based on available processing data that showed residues of thiabendazole do not concentrate in any regulated processed commodity of potato (granules/flakes, chips, or wet peel) or wheat (bran, flour, middlings, shorts, germ), the Agency determined that the tolerances on processing waste of potato and milled fractions (excluding flour) of wheat are no longer needed. Therefore, EPA is proposing to revoke tolerances in 40 CFR 180.242(a)(1) on potato, processing waste (pre- & post-H) and wheat, milled fractions (except flour). Based on available processing data that showed residues of thiabendazole concentrated in dried citrus pulp by a factor of 1.6x and a HAFT of 5.2 ppm for whole citrus fruits, EPA expected residues of 8.3 ppm, which is below the current and reassessed tolerance of 10.0 ppm on whole citrus fruit. Therefore, the dried citrus pulp tolerance is no longer needed. Consequently, EPA is proposing to revoke the tolerance in 40 CFR 180.242(a)(1) on citrus, dried pulp, postharvest. Based on the MTDB for poultry and available exaggerated (125x MTDB) poultry feeding data which showed combined thiabendazole residues of concern in poultry tissues at <0.109 ppm and in egg yolks at 0.065 ppm, the Agency expects residues to be <0.027 ppm in poultry tissues and 0.015 ppm in eggs. Because these levels are below the combined LOQs of 0.3 ppm in tissues and 0.15 ppm in eggs for the enforcement method, the Agency concluded that there is no reasonable expectation of finding finite thiabendazole residues of concern in poultry tissues and eggs resulting from the feeding of thiabendazole treated crops to poultry. Therefore, tolerances on poultry and eggs are no longer needed. Consequently, under 40 CFR 180.6(a)(3), EPA is proposing to revoke tolerances in 40 CFR 180.242(a)(2) on poultry; poultry, meat byproducts; poultry, meat; and egg. Based on the MTDB for beef cattle and swine and available exaggerated ruminant feeding data (1.9x and 6.7x MTDB in fat and muscle, respectively), combined thiabendazole residues of concern in the fat and meat of cattle were as high as 0.030 and 0.023 ppm, respectively. Because each of these levels is below the combined LOQ (0.1 ppm for each analyte), the Agency concluded that there is no reasonable expectation of finding finite thiabendazole residues of concern in the fat and meat of cattle, goats, hogs, horses, and sheep resulting from the feeding of thiabendazole treated crops to livestock. Therefore, tolerances on the fat of cattle, goats, hogs, horses, and sheep are no longer needed. Consequently, under 40 CFR 180.6(a)(3), EPA is proposing to revoke tolerances in 40 CFR 180.242(a)(2) on cattle, fat; goat, fat; hog, fat; horse, fat; and sheep, fat. The proposed changes to include the metabolite benzimidazole in the tolerance expression for thiabendazole when finalized could make U.S. tolerances and Codex MRLs incompatible because the Codex MRLs for thiabendazole are currently expressed in terms of the parent for plant commodities and sum of the parent and 5-hydroxythiabendazole for animal commodities. Because of the lack of Codex MRLs on the meat of goats, hogs, horses, and sheep; proposed change in the tolerance expression for animal commodities, and data that show no reasonable expectation of finding finite thiabendazole residues of concern in the meat of cattle, goats, hogs, horses, and sheep, the Agency determined that the meat tolerances of goats, hogs, horses, and sheep are no longer needed and therefore should be revoked. Consequently, under 40 CFR 180.6(a)(3), EPA is proposing to revoke tolerances in 40 CFR 180.242(a)(2) on goat, meat; hog, meat; horse, meat; and sheep, meat. However, despite the expected difference in tolerance expression and undetectable residues, EPA is maintaining the tolerance on cattle meat at 0.1 ppm in order to harmonize as closely as possible with the Codex MRL of 0.1 mg/kg. Based on available ruminant feeding data (1x MTDB) that showed combined thiabendazole residues of concern as high as 0.028 ppm in milk, which is below the combined LOQ of 0.1 ppm for the enforcement method, EPA determined that the tolerances on milk should be decreased from 0.4 to 0.1 ppm. Therefore, the Agency is proposing to decrease the tolerance in 40 CFR 180.242(a)(2) on milk to 0.1 ppm. Based on available exaggerated (1.9x MTDB) ruminant feeding data that showed combined thiabendazole residues of concern as high as 0.28 ppm in liver and 0.687 ppm in kidney, EPA expected residues of 0.15 ppm in liver and 0.36 ppm in kidney at the 1x MTDB for beef cattle. The Agency determined that the tolerance for meat byproducts of cattle, goats, horses, and sheep should be increased from 0.1 to 0.4 ppm. Therefore, EPA is proposing to increase the tolerances in 40 CFR 180.242(a)(2) on cattle, meat byproducts; goat, meat byproducts; horse, meat byproducts; and sheep, meat byproducts to 0.4 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available exaggerated ruminant feeding data and 14.7x MTDB for swine that showed combined thiabendazole residues of concern as high as 0.28 ppm in liver and 0.687 ppm in kidney, the Agency determined that the tolerance for combined thiabendazole residues of concern on hog meat byproducts should be increased from 0.1 ppm and set at the combined LOQ of 0.3 ppm for the analytes in the enforcement method. Therefore, EPA is proposing to increase the tolerance in 40 CFR 180.242(a)(2) on hog, meat byproducts to 0.3 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available data showing combined thiabendazole residues of concern as high as <0.022 ppm on sweet potatoes grown from treated seed roots, EPA determined that the postharvest tolerance for sweet potato from treated seed should be increased from 0.02 to 0.05 ppm. Therefore, EPA is proposing to increase the tolerance in 40 CFR 180.242(a)(1) on sweet potato (post-H to sweet potato intended only for use as seed) to 0.05 ppm. The Agency determined that the increased tolerance is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on available data that showed combined thiabendazole residues of concern as high as 5.0 ppm in or on pears and a HAFT for 3.4 ppm for apples, EPA determined that the tolerances on apples and pears should be decreased from 10.0 to 5.0 ppm and combined into a group tolerance. Therefore, the Agency is proposing to decrease the tolerances in 40 CFR 180.242(a)(1) on apple, postharvest and pear, postharvest and combine them into a group tolerance for fruit, pome, group 11, postharvest at 5.0 ppm. Based on available processing data that showed residues of thiabendazole concentrated in wet apple pomace by a factor of 3.5x and a HAFT of 3.4 ppm for apples, EPA expected combined residues of 11.9 ppm in wet apple pomace. Therefore, the Agency determined that a tolerance on wet apple pomace should be established at 12.0 ppm. Consequently, EPA is proposing to establish a tolerance in 40 CFR 180.242(a)(1) on apple, wet pomace at 12.0 ppm. Based on available processing data that showed residues of thiabendazole concentrated in citrus oil by an average factor of 2.4x and a HAFT of 5.2 ppm for whole citrus fruits, EPA expected combined residues of 12.5 ppm in citrus oil. Therefore, the Agency determined that a tolerance on citrus oil should be established at 15.0 ppm. Consequently, EPA is proposing to establish a tolerance in 40 CFR 180.242(a)(1) on citrus, oil at 15.0 ppm. In addition, EPA is proposing to revise commodity terminology in 40 CFR 180.242(a)(1) to conform to current Agency practice as follows: “fruit, citrus, postharvest” to “fruit, citrus, group 10, postharvest.” Currently, there is an active registration for thiabendazole use on sugar beets. The registrant does not intend to support the sugar beet tolerances. Consequently, EPA will not take action to revoke the sugar beet tolerances in 40 CFR 180.242 at this time, but will follow-up with the registrant on amending the registration in order to delete the sugarbeet use and address the tolerances in a future publication in the **Federal Register** . 10. *Thidiazuron* . Based on available processing data that show thidiazuron residues on cottonseed hulls concentrated slightly by a factor of 1.4x, EPA expects residues not to exceed the current recommended raw agricultural commodity tolerance of 0.3 ppm for cottonseed. Therefore, the tolerance on cottonseed hulls is no longer needed. Consequently, EPA is proposing to revoke the tolerance in 40 CFR 180.403(a) on cotton, hulls. Cottonseed meal is a common feeding source for poultry. A cottonseed meal processing study at 5x application rate showed that thidiazuron residues were less than the LOQ (<0.05 ppm) and did not concentrate, and EPA determined that there is no reasonable expectation of finite residues in poultry and eggs. Therefore, the tolerances on poultry fat, meat, meat byproducts, and egg are no longer needed under 40 CFR 180.6(a)(3). Consequently, the Agency is proposing to revoke the tolerances in 40 CFR 180.403 for the combined residues of thidiazuron and its aniline containing metabolites in or on poultry, fat; poultry, meat; poultry, meat byproducts; and egg. Based on available data showing thidiazuron residues were as high as 0.21 ppm on cottonseed, EPA determined that the tolerance should be decreased from 0.4 to 0.3 ppm. Therefore, the Agency is proposing to decrease the tolerance in 40 CFR 180.403(a) on cotton, undelinted seed to 0.3 ppm. Pending storage stability and raw data to validate the ruminant feeding study, EPA determined that the tolerances for thidiazuron and its metabolites of concern are not expected to exceed 0.4 ppm for fat, meat, and meat byproducts, and therefore should be increased from 0.2 to 0.4 ppm. Therefore, the Agency is proposing to increase the tolerances in 40 CFR 180.403(a) on cattle, fat; cattle, meat; cattle, meat byproducts; goat, fat; goat, meat; goat, meat byproducts; hog, fat; hog, meat; hog, meat byproducts; horse, fat; horse, meat; horse, meat byproducts; sheep, fat; sheep, meat; and sheep, meat byproducts to 0.4 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pestcide chemical residue. Based on available data that showed thidiazuron residues as high as 22.12 ppm, EPA determined that a tolerance of 24.0 ppm should be established for cotton gin byproducts. Therefore, the Agency is proposing to establish a tolerance in 40 CFR 180.403(a) for the combined residues of thidiazuron and its aniline containing metabolites in or on cotton, gin byproducts at 24.0 ppm. There are no Codex MRLs for thidiazuron. 11. *Tribuphos* . EPA is proposing to remove the “negligible residue” designation from all entries in 40 CFR 180.272 to conform to current Agency administrative practice. Based on the MTDB for cattle and available exaggerated ruminant feeding data (2.7x MTDB), tribuphos residues in milk and fat were expected by the Agency at 1x to be as high as 0.008 ppm and 0.13 ppm, respectively. Therefore, the Agency determined that the tolerance on milk should be increased from 0.002 ppm to the LOQ (0.01 ppm), and that tolerances on the fat of cattle, goats, and sheep should be increased from 0.02 to 0.15 ppm and tolerances on the fat of hogs and horses should be established at 0.15 ppm. Therefore, EPA is proposing in 40 CFR 180.272 to increase tolerances on cattle, fat; goat, fat; and sheep, fat to 0.15 ppm; and establish tolerances on hog, fat and horse, fat at 0.15 ppm. Also, EPA is proposing in 40 CFR 180.272 to increase the tolerance on milk to 0.01 ppm. The Agency determined that the increased tolerances are safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the MTDB for cattle and available exaggerated ruminant feeding data (2.7x MTDB), tribuphos residues in meat and liver were expected by the Agency at 1x to be as high as 0.015 ppm and 0.019 ppm, respectively. Therefore, the Agency determined that the tolerances on meat and meat byproducts of hogs and horses should all be established at 0.02 ppm. Therefore, EPA is proposing in 40 CFR 180.272 to establish tolerances on hog, meat; hog, meat byproducts; horse, meat; and horse, meat byproducts at 0.02 ppm. Based on available data (where sites had a 7-day PHI, with the exception of one site with a 9-day PHI) that showed tribuphos residues as high as 36.39 ppm, EPA determined that a tolerance of 40.0 ppm should be established for cotton gin byproducts. Therefore, the Agency is proposing to establish a tolerance in 40 CFR 180.272 on cotton, gin byproducts at 40.0 ppm. There are no Codex MRLs for tribuphos. B. What is the Agency's Authority for Taking this Action? A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA (7 U.S.C. 136 *et seq.* ). Food-use pesticides not registered in the United States must have tolerances in order for commodities treated with those pesticides to be imported into the United States. EPA is proposing these tolerance actions in follow-up to the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). The safety finding determination under section 408 of the FFDCA standard is discussed in detail in each Post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A. EPA has issued post-FQPA REDs for chloroneb, cypermethrin, methidathion, nitrapyrin, oxyfluorfen, pirimiphos-methyl, thiabendazole, thidiazuron, and tribuphos, and a TRED for tebuthiuron, whose RED was completed prior to FQPA. A RED for sulfosate was not needed because it was registered after November 1, 1984 and not subject to reregistration eligibility, and its tolerances were reassessed prior to completion of a TRED, such that a TRED for sulfosate was no longer needed because EPA made a safety finding which reassessed its tolerances according to the FFDCA standard, maintaining them when new tolerances were established as noted in Unit II.A. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary. EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse. Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of the FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities. Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue. EPA has developed guidance concerning submissions for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be made available to interested persons. Electronic copies are available on the internet at *http://www.epa.gov/* . On the Home Page select “Laws, Regulations, and Dockets,” then select Regulations and Proposed Rules and then look up the entry for this document under “ **Federal Register** —Environmental Documents.” You can also go directly to the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr/* . When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that: 1. Finite residues will exist in meat, milk, poultry, and/or eggs. 2. There is a reasonable expectation that finite residues will exist. 3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)). EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this rule and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities. C. When do These Actions Become Effective? With the exception of revocation of regional tolerances for methidathion on alfalfa forage, alfalfa hay, timothy forage, and timothy hay for which EPA is proposing specific expiration/revocation dates, the Agency is proposing that the actions herein become effective on the date of publication of the final rule in the **Federal Register.** With the exception of the revocation of these four regional tolerances for methidathion, the Agency believes that existing stocks of pesticide products labeled for the uses associated with the tolerances proposed for revocation have been completely exhausted and that treated commodities have had sufficient time for passage through the channels of trade. EPA is proposing an expiration/revocation date of March 31, 2008 for the methidathion tolerances on alfalfa forage, alfalfa hay, timothy forage, and timothy hay. The Agency believes that, because their regional registrations expire on December 31, 2007, the revocation date of March 31, 2008 allows sufficient time for passage of treated commodities through the channels of trade. However, if EPA is presented with information that existing stocks would still be available and that information is verified, the Agency will consider extending the expiration date of the tolerance. If you have comments regarding existing stocks and whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under SUPPLEMENTARY INFORMATION . Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: 1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and 2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food. III. Are the Proposed Actions Consistent with International Obligations? The tolerance actions in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standards established by the FFDCA. The same food safety standards apply to domestically produced and imported foods. In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international Maximum Residue Limits
(MRLs)established by the Codex Alimentarius Commission, as required by section 408(b)(4) of the FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A. IV. Statutory and Executive Order Reviews In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget
(OMB)has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this proposed rule). Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change the EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, 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.” “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.” This proposed rule 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 this proposed rule. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 17, 2007. Debra Edwards, Director, Office of Pesticide Programs. Therefore, it is proposed that 40 CFR chapter I be amended as follows: PART 180 —AMENDED 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.242 is amended as follows: i. Paragraphs (a)(1) and
(2)are revised. ii. The introductory text to paragraph
(b)is revised to read as follows: §180.242 Thiabendazole; tolerances for residues.
(a)*General* .
(1)Tolerances are established for the combined residues of the fungicide thiabendazole (2-(4-thiazolyl)benzimidazole) and its metabolite benzimidazole (free and conjugated) in or on the following raw agricultural commodities: Commodity Parts per million Apple, wet pomace 12.0 Avocado 1 10.0 Banana, postharvest 3.0 Bean, dry, seed 0.1 Beet, sugar, dried pulp 3.5 Beet, sugar, roots 0.25 Beet, sugar, tops 10.0 Cantaloupe 1 15.0 Carrot, roots, postharvest 10.0 Citrus, oil 15.0 Fruit, citrus, group 10, postharvest 10.0 Fruit, pome, group 11, postharvest 5.0 Mango 10.0 Mushroom 40.0 Papaya, postharvest 5.0 Potato, postharvest 10.0 Soybean 0.1 Strawberry 1 5.0 Sweet potato (POST-H to sweet potato intended only for use as seed) 0.05 Wheat, grain 1.0 Wheat, straw 1.0 1 There are no U.S. registrations on the indicated commodity.
(2)Tolerances are established for the combined residues of thiabendazole (2-(4-thiazolyl)benzimidazole) and its metabolites 5-hydroxythiabendazole (free and conjugated) and benzimidazole in or on the following raw agricultural commodities: Commodity Parts per million Cattle, meat 0.1 Cattle, meat byproducts 0.4 Goat, meat byproducts 0.4 Hog, meat byproducts 0.3 Horse, meat byproducts 0.4 Milk 0.1 Sheep, meat byproducts 0.4
(b)*Section 18 emergency exemptions* . Time-limited tolerances are established for the combined residues of thiabendazole (2-(4-thiazolyl)benzimidazole) and its metabolite benzimidazole (free and conjugated), in connection with use of the pesticide under section 18 emergency exemptions granted by EPA. The tolerances are specified in the following table. The tolerances will expire on the dates specified in the table. 3. Section 180.257 is amended by revising paragraph
(a)to read as follows: §180.257 Chloroneb; tolerances for residues.
(a)*General* . Tolerances are established for residues of the fungicide chloroneb (1,4-dichloro-2,5-dimethoxybenzene) and its metabolite 2,5-dichloro-4-methoxyphenol (free and conjugated), calculated as chloroneb, in or on the following raw agricultural commodities: Commodity Parts per million Bean, dry, seed 0.2 Bean, succulent 0.2 Beet, sugar, roots 0.2 Beet, sugar, tops 0.2 Cowpea, forage 2.0 Cowpea, hay 2.0 Cattle, fat 0.2 Cattle, meat 0.2 Cattle, meat byproducts 0.2 Cotton, gin byproducts 1.0 Cotton, undelinted seed 0.2 Goat, fat 0.2 Goat, meat 0.2 Goat, meat byproducts 0.2 Hog, fat 0.2 Hog, meat 0.2 Hog, meat byproducts 0.2 Horse, fat 0.2 Horse, meat 0.2 Horse, meat byproducts 0.2 Milk 0.05 Sheep, fat 0.2 Sheep, meat 0.2 Sheep, meat byproducts 0.2 Soybean, forage 2.0 Soybean, hay 2.0 Soybean, seed 0.2 4. Section 180.272 is amended by revising the table in paragraph
(a)to read as follows: §180.272 Tribuphos; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Cattle, fat 0.15 Cattle, meat 0.02 Cattle, meat byproducts 0.02 Cotton, gin byproducts 40.0 Cotton, undelinted seed 4.0 Goat, fat 0.15 Goat, meat 0.02 Goat, meat byproducts 0.02 Hog, fat 0.15 Hog, meat 0.02 Hog, meat byproducts 0.02 Horse, fat 0.15 Horse, meat 0.02 Horse, meat byproducts 0.02 Milk 0.01 Sheep, fat 0.15 Sheep, meat 0.02 Sheep, meat byproducts 0.02 5. Section 180.298 is amended by revising the tables in paragraphs
(a)and
(c)to read as follows: §180.298 Methidathion; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Almond, hulls 6.0 Artichoke, globe 0.05 Citrus, oil 420.0 Cotton, undelinted seed 0.2 Fruit, citrus, group 10, except tangerine 4.0 Fruit, pome, group 11 0.05 Fruit, stone, group 12 0.05 Mango 0.05 Nut, tree, group 14 0.05 Olive 0.05 Safflower, seed 0.5 Sorghum, forage, forage 2.0 Sorghum, grain, forage 2.0 Sorghum, grain, grain 0.2 Sorghum, grain, stover 2.0 Sunflower, seed 0.5 Tangerine 6.0
(c)* * * Commodity Parts per million Expiration/Revocation Date Alfalfa, forage 5.0 3/31/2008 Alfalfa, hay 5.0 3/31/2008 Kiwifruit 0.1 None Longan 0.1 None Starfruit 0.1 None Sugar apple 0.2 None Timothy, forage 5.0 3/31/2008 Timothy, hay 5.0 3/31/2008 6. Section 180.350 is amended by revising the table in paragraph
(a)to read as follows: §180.350 Nitrapyrin; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Corn, field, forage 1.0 Corn, field, grain 0.1 Corn, field, milled byproducts 0.2 Corn, field, stover 1.0 Corn, pop, grain 0.1 Corn, pop, stover 1.0 Corn, sweet, forage 1.0 Corn, sweet, kernel plus cob with husks removed 0.1 Corn, sweet, stover 1.0 Sorghum, forage, forage 0.5 Sorghum, grain, forage 0.5 Sorghum, grain, grain 0.1 Sorghum, grain, stover 0.5 Wheat, bran 3.0 Wheat, forage 2.0 Wheat, grain 0.5 Wheat, milled byproducts, except flour 2.0 Wheat, straw 6.0 7. Section 180.381 is amended by revising the tables in paragraphs
(a)and
(c)to read as follows: §180.381 Oxyfluorfen; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Almond, hulls 0.1 Artichoke, globe 0.05 Avocado 0.05 Banana 0.05 Broccoli 0.05 Cabbage 0.05 Cattle, fat 0.01 Cattle, meat 0.01 Cattle, meat byproducts 0.01 Cauliflower 0.05 Cocoa bean, dried bean 0.05 Coffee, bean, green 0.05 Corn, field, grain 0.05 Corn, pop, grain 0.05 Cotton, undelinted seed 0.05 Date 0.05 Egg 0.03 Feijoa 0.05 Fig 0.05 Fruit, pome, group 11 0.05 Fruit, stone, group 12 0.05 Goat, fat 0.01 Goat, meat 0.01 Goat, meat byproducts 0.01 Grape 0.05 Hog, fat 0.01 Hog, meat 0.01 Hog, meat byproducts 0.01 Horse, fat 0.01 Horse, meat 0.01 Horse, meat byproducts 0.01 Horseradish 0.05 Kiwifruit 0.05 Milk 0.01 Nut, tree, group 14 0.05 Olive 0.05 Onion, bulb 0.05 Peppermint, tops 0.05 Persimmon 0.05 Pistachio 0.05 Pomegranate 0.05 Poultry, fat 0.2 Poultry, meat 0.01 Poultry, meat byproducts 0.01 Sheep, fat 0.01 Sheep, meat 0.01 Sheep, meat byproducts 0.01 Soybean 0.05 Spearmint, tops 0.05
(c)* * * Commodity Parts per million Blackberry 0.05 Chickpea, seed 0.05 Grass, forage 0.05 Grass, hay 0.05 Grass, seed screenings 0.05 Guava 0.05 Papaya 0.05 Raspberry 0.05 Taro, corm 0.05 Taro, leaves 0.05 8. Section 180.390 is revised to read as follows: §180.390 Tebuthiuron; tolerances for residues.
(a)*General* .
(1)Tolerances are established for the combined residues of the herbicide tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* , *N* ′-dimethylurea) and its metabolites *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea in or on the following raw agricultural commodities: Commodity Parts per million Grass, forage 10.0 Grass, hay 10.0
(2)Tolerances are established for the combined residues of the herbicide tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea) and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, 2-dimethylethyl-5-amino-1,3,4-thiadiazole, and *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea in or on the following raw agricultural commodities: Commodity Parts per million Cattle, fat 1.0 Cattle, meat 1.0 Cattle, meat byproducts 5.0 Goat, fat 1.0 Goat, meat 1.0 Goat, meat byproducts 5.0 Horse, fat 1.0 Horse, meat 1.0 Horse, meat byproducts 5.0 Sheep, fat 1.0 Sheep, meat 1.0 Sheep, meat byproducts 5.0
(3)A tolerance is established for the combined residues of the herbicide tebuthiuron ( *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N,N* ′-dimethylurea) and its metabolites *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* -methylurea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)urea, *N* -(5-(1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea, and *N* -(5-(2-hydroxy-1,1-dimethylethyl)-1,3,4-thiadiazol-2-yl)- *N* ′-hydroxymethyl- *N* -methylurea in or on the following raw agricultural commodities: Commodity Parts per million Milk 0.8
(b)*Section 18 emergency exemptions* . [Reserved]
(c)*Tolerances with regional registrations* . [Reserved]
(d)*Indirect or inadvertent residues* . [Reserved] 9. Section 180.403 is amended by revising the table in paragraph
(a)to read as follows: §180.403 Thidiazuron; tolerances for residues.
(a)*General* . * * * Commodity Parts per million Cattle, fat 0.4 Cattle, meat 0.4 Cattle, meat byproducts 0.4 Cotton, gin byproducts 24.0 Cotton, undelinted seed 0.3 Goat, fat 0.4 Goat, meat 0.4 Goat, meat byproducts 0.4 Hog, fat 0.4 Hog, meat 0.4 Hog, meat byproducts 0.4 Horse, fat 0.4 Horse, meat 0.4 Horse, meat byproducts 0.4 Milk 0.05 Sheep, fat 0.4 Sheep, meat 0.4 Sheep, meat byproducts 0.4 10. Section 180.409 is amended by revising paragraph
(a)to read as follows: §180.409 Pirimiphos-methyl; tolerances for residues.
(a)*General* . Tolerances are established for residues of the insecticide pirimiphos-methyl (O-(2-diethylamino-6-methyl-4-pyrimidinyl) *O,O* -dimethyl phosphorothioate) in or on the following raw agricultural commodities: Commodity Parts per million Cattle, fat 0.02 Cattle, meat byproducts 0.02 Corn, field, grain 8.0 Corn, pop, grain 8.0 Goat, fat 0.02 Goat, meat byproducts 0.02 Grain, aspirated fractions 20.0 Hog, fat 0.02 Hog, meat byproducts 0.02 Horse, fat 0.02 Horse, meat byproducts 0.02 Poultry, fat 0.02 Sheep, fat 0.02 Sheep, meat byproducts 0.02 Sorghum, grain, grain 8.0 11. Section 180.418 is amended by revising the tables in paragraphs (a)(1), (a)(2), and
(b)to read as follows: §180.418 Cypermethrin and an isomer zeta-cypermethrin; tolerances for residues.
(a)*General* .
(1)* * * Commodity Parts per million Brassica, head and stem, subgroup 5A 2.0 Brassica, leafy greens, subgroup 5B 14.0 Cattle, fat 1.0 Cattle, meat 0.2 Cattle, meat byproducts 0.05 Cotton, gin byproducts 11.0 Cotton, undelinted seed 0.5 Egg 0.05 Goat, fat 1.0 Goat, meat 0.2 Goat, meat byproducts 0.05 Hog, fat 0.1 Hog, meat 0.05 Horse, fat 1.0 Horse, meat 0.2 Horse, meat byproducts 0.05 Lettuce, head 4.0 Milk, fat (reflecting 0.10 in whole milk) 2.5 Onion, bulb 0.1 Onion, green 6.0 Pecan 0.05 Poultry, fat 0.05 Poultry, meat 0.05 Sheep, fat 1.0 Sheep, meat 0.2 Sheep, meat byproducts 0.05
(2)* * * Commodity Parts per million Alfalfa, hay 15.00 Alfalfa, forage 5.00 Alfalfa, seed 0.50 Almond, hulls 6 Animal feed, nongrass, group 18, forage 8 Animal feed, nongrass, group 18, hay 40 Beet, sugar, roots 0.05 Beet, sugar, tops 0.20 Berry, group 13 0.8 Brassica, head and stem, subgroup 5A 2.00 Brassica, leafy greens, subgroup 5B 14.00 Cabbage 2.00 Cattle, fat 1.00 Cattle, meat 0.2 Cattle, meat byproducts 0.05 Cilantro, leaves 10 Corn, field, forage 0.20 Corn, field, grain 0.05 Corn, field, stover 3.00 Corn, pop, grain 0.05 Corn, pop, stover 3.00 Corn, sweet, forage 15.00 Corn, sweet, kernel plus cob with husks removed 0.05 Corn, sweet, stover 15.00 Cotton, undelinted seed 0.5 Egg 0.05 Food/feed items (other than those covered by a higher tolerance as a result of use on growing crops) in food/feed handling establishments 0.05 Fruit, pome, group 11 2 Fruit, stone, group 12 1 Goat, fat 1.00 Goat, meat 0.2 Goat, meat byproducts 0.05 Grain, aspirated fractions 10.0 Grape 2 Grass, forage, group 17 10 Grass, hay, group 17 35 Hog, fat 0.1 Hog, meat 0.05 Horse, fat 1.00 Horse, meat 0.2 Horse, meat byproducts 0.05 Milk, fat (reflecting 0.10 in whole milk) 2.50 Nut, tree, group 14 0.05 Onion, bulb 0.10 Onion, green 3.00 Pea and bean, dried shelled, except soybean, subgroup 6C 0.05 Pea and bean, succulent shelled, subgroup 6B 0.1 Peanut 0.05 Pecan 0.05 Poultry, fat 0.05 Poultry, meat 0.05 Rapeseed 0.2 Rice, grain 1.50 Rice, hulls 6.00 Rice, straw 2.00 Sheep, fat 1.00 Sheep, meat 0.2 Sheep, meat byproducts 0.05 Sorghum, grain, forage 0.1 Sorghum, grain, grain 0.5 Sorghum, grain, stover 5.0 Soybean, seed 0.05 Sugarcane, cane 0.60 Sunflower 0.2 Sunflower, refined oil 0.5 Turnip, greens 14 Vegetable, cucurbit, group 9 0.2 Vegetable, fruiting, group 8 0.2 Vegetable, leafy, except brassica, group 4 10.00 Vegetable, legume, edible podded, subgroup 6A 0.5 Vegetable, root and tuber, group 1, except sugar beet 0.1 Wheat, forage 3.0 Wheat, grain 0.2 Wheat, hay 6.0 Wheat, straw 7.0
(b)* * * Commodity Parts per million Expiration/Revocation Date Flax, meal 0.2 6/30/2008 Flax, seed 0.2 6/30/2008 §180.489 [Removed] 12. Section 180.489 is removed. [FR Doc. E7-8373 Filed 5-1-07; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [MD Docket No. 07-81; FCC 07-55] Assessment and Collection of Regulatory Fees For Fiscal Year 2007 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 2007. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees under sections 9(b)(2) and 9(b)(3), respectively, for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees. DATES: Comments are due May 3, 2007, and reply comments are due May 11, 2007. ADDRESSES: You may submit comments, identified by MD Docket No. 07-81, 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. 07-81 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: April 16, 2007. Released: April 18, 2007. By the Commission: Table of Contents Heading Paragraph number I. Introduction 1 II. Discussion 2 A. FY 2007 Regulatory Fee Assessment Methodology 4 1. Development of FY 2007 Regulatory Fees 4 a. Calculation of Revenue and Fee Requirements 4 b. Additional Adjustments to Payment Units 5 2. Commercial Mobile Radio Service
(CMRS)Messaging Service 7 3. Broadband Radio Service (BRS)/Educational Broadband Service
(EBS)8 4. International Bearer Circuits 9 5. Interconnected Voice over Internet Protocol Service Providers 10 B. Administrative and Operational Issues 11 1. Use of Fee Filer 12 2. Proposals for Notification and Collection of Regulatory Fees 13 a. Interstate Telecommunications Service Providers (ITSPs) 15 b. Satellite Space Station Licensees 17 c. Additional Service Categories for Billing 19 d. Media Services Licensees 20 e. Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Services Assessments 23 f. Cable Television Subscribers 28 3. Streamlined Regulatory Fee Payment Process for Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Providers 30 4. Future Streamlining of the Regulatory Fee Assessment and Collection Process 32 III. Procedural Matters 33 A. Payment of Regulatory Fees 33 1. De Minimis Fee Payment Liability 33 2. Standard Fee Calculations and Payment Dates 34 B. Enforcement 35 C. Initial Regulatory Flexibility Analysis 37 D. Initial Paperwork Reduction Act of 1995 Analysis 38 E. Ex Parte Rules 39 F. Filing Requirements 40 IV. Ordering Clauses 45 Attachments: Attachment A Initial Regulatory Flexibility Analysis Attachment B Sources of Payment Unit Estimates for FY 2007 Attachment C Calculation of Revenue Requirements and Pro-Rata Fees Attachment D Proposed FY 2007 Schedule of Regulatory Fees Attachment E Factors, Measurements, and Calculations that Determine Station Contours and Population Coverages Attachment F FY 2006 Schedule of Regulatory Fees I. Introduction 1. In this *Notice of Proposed Rulemaking* (NPRM), we propose to collect $290,295,160 in regulatory fees for Fiscal Year
(FY)2007, 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 2007 regulatory fees collected pursuant to section 9 of the Act. For FY 2007, we tentatively propose to retain the established methods and policies that the Commission has used to collect section 9 regulatory fees since FY 2003. In addition to seeking comment on the assessment methodology, the Commission typically seeks comment on various administrative and operational issues affecting the collection of regulatory fees. For the FY 2007 regulatory fee cycle, we propose to retain the vast majority of the administrative measures used for notification, assessment and pre-billing of regulatory fees in previous years, such as generating pre-completed regulatory fee assessment forms for certain regulatees. Consistent with past practice, we seek comment on ways to improve the Commission's administrative processes for notifying entities of their regulatory fee obligations and collecting their payments. Finally, we seek comment on applying the same regulatory fee obligations applicable to interstate telecommunications providers to providers of interconnected voice over Internet Protocol services. 3. The Commission is obligated to collect $290,295,160 in regulatory fees during FY 2007 to fund the Commission's operations. Consistent with our established practice, we intend to collect these regulatory fees in the August-September 2007 time frame in order to collect the required amount by the end of the fiscal year. A. FY 2007 Regulatory Fee Assessment Methodology 1. Development of FY 2007 Regulatory Fees a. Calculation of Revenue and Fee Requirements 4. For our FY 2007 regulatory fee assessment, we propose to use essentially the same section 9 regulatory fee assessment methodology adopted for FY 2006. 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 2007 regulatory fee assessment methodology (including a comparison to the prior year's results) are contained in Appendix C. For FY 2007, we propose to use the receipts collected through the FY 2006 regulatory fees as the basis for calculating the amount the Commission must collect in FY 2007. To collect the $290,295,160 required by law, we propose to adjust the FY 2006 amount downward by approximately 2.84 percent. 2 Consistent with past practice, we propose to divide the FY 2007 amount by the number of payment units in each fee category to determine the unit fee. 3 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). 2 The percentage decrease of approximately 2.84 percent is based on the total amount of regulatory fees that was mandated by Congress to be collected in FY 2006, which included an amount of $288,771,000 in regulatory fees pursuant to section 9 of the Communications Act of 1934, as amended, and an additional $10,000,000 as required by section 3013 of the Deficit Reduction Act (Public Law 109-171). Together, the total amount of regulatory fees mandated by Congress to be collected in FY 2006 was $298,771,000. Also, the decrease in regulatory fee payments of approximately 2.84 percent in FY 2007 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, and then adjusted for rounding, the actual fee will likely differ by an amount more or less than 2.84 percent. For example, in industries where the number of payment units is declining, the per-unit regulatory fee amount for FY 2007 may actually be more than the amount for FY 2006. 3 In many instances, the regulatory fee amount is a flat fee per licensee or regulatee. However, in some instances the fee amount represents a per-unit fee (such as for International Bearer Circuits), a per-unit subscriber fee (such as for Cable, Commercial Mobile Radio Service
(CMRS)Cellular/Mobile and CMRS Messaging), 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 2007 regulatory fees proposed in Attachment D, we further adjusted the FY 2006 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. 4 Where appropriate, we adjusted and/or rounded our final estimates to take into consideration events that may impact the number of units for which regulatees submit payment, such as waivers and/or exemptions that may be filed in FY 2007, 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 2007 payment units are based on FY 2006 actual payment units, the number may have been rounded or adjusted slightly to account for these variables. 4 The databases we consulted include, but are not limited to, the Commission's Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System
(CDBS)and Cable Operations and Licensing System (COALS). 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. 5 5 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) to account for the messaging industry's declining subscriber base. 6 We note that between FY 1997 and FY 2006, the CMRS Messaging subscriber base declined 79.7 percent from 40.8 million to 8.3 million, respectively. 7 We propose to continue the same approach for regulatory fees applicable to the messaging industry in FY 2007, thereby maintaining the industry's regulatory fee at $0.08 per subscriber. We seek comment on this proposal. 6 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2003,* MD Docket No. 03-83, Report and Order, 18 FCC Rcd 15985, 15992, para. 21 (2003). 7 The 40.8 million number represents a unit estimate from *Assessment and Collection of Regulatory Fees for Fiscal Year 1997* , MD Docket No. 96-186, Report and Order, 12 FCC Rcd 17161 (1997), and the 8.3 million figure represents the number of paid units as of fiscal year end 2006. 3. Broadband Radio Service (BRS)/Educational Broadband Service
(EBS)8. Recently, the Commission adopted a megahertz-based formula for BRS licensees with tiered fees by markets, similar to but more complex than the Commission's annual scale of regulatory fees paid by broadcast television stations. 8 According to this formula, annual fees will be charged on a per-megahertz basis based upon three categories of Basic Trading Areas
(BTA)population rankings: 9 Licensees in BTA rankings 1-60 will pay the highest fee, licensees in BTA rankings 61-200 will pay a lesser fee, and licensees in BTA rankings 201-493 will pay the lowest fee. 10 Because this formula is complex, we are assessing the impact of this methodology (using a per-megahertz formula and a BTA populating ranking) on the manner in which regulatory fees are calculated for this class of licensees. We seek comment on how to devise a simple method of calculating regulatory fees that incorporates BTA population rankings and a per-megahertz fee for future fiscal years. We specifically seek comment on a formula for calculating regulatory fees that not only incorporates BTAs and a per-megahertz fee, but a formula that is also sensitive to rural operators in less densely populated areas. We seek comment on this proposal. Due to the complexities mentioned above and the need for detailed analysis, however, we will not implement any such changes for FY 2007. 8 *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,* Order on Reconsideration and Fifth Memorandum Opinion and Order and Third Memorandum Opinion and Order and Second Report and Order, 21 FCC Rcd 5606, 5756-5759, paras. 367-376
(2006)( *BRS/EBS Second Report and Order* ). 9 For BRS licensees that are licensed by geographic licensed service area (GSA), the BTA is the geographic center point of where its GSA is located. 10 *BRS/EBS Second Report and Order,* 21 FCC Rcd 5759, para. 376. (Generally, BTAs ranked 1-60 have a population greater than 1 million, BTAs ranked 61-200 have a population 250,000 to 1 million, and BTAs ranked 201-493 have a population of less than 250,000.) 4. International Bearer Circuits 9. On February 6, 2006, VSNL Telecommunications
(US)Inc.
(VSNL)filed a Petition for Rulemaking urging the Commission to modify the current international bearer circuit fee rules and policies as applied to non-common carrier ( *i.e.* , private) submarine cable operators. 11 We issued a Public Notice designating the proceeding as RM-11312 and requesting comment on the Petition. 12 We continue to review the record in that proceeding. 11 *See* Petition for Rulemaking of VSNL Telecommunications
(US)Inc., RM-11312 (filed Feb. 6, 2006) (VSNL Petition). 12 *See* Consumer and G overnmental Affairs Bureau, Reference Information Center, *Public Notice* , Report No. 2759 (rel. Feb. 15, 2006). 5. Interconnected Voice Over Internet Protocol Service Providers 10. We tentatively conclude that providers of interconnected voice over Internet Protocol (“VoIP”) service 13 should pay regulatory fees. During FY 2006, the Commission concluded that providers of interconnected VoIP services should contribute to the Universal Service Fund. 14 Based on section 9's broad mandate that the Commission “assess and collect regulatory fees to recover the costs” of regulatory activities 15 and our analysis in the *2006 Interim Contribution Methodology Order* , we tentatively conclude that the Commission has the legal authority to extend regulatory fee obligations to interconnected VoIP service providers. 16 We seek comment on whether we should assess regulatory fees on providers of interconnected VoIP services based on their revenue, which would be consistent with the regulatory fee methodology used for interstate telecommunications service providers, or whether we should assess regulatory fees using a numbers-based approach, which would be consistent with the methodology used for CMRS providers. 13 *See* 47 CFR 9.3 for the definition of interconnected VoIP service. 14 *See Universal Service Contribution Obligations for Providers of Interconnected Voice Over Internet Protocol
(VoIP)Service,* WC Docket No. 06-122, Report and Order and Notice of Proposed Rulemaking, 21 FCC Rcd 7518, 7541, para. 46
(2006)( *2006 Interim Contribution Methodology Order* ). 15 47 U.S.C. 159(1). 16 *See 2006 Interim Contribution Methodology Order* 21 FCC Rcd at 7541, paras. 46-47 (finding that Title I gives the Commission subject matter jurisdiction over interconnected VoIP services and that imposition of a universal service contribution obligation is reasonably ancillary to effective performance of the Commission's obligations under section 254 of the Act). Here, the regulatory fee obligation would be reasonably ancillary to the Commission's obligations under section 9 of the Act. B. Administrative and Operational Issues 11. We seek 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 invite comment on ways to improve these processes. 1. Use of Fee Filer 12. We continue to encourage regulatees to use the Commission's online electronic Fee Filer application. Using the Commission's Fee Filer application reduces paperwork burdens on payors because it eliminates the need to file a FCC Form 159. Regulatees submitting more than twenty-five
(25)Form 159-Cs are strongly encouraged to use Fee Filer when sending their regulatory fee payment. We note that Fee Filer will accept credit card payments of up to $99,999.99. 2. Proposals for Notification and Collection of Regulatory Fees 13. 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 2007 regulatory fee cycle. Regulatees are then expected to pay their yearly regulatory fees by filing FCC Form 159 or by accessing the Commission's Fee Filer web application. As a general practice, we will not send regulatory fee material to regulatees via surface mail. However, in the event that regulatees do not have access to the Internet, we will mail public notices and other relevant material upon request. Regulatees and the general public may request such information by contacting the FCC Financial Operations HelpDesk at
(877)480-3201, Option 4. We seek comment on ways to improve our administrative processes. 14. As discussed above, we do not send public notices and fact sheets to regulatees en masse. We propose, however, to continue to send specific regulatory fee pre-bills or assessment notifications via surface mail to the select fee categories discussed below. 17 Pre-bills are hardcopy billing statements that the Commission mails to certain regulatees. Currently, the Commission only sends pre-bills to interstate telecommunications service providers (ITSPs) and satellite space station licensees. The remaining regulatees do not receive pre-bills. We are pursuing our pre-billing initiatives as part of our effort to modernize our financial practices. These initiatives also provide licensees with notification of upcoming regulatory fees. We seek comment on expanding our pre-billing initiatives to include other regulatory fee service categories. a. Interstate Telecommunications Service Providers (ITSPs) 17 An assessment is a proposed statement of the amount of regulatory fees owed by an entity to the Commission (or proposed subscriber count to be ascribed for purposes of setting the entity's regulatory fee) but it is not entered into the Commission's accounting system as a current debt. A pre-bill is considered an account receivable in the Commission's accounting system. Pre-bills reflect the amount owed and have a payment due date of the last day of the regulatory fee payment window. Consequently, if a pre-bill is not paid by the due date, it becomes delinquent and is subject to our debt collection procedures. *See also* 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910. 15. In FY 2001, we began mailing pre-completed FCC Form 159-W assessments to carriers in an effort to assist them in paying their Interstate Telecommunications Service Provider
(ITSP)regulatory fee. The fee amount on FCC Form 159-W was calculated from the FCC Form 499-A worksheet. Beginning in FY 2004, we mailed the completed FCC Form 159-W as a pre-bill, rather than as an assessment of amount due. Other than the manner in which Form 159-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. We seek comment on continuing this pre-billing process in FY 2007. 16. We also propose to round lines 14 (total subject revenues) and 16 (total regulatory fee owed) on FCC Form 159-W to the nearest dollar. Line 14 must be rounded to a whole dollar amount because this data field is linked to the FCC Form 159 Remittance Advice Block 25A (quantity), which can only accept whole numbers. It logically follows that if line 14 must be rounded, then the form's final line that calculates the total fee owed (line 16) should be rounded to the nearest dollar, as well. Also, rounding lines 14 and 16 will nominally ease the filing and payment burdens of our Form 159-W filers. We seek comment on these proposals and on other ways that we could improve our pre-billing initiative for ITSPs. b. Satellite Space Station Licensees 17. Beginning in FY 2004, we mailed regulatory fee pre-bills via surface mail to licensees in our two satellite space station service categories. Specifically, geostationary orbit space station
(GSO)licensees 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 pre-bills requesting regulatory fee payment for systems that were licensed by the Commission and operational on or before October 1 of the respective fiscal year. 18. For FY 2007, we propose to continue mailing pre-bills for our GSO and NGSO satellite space station categories. We seek comment on this proposal. We emphasize that the pre-bills that we propose to generate for our GSO and NGSO licensees will only be for the satellite or system aspects of their respective operations. GSO and NGSO licensees typically have regulatory fee obligations in other service categories (such as earth stations, broadcast facilities, *etc.* ), and we expect satellite operators to meet their full fee payment obligation for all of their FCC holdings. We seek comment on our proposal to generate regulatory fee pre-bills for our two satellite space station service categories. c. Additional Service Categories for Billing 19. We propose to expand our section 9 regulatory fee pre-billing initiative to include the service categories for Earth Stations and Cable Television Relay Service
(CARS)Stations, beginning in FY 2007. Pre-billing can be accomplished for these categories because they are comprised of relatively few payment units (relative to many other categories in our Schedule of Regulatory Fees), and because the Commission maintains licensing databases for both categories. We seek comment on our proposal to send regulatory fee pre-bills via surface mail to licensees of Earth Stations and CARS. d. Media Services Licensees 20. Beginning in FY 2003, we sent fee assessment notifications via surface mail to media services entities on a per-facility basis. The notifications provided the assessed fee amount for the facility in question, as well as the data attributes that determined the fee amount. We have since refined this initiative with improved results. 18 We propose to continue our assessment initiative for media services licensees this year. 19 We seek comment on this proposal. 18 Some of those refinements have been to provide licensees with a Commission-authorized web site to update or correct any information concerning their facilities, and to amend their fee-exempt status, if need be. Also, our notifications now provide licensees with a telephone number to call in the event that they need customer assistance. The notifications themselves have been refined so that licensees of fewer than four facilities receive individual fee assessment postcards for their facilities; whereas licensees of four or more facilities now receive a single assessment letter that lists all of their facilities and the associated regulatory fee obligation for each facility. 19 Fee assessments are proposed again 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 2007. 21. Consistent with procedures used last year, we propose to mail assessment notifications to licensees to their primary record of contact populated in CDBS (Consolidated Database System) and to their secondary record of contact, if available. We will continue to make the Commission-authorized web site available to licensees to update or correct any information concerning their facilities and to amend their fee-exempt status, if need be. 20 We seek comment on this proposal. 20 The Commission-authorized web site for media services licensees is *http://www.fccfees.com* . 22. Under our proposal, licensees must still submit a completed FCC Form 159 Remittance Advice with their fee payments. The assessment notifications cannot be used as a substitute for a completed Form 159. e. Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Services Assessments 23. As we have done in prior years, we propose to mail 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. 21 Consistent with existing practice, the letters will not include OCNs with their respective assigned number counts, but rather, an aggregate total of assigned numbers for each carrier. We also propose to continue our procedure of giving entities an opportunity to amend their subscriber counts by sending two rounds of assessment letters—an initial assessment and a final assessment letter. We seek comment on this proposal. 21 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2005 and Assessment and Collection of Regulatory Fees for Fiscal Year 2004* , MD Docket Nos. 05-59 and 04-73, Report and Order and Order on Reconsideration, 20 FCC Rcd 12259, 12264, paras. 38-44
(2005)( *FY 2005 R&O and Order on Recon* ). 24. If the number of subscribers on the initial assessment letter differs from the subscriber count the service provider provided on its NRUF form, the carrier can correct its subscriber count by returning the assessment letter or by contacting the Commission and stating a reason for the change, such as the purchase or the sale of a subsidiary, including the date of the transaction, and any other information that will help to justify a reason for the change. 25. If we receive no response or correction to our initial assessment letter, we will expect the fee payment to be based on the number of subscribers listed on the initial assessment. We will review all responses to initial assessment letters and determine whether a change in the number of subscribers is warranted. We will then generate and mail a final assessment letter. The final assessment letter will inform carriers as to whether or not we accept the changed number of subscribers. As in previous years, operators will certify their subscriber counts in Block 30 of the FCC Form 159 Remittance Advice when making their regulatory fee payments. We seek comment on our current procedures of assessing CMRS subscriber counts (for NRUF filers), and other ways to improve the process. 26. Although an initial and a final assessment letter will be mailed to carriers that have filed an NRUF form, some carriers may not be sent a letter of assessment because they did not file the NRUF form. We propose that these carriers compute their fee payment using the standard methodology 22 that is currently in place for CMRS Wireless services ( *e.g.* , compute their subscriber counts as of December 31, 2006), 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 may 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, the Commission will assess the carrier for the difference between what was paid and what should have been paid. 22 Federal Communications Commission, *Regulatory Fees Fact Sheet: What You Owe—Commercial Wireless Services for FY 2005* at 1 (rel. Jul. 2005). 27. We, therefore, propose to
(1)derive the subscriber count from NRUF data based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”);
(2)provide carriers with an opportunity to revise their subscriber counts at the time when the initial assessment letter is mailed; and
(3)require carriers to confirm their subscriber counts at the aggregate level using data in the NRUF report. We seek comment on these proposals. f. Cable Television Subscribers 28. We propose to continue to permit cable television operators to base their regulatory fee payment on their company's aggregate year-end subscriber count, rather than requiring them to sub-report subscriber counts on a per community unit identifier
(CUID)basis on the FCC Form 159 Remittance Advice. We seek comment on this proposal. Operators, after providing their company's aggregate subscriber count in Block 25A of the FCC Form 159, will still be required to certify the accuracy of the subscriber count in Block 30. This practice has worked well for the Commission the past three fiscal years and has eased administrative burdens for the cable television industry. 29. Last year, for the first time, we sent a message to e-mail addresses populated in the Media Bureau's Cable Operations and Licensing System (COALS) to notify recipients of the FY 2006 regulatory fee payment due date and the fee amount for basic cable television subscribers. We propose to continue this effort for FY 2007. We also propose to discontinue our practice of sending fee assessment letters via surface mail to cable television operators who are on file as having paid regulatory fees the previous fiscal year. We seek comment on our proposals. 3. Streamlined Regulatory Fee Payment Process for Commercial Mobile Radio Service
(CMRS)Cellular and Mobile Providers 30. In FY 2006, we streamlined the CMRS payment process by eliminating the requirement for CMRS providers to identify their individual call signs when making their regulatory fee payment, requiring instead for CMRS providers to pay their regulatory fees only at the aggregate subscriber level without having to identify their various call signs. 23 We propose to continue this practice in FY 2007. We seek comment on this proposal. As an additional measure to reduce the administrative burden on CMRS licensees, we propose to consolidate the CMRS cellular and CMRS mobile fee categories into one fee category, thereby eliminating the requirement for CMRS providers to separate their subscriber counts into CMRS cellular and CMRS mobile fee categories during the regulatory fee payment process. We seek comment on this proposal. 23 *See Assessment and Collection of Regulatory Fees for Fiscal Year 2006* , MD Docket No. 06-68, Report and Order, 21 FCC Rcd 8092, 8105, para. 48 (2006). 31. In our FY 1998 *Report and Order* , the Commission classified Wireless Communications Service (WCS), which included Personal Communications Services (Part 24), as a CMRS Mobile Service, stating that the Commercial Mobile Radio Service
(CMRS)is “an ‘umbrella’ descriptive term attributed to various existing broadband services authorized to provide interconnected mobile radio services.” 24 However, beginning in FY 1998, a separate fee code was provided for Personal Communications Service
(PCS)to monitor the number of units in this category of service. In recent years, the need to track the number of units for CMRS cellular and CMRS mobile separately has become unnecessary, especially for regulatory fee purposes. Therefore, beginning in FY 2007, we propose to consolidate the CMRS cellular and CMRS mobile fee categories into one CMRS fee category. To illustrate, in FY 2007 the CMRS cellular fee category of “0711” and the CMRS mobile fee category of “0712” would be consolidated into the fee category of “0711.” Licensees paying regulatory fees for CMRS cellular and CMRS mobile will need only to identify their aggregate subscriber unit totals under the fee code of “0711.” We seek comment on this proposal. 24 *See Assessment and Collection of Regulatory Fees for Fiscal Year 1998* , MD Docket No. 98-36, Report and Order, 63 FR 35847, para. 49, and in Attachment H, Detailed Guidance on Who Must Pay Regulatory Fees, para. 14 (1998). 4. Future Streamlining of the Regulatory Fee Assessment and Collection Process 32. 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 pre-bills. III. Procedural Matters A. Payment of Regulatory Fees 1. De Minimis Fee Payment Liability 33. 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 2007 regulatory fees. 2. Standard Fee Calculations and Payment Dates 34. The Commission will, for the convenience of payers, accept fee payments made in advance of the window for the payment of regulatory fees. Licensees are reminded that, under our current rules, the responsibility for payment of fees by service category is as follows:
(a)*Media Services:* Regulatory fees must be paid for initial construction permits that were granted on or before October 1, 2006 for AM/FM radio stations, VHF/UHF television stations and satellite television stations. Regulatory fees must be paid for all broadcast facility licenses granted on or before October 1, 2006. In instances where a permit or license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the permit or license as of the fee due date.
(b)*Wireline (Common Carrier) Services:* Regulatory fees must be paid for authorizations that were granted on or before October 1, 2006. In instances where a permit or license is transferred or assigned after October 1, 2006, 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): Regulatory fees must be paid for authorizations that were granted on or before October 1, 2006. The number of subscribers, units or circuits on December 31, 2006 will be used as the basis from which to calculate the fee payment. The first eleven regulatory fee categories in our Schedule of Regulatory Fees ( *see* Attachment D) pay what we refer to as “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount of their 5-year or 10-year term of initial license, and only pay regulatory fees again for the license at the time of its next renewal. So while we include these eleven categories in our Schedule of Regulatory Fees to publicize the fee amounts, we do not actually collect these fees on an annual basis.
(d)*Multichannel Video Programming Distributor Services (cable television operators and CARS licensees):* Regulatory fees must be paid for the number of basic cable television subscribers as of December 31, 2006. 25 Regulatory fees also must be paid for CARS licenses that were granted on or before October 1, 2006. In instances where a CARS license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the license as of the fee due date. 25 Cable television system operators should compute their basic subscribers as follows: Number of single family dwellings + number of individual households in multiple dwelling unit (apartments, condominiums, mobile home parks, etc.) paying at the basic subscriber rate + bulk rate customers + courtesy and free service. Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by basic annual subscription rate for individual households. Operators may base their count on “a typical day in the last full week” of December 2006, rather than on a count as of December 31, 2006.
(e)*International Services:* Regulatory fees must be paid for earth stations, geostationary orbit space stations and non-geostationary orbit satellite systems that were licensed and operational on or before October 1, 2006. In instances where a license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the license as of the fee due date. Regulatory fees must be paid for international bearer circuits, the payments of which are determined by the number of active circuits as of December 31, 2006. 26 26 Regulatory fees for International Bearer Circuits are to be paid by facilities-based common carriers that have active international bearer circuits in any transmission facility for the provision of service to an end user or resale carrier, which includes active circuits to themselves or to their affiliates. In addition, non-common carrier satellite operators must pay a fee for each circuit sold or leased to any customer, including themselves or their affiliates, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. Non-common carrier submarine cable operators are also to pay fees for any and all international bearer circuits sold on an indefeasible right of use
(IRU)basis or leased to any customer, including themselves or their affiliates, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. *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 35. 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 47 CFR 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. In case of partial payments (underpayments) of regulatory fees, the licensee will be given credit for the amount paid, but if it is later determined that the fee paid is incorrect or not timely paid, then the 25 percent late charge penalty (and other charges and/or sanctions, as appropriate) will be assessed on the portion that is not paid in a timely manner. 36. 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 37. With respect to this NPRM, an Initial Regulatory Flexibility Analysis (IRFA), is contained in Attachment A of the Appendix. 27 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. 27 *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 38. This NPRM 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 39. *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. 28 *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. 29 Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b). 28 *See* 47 CFR 1.1206(b); *see also* 47 CFR 1.1202, 1.1203. 29 *See* 47 CFR 1.1206(b)(2). F. Filing Requirements 40. *Comments and Replies.* Pursuant to sections 1.415 and 1.419 of the Commission's rules, 30 interested parties may file comments on or before the dates indicated on the first page of this document. Comments may be filed using:
(1)the Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)procedures for filing paper copies. 31 30 *See id.* 1.415, 1419. 31 *Electronic Filing of Documents in Rulemaking Proceedings,* 13 FCC Rcd 11322 (1998). 41. *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. 42. *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. 43. *Availability of Documents.* Comments, reply comments, and *ex parte* submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC, 20554. These documents will also be available free online, via ECFS. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. 44. *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 45. 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. 46. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. Attachment A—Initial Regulatory Flexibility Analysis 47. As required by the Regulatory Flexibility Act (RFA), 32 the Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on small entities by the policies and rules in the present NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed on or before the dates indicated on the first page of this NPRM. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 33 In addition, the NPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . 34 32 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). 33 5 U.S.C. 603(a). 34 *Id.* I. Need for, and Objectives of, the Proposed Rules 48. This rulemaking proceeding is initiated to obtain comments concerning the Commission's proposed amendment of its Schedule of Regulatory Fees in the amount of $290,295,160, 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 49. 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. 35 35 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 50. 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. 36 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 37 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 38 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. 39 36 5 U.S.C. 603(b)(3). 37 5 U.S.C. 601(6). 38 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** .” 39 15 U.S.C. 632. 51. Small Businesses. Nationwide, there are a total of 22.4 million small businesses, according to SBA data. 40 40 SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002). 52. Small Organizations. Nationwide, there are approximately 1.6 million small organizations. 41 41 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 53. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 42 Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. 43 We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” 44 Thus, we estimate that most governmental jurisdictions are small. 42 5 U.S.C. 601(5). 43 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, page 272, Table 415. 44 We assume that the villages, school districts, and special districts are small, and total 48,558. U.S. Census Bureau, Statistical Abstract of the United States: 2006, section 8, page 273, Table 417. For 2002, Census Bureau data indicate that the total number of county, municipal, and township governments nationwide was 38,967, of which 35,819 were small. *Id.* 54. 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.” 45 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. 46 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. 45 15 U.S. C. 632. 46 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). 55. 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. 47 According to Commission data, 48 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. 47 13 CFR 121.201, North American Industry Classification System (NAICS) code 517110. 48 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. 56. 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. 49 According to Commission data, 50 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 94 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1.500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed action. 49 13 CFR 121.201, NAICS code 517110. 50 “Trends in Telephone Service” at Table 5.3. 57. 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. 51 According to Commission data, 52 143 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. 51 13 CFR 121.201, NAICS code 517310. 52 “Trends in Telephone Service” at Table 5.3. 58. 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. 53 According to Commission data, 54 770 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. 53 13 CFR 121.201, NAICS code 517310. 54 “Trends in Telephone Service” at Table 5.3. 59. 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. 55 According to Commission data, 56 654 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. 55 3 CFR 121.201, NAICS code 517110. 56 “Trends in Telephone Service” at Table 5.3. 60. 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. 57 According to Commission data, 58 316 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. 57 13 CFR 121.201, NAICS code 517110. 58 “Trends in Telephone Service” at Table 5.3. 61. 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. 59 According to Commission data, 60 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. 59 13 CFR 121.201, NAICS code 517110. 60 “Trends in Telephone Service” at Table 5.3. 62. 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. 61 According to Commission data, 62 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. 61 13 CFR 121.201, NAICS code 517310. 62 “Trends in Telephone Service” at Table 5.3. 63. 800 and 800-Like Service Subscribers. 63 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. 64 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. 65 According to our data, at the end of December 2004, the number of 800 numbers assigned was 7,540,453; the number of 888 numbers assigned was 5,947,789; the number of 877 numbers assigned was 4,805,568; and the number of 866 numbers assigned was 5,011,291. We do not have data specifying the number of these subscribers that are independently owned and operated or have 1,500 or fewer employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, we estimate that there are 7,540,453 or fewer small entity 800 subscribers; 5,947,789 or fewer small entity 888 subscribers; 4,805,568 or fewer small entity 877 subscribers, and 5,011,291 or fewer entity 866 subscribers. 63 We include all toll-free number subscribers in this category, including those for 888 numbers. 64 13 CFR 121.201, NAICS code 517310. 65 “Trends in Telephone Service” at Tables 18.4, 18.5, 18.6, and 18.7. 64. International Service Providers. There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 66 66 13 CFR 121.201, NAICS codes 517410 and 517910. 65. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” 67 For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. 68 Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. 69 Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 67 U.S. Census Bureau, 2002 NAICS Definitions, “517410 Satellite Telecommunications”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 68 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 517410 (issued Nov. 2005). 69 *Id.* An additional 38 firms had annual receipts of $25 million or more. 66. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” 70 For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. 71 Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. 72 Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. 70 U.S. Census Bureau, 2002 NAICS Definitions, “517910 Other Telecommunications” *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 71 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 517910 (issued Nov. 2005). 72 *Id.* An additional 14 firms had annual receipts of $25 million or more. 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” 73 and “Cellular and Other Wireless Telecommunications.” 74 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 75 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 76 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 77 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 78 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 73 13 CFR 121.201, NAICS code 517211. 74 13 CFR 121.201, NAICS code 517212. 75 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 517211 (issued Nov. 2005). 76 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 77 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 517212 (issued Nov. 2005). 78 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 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.” 79 Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. 80 According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. 81 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. 82 Thus, under this size standard, the great majority of firms can be considered small entities. 79 Office of Management and Budget, North American Industry Classification System, page 515 (1997). NAICS code 518111, “On-Line Information Services.” 80 13 CFR 121.201, NAICS code 518111. 81 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). 82 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 two broad economic census categories of “Paging” 83 and “Cellular and Other Wireless Telecommunications.” 84 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 85 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 86 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 87 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 88 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 83 13 CFR 121.201, NAICS code 517211. 84 13 CFR 121.201, NAICS code 517212. 85 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 517211 (issued Nov. 2005). 86 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 87 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS code 517212 (issued Nov. 2005). 88 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 70. Common Carrier Paging. As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.” 89 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. 90 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. 91 Thus, under this category and associated small business size standard, the great majority of firms can be considered small. 89 13 CFR 121.201, NAICS code 513322 (changed to 517212 in October 2002). 90 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). 91 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 addition, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 92 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. 93 The SBA has approved this definition. 94 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. 95 Fifty-seven companies claiming small business status won 440 licenses. 96 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. 97 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. 98 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. 99 Of these, we estimate that 589 are small, under the SBA-approved small business size standard. 100 We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition. 92 *Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems* , Second Report and Order, 12 FCC Rcd 2732, 2811-2812, paras. 178-181 ( *Paging Second Report and Order* ); *see also Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems* , Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 10030, 10085-10088, paras. 98-107 (1999). 93 *Paging Second Report and Order* , 12 FCC Rcd at 2811, para. 179. 94 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, from Aida Alvarez, Administrator, Small Business Administration, dated Dec. 2, 1998. 95 *See* “929 and 931 MHz Paging Auction Closes,” *Public Notice* , 15 FCC Rcd 4858 (WTB 2000). 96 *See* “929 and 931 MHz Paging Auction Closes,” *Public Notice* , 15 FCC Rcd 4858 (WTB 2000). 97 *See* “Lower and Upper Paging Band Auction Closes,” *Public Notice* , 16 FCC Rcd 21821 (WTB 2002). 98 *See* “Lower and Upper Paging Bands Auction Closes,” *Public Notice* , 18 FCC Rcd 11154 (WTB 2003). 99 “Trends in Telephone Service” at Table 5.3. 100 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. 101 The SBA has approved these definitions. 102 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. 101 *Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS)* , Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997). 102 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Dec. 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. 103 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. 104 According to “Trends in Telephone Service” data, 437 carriers reported that they were engaged in wireless telephony. 105 We have estimated that 260 of these are small under the SBA small business size standard. 103 13 CFR 121.201, NAICS code 517212. 104 13 CFR 121.201, NAICS code 517212. 105 “Trends in Telephone Service” at Table 5.3. 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. 106 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. 107 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. 108 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. 109 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. 110 106 *See Amendment of Parts 20 and 24 of the Commission's Rules—Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap* , Report and Order, 11 FCC Rcd 7824, 7850-7852, paras. 57-60 (1996); see also 47 CFR § 24.720(b). 107 *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, para. 60. 108 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA (Dec. 2, 1998). 109 FCC News, “Broadband PCS, D, E and F Block Auction Closes,” No. 71744 (rel. Jan. 14, 1997). 110 *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. 111 Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction No. 58. There were 24 winning bidders for 217 licenses. 112 Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. 111 *See* “C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,” *Public Notice* , 16 FCC Rcd 2339 (2001). 112 *See* “Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58,” *Public Notice* , 20 FCC Rcd 3703 (2005). 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. 113 Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. 114 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. 115 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. 116 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. 117 The SBA has approved these small business size standards. 118 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. 119 Three of these claimed status as a small or very small entity and won 311 licenses. 113 *Implementation of Section 309(j) of the Communications Act—Competitive Bidding Narrowband PCS* , Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175, 196, para. 46 (1994). 114 *See* “Announcing the High Bidders in the Auction of ten Nationwide Narrowband PCS Licenses, Winning Bids Total $617,006,674,” *Public Notice* , PNWL 94-004 (rel. Aug. 2, 1994); “Announcing the High Bidders in the Auction of 30 Regional Narrowband PCS Licenses; Winning Bids Total $490,901,787,” *Public Notice* , PNWL 94-27 (rel. Nov. 9, 1994). 115 *Amendment of the Commission's Rules to Establish New Personal Communications Services, Narrowband PCS* , Second Report and Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd 10456, 10476, para. 40 (2000). 116 *Amendment of the Commission's Rules to Establish New Personal Communications Services, Narrowband PCS* , Second Report and Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd 10456, 10476, para. 40 (2000). 117 *Amendment of the Commission's Rules to Establish New Personal Communications Services, Narrowband PCS* , Second Report and Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd 10456, 10476, para. 40 (2000). 118 *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 Dec. 2, 1998. 119 *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. 120 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. 121 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. 122 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. 123 The SBA has approved these small size standards. 124 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. 125 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. 126 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. 127 On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status. 120 *See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59)* , Report and Order, 17 FCC Rcd 1022 (2002). 121 *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, para. 172 (2002). 122 *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, para. 172 (2002). 123 *See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59)* , Report and Order, 17 FCC Rcd 1022, 1088, para. 173 (2002). 124 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated Aug. 10, 1999. 125 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 17 FCC Rcd 17272 (WTB 2002). 126 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice* , 18 FCC Rcd 11873 (WTB 2003). 127 *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. 128 This auction, previously scheduled for January 13, 2003, has been postponed. 129 128 *Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules* , Second Memorandum Opinion and Order, 16 FCC Rcd 1239 (2001). 129 *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. 130 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. 131 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. 132 SBA approval of these definitions is not required. 133 An auction of 52 Major Economic Area
(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. 134 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. 135 130 *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). 131 *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, para. 108 (2000). 132 *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, para. 108 (2000). 133 *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, para. 108 n.246 (for the 746-764 MHz and 776-794 MHz bands, the Commission is exempt from 15 U.S.C. 632, which requires Federal agencies to obtain SBA approval before adopting small business size standards). 134 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice,* 15 FCC Rcd 18026 (2000). 135 *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. 136 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. 137 The SBA has approved these small business size standards for the 900 MHz Service. 138 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. 139 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. 140 136 47 CFR 90.814(b)(1). 137 47 CFR 90.814(b)(1). 138 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated Aug. 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. 139 *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). 140 *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. 141 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. 142 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. 141 *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). 142 *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. 143 The Commission estimates that most such licensees are small businesses under the SBA's small business standard. For census data on these entities, see paragraph 65, *supra.* 143 13 CFR 121.201, NAICS code 517212. 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. 144 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. 145 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. 146 The SBA has approved these small size standards. 147 Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. 148 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. 149 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. 150 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. 151 144 *Amendment of Part 90 of the Commission's Rules to Provide For the Use of the 220-222 MHz Band by the Private Land Mobile Radio Service,* Third Report and Order, 12 FCC Rcd 10943, 11068-70, paras. 291-295 (1997). 145 *Id.* at 11068, paras. 291. 146 *Id.* 147 *See* Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA, (Jan. 6, 1998). 148 *See generally* “220 MHz Service Auction Closes,” *Public Notice,* 14 FCC Rcd 605 (1998). 149 *See* “FCC Announces It is Prepared to Grant 654 Phase II 220 MHz Licenses After Final Payment is Made,” *Public Notice,* 14 FCC Rcd 1085 (1999). 150 *See* “Phase II 220 MHz Service Spectrum Auction Closes,” *Public Notice,* 14 FCC Rcd 11218 (1999). 151 *See* “Multi-Radio Service Auction Closes,” *Public Notice,* 17 FCC Rcd 1446 (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 use the broad census category, “Cellular and Other Wireless Telecommunications.” This definition provides that a small entity is any such entity employing no more than 1,500 persons. 152 The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs. 153 152 *See* 13 CFR 121.201, NAICS code 517212. 153 *See generally* 13 CFR 121.201. 86. The Commission's 1994 Annual Report on PLMRs 154 indicates that at the end of fiscal year 1994, there were 1,087,267 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that the revised rules in this context could therefore potentially impact small entities covering a great variety of industries. 154 Federal Communications Commission, 60th Annual Report, Fiscal Year 1994, at para. 116. 87. Fixed Microwave Services. Fixed microwave services include common carrier, 155 private operational-fixed, 156 and broadcast auxiliary radio services. 157 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. 158 The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. We note, however, that the common carrier microwave fixed licensee category includes some large entities. 155 *See* 47 CFR 101 et seq. (formerly, Part 21 of the Commission's Rules) for common carrier fixed microwave services (except Multipoint Distribution Service). 156 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. 157 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. 158 13 CFR 121.201, NAICS code 517212. 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. 159 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. 160 The SBA has approved these small business size standards. 161 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. 159 *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). 160 *Id.* 161 *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); *See* Letter to Margaret Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Hector Barreto, Administrator, SBA, (Jan. 18, 2002). 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. 162 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. 163 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. 164 The SBA has approved these small business size standards in the context of LMDS auctions. 165 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 winning that won 119 licenses. 162 *See Rulemaking to Amend Parts 1, 2, 21, 25, of the Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band, Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services,* Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rule Making, 12 FCC Rcd 12545, 12689-90, para. 348 (1997). 163 *See Rulemaking to Amend Parts 1, 2, 21, 25, of the Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band, Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services,* Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rule Making, 12 FCC Rcd 12545, 12689-90, para. 348 (1997). 164 *See Rulemaking to Amend Parts 1, 2, 21, 25, of the Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band, Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services,* Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rule Making, 12 FCC Rcd 12545, 12689-90, para. 348 (1997). 165 *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). 166 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. 167 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. 168 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. 169 The SBA has approved of these definitions. 170 A subsequent auction is not yet scheduled. Given the success of small businesses in the previous auction, and the prevalence of small businesses in the subscription television services and message communications industries, we assume for purposes of this analysis that in future auctions, many, and perhaps most, of the licenses may be awarded to small businesses. 166 *See* “Interactive Video and Data Service
(IVDS)Applications Accepted for Filing,” *Public Notice,* 9 FCC Rcd 6227 (1994). 167 *Implementation of Section 309(j) of the Communications Act—Competitive Bidding,* Fourth Report and Order, 9 FCC Rcd 2330 (1994). 168 *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). 169 *Id.* 170 *See* Letter to Daniel Phythyon, Chief, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA, (Jan. 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. 171 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. 172 These definitions have been approved by the SBA. 173 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. 171 *Amendment of Part 90 of the Commission's Rules to Adopt Regulations for Automatic Vehicle Monitoring Systems,* Second Report and Order, 13 FCC Rcd 15182, 15192 para. 20 (1998); *see also* 47 CFR 90.1103. 172 *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, para. 20; *see also* 47 CFR 90.1103. 173 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated Feb. 22, 1999. 92. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. 174 A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). 175 In the present context, we will use the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. 176 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. 174 The service is defined in section 22.99 of the Commission's Rules, 47 CFR 22.99. 175 BETRS is defined in sections 22.757 and 22.759 of the Commission's Rules, 47 CFR 22.757 and 22.759. 176 13 CFR 121.201, NAICS code 517212. 93. Air-Ground Radiotelephone Service. 177 We have previously used the SBA's small business definition applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. 178 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as small entities under the SBA definition. For purpose of assigning Air-Ground Radiotelephone Service licenses through competitive bidding, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $40 million. 179 A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. 180 These definitions were approved by the SBA. 181 In May 2006, the Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service licenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning bidders winning two Air-Ground Radiotelephone Service licenses. Neither of the winning bidders claimed small business status. 177 The service is defined in 22.99 of the Commission's Rules, 47 CFR 22.99. 178 13 CFR 121.201, NAICS codes 517212. 179 *Amendment of Part 22 of the Commission's Rules to Benefit the Consumers of Air-Ground Telecommunications Services, Biennial Regulatory Review—Amendment of Parts 1, 22, and 90 of the Commission's Rules, Amendment of Parts 1 and 22 of the Commission's Rules to Adopt Competitive Bidding Rules for Commercial and General Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103 and 05-42,* Order on Reconsideration and Report and Order, 20 FCC Rcd 19663, paras. 28-42 (2005). 180 *Id.* 181 *See* Letter from Hector V. Barreto, Administrator, U.S. Small Business Administration, to Gary D. Michaels, Deputy Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission, dated September 19, 2005. 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, we will use the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 182 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. 183 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. 182 13 CFR 121.201, NAICS code 517212. 183 *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. 184 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. 185 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 186 184 This service is governed by Subpart I of Part 22 of the Commission's Rules. *See* 47 CFR 22.1001-22.1037. 185 13 CFR 121.201, NAICS code 517212. 186 *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. 187 “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. 188 The SBA has approved of these definitions. 189 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. 190 Seven winning bidders claimed status as small or very small businesses and won 611 licenses. On May 18, 2005, the Commission completed an auction (Auction No. 59) of 4,226 Multiple Address Systems
(MAS)licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses. 187 *See Amendment of the Commission's Rules Regarding Multiple Address Systems,* Report and Order, 15 FCC Rcd 11956, 12008, para. 123 (2000). 188 *Id.* 189 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA, (June 4, 1999). 190 *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 small business size standard developed by the SBA would be more appropriate. The applicable size standard in this instance appears to be that of “Cellular and Other Wireless Telecommunications”. This definition provides that a small entity is any such entity employing no more than 1,500 persons. 191 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. 191 *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. 192 For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 193 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 194 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 195 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 196 Thus, under this second category and size standard, the majority of firms can, again, be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent 197 and TRW, Inc. It is our understanding that Teligent and its related companies have fewer than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity. 192 13 CFR 121.201, NAICS code 517212. 193 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517211 (issued Nov. 2005). 194 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 195 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517212 (issued Nov. 2005). 196 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 197 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. 198 “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. 199 The SBA has approved these definitions. 200 The Commission will not know how many licensees will be small or very small businesses until the auction, if required, is held. 198 *Amendments to Parts 1, 2, 87 and 101 of the Commission's Rules To License Fixed Services at 24 GHz,* Report and Order, 15 FCC Rcd 16934, 16967, para. 77
(2000)(24 GHz Report and Order); *see also* 47 CFR 101.538(a)(2). 199 *24 GHz Report and Order,* 15 FCC Rcd at 16967, para. 77; *see also* 47 CFR 101.538(a)(1). 200 *See* Letter to Margaret W. Wiener, Deputy Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Gary M. Jackson, Assistant Administrator, SBA, (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). 201 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. 202 The SBA has approved of this standard. 203 The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). 204 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. In addition, hundreds of “pre-auction stations” were licensed to incumbent MDS licensees prior to implementation of 309(j) of the Commissions Act of 1934, 47 U.S.C. 309(j). 201 *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, para. 7
(1995)( *MDS Auction R&O* ). 202 47 CFR 21.961(b)(1). 203 *See* Letter to Margaret Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC, from Gary Jackson, Assistant Administrator for Size Standards, SBA, (March 20, 2003) (noting approval of $40 million size standard for MDS auction). 204 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 at 9608, para. 34 (1995). 101. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, 205 which includes all such companies generating $12.5 million or less in annual receipts. 206 The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” 207 The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: All such firms having $13.5 million or less in annual receipts. 208 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 209 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. 210 Thus, under this size standard, the majority of firms can be considered small. 205 13 CFR 121.201, NAICS code 517510. 206 *Id.* 207 U.S. Census Bureau, 2002 NAICS Definitions, “517510 Cable and Other Program Distribution”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 208 13 CFR 121.201, NAICS code 517510. 209 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510 (issued November 2005). 210 *Id.* An additional 61 firms had annual receipts of $25 million or more. 102. Finally, concerning ITFS, we note that educational institutions are included in this analysis as small entities. 211 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. 211 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 Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” 212 The SBA has created a small business size standard for Television Broadcasting entities, which is: Such firms having $13 million or less in annual receipts. 213 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 had revenues of $12 (twelve) million or less. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations 214 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. 212 U.S. Census Bureau, 2002 NAICS Definitions, “515120 Television Broadcasting” (partial definition); *http://www.census.gov/epcd/naics02/def/NDEF515.HTM.* 213 13 CFR 121.201, NAICS code 515120. 214 “Concerns are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 CFR 21.103(a)(1). 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. There are also 2,117 low power television stations (LPTV). 215 Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard. 215 *FCC News Release,* “Broadcast Station Totals as of September 30, 2005.” 106. Radio Broadcasting. The SBA defines a radio broadcast entity that has $6 million or less in annual receipts as a small business. 216 Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” 217 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 218 are included. 219 Our estimate, therefore likely overstates the number of small businesses that might be affected by our action. 216 *See* OMB, North American Industry Classification System: United States, 1997, at 509
(1997)(Radio Stations) (NAICS code 515112). 217 *Id.* 218 “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). 219 “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). 107. 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. 220 220 13 CFR 121.201, NAICS codes 513111 and 513112. 108. The Commission estimates that there are approximately 3,868 FM translators and boosters. 221 The Commission does not collect financial information on any broadcast facility, and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most commercial translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business ($6.5 million for a radio station or $13.0 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated. 222 221 FCC News Release, “Broadcast Station Totals as of September 30, 2004.” 222 15 U.S.C. 632. 109. Cable and Other Program Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” 223 The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: All such firms having $13.5 million or less in annual receipts. 224 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 225 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. 226 Thus, under this size standard, the majority of firms can be considered small. 223 U.S. Census Bureau, 2002 NAICS Definitions, “517510 Cable and Other Program Distribution”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.* 224 13 CFR 121.201, NAICS code 517510. 225 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510 (issued November 2005). 226 *Id.* An additional 61 firms had annual receipts of $25 million or more. 110. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. 227 Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. 228 In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. 229 Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. 230 Thus, under this second size standard, most cable systems are small. 227 47 CFR 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. *Implementation of Sections of the 1992 Cable Act: Rate Regulation* , Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995). 228 These data are derived from: R.R. Bowker, *Broadcasting & Cable Yearbook 2006* , “Top 25 Cable/Satellite Operators,” pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, *Television & Cable Factbook 2006* , “Ownership of Cable Systems in the United States,” pages D-1805 to D-1857. 229 47 CFR 76.901(c). 230 Warren Communications News, *Television & Cable Factbook 2006* , “U.S. Cable Systems by Subscriber Size,” page F-2 (data current as of Oct. 2005). The data do not include 718 systems for which classifying data were not available. 111. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 231 The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. 232 Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. 233 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, 234 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 231 47 U.S.C. 543(m)(2); *see* 47 CFR 76.901(f) & nn. 1-3. 232 47 CFR 76.901(f); *see* Public Notice, *FCC Announces New Subscriber Count for the Definition of Small Cable Operator,* DA 01-158 (Cable Services Bureau, Jan. 24, 2001) 233 These data are derived from: R.R. Bowker, *Broadcasting & Cable Yearbook 2006,* “Top 25 Cable/Satellite Operators,” pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, *Television & Cable Factbook 2006,* “Ownership of Cable Systems in the United States,” pages D-1805 to D-1857. 234 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). 112. Open Video Services. Open Video Service
(OVS)systems provide subscription services. 235 The SBA has created a small business size standard for Cable and Other Program Distribution. 236 This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of these are currently providing service. 237 Affiliates of Residential Communications Network, Inc.
(RCN)received approval to operate OVS systems in New York City, Boston, Washington, D.C., 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. 235 *See* 47 U.S.C. 573. 236 13 CFR 121.201, NAICS code 517510. 237 *See http://www.fcc.gov/csb/ovs/csovscer.html* (current as of March 2002). 113. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: All such firms having $13.5 million or less in annual receipts. 238 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 239 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. 240 Thus, under this size standard, the majority of firms can be considered small. 238 13 CFR 121.201, NAICS code 517510. 239 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the United States: 2002, NAICS code 517510 (issued November 2005). 240 *Id.* An additional 61 firms had annual receipts of $25 million or more. 114. Multichannel Video Distribution and Data Service. MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. 241 These definitions were approved by the SBA. 242 On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. 243 Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status. 244 241 *Amendment of Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission's Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct Boradcast Satellite Licenses and their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to provide A Fixed Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, Memorandum Opinion and Order and Second Report and Order,* 17 FCC Rcd 9614, 9711 para. 252 (2002). 242 *See* Letter from Hector V. Barreto, Administrator, U.S. Small Business Administration, to Margaret W. Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, dated February 13, 2002. 243 *See* “Multichannel Video Distribution and Data Service Auction Closes,” Public Notice, 19 FCC Rcd 1834 (2004). 244 *See* “Auction of Multichannel Video Distribution and Data Service Licenses Closes; Winning Bidders Announced for Auction No. 63,” *Public Notice,* 20 FCC Rcd 19807 (2005). 115. Amateur Radio Service. These licensees are held by individuals in a noncommercial capacity; these licensees are not small entities. 116. 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. 245 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. 246 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. 245 13 CFR 121.201, NAICS code 517212. 246 *Amendment of the Commission's Rules Concerning Maritime Communications,* Third Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998). 117. 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. 247 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). 248 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. 249 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. 247 47 CFR Part 90. 248 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. 249 13 CFR 121.201, NAICS Code 517212. 118. Public Safety Radio Services. Public Safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 250 There are a total of approximately 127,540 licensees in these services. Governmental entities 251 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. 252 250 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. 251 47 CFR 1.1162. 252 5 U.S.C. 601(5). IV. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 119. With certain exceptions, the Commission's Schedule of Regulatory Fees applies to all Commission licensees and regulatees. Most licensees will be required to count the number of licenses or call signs authorized, complete and submit an FCC Form 159 Remittance Advice, and pay a regulatory fee based on the number of licenses or call signs. 253 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. 253 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. 120. 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. 121. 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. 254 If payment is not received, new or pending applications may be dismissed, and existing authorizations may be subject to rescission. 255 Further, in accordance with the Debt Collection Improvement Act of 1996 (DCIA), Public Law 194-134, 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. 256 Nonpayment of regulatory fees is a debt owed the United States pursuant to 31 U.S.C. 3711 *et seq.* , and the DCIA. Appropriate enforcement measures as well as administrative and judicial remedies, may be exercised by the Commission. Debts owed to the Commission may result in a person or entity being denied a federal loan or loan guarantee pending before another federal agency until such obligations are paid. 257 254 47 CFR 1.1164. 255 47 CFR 1.1164(c). 256 Public Law 104-134, 110 Stat. 1321 (1996). 257 31 U.S.C. 7701(c)(2)(B). 122. 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. 258 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. 258 47 CFR 1.1166. V. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 123. 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. 259 In the *NPRM* , we have sought comment on alternatives that might simplify our fee procedures or otherwise benefit filers, including small entities, while remaining consistent with our statutory responsibilities in this proceeding. 259 5 U.S.C. 603. 124. The Omnibus Appropriations Act for FY 2007, Public Law 109-383, 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)2007. 260 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. 260 47 U.S.C. 159(a). 125. Several categories of licensees and regulatees are exempt from payment of regulatory fees. *See* , *e.g.* , footnote 253, *supra* . Also, waiver procedures provide regulatees, including small entity regulatees, relief in exceptional circumstances. See Section IV, *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 2007 In order to calculate individual service fees for FY 2007, we adjusted FY 2006 payment units for each service to more accurately reflect expected FY 2007 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System
(CDBS)and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireline Competition Bureau's *Trends in* Telephone *Service* and the Wireless Telecommunications Bureau's *Numbering Resource Utilization Forecast.* We tried to obtain verification for these estimates from multiple sources and, in all cases; we compared FY 2007 estimates with actual FY 2006 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 2007 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 2007 payment units are based on FY 2006 actual payment units, it does not necessarily mean that our FY 2007 projection is exactly the same number as FY 2006. It means that we have either rounded the FY 2007 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 databases. 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 reports. CMRS Messaging Services Based on Wireless Telecommunications Bureau Competition Report findings. AM/FM Radio Stations Based on CDBS data, adjusted for exemptions, and actual FY 2006 payment units. UHF/VHF Television Stations Based on CDBS data, adjusted for exemptions, and actual FY 2006 payment units. AM/FM/TV Construction Permits Based on CDBS data, adjusted for exemptions, and actual FY 2006 payment units. LPTV, Translators and Boosters, Class A Television Based on CDBS data, adjusted for exemptions, and actual FY 2006 payment units. Broadcast Auxiliaries Based on actual FY 2006 payment units. BRS (formerly MDS/MMDS) Based on Wireless Telecommunications Bureau reports and actual FY 2006 payment units. Cable Television Relay Service
(CARS)Stations Based on data from Media Bureau's COALS database and actual FY 2006 payment units. Cable Television System Subscribers Based on publicly available data sources for estimated subscriber counts and actual FY 2006 payment units. Interstate Telecommunication Service Providers Based on actual FY 2006 interstate revenues reported on Telecommunications Reporting Worksheet, adjusted for FY 2007 revenue growth/decline for industry, and projections by the Wireline Competition Bureau. Earth Stations Based on International Bureau reports and actual FY 2006 payment units. Space Stations (GSOs & NGSOs) Based on International Bureau reports and actual FY 2006 payment units. International Bearer Circuits Based on International Bureau reports and actual FY 2006 payment units. International HF Broadcast Stations, International Public Fixed Radio Service Based on International Bureau reports and actual FY 2006 payment units. Attachment C—Calculation of FY 2007 Revenue Requirements and Pro-Rata Fees Fee category FY 2007 payment units Years FY 2006 revenue estimate Pro-rated FY 2007 revenue requirement 261 Computed new FY 2007 regulatory fee Rounded new FY 2007 regulatory fee Expected FY 2007 revenue PLMRS (Exclusive Use) 1,250 10 440,000 426,300 34 35 437,500 PLMRS (Shared use) 15,500 10 2,500,000 2,422,162 16 15 2,325,000 Microwave 4,350 10 1,700,000 1,647,070 38 40 1,740,000 218-219 MHz (Formerly IVDS) 3 10 1,650 1,599 53 55 1,650 Marine
(Ship)8,000 10 800,000 775,092 10 10 800,000 GMRS 16,000 5 425,000 411,768 5 5 400,000 Aviation (Aircraft) 8,800 10 300,000 290,659 3 5 440,000 Marine (Coast) 360 10 120,000 116,264 32 30 108,000 Aviation (Ground) 1,650 10 150,000 145,330 9 10 165,000 Amateur Vanity Call Signs 14,700 10 177,116 171,601 1.17 1.17 171,990 AM Class A 68 1 217,350 210,428 3,095 3,100 210,800 AM Class B 1,567 1 2,619,500 2,534,141 1,617 1,625 2,546,375 AM Class C 937 1 921,500 890,541 950 950 890,150 AM Class D 1,705 1 3,095,750 2,994,982 1,757 1,750 2,983,750 FM Classes A, B1 & C3 3,027 1 6,519,500 6,311,615 2,085 2,075 6,281,025 FM Classes B, C, C0, C1 & C2 3,002 1 7,924,300 7,675,996 2,557 2,550 7,655,100 AM Construction Permits 65 1 37,525 26,003 400 400 26,000 FM Construction Permits 262 205 1 115,000 117,898 575 575 117,875 Satellite TV 125 1 141,450 137,046 1,096 1,100 137,500 Satellite TV Construction Permit 3 1 1,710 1,657 552 550 1,650 VHF Markets 1-10 43 1 2,850,100 2,765,285 64,309 64,300 2,764,900 VHF Markets 11-25 61 1 2,914,275 2,827,462 46,352 46,350 2,827,350 VHF Markets 26-50 77 1 2,465,625 2,392,781 31,075 31,075 2,392,775 VHF Markets 51-100 115 1 2,372,200 2,300,839 20,007 20,000 2,300,000 VHF Remaining Markets 198 1 1,045,200 1,012,657 5,114 5,125 1,014,750 VHF Construction Permits 3 1 30,600 15,377 5,126 5,125 15,375 UHF Markets 1-10 91 1 1,846,750 1,787,645 19,644 19,650 1,788,150 UHF Markets 11-25 76 1 1,528,000 1,478,819 19,458 19,450 1,478,200 UHF Markets 26-50 115 1 1,284,075 1,242,489 10,804 10,800 1,242,000 UHF Markets 51-100 168 1 1,092,000 1,056,977 6,292 6,300 1,058,400 UHF Remaining Markets 183 1 331,925 321,590 1,757 1,750 320,250 UHF Construction Permits 1 22 1 33,725 38,517 1,751 1,750 38,500 Broadcast Auxiliaries 27,000 1 240,000 232,528 9 10 270,000 LPTV/Trans-lators/Boosters/Class A TV 3,400 1 1,218,000 1,180,077 347 345 1,173,000 CARS Stations 780 1 148,750 144,119 185 185 144,300 Cable TV Systems 64,500,000 1 49,770,000 48,220,399 0.74760 0.75 48,375,000 Interstate Tele-communication Service Providers 51,000,000,000 1 140,184,000 135,819,336 0.00266312 0.00266 135,660,000 CMRS Mobile Services (Cellular/Public Mobile) 229,000,000 1 42,000,000 40,596,052 0.177 0.18 41,220,000 CMRS Messaging Services 7,500,000 1 520,000 600,077 0.08 0.08 600,000 BRS 1,300 1 485,925 425,139 327 325 422,500 LMDS 410 1 90,750 134,077 327 325 133,250 International Bearer Circuits 6,500,000 1 7,791,000 7,548,425 1.16 1.16 7,540,000 International Public Fixed 1 1 1,925 1,865 1,865 1,875 1,875 Earth Stations 3,900 1 752,500 729,071 187 185 721,500 International HF Broadcast 5 1 4,100 3,972 794 795 3,975 Space Stations (Geostationary) 86 1 9,693,975 9,392,151 109,211 109,200 9,391,200 Space Stations (Non-Geostationary 6 1 721,350 698,891 116,482 116,475 698,850 ****** Total Estimated Revenue to be Collected 299,624,101 290,274,768 291,035,465 ****** Total Revenue Requirement 298,771,000 290,295,160 290,295,160 Difference 853,101 (20,392) 740,305 261 −0.028369018 factor applied based on the amount Congress designated for recovery through regulatory fees (Pub. L. 109-108 and 47 U.S.C. 159(a)(2)). 262 The AM and FM Construction Permit revenues and the VHF and 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. Attachment D—Proposed FY 2007 Schedule of Regulatory Fees Fee category Annual regulatory fee (U.S. $'s) PLMRS (per license) (Exclusive Use) (47 CFR part 90) 35 Microwave (per license) (47 CFR part 101) 40 218-219 MHz (Formerly Interactive Video Data Service) (per license) (47 CFR part 95) 55 Marine
(Ship)(per station) (47 CFR part 80) 10 Marine (Coast) (per license) (47 CFR part 80) 30 General Mobile Radio Service (per license) (47 CFR part 95) 5 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 15 PLMRS (Shared Use) (per license) (47 CFR part 90) 15 Aviation (Aircraft) (per station) (47 CFR part 87) 5 Aviation (Ground) (per license) (47 CFR part 87) 10 Amateur Vanity Call Signs (per call sign) (47 CFR part 97) 1.17 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .18 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Broadband Radio Service (formerly MMDS/ MDS) (per license) (47 CFR part 21) 325 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 325 AM Radio Construction Permits 400 FM Radio Construction Permits 575 TV (47 CFR part 73) VHF Commercial: Markets 1-10 64,300 Markets 11-25 46,350 Markets 26-50 31,075 Markets 51-100 20,000 Remaining Markets 5,125 Construction Permits 5,125 TV (47 CFR part 73) UHF Commercial: Markets 1-10 19,650 Markets 11-25 19,450 Markets 26-50 10,800 Markets 51-100 6,300 Remaining Markets 1,750 Construction Permits 1,750 Satellite Television Stations (All Markets) 1,100 Construction Permits—Satellite Television Stations 550 Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) 345 Broadcast Auxiliaries (47 CFR part 74) 10 CARS (47 CFR part 78) 185 Cable Television Systems (per subscriber) (47 CFR part 76) .75 Interstate Telecommunication Service Providers (per revenue dollar) .00266 Earth Stations (47 CFR part 25) 185 Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes DBS Service (per operational station) (47 CFR part 100) 109,200 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 116,475 International Bearer Circuits (per active 64KB circuit) 1.16 International Public Fixed (per call sign) (47 CFR part 23) 1,875 International
(HF)Broadcast (47 CFR part 73) 795 FY 2007 Schedule of Regulatory Fees (continued) FY 2007 Radio Station Regulatory Fees Population Served AM Class A AM Class B AM Class C AM Class D FM Classes A, B1 & C3 FM Classes B, C, C0, C1 & C2 <=25,000 625 475 400 475 575 725 25,001—75,000 1,225 925 600 725 1,150 1,250 75,001—150,000 1,825 1,150 800 1,200 1,600 2,300 150,001—500,000 2,750 1,950 1,200 1,425 2,475 3,000 500,001—1,200,000 3,950 2,975 2,000 2,375 3,900 4,400 1,200,001—3,000,00 6,075 4,575 3,000 3,800 6,350 7,025 >3,000,000 7,275 5,475 3,800 4,750 8,075 9,125 Attachment E—Factors, Measurements and Calculations That Go Into Determining Station Signal Contours and Associated Population Coverages AM Stations For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phasing, spacing and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane
(RMS)figure milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or modified standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in §§ 73.150 and 73.152 of the Commission's rules. 263 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 264 . Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area. 263 47 CFR 73.150 and 73.152. 264 *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. 265 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. 265 47 CFR 73.313. Attachment F—FY 2006 Schedule of Regulatory Fees Fee category Annual regulatory fee (U.S. $'s) PLMRS (per license) (Exclusive Use) (47 CFR part 90) 20 Microwave (per license) (47 CFR part 101) 85 218-219 MHz (Formerly Interactive Video Data Service) (per license) (47 CFR part 95) 55 Marine
(Ship)(per station) (47 CFR part 80) 10 Marine (Coast) (per license) (47 CFR part 80) 20 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) 2.08 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 Multipoint Distribution Services (MMDS/MDS) (per license sign) (47 CFR part 21) 275 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 275 AM Radio Construction Permits 395 FM Radio Construction Permits 575 TV (47 CFR part 73) VHF Commercial: Markets 1-10 64,775 Markets 11-25 47,775 Markets 26-50 32,875 Markets 51-100 20,450 Remaining Markets 5,025 Construction Permits 3,400 TV (47 CFR part 73) UHF Commercial: Markets 1-10 20,750 Markets 11-25 19,100 Markets 26-50 10,975 Markets 51-100 6,500 Remaining Markets 1,775 Construction Permits 1,775 Satellite Television Stations (All Markets) 1,150 Construction Permits—Satellite Television Stations 570 Low Power TV, TV/FM Translators & Boosters (47 CFR part 74) 420 Broadcast Auxiliary (47 CFR part 74) 10 CARS (47 CFR part 78) 175 Cable Television Systems (per subscriber) (47 CFR part 76) .79 Interstate Telecommunication Service Providers (per revenue dollar) .00264 Earth Stations (47 CFR part 25) 215 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) 111,425 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 120,225 International Bearer Circuits (per active 64KB circuit) 1.47 International Public Fixed (per call sign) (47 CFR part 23) 1,925 International
(HF)Broadcast (47 CFR part 73) 820 FY 2006 Schedule of Regulatory Fees (continued) 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 <=25,000 625 500 400 475 575 750 25,001-75,000 1,225 950 600 725 1,150 1,325 75,001-150,000 1,850 1,200 800 1,200 1,575 2,450 150,001-500,000 2,775 2,025 1,200 1,425 2,450 3,200 500,001-1,200,000 4,000 3,100 2,000 2,375 3,875 4,700 1,200,001-3,000,00 6,150 4,750 3,000 3,800 6,325 7,500 >3,000,000 7,375 5,700 3,800 4,750 8,050 9,750 [FR Doc. E7-8366 Filed 5-1-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 27 [WT Docket No. 06-150; CC Docket No. 94-102; WT Docket No. 01-309; WT Docket No. 03-264; WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86; FCC No. 07-72] Service Rules for the 698-806 MHz Band and Revision of the Commission's Rules Regarding Enhanced 911 Emergency Calling Systems, Hearing Aid-Compatible Telephones, and Public Safety Spectrum Requirements AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this Further Notice of Proposed Rulemaking (FNPRM), the Federal Communications Commission
(FCC)seeks comment on rules governing wireless licenses in the 698-806 MHz Band ( *i.e.* , the 700 MHz Band). This spectrum is currently occupied by television broadcasters and is being made available for wireless services, including public safety and commercial services, as a result of the digital television (“DTV”) transition. DATES: Comments due on or before May 23, 2007 and reply comments are due on or before May 30, 2007. Section 213 of the Consolidated Appropriations Act 2000 provides that rules governing frequencies in the 746-806 MHz Band are not subject to certain sections of the Paperwork Reduction Act. 1 The Commission is therefore not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band. 1 In particular, this exemption extends to the requirements imposed by Chapter 6 of Title 5, United States Code, Section 3 of the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of Title 44, United States Code. Consolidated Appropriations Act 2000, Pub. L. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B). ADDRESSES: You may submit comments, identified by WT Docket No. 06-150; CC Docket No. 94-102; WT Docket No. 01-309; WT Docket No. 03-264; WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86, 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: Include the docket numbers in the subject line of the message. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by E-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Paul Moon at
(202)418-1793, *paul.moon@fcc.gov* , Mobility Division, Wireless Telecommunications Bureau; Paul D'Ari at
(202)418-1550, *paul.d'ari@fcc.gov* , Spectrum and Competition Policy Division, Wireless Telecommunications Bureau; John Evanoff at
(202)418-0848, *john.evanoff@fcc.gov* , Public Safety and Homeland Security Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM), WT Docket No. 06-150; CC Docket No. 94-102; WT Docket No. 01-309; WT Docket No. 03-264; WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86, FCC No. 07-72, adopted April 25, 2007 and released April 27, 2007. The full text of the FNPRM is available for public inspection on the Commission's Internet site at *http://www.fcc.gov* . It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone
(202)488-5300; fax
(202)488-5563; e-mail *FCC@BCPIWEB.COM.* Initial Paperwork Reduction Act of 1995 Analysis This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget
(OMB)to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due 30 days after date of publication in the **Federal Register** . Comments should address:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
(b)the accuracy of the Commission's burden estimates;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In this present document, we have assessed the potential effects of the various proposals with regard to information collection burdens on small business concerns, and find that there are no results specific to businesses with fewer than 25 employees. The Commission notes, however, that Section 213 of the Consolidated Appropriations Act 2000 provides that rules governing frequencies in the 746-806 MHz Band become effective immediately upon publication in the **Federal Register** without regard to certain sections of the Paperwork Reduction Act. 2 The Commission, therefore, is not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band. 2 *Id* . Synopsis 1. In the Further Notice of Proposed Rulemaking (FNPRM), the FCC reaches tentative conclusions and makes proposals with respect to a limited number of key issues affecting licensing, service and technical rules for the 698-806 MHz Band ( *i.e.* , the 700 MHz Band). In addition, the FCC seeks comment on the “Public Safety Broadband Deployment Plan” proposal submitted by Frontline Wireless, LLC (Frontline). In seeking additional comment in this FNPRM, the FCC intends to rely on the extensive record that has already been developed in the three pending 700 MHz Band proceedings to inform its ultimate decisions. 2. In addition to the recently filed Frontline proposal, the three pending 700 MHz Band proceedings are:
(1)The 700 MHz Commercial Services proceeding, 3
(2)the 700 MHz Guard Bands proceeding, 4 and
(3)the 700 MHz Public Safety proceeding. 5 Because decisions on certain issues in the three proceedings are potentially interrelated, the FCC chooses to address them jointly in the FNPRM. In so doing, the FCC seeks to promote access to 700 MHz Band spectrum and the provision of service to consumers across the country, including in rural areas, as well as opportunities for broadband service for public safety users. 3 *See* Service Rules for the 698-749, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, and Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, *Notice of Proposed Rule Making, Fourth Further Notice of Proposed Rule Making, and Second Further Notice of Proposed Rule Making* , 21 FCC Rcd 9345 (2006). 4 *See* Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86, *Notice of Proposed Rule Making* , 21 FCC Rcd 10413 (2006). 5 *See* Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, PS Docket 06-229, WT Docket No. 96-86, *Ninth Notice of Proposed Rule Making* , 21 FCC Rcd 14837 (2006); Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, *Eighth Notice of Proposed Rulemaking* , WT Docket Nos. 96-86 and 05-157, 21 FCC Rcd 3668 (2006). 1. 700 MHz Band Commercial Services A. Lower 700 MHz Band 3. In the existing band plan for the Lower 700 MHz Band, the 48 megahertz of spectrum is divided into five blocks: three 12-megahertz paired blocks, each consisting of two 6-megahertz segments (Blocks A, B, and C); and two 6-megahertz unpaired blocks (Blocks D and E). The FCC proposes not to alter the spectrum blocks as currently sized and aligned. The spectrum comprising Lower 700 MHz Band Blocks C and D, consisting of 18 of the 48 megahertz in that band, has already been auctioned, and the remainder of the Lower 700 MHz Band is subject to a statutorily imposed auction schedule. The FCC also notes that a number of parties support retaining the current size of spectrum blocks in the Lower 700 MHz Band, including Blocks C and D of that Band. The FCC therefore proposes not to change the bandwidth of this licensed spectrum, but seeks further comment on this proposal. 4. The FCC also proposes that the unpaired spectrum in the E Block of the Lower 700 MHz Band remain over larger regional areas, licensed on an REAG basis. As the FCC has found before with respect to the 700 MHz band and to the AWS-1 band, and as supported by several commenters in this record, licenses based on large geographic areas offer certain benefits, such as allowing licensees to more easily take advantage of economies of scale to develop new technologies and services. The FCC seeks comment on whether this proposal would serve the public interest. 5. The FCC also proposes to adopt EAs as the geographic area for licenses in the A Block in the Lower 700 MHz Band. The FCC makes this proposal because there is significant support in the record for a mix of licenses, including EA licenses. Given the potential public interest benefits of placing one additional spectrum block over small geographic service areas (in addition to the B Block of the Lower 700 MHz Band), while also retaining significant portions of spectrum licenses in large geographic areas, the FCC seeks comment on whether it would serve the public interest to license the A Block across EAs. 6. In addition, the FCC proposes that CMAs be adopted as the geographic service area for licenses in the B Block of the Lower 700 MHz Band, which results in the availability of 734 CMA licenses in this block as opposed to 6 EAG licenses. In seeking comment on this proposal, the FCC notes that certain commenters specifically favor the B Block for reassignment on the basis of CMAs. The FCC also notes that, if it assigns CMAs in the Lower 700 MHz Band B Block, licensees will be afforded the opportunity to combine the B Block licenses with licenses in the adjacent C Block, which already have been licensed over CMAs (Metropolitan Statistical Areas and Rural Service Areas (MSAs/RSAs)). Accordingly, the FCC seeks comment on whether converting the B Block to CMA licensing could create opportunities for existing licensees in the C Block of the Lower 700 MHz Band, many of which include small or rural service providers, to create a larger block by acquiring another similarly sized spectrum block in the auction. B. Upper 700 MHz Band Commercial Services Band 7. The following proposals would make several changes to the size and location of the spectrum blocks in the band plan currently associated with the Upper 700 MHz Commercial Services Band and the 700 MHz Guard Bands, as well as the geographic area basis on which the various blocks should be licensed. The FCC considers these changes in large part because it is tentatively concluding to consolidate the proposed broadband portion of the 700 MHz Public Safety Band at the lower portion of the Public Safety spectrum, as discussed below, while consolidating narrowband operations to the upper portion of the Public Safety spectrum. If the FCC adopts such a proposal, the adjacency of Public Safety broadband spectrum to commercial broadband spectrum in the Upper 700 MHz Band may make it possible to make adjustments to the Guard Bands spectrum, rendering additional spectrum available for commercial use. Under one scenario, the existing Guard Band B block would be eliminated entirely, and the spectrum subsumed within the commercial spectrum in the Upper 700 MHz Band, resulting in a total of 34 megahertz available for auction. Under another scenario, the Guard Band B Block would be reduced from four to two megahertz, and the location of both the Guard Band A and B blocks would be shifted within the Upper 700 MHz Band. The FCC discusses the proposals below on this basis.
(i)Proposals Based on Elimination of the Guard Band B Block 8. *Elimination of the Guard Band B Block* . As noted, adoption of the FCC's proposal to consolidate the broadband Public Safety spectrum in the lower portion of the 700 MHz Public Safety Band may mean that the four megahertz of spectrum in the existing Guard Band B Block is no longer needed for use as a guard band for the adjacent 700 MHz public safety users, and may be consolidated with the rest of the commercial spectrum for more efficient and effective use. The following proposals would reconfigure the band plan associated with the 30 megahertz of commercial spectrum in the Upper 700 MHz Commercial Services Band and the four megahertz of commercial spectrum in the 700 MHz Guard Band B Block, providing 34 megahertz of commercial spectrum in the Upper 700 MHz Band available for auction throughout most of the nation. These proposals also contemplate the creation of a 12 megahertz paired block of commercial spectrum (758-764 MHz/788-794 MHz) adjacent to the 700 MHz Public Safety Band (hereinafter the “adjacent block”). 9. In addition to providing additional spectrum for wireless broadband services, the new adjacent block could help facilitate the transition to wireless broadband for public safety in its 700 MHz spectrum. Under these proposals, the adjacent block auction winner(s) would have to pay the costs of consolidating the 700 MHz Public Safety spectrum with the narrowband allocation at the upper end and the broadband allocation at the lower end. The FCC seeks comment on whether the adjacent block auction winner(s) should, as a license condition, be required to post a letter of credit or place certain funds in escrow to ensure the availability of funds to fulfill this obligation. The FCC also seeks comment on how to establish the amount and mechanism for implementing such an obligation. For example, how should the FCC assess the responsibility for relocating public safety operations if there are multiple adjacent block auction winners? 10. As mentioned above, the FCC currently holds 42 of the 52 Guard Band B Block licenses. These proposals would grandfather the remaining B Block licenses by allowing them to continue to operate in this spectrum under current rules. The FCC seeks comment on whether it should permit existing Guard Band B Block licensees to operate pursuant to the current technical specifications for the Guard Band B Block, which contemplate that Guard Band B Block licensees operate high-site, high-power communications. The FCC seeks comment on whether there would be potential for harmful interference to new, co-channel adjacent block licensees, or to public safety broadband operations, if the FCC adopts its proposals for the 700 MHz Public Safety spectrum. Similarly, if the FCC eliminates the existing Guard Band B block, resulting in a 12-megahertz 700 MHz commercial block immediately adjacent to the 700 MHz Public Safety block, the FCC seeks comment on whether any technical or operational restrictions or limitations would need to be adopted to protect against interference to the proposed broadband public safety operations. 11. In addition, the FCC seeks comment on whether it could facilitate clearing of the existing Guard Band B Block licensees by allowing the incumbents to include their licenses in the auction inventory in a “two-sided” auction, which would make available licenses currently held by incumbent Guard Band B Block licensees. Commenters should address details of how the existing licenses could be incorporated into the auction, and how the incumbent licensees could be compensated for “selling” a license. Are there other ways we should consider transitioning the existing Guard Band B Block licensees to the proposed band plan? 12. The FCC notes that a reconfiguration of the band plan for the 700 MHz Public Safety Band, as discussed below, may result in the relocated narrowband channels being blocked by existing Canadian TV broadcasters in certain border areas. Although the Canadian government has agreed to clear broadcasters from TV channels 63 and 68, there is as yet no such agreement for TV channels 64 and 69, where the narrowband channels would rest in their entirety after the proposed band plan reconfiguration. As a temporary solution to this problem, the FCC is also seeking comment below in this FNPRM on whether to allow, in border areas, narrowband voice communications within the 1 megahertz internal guard band that is designed (under a band reconfiguration) to protect the narrowband channels from the proposed broadband channels. The result of this option would be a corresponding loss of available spectrum for broadband communications, since a 1 megahertz internal guard band would still be necessary to protect the shifted narrowband channels from public safety broadband operations. 13. As a result, under these proposals, the FCC would impose a license condition upon the adjacent block licensee, creating a temporary easement into the adjacent block to facilitate the full 5 megahertz bandwidth of the proposed public safety broadband allocation under a band reconfiguration. This easement would terminate upon transition of the border broadcast operations and the subsequent transition of any relevant public safety users operating on the easement. The FCC also seeks comment on whether this easement should be triggered in all adjacent block licenses that share a border with Canada or Mexico, within each licensee's entire service area or within the portion that is within range of the conflicting broadcaster's service contour. In such a circumstance, should the adjacent block licensee be allowed to operate on a secondary basis within the easement spectrum, or not at all? Finally, the FCC seeks comment on whether we have the authority to impose this license condition on new adjacent block licensees. 14. *Proposal 1* . In the first proposal, the FCC would establish a new 22-megahertz C Block (comprised of two 11-megahertz blocks of paired spectrum), and a new 12-megahertz D Block (comprised of two 6-megahertz blocks of paired spectrum). Both the C and D Blocks in the Upper 700 MHz Band would be licensed on a REAG basis. 15. Creating a paired, 22-megahertz block of spectrum in a newly configured C Block would be responsive to the desires of some potential new entrants, as well as many other commenters who favored a large 20 megahertz block of spectrum in the Upper 700 MHz Band. For example, the Coalition for 4G in America has specifically advocated that we adopt a paired, 22-megahertz license in the Upper 700 MHz Band to support new entry. Under this proposal, licensees could purchase licenses in these contiguous blocks to create 34-megahertz licenses, which could provide unique opportunities to offer broadband services. Further, with regard to the larger 22-megahertz C Block REAG licenses, the FCC proposes, consistent with the desires expressed by the Coalition for 4G America, to auction this block on a combinatorial basis, which would further facilitate the aggregation of licenses at auction to create a nationwide footprint. The FCC seeks comment on this proposal. 16. *Proposal 2* . This proposed band plan contemplates licensing 34 megahertz of commercial spectrum in the Upper 700 MHz Band using a mix of REAG, EA and CMA geographic licensing areas. In conjunction with the proposed mix of geographic licensing areas in the Lower 700 MHz Band, this proposal seeks to approximate the balanced mix of geographic licensing sizes adopted by the FCC in the recent AWS-1 auction. It is intended to provide opportunities for small providers in rural areas, as well as new entrants seeking to establish a nationwide wireless footprint, and to afford bidders flexibility to aggregate smaller markets to create either a nationwide market, or large regional or other customized markets. 17. Specifically, this proposal would create two 11-megahertz licenses (each composed of two 5.5-megahertz paired blocks)—the C and D blocks—and a 12-megahertz E block (composed of two 6-megahertz paired blocks) similar to the block that is the subject of the Frontline proposal discussed below. Under this proposal, the FCC would license the C and D Blocks both on an EA basis, or the C Block on a CMA basis and the D Block on an EA basis. The FCC would license the E Block on a REAG basis. This band plan is not tied to adoption of either the Broadband Optimization Plan or the recently filed alternative plan. The FCC seeks specific comment on whether this proposal provides interested bidders with the flexibility to aggregate smaller markets to create either a nationwide market, large regional or other customized markets, as advocated by a broad array of parties. Also, the FCC seeks comment as to whether this band plan would offer some potential new entrants an opportunity to provide broadband services. Finally, the FCC seeks comment on whether to consider licensing these spectrum blocks set forth in this proposal on a different geographic basis.
(ii)Proposals Based on Modified 700 MHz Guard Bands 18. *Modification of the 700 MHz Guard Bands* . The following three proposals are premised on: 1) a shift of the Guard Band A Block from 746-747/776-777 MHz to 762-763/792-793 MHz; 2) a reduction of the Guard Band B Block from 4 megahertz to 2 megahertz; and 3) a shift of the Guard Band B Block from 762-764/792-794 MHz to 775-776 MHz/805-806 MHz. These actions would make 32 megahertz of spectrum in the Upper 700 MHz Band (746-762 MHz/776-792 MHz) available for commercial licensing. 19. *Proposal 3* . Access Spectrum/Pegasus have submitted an alternative proposal to the Commission for modification of the Guard Bands in the Upper 700 MHz Band, which could also impact the configuration of the Upper 700 MHz Band. According to Access Spectrum/Pegasus, its alternative plan would permit the auction of 32 megahertz of commercial broadband spectrum but leave the size of the public safety allocation unchanged. They also argue that it would accommodate the consolidation of the public safety narrowband spectrum by addressing the Canadian interference issues and public safety relocation costs, discussed above. Finally, by proposing an 11 megahertz block immediately adjacent to the Lower 700 MHz C Block, Access Spectrum/Pegasus assert that the alternative proposal addresses interference concerns on the record by moving the Guard Band A Block. 20. Access Spectrum/Pegasus propose to “shift” down the 700 MHz Public Safety Band by 1 megahertz to remedy potential narrowband interference issues with Canada and Mexico, if the FCC determines that a consolidation of the narrowband channels to the top of the public safety allocation is in the public interest. In implementing the “shift,” the current A Block at 746-747 MHz and 776-777 MHz would be displaced and relocated, and the Upper 700 MHz C Block would become a 22-megahertz block (comprised of two 11-megahertz paired blocks) through redistribution of a total of 2 megahertz of current B Block spectrum. According to Access Spectrum/Pegasus, a 22-megahertz C Block would address potential interference concerns and would be responsive to record support for an 11-megahertz paired block. The alternative plan proposes that the D Block would be a 10-megahertz block, (comprised of two 5-megahertz paired blocks) and that the newly configured A Block would be reduced from a total of 4 megahertz to 2 megahertz. In addition, with the displacement of the A Block, Access Spectrum/Pegasus propose that the FCC modify the licenses of the incumbent A Block licensees, essentially “repacking” the newly configured A Block with all current A and B Block licensees. 21. Access Spectrum/Pegasus propose to work with the FCC to ensure that all current A Block and B Block licensees can be accommodated in the newly configured A Block. Subject to certain conditions, Access Spectrum/Pegasus would also agree to pay for the transition of public safety narrowband operations in the band. Their proposed conditions include:
(a)the newly configured A Block sharing the same service rules as the Upper 700 MHz C and D Blocks, including application of our Secondary Markets rules; and
(b)the Commission removing the cellular architecture restrictions on the newly configured A Block. 22. The FCC seeks comment on Access Spectrum/Pegasus' alternative proposal and its likely effects on both the commercial and public safety users in the 700 MHz Band. The FCC also seeks comment on whether, and to what extent, the Commission should:
(a)Adopt certain, but not all, elements of the Access Spectrum/Pegasus alternative proposal;
(b)modify any elements of the proposal, adopt any additional requirements, or adopt any alternative requirements to achieve the same or similar public interest goals; and
(c)consider alternative approaches to encourage public-private partnerships for sharing spectrum between public safety users and commercial licensees in the 700 MHz Band. 23. The Access Spectrum/Pegasus proposal to shift down the public safety block by 1 megahertz would result in the overlap of public safety spectrum onto 1 megahertz of each pair of the current Guard Bands B Block licenses, including licenses that are currently encumbered in certain areas of the country. As a proposed solution to this problem, Access Spectrum/Pegasus offers to work with the FCC and the current Guard Bands B Block licensees to repack all of the current Guard Bands licensees into the newly configured A Block. The FCC notes that, in addition to Access Spectrum/Pegasus, two other current Guard Bands B Block license holders, PTPMS II and Harbor Guard Band, LLC, have indicated that they will work with the Commission to develop a plan that treats each party fairly. The FCC seeks comment on the extent to which it may rely on these private negotiations to resolve the spectrum overlap problem. The FCC is concerned that, if all incumbent Guard Bands licensees do not come to an agreement consistent with Access Spectrum/Pegasus' alternative proposal, public safety and commercial operations in areas with incumbent B Block licensees would be significantly curtailed. The FCC tentatively concludes that the Commission should reject Access Spectrum/Pegasus' alternative proposal if the incumbent licensees are unable to come to an agreement. 24. *Proposal 4.* If the FCC determines that it is able to modify the Upper 700 MHz Guard Bands in the manner proposed by Access Spectrum/Pegasus in connection with their alternative band plan proposal, it seeks comment on other options the Commission may take. For example, the FCC seeks specific comment on a band plan composed of a mix of REAG and EA geographic licensing areas for the Upper 700 MHz Band. In conjunction with the tentative conclusion regarding the mix of geographic licensing areas in the Lower 700 MHz Band, this band plan closely approximates the balanced mix of geographic licensing sizes adopted by the Commission in the recent AWS auction. This band plan will provide opportunities for small providers in rural areas, as well as new entrants seeking to establish a nationwide wireless footprint. 25. Specifically, this band plan proposes to license the C and D Blocks as two separate 11-megahertz licenses (each composed of two 5.5-megahertz paired blocks) on a REAG basis, with an E Block similar to the block that is the subject of the Frontline proposal discussed below licensed as a 10-megahertz license (composed of paired 5-megahertz blocks) on an EA basis. The FCC seeks specific comment on whether this proposal regarding the C and D Blocks will provide interested bidders with an opportunity to combine the two blocks into a single 22-megahertz license, which some potential new entrants have suggested would provide unique opportunities to provide broadband services. The FCC also seeks specific comment on whether one or both of the C and D Blocks should be auctioned on a combinatorial basis in order to further facilitate the aggregation of a nationwide footprint, and if so, how this should be accomplished. 26. In addition, the FCC proposes that if the Commission were to adopt the Frontline proposal discussed below (effectively treating the E block as a single national geographic license), it would license the D Block on an EA basis (and maintain the C Block on a REAG basis) in order to maintain a balanced mix of geographic license sizes. The FCC seeks comment on this proposal. 27. *Proposal 5.* Finally, the FCC seeks comment on an additional alternative proposal that assumes that we modify the guard bands. As set out below, under this band plan the FCC would license the C and D blocks as two 11-megahertz licenses (each composed of two 5.5-megahertz paired blocks), with a 10-megahertz E Block (composed of paired 5-megahertz block). The C Block would be licensed on a REAG basis, and the D and E Blocks would be licensed on an EA basis. 28. A number of parties have argued that a more flexible Upper 700 MHz band plan that includes a mix of licenses could better support a variety of business plans and ensures that the spectrum is made available to the bidders that value it most. There is a concern that a band plan with only REAGs in the Upper 700 MHz Band may artificially favor only the largest wireless incumbents or particular business models. These principles have been supported by a large number of commenters including large wireless providers, tribal governments, state regulators, and a large coalition of wireless providers. 6 These principles reflect the Commission's statutory obligation to ensure “an equitable distribution of licenses and services among geographic areas” and to “avoid [ ] excessive concentration of licenses * * * by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” 7 6 Balanced Consensus Plan Comments in WT Docket No. 06-150 at Attachment. 7 47 U.S.C. 309(j)(3). 29. The above band plan takes into account these several positions by providing for a mix of REAGs and EAs in the upper band plan based in part on the 700 MHz guard band and public safety spectrum restructuring advocated by Access Spectrum and Pegasus. By splitting the larger 22-megahertz block into two 11-megahertz blocks, the FCC increases the opportunity for all providers to actively participate in the auction. The FCC also would allow for combinatorial bidding on the C Block to facilitate the ability of entities to secure a national license. The FCC seeks comment on the merits of this proposal and on the specific areas selected for the blocks: two EAs and one REAG. Parties are also encouraged to comment on possible changes to this band plan in the event the FCC adopts a proposal similar to the one advanced by Frontline. Finally, the FCC seeks comment on the impact of this band plan on potential new entrants, some of which have argued that a larger 22-megahertz block is critical for their market entry business plans. C. Performance Requirements 30. Given the numerous and competing arguments offered by commenters, and considering the importance of rules that promote access to spectrum and the provision of service, the FCC seeks further comment on the performance requirements for the 700 MHz Commercial Services licensees. As the basis for its consideration, the FCC proposes to combine performance requirements based on geographic benchmarks and a “keep what you use” rule. Specifically, the FCC proposes that each licensee provide coverage of 25 percent of the geographic area of the license within three years of the grant of the initial license, 50 percent of this area within five years, and 75 percent of the area within eight years. The FCC seeks comment on this proposal, including its advantages and disadvantages. To the extent commenters believe these proposed benchmarks should be higher or lower, the FCC requests that they provide information that would corroborate the benefits of their proposed benchmarks and the costs and benefits of alternative approaches. Comments should address whether these specific geographic benchmarks would promote access to spectrum and the provision of service. 31. The FCC also proposes to consider the relevant service area to exclude all government land. Under this approach, a licensee with a geographic service area that includes land owned or leased by government would be able to meet the build-out benchmarks by employing a signal level that is sufficient to provide service to the relevant percentages of land in the service area that is not owned or leased by government. If a licensee employs a signal level that provides coverage to land that is owned or leased by government, the FCC seeks comment on whether the licensee could count this land area and coverage as part of its service area for purposes of measuring compliance with the performance benchmark. Similarly, the FCC seeks comment on whether it should adopt a “keep what you use” standard that also excludes those portions of the licensed areas that encompass land owned or leased by government. In particular, the Commission asks how a “keep what you use” rule that excluded government land would be applied in areas, such as Alaska, in which vast portions of the state or region include such land. 32. The FCC also seeks comment on the potential consequences for licensees that fail to meet the interim requirements to cover a minimum percentage of the geographic area of their license area. For example, licensees that fail to meet these benchmarks could have the length of their license term reduced. Alternatively, licensees that fail to meet the benchmarks could have their license area reduced under a proportionate “keep what you use” approach. Under this alternative, the reduction of the license area would be sufficient to create a resulting license area in which the area currently covered meets the relevant interim benchmark. For example, if a licensee employs a signal level sufficient to provide service to only 20 percent of the geographic area by the three-year benchmark, the licensee would be required to return a portion of the licensee's unserved area to the Commission, so that the covered area equals at least 25 percent of the remaining portion of the license area. A similar process would be used if a licensee fails to meet the five- and eight-year benchmarks. 33. The FCC also seeks comment on how it might apply a “keep what you use” rule to this proposal. In particular, the FCC asks whether it should apply such a standard to all of the licensees for the unauctioned 700 MHz Band Commercial Services or only to those licensees that fail to meet their geographic benchmarks. For example, the FCC could apply the “keep what you use” rule at the end of the license term, regardless of the level of construction by the licensee. Alternatively, licensees that fail to meet the 75 percent geographic area coverage requirement could be subject to a “keep what you use” rule applied either at the 8-year benchmark or at the end of the license term, while licensees that meet the 8-year benchmark could be exempt from a “keep what you use” rule. 34. In addition, the FCC asks commenters to address the process by which it should reclaim unused spectrum under a “keep what you use” rule, and specifically, how such spectrum should be made available to new users. For example, the FCC seeks comment on whether parties that hold licenses for other spectrum in the same geographic area should be eligible to acquire the unused spectrum of another licensee after the Commission reclaims this spectrum and makes it available via competitive bidding. Similarly, the FCC seeks comment on whether the initial licensee should be eligible to bid on spectrum that it previously held as part of its original license. For both these alternatives, the FCC asks that commenters address how a particular policy would help promote service to the unserved area and whether there would be a risk of negative effects, such as a loss of potential competition. 35. The FCC also proposes to apply its performance requirements on an EA and CMA basis only. Under such an approach, licensees with REAGs would be required to employ a signal level sufficient to provide adequate service to at least 25 percent of the geographic area of each EA in its license area within three years, 50 percent of the geographic area of each of these EAs within five years, and 75 percent of the geographic area of each of these EAs within eight years. REAG licensees that fail to meet the interim requirement in any EA within their license areas would lose a portion of the geographic area of that EA, such that the coverage of the remaining portion of the EA would be sufficient to meet the relevant benchmark. 36. The FCC proposes that licensees demonstrate their compliance with benchmarks by filing maps and other supporting documents with the Commission. Would such information be sufficient to provide the FCC with easily identified areas, which could be reclaimed and reassigned via competitive bidding under a “keep what you use” approach? The FCC also asks for comment on whether it should reclaim the spectrum in unused areas in pre-defined units, such as counties. Those commenters that recommend a county-based “keep what you use” standard also should provide recommendations on how the FCC should apply this standard in the event a licensee serves only a small portion of a county, such as a highway or an area that is adjacent to a county that has more coverage by the licensee. The FCC seeks comment on these alternatives. 37. In addition, assuming licensees with REAGs are required to meet the performance requirements on an EA basis, the FCC proposes that these licensees would have to demonstrate coverage for each EA within their license area. Licenses based on EAs or CMAs would have to demonstrate coverage for their respective geographic license areas. 38. Finally, the FCC seeks comment on any other proposal that would similarly apply build-out requirements to these licensees more stringent than the substantial service standard applied under our current rules, and on how such proposals could be implemented. For example, should the FCC use population rather than geographic benchmarks? D. Incumbent Eligibility 39. The FCC also seeks comment on the proposal presented by Media Access Project and the Ad Hoc Public Interest Spectrum Coalition
(PISC)to encourage the entry of new competitors by excluding incumbent local exchange carriers (ILECs), incumbent cable operators, and large wireless carriers from eligibility for licenses in the 700 MHz Band. In the alternative, PISC suggests that these incumbents only be eligible for licenses in the 700 MHz band through structurally separate affiliates, which it contends would make it possible to detect whether the incumbent receives more favorable treatment than unaffiliated providers. The FCC also seeks comment on whether it should encourage the entry of new broadband competitors through lesser restrictions on eligibility for obtaining new licenses, both at auction and in the secondary market. More particularly, it seeks comment on whether only parties not affiliated with existing wireline broadband service providers, including both DSL and cable providers, should be eligible to hold one or more blocks of the Upper 700 MHz C Block spectrum. Alternatively, should the FCC restrict eligibility for the Upper 700 MHz C Block licenses to parties not affiliated with in-region wireline broadband service providers? Finally, as an alternative to limiting the parties eligible for new licenses in the 700 MHz Band, the FCC seeks comment on whether parties unaffiliated with incumbent wireline broadband service providers should receive a bidding credit on licenses in the Upper 700 MHz C Block. The FCC also seeks comment on how such new entrant bidding credits should be coordinated with existing bidding credits for small businesses, *i.e.* , should new entrant credits be cumulative or exclusive of small business bidding credits. 2. 700 MHz Guard Bands A. Band Plan Proposals 40. The FCC tentatively concludes that it will not adopt the Broadband Optimization Plan (BOP), or other proposals, to the extent that they propose a reallocation of commercial spectrum for public safety use, or the reassignment of spectrum outside of the competitive bidding process. The FCC believes that Congress's express instructions regarding the allocation of commercial and public safety spectrum in the 700 MHz Band statutorily prohibits it from reallocating this spectrum at this time, and it therefore cannot reallocate commercial spectrum for public safety use as proposed by the BOP and other plans. Similarly, the FCC believes that it is required to use a competitive bidding process to assign the spectrum that has been allocated for commercial use pursuant to these statutory instructions, and therefore must also deny the BOP and the critical infrastructure industries
(CII)proposals on this basis. Even if the FCC possessed legal authority to adopt the BOP and CII proposals, the FCC believes these proposals are not in the public interest because they would assign additional spectrum to current licensees without competitive bidding. The FCC is also concerned that the BOP could result in interference between 700 MHz Band public safety and commercial operations. 41. In Section 337(a) of the Communications Act, Congress mandated that the FCC allocate “spectrum between 746 MHz and 806 MHz, inclusive” ( *i.e.* , the Upper 700 MHz Band) by designating 24 megahertz of the spectrum “for public safety services” and 36 megahertz of the spectrum “for commercial use to be assigned by competitive bidding pursuant to Section 309(j).” As directed by Congress, the FCC allocated 24 megahertz of this spectrum for public safety use at 764-776 MHz and 794-806 MHz and 36 megahertz of this spectrum for commercial use at 746-764 MHz and 776-794 MHz. The 36 megahertz of Upper 700 MHz Band spectrum allocated for commercial use included the Guard Bands. The FCC finds that the reallocation of commercial spectrum to public safety contemplated by the various Guard Bands proposals—in particular, the BOP, the Ericsson plan, and the revised Alcatel-Lucent plan—would appear to be inconsistent with Section 337. Even if Section 337(a) does not establish a permanent legislative bar on reallocating the Upper 700 MHz Band, the FCC believes that it would be contrary to Congress' intent in enacting Section 337 to consider modifying the commercial and public safety allocations in the band before the licensees have had a meaningful opportunity to use unencumbered spectrum as initially envisioned (an opportunity that is unlikely to be fully available before the end of the DTV transition in 2009). 42. In accordance with Section 337's mandate that commercial spectrum in the 700 MHz Band be assigned by competitive bidding, the FCC established a licensing framework providing that mutually exclusive applications in this band would be subject to competitive bidding pursuant to Section 309(j) of the Act. This licensing scheme resulted in two auctions of the Guard Band licenses. The FCC finds that it lacks legal authority to assign to proponents of the BOP, or CII, additional commercial spectrum in the Upper 700 MHz Band absent competitive bidding, because any such action would be inconsistent with the auction requirements in Sections 337(a). Section 337(a)(2) prescribes competitive bidding as the method of assigning commercial spectrum in the Upper 700 MHz Band. The FCC finds that for the same reasons that it cannot reallocate the band at this time, it cannot alter the method of assignment at this time. 43. The FCC also believes that the BOP proposal for assigning licenses outside the competitive bidding process would not serve the public interest. The FCC seeks comment on its public policy concerns and any similar policy concerns, including its assessment that license assignment by auction is preferable to license assignment by private negotiation or other non-auction methods. The FCC also seeks comment on potential interference concerns, including the possibility that operations in the proposed internal public safety guard band could be undertaken by public safety licensees. In addition, the FCC seeks comment on the possibility that a C Block licensee might have to limit emissions at the lower portion of its authorized spectrum block in some manner, which could limit its ability to fully utilize its block and thereby limit service offerings. 44. *Access Spectrum/Pegasus Alternative Proposal.* Acknowledging potential legal concerns with the BOP, especially with respect to the proposed reallocation of spectrum from commercial use to public safety services, Access Spectrum/Pegasus have submitted an alternative proposal to the Commission for modification of the Guard Bands in the Upper 700 MHz Band, which is discussed in detail above. In addition to the FCC's discussion of this proposal above, it notes its tentative conclusion above that Section 337 and the public interest weigh against awarding 700 MHz spectrum outside of the competitive bidding process at this time. The FCC also notes, however, that Access Spectrum/Pegasus do not seek any additional spectrum in their alternative proposal, but instead seek to have the FCC modify their 1 megahertz paired A Block license to specify operations in a new 1 megahertz paired A Block license at different frequencies. The FCC seeks comment on whether the alternative proposal sufficiently addresses Section 337 and public interest concerns regarding the assignment of spectrum outside of the competitive bidding process. The FCC also seeks comment on whether the licensed geographic areas in the new A Block should be the same as in the current A Block. B. Other Guard Band Issues 45. The FCC seeks further, limited comment on what it should do if it decides to leave the existing Guard Bands substantially intact. For example, assuming the FCC modifies the public safety allocation, the B Block's role as a critical juncture between adjacent commercial and public safety broadband spectrum would potentially be enhanced. After a reconfiguration of the public safety allocation, the B Block would rest between large commercial and public safety spectrum blocks, both of which are well-suited for broadband communications. In that context, the FCC could provide incumbent B Block licensees, as well as future licensees via auction, greater technical and operational flexibility than currently exists by revising its rules regarding restrictions on cellular architectures, and mandating low-site, low-power system architectures. Such initiatives could afford B Block licensees the previously unavailable potential to offer compatible broadband services within their paired 2 megahertz of spectrum, thereby creating additional opportunities for efficient and effective use of the spectrum. These opportunities could include entering into public/private partnerships with the adjacent public safety broadband operator(s), partnering with other commercial licensees to deploy commercial broadband systems, and attracting a broader pool of potential leasing partners interested in deploying broadband. 46. Because the FCC is committed to resolving the issues raised in this FNPRM on an expedited basis, the Commission notes that if it were to retain the existing band plan, it could simultaneously require that the B Block licensees deploy low-site, low-power system architectures, and permit them to deploy cellular systems. At the same time, the FCC would likely request detailed comment on these and any additional prospects for enhancing the utility of the B Block in order to augment the record developed in response to the *700 MHz Guard Bands Notice.* The FCC seeks comment on these ideas, specifically whether the low-site, low-power system architecture requirement, together with removal of the restriction on cellular architectures, is a positive step toward enhancing the B Block should the Commission ultimately decide not to adopt any proposal to eliminate or substantially modify the Guard Band B Block. 47. The FCC also seeks comment on whether it should make changes to the A Block Guard Bands spectrum under the current band plan. For example, the FCC seeks seek comment on whether the technical flexibility it might allow for the B Block would also be possible in the A Block. Are low-site, low-power system architectures technically feasible for the upper Guard Bands A Block immediately adjacent to the Public Safety spectrum allocation? If not, would it nevertheless be useful to provide such flexibility for the lower Guard Bands A Block? With the lower A Block's proximity to both the Lower 700 MHz C Block and the Upper 700 MHz C Block, certain technical modifications might improve compatibilities in the band. The FCC also seeks comment on whether, similar to its discussion above for the Guard Bands B Block, there would be a public interest benefit to allowing the current A Block licensees to include their spectrum in the auction inventory in a “two-sided” auction. 3. Competitive Bidding Procedures 48. The FCC seeks comment on whether it should use limited information (or “anonymous bidding”) procedures in the upcoming auction of new 700 MHz licenses, in order to deter anticompetitive behavior that may be facilitated by the release of information on bidder interests and identities. Current competitive bidding rules permit withholding information on bidder interests and identities prior to the close of bidding. Accordingly, the FCC can make a final decision regarding the procedures for the auction as part of the regular pre-auction process. The FCC seeks comment here in light of the potential importance of this band with respect to competition in broadband services and in order to assess whether the use of anonymous bidding should be a factor in determining the final band plan for new 700 MHz licenses. 49. In prior auctions, the FCC has adopted procedures, contingent on pre-auction assessments of likely competition in the auction, for withholding public release until the close of the auction of:
(1)Bidders' license selections on their short form applications and the amount of their upfront payments; and
(2)the identities of bidders placing bids. In the context of those prior auctions, the FCC noted that there may be potential harms as well as benefits from publicly revealing all information during the auction process. In this proceeding, the Ad Hoc Public Interest Spectrum Coalition asserts that anonymous bidding for new 700 MHz licenses is critical to promoting competitive entry in wireless broadband. In contrast, United States Cellular Corporation contends that smaller auction participants need information about larger entities' bids during the auction and that smaller auction participants may encounter difficulties with financing, if the FCC withholds the information during the auction. 50. The FCC seeks comment on the balance of potential harms and potential benefits from releasing information on bidder identities and interests during the auction of new 700 MHz licenses. In recent auctions where the FCC has considered withholding information about bidder identities and interests during the auction, it has assessed likely competition in the auction and determined that, given the anticipated level of competition, the benefits of releasing the information outweighed the potential harms. However, if the potential harms of releasing the information are substantial enough, or the potential benefits of releasing the information so slight, it may be appropriate to withhold the information regardless of the likely level of competition. For this auction, the FCC seeks comment on whether the potential to use new 700 MHz licenses to create alternatives to existing broadband networks increases the benefits from anonymous bidding by making it harder for existing providers to identify and impede the efforts of potential new entrants to win. Does the lack of readily available technologies for use in the band, relative to existing broadband networks in other bands, reduce the potential benefit of using bidders' identities to guess what technologies will be deployed? Given the potential harms and benefits from releasing information on bidder identities and interests during the auction of new 700 MHz licenses, should the Commission make its decision regarding the release of the information contingent on an assessment of likely competition? If so, should the Commission change how it makes its pre-auction assessment of likely competition? 51. The FCC also seeks comment on whether the potential use of anonymous bidding should be a factor in determining the final band plan. Would a band plan with a greater number of small licenses be more or less appropriate if bidders are able to bid anonymously for those licenses? Commenters should make clear what factors support their position on anonymous bidding, how these factors apply to this auction, and the extent to which these factors may depend upon the final band plan adopted. Commenters should address whether their views are dependent on whether the FCC conditions the implementation of such limits on a measure of the anticipated competitiveness of the auction, such as the eligibility ratio or a modified version of the eligibility ratio. 4. 700 MHz Public Safety Spectrum 52. The FCC tentatively concludes to redesignate the public safety wideband spectrum for broadband use consistent with a nationwide interoperability standard, and to prohibit wideband operations on a going forward basis. Further, should the FCC adopt this broadband approach, it tentatively concludes that the Commission should consolidate the existing narrowband allocations to the upper half of the 700 MHz Public Safety Band, and locate broadband communications in the lower half of this band. In addition, the FCC tentatively concludes that it should establish an internal guard band between the narrowband and broadband allocations. The FCC also seeks comment on a limited number of issues relating to use of the 700 MHz public safety spectrum, should it reallocate the wideband spectrum to broadband use. A. Broadband 53. The current distribution of channels in the 700 MHz Public Safety Band includes a mix of narrowband and wideband channels. The FCC tentatively concludes that providing broadband spectrum for advanced public safety communications would best serve its goal of enabling first responders to protect safety of life, health and property. While some commenters argue that the FCC should continue to allow public safety entities the flexibility to deploy either wideband or broadband applications, the FCC tentatively concludes that providing such flexibility could hinder efforts to deploy a nationwide, interoperable broadband network by perpetuating a balkanization of public safety spectrum licenses, networks, and technology deployment. Further, only through use of broadband networks could public safety leverage advanced commercial technologies and infrastructure to reduce costs and speed deployment, and enable the potential for priority access to commercial networks during emergencies. Accordingly, the FCC believes that only broadband applications consistent with a nationwide interoperability standard should be deployed in the current wideband allocation of the 700 MHz Band. The FCC thus tentatively concludes to reallocate spectrum previously designated for wideband use to broadband use only, and prohibit wideband operations on a going forward basis. The FCC seeks comment on these tentative conclusions. B. Band Plan Issues 54. Having tentatively concluded that only broadband applications consistent with a nationwide interoperability standard may be deployed in the current wideband allocation for public safety in the 700 MHz Band, the FCC seeks to take further steps to optimize the band plan for this spectrum, essentially building upon the public safety-related proposals in the BOP and the record developed pursuant to the *700 MHz Guard Bands Notice* and *700 MHz Public Safety Eighth Notice.* Specifically, the FCC tentatively concludes that, assuming it decides to adopt this broadband approach, it will consolidate the existing narrowband allocations to the upper half of the 700 MHz Public Safety block, and will designate the lower half of the block for broadband operations. Additionally, it tentatively concludes that it will adopt a 1 megahertz internal guard band at the top of the resulting broadband allocation to buffer it from the narrowband allocation and thus prevent interference. 55. In addition, the FCC seeks comment on whether it should revise the out-of-band emission
(OOBE)limit required for Upper 700 MHz Commercial Services Band base stations to protect public safety operations in the band if it adopts the tentative conclusions discussed above. In particular, the FCC seeks comment on whether it should replace the existing limit of 76 + 10 log P applicable to emissions into the 700 MHz Public Safety spectrum with the 43 + 10 log P OOBE standard that protects commercial services in the 700 MHz Band. 56. It also seeks comment on a limited number of related questions regarding:
(1)Whether to allow limited use of the internal guard band in areas along the Canadian border to the extent that Canadian broadcasters cause interference to the relocated narrowband channels;
(2)whether to adopt a transition plan, and what that plan should be; and
(3)whether and how such transition should be funded. C. Power Limits for Public Safety Broadband 57. The FCC has modified its power limit rules for the Upper and Lower 700 MHz Commercial Services Band by implementing a PSD model for defining power limits, permitting increased power in rural areas, and permitting radiated power levels to be measured on an average, rather than peak, basis. This action will permit higher power and increased flexibility for 700 MHz Commercial Services Band licensees implementing wider band technologies, with certain measures in place to protect against any possible increased interference, especially to 700 MHz public safety users. 58. The FCC also tentatively concludes to permit only broadband applications in the 700 MHz Public Safety Band consistent with a nationwide interoperability standard in the channels presently allocated for wideband. The FCC seeks comment on whether it is appropriate to provide the same flexibility to 700 MHz Public Safety broadband operations as that afforded 700 MHz Commercial Services Band licensees by implementing a PSD model for defining power limits, permitting increased power in rural areas, and permitting measurement of power levels on an average, versus peak, basis. The FCC also seeks comment on whether the technical restrictions adopted today for the 700 MHz Commercial Services Band with respect to interference protection, if applied to public safety broadband spectrum, will protect adjacent band operations. 5. Frontline's Proposal 59. The FCC seeks comment on Frontline's proposed “Public Safety Broadband Deployment Plan” and associated service rules. Under Frontline's proposal, the FCC would alter the upper portion of the Upper 700 MHz Commercial Services Band to designate a 10 megahertz “E Block” for a commercial licensee and impose specific conditions on that licensee requiring it to construct and operate a nationwide, interoperable broadband network for sharing with a national public safety licensee providing broadband service in the lower portion of the 700 MHz Public Safety spectrum. The “E Block” would consist of the paired 757-762 MHz and 787-792 MHz frequencies. The FCC also seeks comment on service rules proposed by Frontline. 60. With respect to the newly created “E Block,” Frontline proposes imposing the following obligations, among others, on this nationwide licensee: 61. The “E Block” licensee would be required to construct a common, interoperable network infrastructure that can be used by both the public safety broadband network and the “E Block” licensee's commercial network. The details of the network would be specified in a Network Sharing Agreement negotiated by the “E Block” licensee and the National Public Safety Licensee. 62. The “E Block” licensee would be required to provide coverage to 75 percent of the United States population within four years of the 700 MHz “auction clearing date”; provide coverage to 95 percent of the United States population within seven years; and provide coverage to 98 percent of the United States population within 10 years. As regards Alaska, the licensee would be required to provide coverage to all Alaskan cities of 10,000 or more within four years of the 700 MHz auction clearing date. 63. The “E Block” licensee would be responsible for managing and operating the public safety broadband network, and would be permitted to collect a reasonable network management fee. This fee, and the terms and conditions governing the “E Block” licensee's management of the network, would be specified in the Network Sharing Agreement. 64. The “E Block” licensee would be required to provide priority access to public safety broadband operations during times of emergency. These requirements would be specified in the Network Sharing Agreement. 65. Frontline also sets forth several additional elements of its proposal. The term of the “E Block” license would be for 15 years, and would be subject to a renewal expectancy upon the completion of “substantial service.” Participation by public safety would be purely voluntary, and that public safety would remain free to build its own network in the 700 MHz spectrum. In addition, Frontline proposes that the “E Block” licensee be required to operate as a wholesale provider with respect to commercial use of the “E Block” spectrum. Frontline also proposes that the “E Block” licensee be required to provide open access to its network, allowing the attachment of any device to the network and permitting users to access services and content provided by unaffiliated parties. As proposed, this requirement would apply not only to the “E Block” license, but to all other licenses owned or controlled by the “E Block” licensee. Similarly, Frontline recommends that the “E Block” licensee be required to offer roaming to any provider with customers utilizing devices compatible with the “E Block” network, and that such obligation be extended to all spectrum holdings of the “E Block” licensee. 66. The FCC seeks comment on the proposal's likely effects on both the commercial and public safety users in the 700 MHz Band, and whether it would be in the public interest for the FCC to adopt such a proposal, or alternatives to achieve the same or similar public interest goals. The FCC also seeks comment on whether, and to what extent, it should:
(a)Adopt certain, but not all, elements of the Frontline proposal;
(b)modify any elements of the proposal, adopt any additional requirements, or adopt any alternative requirements to achieve the same or similar public interest goals; and
(c)consider alternative approaches to encourage public-private partnerships for sharing spectrum between public safety users and commercial licensees in the 700 MHz Band. 67. The FCC seeks comment on the extent to which adoption of the Frontline, or similar, proposal should have an impact on its decisions regarding the Guard Bands. Under Frontline's proposal, Guard Band B Block would be located between the new “E Block” and the public safety spectrum. The FCC seeks comment on whether the Guard Band B Block should be integrated with a new block of spectrum to be made available in the Upper 700 MHz Band for purposes of implementing the Frontline Plan or similar proposal. 68. Similarly, the FCC seeks comment on the extent to which adoption of the Frontline, or similar, proposal should affect its decisions regarding the remainder of the commercial spectrum blocks in the Upper 700 MHz Band that it is required to auction. The FCC asks that Frontline's proposal be evaluated within the context of the Commission's other proposals expressed in the FNPRM regarding the size of spectrum blocks and geographic service areas, including a comparison of Frontline's proposal that the 757-762 MHz and 787-792 MHz spectrum be designated for the new “E Block.” If the FCC adopted the Frontline proposal, the amount of spectrum to be auctioned for commercial services pursuant to flexible service and technical rules in the Upper and Lower 700 MHz Band would decrease by ten megahertz, from 60 to 50 megahertz. 69. The FCC seeks comment as well on Frontline's view that there is no need to impose any CALEA, E911, or similar obligations on the “E Block” licensee because it believes that retail service providers using the “E Block” spectrum will already be subject to those requirements. Should the FCC adopt any specific requirements applicable to retail service providers or equipment manufacturers in regard to the “E Block?” For example, should some or all public safety equipment operating on an “E Block” built network be capable of accessing satellite communications (including handsets and other mobile or fixed receivers)? Should the FCC require the “E Block” licensee to incorporate satellite-based technology into its network infrastructure? 70. The FCC notes Frontline's view that the proposed “E Block” licensee and a potential national public safety licensee would have strong incentives to reach agreement on suitable terms for a lease and that the Commission should not attempt to adopt detailed rules to implement its proposal but should rely on a requirement that the “E Block” licensee negotiate in good faith. Frontline proposes that the FCC should leave to the “Network Sharing Agreement” negotiations the definition of “emergency” for purposes of the requirement that the “E Block” licensee provide priority access to affected public safety broadband operations during emergencies. 71. The FCC tentatively concludes that if it adopted Frontline's proposal or some similar proposal, it will need to impose conditions on the “E Block” license as well as the national public safety license to deal with the circumstance where the bidder winning the new “E Block” at auction and the national public safety licensee are unable to reach agreement on a Network Sharing Agreement. Successful negotiation of that agreement is a critical first step to achieving the benefits to public safety under the Frontline proposal. The FCC is concerned that under certain circumstances the parties may not be able to reach agreement, which could result in a significant delay in implementation. To avoid this result, the FCC tentatively concludes that it will not grant a license to the bidder winning the “E Block” at auction until the winning bidder files a Network Sharing Agreement with the Commission for approval. The FCC would also condition the national public safety license on the licensee submitting to binding arbitration in the event it cannot reach agreement with the “E Block” winner. If the winning bidder and the national public safety licensee are unable to reach agreement, they would be required to enter into binding arbitration to resolve outstanding issues. 72. The FCC seeks comment on this tentative conclusion, and whether imposing such conditions would be an incentive for the parties to reach a suitable and speedy resolution in order to avoid arbitration. If the parties are unable to reach an agreement and thus have to submit to binding arbitration, would this condition then facilitate the ability of the parties to reach such an agreement? The FCC seeks comment on whether any particular requirements should be adopted in connection with such conditions, including a requirement that the parties report to the FCC on the status of the negotiations. The FCC also asks commenters to consider whether there are other conditions that should be placed on an “E Block” licensee to ensure that an agreement is reached quickly and in a manner that is satisfactory to public safety, or if there is additional oversight that the Commission should exercise. Should the FCC require that an agreement to be reached by a certain date? Should the FCC require status reports or other periodic reporting from the “E Block” licensee? If the FCC does not adopt a binding arbitration proposal, what should be the consequence for failing to reach agreement in a timely manner, or for otherwise failing to comply with the Network Sharing Agreement requirement? Should the FCC have authority to appoint board members to the governance of the “E Block” licensee? 73. The FCC also has serious concerns, based on Frontline's proposed requirements, about whether it should offer any bidding preferences, such as bidding credits, to applicants for the “E Block” license, based on their status as a small business, or designated entity. The FCC finds that the capital requirements for effective use of the proposed nationwide “E Block” license likely will be very high. In the past, the FCC has declined to adopt designated entity provisions for certain services, such as the direct broadcast satellite service and the digital audio radio service, which have extremely high implementation costs. 74. The FCC's concerns regarding the capital needed to implement a nationwide service are especially acute in this instance because the “E Block” licensee would be responsible for constructing a robust network to meet the needs of critical public safety service providers—and the public—in times of emergency. The FCC finds that in these circumstances, the public interest would not appear to favor giving applicants a preference when bidding for the “E Block” license based on their limited financial resources. 75. The FCC finds that the proposed restriction on such a licensee's ability to provide spectrum-based services directly to the public is also of concern when considering whether to offer such benefits. The FCC prohibits licensees from both receiving designated entity benefits and having wholesale agreements for more than fifty percent (50%) of the spectrum capacity of any license that they hold, which are defined as impermissible material relationships. In the event that the FCC offered bidding preferences with respect to such an “E Block” license, the existing rule plainly would preclude any licensee that is required to operate only as a wholesale provider from receiving designated entity benefits. For all these reasons, the FCC tentatively concludes that designated entity benefits for the “E Block” license proposed by Frontline, would not be available, and seeks comment on this tentative conclusion. 76. The FCC also seeks comment on whether any service specific rules are needed to address what actions the Commission may or must take in the event that the “E Block” licensee encounters financial or other problems that prevent compliance with any of its obligations, regarding build-out or other duties. Frontline contends that the Commission's general rules regarding reclaiming and re-auctioning the spectrum are sufficient to address this possibility. The FCC seeks comment on whether the particular obligations proposed for the “E Block” would make additional provisions in the public interest. For example, should there be some special process for public safety entities or others to challenge the “E Block” licensee's compliance with its public safety or wholesale obligations? Should the “E Block” license cancel automatically based on failure to comply with specified obligations? Should the FCC establish an unjust enrichment requirement to be paid in the event the Commission is unable to reclaim the license for any reason upon failure of the “E Block” licensee to comply with its obligations? If so, how should the amount of such a payment be calculated? If the FCC were to reclaim the license, could it also hold any network infrastructure built by the licensee in trust for public safety to avoid interruption of service to first responders? Alternatively, should the FCC provide for a rebate of a portion of the net bid amount paid by the “E Block” licensee at auction upon satisfaction of the conditions of the license and, if so, what should be the amount of such rebate? What other enforcement mechanisms might be appropriate? 77. The FCC also seeks comment on Frontline's proposal that the “E Block” licensee be required to operate a wholesale network. Frontline claims that this requirement would encompass freedom of equipment choice concerning the attachment of devices or multiple devices to the network. It also states that this proposal would provide non-discriminatory access, and that the “E Block” licensee could not discriminate against any retail service provider, and would operate “as an open network available on a wholesale basis to a host of innovative service providers.” The FCC seeks comment on these issues. The FCC also seeks comment on proposals filed by Media Access Project and the Ad Hoc Public Interest Spectrum Coalition, which support a condition on licenses for at least 30 megahertz of 700 MHz Commercial Services spectrum that would require a licensee to provide “open access,” including the right of a consumer to use any equipment, content, application or service on a non-discriminatory basis. Ex Parte Presentations 78. The rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 8 Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. 9 Other requirements pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules. 10 8 47 CFR 1.200 *et seq.* 9 *See* 47 CFR 1.1206(b)(2). 10 47 CFR 1.1206(b). Comment Period and Procedures 79. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates 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. *See Electronic Filing of Documents in Rulemaking Proceedings* , 63 FR 24121 (1998). • 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. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554. • Parties should send a copy of their filings to Paul D'Ari, Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, DC 20554, or by e-mail to *paul.d'ari@fcc.gov* . People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Initial Regulatory Flexibility Act Analysis 80. As required by the Regulatory Flexibility Act of 1980, as amended (the “RFA”), 11 the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact of the policies and rules proposed in the Further Notice of Proposed Rulemaking (“FNPRM”) on a substantial number of small entities. 12 Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided in paragraph 297 of the item. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). 13 In addition, the FNPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . 14 11 The RFA, *see* 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). 12 *See* 5 U.S.C. 603. Although we are conducting an IRFA at this stage in the process, it is foreseeable that ultimately we will certify this action pursuant to the RFA, because we anticipate at this time that any rules adopted pursuant to this *Notice* will have no significant economic impact on a substantial number of small entities. *See* 5 U.S.C. 605(b). 13 *See* 5 U.S.C. 603(a). 14 *See* 5 U.S.C. 603(a). 81. Although Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band, 15 the Commission believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on small entities. Accordingly, this IRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of this FNPRM, including spectrum in the 746-806 MHz Band. 15 In particular, this exemption extends to the requirements imposed by Chapter 6 of Title 5, United States Code, Section 3 of the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of Title 44, United States Code. Consolidated Appropriations Act 2000, Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B). A. Need for, and Objectives of, the Proposed Rules 82. The FNPRM encompasses issues pertinent to all three of our 700 MHz proceedings, as well as to Frontline's proposal. First, based on the record developed in connection with the *700 MHz Commercial Services Notice* , the FNPRM proposes several band plans that include a mix of small, medium and large geographic area licenses. 83. Second, the FNPRM also proposes to replace the current substantial service requirement with a geographic-based performance requirement, and seeks comment on this suggestion. 84. Third, the FNPRM tentatively concludes that the Commission can adopt neither the Broadband Optimization Plan (BOP), nor the proposals to reallocate and reassign commercial spectrum to critical infrastructure industries
(CII)or public safety entities, because we do not have the statutory authority to adopt key components of the proposals. Irrespective of the lack of statutory authority, the FNPRM also tentatively concludes that the BOP and CII proposals would not be in the public interest, because of the manner in which they propose to assign commercial licenses outside of a competitive bidding context, and because they could introduce an increased possibility of interference. 85. Fourth, the FNPRM asks certain questions specifically related to the current Upper 700 MHz Guard Bands, in the event that the Commission maintains the current sizes and locations of either block of the Guard Bands licenses. The FNPRM also seeks comment on the alternative Guard Bands proposal recently submitted by Access Spectrum and Pegasus, as well as variations on that proposal. 86. Fifth, the FNPRM seeks to achieve broadband communications capabilities consistent with a nationwide interoperability standard for public safety. The Commission expects that modern public safety services will increasingly depend on the advanced communications capabilities afforded by wireless broadband technologies, which should enable first responders to perform their vital safety-of-life and other critical roles. The FNPRM tentatively concludes to redesignate the wideband spectrum to broadband use that would be consistent with a nationwide interoperability standard, and to prohibit wideband operations on a going forward basis. The FNPRM then seeks comment on a tentative conclusion to consolidate the narrowband spectrum to the top of the Public Safety Band, locate the broadband spectrum at the bottom of the Public Safety Band, and divide these segments with an internal guard band. Given this tentative conclusion, the FNPRM also seeks comment on a limited set of issues that would need to be resolved in order to effectuate the reconfiguration. This proposed reconfiguration would reduce the amount of spectrum necessary to separate and protect the public safety broadband and narrowband allocations, and could facilitate partnerships between public safety broadband operations and adjacent commercial broadband technologies, thereby optimizing the 700 MHz public safety band plan. 87. Finally, the FNPRM seeks comment on the “Public Safety Broadband Deployment Plan” proposal submitted very recently by Frontline Wireless, which if adopted in some form potentially would affect decisions in all three proceedings. B. Legal Basis 88. The legal authority for the actions proposed in this rulemaking are contained in sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, and 337. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 89. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 16 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 17 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 18 A “small business concern” is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (“SBA”). 19 16 5 U.S.C. 603(b)(3). 17 5 U.S.C. 601(6). 18 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** .” 19 15 U.S.C. 632. 90. *Small Businesses.* Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. 20 20 *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002). 91. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 21 21 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 92. *Governmental Entities.* 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.” 22 As of 2002, there were approximately 87,525 governmental jurisdictions in the United States. 23 This number includes 38,967 county governments, municipalities, and townships, of which 37,373 (approximately 95.9%) have populations of fewer than 50,000, and of which 1,594 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 85,931 or fewer. 22 5 U.S.C. 601(5). 23 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, pages 272-273, Tables 415 and 417. 93. *Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” 24 and “Cellular and Other Wireless Telecommunications.” 25 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 26 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 27 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 28 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 29 Thus, under this second category and size standard, the majority of firms can, again, be considered small. 24 13 CFR 121.201, NAICS code 517211. 25 13 CFR 121.201, NAICS code 517212. 26 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517211 (issued Nov. 2005). 27 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 28 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization,” Table 5, NAICS code 517212 (issued Nov. 2005). 29 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 94. Under this FNPRM, any of the changes to the Commission's rules which may occur as a result of the FNPRM would be limited to the 698-806 MHz spectrum band. Since this rulemaking proceeding applies to services in that band, this IRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that could be affected by the Commission's new rules, this IRFA provides information describing auctions results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or transfer of control application where unjust enrichment issues are implicated. Consequently, to assist the Commission in analyzing the total number of potentially affected small entities, the Commission requests commenters to estimate the number of small entities that may be affected by any rule changes that might result from this FNPRM. 95. *700 MHz Guard Band Licenses.* In the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 30 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. 31 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. 32 SBA approval of these definitions is not required. 33 An auction of 52 Major Economic Area
(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. 34 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. 35 30 *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). 31 *Id.* at 5343 ¶ 108. 32 *Id.* 33 *Id.* At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which requires Federal agencies to obtain Small Business Administration approval before adopting small business size standards). 34 *See* “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” *Public Notice,* 15 FCC Rcd 18026 (2000). 35 *See* “700 MHz Guard Bands Auctions Closes: Winning Bidders Announced,” *Public Notice,* 16 FCC Rcd 4590 (WTB 2001). 96. *Upper 700 MHz Band Licenses.* The Commission released a *Report and Order* authorizing service in the Upper 700 MHz band. 36 An auction for these licenses, previously scheduled for January 13, 2003, was postponed. 37 36 Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules, *Second Memorandum Opinion and Order,* 16 FCC Rcd 1239 (2001). 37 *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). 97. *Lower 700 MHz Band Licenses.* The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. 38 The Commission has 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. 39 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. 40 Additionally, the Lower 700 MHz Band 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. 41 The SBA has approved these small size standards. 42 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. 43 A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 CMA licenses. 44 Seventeen winning bidders claimed small or very small business status and won sixty licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. 45 38 *See* Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), *Report and Order,* 17 FCC Rcd 1022 (2002). 39 *Id.* at 1087-88 ¶ 172. 40 *Id.* 41 *Id.* at 1088 ¶ 173. 42 *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999. 43 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice,* 17 FCC Rcd 17272 (WTB 2002). 44 *See* “Lower 700 MHz Band Auction Closes,” *Public Notice,* 18 FCC Rcd 11873 (WTB 2003). 45 *Id.* 98. *Public Safety Radio Licensees.* As a general matter, public safety radio licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 46 The SBA rules contain a small business size standard for cellular and other wireless telecommunications companies, which encompasses business entities engaged in wireless communications employing no more than 1,500 persons. 47 According to Census Bureau data for 2002, in this category there were 8,863 firms that operated for the entire year. 48 Of this total, 401 firms had 100 or more employees, and the remainder had fewer than 100 employees. 49 With respect to local governments, in particular, since many governmental entities as well as private businesses comprise the licensees for these services, we include under public safety services the number of government entities affected. 46 *See* subparts A and B of Part 90 of the Commission's Rules, 47 CFR 90.1-90.22. Police licensees include 26,608 licensees that serve state, county, and municipal enforcement through telephony (voice), telegraphy (code), and teletype and facsimile (printed material). Fire licensees include 22,677 licensees comprised of private volunteer or professional fire companies, as well as units under governmental control. Public Safety Radio Pool licensees also include 40,512 licensees that are state, county, or municipal entities that use radio for official purposes. There are also 7,325 forestry service licensees comprised of licensees from state departments of conservation and private forest organizations that set up communications networks among fire lookout towers and ground crews. The 9,480 state and local governments are highway maintenance licensees that provide emergency and routine communications to aid other public safety services to keep main roads safe for vehicular traffic. Emergency medical licensees (1,460) use these channels for emergency medical service communications related to the delivery of emergency medical treatment. Another 19,478 licensees include medical services, rescue organizations, veterinarians, persons with disabilities, disaster relief organizations, school buses, beach patrols, establishments in isolated areas, communications standby facilities, and emergency repair of public communications facilities. 47 *See* 13 CFR 121.201 (NAICS code 517212); U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Employment Size of Establishments for the United States: 2002,” Table 2, NAICS code 517212. 48 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Employment Size of Establishments for the United States: 2002,” Table 2, NAICS code 517212. 49 *Id.* 99. Wireless Communications Equipment Manufacturers; Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” 50 The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. 51 According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. 52 Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. 53 Thus, under this size standard, the majority of firms can be considered small. 50 U.S. Census Bureau, 2002 NAICS Definitions, “334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing”; *http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342* . 51 13 CFR 121.201, NAICS code 334220. 52 U.S. Census Bureau, American FactFinder, 2002 Economic Census, Industry Series, Industry Statistics by Employment Size, NAICS code 334220 (released May 26, 2005); *http://factfinder.census.gov* . The number of “establishments” is a less helpful indicator of small business prevalence in this context than would be the number of “firms” or “companies,” because the latter take into account the concept of common ownership or control. Any single physical location for an entity is an establishment, even though that location may be owned by a different establishment. Thus, the numbers given may reflect inflated numbers of businesses in this category, including the numbers of small businesses. In this category, the Census breaks out data for firms or companies only to give the total number of such entities for 2002, which was 929. 53 *Id.* An additional 18 establishments had employment of 1,000 or more. D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 100. *Performance Requirements.* The FNPRM proposes to replace the current substantial service requirement with a geographic-based performance requirement, and seeks comment on this suggestion. 101. *Incumbent Eligibility.* The FNPRM seeks comment on a proposal to encourage the entry of new competitors by excluding incumbent local exchange carriers (ILECs), incumbent cable operators, and large wireless carriers from eligibility for licenses in the 700 MHz Band. The FNPRM also seeks comment on whether incumbents should only be eligible for licenses in the 700 MHz band through structurally separate affiliates, which would make it possible to detect whether the incumbent receives more favorable treatment than unaffiliated providers. The FNPRM seeks comment on whether the Commission should encourage the entry of new broadband competitors through lesser restrictions on eligibility for obtaining new licenses, both at auction and in the secondary market. Finally, as an alternative to limiting the parties eligible for new licenses in the 700 MHz Band, the FNPRM seeks comment on whether parties unaffiliated with incumbent wireline broadband service providers should receive a bidding credit on licenses in the Upper 700 MHz C Block, and how such new entrant bidding credits should be coordinated with existing bidding credits for small businesses ( *i.e.* , whether new entrant credits should be cumulative or exclusive of small business bidding credits). 102. *Anonymous Bidding.* The FNPRM seeks comment on whether the Commission should use limited information (or “anonymous bidding”) procedures in the upcoming auction of new 700 MHz licenses, in order to deter anticompetitive behavior that may be facilitated by the release of information on bidder interests and identities. 103. *Public Safety Broadband.* The FNPRM tentatively concludes to redesignate the wideband spectrum to broadband use that would be consistent with a nationwide interoperability standard, and to prohibit wideband operations on a going forward basis. The Commission has issued no licenses for wideband channels. Furthermore, although two special temporary authorizations
(STAs)have been issued for wideband operations, to the extent a public safety entity has constructed, deployed and is currently operating, as of the release date of the accompanying *Report and Order,* a wideband system pursuant to a grant of STA, and has reason to continue such operations beyond the current term of the STA, the FNPRM states that the Commission will work with such entity to extend such authority. The FNPRM also seeks comment on a tentative conclusion to consolidate the narrowband channels to the top of the public safety band, locate the broadband spectrum at the bottom of the public safety band, and divide these segments with an internal guard band. These tentative conclusions may entail additional reporting, recordkeeping or other compliance efforts by existing public safety entities. The FNPRM does not otherwise propose any additional reporting, recordkeeping or other compliance requirements. 104. *Frontline Proposal.* The FNPRM seeks comment on Frontline's proposed “Public Safety Broadband Deployment Plan.” This plan would alter the upper portion of the band plan and service rules in order to auction a single nationwide 10-megahertz license (a new “E Block”). The “E Block” licensee would be required to meet certain build-out benchmarks, and would be required to provide priority access for public safety broadband operations during times of emergency as specified in a Network Sharing Agreement. Under the proposal, the “E Block” licensee would be required to operate as a wholesale provider with respect to commercial use of the “E Block” spectrum. It also would be required to provide open access to its network, allowing the attachment of any device to the network and permitting users to access services and content provided by unaffiliated parties. In addition, Frontline's proposal would require the “E Block” licensee to offer roaming to any provider with customers utilizing devices compatible with the “E Block” network, with such obligation extended to all spectrum holdings of the “E Block” licensee. Frontline's proposal also would require the “E Block” licensee to operate only as a wholesale provider with respect to commercial use of the “E Block” license, *i.e.* , it must have wholesale agreements for 100 percent of its spectrum capacity. E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 105. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such 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 such small entities.” 54 54 5 U.S.C. 603(c)(1)-(4). 106. *Performance Requirements.* Commenters who are small carriers could be found among commenters who supported both a substantial service requirement and a “keep what you use” framework. Some small CMRS providers recommended a combination of both population- and geography-based construction benchmark in the context of a “keep-what-you-use” approach. 55 The FNPRM proposes to replace the current substantial service requirement with a geographic-based performance requirement, and seeks comment on this suggestion. 55 *See, e.g.* , DirecTV/EchoStar Comments in WT Docket 06-150 at 9; Navajo Nation Comments in WT Docket 06-150 at 2-3; RCA Comments in WT Docket 06-150 at 8-10; Vermont Department of Public Service, *et al.* Comments in WT Docket 06-150 at 5-8. The Navajo Nation, RCA, and the Vermont Department of Public Service, *et al.* favorably discuss both benchmarks and a “keep-what-you-use” approach. 107. By establishing clear benchmarks, the Commission would provide small licensees with regulatory certainty regarding the requirements that they must meet or, if they do not, permit other providers to gain access to the spectrum to provide services to consumers. The adoption of more stringent benchmarks also would complements the Commission's determination to auction additional licenses based on smaller geographic areas to promote access to spectrum and the provision of service, especially in rural areas. 108. The Commission recognizes that the existing substantial service standard could allow providers, including small carriers, additional flexibility with regard to their development and deployment of certain services. 56 The Commission determines, however, that given the excellent propagation characteristics of this spectrum, the benefits of service being offered before the end of the license term, and the public interest that would be served by ensuring additional service in the more rural and remote areas of this country, more rigorous requirements may be appropriate for these 700 MHz Commercial Services licenses. 57 56 *See* AT&T Comments in WT Docket 06-150 at 12-13; CTIA Comments in WT Docket 06-150 at 10; Dobson Comments in WT Docket 06-150 at 5; Leap Comments in WT Docket 06-150 at 10. 57 *See, e.g.* , Aloha Comments in WT Docket 06-150 at 2; Blooston Comments in WT Docket 06-150 at 3; Dobson Comments in WT Docket 06-150 at 3; Frontier Comments in WT Docket 06-150 at 4; NTCA Comments in WT Docket 06-150 at 3-5; RCA Comments in WT Docket 06-150 at 3-4; RTG Comments in WT Docket 06-150 at 4-5. 109. *Incumbent Eligibility.* The proposals to prevent incumbents from being eligible to participate in the 700 MHz auctions can benefit small entities to the extent that they find less competition at auction from large entities such as established incumbent licensees, including wireline providers. Additionally, the proposal to provide bidding credits with regard to the Upper 700 MHz C Block for parties unaffiliated with incumbent wireline broadband service providers could encourage new entry by small entities. 110. *Anonymous Bidding.* Smaller auction participants can benefit from having access to information about larger entities' bids during the auction, and smaller auction participants may encounter difficulties with financing if the Commission withholds the information during the auction. However, the potential to use new 700 MHz licenses to create alternatives to existing broadband networks increases the benefits from anonymous bidding by making it harder for existing providers to identify and impede the efforts of potential new entrants to win. Accordingly, in seeking comment on whether to require anonymous bidding for 700 MHz auctions, the Commission balances the difficulties it may cause to smaller auction participants, against the opportunities for new entrants—including small entities—that may result from anonymous bidding. 111. *700 MHz Band Plan Proposals.* The FNPRM includes several proposals to reconfigure the 700 MHz Band plan. Under any revised band plan, the Commission seeks comment on whether the spectrum block adjacent to the Public Safety Band's lower half would, pursuant to another tentative conclusion, be responsible for funding the reconfiguration of the public safety spectrum with the narrowband channels at the upper end and a broadband allocation at the lower end. This proposal would, if adopted, impose additional economic burdens on any small business that procured the spectrum block adjacent to the Public Safety Band's proposed broadband allocation. 112. The FNPRM also proposes to license the 700 MHz Band using a mix of small, medium and large geographic areas. These proposed service area definitions should benefit small businesses, because they would enhance the mix of licenses to be made available in the 700 MHz Band, and are consistent with the goals of providing greater access to spectrum for small providers and parties in rural areas, and improving the opportunity for a wider range of potential licensees to access this spectrum. 113. *Public Safety Broadband.* The FNPRM tentatively concludes to reallocate the wideband spectrum to broadband use that would be consistent with a nationwide interoperability standard, and prohibit wideband operations on a going forward basis. The public safety community expressed broad support for a broadband allocation to enable advanced communications capabilities. The availability of a contiguous block of broadband spectrum, subject to a nationwide interoperability standard, would enable partnerships with commercial licensees in adjacent broadband spectrum. As a result, the proposed band plan would ultimately enable public safety entities to utilize the 700 MHz spectrum in a more cost-effective and spectrally efficient manner to address their homeland security and emergency response roles. Because the Commission does not anticipate that the proposal will impose additional economic burdens on public safety, and is in fact designed to reduce economic burdens on public safety, the Commission has taken steps to minimize any adverse impact of the rule changes. 114. The FNPRM also seeks comment on its tentative conclusion to consolidate the narrowband spectrum to the top of the public safety band and locate the broadband spectrum at the bottom of the public safety band, in light of the potentially significant benefits such reconfiguration would afford the public safety community. The alternative would be to retain the existing band plan. The FNPRM seeks comment on how to implement reconfiguration of the narrowband channels with minimum disruption to incumbent operations. The FNPRM invites comment on an appropriate transition mechanism, including how to accommodate public safety operations in the border areas with Canada and Mexico, and the costs of relocation and how such costs will be covered. The Commission expects that the number of entities impacted and expected cost of reconfiguration should be relatively minor. To assist the Commission in its analysis, however, commenters are requested to provide information regarding the number of narrowband radios that are deployed, as well as the number of radios that are in active use, and thus would be affected by the proposed changes to the 700 MHz public safety band plan as described in the FNPRM. The FNPRM recognizes that the public safety community's ability to fund the reconfiguration may be limited. Thus, in addition to considering whether public safety should pay for its own relocation costs, the FNPRM seeks comment on several alternatives, including whether to impose funding requirements on 700 MHz commercial licensees, and whether Federal or other grant monies could be used. In the event the Commission determines to license the broadband allocation to a nationwide public safety broadband licensee, the FNPRM also invites comment on whether that licensee should be assigned responsibility for funding the reconfiguration. 115. Although the economic burden on public safety to effectuate reconfiguration is expected to be relatively small, the FNPRM will develop a record on the true costs that would be implicated. The Commission remains open to considering alternatives, however, should an alternative be stated in comments that would reach our objectives and minimize the impact on public safety entities. 116. *Frontline Proposal.* In the FNPRM, the Commission seeks comment on Frontline's proposed “Public Safety Broadband Deployment Plan.” Although Frontline proposes that the Commission offer bidding credits to applicants based on their status as a small business, the Commission tentatively concludes in the FNPRM that it should not offer any bidding preferences, such as bidding credits, to applicants for the “E Block” license. The FNPRM states, however, that the public interest would not appear to favor giving applicants a preference when bidding for the “E Block” license based on their limited financial resources, as the Commission does when it offers bidding credits to small businesses in these circumstances. The Commission stated that its concerns regarding the capital needed to implement a nationwide service are especially acute in this instance, because the “E Block” licensee would be responsible for constructing a network to meet the needs of critical public safety providers. The Commission seeks comment on this tentative conclusion. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 117. None. Ordering Clauses 118. *It is further ordered* pursuant to Sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, that this further notice of proposed rulemaking in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, WT Docket No. 96-86 and PS Docket No. 06-229 IS ADOPTED. 119. *It is further ordered* that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415, 1.419, interested parties may file comments on the further notice of proposed rulemaking on or before May 23, 2007 and reply comments on or before May 30, 2007. 120. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this further notice of proposed rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 121. *It is further ordered* that the Commission shall send a copy of this further notice of proposed rulemaking in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A). Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-8440 Filed 5-1-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the Sand Mountain Blue Butterfly (Euphilotes pallescens ssp. arenamontana) as Threatened or Endangered with Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 12-month petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 12-month finding on a petition to list the Sand Mountain blue butterfly ( *Euphilotes pallescens arenamontana* ) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that the petitioned action is not warranted. We ask the public to continue to submit to us any new information concerning the status of, and threats to, this subspecies. This information will help us to monitor and encourage the ongoing management of this subspecies. DATES: The finding announced in this document was made May 2, 2007. ADDRESSES: Data, information, comments, or questions regarding this notice should be submitted to the Field Supervisor, Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1340 Financial Boulevard, Suite 234, Reno, NV 89502. The complete administrative file for this finding is available for inspection, by appointment and during normal business hours, at the above address. FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, Nevada Fish and Wildlife Office (see ADDRESSES ) (telephone 775/861-6300; facsimile 775/861-6301). SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 *et seq.* ) requires that, for any petition to revise the List of Endangered and Threatened Wildlife and Plants that contains substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of our receipt of the petition on whether the petitioned action is:
(a)Not warranted,
(b)warranted, or
(c)warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the List of Endangered and Threatened Wildlife and Plants. Such 12-month findings are to be published promptly in the **Federal Register** . Section 4(b)(3)(C) of the Act requires that a petition for which the requested action is found to be warranted but precluded shall be treated as though resubmitted on the date of such finding (that is, requiring a subsequent finding to be made within 12 months). Previous Federal Action We included the Sand Mountain blue butterfly under the name *Euphilotes rita* ssp. as a Category 2 candidate species in our November 21, 1991 Candidate Notice of Review
(CNOR)(56 FR 58829). Category 2 included taxa for which information in our possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. The Sand Mountain blue butterfly remained a Category 2 candidate as *Euphilotes rita* ssp. in our 1994 CNOR (November 15, 1994; 59 FR 59020). In the CNOR published on February 28, 1996 (61 FR 7596), we adopted a single category of candidate species defined as follows: “Those species for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list but issuance of the proposed rule is precluded.” In previous CNORs, species matching this definition were known as Category 1 candidates for listing. Thus the Service no longer considered Category 2 species as candidates, and did not include them in the 1996 or any subsequent CNORs. The decision to stop considering Category 2 species as candidates was designed to reduce confusion about the status of these species, and to clarify that we no longer regarded these species as candidates for listing. Since the Sand Mountain blue butterfly was a Category 2 species, we no longer recognized it as a candidate species as of the February 28, 1996, CNOR (61 FR 7457). On April 23, 2004, we received a formal petition, dated April 23, 2004, from the Center for Biological Diversity, Xerces Society, Public Employees for Environmental Responsibility, and the Nevada Outdoor Recreation Association, requesting that the Sand Mountain blue butterfly, currently recognized as *Euphilotes pallescens* ssp. *arenamontana* taxonomically, known only from Sand Mountain, Nevada, be listed as threatened or endangered in accordance with section 4 of the Act, and that critical habitat be designated for the species concurrent with the listing. The petition is available on the Nevada Fish and Wildlife Office Web site (go to *http://www.fws.gov/nevada/* and click on the Nevada Species link, then on Sand Mountain blue butterfly link). Action on this petition was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal years 2004 and 2005. On September 26, 2005, we received a 60-day notice of intent to sue, and on January 5, 2006, we received a complaint regarding our failure to carry out the 90-day finding on the petition to list the Sand Mountain blue butterfly. On April 20, 2006, we reached an agreement with the plaintiffs to submit to the **Federal Register** a completed 90-day finding by July 28, 2006. The agreement specified that if our 90-day finding concluded that the petition contained substantial information, we would complete a 12-month finding by April 26, 2007 ( *Center for Biological Diversity et al.* v. *Norton, and U.S. Fish and Wildlife Service* (CV-00023-LKK-GGH), (E.D. Cal)). On August 8, 2006, we published our 90-day finding in the **Federal Register** (71 FR 44988), in which we concluded that the petition presented substantial scientific or commercial information to indicate that listing the Sand Mountain blue butterfly may be warranted, we initiated a status review of the taxon, and we solicited comments and information to be provided in connection with the status review by October 10, 2006. This notice constitutes our 12-month finding and is submitted in fulfillment of the April 20, 2006, stipulated settlement agreement. On August 18, 2006, we became a signatory to the multi-party Sand Mountain Blue Butterfly Conservation Plan (Conservation Plan), which became effective September 21, 2006 (Lahontan Valley Environmental Alliance (LVEA), 2006). For a further discussion of the Conservation Plan, see the “Conservation Efforts” section below. Biology and Distribution The genus *Euphilotes* , in the family Lycaenidae, is comprised of five species of small, pale blue butterflies from western North America that are distinguished by discrete differences in genitalia (Pratt 1994, p. 388). The genus is noteworthy for its close relationship with the plant genus *Eriogonum* (wild buckwheat), a genus of about 250 species of shrubs, subshrubs, and herbs largely from western North America (Reveal 2005). *Euphilotes* taxa are among the most specialized of the North American butterflies in host plant adaptations (Pratt 1988, p. 63). They typically utilize species of *Eriogonum* for mating, obtaining nectar, host searching, and egg laying (Pratt 1994, p. 388). Many of the species and subspecies within the genus have highly restricted ranges, in part because of this specialized relationship with *Eriogonum.* The larvae (and to some degree the adults) of *Euphilotes* subspecies are known to specialize on the flowers and seeds of specific *Eriogonum* (Pratt 1988, p. 104). This relationship has been the subject of several studies on evolution (Shields and Reveal 1988, pp. 51-93; Pratt 1988, pp. 1-653; Pratt 1994, pp. 387-416). The pale blue butterfly, *Euphilotes pallescens* , was first described by Tilden and Downey in 1955 under the name *Philotes pallescens* based on specimens collected in Tooele County, Utah (Pratt 1988, p. 18; Mattoni 1965, pp. 81, 94). Mattoni (1965, p. 94) reduced the taxon to a subspecies which he called *Philotes* (= *Euphilotes* ) *rita* ssp. *pallescens* , but he only examined a pair of specimens collected at the same time as the original collection by Tilden and Downey. Mattoni based his taxonomic conclusion on the configuration of the male genitalia, which was thought to be the primary characteristic distinguishing *P. rita* from all other members of the genus (Mattoni 1965, p. 81; Shields 1977, p. 2), and his opinion that “greater biological meaning arises from a classification based upon relationship rather than difference” (Mattoni 1965, p. 99). In the first modern biosystematic analysis of the genus, Pratt (1988, 1994) used cladistic analysis, a method of examining taxonomic relationships among species using shared derived characteristics (features possessed by two or more taxa in common), to assess its members of the genus *Euphilotes.* He compared 79 morphological characters and analyzed enzymes (proteins), allelic variation (variation in genes coding for same trait), and diapause (period of suspended growth or development similar to hibernation) intensity among 36 taxa of *Euphilotes* from western North America (Pratt 1988, 1994). Based on these analyses, he concluded that *Euphilotes pallescens* should be recognized as a full species (Pratt 1994, pp. 401-402; Pratt and Emmel 1998, p. 209). The Sand Mountain blue butterfly was first described as *Euphilotes pallescens* ssp. *arenamontana* by Austin in 1998 (1998, pp. 556-557); it is one of seven named subspecies of the pallid blue butterfly in Nevada (Murphy et al. 2006, p. 2). Prior to the 1998 publication of this name, the Sand Mountain blue butterfly had been considered a potentially distinct subspecies of *Euphilotes rita* (Austin 1985, p. 105), the name under which it was previously assigned a Federal Category 2 candidate status (see Previous Federal Action section). The Sand Mountain blue butterfly is small with pale blue coloration. Males have a wingspan that ranges from 10.0 to 11.8 millimeters
(mm)(0.39 to 0.46 inches (in)), with an average of 11.1 mm (0.44 in). The dorsum
(back)is pale bluish violet, often whitish distally, with a narrow (0.5 mm (0.002 in)) black outer margin. There is usually a series of dots on the hindwing, but sometimes no more than a terminal line on the forewing. There is generally an indistinct pinkish to pale orange aurora of moderate width on the posterior hindwing. At the vein tips on the posterior of both wings, there are fringes of white with indistinct gray checkering. The bottom surface of the male abdomen is chalky white. Macules (patches of different coloration) are small, often nearly obsolete on the hindwing. Females have a wingspan that ranges from 10.0 to 11.9 mm (0.39 to 0.46 in), with an average of 10.9 mm (0.43 in). The female dorsum
(back)is brown to tan, and usually pale bluish-gray basally on both wings. The forewing has a faint brown cell-end bar, while the hindwing has marginal dots. The forewing apex is usually whitish. The hindwing aurora is pale orange to pale pink, usually grading to nearly white distally and not strongly contrasting (Austin 1998, p. 556). The Sand Mountain blue butterfly is the palest of all *Euphilotes.* The ground color of both sexes is considerably paler than that of *E. pallescens* ssp. *pallescens.* The pinkish aurora is unlike that of any other *Euphilotes* . The pale bluish-gray wing bases of the female do not contrast with the distal area of the wing as they do on *E. pallescens* ssp. *pallescens* . The black macules of *E. pallescens* ssp. *arenamontana* tend to be smaller than those of *E. pallescens* ssp. *pallescens* (Austin 1998, p. 557). The species *Euphilotes pallescens* is distributed discontinuously from southern and central California (east of the Sierra Nevada) through the Great Basin of central Nevada and across central and southern Utah (Pratt 1994, p. 402; Shields 1977). The subspecies known as the Sand Mountain blue butterfly is known only from Sand Mountain, Churchill County, Nevada, where it is dependent on its host plant, *Eriogonum nummulare* (Kearney buckwheat) (Austin 1998, p. 557; Shields 1977, p. 3), a long-lived, perennial shrub with numerous branches (Reveal 2002, p. 1), that occurs in scattered sandy locations in several western States (Welsh et al. 1993, p. 547). Searches have been conducted within 60 miles
(mi)(100 kilometers (km)) of Sand Mountain in an effort to determine the presence or absence of Kearney buckwheat occurrences on sand dunes that might be able to sustain occurrences of Sand Mountain blue butterflies; to date, no additional populations of Kearney buckwheat have been found (Funari 2004; Caicco 2006a, 2006b). Kearney buckwheat was reported in 1981 to occur in small numbers along the eastern edge of Blowsand Mountain, which lies about 12 mi (19.2 km) southwest of Sand Mountain (The Nature Conservancy 2004), but no plants were observed during three reconnaissance surveys in 2003 and 2004 (Funari 2004). Many butterflies in the family Lycaenidae have very limited dispersal distances that revolve intimately around their patchily distributed host plants (Peterson 1996, p. 1990). Dispersal of the Sand Mountain blue butterfly has not been studied, but in another species in the same genus, *Euphilotes enoptes* , most adults were found to move less than 1,640 feet
(ft)(500 meters (m)) and their dispersal distance rarely exceeded 0.6 mi (1 km) (Arnold 1983 and Peterson 1994, as cited in Peterson 1996, p. 1990). Isolated sand dunes are common throughout the Great Basin, often associated with depositional areas for windborne sediments derived from the now dry beds of Pleistocene Epoch lakes; these geologic features are referred to as pluvial lakes, indicating their origins during the periods of greater precipitation and lower evaporation typical of the Pleistocene climate of the Great Basin. Studies of dispersal of the sand dune-obligate beetle, *Eusattus muricatus* , widely distributed throughout the Great Basin and Mojave Deserts, have shown that populations on dunes separated by approximately 60 mi (100 km) generally exchange very few migrants, even among dunes within the same pluvial basin (Britten and Rust 1996, p. 651). Based on these data, the authors of this study recommended that all dune-obligate populations in the Great Basin separated by 60 mi (100 km) or more from the nearest dune within the same pluvial lake basin be considered genetically isolated (Britten and Rust 1996, p. 651). In fact, taxonomic distinctions made within *Euphilotes pallescens* are generally consistent with this approach, with *E. p.* ssp. *calneva* described from sand dunes in the Honey Lake area of northeastern California and near Sand Pass, in adjacent Nevada (Emmel and Emmel, pp. 277-282; Brussard 2006, p. 1; Murphy 2006a), and *E. p.* ssp. *ricei* , known only from the Silver State Sand Dunes, which are north of Winnemucca, Nevada (Austin et al. 2000, p. 3; Brussard 2006, p. 1; Murphy 2006a); each of these sand dune areas lies within the Lahontan pluvial basin at a minimum distance of about 120 mi (192 km) from Sand Mountain. We conclude that it is highly unlikely that the Sand Mountain blue butterfly occurs at other sites within 60 mi (100 km). Areas within 60 mi (100 km) have been surveyed to various extents with no reported observations of the butterfly's host plant, Kearney buckwheat. We also conclude that the subspecies is unlikely to be found at sites located more than 60 mi (100 km) from Sand Mountain. Any population of *Euphilotes pallescens* found at any sites at distances greater than 60 mi (100 km) is most likely to be another subspecies of *Euphilotes pallescens* , based on the current accepted taxonomy of the species and the likely genetic isolation of *E. pallescens* ssp. *arenamontana* due to its life history, ecology, and limited dispersal ability. Based on satellite imagery used to identify dune shrub habitat (BLM 2003, 2004), we estimate that the current range of the subspecies is approximately 1000 acres (405 ha), within which Kearney buckwheat is scattered in patches and is a dominant or co-dominant shrub on approximately 500-600 ac (202-243 ha) (BLM 2006b). Thus, while Sand Mountain blue butterflies may be present anywhere within their entire 1,000 ac (405 ha) range, only 50 to 60 percent of this range is thought to have the Kearney buckwheat shrubs on which they depend. All *Euphilotes* larvae are believed to diapause by burying into the soil 12.7 to 38.1 inches
(in)(5 to 15 centimeters (cm)) prior to pupation, which may be delayed for up to 6 years depending on climatic conditions (Pratt 1988, p. 319). When this period of diapause is broken, the pupae begin development and eventually emerge as adults from beneath the soil. The ability of larvae to suspend growth for varying periods of time may be part of the reason that the genus *Euphilotes* has high genetic diversity (Pratt 1988, pp. 427-428), presumably because it increases the likelihood for random mating. Because of the small size of the Sand Mountain blue butterfly and the frequent high winds typical of the Sand Mountain area, it is likely that adult butterflies spend most of their life sheltered within the canopy of Kearney buckwheat plants (Murphy 2006a). Males of the genus exhibit a type of mate-searching behavior known as patrolling, which involves active searching for potential mates (Pratt 1988, p. 371). Kearney buckwheat typically occurs at Sand Mountain as a dominant or co-dominant with other shrubs on less active, smaller vegetated dunes around the periphery of the main dune (The Nature Conservancy 2004, pp. 24-26). Kearney buckwheat flowers and seeds are the sole food source for the larvae (Pratt 1988, p. 64) and an important nectar source for adults during their flight period (Murphy et al. 2006, p. 1). The flowering period of the Kearney buckwheat at Sand Mountain begins in late June to early July and continues through September (Reveal 2002, p. 2). Like many species of wild buckwheat (Meyer 2006), individual Kearney buckwheat plants may be in continuous flower for well over a month (Caicco 2006c). Individual flowers within a cluster bloom in succession so that after the initial bloom, both seeds and flowers are present for extended periods (Caicco 2006c). The Sand Mountain blue butterfly has one brood from mid July to mid-September (Austin 1998, p. 557; Shields 1977, p. 5), a period that coincides with the flowering/fruiting period of Kearney buckwheat. During the summer of 2006, scientists from the University of Nevada initiated a research effort to determine the distributional relationship between the butterfly, its host plant, and the dune shrub community. Sand Mountain blue butterflies were counted along a 17,061 ft (5,200 m) transect, with five surveys made between July 15 and August 9, 2006 (Murphy et al. 2006, p. 4). The number of Sand Mountain blue butterflies counted along the transects increased over the duration of the sampling period; because no decline was detected in the number of butterflies counted over that time period, researchers were unable to determine the precise length of the 2006 flight season (Murphy et al. 2006, p. 5 and Figure 2). The researchers found that butterflies occurred across the entire extent of their study area, although, regardless of the sampling date, butterflies were always more abundant in the northeastern portions of the study than in the southwestern areas (Murphy et al. 2006, Figure 2). The researchers reported that “as the season matured, multiple [Sand Mountain blue] butterflies were observed flying around nearly every buckwheat plant at nearly every site on nearly every site visit. Even individual buckwheat shrubs, which were isolated from others by as many as hundreds of meters due to devegetation from vehicle activities, were visited by [Sand Mountain] blue butterflies” (Murphy et al. 2006, pp. 5-6). The abundance of the butterfly was closely correlated with Kearney buckwheat flower phenology and abundance. Early in the flight season, many flowers were unopened; flowers sequentially opened as the sampling period progressed toward August, although some unopened buds remained after sampling was terminated (Murphy et al. 2006, p. 6). Butterfly abundance was strongly correlated with both the number of buckwheat inflorescences (flowers) and the abundance of the Kearney buckwheat itself (Murphy et al. 2006, p. 6 and Figure 6). The researchers also found that the abundance of Kearney buckwheat varies considerably throughout the dune shrub habitat, with higher host plant and butterfly densities in some areas. At a number of their sample locations, Kearney buckwheat was the most abundant shrub in the dune shrub community (Murphy et al. 2006, p. 6 and Figure 5). The buckwheat was usually among the dominant shrub species both along the transect itself and within individual plots (Murphy et al. 2006, p. 6 and Figure 6). The scientists made three conclusions from the data they collected during the 2006 flight season of the Sand Mountain blue butterfly. First, there was a large number of Sand Mountain blue butterflies—“perhaps hundreds of thousands”—a number “substantially above a level that would indicate a need to carry out *in situ* or other actions to enhance population size above a critical minimum” (Murphy et al. 2006, p. 7). Second, the butterfly appears to co-occur with its host plant across the entirety of the shrub's range at Sand Mountain, and the habitat quality for the butterfly increases in parallel with the shrub density from southwest to northeast across the site (Murphy et al. 2006, pp. 7-8). Third, the Kearney buckwheat occurs in a dune shrub community with abundant *Atriplex canescens* (four-wing saltbush) at lower elevations that transitions into a community with a more diverse assemblage of shrub species at higher elevations (Murphy et al. 2006, Figure 5). Along this gradient, the abundance of the Kearney buckwheat and, therefore, the density of butterflies varied in parallel (Murphy et al. 2006, p. 8). Conservation Efforts On August 18, 2004, the Lahontan Valley Environmental Alliance (LVEA), at the request of its board of directors, initiated a public planning effort to develop a conservation plan for the Sand Mountain blue butterfly. The LVEA was created in 1993 by an agreement among local governments and agencies to educate the public and coordinate efforts to protect the natural resources and agricultural-based economy of the communities in Churchill County. Over the past 13 years, the LVEA has worked with various interests to build knowledge and to improve communications among the communities, stakeholder groups, local governments, and State and Federal agencies involved in, or affected by, the natural resources issues of the region (LVEA 2006, p. 1). Through the public planning effort described above, the LVEA organized and facilitated a working group to identify and address the needs of the Sand Mountain blue butterfly. This working group met regularly over the subsequent 21 months. In accordance with the Nevada Open Meeting Law (Nevada Revised Statute, Chapter 241), all meetings were open to the public and noticed in advance with agendas posted in public facilities (Nevada Open Meeting Law Manual 2005). Meeting notes are posted on the LVEA Web site (go to *http://www.lvea.org/workgrp.htm* and click on the link for this species and then click on the link for meeting notes). Participants in the working group included representatives from the LVEA, the Bureau of Land Management (BLM), the Service, the City of Fallon, Churchill County, the Fallon Paiute Shoshone Tribe (Tribe), the Friends of Sand Mountain (FOSM), the California Off-Road Vehicle Association (CORVA), the United States Naval Air Station Fallon, and private citizens (LVEA 2006, pp. 1-2). The purpose of this effort was to develop a Conservation Plan to provide long term protection for the Sand Mountain blue butterfly and its habitat, particularly, its host plant, Kearney buckwheat ( *Eriogonum nummulare* ). Final agreement on the Conservation Plan was reached on May 3, 2006, and it was signed by representatives of the BLM, the Service, the Tribe, CORVA, FOSM, and Churchill County in August and September, 2006. The Conservation Plan identifies specific actions that are necessary to:
(1)Eliminate or reduce known threats,
(2)incorporate species conservation measures into planning and management activities,
(3)educate permittees and recreation users, and
(4)monitor species status trends and habitat quality and requirements. A designated route system, a conservation action identified in the Conservation Plan (LVEA 2006, pp. 14-19), has been implemented by the BLM at Sand Mountain to protect the habitat of the Sand Mountain blue butterfly from further damage and destruction by off-road vehicles (72 FR 12187, March 15, 2007). We used criteria specified in our Policy for Evaluation of Conservation Efforts When Making Listing Decisions
(PECE)(68 FR 15100-15115, March 28, 2003) to evaluate the certainty of effectiveness of this designated route system and determined there is a high level of certainty of effectiveness of the designated route system; consequently, we can consider this action in making a determination as to whether the Sand Mountain blue butterfly meets the Service's definition of a threatened or endangered species (Service 2007). Summary of Factors Affecting the Species Section 4 of the Act (16 U.S.C. 1533) and implementing regulations at 50 CFR Part 424 set forth procedures for adding species to the Federal List of Endangered and Threatened Wildlife. In making this finding, we summarize below information regarding the status of this species in relation to the five factors provided in section 4(a)(1) of the Act. In making our 12-month finding, we have considered and evaluated all scientific and commercial information in our files, including relevant information received during the comment period that ended October 10, 2006 (71 FR 44988). Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range The Sand Mountain blue butterfly is known only from Sand Mountain in Churchill County, Nevada, where it is dependent on its larval host plant, Kearney buckwheat (Austin 1998). The entire Sand Mountain dune system is estimated to extend over 2,581 ac (1,044 ha), but Kearney buckwheat is not evenly distributed throughout this entire area; Kearney buckwheat plants are typically found on peripheral, more vegetated dunes, and are particularly common on the smaller dunes to the northeast of the main dune (BLM 2006a, Map 1). In most areas, Kearney buckwheat is a component of a diverse dune shrub habitat comprised of up to 13 shrub species (BLM 2004). An estimated 1,000 ac (405 ha) of dune shrub habitat with varying amounts of Kearney buckwheat existed in 2003 (BLM 2006b, p. 2). The current distribution of the shrubs, as described above, reflects both their natural adaptation to specific site conditions and the cumulative effect of 25 years of off-road vehicle use. A portion of the Sand Mountain dune system lies within the Sand Mountain Recreation Area (SMRA), a BLM designation that encompasses 4,795 ac (1,940 ha), and is about 1.0 mi (1.6 km) wide and 3.5 mi (5.6 km) long. The specific BLM designation of the SMRA for recreational use does not limit off-road or other forms of recreation only to this area. Furthermore, the BLM designation restricts non-recreation type activities, such as mineral mining, from occurring within the boundary of the designation. The recreational use designation for the SMRA was first established in 1968 (BLM 1985, p. 4). By 1973, recreational use had reached 32,254 visitors annually (BLM 1985, p. 5). The first approved management plan for the area was developed more than a decade later (BLM 1985). Based on BLM information, we estimate that 40 percent, or 400 ac (162 ha) of the total of 1,000 ac (405 ha), of the Kearney buckwheat habitat occurs within the designated boundary of the SMRA (BLM 2006a, Map 1). The remaining estimated 60 percent of the Kearney buckwheat habitat occurs on BLM land outside of the eastern SMRA boundary. Until recently, off-road vehicle use was limited on only about 40 ac (16 ha) of the SMRA; no Kearney buckwheat plants occur in this limited-use area. The rest of the SMRA was open to unrestricted off-road vehicle use, as were all adjacent areas of the dune system. As early as 1985, motorized recreation by motorcycles, four-wheel drive vehicles, three wheelers, and dune buggies, accounted for over 90 percent of the total visits to the SMRA (BLM 1985). Annual visitor use at the SMRA increased from about 16,000 persons in 1981 to about 65,000 persons in 2005 and was expected to increase again in 2006 (BLM 2006c). Visitation tends to peak on holiday weekends; for example, more than 5,000 people were present over the Labor Day weekend in 2006 (Nevada Appeal 2006, p. 1). In recent years, however, there has been a pattern of increased use on non-holiday weekends (BLM 2006c). The BLM's Carson City Field Office has documented the expansion of an off-road vehicle route system based on an analysis of satellite imagery from 1978, 1994, 1999, and 2002; the route system has grown from about 20 mi (32 km) of off-road vehicle trails in 1981 to about 200 mi (320 km) in 2003 (BLM 2003). In addition to documenting the overall proliferation of off-road vehicle routes, the imagery clearly shows an increase in the amount of habitat fragmentation and an expansion of the off-road vehicle route system from the more accessible southern end of the main dune into dune shrub habitat adjacent to the SMRA toward the north and east that had been relatively undisturbed as recently as 1994 (BLM 2003). Based on the trail proliferation visible in the satellite imagery from 1978 to 2003 (BLM 2003, 2004), we estimate that the shrub habitat on which the Sand Mountain blue butterfly depends may have been reduced by as much as 50 percent over the past 25 years. At most, 1,000 ac (405 ha) of dune shrub habitat remains, and within that area 500 ac (202 ha) to 600 ac (243 ha) may have Kearney buckwheat as a dominant or co-dominant shrub (BLM 2006c). We consider the entire 1,000 ac (405 ha) of dune shrub habitat to be the current range of the Sand Mountain blue butterfly; this includes non-Kearney buckwheat habitat through which the species passes, including areas devoid of vegetation such as trails, as well as areas that support the Kearney buckwheat shrubs on which the butterfly depends for completion of its life cycle. Because the amount of Kearney buckwheat within a patch of dune shrub habitat varies, no precise data on the total number of individual Kearney buckwheat shrubs is available. We also have no reliable estimate of the historical distribution of the Kearney buckwheat at Sand Mountain other than an anecdotal report of a minor amount of vegetation having been lost along the periphery of the dune (Guiliani 1977); therefore, we consider the existing estimate of 1,000 ac (405 ha) of dune shrub habitat to approximate the historic range of the Sand Mountain blue butterfly. The Sand Mountain dune system was included in an initial conservation assessment of blowing sand mountains prepared by The Nature Conservancy (2004). This conservation assessment ranked the long-term (defined as greater than 100 years) viability of the Sand Mountain dune ecosystem based on size, condition, and landscape context, using information from the existing literature and expert opinion (The Nature Conservancy 2004, p. 29). Each of these factors had the potential to be ranked as very good, good, fair, or poor based on specific viability criteria (The Nature Conservancy 2004, p. 35). Size was ranked as good if there was 1,236 ac-2,471 ac (500-1,000 ha) of connected habitat outside of the area heavily affected by off-road vehicle use (The Nature Conservancy 2004, p. 35). The condition rank was based on three criteria:
(1)Whether invasive plants were present that could artificially stabilize dune dynamics;
(2)whether other alterations affecting dune mobility, such as vegetation mortality or artificial mobilization of stable sands, were occurring; and (3), whether there was natural recruitment by key plant species. The condition was assigned a fair rank based on the fact that only the criterion regarding the presence of invasive plants was met (The Nature Conservancy 2004, p. 35). The landscape context was ranked very good based on the fact that the connection to the current sand source remained intact (The Nature Conservancy 2004, p. 35). Overall, the long-term viability of the Sand Mountain dune system was ranked marginally good, but it was noted that the “rapid trend towards an increasingly degraded condition of this area is of considerable concern” (The Nature Conservancy 2004, p. 35). The assessment noted that the condition of the area was primarily affected by off-road vehicle use, which was of particular concern because of the small overall size of the area and the likelihood of increasing use levels at the SMRA (The Nature Conservancy 2004, p. 36). It should be emphasized that this ranking was for the Sand Mountain dune ecosystem as a whole and none of the viability criteria evaluated specifically addressed either the status of the Sand Mountain blue butterfly or the Kearney buckwheat. The relevance of this report to the dune shrub habitat lies in its assessment that the process that supplies the source of sand to the ecosystem remains intact, and the corroboration that it provides of the threats posed by off-road vehicles and invasive weeds. There have been several observations over the past 25 years on the effects of off-road vehicles on the Sand Mountain dune shrub habitat, on the Kearney buckwheat, and on the relationship between the buckwheat habitat and the Sand Mountain blue butterfly. These include:
(1)A letter documenting the extirpation of all plant life from an area 150 ft (46 m) wide along the edge of the main dune over a period of several years (Giuliani 1977);
(2)a memorandum from the Service to the BLM reporting that up to half of 58 individual Kearney buckwheat plants inspected on the south side of the mountain had been crushed and broken off at the ground surface and were either dead or in the process of resprouting from the rootstocks (Service 1994);
(3)a mid-1990's report to the Service from a research scientist at the University of Nevada, Reno, stating that “as long as the foodplant remains as abundant as it is now in the overall dune area, we saw no particular threat to the continued existence of the butterfly” (Brussard 1995). In our 90-day finding on the petition to list the Sand Mountain blue butterfly (71 FR 44988, August 8, 2006), we concluded that the petition provided substantial information to support the assertion that off-road vehicle use at Sand Mountain presents direct and indirect threats to the dune shrub habitat with Kearney buckwheat on which the Sand Mountain blue butterfly depends. In particular, we based our conclusion on the following—data provided by the petitioners that reliably documented a progressive loss of dune shrub habitat within the past 25 years, continuing fragmentation of dune shrub habitat, and an ongoing expansion of the route system into dune shrub habitat previously considered secure for the butterfly (BLM 2003); data that documents annual visitor use has more than doubled and the route system has expanded from 20 mi (32 km) to over 200 mi (320 km) over this time period (BLM 2003); an estimate that 1,000 to 1,600 ac (405 to 647 ha) of dune shrub habitat remained in which Kearney buckwheat is a component (BLM 2004, p. 4); and our estimate, based on satellite imagery prepared by BLM (2003), that about 50 percent of the dune shrub habitat within the species current range may have been destroyed or altered over this 25-year time span. The scientific literature documents the effects of off-road vehicles on terrestrial habitats in arid environments, including sand dunes. Effects include significant reductions in the number, density, and cover of plants, including shrubby perennials (Bury and Luckenbach 1983) and direct impacts on desert vegetation (Stebbins 1995; Lathrop 1983; Lathrop and Rowlands 1983). While none of these citations provides specific evidence of a direct significant threat to the Sand Mountain blue butterfly, the papers by Bury and Luckenbach (1983, pp. 211-213), Lathrop (1983, pp. 157-164), Lathrop and Rowlands (1983, pp. 138-141, 144-146), and Stebbins (1995, pp. 471-472) do provide documentation that off-road vehicles can damage and destroy plants and result in significant decreases in plant numbers, density, and cover, including shrubby perennials at various sites in the western North American deserts. Specific observations of such impacts at Sand Mountain have been reported previously (Guiliani 1977; Service 1994; The Nature Conservancy 2004, p. 36; BLM 2006e). The scientific literature provides documentation that natural recovery rates of perennial vegetative cover damaged by off-road vehicles in arid environments can take decades and, in some cases, may require centuries (Lathrop and Rowlands 1983; Kockelman 1983; Webb and Wilshire 1983). The papers by Lathrop and Rowlands (1983, p. 143) and Kockelman (1983, p. 3) provide a timeframe for understanding natural recovery rates of habitats damaged by off-road vehicle use in arid environments. We previously found that these studies provided reliable documentation that even if off-road vehicle use were to be eliminated from Sand Mountain, natural recovery of the Kearney buckwheat habitat may take decades, a timeframe that might pose an indirect threat to the long-term viability of an obligate butterfly species that must reproduce annually and relies on the buckwheat as a host plant. We now have evidence, however, from the first comprehensive assessment of the status of the Sand Mountain blue butterfly to indicate that a large viable population of the species exists despite the past loss of habitat; moreover, the presence of butterflies at even small, relatively isolated patches of Kearney buckwheat suggests that the butterfly is not particularly sensitive to habitat fragmentation (Murphy et al. 2006, pp. 5-6). Furthermore, as noted in the Biology and Distribution section, since the publication of the 90-day finding, we have obtained new information on the abundance and status of the Sand Mountain blue butterfly and the potential threats of habitat loss and fragmentation to the species. Researchers collected data along several permanent transects installed throughout the distribution of the dune shrub habitat at Sand Mountain from July 15 through August 9, 2006 (Murphy et al. 2006, pp. 4-5). The scientists estimated that hundreds of thousands of adult Sand Mountain blue butterflies may have emerged during the 2006 flight season (Murphy et al. 2006, p. 7). Adult butterflies were associated with nearly all Kearney buckwheat shrubs along the transects and butterflies were distributed across the entire available habitat area, even with individual buckwheat shrubs isolated from others by hundreds of meters (Murphy et al. 2006, p. 6). The scientists concluded the Sand Mountain blue butterfly numbers were “substantially above a level that would indicate a need to carry out in situ or other actions to enhance population size above a critical minimum” (Murphy et al. 2006, p. 7). Annual population numbers may vary considerably depending on local weather conditions, and the researchers note that the large population in 2006 may represent an atypical spike in the butterfly population (Murphy et al. 2006, p. 9). However, even if this number represents an upper population estimate, we believe that the very large number of butterflies observed during the recent survey clearly shows that the remaining Kearney buckwheat habitat is currently sufficient to support a viable population of the Sand Mountain blue butterfly. Although sufficient habitat remains to support a robust population of the Sand Mountain blue butterfly (Murphy et al. 2006, p. 7), researchers have cautioned that “the sizable Sand Mountain blue population notwithstanding, continued degradation of the shrub community and losses of Kearney buckwheat will ultimately lead to the elimination of the butterfly” (Murphy et al. 2006, p. 9). To reduce the significance of the threat posed to the Sand Mountain blue butterfly by continued degradation of the shrub community and losses of Kearney buckwheat, on December 12, 2006, the BLM implemented an emergency restriction on motorized use on 3,985 ac (1,612 ha) of land to prevent further adverse effects on the habitat of the Sand Mountain blue butterfly (BLM 2006b); the closure notice was published in the **Federal Register** on March 15, 2007 (72 FR 12187). This action, which reduces the route system both within and outside of the SMRA from an estimated 200 mi (320 km) to 21.5 mi (34.4 km), has returned the route mileage to about the 1980 level. The route designation system adopted by BLM is consistent with the Conservation Plan (LVEA 2006) and the restrictions are described by BLM as necessary to prevent further adverse effects to the habitat of the Sand Mountain blue butterfly (72 FR 12187). The route designation system is specifically designed to reduce threats from recreational use, weed infestation, fire, and the reduction of site potential, thereby furthering the objectives of eliminating off-road vehicle incursions into dune shrub and butterfly habitat; preventing route increases in dune shrub habitat; minimizing shrub damage and loss; and allowing for habitat regeneration and restoration (LVEA 2006, p. 15). The emergency restriction will remain in effect until the Resource Management Plan
(RMP)has been updated to address the long-term management of the wildlife, cultural, vegetation, and recreational resources in the area or until the Field Office Manager determines it is no longer needed (BLM 2006b, p. 1; 72 FR 12187, March 15, 2007). Every indication we have from the BLM at both the field office and state office level is that the emergency restriction will remain in place until made permanent through an amendment to the RMP. The RMP must be updated in compliance with the Federal Land Management and Policy Act, the National Environmental Policy Act, and other applicable laws and policies which have, among other requirements, opportunity for public and agency review and comment. Under the terms of the Conservation Plan monitoring of compliance with the designated route system will continue and results will be reviewed every six months; areas in which non-compliance exceeds a specified threshold will be fenced (LVEA 2006, p. 60). The Conservation Plan also includes increased law enforcement to ensure compliance in the use of the designated route system, especially on heavy use weekends and randomly at other times. Through an agreement with Churchill County, which is a party to the Plan, local law enforcement staff will be used in the camping areas to allow BLM Park Rangers to patrol the route system and other areas (LVEA 2006, p. 20). Further, any person who fails to comply with the BLM restriction order may be subject to imprisonment for not more than 12 months or a fine in accordance with the applicable provisions of 18 U.S.C. 3571, or both (BLM 2006b, p. 3; 72 FR 12187, March 15, 2007). A handout was given to recreational users over Labor Day weekend, 2006, informing them of the completion and approval of the Conservation Plan, the upcoming mandatory route system, and the importance of demonstrating success in protecting the habitat for the Sand Mountain blue butterfly (BLM 2006d). A variety of additional public education activities are provided for in the Conservation Plan, including interpretive, cautionary and regulatory signage throughout the SMRA and dune system, as well as education pamphlets, brochures, and information available on Web sites and other forms of media (LVEA 2006, p. 21-24). Implementation of the limited off-road vehicle route system is already occurring. We have evaluated the certainty of effectiveness of the designated route system using criteria specified in PECE (68 FR 15115, March 28, 2003). Based on our evaluation, we have determined that this conservation action satisfies all of the PECE criteria for the certainty of effectiveness (Service 2007). We conclude that the off-road vehicle route system is sufficiently certain to be implemented and effective so as to have reduced the present and future threat of destruction, modification, or curtailment of the habitat or range of the Sand Mountain blue butterfly to a level such that off-road vehicle impacts to habitat are not a basis for finding that listing is warranted. Other components of the Conservation Plan have also been initiated related to research (LVEA 2006, pp. 27-28). These include mapping of current Kearney buckwheat and invasive weeds distribution; remote sensing of habitat characteristics, trends, and route analyses; studies of the Sand Mountain blue butterfly population status and habitat requirements; population dynamics of the Kearney buckwheat; and Kearney buckwheat propagation and transplantation studies. Kearney buckwheat habitat and invasive weeds mapping and remote sensing analysis of habitat characteristics, trends, and route analyses have been in progress for several years. The BLM has secured funding through grants to purchase additional imagery to continue the trend analysis in 2006, 2009, and 2012 (LVEA 2006, p. 28). Research on the population status of the butterfly was initiated during the 2006 adult flight season by scientists from the University of Nevada, Reno, with funding through the Nevada Biodiversity Initiative; these data provide a baseline against which future fluctuations in the butterfly population can be compared (Murphy et al. 2006). Pilot studies of the population dynamics of the Kearney buckwheat have been initiated (LVEA 2006, p. 27), and seed of the Kearney buckwheat has previously been collected through the BLM Seeds of Success program. Propagation studies using these seeds, and other seeds to be collected on site, are to be conducted by the Natural Resource Conservation Service's newly established Fallon Plant Materials Center, which will also conduct transplantation studies of propagated seedlings into disturbed habitats at Sand Mountain (Tonenna 2006). While we did not rely on them making this finding, we recognized that these research components will both inform and facilitate efforts to recover damaged butterfly habitat at Sand Mountain as well as contribute to sound scientific data for future management actions. In our 90-day finding, we addressed the claim by the petitioners that the constant disruption of the soil surface makes it difficult or impossible for seeds of the Kearney buckwheat to germinate and for seedlings to establish and concluded that the petitioners had provided no documentation for this claim (71 FR 44991). The Service has since made field visits to Sand Mountain and, while we have no quantitative data on this matter, we observed an absence of Kearney buckwheat seedlings in areas of high off-road vehicle use. We also observed numerous Kearney buckwheat seedlings in areas that received little, if any, off-road vehicle use (Caicco 2006c). These observations are consistent with previous reports (Tonenna 2003 as cited in The Nature Conservancy 2004, p. 37). We believe, based on these observations, that the constant disruption of the sand surface in heavily used areas may interfere with the establishment of Kearney buckwheat and could potentially pose a long-term threat to shrub regeneration and, therefore, to the long-term viability of the butterfly itself. However, the restriction of off-road vehicle recreation to the designated route system substantially reduces the magnitude and imminence of the threat to the regeneration of Kearney buckwheat. As described above, sufficient habitat remains at Sand Mountain to support a large population of the Sand Mountain blue butterfly, and the reduction in the level of threat due to the designated route system, over the long-term, ensures that natural shrub regeneration and/or active restoration will maintain sufficient habitat to ensure the viability of the Sand Mountain blue butterfly. Although not identified as a threat by the petitioners, trampling or grazing of buckwheat plants and/or seedlings by livestock was identified by the working group as a potential threat to the habitat of the butterfly, although it was acknowledged that more information was needed to determine the level of threat (LVEA 2006, pp. 11-12). Dune shrub habitat with and without Kearney buckwheat occurs within portions of two range allotments, where it comprises 1,357 ac (549 ha), or 2 percent, of the Salt Wells Allotment, and 331 ac (134 ha), or 0.5 percent, of the Frenchmen Flat Allotment. The stocking values are set at 270 cattle and 1,626 animal unit months
(AUMS)from October 15 through April 15 for Salt Wells and 403 cattle and 2,001 AUMS from October 15 through April 15 for Frenchmen Flat. We are not aware of any evidence that supports trampling or grazing as a significant threat to the Kearney buckwheat. Summary of Factor A Biological data on the Sand Mountain blue butterfly collected by researchers document that hundreds of thousands may have been present during the 2006 adult flight season. These data show that a large, robust population of the Sand Mountain blue butterfly remains despite the estimated loss of as much as 50 percent of its habitat. The only known threat of potential significance in the foreseeable future is the destruction by off-road vehicles of the dune shrub habitat containing the Kearney buckwheat, upon which the butterfly depends for its survival. Habitat destruction is a gradual and cumulative process that affects not only mature shrubs, but also likely disrupts their reproductive capacity by constant disturbance of the sand surface, thereby preventing seedling establishment. The shrubs, however, are long-lived and the habitat remains sufficiently extensive such that the threat to the butterfly does not cause it to be in danger of extinction nor likely to become in danger of extinction in the foreseeable future. Further, an emergency restriction on motorized use on 3,985 ac (1,613 ha) to protect the habitat of the butterfly went into effect on December 12, 2006 and a closure notice regarding these restrictions was published in the **Federal Register** on March 15, 2007 (72 FR 12187). The implementation of this emergency restriction, and the high level of certainty of its effectiveness, has substantially reduced the magnitude and significance of any long-term threat posed by off-road vehicles to the habitat and viability of the Sand Mountain blue butterfly. Therefore, we conclude that the Sand Mountain blue butterfly is not now, or in the foreseeable future, threatened by destruction, modification, or curtailment of its habitat or range. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are not aware of any scientific or commercial data that indicate overutilization for commercial, recreational, scientific, or educational purposes poses a threat to the species. Factor C: Disease or Predation We are not aware of any scientific or commercial data that indicates either disease or predation poses a threat to the species. Factor D: Inadequacy of Existing Regulatory Mechanisms In our 90-day finding on the petition to list the Sand Mountain blue butterfly, we found that the petitioners had provided substantial information that existing regulatory mechanisms may be inadequate to prevent the progressive decline of the habitat on which the butterfly depends (page 44991 of 71 FR 44988, August 8, 2006). We based our determination on evidence that the public had raised the issue of the potential impacts of off-road recreational use on the invertebrate fauna of the dune system over 25 years ago (Hardy 1978); the inactivity of a monitoring plan initiated in the mid-1990's after personnel changes in both the BLM and Service; the lack of action on a 2002 proposed closure of 1,000 ac (405 ha) of dune shrub habitat by a group comprised of BLM and Service staff, representatives from conservation and off-road vehicle groups, and representatives of the Fallon-Paiute Shoshone Tribe; and the lack of compliance with a voluntary route system implemented by the BLM in 2004 that was intended to protect and restore the sand dune ecosystem. The inadequacy of the voluntary off-road vehicle route system is well documented in a monitoring report on compliance with the encouraged route system for the period 2003-2006 (BLM 2006e). High levels of noncompliance occurred from the onset of implementation of the voluntary system, and the number of incursions into habitat outside of the encouraged routes increased in 2006 (BLM 2006e, pp. 3-4). Multiple incursions into habitat outside of the encouraged route system typically occurred at any given point, so that the cumulative impacts were considered to be four times greater than the number of noncompliance points (BLM 2006e, p. 6.). BLM's information also indicates a strong relationship between the number of visitors and the number of noncompliance points (BLM 2006e, p. 7). Moreover, about 50 percent of all noncompliance points occurred at or near red carsonite posts installed to alert riders that travel was discouraged in areas behind the posts (BLM 2006e, p. 8). Overall, under the voluntary system 98 percent of all existing routes continued to be used and new routes were created, indicating an ongoing expansion of habitat degradation with little or no restoration of previously degraded areas (BLM 2006e, p. 13). On December 12, 2006, the BLM implemented an emergency restriction on motorized use on 3,985 ac (1,613 ha) of land to prevent further adverse effects on the habitat of the Sand Mountain blue butterfly (BLM 2006b; 72 FR 12187, March 15, 2007). This action, which reduced the route system from an estimated 200 mi (320 km) to 21.5 mi (34.4 km), has returned the designated route mileage to about the 1980 level. The emergency restriction affects certain public lands within Sections 13, 14, 16, 21 through 24, 28, 29, 32, and 33, of Township 17 North, Range 32 East (Mt. Diablo Meridian) (72 FR 12187). This action restricts motorized vehicle use to selected existing routes that generally lie on the periphery of the Sand Mountain blue butterfly habitat, although several existing routes remain open to motorized use that cross between existing patches of dune shrub habitat; the designated routes were selected to prevent further adverse effects to the habitat of the Sand Mountain blue butterfly while maintaining recreational use at the SMRA. This action is consistent with the Conservation Plan (LVEA 2006) and is specifically designed to address threats from recreational use, weed infestation, fire, and the reduction of site potential, thereby furthering the objectives of eliminating or reducing the number of off-road vehicle incursions into dune shrub and butterfly habitat; eliminate route increase in dune shrub habitat; eliminate shrub damage and loss; and allow for habitat regeneration (LVEA 2006, p. 15). The emergency restriction will remain in effect until the Resource Management Plan has been updated to address the long-term management of the wildlife, cultural, vegetation, and recreational resources in the area or until the Field Office Manager determines it is no longer needed (BLM 2006b, p. 1; 72 FR 12187, March 15, 2007). Every indication we have from the BLM at both the field office and state office level is that the emergency restriction will remain in place until made permanent through an amendment to the RMP. The Conservation Plan also provides for increased law enforcement, especially on heavy use weekends and randomly at other times; through an agreement with Churchill County, which is a party to the Plan, local law enforcement staff will be used in the camping areas to allow BLM Park Rangers to patrol the route system and other areas (LVEA 2006, p. 20). In addition, any person who fails to comply with this restriction order may be subject to imprisonment for not more than 12 months or a fine in accordance with the applicable provisions of 18 U.S.C. 3571, or both (BLM 2006b, p. 3; 72 FR 12187, March 15, 2007). A handout was given to recreational users over Labor Day weekend, 2006, informing them of the completion and approval of the Conservation Plan, the upcoming mandatory route system, and the importance of demonstrating success in protecting the habitat for the Sand Mountain blue butterfly (BLM 2006d). The Conservation Plan includes provisions for regular reporting on progress of implementation and effectiveness of various actions taken pursuant to the plan (LVEA 2006, p. 30). This includes provisions for regularly scheduled meetings of the parties to the plan, at which an evaluation of the implementation progress and effectiveness of the plan (including the route system and its enforcement) will be reviewed and, if necessary, modifications made and adaptive management actions initiated. The first meeting of the parties since the closure notice was put into effect occurred on March 15, 2007. Implementation progress was reviewed, the signage and fencing strategy and funding considerations were discussed, and the next meeting was scheduled for May 10, 2007. The agenda for the latter meeting will include further discussion of the fencing strategy and the scheduling of a site visit to discuss fence placement along key route segments. At every six-month meeting, the implementation success of the conservation actions will be evaluated, the success or failure of the objectives of each strategy will be determined and an adaptive management plan will be triggered, if appropriate. At annual meetings, the long-term monitoring will be analyzed and continuation or modification of the plan will be determined, based on the triggers for overall plan success. We note also that BLM has demonstrated their commitment to monitor the situation and to take appropriate action, as illustrated by BLM's adoption of the mandatory route system based on monitoring of the voluntary route system that previously was in place. As described above (see discussion of Factor A), we reviewed the route system in accordance with PECE and found that all of the criteria for certainty of effectiveness are met, and concluded there is a high level of certainty of effectiveness of the route system (Service 2007). We conclude that the emergency restriction on motorized vehicle use has established an adequate regulatory mechanism to protect the existing Kearney buckwheat habitat which, as noted above, remains sufficient to support a large, viable population of the Sand Mountain blue butterfly (Murphy et al. 2007, p. 7). Summary of Factor D Unrestricted off-road vehicle recreation at Sand Mountain has been the primary cause of the gradual process of destruction and modification of the dune shrub habitat of the Sand Mountain blue butterfly over the past two decades and remains the only threat of potential significance to the species in the foreseeable future. However, we have determined that the implementation and effectiveness of a mandatory, enforceable route system that restricts travel within the dune shrub habitat adequately addresses this potential threat by eliminating or greatly reducing further habitat deterioration and allowing for habitat recovery within closed areas. We believe that the strengthened regulatory approach and increased emphasis on encouraging compliance with the mandatory route system has substantially reduced the magnitude and imminence of the threat of off-road recreational use to the Kearney buckwheat habitat, which currently remains sufficient to support a large, viable population of the Sand Mountain blue butterfly. Therefore, we have determined that the inadequacy of existing mechanisms does not currently constitute a threat to the Sand Mountain blue butterfly. Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species Several other natural or manmade factors have been identified as potential threats to the Sand Mountain blue butterfly, including invasive weeds (LVEA 2006, p. 10; The Nature Conservancy 2004, pp. 49-52; Murphy et al. 2006, p. 7 and Figure 7), wildfire (LVEA 2006, pp. 13-14; Murphy et al. 2006, p. 9); climate change (LVEA 2006, p. 14; Murphy et al. 2006, p. 9), camping (LVEA 2006, p. 11), hiking (LVEA 2006, p. 14), horseback riding (LVEA 2006, p. 14), pollution (LVEA 2006, p. 14), and military action (LVEA 2006, p. 14). In addition, in our 90-day petition finding, we acknowledged that while large fluctuations in size typical of insect populations may make a species with an extremely limited distribution, such as the Sand Mountain blue butterfly, more susceptible to extinction (Ehrlich 1992), we are aware of no information that large population fluctuations have occurred, or are likely to occur for this species. (71 FR 44992, August 8, 2006). Although researchers have acknowledged that the large population observed in 2006 may have been an anomaly, which could have obscured normal patterns of butterfly distribution that might suggest a more significant threat to the species than is indicated by the 2006 field observation (Murphy et al. 2006, p. 9), they also concluded that the Sand Mountain blue butterfly numbers were “substantially above a level that would indicate a need to carry out in situ or other actions to enhance population size above a critical minimum” (Murphy et al. 2006, p. 7). Based on this assessment, we believe that the population will remain viable into the foreseeable future. Of the potential threats cited above, we consider the interrelated factors of invasive weeds and fire to be the most significant. The primary invasive weeds of concern at Sand Mountain are *Salsola tragus* (Russian thistle) and *Bromus tectorum* (cheatgrass). Large patches of both species are present in areas along the periphery of the sand dunes, principally in areas where livestock water tanks and camping are permanently located (LVEA 2006, p. 10). Researchers did not find cheatgrass to be a dominant species along transects in 2006 (Murphy et al. 2006, Figure 5). The seeds of these invasive weeds can be spread by wind, cattle, and off-road vehicle transport (LVEA 2006, p. 11). There is no evidence that these annual weeds are capable of artificially stabilizing the dune systems at Sand Mountain (The Nature Conservancy 2004, p. 53), and we do not consider artificial stabilization of the dune system to be a significant threat to the habitat of the Sand Mountain blue butterfly. We are unable to assess the significance of off-road vehicles as a vector for weed transport because of lack of data, although they likely facilitate weed establishment through surface disturbance. Because both cheatgrass and Russian thistle are annual plants, we do not believe that they pose a significant direct competitive threat to the Kearney buckwheat, a long-lived shrub. Cheatgrass and Russian thistle, however, do create a substantial fuel load that may increase both the likelihood and frequency of wildfire. Wildfires have not occurred over the past 25 years of record at Sand Mountain (LVEA 2006, p. 13), and wildfires likely have a low natural frequency in sparsely vegetated dune ecosystems. The Sand Mountain ecosystem was rated in fair condition based on the absence of known dune-stabilizing invasive plants (The Nature Conservancy 2004, p. 35). After a subsequent visit by a few assessment team members, however, it was noted that the abundance of invasive plants was much higher than assumed by the team during the analysis, and it was possible that they might have downgraded the rating to poor if they had been aware of this information (The Nature Conservancy 2004, p. 37). Vegetation data collected along transects by researchers during the 2006 field season, however, show that both the presence and abundance of Russian thistle vary spatially, and the invasive weed is absent in many areas; nevertheless, the researchers found fewer butterflies where Russian thistle was abundant (Murphy et al. 2006, p. 7, Figure 7). This observation clearly derives from the strong correlation between numbers of the butterfly and the number of buckwheat shrubs and their inflorescences (Murphy et al. 2006, Figure 4). Transect data presented by the researchers appear to show that greater abundance of Russian thistle (and lesser abundance of Kearney buckwheat) also correlates with a greater abundance of several other plants, including four-wing saltbush, *Oenothera deltoides* (desert evening-primrose), *Rumex venosus* (winged dock), and an unidentified species of wild buckwheat (Murphy et al. 2006, Figure 5). None of these plants are abundant in areas along the transects where the Kearney buckwheat is abundant (Murphy et al. 2006, Figure 5), suggesting the possibility that the particular habitats where these species, including Russian thistle, are dominant may not provide suitable habitat for the Kearney buckwheat. We conclude, therefore, that annual invasive weeds, the combustible fuels they create, and the potential for wildfires to occur and increase in frequency, thereby promoting the increase and establishment of invasive weeds, all pose risks to at least some of the habitat of the Sand Mountain blue butterfly. The extent and magnitude of the risks, however, is unclear because we have no quantitative information on the overall distribution and abundance of invasive weeds, nor are any data available on the response of the Kearney buckwheat to fire. The occurrence of the buckwheat in a habitat in which fire is naturally rare suggests that it is not fire-tolerant; the species, however, has an extensive branching caudex (root crown) from a deep woody taproot (Reveal 2002, p. 1), from which it has been observed to resprout after physical damage to its above-ground shoot (Service 1994). It may, therefore, be intolerant of fire but capable of surviving it. At this time, therefore, we are aware of no substantial evidence that invasive plants or fire currently pose a significant threat to the habitat or viability of the Sand Mountain blue butterfly. Of the remaining potential threats to the Sand Mountain blue butterfly, camping was identified as such primarily because it constitutes an additional source of invasive weeds (LVEA 2006, p. 11) and is subject to the same considerations discussed above. In addition, the only campground is located in an area where Kearney buckwheat once occurred and the butterfly was first discovered (Austin 1998), but neither the buckwheat nor the butterfly occur there today so the campground itself no longer poses a direct threat to the species. Climate change is also a potential threat to the species (LVEA 2006, p. 14; Murphy et al. 2006, p. 9), but there is no available evidence to evaluate the imminence or magnitude of this threat. There is also no evidence that pollution or military action pose a significant threat to the species or its habitat, and their level was considered so low that they were not considered in the Conservation Plan (LVEA 2006, p. 14). Summary of Factor E Annual invasive weeds, the combustible fuels they create, and the potential for wildfires to occur and increase in frequency, thereby promoting the increase and establishment of invasive weeds all pose a threat to at least some of the habitat of the Sand Mountain blue butterfly. The extent and magnitude of this threat, however, is unclear because we have no quantitative information on the overall distribution and abundance of invasive weeds, nor are there any data available on the response of the Kearney buckwheat to fire. No substantial evidence exists to support a conclusion that annual weeds or fire currently pose a significant threat to the habitat or viability of the Sand Mountain blue butterfly. Finding We assessed the best available scientific and commercial information regarding threats faced by the Sand Mountain blue butterfly. We have reviewed the petition, information available in our files, and information submitted to us during the public comment period following our 90-day petition finding (71 FR 44988; August 8, 2006). We also consulted with recognized butterfly experts and Federal land managers, and arranged for researchers to initiate field studies to assess the status of the subspecies and establish baseline data against which future changes in the butterfly population can be compared. Based on counts made during the 2006 flight season, hundreds of thousands of adult Sand Mountain blue butterflies may have been present, a number sufficiently large for us to find that habitat loss to date does not pose a significant threat to the subspecies. The only known threat of potential future significance to the habitat of the Sand Mountain blue butterfly is the gradual destruction by off-road vehicles of the dune shrub habitat containing Kearney buckwheat, on which the butterfly depends, and associated impacts to the reproductive success of the shrub the constant disruption of the sand surface which interferes with seedling establishment. The magnitude and imminence of the threat posed by off-road vehicle recreation to the habitat of the butterfly, however, has been reduced by an emergency restriction that limits motorized vehicles to a designated route system that went into effect on December 12, 2006. We believe that implementation of this emergency restriction ensures that further habitat destruction is prevented and, over the long-term, natural shrub regeneration and active restoration will ensure that the Sand Mountain blue butterfly remains viable. There is no evidence that, based on the available information, other factors identified as potential threats, including large population fluctuations, invasive weeds, wildfire, climate change, camping, hiking, horseback riding, pollution, and military activities pose a significant threat to the Sand Mountain blue butterfly. The butterfly exists in only one population, and we consider the entire 1,000 ac (405 ha) of dune shrub habitat to be the current range of the Sand Mountain blue butterfly; this includes non-Kearney buckwheat habitat through which the species passes, including areas devoid of vegetation such as trails, as well as areas that support the Kearney buckwheat shrubs on which the butterfly depends for completion of its life cycle. As described above, researchers have found the butterfly appears to co-occur with its host plant, Kearney buckwheat, across the entirety of the shrub's distribution at Sand Mountain, even within small, relatively isolated patches of the shrub (Murphy et al. 2006, pp. 5-8). We believe, therefore, that the current range of the Sand Mountain blue butterfly approximates its historical range, although only 50 to 60 percent of the entire area of dune shrub habitat is estimated to support substantial numbers of the Kearney buckwheat on which the butterfly depends for completion of its life cycle. Because the area in which the population exists is so small, and there are no unique features of the area, there are no areas within the species' range that are significant portions of the range. In addition, the threats to the species are being addressed across its range, as described above, such that no area continues to face significant threats. Therefore, we find that the Sand Mountain blue butterfly is not threatened or endangered in all or a significant portion of its range, and listing it under the Endangered Species Act is not warranted at this time. We will continue to assess the status of the butterfly by working with the BLM, other parties to the Conservation Plan, research scientists, and other individuals or groups interested in contributing to the conservation of this species. We will particularly focus on the designated route system and the effectiveness of this conservation action in eliminating and reducing the threats identified to the butterfly over the foreseeable future. In particular, we will closely follow the monitoring results of recreational user compliance with the designated route system. As specified in PECE (68 FR 15114): “If we make a decision not to list a species or to list the species based in part on the contributions of a formalized conservation effort, we will track the status of the effort including the progress of implementation and effectiveness of the conservation effort. If any of the following occurs:
(1)A failure to implement the conservation effort in accordance with the implementation schedule;
(2)a failure to achieve objectives;
(3)a failure to modify the conservation effort to adequately address an increase in the severity of a threat or to address other new information on threats; or
(4)we receive any other new information indicating a possible change in the status of the species, then we will reevaluate the status of the species and consider whether initiating the listing process is necessary. Initiating the listing process may consist of designating the species as a candidate species and assigning a listing priority, issuing a proposed rule to list, issuing a proposed rule to reclassify, or issuing an emergency listing rule.” We request that you submit any new information concerning the status of, or threats to, this species to our Nevada Fish and Wildlife Office (see ADDRESSES section) whenever it becomes available. New information will help us monitor the species and encourage its conservation. If an emergency situation develops for this or any other species, we will act to provide immediate protection. References Cited A complete list of all references cited herein is available, upon request, from the Nevada Fish and Wildlife Office (see ADDRESSES section). Author The primary author of this notice is the Nevada Fish and Wildlife Office (see ADDRESSES ). Authority: The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: April 26, 2007. Randall B. Luthi, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E7-8330 Filed 5-1-07; 8:45 am] BILLING CODE 4310-55-P 72 84 Wednesday, May 2, 2007 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collections Being Reviewed by the U.S. Agency for International Development: Comments Requested SUMMARY: U.S. Agency for International Development (USAID) is making efforts to reduce the paperwork burden. USAID invites the general public and other Federal agencies to take this opportunity to comment on the following proposed and/or continuing information collections, as required by the Paperwork Reduction Act for 1995. Comments are requested concerning:
(a)Whether the proposed or continuing collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the burden estimates;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. DATES: Submit comments on or before July 2, 2007. FOR FURTHER INFORMATION CONTACT: Beverly Johnson, Bureau for Management, Office of Administrative Services, Information and Records Division, U.S. Agency for International Development, Room 2.07-106, RRB, Washington, DC 20523,
(202)712-1365 or via e-mail *bjohnson@usaid.gov.* SUPPLEMENTARY INFORMATION: *OMB No:* OMB 0412-0520. *Form No.:* AID 1420-17. *Title:* Contract Employee Biographical Data Sheet. *Type of Review:* Reinstatement. *Purpose:* The U.S. Agency for International Development (USAID) is authorized to make contracts with any corporation, international organization, or other body of persons in or outside of the United States in furtherance of the purposes and within limitations of the Foreign Assistance Act (FAA). The information collections requirements placed on the public are published in 48 CFR chapter 7, and include such items as the Contractor Employee Biographical Data Sheet and Performance and Progress Reports (AIDAR 752.7026). These are all USAID unique procurement requirements. The pre-award requirements are based on a need for prudent management in the determination that an offeror either has or can obtain the ability to competently manage development assistance programs utilizing public funds. The requirements for information collection requirements during the post-award period are based on the need to administer public funds prudently. *Annual Reporting Burden:* *Respondents:* 14,939. *Total annual responses:* 41,573. *Total annual hours requested:* 63,152 hours. Dated: April 23, 2007. Joanne Paskar, Chief, Information and Records Division, Office of Administrative Services, Bureau for Management. [FR Doc. 07-2156 Filed 5-1-07; 8:45 am]
Connectionstraces to 46
Traces to 46 documents
U.S. Code
116 references not yet in our index
  • 21 CFR 510
  • 5 USC 801-808
  • 21 CFR 520
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 40 CFR 180
  • 40 CFR 178
  • 40 CFR 2
  • 40 CFR 180.364
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 47 CFR 73
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 26 CFR 1
  • Pub. L. 108-311
  • 118 Stat. 1166
  • Pub. L. 109-135
  • 119 Stat. 2577
  • Pub. L. 98-369
  • 98 Stat. 494
  • 40 CFR 180.257(a)
  • 40 CFR 180.418(a)(2)
  • 40 CFR 180.418(a)(1)
  • 40 CFR 180.6(a)(3)
  • 40 CFR 180.418(b)
  • 40 CFR 180.298(a)
  • 40 CFR 180.350
  • 40 CFR 180.350(a)
  • 40 CFR 180.381(a)
  • 40 CFR 180.381(c)
  • 40 CFR 180.381
  • 40 CFR 180.1(g)
  • 40 CFR 180.409
  • 40 CFR 180.409(a)
+ 76 more
Citation graph
cites case law
Rules and Regulations
Final rule
C.F.R.§ 510.600
U.S.C.§ 804
U.S.C.§ 321
C.F.R.§ 558.95
U.S.C.§ 360b
U.S.C.§ 553
Fed. Reg.Notices
U.S.C.§ 605
Fed. Reg.Proposed Rules
Cite21 CFR 510
Cite5 USC 801-808
Cite21 CFR 520
Cites 162 · 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.