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Code · REGISTER · 2007-05-16 · Office of the Chief Financial Officer, Department of Energy · Proposed Rules

Proposed Rules. Notice of proposed rulemaking and opportunity for comment

77,722 words·~353 min read·/register/2007/05/16/07-2405·

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BILLING CODE 3410-XV-P DEPARTMENT OF ENERGY 10 CFR Part 609 RIN 1901-AB21 Loan Guarantees for Projects that Employ Innovative Technologies AGENCY: Office of the Chief Financial Officer, Department of Energy. ACTION: Notice of proposed rulemaking and opportunity for comment. SUMMARY: The Department of Energy (DOE or Department) today proposes policies and procedures applicable to DOE's loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005. Today's proposed rule, when final, also will further the President's Advanced Energy Initiative.
Title XVII authorizes the Secretary of Energy to make loan guarantees for projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Title XVII also identifies ten categories of technologies that, if employed in commercial projects, are potentially eligible for a loan guarantee.
A principal goal of Title XVII is to encourage commercial use in the United States of new or significantly improved energy-related technologies. DOE believes that accelerated commercial use of new and improved technologies will help sustain economic growth, yield environmental benefits, and produce a more stable and secure energy supply and economy for the United States. DATES: Public comment on this proposed rule will be accepted until *July 2, 2007* . A public meeting on the proposed rule will be held on Friday, June 15, 2007, from 9 a.m. to 4:30 p.m. in Washington, DC.
Interested persons who wish to speak at the public meeting must telephone the DOE Loan Guarantee Program Office at
(202)586-8336 during the period Friday, June 1, through Tuesday, June 12, 2007, between the hours of 9 a.m. and 4:30 p.m. Interested persons also may request to speak by writing to Mr. Howard G. Borgstrom at the address given in the ADDRESSES section of this notice, or by sending an e-mail to *lgprogram@hq.doe.gov* . Such requests must be received by 4:30 p.m. on Tuesday, June 12, 2007. The Department also requests that persons wishing to speak submit a copy of their prepared statement to Mr. Borgstrom by 4:30 p.m. on June 12, 2007. See section III. of this notice for details concerning public comment procedures. ADDRESSES: You may submit comments, identified by RIN 1901-AB21, by any of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. 2. *E-mail to lgprogram@hq.doe.gov* . Include RIN 1901-AB21 in the subject line of the e-mail. Please include the full body of your comments in the text of the message or as an attachment. 3. *Mail:* Address written comments to Mr. Howard G. Borgstrom, Director, Business Operations Center, Office of the Chief Financial Officer, U.S. Department of Energy, Mailstop CF-60, Room 4A-221, 1000 Independence Avenue, SW., Washington, DC 20585. Due to potential delays in DOE's receipt and processing of mail sent through the U.S. Postal Service, we encourage respondents to submit comments electronically to ensure timely receipt. The public meeting for this rulemaking will be held in Washington, DC at the Forrestal Building in Room GE-086 (Main Auditorium), 1000 Independence Avenue, SW., Washington, DC. This Notice of Proposed Rulemaking, the public meeting transcript, and any comments that DOE receives are being made available on the Web site at: *http://www.lgprogram.energy.gov/* . FOR FURTHER INFORMATION CONTACT: The DOE Loan Guarantee Program Office, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-8336, e-mail: *lgprogram@hq.doe.gov* ; or Warren Belmar, Deputy General Counsel for Energy Policy, Office of the General Counsel, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-6758, e-mail: *warren.belmar@hq.doe.gov* ; or Lawrence R. Oliver, Assistant General Counsel for Fossil Energy and Energy Efficiency, Office of the General Counsel, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-9521, e-mail: *lawrence.oliver@hq.doe.gov* . SUPPLEMENTARY INFORMATION: I. Introduction and Background II. Discussion of Proposed Rule A. Technologies B. Project Costs C. Solicitation D. Payment of the Credit Subsidy Cost E. Assessment of Fees F. Financial Structure G. Eligible Lenders H. FCRA I. Default and Audit Provisions J. Tax Exempt Debt K. Full Faith and Credit III. Public Comment Procedures IV. Regulatory Review A. Executive Order 12866 B. National Environmental Policy Act C. Regulatory Flexibility Act D. Paperwork Reduction Act E. Unfunded Mandates Reform Act of 1995 F. Treasury and General Government Appropriations Act, 1999 G. Executive Order 13132 H. Executive Order 12988 I. Treasury and General Government Appropriations Act, 2001 J. Executive Order 13211 I. Introduction and Background Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act) (42 U.S.C. 16511-16514) authorizes the Secretary of Energy (Secretary or DOE), after consultation with the Secretary of the Treasury, to make loan guarantees for projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Commercial technology is defined as “a technology in general use in the commercial marketplace” and “does not include a technology solely by use of the technology in a demonstration project funded by DOE.” The following ten categories of projects are, by law, specifically made eligible for Title XVII loan guarantees: 1. Renewable energy systems; 2. Advanced fossil energy technology (including coal gasification meeting the criteria in paragraph 1703(d) of the Act); 3. Hydrogen fuel cell technology for residential, industrial, or transportation applications; 4. Advanced nuclear energy facilities; 5. Carbon capture and sequestration practices and technologies, including agricultural and forestry practices that store and sequester carbon; 6. Efficient electrical generation, transmission, and distribution technologies; 7. Efficient end-use energy technologies; 8. Production facilities for fuel efficient vehicles, including hybrid and advanced diesel vehicles; 9. Pollution control equipment; and 10. Refineries, meaning facilities at which crude oil is refined into gasoline. This list of ten types of projects is a nonexclusive list of the types of projects that are eligible for Title XVII guarantees. Today, DOE proposes regulations to establish generally applicable policies, procedures and requirements for the Title XVII loan guarantee program. These proposed regulations were referenced in the Guidelines for the program that DOE published on August 14, 2006 (Guidelines) (71 FR 46451). The Guidelines stated that they would only apply to the first Title XVII solicitation, which was issued contemporaneously with the Guidelines, and that all subsequent solicitations would be governed by regulations to be adopted by DOE at a later date. In the first solicitation for Pre-Applications for “Federal Loan Guarantees for Projects that Employ Innovative Technologies in support of the Advanced Energy Initiative,” DOE focused on technologies that would advance the President's Advanced Energy Initiative. Although this meant the first solicitation did not cover all types of projects that potentially may be eligible for loan guarantees under Title XVII, there is nothing in Title XVII that requires all solicitations implementing that program be open to every project arguably eligible for a guarantee under the statute. DOE has the ability to tailor specific solicitations to certain types of projects, based on programmatic objectives, loan guarantee authority that is available, and the availability of funds to implement the program, among other relevant criteria. DOE will seek to have a broad portfolio of large and small projects, for a wide variety of technologies. For example, the Administration's 2008 Budget proposes that DOE may guarantee up to $4 billion in loans for central power generation facilities (for example, nuclear facilities or carbon sequestration optimized coal power plants); $4 billion in loans for projects that promote biofuels and clean transportation fuels; and $1 billion in loans for projects using new technologies for electric transmission facilities or renewable power generation systems. Precisely how any authorized loan guarantee authority would be allocated, however, ultimately would depend on the merits and benefits of particular project proposals and their compliance with statutory and regulatory requirements. The deadline for submission of Pre-Applications in response to the first solicitation was December 31, 2006, and DOE received 143 Pre-Applications. On February 15, 2007, President Bush signed into law Public Law 110-5, the Revised Continuing Appropriations Resolution, 2007 (CR, or Pub. L. 110-5) which authorizes DOE to issue guarantees under the Title XVII program for loans in the “total principal amount, any part of which is to be guaranteed, of $4,000,000,000.” This authorization provides DOE sufficient authority, under Title XVII and the Federal Credit Reform Act of 1990
(FCRA)(2 U.S.C. 661(a) *et seq* ) to issue loan guarantees. Section 20320(b) of the CR further provides that no loan guarantees may be issued under the Title XVII program until DOE promulgates final regulations that include “programmatic, technical, and financial factors the Secretary [of Energy] will use to select projects for loan guarantees,” “policies and procedures for selecting and monitoring lenders and loan performance,” and “any other policies, procedures, or information necessary to implement Title XVII of the Energy Policy Act of 2005.” II. Discussion of Proposed Rule The CR prohibits DOE from issuing any loan guarantees under the Title XVII program until the Department has issued final regulations that address a number of different matters. (Pub. L. 110-5, section 20320(b)). However, section 20320 does not state whether or to what extent those final regulations must apply to any matters pursuant to the first solicitation under the Title XVII program, which DOE issued on August 8, 2006, and in response to which Pre-Applications were due by December 31, 2006, several weeks prior to the enactment of Public Law 110-5. In order to ensure that the Department complies with the CR but does not prejudice Pre-Applicants who responded to the first Title XVII solicitation, DOE proposes to specify, by regulation, that today's proposed rule, when final, shall not apply to the Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements pursuant to the August 2006 solicitation. The only exceptions shall be with respect to the default, recordkeeping and audit requirements in sections 609.15 and 609.17, which Title XVII requires be established by regulation. However, the proposed regulations permit DOE and an Applicant to agree in a Loan Guarantee Agreement entered into pursuant to the first solicitation that additional provisions of the final rule shall apply to the particular project. However, Pre-Applicants who responded to the first solicitation will not necessarily be permanently exempt from these regulations. If the Department does not accept their Pre-Application and invite them to submit an Application pursuant to that solicitation, then their participation in the program in response to any future solicitation will be fully subject to the requirements of the final regulations. Moreover, to provide clarity, the regulation provides that the exception from applicability of these regulations applies only to those for whom the invitation to submit an Application is extended by the Department to a Pre-Applicant no later than December 31, 2007. The Department anticipates being able to invite selected Pre-Applicants to submit Applications in response to the first solicitation by that deadline, and perhaps well before that deadline. Pre-Applicants who are not being invited to submit an Application also will be notified that they have not been selected, and any further involvement by such Pre-Applicants in the Title XVII program will be subject to all requirements of the final regulations. The Act authorizes the Secretary to make loan guarantees as an incentive for the use of new or improved technologies. Section 1702 of the Act outlines general terms and conditions for Loan Guarantee Agreements and directs the Secretary to include in Loan Guarantee Agreements “such detailed terms and conditions as the Secretary determines appropriate to—(i) protect the interests of the United States in case of a default [as defined in regulations issued by the Secretary]; and
(ii)have available all the patents and technology necessary for any person selected, including the Secretary, to complete and operate the project for which the loan guarantee was obtained.” (42 U.S.C. 16512(g)(2)(c)) Section 1702(i) of the Act instructs the Secretary to prescribe regulations outlining record-keeping and audit requirements. This proposed rule sets forth application procedures, outlines terms and conditions for Loan Guarantee Agreements, and lists records and documents that project participants must keep. The proposed rule also sets forth other provisions that the CR requires DOE's regulations to address. A. Technologies A principal purpose of the Act's Title XVII loan guarantee program is to support projects in the United States that “employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Such technologies are identified as “innovative technologies.” Section 1701(1) of the Act defines “commercial technology” as “a technology in general use in the commercial marketplace.” Section 1701(1) further states that a technology does not become a “commercial technology” solely because it is used in a demonstration project funded by DOE. Because section 1702(d)(1) also requires a “reasonable prospect of repayment of the principal and interest” on all loans or other debt obligations issued to finance a project, technologies for project proposals must be mature enough to assure dependable commercial operations that generate sufficient revenues to service the project's debt. Therefore, projects that are solely research, development or demonstration projects (i.e., a project designed exclusively for research and development or to demonstrate feasibility of a technology on any scale) should not be eligible for Title XVII loan guarantees, and DOE is proposing to make such research, development or demonstration projects ineligible for a loan guarantee under Title XVII. DOE believes that accelerated commercial use of new or improved technologies, as distinguished from research, development or demonstrations at any scale of technological feasibility, will help to sustain economic growth, yield environmental benefits, and produce a more stable and secure energy supply, and be able to earn revenues that give the projects a “reasonable prospect of repayment of the principal and interest” on its debt obligations. Accordingly, DOE's loan guarantee program is not intended for technologies in the research, development or demonstration stages. Title XVII does not explain or define the phrase “new or significantly improved” in section 1703(a)(2). Nor does the Act explain or define the terms “general use” or “commercial marketplace” in section 1701(1), other than specifying that “commercial technology” does not include a technology merely because it is used in a DOE-funded demonstration project. Therefore, DOE must use its discretion and judgment to define these terms. DOE believes that the phrase “new or significantly improved technology” is not readily susceptible to precise definition in these regulations. It is not possible to specify in advance precisely what should be considered “new” or what would constitute a “significant improvement” in a particular technology. Nonetheless, DOE does believe it is both possible and prudent to specify, in these regulations, parameters by which that determination will be made in particular cases in the future. Webster's II New College Dictionary
(1999)defines the term “new” to mean “[h]aving existed or been made for only a short time * * * [n]ever used before * * * [j]ust discovered, found, or learned * * *” or somewhat unhelpfully, “[n]ot yet old.” The term “significant” is defined as “meaningful * * * [m]omentous * * * important,” and the term “improve” or “improvement” is defined as “[t]o advance to a better quality or state * * * to increase the productivity or value * * * to make advantageous additions or changes.” For purposes of the Title XVII program, moreover, it is important that a technology be new or significantly improved with respect to energy production, use, efficiency, or transportation, rather than with respect to other attributes. For example, a particular facility might have significantly improved aesthetic appeal in comparison to an older facility, but DOE does not believe that type of improvement alone should qualify a facility for a Title XVII loan guarantee. Thus, DOE proposes to define, by regulation, the term “new or significantly improved technologies” to mean technologies concerned with the production, consumption or transportation of energy, and that have either only recently been discovered or learned, or that involve or constitute meaningful and important improvements in the productivity or value of the technology. DOE requests comment on this definition. Because Title XVII focuses on encouraging and incentivizing innovative technologies, the Title XVII loan guarantee program should only be open to projects that employ a technology that has been used in a very limited number of commercial projects or for only a limited period of time. Indeed, when read together, sections 1701 and 1703 of Title XVII prohibit DOE from issuing loan guarantees for projects that only use commercial technologies that already are in general use in the United States at the time the guarantee is issued. In section 609.2 of the proposed regulations, DOE is proposing two possible ways of interpreting “general use.” First, DOE could interpret the term “general use” to mean that a technology has been ordered for, installed in, or used in a certain number of commercial projects in the United States. So, as one alternative, DOE proposes to state in its regulations that a technology would be considered to be in general use, and therefore not eligible for a Title XVII loan guarantee, if it has been ordered for, installed in, or used in five or more projects in the United States at the time the loan guarantee is issued. Allowing loan guarantees for up to five projects employing the same type of technology would allow use of these guarantees to introduce innovative technologies to the commercial marketplace, but would also ensure that guarantees can only be issued for a limited number of projects before it will be up to the commercial marketplace to decide whether the economic and environmental benefits of a particular technology justify continued investments in it. As a second alternative, DOE proposes to state in its regulations that a technology would be considered to be in general use, and therefore not eligible for a Title XVII loan guarantee, if it has been in operation in a commercial project in the United States for a particular number of years. Under this alternative, there would be no numerical limit on the number of loan guarantees DOE could issue for a particular technology—it might be 50, 10, 5, 1 or even zero. Whether DOE could issue a guarantee would be determined in each case by whether the technology at issue had been in operation in a commercial project in the United States for a particular number of years, which DOE proposes to be five years. The five-year period would begin on the date that the technology is commissioned on the particular commercial project. DOE selected the period of five years because it believes that this period of time will allow a sufficient period for early commercial operation and for proving the viability of a technology in the commercial marketplace. DOE requests comment on these alternative interpretations and approaches. DOE furthermore requests comment as to whether, regardless of which alternative is adopted in the final rule, the same definition should apply to all types of projects and technologies. For example, if the first alternative described above is adopted, should the relevant number of projects or technologies be the same for renewable energy systems, advanced nuclear energy facilities, pollution control equipment, and all other potentially eligible technologies and projects? Or, should the number specified in DOE's regulations be different for different types of projects and technologies? Similarly, if the second alternative described above is adopted, should the time period be the same for all types of eligible projects and technologies? And if it should be different, why? Commenters who wish to express views on any of these issues are requested to supply specific information and data supporting their views. The Department notes that regardless of the resolution of the issues discussed above, a project may be eligible for a Title XVII loan guarantee if it uses technology that has been used in any number of projects outside the United States and for any period of time outside the United States, so long as the technology is not in “general use” in the United States. B. Project Costs Proposed section 609.10, in accordance with section 1702(c) of the Act, provides that any loan guarantee issued by DOE may not exceed 80 percent of total Project Costs. Sections 609.2 and 609.12 of the proposed rule define “Project Costs” as those that are necessary, reasonable, customary, and directly related to the design, engineering, financing, construction, startup, commissioning and shake down of an Eligible Project. Conversely, excluded costs cover initial research and development costs, the credit subsidy cost, any administrative fees paid subsequent to section 1702(h), and operating costs after the facility has been placed in service. These are costs associated with, and a condition of, receiving a federal loan guarantee. Furthermore, if theses costs were allowed, in the case of default, these costs would be shifted from the project sponsor to the federal taxpayer. DOE invites public comments on these issues. C. Solicitation Section 609.3 of the proposed regulations requires DOE to issue a solicitation to start the process that ultimately would culminate in the Department issuing a loan guarantee. This section also sets forth certain minimum requirements for each solicitation, including the fees that will be required of persons invited to submit Applications and criteria that the Department will use to weigh competing Pre-Applications, when Pre-Applications are requested, and Applications, and to make ultimate selections for loan guarantees. Generally, DOE plans to solicit Pre-Applications only when Pre-Applications can minimize or reduce the financial burdens on Project Sponsors prior to a determination that a particular technology will likely not be sufficiently developed or mature to satisfy the minimum requirements for successful commercial operations. This approach would also reduce DOE's administrative costs incurred for detailed review of multiple full Applications in technology areas where most of the projects will likely not be ready for commercial operations. The proposed regulations permit DOE to start the solicitation process by soliciting Pre-Applications, or by skipping the Pre-Application stage and soliciting Applications, because DOE believes a Pre-Application stage may be appropriate and necessary for some technologies and projects but perhaps not for others. Solicitations for Pre-Applications or Applications issued after promulgation of the final rule must address many important aspects of the application process, including the relevant period of time during which Pre-Applications or Applications for loan guarantees may be filed. Because each project will be unique and each loan guarantee potentially subjects the Federal government to significant financial liability, DOE plans to engage in a rigorous review of a proposed project before determining whether it may be eligible for a Loan Guarantee Agreement and subsequently approving and issuing loan guarantees. DOE does not intend to substantively review and evaluate Pre-Applications or Applications for any proposals that do not meet the specific requirements of the applicable solicitation. Likewise, only Applications invited by DOE or submitted in response to a solicitation will be considered for a Loan Guarantee Agreement. Consistent with section 20320(b) of Public Law 110-5, the proposed regulations require that programmatic, technical and financial factors to be used by DOE to select projects for loan guarantees. Section 609.7 satisfied this requirement. D. Payment of the Credit Subsidy Cost Section 1702(b) of the Act states that: “No guarantee shall be made unless
(1)an appropriation for the cost has been made; or
(2)the Secretary has received from the borrower a payment in full for the cost of the obligation and deposited the payment into the Treasury.” (42 U.S.C. 16512) Therefore, either Congress must appropriate funds to cover the Credit Subsidy Cost of the Loan Guarantee or the Borrower must make payment to DOE of this cost. DOE has neither requested nor received appropriations to make partial or full payment of the Credit Subsidy Cost. However, section 20320(a) of Pub. L. 110-5 authorized DOE to accept Credit Subsidy Cost payments from Borrowers to pay the full subsidy costs of loan guarantees, and DOE's current intent is to implement the Title XVII program only through the self-pay authority of section 1702(b)(2) of the Act. Furthermore, DOE interprets section 1702(b) as not allowing for partial payment of the Credit Subsidy Cost by Borrower with the remainder covered by a Congressional appropriation; section 1702(b) authorizes either an appropriation or payment of this cost in full by the Borrower. DOE proposes to memorialize this interpretation of section 1702(b) of the Act in section 609.9 of the regulations. E. Assessment of Fees In addition to the Credit Subsidy Cost, section 1702(h) also requires DOE to “charge and collect fees for guarantees” to cover the Administrative Cost of Issuing a Loan Guarantee. Proposed §§ 609.6, 609.8 and 609.10 provide that DOE shall collect fees for administrative expenses to cover all phases of an Eligible Project. As defined in proposed § 609.2, fees consist of the administrative expenses that DOE incurs during:
(1)The evaluation of a Pre-Application, if a Pre-Application is requested in a solicitation, and an Application for a loan guarantee;
(2)The offering of a Term Sheet, executing the Conditional Commitment, negotiation, and closing of a Loan Guarantee Agreement; and
(3)The servicing and monitoring of the Loan Guarantee Agreement, including during construction, start-up, commissioning, shakedown, and the operational phases of an Eligible Project. The Act, and section 1702(h) in particular, affords DOE discretion with respect to the fees it imposes to cover applicable administrative costs. For the first solicitation issued by DOE in August 2006, DOE elected not to impose fees in connection with the Pre-Application stage and reserved the right to charge an Application fee as part of the invitation to submit an Application. DOE proceeded in this manner so as not to unduly discourage potential project sponsors from submitting Pre-Applications. In the proposed regulations, DOE is requiring that the payment of administrative fees start with the submission of an Application. If implemented by DOE in the final rule, this would mean that Project Sponsors who submit Pre-Applications and are denied further consideration will not be charged any fees for expenses incurred by DOE in reviewing their Pre-Application materials. In addition, Pre-Applicants that are invited to submit Applications but decline to do so will also not be charged a fee. DOE does anticipate incurring significant administrative expenses as part of its review of Pre-Applications, and Applications which, in the absence of Pre-Application and Application fees, would not be fully recouped by DOE. Under the proposed rule, the fees assessed to Borrowers who submit Applications and enter into Conditional Commitments will only cover the expenses attendant to that Borrower's project proposal and will not cover the costs incurred by DOE for reviewing other Pre-Applications that were denied further consideration. As stated above, section 1702(h) requires that DOE “charge and collect fees for guarantees * * * sufficient to cover applicable administrative expenses.” DOE interprets this requirement as allowing it to charge and collect fees from the Applicant/Borrower to cover DOE's administrative expenses in connection with that particular Applicant/Borrower's project, or to charge and collect fees from Applicant/ Borrower to cover a proportionate share of DOE's administrative expenses for the entire loan guarantee program. In its proposed regulations, DOE adopts the former approach. Proposed section 609.6 provides that the Applicant must pay a filing fee with the submission of an Application (First Fee). This First Fee must be in an amount sufficient to cover DOE's administrative expenses in connection with DOE's review and evaluation of a Pre-Application, if any, and the Application. A Second Fee (Second Fee) will be collected when DOE and the Applicant execute a Term Sheet which constitutes a Conditional Commitment. This Second Fee must be an amount sufficient to cover DOE's administrative expenses during the Term Sheet through the closing phase. At the closing and subsequent thereto, DOE will collect fees, as specified in the Conditional Commitment, for DOE's servicing and monitoring expenses throughout the term of the guaranteed loan (Third Fee). The Third Fee may be assessed and collected quarterly, annually, or more or less frequently, as determined by the Secretary, including one lump sum payment at the closing. The Third Fee may be a percentage of the amount of Guaranteed Obligations outstanding from time to time or specific dollar amounts based on DOE's actual and/or reasonably anticipated administrative expenses. The First and Second Fees are not refundable and must be paid regardless of whether a Loan Guarantee Agreement is executed. The Third Fee is also not refundable and the amount and method of payment of the Third Fee will be specified in the Loan Guarantee Agreement. This will enable DOE to comply with the mandate of section 1702(h) of the Act to charge fees to cover DOE's administrative expenses “for guarantees” while also ensuring that Applicants act in good faith when submitting an Application and use their best efforts to meet all specified requirements of the Conditional Commitment. DOE invites public comments as to all aspects concerning the assessment of fees for the Department's administrative expenses. F. Financial Structure The Act does not impose any specific limitations on the financial structure of proposed projects, other than that the loan guarantee “shall not exceed an amount equal to 80 percent of the project cost of the facility that is the subject of the guarantee as estimated at the time at which the guarantee is issued.” (42 U.S.C. 16512(c)) However, section 1702(d)(1) provides: “No guarantee shall be made unless the Secretary determines that there is reasonable prospect of repayment of the principal and interest on the obligation by the Borrower.” (42 U.S.C. 16512(d)(1)) DOE therefore must make repayment of debt a very high priority of the loan guarantee program and DOE is authorized to adopt policies to ensure that Borrowers and Eligible Lenders use their best efforts to ensure repayment of Guaranteed Obligations. This view is bolstered by the mandate of section 1702(g)(2)(B), which requires that “with respect to any property acquired pursuant to a guarantee or related agreements, [the rights of the Secretary] shall be superior to the rights of any other person with respect to the property.” DOE interprets this statutory provision to require that DOE possess a first lien priority in the assets of the project and other assets pledged as security. Because DOE believes it is not permitted by the Act to adopt a *pari passu* security structure, holders of the non-guaranteed portion of a loan or debt instrument will have a subordinate claim to DOE in the event of default. To harmonize and balance the twin goals of issuing loan guarantees to encourage use of new or significantly improved technologies in Eligible Projects while limiting the financial exposure of the Federal government, DOE expressed a preference in the August 2006 Guidelines for guaranteeing no more than 80 percent of the total face amount of any single debt instrument. The Guidelines further provided that under no circumstances would DOE guarantee 100 percent of a loan or other debt obligation. In today's rule, DOE is proposing to guarantee up to 90 percent of a particular debt instrument or loan obligation for an Eligible Project that can be guaranteed by a Title XVII loan guarantee, so long as DOE's guarantees do not account for more than 80 percent of Project Costs. Furthermore, in connection with any loan guaranteed by DOE that may be participated, syndicated, traded, or otherwise sold on the secondary market, DOE is proposing to require that the guaranteed portion and the non-guaranteed portion of the debt instrument or loan be sold on a pro-rata basis. The guaranteed portion of the debt may not be “stripped” from the non-guaranteed portion, *i.e.* sold separately as an instrument fully guaranteed by the Federal government. DOE invites public comment on the 90 percent loan guarantee limitation and the prohibition on “stripping.” The primary purpose of the Title XVII loan guarantee program is to support projects using or employing “new or significantly improved technologies.” These new technologies, by definition, have not been proven in commercial projects in the United States and therefore may present significant risks for Title XVII loan guarantees. DOE believes that the sum of Title XVII requirements suggest that a guarantee of up to 90% of the face value of a loan may be required to achieve program goals. DOE intends to gain valuable experience from the first round of proposals submitted under the Guidelines, where some Pre-Applicants sought loan guarantees for 80% or less of their proposed debt instruments. In developing final regulations, DOE will take into account, among other things, the comments on this proposal, DOE's experience with the first round of proposals, and whether there are other methods of assuring that Eligible Lenders bear some of the financial risk exist while at the same time assuring that the objectives of the Title XVII program are accomplished. DOE requests public comment on the proposal to allow up to a 90 percent loan guarantee, the technology or circumstance that might warrant providing this level of guarantee, whether Eligible Lenders will perform adequate due diligence in the absence of assuming some amount of risk, the applicability of practices employed by other Federal agencies to DOE's loan guarantee program, and whether DOE's proposal will facilitate the goal of offering loan guarantees to encourage early commercial use of innovative technologies. DOE also will consider whether Project Sponsors have a significant financial commitment to the project. The Act does not mandate a specific equity contribution, but DOE is proposing to require that the Project Sponsors have a significant equity stake in a project. DOE solicits comments on the merits of adopting a minimum equity percentage requirement for projects. In addition, DOE intends to consider whether a Project Sponsor will rely upon other government assistance ( *e.g.* , grants, tax credits, other loan guarantees) to support financing, construction or operation of a project. DOE will manage the loan guarantee program in a manner that seeks to minimize support of projects that rely on multiple forms of significant Federal financial assistance; in general, DOE believes it is desirable that each project receive only one form of such assistance. Therefore, if an applicant is or will be receiving multiple forms of significant Federal financial assistance, that fact generally will be a negative factor when DOE evaluates loan guarantee applications. Nonetheless, the receipt of other forms of assistance will not disqualify a project from being eligible for a DOE loan guarantee, and DOE furthermore recognizes that in some situations—such as, for example, with respect to the first new nuclear generating facilities, which may be eligible for risk insurance agreements, loan guarantees and tax credits—multiple forms of federal assistance to the same project could advance important national energy policy priorities. Finally, DOE is proposing to require with submission of Applications, a credit assessment for the project without a loan guarantee from a nationally recognized rating agency, where the size and estimated cost of the project justify such an assessment. Additionally, DOE is proposing to require not later than 30 days prior to closing, that Applicants provide a credit rating from a nationally recognized rating agency reflecting the Final Term Sheet for the project without a Federal guarantee. The Department requests comment as to whether it should establish a project size (dollar) threshold below which the Department would have authority to waive this credit rating requirement. G. Eligible Lenders In further support of DOE's objective to ensure full repayment of debt, consistent with section 20320(b)(2) of the CR, participating Eligible Lenders or other servicers must meet certain eligibility, monitoring, and performance requirements. These requirements, set forth in sections 609.2 and 609.11 of the proposed regulations, are intended to ensure that the Eligible Lender or other servicer has the financial wherewithal and appropriate experience and expertise to meet its fiduciary obligations in connection with the debt guaranteed by DOE. As provided in proposed section 609.11, Eligible Lenders or other servicers must exercise a high level of care and diligence in the review and evaluation of a project, and in enforcing the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement, and related documents, throughout the term of the Guaranteed Obligation. Moreover, as provided in proposed section 609.11, DOE also expects each Eligible Lender or other servicer to diligently perform its duties in the servicing and collection of the loan or other debt obligation as well as in ensuring that the collateral package securing the loan remains uncompromised. Proposed section 609.11 requires the Eligible Lender or other servicer to provide to DOE regular, periodic financial reports on the status and condition of the loan or other debt obligation, consistent with the terms of the Loan Guarantee Agreement. The Eligible Lender or other servicer is required to notify DOE promptly if it becomes aware of any problems or irregularities concerning the project or the ability of the Borrower to make payment on the loan or other debt obligations. H. FCRA The Federal Credit Reform Act of 1990
(FCRA)provides that for any federal credit program, new direct loans and loan guarantees may not be made unless authority has been provided in appropriations Acts(s). *See* 2 U.S.C. 661c(b). Title XVII only authorizes future appropriations action. The Department does not understand section 1702(b) of the Act as constituting either budget authority or other authority to make any individual loan guarantee, as is required by FCRA. Thus, the Department reads the Act and FCRA in harmony, which means that while Title XVII authorizes DOE to carry out the loan guarantee program, the Department may not issue guarantees until it receives new budget authority or is otherwise provided authority to make guarantees in an appropriations Act. While DOE notes that the Government Accountability Office has expressed disagreement with this interpretation, the Department intends to follow its own interpretation of Title XVII and FCRA in carrying out this program. On February 15, 2007, President Bush signed the CR into law. The CR provides DOE with the necessary authority, consistent with FCRA and Title XVII section 1702, to guarantee, in the aggregate, up to $4 billion in loans for Title XVII projects. The authority to issue guarantees, however, was limited to Borrowers who pay the applicable Credit Subsidy Costs. I. Default and Audit Provisions Title XVII, sections 1702(g) and 1702(i), specifically require that DOE promulgate regulations to address default and audit requirements. (42 U.S.C. 16512(g), (i)) Sections 609.15 and 609.17, respectively, address these requirements. These provisions will apply to all loan guarantees issued under the Title XVII program, including those in response to the August 2006 Solicitation. J. Tax Exempt Debt Section 103(a) of the Internal Revenue Code (IRC), 26 U.S.C. 103(a), provides that “gross income” does not include interest on any state or local bond, with certain exceptions. Section 149(b) of the IRC, 26 U.S.C. 149(b), however, provides that the section 103(a) exclusion from gross income “shall not apply to a state or local bond if such bond is federally guaranteed.” Section 149(b) in effect converts tax exempt debt to taxable debt when such debt is guaranteed by the Federal government. Accordingly, section 609.10 of today's proposed regulations prohibits DOE from directly or indirectly guaranteeing tax exempt obligations. K. Full Faith and Credit Section 609.14 of the proposed regulations provides that the full faith and credit of the United States is pledged to the payment of all Guaranteed Obligations. It further provides that the guarantee shall be conclusive evidence that it has been properly obtained, that the underlying loan qualified for the guarantee, and that but for fraud or material misrepresentation by the Holder, is presumed to be valid, legal and enforceable. Section 609.14 is consistent with the model provision set forth in OMB Circular A-129, “Policies for Federal Credit Programs and Non-Tax Receivables,” as well as similar provisions in the regulations governing a number of other federal credit programs. The Department maintains a strong interest in ensuring that the debt incurred in order to finance innovative projects eligible for Title XVII loan guarantees can be financed and sold in secondary markets and requests comment on whether the language of section 609.14 needs to be modified in order to accomplish this goal, while at the same time ensuring that the Federal Government is not exposed to undue financial risk because of fraud or misrepresentation. III. Public Comment Procedures A. Written Comments Interested persons are invited to participate in this proceeding by submitting data, views, and arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this Notice of Proposed Rulemaking. To help DOE review the comments, interested persons are asked to refer to specific proposed rule provisions, whenever possible. If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it in accordance with the DOE's Freedom of Information regulations (10 CFR 1004.11). It is DOE's intention to honor requests for nondisclosure of information by an Applicant or Project Sponsor to the extent permitted under applicable laws. B. Public Meeting A public meeting will be held at the time, date, and place indicated in the DATES and ADDRESSES sections of this Notice of Proposed Rulemaking. Any person or representative of a group or class of persons who has an interest in this proposed rule may request an opportunity to make an oral presentation. A person wishing to speak must submit his or her request to make an oral presentation to the person and in the manner specified in the DATES section of this notice by 4:30 p.m. on the date specified for making such requests. The person should provide a daytime phone number where he or she can be reached. Each oral presentation will be limited to 20 minutes, unless the presiding official determines that the number of persons wishing to speak warrants a different amount of time. Persons making oral presentations are requested to bring 3 copies of their prepared statement to the meeting and submit them to the registration desk. DOE reserves the right to select the persons who will speak. DOE also reserves the right to schedule speakers' presentations and to establish the procedures for conducting the meeting. A DOE official will be designated to preside at the meeting. The meeting will not be a judicial or evidentiary-type hearing, but will be conducted in accordance with 42 U.S.C. 7191. Any further procedural rules for the conduct of the meeting will be announced by the presiding official. A transcript of the meeting will be made, and the entire record of this rulemaking will be retained by DOE and made available as provided in the ADDRESSES section of this Notice of Proposed Rulemaking. IV. Regulatory Review A. Executive Order 12866 Today's proposed rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs at OMB. B. National Environmental Policy Act Through the issuance of this proposed rule, DOE is making no decision relative to the approval of a loan guarantee for a particular proposed project. DOE has, therefore, determined that publication of the proposed rule is covered under the Categorical Exclusion found at paragraph A.6 of Appendix A to Subpart D, 10 CFR Part 1021, which applies to the establishment of procedural rulemakings. Accordingly, neither an environmental assessment nor an environmental impact statement is required at this time. However, appropriate NEPA project review will be conducted prior to execution of a Loan Guarantee Agreement. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site: *http://www.gc.doe.gov* . DOE is not obliged to prepare a regulatory flexibility analysis for this rulemaking because there is no requirement to publish a general notice of proposed rulemaking for loan guarantee rules under the Administrative Procedure Act (5 U.S.C. 553). D. Paperwork Reduction Act Proposed sections 609.4 and 609.6 provide that Pre-Applications and Applications for loan guarantees submitted to DOE in response to a solicitation must contain certain information. This information will be used by DOE to determine if a project sponsor who submits a Pre-Application will be invited to submit an Application for a loan guarantee; to determine if a project is eligible for a loan guarantee; and to evaluate Applications under criteria specified in the proposed rule. Proposed § 609.17 provides that borrowers must submit to DOE annual project performance reports and audited financial statements along with other information. DOE will use this information to evaluate the progress of projects for which loan guarantees are issued. DOE has submitted this collection of information to the Office of Management and Budget for approval pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) and the procedures implementing that Act, 5 CFR 1320.1 *et seq.* DOE estimates that the annual reporting and recordkeeping burden for this collection of information will be 13,000 hours per year at a total annual cost of $1,750,000. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Interested persons are invited to submit comments to OMB addressed to: Department of Energy Desk Officer, Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20503. Persons submitting comments to OMB also are requested to send a copy to the DOE contact person at the address given in the ADDRESSES section of this notice. OMB is particularly interested in comments on:
(1)The necessity of the proposed information collection requirements, including whether the information will have practical utility;
(2)the accuracy of DOE's estimates of the burden;
(3)ways to enhance the quality, utility, and clarity of the information to be maintained; and
(4)ways to minimize the burden of the requirements on respondents. E. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(Act)(2 U.S.C. 1531 *et seq.* ) requires each federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any federal mandate in an agency rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The Act also requires a federal agency to develop an effective process to permit timely input by elected officials of state, tribal, or local governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. The term “federal mandate” is defined in the Act to mean a federal intergovernmental mandate or a federal private sector mandate (2 U.S.C. 658(6)). Although the rule will impose certain requirements on non-federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “federal intergovernmental mandate” and “federal private sector mandate” exclude, among other things, any provision in legislation, statute, or regulation that is a condition of federal assistance or a duty arising from participation in a voluntary program (2 U.S.C. 658(5) and (7), respectively). Today's rule establishes requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a federal loan guarantee. Thus, the rule falls under the exceptions in the definitions of “federal intergovernmental mandate” and “federal private sector mandate” for requirements that are a condition of federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking. F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. H. Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:
(1)Eliminate drafting errors and ambiguity;
(2)write regulations to minimize litigation; and
(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect, if any;
(2)clearly specifies any effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;
(4)specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988. I. Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:
(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy, or
(3)is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. List of Subjects in 10 CFR Part 609 Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements. Issued in Washington, DC, on May 10, 2007. James T. Campbell, Acting Chief Financial Officer. For the reasons stated in the Preamble, DOE proposes to amend chapter II of title 10 of the Code of Federal Regulations by adding a new part 609 as set forth below. PART 609—LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIES Sec. 609.1 Purpose and Scope. 609.2 Definitions. 609.3 Solicitations. 609.4 Submission of Pre-Applications. 609.5 Evaluation of Pre-Applications. 609.6 Submission of Applications. 609.7 Programmatic, Technical and Financial Evaluation of Applications. 609.8 Term Sheets and Conditional Commitments. 609.9 Closing on the Loan Guarantee Agreement. 609.10 Loan Guarantee Agreement. 609.11 Lender Eligibility, Monitoring and Performance Requirements. 609.12 Project Costs. 609.13 Principal and Interest Assistance Contract. 609.14 Full Faith and Credit and Incontestability. 609.15 Default, Demand, Payment, and Collateral Liquidation. 609.16 Perfection of Liens and Preservation of Collateral. 609.17 Audit and Access to Records. 609.18 Deviations. Authority: 42 U.S.C. 7254, 16511-16514. § 609.1 Purpose and Scope.
(a)This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and, after consultation with the Department of the Treasury, approving applications for loan guarantees to support Eligible Projects under Title XVII of the Energy Policy Act of 2005.
(b)Except as set forth in paragraph
(c)of this section, this part applies to all Pre-Applications, Applications, Conditional Commitments and Loan Guarantee Agreements to support Eligible Projects under Title XVII of the Energy Policy Act of 2005. (c)(1) This part shall not apply to any Pre-Applications, Applications, Conditional Commitments or Loan Guarantee Agreements under the Guidelines issued by DOE on August 8, 2006, which were published in the **Federal Register** on August 14, 2006 (71 FR 46451) and the solicitation issued on August 8, 2006 under Title XVII of the Energy Policy Act of 2005, provided the Pre-Application is accepted under the Guidelines and an Application is invited pursuant to such Pre-Application no later than December 31, 2007.
(2)Notwithstanding paragraph (c)(1) of this section, §§ 609.15 and 609.17 shall apply to any Loan Guarantee Agreement entered into pursuant to or in response to DOE's August 8, 2006 solicitation.
(3)Notwithstanding paragraph (c)(1) of this section, DOE and any Applicant who submitted an Application under the August 8, 2006 solicitation may agree to make additional provisions of this part applicable to the particular project.
(d)Part 1024 of chapter X of title 10 of the Code of Federal Regulations shall not apply to actions taken under this part. § 609.2 Definitions. *Act* means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514). *Administrative Cost of Issuing a Loan Guarantee* means the total of all administrative expenses that DOE incurs during:
(1)The evaluation of a Pre-Application and an Application for a loan guarantee;
(2)The offering of a Term Sheet, executing the Conditional Commitment, negotiation, and closing of a Loan Guarantee Agreement; and
(3)The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project, and the potentially higher costs of servicing and monitoring trouble loans. *Applicant* means any person, firm, corporation, company, partnership, association, society, trust, joint venture, joint stock company, or other business entity or governmental non-Federal entity that has submitted an Application to DOE and has the authority to enter into a Loan Guarantee Agreement with DOE under the Act. *Application* means a comprehensive written submission in response to a solicitation or a written invitation from DOE to apply for a loan guarantee. *Borrower* means any Applicant who enters into a Loan Guarantee Agreement with DOE and issues Guaranteed Obligations. *Commercial Technology* means a technology in general use in the commercial marketplace in the United States, but does not include a technology solely by use of such technology in a demonstration project funded by DOE. A technology is in general use if it: [Alternative 1: Has been ordered for, installed in, or used in five or more projects in the United States] [Alternative 2: Has been in operation in a commercial project in the United States for a period of five years, as measured beginning on the date the technology was commission on a project.] *Conditional Commitment* means a Term Sheet offered by DOE and accepted by the Applicant, with the understanding of the parties that the Applicant thereafter satisfies all specified and precedent funding obligations, and all other contractual, statutory, regulatory or other requirements. A Conditional Commitment imposes no obligation on the Secretary to execute the Loan Guarantee Agreement. *Contracting Officer* means the Secretary of Energy or a DOE official authorized by the Secretary to enter into, administer and/or terminate contracts on behalf of DOE. *Credit Subsidy Cost* has the same meaning as “cost of a loan guarantee” in section 502(5)(C) of the Federal Credit Reform Act of 1990 (2 U.S.C. 661a(5)(C)), which is the net present value, at the time the Loan Guarantee Agreement is executed, of the following estimated cash flows:
(1)Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less
(2)Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement Fees paid to DOE pursuant to Section 1702(h) to cover the applicable administrative expenses for the loan guarantee are excluded from the calculation. *DOE* means the United States Department of Energy. *Eligible Lender* means:
(1)Any person or legal entity formed for the purpose of, or engaged in the business of, lending money, including, but not limited to, commercial banks, savings and loan institutions, insurance companies, factoring companies, investment banks, institutional investors, venture capital investment companies, trusts, or other entities designated as trustees or agents acting on behalf of bondholders or other lenders; and
(2)Any person or legal entity that meets the requirements of § 609.11 of this part, as determined by DOE. *Eligible Project* means a project located in the United States that employs a New or Significantly Improved Technology that is not a commercial technology, and that meets all applicable requirements of section 1703 of the Act (42 U.S.C. 16513), the applicable solicitation and this part. *Guaranteed Obligation* means any loan or other debt obligation of the Borrower for an Eligible Project for which DOE guarantees any part of the payment of principal and interest under a Loan Guarantee Agreement entered into pursuant to the Act. *Holder* means any person or legal entity that owns a Guaranteed Obligation or has lawfully succeeded in due course to all or part of the rights, title, and interest in a Guaranteed Obligation, including any nominee or trustee empowered to act for the Holder or Holders. *Loan Agreement* means a written agreement between a Borrower and an Eligible Lender or other Holder containing the terms and conditions under which the Eligible Lender or other Holder will make loans to the Borrower to start and complete an Eligible Project. *Loan Guarantee Agreement* means a written agreement that, when entered into by DOE and a Borrower, an Eligible Lender or other Holder, pursuant to the Act, establishes the obligation of DOE to guarantee the payment of principal and interest on specified Guaranteed Obligations of a Borrower to Eligible Lenders or other Holders subject to the terms and conditions specified in the Loan Guarantee Agreement. *New or Significantly Improved Technology* means a technology concerned with the production, consumption or transportation of energy, and that has either only recently been discovered or learned, or that involves or constitutes one or more meaningful and important improvements in the productivity or value of the technology. *Pre-Application* means a written submission in response to a DOE solicitation that broadly describes the project proposal, including the proposed role of a DOE loan guarantee in the project, and the eligibility of the project to receive a loan guarantee under the Act and this part. *Project Costs* means those costs, including escalation and contingencies, that are to be expended or accrued by Borrower and are necessary, reasonable, customary and directly related to the design, engineering, financing, construction, startup, commissioning and shakedown of an Eligible Project, as specified in § 609.12 of this part. Project costs do not include costs for the items set forth in § 609.12(c) of this part. *Project Sponsor* means any person, firm, corporation, company, partnership, association, society, trust, joint venture, joint stock company or other business entity that assumes substantial responsibility for the development, financing, and structuring of a project eligible for a loan guarantee and, if not the Applicant, owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the proposed Eligible Project, or the Applicant. *Secretary* means the Secretary of Energy or a duly authorized designee or successor in interest. *Term Sheet* means an offering document issued by DOE that specifies the general terms and conditions under which DOE anticipates that it may guarantee payment of principal and accrued interest on specified loans or other debt obligations of a Borrower in connection with an Eligible Project. A Term Sheet is not a loan Guarantee Agreement and imposes no obligation on the Secretary to execute a Loan Guarantee Agreement. *United States* means the several states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa or any territory or possession of the United States of America. § 609.3 Solicitations.
(a)DOE may issue solicitations to invite the submission of Pre-Applications or Applications for loan guarantees for Eligible Projects. DOE must issue a solicitation before proceeding with other steps in the loan guarantee process including issuance of a loan guarantee.
(b)Each solicitation must include, at a minimum, the following information:
(1)The dollar amount of loan guarantee authority potentially being made available by DOE in that solicitation;
(2)The place and time for response submission;
(3)The name and address of the DOE representative whom a potential Project Sponsor may contact to receive further information and a copy of the solicitation;
(4)The form, format, and page limits applicable to the response submission;
(5)The amount of the application fee (First Fee), if any, that will be required;
(6)The programmatic, technical, financial and other factors the Secretary will use to evaluate response submissions, and the relative weightings that DOE will use when evaluating those factors; and
(7)Such other information as DOE may deem appropriate. § 609.4 Submission of Pre-Applications. In response to a solicitation requesting the submission of Pre-Applications, either Project Sponsors or Applicants may submit Pre-Applications to DOE. Pre-Applications must meet all requirements specified in the solicitation and this part. Only one Pre-Application may be submitted per project. At a minimum, each Pre-Application must contain all of the following:
(a)A cover page signed by an individual with full authority to bind the Project Sponsor or Applicant that attests to the accuracy of the information in the Pre-Application, and that binds the Project Sponsor(s) or Applicant to the commitments made in the Pre-Application;
(b)An executive summary briefly encapsulating the key project features and attributes of the proposed project;
(c)A business plan which includes an overview of the proposed project, including:
(1)A description of the Project Sponsor, including all entities involved, and its experience in project investment, development, construction, operation and maintenance;
(2)A description of the new or significantly improved technology to be employed in the project, including:
(i)A report detailing its successes and failures during the pilot and demonstration phases;
(ii)The technology's commercial applications;
(iii)The significance of the technology to energy use or emission control;
(iv)How and why the technology is “new” or “significantly improved” compared to technology already in general use in the commercial marketplace in the United States;
(v)The owners or controllers of the intellectual property incorporated in and utilized by such technologies; and
(vi)The manufacturer(s) and licensee(s), if any, authorized to make the technology available in the United States, the potential for replication of commercial use of the technology in the United States, and whether and how the technology is or will be made available in the United States for further commercial use.
(3)The estimated amount, in reasonable detail, of the total Project Costs;
(4)The timeframe required for construction and commissioning of the project; and
(5)A description of any primary off-take or other revenue-generating agreements that will provide the primary sources of revenues for the project, including repayment of the debt obligations for which loan a guarantee is sought.
(d)A financing plan overview describing:
(1)The amount of equity to be invested and the sources of such equity;
(2)The amount of the total debt obligations to be incurred and the funding sources of all such debt:
(3)The amount of the Guaranteed Obligation as a percentage of total project debt; and as a percentage of that total project cost; and
(4)A financial model detailing the investments in and the cash flows generated and anticipated from the project over the project's expected life-cycle, including a complete explanation of the facts, assumptions, and methodologies in the financial model.
(e)An explanation of what estimated impact the loan guarantee will have on the interest rate, debt term, and overall financial structure of the project;
(f)A copy of a commitment letter from an Eligible Lender or other Holder expressing its commitment to provide the required debt financing necessary to construct and fully commission the project;
(g)A copy of the equity commitment letter(s) from each of the Project Sponsors and a description of the sources for such equity;
(h)An overview of how the project complies with the eligibility requirements in section 1703 of the Act (42 U.S.C. 16513);
(i)An outline of the potential environmental impacts of the project and how these impacts will be mitigated;
(j)A description of the anticipated air pollution and/or anthropogenic greenhouse gas reduction benefits and how these benefits will be measured and validated;
(k)A list of all of the requirements contained in this part and the solicitation and where in the Pre-Application these requirements are addressed; and
(l)A commitment to pay the Application fee (First Fee), if invited to submit an Application. § 609.5 Evaluation of Pre-Applications.
(a)Where Pre-Applications are requested in a solicitation, DOE will conduct an initial review of the Pre-Application to determine whether:
(1)The proposal is for an Eligible Project;
(2)The submission contains the information required by § 609.4 of this part; and
(3)The submission meets all other requirements of the applicable solicitation.
(b)If a Pre-Application fails to meet the requirements of paragraph
(a)of this section, DOE may deem it non-responsive and eliminate it from further review. DOE will notify any Project Sponsor whose Pre-Application has been eliminated from further review under this subsection.
(c)If DOE deems a Pre-Application responsive, DOE will evaluate the commercial viability of the proposed project, the technology to be employed in the project, relevant experience of the principal(s) and the financial capability of the Project Sponsor (including personal and/or business credit information of the principal(s)) to determine if there is sufficient information in the Pre-Application to assess the technical and commercial viability of the proposed project and/or the financial capability of the Project Sponsor and to assess other aspects of the Pre-Application. DOE may ask for additional information from the Project Sponsor during the review process and may request one or more meetings with the Project Sponsor.
(d)After reviewing a Pre-Application and other information acquired under paragraph
(c)of this section, DOE may provide a written response to the Project Sponsor or Applicant either inviting the Applicant to submit an Application for a loan guarantee and specifying the amount of the Application filing fee or advising the Project Sponsor that the project proposal will not receive further consideration. Neither the Pre-Application nor any written or other feedback that DOE may provide in response to the Pre-Application eliminates the requirement for an Application.
(e)No response by DOE to, or communication by DOE with, a Project Sponsor, or an Applicant submitting a Pre-Application or subsequent Application shall impose any obligation on DOE to issue a loan guarantee for a project. § 609.6 Submission of Applications.
(a)In response to a solicitation or written invitation to submit an Application, an Applicant submitting an Application must meet all requirements and provide all information specified in the solicitation and/or invitation and this part. There may be only one Applicant per project.
(b)An Application must include, at a minimum, the following information and materials:
(1)A completed Application form signed by an individual with full authority to bind the Applicant and the Project Sponsors;
(2)Payment of the Application filing fee (First Fee) for the Pre-Application, if any, and Application phase;
(3)A detailed description of all material amendments, modifications, and additions made to the information and documentation provided in the Pre-Application, if a Pre-Application was requested in the solicitation, including any changes in the proposed project's financing structure or terms;
(4)A description of how and to what measurable extent the project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those benefits;
(5)A description of the nature and scope of the proposed project, including:
(i)Key milestones;
(ii)Location of the project;
(iii)Identification and commercial feasibility of the new or significantly improved technology(ies) to be employed in the project;
(iv)How the Applicant intends to employ such technology(ies) in the project; and
(v)How the Applicant intends to assure the further commercial availability of the technology(ies) in the United States.
(6)A detailed explanation of how the proposed project qualifies as an Eligible Project;
(7)A detailed estimate of the estimated total Project Costs together with a description of the methodology and assumptions used;
(8)A detailed description of the engineering and design contractor(s), construction contractor(s), equipment supplier(s), and construction schedules for the project, including major activity and cost milestones as well as the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties to be provided;
(9)A detailed description of the operations and maintenance provider(s), the plant operating plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated annual downtime, and performance guarantees and related liquidated damage provisions, if any;
(10)A description of the management plan of operations to be employed in carrying out the project, and information concerning the management experience of each officer or key person associated with the project;
(11)A detailed description of the project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;
(12)An analysis of the market for any product to be produced by the project, including relevant economics justifying the analysis, and copies of any contractual agreements for the sale of these products or assurance of the revenues to be generated from sale of these products;
(13)A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity, and debt, and the liability of parties associated with the project over the term of the Loan Guarantee Agreement;
(14)A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the project;
(15)A copy of the financial closing checklist for the equity and debt;
(16)Applicant's business plan on which the project is based and Applicant's financial model presenting project *pro forma* statements for the proposed term of the Guaranteed Obligations including income statements, balance sheets, and cash flows. All such information and data must include assumptions made in their preparation and the range of revenue, operating cost, and credit assumptions considered;
(17)Financial statements for the past three years, or less if the Applicant has been in operation less than three years, that have been audited by an independent certified public accountant, including all associated notes, as well as interim financial statements and notes for the current fiscal year, of Applicant and parties providing Applicant's financial backing, together with business and financial interests of controlling or commonly controlled organizations or persons, including parent, subsidiary and other affiliated corporations or partners of the Applicant;
(18)A copy of all legal opinions, and other material reports, analyses, and reviews related to the project;
(19)An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address: The project's siting and permitting, engineering and design, contractual requirements, environmental compliance, testing and commissioning and operations and maintenance.
(20)Credit history of the Applicant and, if appropriate, any party who owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the project or the Applicant;
(21)A credit assessment, for the project without a loan guarantee from a nationally recognized rating agency, where the size and estimated cost of the project justify such an assessment;
(22)A list showing the status of and estimated completion date of Applicant's required project-related applications or approvals for Federal, state, and local permits and authorizations to site, construct, and operate the project;
(23)A report containing an analysis of the potential environmental impacts of the project that will enable DOE to assess whether the project will comply with all applicable environmental requirements, and that will enable DOE to undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;
(24)A listing and description of assets associated, or to be associated, with the project and any other asset that will serve as collateral for the Guarantee Obligations, including appropriate data as to the value of the assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;
(25)An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guarantee Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based;
(26)Written affirmation from an officer of the Eligible Lender or other Holder confirming that it is in good standing with DOE's and other Federal agencies' loan guarantee programs;
(27)A list of all of the requirements contained in this part and the solicitation and where in the Application these requirements are addressed;
(28)A statement from the Applicant that it believes that there is “reasonable prospect” that the Guaranteed Obligations will be fully paid from project revenue; and
(29)Any other information requested in the invitation to submit an Application or requests from DOE in order to clarify an Application;
(c)DOE will not consider any Application complete unless the Applicant has paid the First Fee and the Application is signed by the appropriate entity or entities with the authority to bind the Applicant to the commitments and representations made in the Application. § 609.7 Programmatic, Technical and Financial Evaluation of Applications.
(a)In reviewing completed Applications, and in prioritizing and selecting those to whom a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, the applicable solicitation, and this part. Concurrent with its review process, DOE will consult with the Secretary of the Treasury regarding the terms and conditions of the potential loan guarantee. Applications will be denied if:
(1)The project will be built or operated outside the United States;
(2)The project does not avoid, reduce, or sequester air pollutants or anthropogenics emissions of greenhouse gases;
(3)The project is not ready to be employed commercially in the United States, cannot be replicated, cannot yield a commercially viable product or service in the use proposed in the project, does not have the potential to be employed in other commercial projects in the United States, and is not or will not be available for further commercial use in the United States;
(4)The entity or person issuing the loan or other debt obligations subject to the loan guarantee is not an Eligible Lender or other Holder, as defined in Section 609.11 of this part;
(5)The project is for demonstration, research, or development; or
(6)The applicant will not provide a significant equity contribution.
(b)In evaluating Applications, DOE will consider the following factors:
(1)To what measurable extent the project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases;
(2)To what extent the new or significantly improved technology to be employed in the project, as compared to commercial technology in general service in the United States, is ready to be employed commercially in the United States, can be replicated, yields a commercial viable project or service in the use proposed in the project, has potential to be employed in other commercial projects in the United States, and is or will be available for further commercial use in the United States;
(3)To the extent that the new or significantly improved technology used in the project constitutes an important improvement in technology used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases, and the Applicant has a plan to advance, or assist in the advancement, of that technology into the commercial marketplace;
(4)The extent to which the requested amount of the loan guarantee, and requested amount of Guaranteed Obligations are reasonable relative to the nature and scope of the project;
(5)The total amount and nature of the Eligible Project Costs and the extent to which Project Costs are funded by Guaranteed Obligations;
(6)The likelihood that the project will be ready for full commercial operations in the timeframe stated in the Applications;
(7)The amount of equity commitment to the project by the Applicant and other principals involved in the project;
(8)Whether there is sufficient evidence that Applicant will diligently pursue the project, including initiating and completing the project in a timely manner;
(9)Whether and to what extent the Applicant will rely upon other Federal and non-Federal governmental assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the project and how such assistance will impact the project;
(10)The feasibility of the project and likelihood that the project will produce sufficient revenues to service the project's debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;
(11)The levels of safeguards provided to the Federal government in the event of default through collateral, warranties, and other assurance of repayment described in the Application;
(12)The Applicant's capacity and expertise to successfully operate the project, based on factors such as financial soundness, management organization, and the nature and extent of corporate and personal experience;
(13)The ability of the applicant to ensure that the project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;
(14)The levels of market, regulatory, legal, financial, technological, and other risks associated with the project and their appropriateness for a loan guarantee provided by DOE;
(15)Whether the Application contains sufficient information, including a detailed description of the nature and scope of the project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the project; and
(16)Such other criteria that DOE deems relevant in evaluating the merits of an Application.
(c)During the Application review process DOE may raise issues or concerns that were not raised during the Pre-Application review process where a Pre-Application was requested in the applicable solicitation.
(d)If DOE determines that a project may be suitable for a loan guarantee, DOE will notify the Applicant and Eligible Lender or other Holder in writing and provide them with a Term Sheet. If DOE reviews an Application and decides not to proceed further with the issuance of a Term Sheet, DOE will inform the Applicant in writing of the reason(s) for denial. § 609.8 Term Sheets and Conditional Commitments.
(a)DOE may determine, after review and evaluation of the Application, additional information requested and received by DOE, and information obtained as the result of meeting with the Applicant and the Eligible Lender or other Holder, that it would be appropriate to offer detailed terms and conditions that must be met, including terms and conditions that must be met by the Applicant and the Eligible Lender or other Holder before DOE may enter into a Loan Guarantee Agreement.
(b)The terms and conditions required by DOE will be expressed in a written Term Sheet signed by a Contracting Officer and addressed to the Applicant and the Eligible Lender or other Holder. The Term Sheet will request that the Project Sponsor and the Eligible Lender or other Holder express agreement with the terms and conditions contained in the Term Sheet by signing the Term Sheet in the designated place. Each person signing the Term Sheet must be a duly authorized official or officer of the Applicant and Eligible Lender or other Holder. The Term Sheet will include an expiration date on which the terms offered will expire unless the Contracting Officer agrees in writing to extend the expiration date.
(c)The Applicant and/or the Eligible Lender or other Holder may respond to the Term Sheet offer in writing or may request discussions or meetings on the terms and conditions contained in the Term Sheet, including requests for clarifications or revisions. When DOE, the Applicant and the Eligible Lender or other Holder agree on all of the final terms and conditions and all parties sign the Term Sheet, the Term Sheet becomes a Conditional Commitment. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement, but neither party is legally obligated to do so.
(d)The Applicant is required to pay fees to DOE to cover the Administrative Cost of Issuing a Loan Guarantee for the period of the Term Sheet through the closing of the Loan Guarantee Agreement (Second Fee). § 609.9 Closing On the Loan Guarantee Agreement.
(a)Subsequent to entering into a Conditional Commitment with an Applicant, DOE will set a closing date for the Loan Guarantee Agreement.
(b)By the closing date, the Applicant and the Eligible Lender or other Holder must have satisfied all of the detailed terms and conditions contained in the Conditional Commitment and other related documents and any other contractual, statutory, regulatory or other requirements have been met. If the Applicant and the Eligible Lender or other Holder has not satisfied all such terms and conditions by the closing date, the Secretary may, in his sole discretion, set a new closing date or terminate the Conditional Commitment.
(c)In order to enter into a Loan Guarantee Agreement at closing:
(1)DOE must have received authority in an appropriations act for the loan guarantee; and
(2)All other applicable statutory, regulatory, or other requirements must be fulfilled.
(d)Prior to, or on, the closing date, DOE will ensure that:
(1)Pursuant to section 1702(b) of the Act, DOE has received payment of the Credit Subsidy Cost of the loan guarantee, as defined in § 609.2 of this part from *either* (but not from a combination) of the following:
(i)A Congressional appropriation of funds; or
(ii)A payment from the Borrower;
(2)Pursuant to section 1702(h) of the Act, DOE has received from the Borrower the First and Second Fees and, if applicable, the Third fee for the Administrative Cost of Issuing the Loan Guarantee, as specified in the Loan Guarantee Agreement;
(3)OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the loan guarantee;
(4)The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;
(5)The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States; and
(6)All conditions precedent specified in the Conditional Commitment are either satisfied or waived by a Contracting Officer and all other applicable contractual, statutory, and regulatory requirements are satisfied.
(e)Not later than the period approved in writing by the Contracting Officer, which may not be less than 30 days prior to the closing date, the Applicant must provide updated project financing information and a new final Term Sheet must be executed by DOE and the Applicant if the terms and conditions of the financing arrangements changed between execution of the Conditional Commitment and that date (Final Term Sheet).
(f)Not later than 30 days prior to closing, the applicant must provide a credit rating from a nationally recognized rating agency reflecting the Final Term Sheet for the project without a Federal guarantee.
(g)Changes in the terms and conditions of the financing arrangements will affect the credit subsidy cost for the loan guarantee agreement. DOE may postpone the expected closing date pursuant to any changes submitted under paragraph
(e)of this section. In addition, DOE may choose to terminate the Conditional Commitment. § 609.10 Loan Guarantee Agreement.
(a)Only a Loan Guarantee Agreement executed by a duly authorized DOE Contracting Officer can contractually obligate DOE to guarantee loans or other debt obligations.
(b)DOE is not bound by oral representations made during the Pre-Application, if Pre-Applications were solicited, or Application stage, or during any negotiation process.
(c)Except if explicitly authorized by an Act of Congress, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for Credit Subsidy Costs, administrative fees, or other fees charged by or paid to DOE relating to the Title XVII program or any loan guarantee thereunder.
(d)Prior to the execution by DOE of a Loan Guarantee Agreement, DOE must ensure that the following requirements and conditions, which must be specified in the Loan Guarantee Agreement, are satisfied:
(1)The project qualifies as an Eligible Project under the Act and is not a research, development, or demonstration project or a project that employs commercial technologies that are in “general use” in the United States;
(2)The project will be constructed and operated in the United States, the employment of the new or significantly improved technology in the project has the potential to be replicated in other commercial projects in the United States, and this technology is or is likely to be available in the United States for further commercial application;
(3)The face value of the debt guaranteed by DOE is limited to no more than 80 percent of total Project Costs and the loan guarantee is limited to no more than 90 percent of the total face value of the loans(s) or other debt obligation(s);
(4)The guaranteed portion of a loan, or any portion of the guaranteed portion of a loan, will not be separated from or “stripped” from the non-guaranteed portion of the loan, if the loan is participated, syndicated or otherwise resold in the secondary debt market;
(5)The Borrower and other principals involved in the project have made or will make a significant equity investment in the project;
(6)The Borrower is obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other project debt over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the project's major physical assets, as calculated in accordance with generally accepted accounting principles and practices;
(7)The loan guarantee does not finance, either directly or indirectly, tax-exempt debt obligations;
(8)The amount of the loan guaranteed, when combined with other funds committed to the project, will be sufficient to carry out the project, including adequate contingency funds;
(9)There is a reasonable prospect of repayment by Borrower of the principal of and interest on the, Guaranteed Obligations and other project debt;
(10)The Borrower has pledged project assets and other collateral or surety, including non project-related assets, determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations;
(11)The Loan Guarantee Agreement and related documents include detailed terms and conditions necessary and appropriate to protect the interest of the United States in the case of default, including ensuring availability of all the intellectual property rights, technical data including software, and physical assets necessary for any person or entity, including DOE, to complete, operate, convey, and dispose of the defaulted project;
(12)The interest rate on the guaranteed loan is determined by DOE, after consultation with the Treasury Department, to be reasonable, taking into account the range of interest rates prevailing in the private sector for similar obligations of comparable risk guaranteed by the Federal government;
(13)The Guaranteed Obligation is not subordinate to any loan or other debt obligation and is in a first lien position on all assets of the project and all additional collateral pledged as security for the Guaranteed Obligations and other project debt;
(14)There is satisfactory evidence that Borrower and Eligible Lenders are willing, competent, and capable of performing the terms and conditions of the Guaranteed Obligation and other debt obligation and the Loan Guarantee Agreement, and will diligently pursue the project;
(15)The Borrower has made the initial (or total) payment of fees for the Administrative Cost of Issuing a Loan Guarantee for the construction and operational phases of the project (Third Fee), as specified in the Conditional Commitment.
(16)The Eligible Lender, other Holder or servicer has taken and is obligated to continue to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligation.
(17)If Borrower is to make payment in full for the Credit Subsidy Cost of the loan guarantee pursuant to section 1702(b)(2) of the Act, such payment must be received by DOE prior to, or at the time of, closing;
(18)DOE or its representatives have access to the project site at all reasonable times in order to monitor the performance of the project;
(19)DOE, the Eligible Lender and Borrower have reached an agreement as to the information that will be made available to DOE and the information that will be made publicly available;
(20)The prospective Borrower has filed applications for or obtained any required regulatory approvals for the project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, state, and local regulatory requirements;
(21)Borrower has no delinquent Federal debt, including tax liabilities, unless the delinquency has been resolved with the appropriate Federal agency in accordance with the standards of the Debt Collection Improvement Act of 1996;
(22)The Loan Guarantee Agreement contains such other terms and conditions as DOE deems reasonable and necessary to protect the interest of the United States; and
(23)The Lender is an Eligible Lender, as defined in § 609.2 of this part, and meets DOE's lender eligibility, monitoring and performance criteria in § 609.11 of this part.
(e)The Loan Guarantee Agreement must provide that, in the event of a default by the Borrower:
(1)Interest accrues on the Guaranteed Obligations at the rate stated in the Loan Guarantee Agreement or Loan Agreement until DOE makes full payment of the defaulted Guaranteed Obligations and DOE is not required to pay any premium, default penalties, or prepayment penalties;
(2)Upon payment of the Guaranteed Obligations by DOE, DOE is subrogated to the rights of the Holders of the debt, including all related liens, security, and collateral rights and has superior rights in and to the property acquired from the recipient of the payment as provided in § 609.15 of this part.
(3)The Eligible Lender or other servicer acting on DOE's behalf is obligated to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligations.
(4)The holder of pledged collateral is obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery upon default by Borrower on the Guaranteed Obligations.
(f)The Loan Guarantee Agreement must contain audit provisions which provide, in substance, as follows:
(1)The Eligible Lender or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, must keep such records concerning the project as are necessary to facilitate an effective and accurate audit and performance evaluation of the project as required in section 609.17 of this part.
(2)DOE and the Comptroller General, or their duly authorized representatives, must have access, for the purpose of audit and examination, to any pertinent books, documents, papers, and records of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, as applicable. Examination of records may be made during the regular business hours of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, or at any other time mutually convenient as required in section 609.17 of this part.
(g)The Loan Guarantee Agreement must contain provisions related to the assignment or transfer of Guaranteed Obligations which provide that:
(1)The Eligible Lender must provide written notification to DOE prior to any assignment or transfer of any portion of a Guaranteed Obligation, or any pledge or other use of a Guaranteed Obligation as security, including but not limited to any derivatives transaction.
(2)An Eligible Lender or other Holder may assign or transfer a Guaranteed Obligation covered under the Loan Guarantee Agreement to another Eligible Lender that meets the requirements of § 609.11 of this part. Such Eligible Lender to which a Guaranteed Obligation is assigned or transferred, is required to fulfill all servicing, requirements monitoring, and reporting contained in the Loan Guarantee Agreement and these regulations if the transferring Eligible Lender was forming these functions. Any assignment or transfer, however, of the servicing, monitoring, and reporting functions must be approved by DOE. § 609.11 Lender Eligibility, Monitoring and Performance Requirements.
(a)An Eligible Lender shall meet the following requirements:
(1)Be a “qualified institutional buyer,” as defined in 17 CFR 230.144A(a), including a qualified retirement plan, or governmental plan;
(2)Not be debarred or suspended from participation in a Federal government contract (under 48 CFR part 9.4) or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR Part 180);
(3)Not be delinquent on any Federal debt or loan;
(4)Be legally authorized to enter into loan guarantee transactions authorized by the Act and these regulations and is in good standing with DOE and other Federal agency loan guarantee programs;
(5)Be able to demonstrate, or has access to, experience in originating and servicing loans for commercial projects similar in size and scope to the project under consideration; and
(6)Be able to demonstrate experience or capability as the lead lender or underwriter by presenting evidence of its participation in other energy-related projects.
(b)When performing its duties to review and evaluate a proposed Eligible Project prior to the submission of a Pre-Application or Application, as appropriate, by the Project Sponsor through the execution of a Loan Guarantee Agreement, and subsequently when performing the loan servicing duties during the term of the Loan Guarantee Agreement, the Eligible Lender or other servicer shall exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating, disbursing and servicing a loan made by it without a Federal guarantee, including:
(1)During the construction period, enforcing all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement and related documents;
(2)During the operational phase, monitoring and servicing the Debt Obligations and collection of the outstanding principal and accrued interest as well as ensuring that the collateral package securing the Guaranteed Obligations remains uncompromised; and
(3)As specified by DOE, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or other debt obligations.
(c)Even though DOE may rely on the Eligible Lender or other servicer to service and monitor the Guaranteed Obligation, DOE will also conduct its own monitoring and review of the Eligible Project. § 609.12 Project Costs.
(a)Before entering into a Loan Guarantee Agreement, DOE shall determine the estimated Project Costs for the project that is the subject of the agreement. To assist the Department in making that determination, the Applicant must estimate, calculate and record all such costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the project in accordance with generally accepted accounting principles and practices. Among other things, the Applicant must calculate the sum of necessary, reasonable and customary costs that it has paid and expects to pay, which are directly related to the project, including costs for escalation and contingencies, to estimate the total Project Costs.
(b)Project Costs include, but are not limited to:
(1)Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or rental, site improvements, site restoration, access roads, and fencing;
(2)Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility; and materials, labor, services, travel and transportation for facility design, construction, startup, commissioning and shakedown;
(3)Costs of equipment purchases;
(4)Costs to provide equipment, facilities, and services related to safety and environmental protection;
(5)Financial and legal services costs, including other professional services and fees necessary to obtain required licenses and permits and to prepare environmental reports and data;
(6)The cost of issuing project debt, such as fees, transaction and legal costs and other normal charges imposed by Lenders and other Holders;
(7)Costs of necessary and appropriate insurance and bonds of all types;
(8)Costs of design, engineering, startup, commissioning and shakedown;
(9)Costs of obtaining licenses to intellectual property necessary to design, construct, and operate the project;
(10)A reasonable contingency reserve to cover the possibility of cost increases during the processing of the application and during construction; and
(11)Capitalized interest necessary to meet market requirements, reasonably required reserve funds and other carrying costs during construction.
(12)Other necessary and reasonable costs approved by DOE; and
(c)Project Costs do not include:
(1)Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;
(2)Parent corporation or other affiliated entity's general and administrative expenses, and non-project related parent corporation or affiliated entity assessments, including organizational expenses;
(3)Goodwill, franchise, trade, or brand name costs;
(4)Dividends and profit sharing to stockholders, employees, and officers;
(5)Research, development, and demonstration costs of readying the innovative energy or environmental technology for employment in a commercial project;
(6)Costs that are excessive or are not directly required to carry out the project, as determined by DOE; and
(7)Borrower-paid Credit Subsidy Costs and the Administrative Cost of Issuing a Loan Guarantee; and
(8)Expenses incurred after startup, commissioning, and shakedown before the facility has been placed in service. § 609.13 Principal and Interest Assistance Contract. With respect to the guaranteed portion of any Guaranteed Obligation, and subject to the availability of appropriations, DOE may enter into a contract to pay Holders, for and on behalf of Borrower, from funds appropriated for that purpose, the principal and interest charges that become due and payable on the unpaid balance of the guaranteed portion of the Guaranteed Obligation, if DOE finds that:
(a)Borrower:
(1)Is unable to meet the payments and is not in default; and
(2)Will, and is financially able to, continue to make the scheduled payments on the remaining portion of the principal and interest due under the non-guaranteed portion of the debt obligation, if any, and other debt obligations of the project, or an agreement, approved by DOE, has otherwise been reached in order to avoid a payment default on non-guaranteed debt;
(b)It is in the public interest to permit Borrower to continue to pursue the purposes of the project;
(c)In paying the principal and interest, the Federal government expects a probable net benefit to the Government will be greater than that which would result in the event of a default;
(d)The payment authorized is no greater than the amount of principal and interest that Borrower is obligated to pay under the terms of the Loan Guarantee Agreement; and
(e)Borrower agrees to reimburse DOE for the payment (including interest) on terms and conditions that are satisfactory to DOE and executes all written contracts required by DOE for such purpose. § 609.14 Full Faith and Credit and Incontestability. The full faith and credit of the United States is pledged to the payment of all Guaranteed Obligations issued in accordance with this part with respect to principal and interest. Such guarantee will be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such guarantee; and that, but for fraud or material misrepresentation by the Holder, such guarantee will be presumed to be valid, legal, and enforceable. § 609.15 Default, Demand, Payment, and Collateral Liquidation.
(a)In the event that the Borrower has defaulted in the making of required payments of principal or interest on any portion of a Guaranteed Obligation, and such default has not been cured within the period of grace provided in the Loan Guarantee Agreement and/or the Loan Agreement, the Eligible Lender or other Holder, or nominee or trustee empowered to act for the Eligible Lender or other Holder (referred to in this section collectively as “Holder”), may make written demand upon the Secretary for payment pursuant to the provisions of the Loan Guarantee Agreement.
(b)In the event that the Borrower is in default as a result of a breach of one or more of the terms and conditions of the Loan Guarantee Agreement, note, mortgage, Loan Agreement, or other contractual obligations related to the transaction, other than the Borrower's obligation to pay principal or interest on the Guaranteed Obligation, as provided in paragraph
(a)of this section, the Holder will not be entitled to make demand for payment pursuant to the Loan Guarantee Agreement, unless the Secretary agrees in writing that such default has materially affected the rights of the parties, and finds that the Holder should be entitled to receive payment pursuant to the Loan Guarantee Agreement.
(c)In the event that the Borrower has defaulted as described in paragraph
(a)of this section and such default is not cured during the grace period provided in the Loan Guarantee Agreement, the Secretary shall notify the U.S. Attorney General and may cause the principal amount of all Guaranteed Obligations, together with accrued interest thereon, and all amounts owed to the United States by Borrower pursuant to the Loan Guarantee Agreement, to become immediately due and payable by giving the Borrower written notice to such effect (without the need for consent or other action on the part of the Holders of the Guaranteed Obligations). In the event the Borrower is in default as described in paragraph
(b)of this section, where the Secretary determines in writing that such a default has materially affected the rights of the parties, the Borrower shall be given the period of grace provided in the Loan Guarantee Agreement to cure such default. If the default is not cured during the period of grace, the Secretary may cause the principal amount of all Guaranteed Obligations, together with accrued interest thereon, and all amounts owed to the United States by Borrower pursuant to the Loan Guarantee Agreement, to become immediately due and payable by giving the Borrower written notice to such effect (without any need for consent or other action on the part of the Holders of the Guaranteed Obligations).
(d)No provision of this regulation shall be construed to preclude forbearance by the Holder with the consent of the Secretary for the benefit of the Borrower.
(e)Upon the making of demand for payment as provided in paragraph
(a)or
(b)of this section, the Holder shall provide, in conjunction with such demand or immediately thereafter, at the request of the Secretary, such supporting documentation as may be reasonably required to justify such demand.
(f)Payment as required by the Loan Guarantee Agreement of the Guaranteed Obligation shall be made 60 days after receipt by the Secretary of written demand for payment, provided that the demand complies with the terms of the Loan Guarantee Agreement, applicable law, the Act, and this part. The Loan Guarantee Agreement shall provide that interest shall accrue to the Holder at the rate stated in the Loan Guarantee Agreement until the Guaranteed Obligation has been fully paid by the Federal government.
(g)The Loan Guarantee Agreement shall provide that, upon payment of the Guaranteed Obligations, the Secretary shall be subrogated to the rights of the Holders and shall have superior rights in and to the property acquired from the Holders. The Holder shall transfer and assign to the Secretary all rights held by the Holder of the Guaranteed Obligation. Such assignment shall include all related liens, security, and collateral rights.
(h)Where the Loan Guarantee Agreement so provides, the Eligible Lender or other Holder, or other servicer, as appropriate, and the Secretary may jointly agree to a plan of liquidation of the assets pledged to secure the Guaranteed Obligation.
(i)Where payment of the Guaranteed Obligation has been made and the Eligible Lender or other Holder or other servicer has not undertaken a plan of liquidation, the Secretary, in accordance with the rights received through subrogation and acting through the U.S. Attorney General, may seek to foreclose on the collateral assets and/or take such other legal action as necessary for the protection of the Government.
(j)If the Secretary is awarded title to collateral assets pursuant to a foreclosure proceeding, the Secretary may take action to complete, maintain, operate, or lease the project facilities, or otherwise dispose of any property acquired pursuant to the Loan Guarantee Agreement or take any other necessary action which the Secretary deems appropriate, in order that the original goals and objectives of the project will, to the extent possible, be realized.
(k)In addition to foreclosure and sale of collateral pursuant thereto, the U.S. Attorney General shall take appropriate action in accordance with rights contained in the Loan Guarantee Agreement to recover costs incurred by the Government as a result of the defaulted loan or other defaulted obligation. Any recovery so received by the U.S. Attorney General on behalf of the Government shall be applied in the following manner: First to the expenses incurred by the U.S. Attorney General and DOE in effecting such recovery; second, to reimbursement of any amounts paid by DOE as a result of the defaulted obligation; third, to any amounts owed to DOE under related principal and interest assistance contracts; and fourth, to any other lawful claims held by the Government on such process. Any sums remaining after full payment of the foregoing shall be available for the benefit of other parties lawfully entitled to claim them.
(l)No action taken by the Eligible Lender or other Holder or other servicer in the liquidation of any pledged assets will affect the rights of any party, including the Secretary, having an interest in the loan or other debt obligations, to pursue, jointly or severally, to the extent provided in the Loan Guarantee Agreement, legal action against the Borrower or other liable parties, for any deficiencies owing on the balance of the Guaranteed Obligations or other debt obligations after application of the proceeds received upon liquidation.
(m)In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection with the liquidation of collateral or recovery of deficiencies due under the loan, the Secretary will take such action as may be appropriate under the circumstances.
(o)Nothing in this part precludes the Secretary from purchasing the Holder's interest in the project upon liquidation. § 609.16 Perfection of Liens and Preservation of Collateral
(a)The Loan Guarantee Agreement and other documents related thereto shall provide that: The Eligible Lender or other Holder or other servicer will take those actions necessary to perfect and maintain liens, as applicable, on assets which are pledged as collateral for the guaranteed portion of the loan; and upon default by the Borrower, the holder of pledged collateral shall take such actions as the Secretary may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the pledged assets. The Secretary shall reimburse the holder of collateral for reasonable and appropriate expenses incurred in taking actions required by the Secretary. Except as provided in § 609.15, no party may waive or relinquish, without the consent of the Secretary, any collateral securing the Guaranteed Obligation to which the United States would be subrogated upon payment under the Loan Guarantee Agreement.
(b)In the event of a default, the Secretary may enter into such contracts as the Secretary determines are required to preserve the collateral. The cost of such contracts may be charged to the Borrower. § 609.17 Audit and Access to Records
(a)The Loan Guarantee Agreement and related documents shall provide that:
(1)The Eligible Lender or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the project as is necessary, including the Pre-Application, Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all project assets and non-project assets pledged as security for the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the project; and
(2)The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.
(b)The Secretary may from time to time audit any or all items of costs included as Project Costs in statements or certificates submitted to the Secretary or the servicer or otherwise, and may exclude or reduce the amount of any item which the Secretary determines to be unnecessary or excessive, or otherwise not to be an item of Project Costs. The Borrower will make available to the Secretary all books and records and other data available to the Borrower in order to permit the Secretary to carry out such audits. The Borrower should represent that it has within its rights access to all financial and operational records and data relating to Project Costs, and agrees that it will, upon request by the Secretary, exercise such rights in order to make such financial and operational records and data available to the Secretary. In exercising its rights hereunder, the Secretary may utilize employees of other Federal agencies, independent accountants, or other persons. § 609.18 Deviations. To the extent that such requirements are not specified by the Act or other applicable statutes, DOE may authorize deviations on an individual request basis from the requirements of this part (except environmental considerations and requirements) upon a finding that such deviation is essential to program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government. Recommendation for any deviation shall be submitted in writing to DOE. Such recommendations must include a supporting statement, which indicates briefly the nature of the deviation requested and the reasons in support thereof. Any deviation, however, that was not captured in the Credit Subsidy Cost will require either additional fees or discretionary appropriations. [FR Doc. E7-9297 Filed 5-15-07; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27860; Directorate Identifier 2007-CE-034-AD] RIN 2120-AA64 Airworthiness Directives; Allied Ag Cat Productions, Inc. (Type Certificate No. 1A16 Formerly Held by Schweizer Aircraft Corp.) G-164 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to supersede Airworthiness Directive
(AD)82-07-04, which applies to certain Allied Ag Cat Productions, Inc. (Ag Cat) G-164 series airplanes. AD 82-07-04 currently requires you to modify the fuel shut-off valve control by installation of a new stop-plate. Since we issued AD 82-07-04, we have determined the need to add airplane models and serial numbers that were not previously included in the applicability. Consequently, this proposed AD would retain the actions of AD 82-07-04 and add airplane models and serial numbers to the applicability. We are proposing this AD to prevent turning the fuel shut-off valve clockwise past the “ON” position stop which, if not corrected, could allow the fuel valve to be rotated to an unplacarded “OFF” position. This condition could lead to reduced fuel flow and consequent loss of engine power. DATES: We must receive comments on this proposed AD by July 16, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. For service information identified in this proposed AD, contact Allied Ag Cat Productions, Inc., 301 West Walnut Street, P.O. Box 482, Walnut Ridge, Arkansas 72479; telephone:
(870)866-2111. FOR FURTHER INFORMATION CONTACT: Matt Wilbanks, Aerospace Engineer, FAA, Fort Worth Airplane Certification Office, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone:
(817)222-5051; fax:
(817)222-5960. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-27860; Directorate Identifier 2007-CE-034-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion A determination that the fuel shut-off valve handle could be rotated clockwise past the “ON” position stop to an unplacarded “OFF” position on certain Ag Cat G-164 series airplanes caused us to issue AD 82-07-04, Amendment 39-4355 (47 FR 13788, April 1, 1982). AD 82-07-04 currently requires you to modify the fuel shut-off valve control by installation of a new stop-plate on certain Ag Cat G-164 series airplanes. Since issuing AD 82-07-04, we have determined the need to add airplane models and serial numbers that were not previously included in the applicability. This condition, if not corrected, could lead to reduced fuel flow and consequent loss of engine power. Relevant Service Information We have reviewed Schweizer Aircraft Corp. Ag-Cat Service Bulletin No. 78, dated January 26, 1982. The service information describes procedures for modification of the fuel shut-off control by installation of a part number A1552-71 stop-plate. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would supersede AD 82-07-04 with a new AD that would retain the actions of AD 82-07-04 and add models and serial numbers to the applicability. This proposed AD would require you to use the service information described previously to perform these actions. Differences Between This Proposed AD and the Service Information This proposed AD affects additional models and serial numbers airplanes compared to the list in the applicability section of the service information. The requirements of this proposed AD, if adopted as a final rule, would take precedence over the provisions in the service information. Costs of Compliance We estimate that this proposed AD would affect 1,400 airplanes in the U.S. registry, including those airplanes affected by AD 82-07-04. We estimate the following costs to do the proposed modification: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 2.5 work-hours × $80 per hour = $200 $500 $700 $980,000 We based our fleet cost estimate on all airplanes needing the modification. We have no way of knowing which airplanes already have modified the fuel shut-off control per AD 82-07-04. We also have no way of knowing how many airplanes have been retrofitted with the Gemini fuel shut-off valve part number 3/4-86-6-RT-6 (A3580-1) without incorporating AD 82-07-04. The estimated total cost on U.S. operators includes the cumulative costs associated with those airplanes affected by AD 82-07-04 and those airplanes being added in this AD. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive
(AD)82-07-04, Amendment 39-4355 (47 FR 13788, April 1, 1982), and adding the following new AD: **Allied Ag Cat Productions, Inc. (Type Certificate No. 1A16 formerly held by Schweizer Aircraft Corp.):** Docket No. FAA-2007-27860; Directorate Identifier 2007-CE-034-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by July 16, 2007. Affected ADs
(b)This AD supersedes AD 82-07-04, Amendment 39-4355. Applicability
(c)This AD applies to the following model and serial number airplanes that are certificated in any category and have Gemini fuel shut-off valve part number (P/N) 3/4 -86-6-RT-6 (A3580-1) installed:
(1)*Group 1 (maintains the actions from AD 82-07-04)* : Model Serial Nos
(i)G-164A 1726A through 1730A.
(ii)G-164B 335B through 659B.
(iii)G-164C 1C through 44C.
(iv)G-164D 1D through 22D. .
(2)*Group 2:* Model Serial Nos.
(i)G-164 All.
(ii)G-164A All except 1726A through 1730A.
(iii)G-164B and G-164B with 73″ wing gap All except 335B through 659B.
(iv)G-164B-15T All.
(v)G-164B-20T All.
(vi)G-164B-34T All.
(vii)G-164C All except 1C through 44C.
(iv)G-164D and G-164D with 73″ wing gap All except 1D through 22D. Unsafe Condition
(d)This AD results from our determination to add airplane models and serial numbers that were not previously included in the applicability. We are issuing this AD to prevent turning the fuel shut-off valve clockwise past the “ON” position which, if not corrected, could allow the fuel valve to be rotated to an unplacarded “OFF” position. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Modify the fuel shut-off valve control by installation of a new stop-plate, P/N A1552-71 (or FAA-approved equivalent)
(i)*For Group 1 Airplanes:* Within 100 hours time-in service
(TIS)after April 6, 1982 (the effective date of AD 82-07-04) Follow Schweizer Aircraft Corp. Ag-Cat Service Bulletin No. 78, dated January 26, 1982.
(ii)*For Group 2 Airplanes:* Within 100 hours TIS after the effective date of this AD
(2)Do not install any Gemini fuel shut-off valve P/N 3/4 -86-6-RT-6 (A3580-1) on any airplane unless the stop-plate is installed per paragraph (e)(1) of this AD *For all Airplanes:* As of 100 hours TIS after the effective date of this AD Follow Schweizer Aircraft Corp. Ag-Cat Service Bulletin No. 78, dated January 26, 1982. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Matt Wilbanks, Aerospace Engineer, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone:
(817)222-5051; fax:
(817)222-5960. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(g)AMOCs approved for AD 82-07-04 are approved for this AD. Related Information
(h)To get copies of the service information referenced in this AD, contact Allied Ag Cat Productions, Inc., 301 West Walnut Street, P.O. Box 482, Walnut Ridge, Arkansas 72479; telephone:
(870)866-2111. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is Docket No. FAA-2007-27860; Directorate Identifier 2007-CE-034-AD. Issued in Kansas City, Missouri, on May 9, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-9402 Filed 5-15-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28158; Directorate Identifier 2007-NM-018-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found cases in which the drain mast of the water and waste system does not meet the SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. In case of fuel leakage or fuel vapor release, the proximity of this mast with the fuel tank may cause fuel ignition, leading to a possible tank explosion. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 15, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28158; Directorate Identifier 2007-NM-018-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Age ncia Nacional de Aviça o Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2007-01-04, effective January 29, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found cases in which the drain mast of the water and waste system does not meet the SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. In case of fuel leakage or fuel vapor release, the proximity of this mast with the fuel tank may cause fuel ignition, leading to a possible tank explosion. The MCAI requires replacement of the water and waste system drain masts by new ones bearing a new part number (P/N). You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information EMBRAER has issued Service Bulletin 145LEG-38-0013, dated March 24, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 41 products of U.S. registry. We also estimate that it would take about 20 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $9,633 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $460,553, or $11,233 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2007-28158; Directorate Identifier 2007-NM-018-AD. Comments Due Date
(a)We must receive comments by June 15, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category; except those that have previously accomplished EMBRAER Service Bulletin 145LEG-38-0015 or 145LEG-38-0020. Subject
(d)Water/Waste. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It has been found cases in which the drain mast of the water and waste system does not meet the SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. In case of fuel leakage or fuel vapor release, the proximity of this mast with the fuel tank may cause fuel ignition, leading to a possible tank explosion. The MCAI requires replacement of the water and waste system drain masts by new ones bearing a new part number (P/N). Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 5,000 flight hours or 4 years after the effective date of this AD, whichever occurs first, replace the water and waste system drain masts with P/N 9402.369.00674 by new ones bearing a P/N 9402.369.00675, according to the detailed instructions and procedures described in EMBRAER Service Bulletin 145LEG-38-0013, dated March 24, 2006.
(2)The accomplishment of the detailed instructions and procedures described in EMBRAER Service Bulletin 145LEG-38-0015, dated November 25, 2005; or 145LEG-38-0020, dated February 3, 2006, are acceptable for compliance with the requirements of this AD. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: No Differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Todd Thompson, Aerospace Engineer; 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directive 2007-01-04, effective January 29, 2007, and the service bulletins listed in Table 1 of this AD, for related information. Table 1.—Sources of Related Information EMBRAER Service Bulletin— Revision level— Dated— 145LEG-38-0005 02 November 20, 2003. 145LEG-38-0013 Original March 24, 2006. 145LEG-38-0015 Original November 25, 2005. 145LEG-38-0020 Original February 3, 2006. Issued in Renton, Washington, on May 7, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-9394 Filed 5-15-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28159; Directorate Identifier 2006-NM-257-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300-600 Series Airplanes and Model A310 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to certain Airbus Model A300-600, A310-200, and A310-300 series airplanes. The existing AD currently requires inspecting for certain serial numbers on elevators, and doing a detailed inspection, visual inspection with a low-angle light, and tap-test inspection of the upper and lower surfaces of the external skins on certain identified elevators for any damage (i.e., debonding of the graphite fiber reinforced plastic/Tedlar film protection, bulges, debonding of the honeycomb core to the carbon fiber reinforced plastic, abnormal surface reflections, and torn-out plies), and doing corrective actions if necessary. This proposed AD would also require inspecting for damage of the identified elevators in accordance with a new repetitive inspection program, at new repetitive intervals; and would provide an optional terminating action for the repetitive inspections. This proposed AD results from reports of damage caused by moisture/water inside the elevator. We are proposing this AD to detect and correct debonding of the skins on the elevators, which could cause reduced structural integrity of an elevator and reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by June 15, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1622; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-28159; Directorate Identifier 2006-NM-257-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On December 15, 2005, we issued AD 2005-26-17, amendment 39-14438 (70 FR 77301, December 30, 2005), for certain Airbus Model A300-600, A310-200, and A310-300 series airplanes. That AD requires inspecting for certain serial numbers on elevators, and doing a detailed inspection, visual inspection with a low-angle light, and tap-test inspection of the upper and lower surfaces of the external skins on certain identified elevators for any damage (i.e., debonding of the GFRP (graphite fiber reinforced plastic)/Tedlar film protection, bulges, debonding of the honeycomb core to the carbon fiber reinforced plastic, abnormal surface reflections, and torn-out plies), and doing corrective actions if necessary. That AD resulted from reports of debonded skins on the elevators. We issued that AD to detect and correct debonding of the skins on the elevators, which could cause reduced structural integrity of an elevator and reduced controllability of the airplane. Actions Since Existing AD Was Issued The preamble to AD 2005-26-17 specified that we considered the requirements “interim action” and that the manufacturer was developing a modification to address the unsafe condition. That AD explained that we may consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination. In addition, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA airworthiness directive 2006-0289, dated November 2, 2006, which renders mandatory a new scheduled inspection program to address the unsafe condition. Relevant Service Information Airbus has issued Service Bulletin A300-55-6039 (for Model A300-600 series airplanes) and Service Bulletin A310-55-2040 (for Model A310 series airplanes), both including Appendix 01, both dated June 7, 2006. The service bulletins describe procedures for determining the serial number of the elevator. For elevators with an affected serial number, the service bulletins describe procedures for the following actions: • A repetitive detailed visual inspection of the external surfaces of the GRFP/Tedlar film protection on the upper and lower skin panels to detect damage (breaks, disbonding, bulges, cracks, plies torn out or peeled off, discontinuity) of the film. For any damage, the service bulletins specify the related investigative action of a local tap-test for disbonding of the bulge and the surrounding area. The service bulletins specify the corrective action for disbonding as removing any disbonded GFRP/Tedlar film before doing the thermographic inspection. • A repetitive thermographic inspection of the upper and lower skin panels to detect any potential water indication inside the panel's honeycomb core; and related investigative and corrective actions if necessary. • Related investigative and corrective actions following the thermographic inspection are: ○ For no water indication: Evaluation of the external GFRP/Tedlar film protection for damage (debonding, bulges, cracks, or plies torn out or peeled off), and repair with pore filler if necessary. ○ For water indication: A tap-test on the area to detect damage and honeycomb debonding; do a damage and repair evaluation according to instructions in the structural repair manual (SRM); evaluation of the external GFRP/Tedlar film for damage according to the SRM; and repair with pore filler and/or replacement of the honeycomb core if necessary, or the optional terminating action (described below). If any damage exceeds certain limits specified in the SRM, the service bulletins specify contacting Airbus for repair instructions. • Reporting inspection results to Airbus. • Repairing the external GFRP/Tedlar film with pore filler. Airbus has also issued Service Bulletin A300-55-6040 (for Model A300-600 series airplanes) and Service Bulletin A310-55-2041 (for Model A310 series airplanes), both dated June 5, 2006. The service bulletins describe procedures for replacing the external GFRP/Tedlar film with an application of pore filler on the whole elevator external surface. Doing this replacement eliminates the need for the repetitive inspections. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued EASA airworthiness directive 2006-0289, dated November 2, 2006, to ensure the continued airworthiness of these airplanes in the European Union. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in France and type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2005-26-17 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Difference between the Proposed AD and the EASA Airworthiness Directive.” Difference Between the Proposed AD and the EASA Airworthiness Directive The EASA airworthiness directive specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method that we or the EASA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or the EASA approve would be acceptable for compliance with this proposed AD. Changes to Existing AD We have clarified the applicability of the existing AD to more closely match the language of the applicability of the EASA airworthiness directive. Paragraph
(g)of the existing AD specifies making repairs or doing alternative inspections using a method approved by either the FAA or the Direction Générale de l'Aviation Civile
(DGAC)(or its delegated agent). The EASA has assumed responsibility for the airplane models subject to this proposed AD. Therefore, we have revised paragraph
(g)of this proposed AD to specify making repairs or doing alternative inspections using a method approved by the FAA, the DGAC (or its delegated agent), or the EASA (or its delegated agent). Clarification of Inspection Terminology In this proposed AD, the “detailed visual inspection” specified in the Airbus service bulletin is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in the proposed AD. Interim Action We consider this proposed AD interim action. We are currently considering requiring the optional terminating action of replacing the external GFRP/Tedlar film with an application of pore filler on the whole elevator external surface, which would constitute terminating action for the repetitive inspections required by this AD action. Costs of Compliance This proposed AD would affect about 142 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour. Estimated Costs Action Work hours Parts Cost per airplane Fleet cost Inspection for serial number (required by AD 2005-26-17) 1 $0 $80 $11,360. Repetitive inspections (required by AD 2005-26-17) 3 0 $240, per inspection cycle $34,080, per inspection cycle. New repetitive inspection program (new proposed action) Between 8 and 12 0 Between $640 and $960, per inspection cycle Between $90,880 and $136,320, per inspection cycle. Replacement (optional terminating/new proposed action) 48 90 $3,930 $558,060. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14438 (70 FR 77301, December 30, 2005) and adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2007-28159; Directorate Identifier 2006-NM-257-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by June 15, 2007. Affected ADs
(b)This AD supersedes AD 2005-26-17. Applicability
(c)This AD applies to Airbus Model A300-600 series airplanes and Model A310 series airplanes, certificated in any category, equipped with carbon fiber reinforced plastic
(CFRP)elevator skin panels, modified in accordance with Airbus Service bulletin A310-55-2019 or A300-55-6016 (Airbus modification 10861) with graphite fiber reinforced plastic (GFRP)/Tedlar film as external protection, with part numbers (P/Ns) and serial numbers (S/Ns) identified in Airbus Service Bulletin A300-55-6039 or A310-55-2040, both dated June 7, 2006. Unsafe Condition
(d)This AD results from reports of damage caused by moisture/water inside the elevator. We are issuing this AD to detect and correct debonding of the skins on the elevators, which could cause reduced structural integrity of an elevator and reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of the Requirements of AD 2005-26-17 Inspection for Serial Number, Repetitive Inspections, and Corrective Actions
(f)Within 600 flight hours after February 3, 2006 (the effective date of AD 2005-26-17), inspect to determine if the S/N of the elevator is listed in Airbus All Operators Telex
(AOT)A300-600-55A6032, dated June 23, 2004, or Airbus Service Bulletin A300-55-6039, dated June 7, 2006 (for Model A300-600 series airplanes); or in Airbus AOT A310-55A2033, dated June 23, 2004, or Airbus Service Bulletin A310-55-2040, dated June 7, 2006 (for Model A310 series airplanes).
(1)If the S/N does not match any S/N on either AOT or service bulletin S/N list, no further action is required by this paragraph.
(2)If the S/N matches a S/N listed in an AOT or service bulletin, before further flight, do the actions listed in Table 1 of this AD, and any corrective action as applicable, in accordance with Airbus AOT A300-600-55A6032, dated June 23, 2004; or Airbus AOT A310-55A2033, dated June 23, 2004; as applicable. Repeat the inspections thereafter at intervals not to exceed 600 flight hours until the inspection required by paragraph
(j)of this AD is accomplished. Do applicable corrective actions before further flight. Table 1.—Repetitive Inspections Do a— Of the— For any— Detailed inspection Elevator upper and lower external skin surfaces Damage (i.e., breaks in the graphite fiber reinforced plastic (GFRP)/Tedlar film protection, debonded GFRP/Tedlar film protection, bulges, torn-out plies). Visual inspection with a low-angle light Elevator upper and lower external skin surfaces Differences in the surface reflection. Tap-test inspection Upper and lower external skin surfaces of the honeycomb core panels in the elevator Honeycomb core that has debonded from the carbon fiber reinforced plastic (CFRP). Note 1: For the purposes of this AD, a detailed inspection is “an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirrors, magnifying lenses, etc. may be necessary. Surface cleaning and elaborate procedures may be required.” Repair Approval
(g)Where the AOT specified in paragraph
(f)of this AD says to contact the manufacturer for repair instructions, or an alternative inspection method: Before further flight, repair or do the alternative inspection method according to a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the Direction Générale de l'Aviation Civile
(DGAC)(or its delegated agent), or the European Aviation Safety Agency
(EASA)(or its delegated agent). Parts Installation
(h)As of February 3, 2006, no carbon fiber elevator having part number (P/N) A55276055000 (left-hand side) or P/N A55276056000 (right-hand side) may be installed on any airplane unless it is inspected according to paragraph
(f)of this AD; or according to paragraph
(j)of this AD. No Reporting Required for AOT Inspections
(i)Although the AOTs referenced in paragraph
(f)of this AD specify to submit inspection reports to the manufacturer, this AD does not include that requirement. New Requirements of This AD Revised Inspection Program
(j)For airplanes with affected S/Ns identified in paragraph
(f)of this AD: Except as provided by paragraph
(k)of this AD, within 2,000 flight cycles or 18 months after the effective date of this AD, whichever occurs earlier, do a detailed inspection of the external surfaces of the GRFP/Tedlar film protection on the upper and lower skin panels to detect damage of the film, and a thermographic inspection of the upper and lower skin panels to detect any potential water indication inside the panel's honeycomb core; do all applicable related investigative/corrective actions before further flight; and repair the external GFRP/Tedlar film with pore filler. Do all actions in accordance with the Accomplishment Instructions of Service Bulletin A300-55-6039 (for Model A300-600 series airplanes), or Service Bulletin A310-55-2040 (for Model A310 series airplanes); both including Appendix 01, both dated June 7, 2006. Repeat the inspections thereafter at intervals not to exceed 2,000 flight cycles or 18 months, whichever occurs earlier. Where the service bulletin says to contact the manufacturer for repair instructions: Before further flight, repair or do the alternative inspection method according to a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the European Aviation Safety Agency
(EASA)(or its delegated agent). Doing the inspections in accordance with this paragraph terminates the repetitive inspection requirements of paragraph
(f)of this AD.
(k)The maximum time between the inspection required by paragraph
(f)of this AD and the first inspection done in accordance with paragraph
(j)of this AD must be no greater than: For the thermographic inspection, 2,500 flight hours after the last thermographic inspection done in accordance with the applicable AOT specified in paragraph
(f)of this AD; and for the tap test, 600 flight hours after the last tap test inspection done in accordance with paragraph
(f)of this AD. Report
(l)Submit a report of the findings (both positive and negative) of the inspections required by paragraph
(j)of this AD to Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, at the applicable time specified in paragraph (l)(1) or (l)(2) of this AD. The report must include the information in Appendix 01 of Airbus Service Bulletin A300-55-6039, or Service Bulletin A310-55-2040, both dated June 7, 2006, as applicable. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD and has assigned OMB Control Number 2120-0056.
(1)If the inspection was done after the effective date of this AD: Submit the report within 30 days after the inspection.
(2)If the inspection was accomplished prior to the effective date of this AD: Submit the report within 30 days after the effective date of this AD. Optional Terminating Action
(m)Replacing the external GFRP/Tedlar film with an application of pore filler on the whole elevator external surface in accordance with Airbus Service Bulletin A300-55-6040 (for Model A300-600 series airplanes), or Service Bulletin A310-55-2041 (for Model A310 series airplanes), both dated June 5, 2006, terminates the repetitive inspection requirements of paragraph
(j)of this AD, provided the replacement is done before further flight after accomplishment of Service Bulletins A310-55-2040 and A300-55-6039, both dated June 7, 2006. Alternative Methods of Compliance (AMOCs) (n)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3)Alternative methods of compliance, approved previously in accordance with AD 2005-26-17, are approved as alternative methods of compliance with the corresponding provisions of this AD. Related Information
(o)EASA airworthiness directive 2006-0289, dated November 2, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on May 7, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-9391 Filed 5-15-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28160; Directorate Identifier 2007-NM-006-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757-200 and 757-300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 757-200 and 757-300 series airplanes. This proposed AD would require installing a copper bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain masts. This proposed AD results from a report of charred insulation blankets and burned wires around the forward gray water composite drain mast found during an inspection of the forward cargo compartment on a Model 767-300F airplane. We are proposing this AD to prevent a fire near a composite drain mast and possible disruption of the electrical power system due to a lightning strike on a composite drain mast, which could result in the loss of several functions essential for safe flight. DATES: We must receive comments on this proposed AD by July 2, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Dave Webber, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6451; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28160; Directorate Identifier 2007-NM-006-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report indicating that, during an inspection of the forward cargo compartment on a Model 767-300F airplane, an operator found charred insulation blankets and burned wires around the forward gray water composite drain mast. Additional charring on the insulation blankets was noticed several feet away along the routing of the drain mast's ground wire and power wires. Analysis of the damaged parts revealed that a lightning strike on the composite drain mast caused the damage to the wires and insulation blankets. This condition, if not corrected, could cause disruption of electrical power and fire and heat damage to equipment in the event of a lightning strike on the composite drain mast, which could result in the loss of several functions essential for safe flight. A design review of the gray water composite drain mast installation on Model 737NG, 757, 767, and 777 airplanes revealed that the installation of a heavier bonding jumper is necessary to provide adequate lightning protection to the gray water composite drain mast installation. The subject area on Model 757 airplanes is almost identical to that on the affected Model 767-300F airplane. Therefore, Model 757 airplanes may be subject to the unsafe condition revealed on the Model 767-300F airplane. We are currently considering additional rulemaking to address the identified unsafe condition on Model 737NG, 767, and 777 airplanes. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 757-30-0024, dated July 24, 2006. The service bulletin describes procedures for installing a 135-ampere copper bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain masts. Above the waste-water access panel, the installation includes: • Replacing the existing ground bracket with a new ground bracket; • Installing a bonding jumper between the ground bracket and the clamp on the tube of the forward gray water composite drain mast; • Doing a drain mast installation test; and • Measuring the resistance of the bonding jumper installation. In the bulk cargo compartment, the installation includes: • Installing a new ground bracket; • Installing a bonding jumper between the ground bracket and the clamp on the tube of the aft gray water composite drain mast; • Doing a drain mast installation test; and • Measuring the resistance of the bonding jumper installation. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance There are about 83 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Bonding jumper installation 2 $80 $353, per kit (1 kit per drain mast) $866 59 $51,094 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-28160; Directorate Identifier 2007-NM-006-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by July 2, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 757-200 and 757-300 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 757-30-0024, dated July 24, 2006. Unsafe Condition
(d)This AD results from a report of charred insulation blankets and burned wires around the forward gray water composite drain mast found during an inspection of the forward cargo compartment on a Model 767-300F airplane. We are issuing this AD to prevent a fire near a composite drain mast and possible disruption of the electrical power system due to a lightning strike on a composite drain mast, which could result in the loss of several functions essential for safe flight. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Bonding Jumper Installation
(f)Within 60 months after the effective date of this AD: Install a 135-ampere copper bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain mast, in accordance with the Accomplishment instructions of Boeing Special Attention Service Bulletin 757-30-0024, dated July 24, 2006. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on May 7, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-9390 Filed 5-15-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [USCG-2007-27373](Formerly [USCG-2207-2737]) RIN 1625-AA08 Regattas and Marine Parades; Great Lakes Annual Marine Events AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking; correction. SUMMARY: This document contains a correction to the docket number of the Notice of Proposed Rulemaking entitled “Regattas and Marine Parades; Great Lakes Annual Marine Events” published on April 6, 2007, in the **Federal Register** (72 FR 17062). DATES: The NPRM is corrected as of May 16, 2007. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2007-27373 to the Docket Management Facility at the U.S. Department of Transportation. Two different locations are listed under the mail and delivery options below because the Document Management Facility is moving May 30, 2007. To avoid duplication, please use only one of the following methods:
(1)*Web site:* *http://dms.dot.gov* .
(2)*Mail:* • Address mail to be delivered before May 30, 2007, as follows: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001. • Address mail to be delivered on or after May 30, 2007, as follows: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
(3)*Fax:* 202-493-2251.
(4)*Delivery:* • Before May 30, 2007, deliver comments to: Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. • On or after May 30, 2007, deliver comments to: Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590. At either location, deliveries may be made between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(5)*Federal eRulemaking Portal:* *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: Amy Bunk, Attorney-Advisor, Coast Guard, 2100 Second Street, SW., Washington, DC 20593 at 202-372-3864. SUPPLEMENTARY INFORMATION: On April 6, 2007, the Coast Guard published a Notice of Proposed Rulemaking entitled “Regattas and Marine Parades; Great Lakes Annual Marine Events” **Federal Register** (72 FR 17062). In that document the last digit of the docket number USCG-2007-2737 was inadvertently shortened. The correct docket number for this NRPM is USCG-2007-27373. In rule FR Doc. E7-6425 published on April 6, 2007, (72 FR 17062) make the following corrections: 1. On page 17062, in the first column, in the heading change the docket number to read as follows: “[USCG-2007-27373]” Dated: May 9, 2007. Stefan G. Venckus, Chief, Office of Regulations and Administrative Law, United States Coast Guard. [FR Doc. E7-9349 Filed 5-15-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 7 RIN 1024-AD55 Special Regulations; Areas of the National Park System AGENCY: National Park Service, Interior. ACTION: Proposed rule. SUMMARY: The National Park Service is proposing this rule to manage winter visitation and recreational use in Yellowstone and Grand Teton National Parks and the John D. Rockefeller, Jr., Memorial Parkway. This proposed rule would require that recreational snowmobiles and snowcoaches operating in the parks meet certain air and sound restrictions, that snowmobilers in Yellowstone be accompanied by a commercial guide, and proposes certain revisions to the daily entry limits on the numbers of snowmobiles and snowcoaches that may enter the parks. Traveling off designated oversnow routes will remain prohibited. DATES: Comments must be received by July 16, 2007. ADDRESSES: You may submit your comments, identified by Regulatory Information Number 1024-AD55 (RIN), by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Yellowstone National Park, Winter Use Proposed Rule, P.O. Box 168, Yellowstone NP, WY 82190. • *Hand Deliver to:* Management Assistant's Office, Headquarters Building, Mammoth Hot Springs, Yellowstone National Park, Wyoming. All submissions received must include the agency name and RIN. For additional information see “Public Participation” under SUPPLEMENTARY INFORMATION below. FOR FURTHER INFORMATION CONTACT: John Sacklin, Management Assistant's Office, Headquarters Building, Yellowstone National Park, 307-344-2019 or at the address listed in the ADDRESSES section. SUPPLEMENTARY INFORMATION: Background The National Park Service
(NPS)has been managing winter use issues in Yellowstone National Park (YNP), Grand Teton National Park (GTNP), and the John D. Rockefeller, Jr., Memorial Parkway (the Parkway) for several decades. In 1997 the Fund for Animals and others filed suit, alleging violations of non-compliance with the National Environmental Policy Act (NEPA), among other laws. The suit resulted in a settlement agreement in October 1997 which, among other things, required the NPS to prepare a new winter use plan for the three park units. On October 10, 2000, a Winter Use Plans Final Environmental Impact Statement
(FEIS)was published for YNP, GTNP, and the Parkway. A Record of Decision
(ROD)was signed by the Intermountain Regional Director on November 22, 2000, and subsequently distributed to interested and affected parties. The ROD selected FEIS Alternative G, which eliminated both snowmobile and snowplane use from the parks by the winter of 2003-2004, and provided access via an NPS-managed, mass-transit snowcoach system. This decision was based on a finding that the snowmobile and snowplane use existing at that time, and the snowmobile use analyzed in the FEIS alternatives, impaired park resources and values, thus violating the statutory mandate of the NPS. Implementing aspects of this decision required a special regulation for each park unit in question. Following publication of a proposed rule and the subsequent public comment period, a final rule was published in the **Federal Register** on January 22, 2001 (66 FR 7260). That rule became effective on April 22, 2001. On December 6, 2000, the Secretary of the Interior, the Director of the National Park Service and others in the Department of the Interior and the NPS were named as defendants in a lawsuit brought by the International Snowmobile Manufacturers' Association
(ISMA)and several groups and individuals. The States of Wyoming and Montana subsequently intervened on behalf of the plaintiffs. Following promulgation of final regulations, the original complaint was amended to also challenge the regulations. The lawsuit asked for the decision, as reflected in the ROD, to be set aside. The lawsuit alleged among other things, a violation of NEPA. A procedural settlement was reached on June 29, 2001, under which, NPS agreed to prepare a Supplemental Environmental Impact Statement
(SEIS)incorporating “any significant new or additional information or data submitted with respect to a winter use plan.” Additionally, the NPS provided the opportunity for additional public participation in furtherance of the purposes of NEPA. A Notice of Intent to prepare a Supplemental Environmental Impact Statement was published in the **Federal Register** on July 27, 2001 (66 FR 39197). A draft SEIS was published on March 29, 2002, and distributed to interested and affected parties. NPS accepted public comments on the draft for 60 days, and 357,405 pieces of correspondence were received. The draft SEIS examined four additional alternatives: two alternatives to allow some form of snowmobile access to continue, a no-action alternative that would implement the November 2000 ROD, and another alternative that would implement the no-action alternative one year later to allow additional time for phasing in snowcoach-only travel. The SEIS focused its analysis only on the issues relevant to allowing recreational snowmobile and snowcoach use in the parks. These impact topics included air quality and air quality related values, employee health and safety, natural soundscapes, public health and safety, socioeconomics, wildlife (bison and elk), and visitor experience. The SEIS did not re-evaluate the decision to ban snowplane use on Jackson Lake because this issue had not been raised in the lawsuit or its resulting settlement agreement and because the NPS did not have any reason to doubt the validity of its finding that snowplane use impaired park resources. On November 18, 2002, the NPS published a final rule (67 FR 69473) (“delay rule”) based on the FEIS, which generally postponed implementation of the phase-out of snowmobiles in the parks for one year. This rule allowed for additional time to plan and implement the NPS-managed mass-transit, snowcoach-only system outlined in the FEIS as well as time for completion of the SEIS. The rule delayed the implementation of the daily entry limits on snowmobiles until the winter of 2003-2004 and the complete prohibition on snowmobiles until 2004-2005. The 2001 regulation's transitional requirement that snowmobile parties use an NPS-permitted guide was also delayed until the 2003-2004 winter use season. Other provisions under the January 2001 regulation concerning licensing requirements, limits on hours of operation, Yellowstone side road use and the ban on snowplane use remained effective for the winter use season of 2002-2003. The Notice of Availability for the final SEIS was published on February 24, 2003 (68 FR 8618). The final SEIS included a new alternative, alternative 4, consisting of elements which fell within the scope of the analyses contained in the Draft SEIS and which were identified in the preferred alternative. In addition, the final SEIS included changes to the alternatives, changes in modeling assumptions and analysis, and incorporated additional new information. The Intermountain Regional Director signed a ROD for the SEIS, which became effective on March 25, 2003. The ROD selected final SEIS alternative 4 for implementation, and enumerated additional modifications to that alternative. The final SEIS and ROD found that implementation of final SEIS alternatives 1a, 1b, 3, or 4 would not likely impair park resources or values due to motorized oversnow recreation. On December 11, 2003, the new regulation governing winter use in the parks was published. On December 16, 2003, the U.S. District Court for the District of Columbia, ruling in *Fund for Animals* v. *Norton* , vacated and remanded the December 11, 2003, regulation and SEIS. The court effectively reinstated the January 22, 2001, regulation phasing out recreational snowmobiling pursuant to the delay rule. Specifically, up to 493 snowmobiles a day were to be allowed into Yellowstone for the 2003-2004 season, and another 50 in Grand Teton and the Parkway combined. All snowmobiles in Yellowstone were required to be led by a commercial guide. Snowmobiles were to be phased out entirely from the parks in the 2004-2005 season. ISMA and the State of Wyoming reopened their December 2000 lawsuit against the Department of the Interior and the NPS. On February 10, 2004, the U.S. District Court for the District of Wyoming issued a preliminary injunction in *ISMA* v. *Norton* preventing the NPS from continuing to implement the snowmobile phase-out. The court also directed the superintendents of Yellowstone and Grand Teton to issue emergency orders that were “fair and equitable” to all parties to allow visitation to continue for the remainder of the winter season. Under the authority of 36 CFR 1.5, the superintendents authorized up to 780 snowmobiles a day into Yellowstone, and up to 140 into Grand Teton and the Parkway combined. In Yellowstone, the requirement that all snowmobilers travel with a commercial guide remained in effect. Because it had no clear rules under which to manage the parks for the winter season of 2004-2005, the NPS prepared a Temporary Winter Use Plans Environmental Assessment in 2004. The temporary plan was intended to provide a framework for managing winter use in the parks for a period of three years, and was approved in November 2004 with a “Finding of No Significant Impact” (FONSI). An interim rule was published in the **Federal Register** implementing the temporary plan for the 2004-2005 winter season. Its provisions include a limit of 720 snowmobiles per day for Yellowstone and 140 snowmobiles for Grand Teton and the Parkway; a requirement that all recreational snowmobiles in Yellowstone must be accompanied by a commercial guide; and a requirement that all recreational snowmobiles operating in the parks must meet Best Available Technology
(BAT)requirements for reducing noise and air pollution (with limited exceptions at Grand Teton and the Parkway). The interim rule was effective through the winter season of 2006-2007, while the NPS is preparing a long-term winter use plan and EIS for the park. The proposed rule is issued in conjunction with the Winter Use Plans Draft Environmental Impact Statement
(DEIS)Thus, without a rulemaking , the use of snowmobiles and snowcoaches would not be allowed after the 2006-2007 winter season. Several litigants filed lawsuits challenging the temporary plan in both the District Court in Wyoming and the District Court in the District of Columbia. In October 2005, the Wyoming District Court upheld the validity of the 2004 temporary winter use rule in *The Wyoming Lodging and Restaurant Association* v. *U.S. Department of the Interior* . Litigation is still pending in the U.S. District Court for the District of Columbia and Wyoming, including a lawsuit filed in 2005 captioned *Save Our Snowplanes* v. *Norton.* Congress has three times included language in appropriations legislation for the Department of the Interior requiring that the temporary winter use rules remain in effect for the winter seasons of 2004-2005, 2005-2006, and 2006-2007. Park Resource Issues The Draft Environmental Impact Statement
(DEIS)supporting this proposed rule focuses on analyzing the environmental impacts of six alternatives for the management of winter use in the parks. The major issues analyzed in the DEIS include social and economic issues, human health and safety, wildlife, air quality, natural soundscape, visitor use and access, and visitor experience. The impacts associated with each of the alternatives are detailed in the DEIS and are available at the following site: *http://parkplanning.nps.gov* . Additional information is available online at: *http://www.nps.gov/yell/planyourvisit/winteruse.htm* and *http://www.nps.gov/grte* . Impairment to Park Resources and Values In addition to determining the environmental consequences of the alternatives, NPS policy requires analysis of potential effects to determine whether actions would impair park resources. In managing National Park System units, the NPS may undertake actions that have both beneficial and adverse impacts on park resources and values. However, the NPS is generally prohibited by law from taking or authorizing any action that would or is likely to impair park resources and values. Impairment is an impact that, in the professional judgment of the responsible NPS manager, would harm the integrity of park resources or values, including the opportunities that otherwise would be present for the enjoyment of those resources or values. The FEIS ROD, dated November 22, 2000, concluded that, of the seven alternatives evaluated in the FEIS, only one (alternative G), which called for a phase-out of snowmobile use in the parks, did not impair park resources. This was the basis for selecting this alternative, as described in the rationale for the decision in the November 2000 ROD. In all other FEIS alternatives, the existing snowmobile use in Yellowstone was found to impair air quality, wildlife, the natural soundscape, and opportunities for the enjoyment of the park by visitors. In Grand Teton, impairment to the natural soundscape and opportunities for enjoyment of the park was found to result from the impacts of snowmobile and snowplane use. In the Parkway, impairment was found to result from snowmobile use on air quality, the natural soundscape, and opportunities for enjoyment of the park. It was determined that there was no way to mitigate the impairment short of reducing the amount of use as determined by an effective carrying capacity analysis, or by imposing a suitable limit unsupported by such an analysis. The final rule implementing FEIS alternative G, published in the **Federal Register** on January 22, 2001, recognized that, “achieving compliance with the applicable legal requirements while still allowing snowmobile use would require very strict limits on the numbers of both snowmobiles and snowcoaches.” Thus, the January 2001 rule recognized that some snowmobile and snowcoach use could possibly be accommodated in the parks through appropriate management actions without resulting in impairment of park resources and values. The SEIS and March 25, 2003 ROD reinforced these conclusions. On November 10, 2004, the NPS published a final rule in the **Federal Register** implementing Alternative 4 of the Temporary Winter Use Plans Environmental Assessment. Publication of the rule was preceded by a Finding of No Significant Impact in which the NPS determined that the winter use activities allowed in the parks under Alternative 4 would not result in the impairment of park resources or values. Under the temporary plan, winter use activities are intensively managed in order to prevent the impairment of park resources and values. The plan employs strict requirements on snowmobiles and snowcoaches, along with a comprehensive monitoring program. Monitoring efforts include air quality, natural soundscapes, wildlife, employee health and safety, and visitor experience. Daily entry limits have been established that represent use levels slightly below the historic average numbers of snowmobiles entering Yellowstone, while eliminating the much higher peak use days experienced in the past. Limits on the numbers of snowmobiles have resulted in fewer conflicts with wildlife, fewer air and noise emissions, and improved road conditions. Limits on the numbers of snowmobiles also provide park managers with more predictable winter use patterns and an assurance that use cannot increase. Under the temporary plan, all snowmobilers entering Yellowstone were accompanied by a commercial guide. This requirement reduced conflicts with wildlife along roadways because guides are trained to lead visitors safely around the park with minimal disturbance to wildlife. Commercial guides must also have control over their clientele, which greatly reduces unsafe and illegal snowmobile use. In this way, guides ensure that park regulations are enforced and provide a safer experience for visitors. The requirement that all snowmobilers travel with commercial guides also benefits natural soundscapes, since commercially guided parties tend to travel in relatively large groups, resulting in longer periods when snowmobile sound is not audible. Finally, the temporary plan requires that all recreational snowmobiles entering the parks meet best available technology
(BAT)requirements. This requirement, along with air emissions requirements for snowcoaches, ensures that the vast majority of recreational over-snow vehicles operating in the parks employ current emissions control equipment, and has resulted in improvements in air quality and natural soundscapes. This proposed rule is based on Alternative 1 of the DEIS and in large part on the November 10, 2004 rule implementing the temporary winter use plan currently in effect. The NPS believes implementation of Alternative 1 and the proposed rule would not result in the impairment of park resources or values for the same reasons as described above. This proposed rule is issued in conjunction with the Winter Use Plans Draft Environmental Impact Statement
(DEIS)and will ensure that visitors to the parks have an appropriate range of winter recreational opportunities. In addition, the proposed rule will ensure that these recreational activities are in an appropriate setting and that they do not impair or irreparably harm park resources or values. The proposal provides a structure for winter use management in the parks and will replace an interim rule that has been in effect since the winter season of 2004-2005. The Rule is intended to continue providing certainty about winter use management in the parks that has existed for the last several years among the public and local communities. Description of the Proposed Rule The DEIS analyzes six alternatives with regard to winter use. These regulations propose to implement Alternative 1 from the DEIS. Alternative 1 and the proposed regulations are similar in most respects to the temporary winter use plan and the rules that guide its implementation. Thus, many of the regulations regarding operating conditions, designated routes, and restricted hours of operation have been in effect and enforced by the NPS for several years under the authority of 36 CFR part 7 or 36 CFR 1.5. Other aspects of the proposed rule are new, including new requirements to utilize Best Available Technology for snowcoaches, certain changes to the designated routes that are open to oversnow vehicle use, and adjustments to the daily entry limits. The NPS has found that the interim regulations that have been in effect for the past three winter seasons have resulted in quieter conditions, clean air, fewer wildlife impacts, and much improved visitor safety and experiences. The NPS believes that these proposed regulations will continue to produce similar results. Monitoring Scientific studies and monitoring of winter visitor use and park resources (including air quality, natural soundscapes, wildlife, employee health and safety, water quality, and visitor experience) will continue. Selected areas of the parks, including sections of roads, will be closed to visitor use if these studies indicate that human presence or activities have a substantial adverse effect on wildlife or other park resources that cannot otherwise be mitigated. A one-year notice will be provided before any such closure would be implemented unless immediate closure is deemed necessary to avoid impairment of park resources. Most non-emergency changes in park management implemented under the adaptive management framework would be implemented only after at least one or two years of monitoring, followed by a 6- to 12-month implementation period. The superintendent will continue to have the authority under 36 CFR 1.5 to take emergency actions to protect park resources or values. Best Available Technology Restrictions To mitigate impacts to air quality and the natural soundscape, the NPS is proposing to continue the requirement that all recreational snowmobiles meet air and sound emission restrictions, hereafter referred to as Best Available Technology
(BAT)restrictions, to operate in the parks, with limited exceptions. For air emissions restrictions, BAT means all snowmobiles must achieve a 90% reduction in hydrocarbons and a 70% reduction in carbon monoxide, relative to EPA's baseline emissions assumptions for conventional two-stroke snowmobiles. For sound restrictions, snowmobiles must operate at or below 73dB(A) as measured at full throttle according to Society of Automotive Engineers J192 test procedures (revised 1985). The superintendent will maintain a list of approved snowmobile makes, models, and year of manufacture that meet BAT restrictions. For the winter of 2006-2007, the NPS certified 35 different snowmobile models (from various manufacturers; model years 2002-2007) as meeting the BAT requirements. The BAT certification is good for six years from the date on which a model is certified as meeting the BAT requirements. To comply with the BAT air emission restrictions, the NPS proposes to continue the requirement that began with the 2005 model year, that all snowmobiles must be certified under 40 CFR 1051 to a Family Emission Limit
(FEL)no greater than 15 g/kW-hr for hydrocarbons and 120 g/kW-hr for carbon monoxide. Snowmobiles must be tested on a five-mode engine dynamometer, consistent with the test procedures specified by EPA (40 CFR 1051 and 1065). Other test methods could be approved by the NPS. The NPS proposes to retain the use of the FEL method for demonstrating compliance with BAT requirements because it has several advantages. First, use of FEL will ensure that all individual snowmobiles entering the parks achieve our emissions requirements, unless modified or damaged (under this proposed regulation, snowmobiles which are modified in such a way as to increase air or sound emissions will not be in compliance with BAT requirements and therefore not permitted to enter the parks). Use of FEL will also represent the least amount of administrative burden on the snowmobile manufacturers to demonstrate compliance with NPS BAT requirements because FEL data is already provided to EPA by the manufacturers. Further, the EPA has the authority to insure that manufacturers' claims on their FEL applications are valid. EPA also requires that manufacturers conduct production line testing
(PLT)to demonstrate that machines being manufactured actually meet the certification levels. If PLT indicates that emissions exceed the FEL levels, then the manufacturer is required to take corrective action. Through EPA's ability to audit manufacturers' emissions claims, the NPS will have sufficient assurance that emissions information and documentation will be reviewed and enforced by the EPA. FEL also takes into account other factors, such as the deterioration rate of snowmobiles (some snowmobiles may produce more emissions as they age), lab-to-lab variability, test-to-test variability, and production line variance. In addition, under the EPA's regulations, all snowmobiles manufactured must be labeled with FEL air emissions information. This will help to ensure that our emissions requirements are consistent with these labels and the use of FEL will avoid potential confusion for consumers. To determine compliance with the BAT sound emission restrictions, snowmobiles must be tested using SAE J192 (revised 1985) test procedures. The NPS recognizes that the SAE updated these test procedures in 2003, however, the changes between the 2003 and 1985 test procedures could alter the measurement results. The BAT requirement was initially established using 1985 test procedures (in addition to information provided by industry and modeling). Therefore, to be consistent with our BAT requirements, we will continue to use the 1985 test. We also understand that an update to the 2003 J192 procedures may be underway. We are interested in transitioning to the newer J192 test procedures, and we will continue to evaluate this issue after these regulations are implemented. Other test methods could be approved by NPS on a case-by-case basis. The BAT requirement for sound was established by reviewing individual machine results from side-by-side testing performed by the NPS' contractor, Harris Miller Miller & Hanson Inc.
(HMMH)and the State of Wyoming's contractor, Jackson Hole Scientific Investigations (JHSI). Six four-stroke snowmobiles were tested for sound emissions. These emission reports independently concluded that all the snowmobiles tested between 69.6 and 77.0 dB(A) using the J192 protocol. On average, the HMMH and JHSI studies measured four-strokes at 73.1 and 72.8 dB(A) at full throttle, respectively. The SAE J192 (revised 1985) test also allows for a tolerance of 2 dB(A) over the sound limit to account for variations in weather, snow conditions, and other factors. Snowmobiles may be tested at any barometric pressure equal to or above 23.4 inches Hg uncorrected (as measured at or near the test site). This exception to the SAE J192 test procedures maintains consistency with the testing conditions used to determine the BAT requirement. This reduced barometric pressure allowance is necessary since snowmobiles were tested at the high elevation of Yellowstone National Park, where atmospheric pressure is lower than the SAE J192's requirements due to the park's elevation. Testing data indicates that snowmobiles test quieter at high elevation, and therefore may be able to pass our BAT requirements at higher elevations but fail when tests are conducted near sea level. NPS will annually publish a list of snowmobile makes, models, and year of manufacture that meet BAT restrictions. Snowmobile manufacturers may demonstrate that snowmobiles are compliant with the BAT air emissions requirements by submitting a copy of their application used to demonstrate compliance with EPA's general snowmobile regulation to the NPS (indicating FEL). We will accept this application information from manufacturers in support of conditionally certifying a snowmobile as BAT, pending ultimate review and certification by EPA at the same emissions levels identified in the application. Should EPA certify the snowmobile at a level that would no longer meet BAT requirements, this snowmobile would no longer be considered to be BAT compliant and would be phased-out according to a schedule determined by the NPS to be appropriate. For sound emissions, snowmobile manufacturers could submit their existing Snowmobile Safety and Certification Committee
(SSCC)sound level certification form. Under the SSCC machine safety standards program, snowmobiles are certified by an independent testing company as complying with all SSCC safety standards, including sound standards. This regulation does not require the SSCC form specifically, as there could be other acceptable documentation in the future. The NPS will work cooperatively with the snowmobile manufacturers on appropriate documentation. The NPS intends to rely on certified air and sound emissions data from the private sector rather than establish its own independent testing program. When certifying snowmobiles as BAT, NPS will announce how long the BAT certification applies. Generally, each snowmobile model would be approved for entry into the parks for six winter seasons after it was first listed. Based on NPS experience, six years represents the typical useful life of a snowmobile, and thus six years provides purchasers with a reasonable length of time where operation is allowed once a particular model is listed as being compliant. Individual snowmobiles modified in such a way as to increase sound and air emissions of HC and CO beyond the proposed emission restrictions would be denied entry to the parks. It would be the responsibility of the end users, and guides and outfitters to ensure that their oversnow vehicles, whether snowmobiles or snowcoaches, comply with all applicable restrictions. Emission and sound requirements for snowcoaches are described below. The requirement in Yellowstone that all snowmobilers travel with commercial guides will assist NPS in enforcing BAT requirements, since businesses providing commercial guiding services in the parks are responsible under their contracts with the park to ensure that their clients' use only BAT snowmobiles. In addition, these businesses are required to ensure that snowmobiles used in the park are not modified in such a way as to increase sound or air emissions, and that BAT snowmobiles are properly maintained. All commercially guided recreational snowmobiles operating within YNP would be required to meet the BAT restrictions. Snowmobiles being operated on the Cave Falls road, which extends approximately one mile into the park from the adjacent national forest, would be exempt from BAT requirements. In GTNP and the Parkway, all recreational snowmobiles operating on the Continental Divide Snowmobile Trail (CDST), Jackson Lake, and the Grassy Lake Road must meet the BAT restrictions, with two exceptions. The first exception is for snowmobiles operating on the portion of the CDST between the east boundary of GTNP and Moran Junction. Because this portion of the CDST passes in and out of the park boundary and is generally adjacent to other public and private lands where snowmobile use is permitted, this section is being managed similarly to other routes where non-BAT snowmobile use is allowed in order to provide access to adjacent public and private lands. The second exception is for the Grassy Lake Road, where snowmobiles originating in the Targhee National Forest would be allowed to travel eastbound to Flagg Ranch and return westbound without meeting the BAT requirement; however, these snowmobiles could not travel further into the Parkway than Flagg Ranch. The NPS is allowing this exception in order to ensure that visitors to the remote Grassy Lake area of the Targhee National Forest are able to access food, fuel, emergency services, and other amenities available at Flagg Ranch. Any commercially guided snowmobiles authorized to operate in the Parkway or Grand Teton will be required to meet BAT restrictions. The University of Denver conducted winter emissions measurements in YNP that involved the collection of emissions data from in-use snowcoaches and snowmobiles in February 2005 and February 2006. Results from that work indicate that while most snowcoaches have lower emissions per person than two-stroke snowmobiles, the snowcoach fleet could be modernized to reduce carbon monoxide
(CO)and hydrocarbon
(HC)emissions. This work also supports snowmobile BAT and the development of snowcoach air emission requirements. Under concessions contracts issued in 2003, 78 snowcoaches are currently authorized to operate in Yellowstone. Approximately 29 of these snowcoaches were manufactured by Bombardier and were designed specifically for oversnow travel. Those 29 snowcoaches were manufactured before 1983 and are referred to as “historic snowcoaches” for the purpose of this rulemaking. All other snowcoaches are passenger vans or light buses that have been converted for oversnow travel using tracks and/or skis. During the winter of 2005-2006, an average of 29 snowcoaches entered Yellowstone each day. In comparison with four-stroke snowmobiles, snowcoaches operating within EPA's Tier 1 standards are cleaner, especially given their ability to carry up to seven times more passengers (Lela and White 2002). In 2004, EPA began phasing-in Tier 2 emissions standards for multi-passenger vans, and they will be fully phased-in by 2009. Tier 2 standards will require that vehicles be even cleaner than Tier 1. Tier 2 standards would also significantly reduce the open loop mode of operation. Beginning in the 2011-2012 season, all snowcoaches must meet air emission requirements, which will be the functional equivalent of having EPA Tier I emissions control equipment incorporated into the engine and drive train for the vehicle class (size and weight) as a wheeled vehicle. The NPS will encourage, through contract and permit, snowcoaches to have EPA Tier II emissions control equipment for the vehicle class. In addition, all critical emission and sound-related exhaust components that were originally installed by the manufacturer must be in place and functioning properly. Malfunctioning components must be replaced with original equipment manufacturer
(OEM)components where possible. If OEM parts are not available, aftermarket parts may be used if they are certified not to worsen emission and sound characteristics from OEM levels. In general, catalysts that have exceeded their typical useful life as stated by the manufacturer must be replaced unless the operator can demonstrate the catalyst is functioning properly. Beginning in the 2011-2012 season, snowcoaches must meet a sound emissions requirement of no greater than 73dBA; test procedures to be determined by the NPS. The restrictions on air and sound emissions proposed in this rule are not a restriction on what manufacturers may produce but an end-use restriction on which commercially produced snowmobiles and snowcoaches may be used in the parks. The NPS Organic Act (16 U.S.C. 1) authorizes the Secretary of the Interior to “promote and regulate” the use of national parks “by such means and measures as conform to the fundamental purpose of said parks * * * which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Further, the Secretary is expressly authorized by 16 U.S.C. 3 to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks. * * *” This exercise of the NPS Organic Act authority is not an effort by NPS to regulate manufacturers and is consistent with Sec. 310 of the Clean Air Act. Since 2001, Yellowstone and Grand Teton National Parks have been converting their own administrative fleet of snowmobiles to four-stroke machines. These machines have proven successful in use throughout the parks. NPS now uses these snowmobiles for most administrative uses. However, NPS recognizes that some administrative applications, such as off-trail boundary patrols in deep powder, towing heavy equipment or disabled sleds, search and rescue, or law enforcement uses may require additional power beyond that supplied by currently available snowmobiles that meet the BAT restrictions. In these limited cases, NPS may use snowmobiles that do not meet BAT restrictions proposed in this rule. Use of Commercial Guides To mitigate impacts to natural soundscapes and wildlife, and for visitor and employee safety, all recreational snowmobiles operated in YNP must be accompanied by a commercial guide, except for those being operated on the one-mile segment of the Cave Falls road that extends into the park from the adjacent national forest. This guiding requirement will reduce conflicts with wildlife along roadways because guides are trained to lead visitors safely around the park with minimal disturbance to wildlife. Commercially guided parties also tend to be larger in size, which reduces the overall number of encounters with wildlife and reduces the amount of time over-snow vehicles are audible. Commercial guides are educated in safety and are knowledgeable about park rules. Commercial guides are required to exercise reasonable control over their clientele, which has proven to greatly reduce unsafe and illegal snowmobile use. Commercial guides with contractual obligations to the NPS also allows for more effective enforcement of park rules by the NPS. These guides receive rigorous multi-day training, perform guiding duties as employees of a business, and are experts at interpreting the resources of the parks to their clients. Commercial guides are employed by local businesses; those jobs are not performed by NPS employees. Commercial guides use a “follow-the-leader” approach, stopping often to talk with the group. They lead snowmobiles single-file through the park, using hand signals to pass information down the line from one snowmobile to the next, which has proven to be effective. Signals are used to warn group members about wildlife and other road hazards, indicate turns, and when to turn on or off the snowmobile. Further, all commercial guides are trained in basic first aid and CPR. In addition to first aid kits, they often carry satellite or cellular telephones, radios, and other equipment for emergency use. In this way, guides will ensure that park regulations are enforced and will provide a safer experience for visitors. Since the winter of 2003-2004, all snowmobilers in Yellowstone have been led by commercial guides, resulting in significant positive effects on visitor health and safety. Guides are effective at enforcing proper touring behavior, such as adherence to speed limits, staying on the groomed road surfaces, and other snowmobiling behaviors that are appropriate to safely and responsibly visit the park. Since implementation of the guiding program there have been pronounced reductions in the number of law enforcement incidents and accidents associated with the use of snowmobiles, even when accounting for the reduced number of snowmobilers relative to historic use levels. The use of guides has also had beneficial effects on wildlife since guides are trained to respond appropriately when encountering wildlife. No more than eight snowmobiles would be permitted in a group with one commercial guide; no more than 17 snowmobiles would be permitted in a group with two commercial guides on separate snowmobiles. Group numbers include the guide's machine. Individual snowmobiles may not be operated separately from a group within the park. The maximum group sizes of eight and 17 were established so that no one party would be so large that a single guide, or in the case of a larger group two guides, could not safely direct and manage all party members. No minimum group size requirement is necessary since commercially guided parties always have at least two snowmobiles—that of the guide and the customer. Except in emergency situations, guided parties must travel together and remain within a maximum distance of one-third mile of the first snowmobile in the group. This will ensure that guided parties do not become separated. One-third mile will allow for sufficient and safe spacing between individual snowmobiles within the guided party, allow the guide(s) to maintain control over the group and minimize the impacts on wildlife and natural soundscapes. In the Parkway, all snowmobile parties traveling north from Flagg Ranch must be accompanied by a commercial guide. Otherwise, snowmobilers in Grand Teton and the Parkway do not have to be accompanied by a guide. The use of guides in Grand Teton and the Parkway is generally not required due to the low volume of use, the conditions for access to Jackson Lake for winter fishing, the nature of the CDST, as well as the inter-agency jurisdiction on the Grassy Lake Road. Designated Routes In Yellowstone, a number of changes are proposed in routes designated for snowmobile use based on analyses in the Draft EIS and experience with the temporary plan over the past three winters. Certain additional side roads will be open for snowmobile use in the afternoons, based on the successful experience of NPS with this time of day use on Firehole Canyon Drive. Virginia Cascades would be accessible only via ski and snowshoe, returning it to an earlier type of non-motorized use. As of the 2008-2009 winter season, the East Entrance road would be closed to through travel by oversnow vehicles in order to address the avalanche risk at Sylvan Pass that cannot be reasonably mitigated. The one-year delay in implementing the change on the East Entrance road is proposed in response to comments received from cooperating agencies who expressed concern for communities and businesses to make appropriate adjustments. Reallocation of snowmobile numbers to reflect the change at the East Entrance would also be delayed until 2008-2009. Daily Snowmobile Limits The number of snowmobiles and snowcoaches that could operate in the parks each day would be limited under this rule. These limits are intended to mitigate impacts to air quality, employee and visitor health and safety, natural soundscapes, wildlife, and visitor experience. The daily entry limits for snowmobiles and snowcoaches in Yellowstone are identified in Table 1, and for Grand Teton and the Parkway in Table 2. Use limits identified in Table 1 include guides since commercial guides are counted towards the daily limits. For Yellowstone, the daily limits are identified for each entrance and location; for Grand Teton and the Parkway, the daily limits apply to total snowmobile use on the road segment and on Jackson Lake. Limits are specifically identified for Old Faithful in this proposed rule since a park concessioner provides snowmobile rentals and commercial guiding services originating there. The limits for the North Entrance and Old Faithful allow additional flexibility in offering visitors the opportunity to experience the park. For example, some visitors choose to enter the park on a snowcoach tour, spend two or more nights at the Old Faithful Snow Lodge, and go on a commercially guided snowmobile tour of the park during their stay at Old Faithful. Table 1.—Yellowstone Daily Snowmobile and Snowcoach Entry Limits Entrance* Commercially guided snowmobiles Commercially guided snowcoaches West Entrance 424 34 South Entrance** 256 13 East Entrance 0 ***0 North Entrance 20 13 Old Faithful 20 1 18 Cave Falls ****50 0 *For the winter of 2007-2008 only, the following allocations would be in effect: West Entrance, 400; South Entrance, 220; East Entrance, 40; North Entrance, 30; and Old Faithful, 30. **Includes portion of the Parkway between Flagg Ranch and South Entrance. ***Does not include a limited number of snowcoaches that would be allowed to provide skier shuttles between East Entrance and Sylvan Pass. ****This use occurs on a short (approximately 1-mile segment) of road and is incidental to other snowmobiling activities in the Targhee National Forest. These users do not have to be accompanied by a guide. 1 Parkwide. Table 2.—Grand Teton and the Parkway Daily Snowmobile Entry Limits Entrance Snowmobiles CDST* 50 Grassy Lake Road (Flagg-Ashton Road) 50 Jackson Lake 40 *The Continental Divide Snowmobile Trail lies within both GTNP and the Parkway. The 50 daily snowmobile use limit applies to total use on this trail in both parks. The purpose of these daily entry limits is to impose strict limits on the numbers of snowmobiles and snowcoaches that may use the parks in order to minimize resulting impacts. Compared to historical use where peak days found as many as 1,700 snowmobiles in the parks, these limits represent a considerable reduction in peak day use, and are slightly less than the historic seasonal daily average of Yellowstone entries. These limits would reduce snowmobile usage well below historic levels that were of particular concern in the 2000 ROD. The daily snowmobile and snowcoach limits are based on the analysis contained in the DEIS, which concluded that these limits, combined with other elements of this rule, would prevent unacceptable impacts thus preventing impairment to park resources and values while allowing for an appropriate range of experiences available to park visitors. Section-by-Section Analysis Section 7.13(l)(2) What terms do I need to know? The NPS has included definitions for a variety of terms, including oversnow vehicle, designated oversnow route, and commercial guides. These definitions are also applicable to Grand Teton and the Parkway, § 7.22(g)(2) and § 7.21(a)(2), respectively. For snowmobiles, NPS is continuing to use the definition found at 36 CFR 1.4, and sees no need to alter that definition at this time. Earlier regulations specific to Yellowstone, Grand Teton and the Parkway referenced “unplowed roadways” but that terminology was changed to “designated oversnow routes” to more accurately portray the condition of the route being used for oversnow travel. These routes remain entirely on roads or water surfaces used by motor vehicles and motorboats during other seasons and thus are consistent with the requirements in § 2.18 . Earlier regulations also referred only to snowmobiles or snowcoaches. Since there is a strong likelihood that new forms of machines will be developed in the future that can travel on snow, a definition for “oversnow vehicle” was developed to ensure that such new technology is subject to this regulation. When a particular requirement or restriction only applies to a certain type of machine (for example, some concession restrictions only apply to snowcoaches) then the specific machine is stated and only applies to that type of vehicle, not all oversnow vehicles. However, oversnow vehicles that do not meet the strict definition of a snowcoach (i.e., both weight and passenger capacity) would be subject to the same requirements as snowmobiles. The definitions listed under § 7.13(l)(2) will apply to all three parks. These definitions may be clarified in future rulemakings based on changes in technology. Section 7.13(l)(3) May I operate a snowmobile in Yellowstone National Park? The authority to operate a snowmobile within Yellowstone, subject to use limits, guiding requirements, operating hours and dates, equipment requirements, and operations established elsewhere in this section, is provided in § 7.13(l)(3). Similarly, it is provided for Grand Teton in § 7.22(g)(3) and for the Parkway in § 7.21(a)(3). Limitations in the 2004 rule that terminated the authority to operate snowmobiles (and snowcoaches) in the Parks following the winter season of 2006-2007 have been removed. Section 7.13(l)(4) May I operate a snowcoach in Yellowstone National Park? This paragraph continues the authority to operate snowcoaches in Yellowstone, but requires that they be commercially operated under a concessions contract. Similarly, the authority to operate snowcoaches in the Parkway is provided in § 7.21(a)(4). For Grand Teton, § 7.22(g)(4) continues the current prohibition on the operation of snowcoaches. The NPS proposes to establish entry requirements for snowcoaches relating to both air emissions and noise. Initially, the NPS would continue to require non-historic snowcoaches to meet the applicable EPA emission standards for the vehicle at the time it was manufactured. Beginning with the 2011-2012 season, all snowcoaches, both historic and non-historic, would be required to meet the functional equivalent of having EPA Tier 1 emissions control equipment incorporated into the engine and drive train for the vehicle class (size and weight) as a wheeled vehicle. Also beginning with the 2011-2012 season, all snowcoaches would be required to meet a sound emissions requirement of no greater than 73 dBA. Section 7.13(l)(5) Must I operate a certain model of snowmobile? This paragraph continues the requirement that only commercially available snowmobiles that meet NPS air and sound emissions requirements may be operated in Yellowstone. Similarly, this requirement is described for Grand Teton and the Parkway in § 7.22(g)(5) and § 7.21(a)(5), respectively. Section 7.13(l)(6) How will the Superintendent approve snowmobile makes, models, and year of manufacture for use in the park? The NPS is not proposing any changes to the hydrocarbon and carbon monoxide emissions requirements for snowmobiles operating in the park. Snowmobiles must be certified under 40 CFR part 1051 to a Family Emission Limit
(FEL)no greater than 15 g/kW-hr for hydrocarbons and an FEL no greater than 120 g/kW-hr for carbon monoxide. Changes are not proposed to the current requirement that snowmobiles must operate at or below 73 dBA. For Grand Teton and the Parkway, the same requirements are contained in § 7.22(g)(6) and § 7.21(a)(6), respectively. Section 7.13 (l)(7) Where may I operate my snowmobile in Yellowstone National Park? See also § 7.22 (g)(7) and § 7.21 (a)(7) for Grand Teton and the Parkway. Specific routes are listed where snowmobiles may be operated, but this proposed rule also provides latitude for the superintendent to modify those routes available for use. When determining what routes are available for use, the superintendent will use the criteria in § 2.18(c), and may also take other issues into consideration including, for example, the most direct route of access, weather and snow conditions, the necessity to eliminate congestion, the necessity to improve the circulation of visitor use patterns, and in the interest of public safety and protection of park resources. The proposed rule would designate that portion of the East Entrance Road in Yellowstone between Fishing Bridge Junction and Lake Butte Overlook as open for use by snowmobiles and snowcoaches. The remaining portion of the road, however, between the East Entrance and Lake Butte Overlook would not be open to oversnow vehicle use, except for the 6-mile section between the East Entrance and Sylvan Pass which would remain open to snowcoaches only. The NPS proposes this change in recognition of the significant avalanche hazards that exist at Sylvan Pass that cannot be safely or cost effectively mitigated. Snowmobiles authorized to operate on the frozen surface of Jackson Lake may gain access to the lake by trailering their snowmobiles to the parking areas near the designated access points via the plowed roadway. There is no direct access from the Continental Divide Snowmobile Trail to Jackson Lake, and use limits established for each area are entirely separate. Section 7.13(l)(8) What routes are designated for snowcoach use? See also § 7.21(a)(8) for the Parkway. In addition to the specific routes open to snowmobile use, snowcoaches may be operated on several other specific routes in Yellowstone. This proposed rule also provides latitude for the superintendent to modify those routes available for use. When determining what routes are available for use, the superintendent will use the criteria in § 2.18(c), and may also take other issues into consideration including the most direct route of access, weather and snow conditions, the necessity to eliminate congestion, the necessity to improve the circulation of visitor use patterns, and in the interest of public safety and protection of park resources. The NPS proposes to designate that portion of the East Entrance Road in Yellowstone between Fishing Bridge Junction and Lake Butte Overlook as open for use by both snowmobiles and snowcoaches. The remaining portion of the road, however, between the East Entrance and Lake Butte Overlook would not be open to oversnow vehicle use, except for the 6-mile section between the East Entrance and Sylvan Pass which would remain open to snowcoaches only. The NPS proposes this change in recognition of the significant avalanche hazards that exist at Sylvan Pass that cannot be safely or cost effectively mitigated. The segment of road between the East Entrance and Sylvan Pass is a popular destination for cross country skiers, although there is a significant gain in elevation between the two points. By designating that portion of the road as open to snowcoaches, a skier shuttle could be provided, thereby enhancing opportunities for skiing without exposing snowcoaches and their passengers to the hazards of crossing the pass itself. This change would not occur until the winter of 2008-2009. Section 7.13(l)(9) Must I travel with a commercial guide while snowmobiling in Yellowstone? See also § 7.22(g)(8) and § 7.21(a)(9) for Grand Teton and the Parkway. The NPS is proposing to retain the requirement that all recreational snowmobile operators in Yellowstone be accompanied by a commercial guide. Similar to the previous rule, parties must travel in groups of no more than eight snowmobiles including that of the guide, however, the NPS is proposing to allow groups of up to 17 snowmobiles if two guides are present on separate snowmobiles. No changes are being proposed regarding guiding requirements for Grand Teton and the Parkway, where guides are not currently required except in the Parkway on the route between Flagg Ranch and the South Entrance of Yellowstone. Section 7.13(l)(10) Are there limits established for the numbers of snowmobiles and snowcoaches permitted to operate in the park each day? The NPS is not proposing to change the total of 720 snowmobiles per day allowed to enter Yellowstone, or the total of 140 per day that are allowed in Grand Teton (see § 7.22(g)(9)) and the Parkway (see § 7.21(a)(10)). The specific daily entry limits for each of Yellowstone's entrances, however, have been adjusted somewhat, primarily to reallocate the 40 snowmobiles per day beginning in 2008-2009 that were previously allocated to the East Entrance, but which would not be allowed under this proposed rule. The NPS is also proposing to establish a daily entry limit of 78 snowcoaches for Yellowstone. Although a regulatory limit is new this conforms to the existing number authorized in concession contracts and reflects consideration of the analyses of impacts in the DEIS. Section 7.13(l)(11) When may I operate my snowmobile or snowcoach? See also § 7.22(g)(10) and § 7.21(a)(11) for Grand Teton and the Parkway. The NPS is not proposing any changes to the methods that the Superintendent would use to determine operating hours and dates. Section 7.13 (l)(12) What other conditions apply to the operation of oversnow vehicles? This section includes a variety of requirements regarding the operation of snowmobiles in the parks, such as drivers' license and registration requirements, operating procedures, requirements for headlights, brakes and other safety equipment, length of idling time, towing of sleds, and other requirements related to safety and resource impact considerations. No changes are being proposed in this section from the previous regulations. See also § 7.22(g)(11) for Grand Teton and § 7.21(a)(12) for the Parkway. Section 7.13 (l)(13) What conditions apply to alcohol use while operating an oversnow vehicle? The NPS is proposing no changes to the conditions applicable to the use of alcohol while operating oversnow vehicles. Although the regulations in 36 CFR 4.23 apply to oversnow vehicles, a provision was included in the 2004 regulations to address the issue of under-age drinking while operating a snowmobile, and snowcoach operators or snowmobile guides operating under the influence while performing services for others. Many states have adopted similar alcohol standards for under-age operators and commercial drivers and the NPS feels it is necessary to specifically include these regulations to help mitigate potential safety concerns. The alcohol level for minors (anyone under the age of 21) is set at .02. Although the NPS endorses “zero tolerance”, a very low Blood Alcohol Content
(BAC)is established to avoid a chance of a false reading. Mothers Against Drunk Driving and other organizations have endorsed such a general enforcement posture and the NPS agrees that under-age drinking and driving, particularly in a harsh winter environment, will not be allowed. In the case of snowcoach operators or snowmobile guides, a low BAC limit is also necessary. Persons operating a snowcoach are likely to be carrying 8 or more passengers in a vehicle with tracks or skis that is more challenging to operate than a wheeled vehicle, and on oversnow routes that could pose significant hazards should the driver not be paying close attention or have impaired judgment. Similarly, persons guiding others on a snowmobile have put themselves in a position of responsibility for the safety of other visitors and for minimizing impacts to park wildlife and other resources. Should the guide's judgment be impaired, hazards such as wildlife on the road or snow obscured features, could endanger all members of the group in an unforgiving climate. For these reasons, the NPS is continuing to require that all guides be held to a stricter than normal standard for alcohol consumption. Therefore, the NPS has established a BAC limit of .04 for snowcoach operators and snowmobile guides. This is consistent with federal and state rules pertaining to BAC thresholds for someone with a commercial drivers license. The same conditions apply within Grand Teton and the Parkway; see § 7.22(g)(12) and § 7.21(a)(13), respectively. Section 7.13 (l)(14) Do other NPS regulations apply to the use of oversnow vehicles? See also § 7.22(g)(13) and § 7.22(a)(14) for Grand Teton and the Parkway, respectively. The NPS is not proposing any changes to the applicability of other NPS regulations concerning oversnow vehicle use. Relevant portions of 36 CFR 2.18, including § 2.18(c), have been incorporated within these proposed regulations. Some portions of 36 CFR 2.18 and 2.19 are superseded by these proposed regulations, which allows these proposed regulations to govern maximum operating decibels, operating hours, and operator age (this is applicable to these park units only). In addition, 36 CFR 2.18(b) would not apply in Yellowstone, while it would apply in Grand Teton and the Parkway. This is due to the existing concurrent jurisdiction in Grand Teton and the Parkway. These two units are solely within the boundaries of the State of Wyoming and national park rangers work concurrently with state and county officers enforcing the laws of the State of Wyoming. The proposed rule also supersedes 36 CFR 2.19(b) in that it prohibits the towing of persons on skis, sleds, or other sliding devices by motor vehicle or snowmobile, except in emergency situations. Towing people, especially children, is a potential safety hazard and health risk due to road conditions, traffic volumes, and direct exposure to snowmobile emissions. This rule does not affect supply sleds attached by a rigid device or hitch pulled directly behind snowmobiles or other oversnow vehicles as long as no person or animal is hauled on them. Other provisions of 36 CFR Parts 1 and 2 continue to apply to the operation of oversnow vehicles unless specifically excluded here. Section 7.13 (l)(15) Are there any forms of non-motorized oversnow transportation allowed in the park? See also § 7.22(g)(14) and § 7.21(a)(15) for Grand Teton and the Parkway, respectively. Non-motorized travel consisting of skiing, skating, snowshoeing, and walking are generally permitted. Yellowstone and Grand Teton have specifically prohibited dog sledding and ski-joring (the practice of a skier being pulled by dogs or a vehicle) to prevent disturbance or harassment to wildlife. These restrictions have been in place for several years and would be reaffirmed under these regulations. Section 7.13 (l)(16) May I operate a snowplane in Yellowstone National Park? See also § 7.22(g)(15) and § 7.21(a)(16) for Grand Teton and the Parkway. Before the winter of 2002-2003, snowplanes were allowed on Jackson Lake within GTNP under a permit system. Based on the analysis set forth in the 2000 EIS and ROD and incorporated by reference into three subsequent rulemaking processes including the DEIS, the NPS found that the use of snowplanes results in impairment of the natural soundscape and opportunities for enjoyment of the park by visitors in violation of the NPS Organic Act. Additionally, with their unguarded propellers and high travel speeds, snowplanes present unacceptable safety risks. Accordingly, snowplanes have been banned since 2001. To date, NPS is not aware of any new or additional information regarding snowplanes that would suggest their use would not impair park resources and values. As a result, and to avoid any uncertainty based on their previous use on Jackson Lake, this proposed rule includes language that specifically continues the prohibition of snowplanes in each of these parks. Section 7.13 (l)(17) Is violating any of the provisions of this section prohibited? Some magistrates have interpreted the lack of a specific prohibitory statement in regulations to be ambiguous and therefore unenforceable. Although it would seem to be implicit that each instance of a failure to abide by specific requirements is a separate violation, the proposed regulation contains clarifying language for this purpose. Each occurrence of non-compliance with these regulations is a separate violation. However, it should also be noted that the individual regulatory provisions (i.e., each of the separately numbered subparagraphs throughout these three sections) could be violated individually and are of varying severity. Thus, each subparagraph violated can and should receive an individual fine in accordance with the issuance of the park's bail schedule as issued by the appropriate magistrate. It is not intended that violations of multiple subparagraphs of these regulations be treated as a single violation or subject only to a single fine. See also § 7.22(g)(20) and § 7.21(a)(17) for Grand Teton and the Parkway. Section 7.22(g)(16) May I continue to access public lands via snowmobile through the park? The NPS is proposing to continue providing access to public lands that are adjacent to Grand Teton National Park, consistent with the requirements found in the park's enabling legislation. Specific routes are designated to provide such access; the requirements established for air and sound emissions, guiding and licensing, snowmobile operator age, and daily entry limits do not apply on these routes. Section 7.22(g)(17) specifies that the routes designated in § 7.22(g)(16) may be used only to gain direct access to public lands located adjacent to the park boundary. Section 7.22(g)(18) May I continue to access private property within or adjacent to the park via snowmobile? The NPS is proposing to continue providing access to inholdings or private lands adjacent to Grand Teton National Park, consistent with the requirements found in the park's enabling legislation. Specific routes are designated to provide access, and the requirements established for air and sound emissions, guiding and licensing, snowmobile operator age, and daily entry limits do not apply on these routes. Section 7.22(g)(19) specifies that the routes designated in § 7.22(g)(18) may be used only to gain direct access to private lands located within or adjacent to the park boundary, and is authorized only for the landowners and their representatives or guests. Summary of Economic Analysis Introduction This analysis examines six alternatives for winter use plans in the Greater Yellowstone Area (Yellowstone National Park, Grand Teton National Park, and John D. Rockefeller, Jr., Memorial Parkway). Alternative 1 is the preferred alternative. It would allow nearly historic levels of snowmobile use, but require the use of commercial guides. Alternative 1 mimics the current temporary winter use plan with three primary changes:
(1)Air emission and sound standards for snowcoaches,
(2)daily limits for snowcoaches, and
(3)the closure of Sylvan Pass to through travel. Alternative 2 would emphasize snowcoach access and prohibit recreational snowmobiling. Road grooming would continue under Alternative 2, but Sylvan Pass would be closed to through travel beginning in the 2008-2009 winter season. Alternative 3a would prohibit road grooming or packing on most road segments in Yellowstone National Park. Under that alternative, the road from the South Entrance to Old Faithful would be the only oversnow motorized access route in Yellowstone National Park. Alternative 4 would allow increased snowmobile use relative to historic levels. While some non-commercially guided or unguided snowmobile access would be allowed under Alternative 4, commercial guides would be required for most snowmobilers. Alternative 5 would balance snowmobile and snowcoach access and accommodate some unguided snowmobile access. That alternative also features a seasonal limit with flexible daily limits. Finally, Alternative 6 would emphasize plowing mid-elevation, west-side roads in Yellowstone National Park to allow wheeled commercial vehicle access. Alternative 6 would continue to allow oversnow vehicle access through the South Entrance and on the east side of the park, but Sylvan Pass would be closed to through travel beginning in the 2008-2009 winter season. This analysis estimates the benefits and costs associated with the six alternatives relative to the baseline, which is Alternative 3b. Baseline describes the conditions that would occur if the proposed regulations that are currently under consideration were not implemented. Under those baseline conditions, recreational oversnow vehicle access would cease in all three parks. The estimated benefits and costs summarized here are incremental to the baseline. That is, these estimates are calculated as the additional benefits and costs the public would experience under each of the action alternatives as compared to the baseline conditions described by Alternative 3b. The purpose for estimating these benefits and costs is to examine the extent to which each action alternative addresses the need for the proposed regulations. These regulations are needed to correct certain “market failures” associated with winter use in the parks. A market failure occurs when park resources and uses are not allocated in an economically efficient manner. For winter use in the parks, market failures occur as a result of “externalities.” An externality exists when the actions of some individuals impose uncompensated impacts on others. For example, snowmobile users impose costs on other park visitors in the form of noise, air pollution, congestion, and health and safety risks. Because these costs are not compensated, snowmobile users have little or no incentive to adjust their behavior accordingly. The proposed regulations are needed to correct this situation. The quantitative results of this analysis are summarized below. It is important to note that this analysis could not account for all benefits or costs due to limitations in available data. For example, the costs associated with adverse impacts to park resources such as wildlife, and with law enforcement incidents are not reflected in the quantified net benefits presented in this summary. It is also important to note that this analysis addresses the economic efficiency implications of the different action alternatives and not their distributive equity (i.e., it does not identify the sectors or groups on which the majority of impacts fall). Therefore, additional explanation is required when interpreting the quantitative results of this analysis. An explanation of the selection of the preferred alternative is presented following the summary of quantified benefits and costs. Quantified Benefits and Costs The analysis of benefits and costs critically depends on estimates of visitation for the different user groups. While significant information is available from past visitation records and visitor surveys, a degree of uncertainty exists about how these visitation levels might change in the future under the six action alternatives. In past analyses of winter use plans, this uncertainty was addressed by making bounding assumptions to place upper and lower limits on a reasonable range of visitation. In the present analysis, a more sophisticated approach was used to better characterize uncertainty and to estimate expected levels of visitation. That approach involves specifying probability distributions of key visitation parameters, and then sampling from those distributions in order to estimate visitation levels. By taking multiple samples, measures of central tendency for visitation can be calculated that reflect the uncertainty in the available data. This analysis used 1,000 samples, which were adequate to calculate expected levels of visitation. Those expected visitation levels were then used to estimate the benefits and costs described below for the six action alternatives. Alternative 6 has the highest level of quantified net benefits (benefits minus costs). That is because this alternative would result in the largest increase in overall visitation due to its emphasis on road plowing. That increased visitation would primarily benefit visitors that access the parks by wheeled vehicles such as buses, and the businesses that serve them, including restaurants, gas stations, and hotels. Additionally, due to the relative low snowmobile limits associated with Alternative 6, the costs imposed on non-snowmobile users are low. Alternative 2 has the second highest level of quantified net benefits. This alternative would result in the largest increase of snowcoach visitation due to its emphasis on that mode of access. Additionally, Alternative 2 would yield the largest increase in skiing and snowshoeing visitation primarily as a result of the prohibition of recreational snowmobile use. While the other alternatives would allow some snowmobile use, the benefits from that use are diminished relative to the other modes of access allowed under Alternative 2 due to commercial guiding requirements. Alternatives 3a, 4, and 5 have the smallest levels of quantified net benefits. Alternative 3a would eliminate most motorized access, which would obviously reduce the benefits associated with that mode of access. While alternatives 4 and 5 would have the largest increases in snowmobile visitation, the benefits of that access are diminished relative to other modes of access due to commercial guiding requirements. Additionally, the increased snowmobile visitation associated with Alternatives 4 and 5 would diminish the benefits of other visitors through crowding. Finally, while not quantified in this analysis, non-snowmobile visitors might prefer that snowmobiles be guided. That preference would further diminish the net benefits of Alternatives 4 and 5 to the extent that they allow unguided snowmobile access. Alternative 1, the preferred alternative, has the third highest level of quantified net benefits. That level of net benefits generally reflects moderate benefits for visitors and businesses associated with snowmobile and snowcoach access, and moderate costs for other visitors such as skiers and snowshoers. The exception is for visitors arriving by bus, which would receive no benefits or costs under this alternative. These net benefit levels are presented in Tables 1 and 2 below. Table 1 presents the total present value of quantified net benefits over the ten-year analysis period for winter seasons 2007-2008 through 2016-2017. Table 2 presents quantified net benefits per year for the same analysis period. Double check upon accepting changes that the following tables are still correct (as rounded). Table 1.—Total Present Value of Quantified Net Benefits Relative to the Alternative 3b Baseline, Greater Yellowstone Area, 2007-2008 Through 2016-2017 Total present value of quantified net benefits Alternative 1 Discounted at 3% a $55,270,000 Discounted at 7% a 45,190,000 Alternative 2 Discounted at 3% a 122,900,000 Discounted at 7% a 100,900,000 Alternative 3a Discounted at 3% a 44,850,000 Discounted at 7% a 36,760,000 Alternative 4 Discounted at 3% a 32,690,000 Discounted at 7% a 26,770,000 Alternative 5 Discounted at 3% a 34,530,000 Discounted at 7% a 28,370,000 Alternative 6 Discounted at 3% a 311,800,000 Discounted at 7% a 256,000,000 a Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate when analyzing impacts to private consumption. Table 2.—Quantified Net Benefits per Year Relative to the Alternative 3b Baseline, Greater Yellowstone Area, 2007-2008 through 2016-2017 Quantified net benefits per year b Alternative 1 Discounted at 3% a $6,479,000 Discounted at 7% a 6,433,000 Alternative 2 Discounted at 3% a 14,410,000 Discounted at 7% a 14,360,000 Alternative 3a Discounted at 3% a 5,257,000 Discounted at 7% a 5,233,000 Alternative 4 Discounted at 3% a 3,832,000 Discounted at 7% a 3,811,000 Alternative 5 Discounted at 3% a 4,047,000 Discounted at 7% a 4,039,000 Alternative 6 Discounted at 3% a 36,550,000 Discounted at 7% a 36,450,000 a Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate when analyzing impacts to private consumption. b This is the total present value of quantified net benefits reported in Table 1 amortized over the ten-year analysis timeframe at the indicated discount rate. Interpretation of Quantified Benefits and Costs The National Park Service selected Alternative 1 as the preferred alternative; however, Alternatives 6 and 2 each have higher levels of quantified net benefits. Additional factors beyond economics that are relevant in the selection of the preferred alternative include benefits and costs that could not be quantified and distributive equity concerns. For example, Alternative 6 has moderate, adverse visibility impacts due to road sanding operations, which were not quantified in terms of monetized costs. Those costs would reduce the quantified net benefits of Alternative 6 relative to those of Alternative 1. With respect to distributive equity concerns, Alternative 1 better balances the visitor experiences of all modes of access compared to all other action alternatives. That is, Alternative 1 better distributes the benefits of winter access and enjoyment across different ways of enjoying the park. Alternative 2 concentrates the benefits almost exclusively with snowcoach riders. The preponderance of benefits from Alternative 6 benefits are from wheeled vehicle
(bus)access on the west side of Yellowstone. These issues are further explained in the section below. Explanation of Selected Preferred Alternative The preferred alternative was selected because it best balances winter use with protection of park resources to ensure that adverse impacts from historical types and numbers of snowmobile uses do not occur. It also proactively manages snowcoach operations. The preferred alternative demonstrates the NPS commitment to monitor and use results to adjust the winter use program. The results of the NPS' monitoring program, including data obtained regarding air quality, wildlife, soundscapes, and health and safety were used in formulating the alternatives in the DEIS. The preferred alternative applies the lessons learned over the last several winters relative to commercial guiding, which demonstrated, among other things, that 100% commercial guiding has been very successful and offers the best opportunity for achieving goals of protecting park resources and allowing balanced use of the parks. Law enforcement incidents have been reduced well below historic numbers, even after taking into account reduced visitation. That reduction is attributed to the quality of the guided program. The preferred alternative uses strictly limited oversnow vehicle numbers, combined with best available technology requirements and 100% commercial guiding to help ensure that the purpose and need for the environmental impact statement is best met. With access via snowmobile, snowcoaches, or non-motorized means, park visitors will have a range of appropriate winter recreational opportunities. Alternative 1 encourages a variety of ways of accessing the park in the winter, as compared to other alternatives that are more single-mode access. With the significant restrictions built into snowmobile and snowcoach use, this plan also ensures that these recreational activities will not impair or irreparably harm park resources or values. The preferred alternative also supports the communities and businesses both near and far from the parks and will encourage them to have an economically sustainable winter recreation program that relies on a variety of modes for access to the parks in the winter. Peak snowmobile numbers allowed under the preferred alternative are below the historic averages, but the snowmobile limits should provide a viable program for winter access to the parks, and in combination with snowcoach access, support overall historic visitor use levels. Compliance With Other Laws Regulatory Planning and Review (Executive Order 12866) This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.
(1)This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. These conclusions are based on the report “Economic Analysis of Winter Use Regulations in the Greater Yellowstone Area” (RTI International, February 2007).
(2)This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Implementing actions under this rule will not interfere with plans by other agencies or local government plans, policies, or controls since this is an agency specific change.
(3)This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. It only affects the use of over-snow machines within specific national parks. No grants or other forms of monetary supplement are involved.
(4)OMB has determined that this rule raises novel legal or policy issues. The issue has generated local as well as national interest on the subject in the Greater Yellowstone Area. The NPS has been the subject of numerous lawsuits regarding winter use management. Regulatory Flexibility Act The Department of the Interior has determined that this document will have a significant positive economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Therefore, an Initial Regulatory Flexibility Analysis has been conducted. This analysis is contained in the report “Economic Analysis of Winter Use Regulations in the Greater Yellowstone Area” (RTI International, February 2007). This initial analysis is available on the Yellowstone National Park website. A Final Regulatory Flexibility Analysis will be available upon publication of the final rule. Alternative 4, which has the highest daily snowmobile limits and allows for 25 percent of snowmobilers to be on non-commercially guided or unguided tours, would most likely result in the largest number of snowmobilers visiting the parks. Therefore, Alternative 4 would likely be the most beneficial to small businesses associated with that mode of access. However, Alternative 6, which allows for guided commercial wheeled access through the North and West entrances, is forecast to have the highest overall visitation. Nevertheless, Alternative 1 was selected as the preferred alternative in part because it balances the visitor experiences of all modes of access compared to all other action alternatives. NPS believes that balance will benefit small businesses associated with all modes of access. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million or more. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rulemaking has no effect on methods of manufacturing or production and specifically affects the Greater Yellowstone Area, not national or U.S. based enterprises. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. Takings (Executive Order 12630) In accordance with Executive Order 12630, the rule does not have significant takings implications. Access to private property located within or adjacent to the parks will be afforded the same access during winter as before this rule. No other property is affected. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Paperwork Reduction Act This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required. National Environmental Policy Act A Draft Environmental Impact Statement
(DEIS)has been prepared and is available for comment. The DEIS is available for review by contacting Yellowstone or Grand Teton Management Assistant's Offices or at *http://parkplanning.nps.gov/* . Comments are being solicited separately for the DEIS and this proposed rule. See the **Public Participation** section for more information on how to comment on the DEIS. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2: The NPS has evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. Numerous tribes in the area were consulted in the development of the previous winter use planning documents. Their major concern was to reduce the adverse effects on wildlife by snowmobiles. This rule does that through implementation of the guiding requirements and disbursement of snowmobile use through the various entrance stations. Clarity of Rule Executive Order 12866 requires each agency to write regulations that are easy to understand. The NPS invites your comments on how to make this rule easier to understand, including answers to questions such as the following:
(1)Are the requirements in the rule clearly stated?
(2)Does the rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4)Would the rule be easier to read if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example § 7.13 Yellowstone National Park.)
(5)Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov* . *Drafting Information:* The primary authors of this regulation are Gary Pollock, Management Assistant, Grand Teton National Park; John Sacklin, Management Assistant, Yellowstone National Park, and; Jerry Case, Regulations Program Manager, National Park Service, Washington DC. Public Participation If you wish to comment, you may submit your comments by any one of several methods. • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Mail: Yellowstone National Park, Winter Use Proposed Rule, P.O. Box 168, Yellowstone NP, WY 82190. • Hand Deliver to: Management Assistant's Office, Headquarters Building, Mammoth Hot Springs, Yellowstone National Park, Wyoming. All comments must be received by midnight of the close of the comment period. As noted previously, a DEIS is also available for public comment. Those wishing to comment on both this proposed rule and the DEIS should submit separate comments for each. Comments regarding the DEIS may be submitted online via the NPS' Planning, Environment, and Public Comment
(PEPC)Web site at *http://parkplanning.nps.gov/* , or they may be addressed to: Winter Use Plans DEIS, P.O. Box 168, Yellowstone National Park, WY 82190. Additional information about the DEIS is available online at: *http://www.nps.gov/yell/planyourvisit/winteruse.htm* . Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 36 CFR Part 7 National parks, Reporting and recordkeeping requirements. In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as set forth below: PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM 1. The authority for part 7 continues to read as follows: Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code 8-137(1981) and D.C. Code 40-721 (1981). 2. In § 7.13, revise paragraph
(l)to read as follows: § 7.13 Yellowstone National Park. (l)(1) *What is the scope of this regulation?* The regulations contained in paragraphs (l)(2) through (l)(17) of this section apply to the use of recreational and commercial snowmobiles. Except where indicated, paragraphs (l)(2) through (l)(17) do not apply to non-administrative snowmobile or snowcoach use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(2)*What terms do I need to know?* The definitions in this paragraph (l)(2) also apply to non administrative snowmobile use by the NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(i)*Commercial guide* means a guide who operates as a snowmobile or snowcoach guide for a fee or compensation and is authorized to operate in the park under a concession contract. In this regulation, “guide” also means “commercial guide.”
(ii)*Historic snowcoach* means a Bombardier snowcoach manufactured in 1983 or earlier. Any other snowcoach is considered a non-historic snowcoach.
(iii)*Oversnow route* means that portion of the unplowed roadway located between the road shoulders and designated by snow poles or other poles, ropes, fencing, or signs erected to regulate over-snow activity. Oversnow routes include pullouts or parking areas that are groomed or marked similarly to roadways and are adjacent to designated oversnow routes. An oversnow route may also be distinguished by the interior boundaries of the berm created by the packing and grooming of the unplowed roadway. The only motorized vehicles permitted on oversnow routes are oversnow vehicles.
(iv)*Oversnow vehicle* means a snowmobile, snowcoach, or other motorized vehicle that is intended for travel primarily on snow and has been authorized by the Superintendent to operate in the park. An oversnow vehicle that does not meet the definition of a snowcoach or a snowplane must comply with all requirements applicable to snowmobiles.
(v)*Snowcoach* means a self-propelled mass transit vehicle intended for travel on snow, having a curb weight of over 1000 pounds (450 kilograms), driven by a track or tracks and steered by skis or tracks, and having a capacity of at least 8 passengers. A snowcoach has a maximum size of 102 inches wide, plus tracks (not to exceed 110 inches overall); a maximum length of 35 feet; and a Gross Vehicle Weight Rating
(GVWR)not exceeding 25,000 pounds.
(vi)*Snowmobile* means a self-propelled vehicle intended for travel on snow, with a curb weight of not more than 1,000 pounds (450 kg), driven by a track or tracks in contact with the snow, and which may be steered by a ski or skis in contact with the snow.
(vii)*Snowplane* means a self-propelled vehicle intended for oversnow travel and driven by an air-displacing propeller.
(3)*May I operate a snowmobile in Yellowstone National Park?*
(i)You may operate a snowmobile in Yellowstone National Park in compliance with use limits, guiding requirements, operating hours and dates, equipment, and operating conditions established under this section. The Superintendent may establish additional operating conditions and must provide notice of those conditions in accordance with § 1.7(a) of this chapter or in the **Federal Register** .
(4)*May I operate a snowcoach in Yellowstone National Park?*
(i)Snowcoaches may only be operated in Yellowstone National Park under a concessions contract. Snowcoach operation is subject to the conditions stated in the concessions contract and all other conditions identified in this section.
(ii)All non-historic snowcoaches must initially meet NPS air emissions requirements. These requirements are the applicable EPA emission standards for the vehicle at the time it was manufactured. Beginning in the 2011-2012 season, all snowcoaches (historic and non-historic) must meet NPS air emission requirements, which are the functional equivalent of having EPA Tier I emissions control equipment incorporated into the engine and drive train for the vehicle class (size and weight) as a wheeled vehicle.
(iii)All critical emission-related exhaust components (as defined in 40 CFR 86.004-25(b)(3)(iii) through (v)) must be functioning properly. Malfunctioning critical emissions-related components must be replaced with the original equipment manufacturer
(OEM)component, where possible. Where OEM parts are not available, aftermarket parts may be used if they are certified not to worsen emission and sound characteristics.
(iv)Modifying or disabling a snowcoach's original pollution control equipment is prohibited except for maintenance purposes.
(v)Beginning in the 2011-2012 season, all snowcoaches must meet a sound emissions requirement of no greater than 73 dBA.
(vi)Individual snowcoaches may be subject to periodic inspections to determine compliance with the requirements of paragraphs (l)(4)(ii) through (l)(4)(v) of this section.
(5)*Must I operate a certain model of snowmobile?* Only commercially available snowmobiles that meet NPS air and sound emissions requirements as set forth in this section may be operated in the park. The Superintendent will approve snowmobile makes, models, and year of manufacture that meet those requirements. Any snowmobile model not approved by the Superintendent may not be operated in the park.
(6)*How will the Superintendent approve snowmobile makes, models, and year of manufacture for use in the park?*
(i)Beginning with the 2005 model year, all snowmobiles must be certified under 40 CFR part 1051, to a Family Emission Limit no greater than 15 g/kW-hr for hydrocarbons and to a Family Emission Limit no greater than 120 g/kW-hr for carbon monoxide.
(A)2004 model year snowmobiles may use measured emissions levels (official emission results with no deterioration factors applied) to comply with the emission limits specified in paragraph (l)(6)(i) of this section.
(B)Snowmobiles manufactured before the 2004 model year may be operated only if they have been shown to the Superintendent to have emissions no greater than the limits specified in paragraph (l)(6)(i) of this section.
(C)The snowmobile test procedures specified by EPA (40 CFR 1051 and 1065) must be used to measure air emissions from model year 2004 and later snowmobiles. Equivalent procedures may be used for earlier model years.
(ii)For sound emissions, snowmobiles must operate at or below 73dB(A) as measured at full throttle according to Society of Automotive Engineers J192 test procedures (revised 1985). Snowmobiles may be tested at any barometric pressure equal to or above 23.4 inches Hg uncorrected.
(iii)Snowmobiles meeting the requirements for air and sound emissions may be operated in the park for a period not exceeding six years from the date upon which first certified.
(iv)The Superintendent may prohibit entry into the park of any snowmobile that has been modified in a manner that may adversely affect air or sound emissions.
(v)These air and sound emissions requirements do not apply to snowmobiles being operated on the Cave Falls Road.
(7)*Where may I operate my snowmobile in Yellowstone National Park?*
(i)You must operate your snowmobile only upon designated oversnow routes established within the park in accordance with § 2.18(c) of this chapter. The following oversnow routes are so designated for snowmobile use:
(A)The Grand Loop Road from its junction with Upper Terrace Drive to Norris Junction.
(B)Norris Junction to Canyon Junction.
(C)The Grand Loop Road from Norris Junction to Madison Junction.
(D)The West Entrance Road from the park boundary at West Yellowstone to Madison Junction.
(E)The Grand Loop Road from Madison Junction to West Thumb.
(F)The South Entrance Road from the South Entrance to West Thumb.
(G)The Grand Loop Road from West Thumb to its junction with the East Entrance Road.
(H)The East Entrance Road from Fishing Bridge Junction to Lake Butte Overlook.
(I)The Grand Loop Road from its junction with the East Entrance Road to Canyon Junction.
(J)The South Canyon Rim Drive.
(K)Lake Butte Road.
(L)In the developed areas of Madison Junction, Old Faithful, Grant Village, West Thumb, Lake, Fishing Bridge, Canyon, Indian Creek, and Norris.
(M)Firehole Canyon Drive, between noon and 9 p.m. each day.
(N)North Canyon Rim Drive, between noon and 9 p.m. each day.
(O)Riverside Drive, between noon and 9 p.m. each day.
(P)The East Entrance Road from Fishing Bridge Junction to the East Entrance for the winter of 2007-2008 only.
(Q)Cave Falls Road.
(ii)The Superintendent may open or close these routes, or portions thereof, for snowmobile travel after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety, and other factors. Notice of such opening or closing will be provided by one or more of the methods listed in § 1.7(a) of this chapter.
(iii)This paragraph (l)(7) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(iv)Maps detailing the designated oversnow routes will be available from Park Headquarters.
(8)*What routes are designated for snowcoach use?*
(i)Authorized snowcoaches may be operated on the routes designated for snowmobile use in paragraphs (l)(7)(A) through (l)(7)(P) of this section. The restricted hours of snowmobile use described in paragraphs (1)(7)(M) through (1)(7)(O) do not apply to snowcoaches. Snowcoaches may also be operated on the following additional oversnow routes:
(A)Fountain Flat Road.
(B)Riverside Drive.
(C)That portion of the Grand Loop Road from Canyon Junction to Washburn Hot Springs overlook.
(D)East Entrance Road from the park entrance to a point approximately six miles west of the entrance.
(ii)The Superintendent may open or close these oversnow routes, or portions thereof, or designate new routes for snowcoach travel after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety, and other factors. Notice of such opening or closing shall be provided by one of more of the methods listed in § 1.7(a) of this chapter.
(iii)This paragraph (l)(8) also applies to non-administrative snowcoach use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(9)*Must I travel with a commercial guide while snowmobiling in Yellowstone and what other guiding requirements apply?*
(i)All recreational snowmobile operators must be accompanied by a commercial guide.
(ii)Snowmobile parties must travel in a group of no more than eight snowmobiles, including that of the guide, or, if two guides are present, no more than 17 snowmobiles, including those of the guides.
(iii)Guided parties must travel together within a maximum of one-third mile of the first snowmobile in the group.
(iv)The guiding requirements described in this paragraph (l)(9) do not apply to snowmobiles being operated on the Cave Falls Road.
(10)*Are there limits established for the numbers of snowmobiles and snowcoaches permitted to operate in the park each day?* The numbers of snowmobiles and snowcoaches allowed to operate in the park each day is limited to a certain number per entrance or location. The limits are listed in the following table: Table 1. to § 7.13.—Daily Snowmobile and Snowcoach Limits Park entrance/location* Commercially guided snowmobiles Commercially guided snowcoaches
(i)North Entrance ** 20 13
(ii)West Entrance 424 34
(iii)South Entrance 256 13
(iv)East Entrance 0 ***0
(v)Old Faithful ** 20 1 18
(vi)Cave Falls ****50 0 * For the winter of 2007-2008 only, the following allocations would be in effect: West Entrance, 400; South Entrance, 220; East Entrance, 40; North Entrance, 30; and Old Faithful, 30. ** These limits may be reallocated between these two aeras as necessary, so long as the total daily number of snowmobiles for the two areas does not exceed 40. *** A limited number of snowcoaches are allowed to operate between the East Entrance and Sylvan Pass in order to provide skier shuttles **** These snowmobiles operate on an approximately one-mile segment of road within the park and the use is incidental to other snowmobiling activities in the Targhee National Forest. These snowmobiles do not need to be guided. 1 Parkride.
(11)*When may I operate my snowmobile or snowcoach?* The Superintendent will determine operating hours and dates. Except for emergency situations, changes to operating hours may be made annually and the public will be notified of those changes through one or more of the methods listed in § 1.7(a) of this chapter.
(12)*What other conditions apply to the operation of oversnow vehicles?*
(i)The following are prohibited:
(A)Idling an oversnow vehicle for more than 5 minutes at any one time.
(B)Driving an oversnow vehicle while the driver's motor vehicle license or privilege is suspended or revoked.
(C)Allowing or permitting an unlicensed driver to operate an oversnow vehicle.
(D)Driving an oversnow vehicle in willful or wanton disregard for the safety of persons, property, or park resources or otherwise in a reckless manner.
(E)Operating an oversnow vehicle without a lighted white headlamp and red taillight.
(F)Operating an oversnow vehicle that does not have brakes in good working order.
(G)The towing of persons on skis, sleds or other sliding devices by oversnow vehicles, except in emergency situations.
(ii)The following are required:
(A)All oversnow vehicles that stop on designated routes must pull over to the far right and next to the snow berm. Pullouts must be used where available and accessible. Oversnow vehicles may not be stopped in a hazardous location or where the view might be obscured, or operated so slowly as to interfere with the normal flow of traffic.
(B)Oversnow vehicle drivers must possess a valid motor vehicle driver's license. A learner's permit does not satisfy this requirement. The license must be carried by the driver at all times.
(C)Equipment sleds towed by a snowmobile must be pulled behind the snowmobile and fastened to the snowmobile with a rigid hitching mechanism.
(D)Snowmobiles must be properly registered and display a valid registration from the United States or Canada.
(iii)The Superintendent may impose other terms and conditions as necessary to protect park resources, visitors, or employees. The public will be notified of any changes through one or more methods listed in § 1.7(a) of this chapter.
(iv)This paragraph (l)(12) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(13)*What conditions apply to alcohol use while operating an oversnow vehicle?* In addition to the regulations contained in 36 CFR 4.23, the following conditions apply:
(i)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is under 21 years of age and the alcohol concentration in the driver's blood or breath is 0.02 grams or more of alcohol per 100 milliliters of blood or 0.02 grams or more of alcohol per 210 liters of breath.
(ii)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is a snowmobile guide or a snowcoach driver and the alcohol concentration in the operator's blood or breath is 0.04 grams or more of alcohol per 100 milliliters of blood or 0.04 grams or more of alcohol per 210 liters of breath.
(iii)This paragraph also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(14)*Do other NPS regulations apply to the use of oversnow vehicles?*
(i)The use of oversnow vehicles in Yellowstone is subject to §§ 2.18(a) and (c), but not subject to §§ 2.18 (b), (d), (e), and 2.19(b) of this chapter.
(ii)This paragraph (l)(14) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(15)*Are there any forms of non-motorized oversnow transportation allowed in the park?*
(i)Non-motorized travel consisting of skiing, skating, snowshoeing, or walking is permitted unless otherwise restricted under this section or other provisions of 36 CFR Part 1.
(ii)The Superintendent may designate areas of the park as closed, reopen such areas, or establish terms and conditions for non-motorized travel within the park in order to protect visitors, employees, or park resources.
(iii)Dog sledding and ski-joring are prohibited.
(16)*May I operate a snowplane in Yellowstone National Park?* The operation of a snowplane in Yellowstone is prohibited.
(17)*Is violating any of the provisions of this section prohibited?* Violating any of the terms, conditions or requirements of paragraphs (l)(1) through (l)(16) of this section is prohibited. Each such occurrence of non-compliance with these regulations is a separate violation. 3. In § 7.21, revise paragraph
(a)to read as follows: § 7.21 John D. Rockefeller, Jr., Memorial Parkway. (a)(1) *What is the scope of this regulation?* The regulations contained in paragraphs (a)(2) through (a)(17) of this section are intended to apply to the use of recreational and commercial snowmobiles. Except where indicated, paragraphs (a)(2) through (a)(17) do not apply to non-administrative snowmobile or snowcoach use by NPS, contractor or concessioner employees who live or work in the interior of Yellowstone, or other non-recreational users authorized by the Superintendent.
(2)*What terms do I need to know?* All the terms in § 7.13(l)(2) of this part apply to this section. This paragraph also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(3)*May I operate a snowmobile in the Parkway?*
(i)You may operate a snowmobile in the Parkway in compliance with use limits, guiding requirements, operating hours and dates, equipment, and operating conditions established under this section. The Superintendent may establish additional operating conditions and will provide notice of those conditions in accordance with § 1.7(a) of this chapter or in the **Federal Register** .
(4)*May I operate a snowcoach in the Parkway?*
(i)Commercial snowcoaches may be operated in the Parkway under a concessions contract. Snowcoach operation is subject to the conditions stated in the concessions contract and all other conditions identified in this section.
(ii)All non-historic snowcoaches must initially meet NPS air emissions requirements. These requirements are the applicable EPA emission standards for the vehicle at the time it was manufactured. Beginning in the 2011-2012 season, all snowcoaches (historic and non-historic) must meet NPS air emission requirements, which are the functional equivalent of having EPA Tier I emissions control equipment incorporated into the engine and drive train for the vehicle class (size and weight) as a wheeled vehicle.
(iii)All critical emission-related exhaust components (as defined in 40 CFR 86.004-25(b)(3)(iii) through (v)) must be functioning properly. Malfunctioning critical emission-related components must be replaced with the original equipment manufacturer
(OEM)component, where possible. Where OEM parts are not available, after-market parts may be used if they are certified not to worsen emission and sound characteristics.
(iv)Modifying or disabling a snowcoach's original pollution control equipment is prohibited except for maintenance purposes.
(v)Beginning in the 2011-2012 season, all snowcoaches must meet a sound emissions requirement of no greater than 73dBA.
(vi)Individual snowcoaches may be subject to periodic inspections to determine compliance with the requirements of paragraphs (a)(4)(ii) through (a)(4)(v) of this section.
(5)*Must I operate a certain model of snowmobile?* Only commercially available snowmobiles that meet NPS air and sound requirements as set forth in this section may be operated in the Parkway. The Superintendent will approve snowmobile makes, models and year of manufacture that meet those restrictions. Any snowmobile model not approved by the superintendent may not be operated in the Parkway.
(6)*How will the Superintendent approve snowmobile makes, models, and year of manufacture for use in the Parkway?*
(i)Beginning with the 2005 model year, all snowmobiles must be certified under 40 CFR part 1051, to a Family Emission Limit no greater than 15 g/kW-hr for hydrocarbons and to a Family Emission Limit no greater than 120 g/kW-hr for carbon monoxide.
(A)2004 model year snowmobiles may use measured air emissions levels (official emission results with no deterioration factors applied) to comply with the air emission limits specified in paragraph (a)(6)(i) of this section.
(B)Snowmobiles manufactured before the 2004 model year may be operated only if they have shown to have air emissions no greater than the restrictions identified in paragraph (a)(6)(i) of this section.
(C)The snowmobile test procedures specified by EPA (40 CFR parts 1051 and 1065) must be used to measure air emissions from model year 2004 and later snowmobiles. Equivalent procedures may be used for earlier model years.
(ii)For sound emissions, snowmobiles must operate at or below 73dB(A) as measured at full throttle according to Society of Automotive Engineers J192 test procedures (revised 1985). Snowmobiles may be tested at any barometric pressure equal to or above 23.4 inches Hg uncorrected.
(iii)Snowmobiles meeting the requirements for air and sound emissions may be operated in the Parkway for a period not exceeding 6 years from the date upon which first certified.
(iv)These air and sound emissions restrictions do not apply to snowmobiles originating in the Targhee National Forest and traveling on the Grassy Lake Road to Flagg Ranch. However, these snowmobiles may not travel further into the Parkway than Flagg Ranch, unless they meet the air and sound emissions and all other requirements of this section.
(v)The Superintendent may prohibit entry into the Parkway of any snowmobile that has been modified in a manner that may adversely affect air or sound emissions.
(7)*Where may I operate my snowmobile in the Parkway?*
(i)You must operate your snowmobile only upon designated oversnow routes established within the Parkway in accordance with § 2.18(c) of this chapter. The following oversnow routes are so designated for snowmobile use:
(A)The Continental Divide Snowmobile Trail
(CDST)along U.S. Highway 89/191/287 from the southern boundary of the Parkway north to the Snake River Bridge.
(B)Along U.S. Highway 89/191/287 from the Snake River Bridge to the northern boundary of the Parkway.
(C)Grassy Lake Road from Flagg Ranch to the western boundary of the Parkway.
(D)Flagg Ranch developed area.
(ii)The Superintendent may open or close these routes, or portions thereof, for snowmobile travel after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety and other factors. The Superintendent will provide notice of such opening or closing by one or more of the methods listed in § 1.7(a) of this chapter.
(iii)This paragraph also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(iv)Maps detailing the designated oversnow routes will be available from Park Headquarters.
(8)*What routes are designated for snowcoach use?*
(i)Authorized snowcoaches may only be operated on the route designated for snowmobile use in paragraph (a)(7)(i)(B) of this section. No other routes are open to snowcoach use.
(ii)The Superintendent may open or close this oversnow route, or portions thereof, or designate new routes for snowcoach travel after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety, and other factors. The Superintendent will provide notice of such opening or closing by one or more of the methods listed in § 1.7(a) of this chapter.
(iii)This paragraph (a)(8) also applies to non-administrative snowcoach use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(9)*Must I travel with a commercial guide while snowmobiling in the Parkway, and what other guiding requirements apply?* All recreational snowmobile operators using the oversnow route along U.S. Highway 89/287 from Flagg Ranch to the northern boundary of the Parkway must be accompanied by a commercial guide. A guide is not required in other portions of the Parkway.
(i)Guided snowmobile parties must travel in a group of no more than eight snowmobiles, including that of the guide, or, if two guides are present, no more than 17 snowmobiles, including those of the guides.
(ii)Guided snowmobile parties must travel together within a maximum of one-third mile of the first snowmobile in the group.
(10)*Are there limits established for the numbers of snowmobiles and snowcoaches permitted to operate in the Parkway each day?*
(i)The numbers of snowmobiles and snowcoaches allowed to operate in the Parkway each day is limited to a certain number per road segment. The limits are listed in the following table: Table 1 to § 7.21.—Daily Snowmobile and Snowcoach Entry Limits Park entrance/road segment Snowmobiles Commercial snowcoaches
(ii)CDST* 50 0
(iii)Grassy Lake Road (Flagg-Ashton Road) 50 0
(iv)Flagg Ranch to Yellowstone South Entrance ** 256 13 *The Continental Divide Snowmobile Trail lies within both GTNP and the Parkway. The 50 daily snowmobile use limit applies to total use on this trail in both parks. **Commercially guided; during the winter of 2007-2008 only, the daily entrance limit is 220.
(11)*When may I operate my snowmobile or snowcoach?* The Superintendent will determine operating hours and dates. Except for emergency situations, changes to operating hours may be made annually and the public will be notified of those changes through one or more of the methods listed in § 1.7(a) of this chapter.
(12)*What other conditions apply to the operation of oversnow vehicles?*
(i)The following are prohibited:
(A)Idling an oversnow vehicle more than 5 minutes at any one time.
(B)Driving an oversnow vehicle while the operator's motor vehicle license or privilege is suspended or revoked.
(C)Allowing or permitting an unlicensed driver to operate an oversnow vehicle.
(D)Driving an oversnow vehicle in willful or wanton disregard for the safety of persons, property, or parkway resources or otherwise in a reckless manner.
(E)Operating an oversnow vehicle without a lighted white headlamp and red taillight.
(F)Operating an oversnow vehicle that does not have brakes in good working order.
(G)Towing persons on skis, sleds or other sliding devices by oversnow vehicles, except in emergency situations.
(ii)The following are required:
(A)All oversnow vehicles that stop on designated routes must pull over to the far right and next to the snow berm. Pullouts must be used where available and accessible. Oversnow vehicles may not be stopped in a hazardous location or where the view might be obscured, or operated so slowly as to interfere with the normal flow of traffic.
(B)Oversnow vehicle drivers must possess a valid motor vehicle operator's license. The license must be carried by the driver at all times. A learner's permit does not satisfy this requirement.
(C)Equipment sleds towed by a snowmobile must be pulled behind the snowmobile and fastened to the snowmobile with a rigid hitching mechanism.
(D)Snowmobiles must be properly registered and display a valid registration from the United States or Canada.
(iii)The Superintendent may impose other terms and conditions as necessary to protect parkway resources, visitors, or employees. The Superintendent will notify the public of any changes through one or more methods listed in § 1.7(a) of this chapter.
(iv)This paragraph (a)(12) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(13)*What conditions apply to alcohol use while operating an oversnow vehicle?* In addition to the regulations in 36 CFR 4.23, the following conditions apply:
(i)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is under 21 years of age and the alcohol concentration in the driver's blood or breath is 0.02 grams or more of alcohol per 100 milliliters of blood or 0.02 grams or more of alcohol per 210 liters of breath.
(ii)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is a snowmobile guide or a snowcoach driver and the alcohol concentration in the operator's blood or breath is 0.04 grams or more of alcohol per 100 milliliters of blood or 0.04 grams or more of alcohol per 210 liters of breath.
(iii)This paragraph (a)(13) also applies to non-administrative snowmobiles use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(14)*Do other NPS regulations apply to the use of oversnow vehicles?*
(i)The use of oversnow vehicles in the Parkway is subject to §§ 2.18(a), (b), and (c), but not to §§ 2.18(d), (e), and 2.19(b) of this chapter.
(ii)This paragraph (a)(14) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(15)*Are there any forms of non-motorized oversnow transportation allowed in the Parkway?*
(i)Non-motorized travel consisting of skiing, skating, snowshoeing, or walking is permitted unless otherwise restricted under this section or other provisions of 36 CFR part 1.
(ii)The Superintendent may designate areas of the Parkway as closed, reopen such areas, or establish terms and conditions for non-motorized travel within the Parkway in order to protect visitors, employees, or park resources.
(16)*May I operate a snowplane in the Parkway?* The operation of a snowplane in the Parkway is prohibited.
(17)*Is violating any of the provisions of this section prohibited?* Violating any of the terms, conditions, or requirements of paragraphs (a)(1) through (a)(16) of this section is prohibited. Each occurrence of non-compliance with these regulations is a separate violation. 4. In § 7.22, revise paragraph
(g)to read as follows: § 7.22 Grand Teton National Park. (g)(1) *What is the scope of this regulation?* The regulations contained in paragraphs (g)(2) through (g)(20) of this section are intended to apply to the use of recreational and commercial snowmobiles. Except where indicated, paragraphs (g)(2) through (g)(20) do not apply to non-administrative snowmobile or snowcoach use by NPS, contractor or concessioner employees who live or work in the interior of Yellowstone, or other non-recreational users authorized by the Superintendent.
(2)*What terms do I need to know?* All the terms in § 7.13(l)(1) of this part apply to this section. This paragraph
(g)also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(3)*May I operate a snowmobile in Grand Teton National Park* ?
(i)You may operate a snowmobile in Grand Teton National Park in compliance with use limits, operating hours and dates, equipment, and operating conditions established under this section. The Superintendent may establish additional operating conditions and provide notice of those conditions in accordance with § 1.7(a) of this chapter or in the **Federal Register** .
(4)*May I operate a snowcoach in Grand Teton National Park* ? It is prohibited to operate a snowcoach in Grand Teton National Park except as authorized by the Superintendent.
(5)*Must I operate a certain model of snowmobile in the park* ? Only commercially available snowmobiles that meet NPS air and sound emissions requirements as set forth in this section may be operated in the park. The Superintendent will approve snowmobile makes, models, and year of manufacture that meet those requirements. Any snowmobile model not approved by the Superintendent may not be operated in the park.
(6)*How will the Superintendent approve snowmobile makes, models, and year of manufacture for use in Grand Teton National Park* ?
(i)Beginning with the 2005 model year, all snowmobiles must be certified under 40 CFR part 1051, to a Family Emission Limit no greater than 15 g/kW-hr for hydrocarbons and to a Family Emission Limit no greater than 120 g/kW-hr for carbon monoxide.
(A)2004 model year snowmobiles may use measured air emissions levels (official emission results with no deterioration factors applied) to comply with the air emission limits specified in paragraph (g)(6)(i) of this section.
(B)Snowmobiles manufactured before the 2004 model year may be operated only if they have shown to have air emissions no greater than the requirements identified in paragraph (g)(6)(i) of this section.
(C)The snowmobile test procedures specified by EPA (40 CFR Parts 1051 and 1065) must be used to measure air emissions from model year 2004 and later snowmobiles. Equivalent procedures may be used for earlier model years.
(ii)For sound emissions snowmobiles must operate at or below 73dB(A) as measured at full throttle according to Society of Automotive Engineers J192 test procedures (revised 1985). Snowmobiles may be tested at any barometric pressure equal to or above 23.4 inches Hg uncorrected.
(iii)Unless authorized by the superintendent for a longer period, snowmobiles meeting the requirements for air and sound emissions may be operated in the park for a period not exceeding six years from the date upon which first certified.
(iv)These air and sound emissions requirements do not apply to snowmobiles while in use to access lands authorized by paragraphs (g)(16) and (g)(18) of this section.
(v)The Superintendent may prohibit entry into the park of any snowmobile that has been modified in a manner that may adversely affect air or sound emissions.
(7)*Where may I operate my snowmobile in the park* ?
(i)You must operate your snowmobile only upon designated oversnow routes established within the park in accordance with § 2.18(c) of this chapter. The following oversnow routes are so designated for snowmobile use:
(A)The frozen water surface of Jackson Lake for the purposes of ice fishing only. Those persons accessing Jackson Lake for ice fishing must possess a valid Wyoming fishing license and the proper fishing gear. Snowmobiles may only be used to travel to and from fishing locations on the lake.
(B)The Continental Divide Snowmobile Trail
(CDST)along U.S. 26/287 from Moran Junction to the eastern park boundary and along U.S. 89/191/287 from Moran Junction to the north park boundary.
(ii)The Superintendent may open or close these routes, or portions thereof, for snowmobile travel, and may establish separate zones for motorized and non-motorized use on Jackson Lake, after taking into consideration the location of wintering wildlife, appropriate snow cover, public safety and other factors. The Superintendent will provide notice of such opening or closing by one or more of the methods listed in § 1.7(a) of this chapter.
(iii)This paragraph (g)(7) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(iv)Maps detailing the designated oversnow routes will be available from Park Headquarters.
(8)*Must I travel with a commercial guide while snowmobiling in Grand Teton National Park* ? You are not required to use a guide while snowmobiling in Grand Teton National Park.
(9)*Are there limits established for the numbers of snowmobiles permitted to operate in the park each day* ? The numbers of snowmobiles allowed to operate in the park each day are limited to a certain number per road segment or location. The snowmobile limits are listed in the following table: Table 1 to § 7.22.—Daily Snowmobile Limits Road segment/location Total number of snowmobiles
(i)GTNP and the Parkway—Total Use on CDST* 50
(ii)Jackson Lake 40 *The Continental Divide Snowmobile Trail lies within both GTNP and the Parkway. The 50 daily snowmobile use limit applies to total use on this route in both parks; however the limit does not apply to the portion described in paragraph (16)(iii) of this section.
(10)*When may I operate my snowmobile* ? The Superintendent will determine operating hours and dates. Except for emergency situations, changes to operating hours or dates may be made annually and the public will be notified of those changes through one or more of the methods listed in § 1.7(a) of this chapter.
(11)*What other conditions apply to the operation of oversnow vehicles* ?
(i)The following are prohibited:
(A)Idling an oversnow vehicle more than 5 minutes at any one time.
(B)Driving an oversnow vehicle while the operator's motor vehicle license or privilege is suspended or revoked.
(C)Allowing or permitting an unlicensed driver to operate an oversnow vehicle.
(D)Driving an oversnow vehicle in willful or wanton disregard for the safety of persons, property, or park resources or otherwise in a reckless manner.
(E)Operating an oversnow vehicle without a lighted white headlamp and red taillight.
(F)Operating an oversnow vehicle that does not have brakes in good working order.
(G)The towing of persons on skis, sleds or other sliding devices by oversnow vehicles.
(ii)The following are required:
(A)All oversnow vehicles that stop on designated routes must pull over to the far right and next to the snow berm. Pullouts must be used where available and accessible. Oversnow vehicles may not be stopped in a hazardous location or where the view might be obscured, or operated so slowly as to interfere with the normal flow of traffic.
(B)Oversnow vehicle drivers must possess a valid motor vehicle operator's license. The license must be carried by the driver at all times. A learner's permit does not satisfy this requirement.
(C)Equipment sleds towed by a snowmobile must be pulled behind the snowmobile and fastened to the snowmobile with a rigid hitching mechanism.
(D)Snowmobiles must be properly registered and display a valid registration from the United States or Canada.
(iii)The Superintendent may impose other terms and conditions as necessary to protect park resources, visitors, or employees. The Superintendent will notify the public of any changes through one or more methods listed in § 1.7(a) of this chapter.
(iv)This paragraph also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(12)*What conditions apply to alcohol use while operating an oversnow vehicle* ? In addition to the regulations in 36 CFR 4.23, the following conditions apply:
(i)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is under 21 years of age and the alcohol concentration in the driver's blood or breath is 0.02 grams or more of alcohol per 100 milliliters or blood or 0.02 grams or more of alcohol per 210 liters of breath.
(ii)Operating or being in actual physical control of an oversnow vehicle is prohibited when the driver is a snowmobile guide or a snowcoach operator and the alcohol concentration in the driver's blood or breath is 0.04 grams or more of alcohol per 100 milliliters of blood or 0.04 grams or more of alcohol per 210 liters of breath.
(iii)This paragraph (g)(12) also applies to non-administrative snowmobile use by NPS, contractor or concessioner employees, or other non-recreational users authorized by the Superintendent.
(13)*Do other NPS regulations apply to the use of oversnow vehicles* ? The use of oversnow vehicles in Grand Teton is not to §§ 2.18(d) and
(e)and 2.19(b) of this chapter.
(14)*Are there any forms of non-motorized oversnow transportation allowed in the park* ?
(i)Non-motorized travel consisting of skiing, skating, snowshoeing, or walking is permitted unless otherwise restricted under this section or other provisions of 36 CFR part 1.
(ii)The Superintendent may designate areas of the park as closed, reopen such areas, or establish terms and conditions for non-motorized travel within the park in order to protect visitors, employees, or park resources.
(iii)Dog sledding and ski-joring are prohibited.
(15)*May I operate a snowplane in the park* ? The operation of a snowplane in Grand Teton National Park is prohibited.
(16)*May I continue to access public lands via snowmobile through the park* ? Reasonable and direct access, via snowmobile, to adjacent public lands will continue to be permitted on designated routes through the park. Requirements established in this section related to air and sound emissions, snowmobile operator age, guiding, and licensing do not apply on these oversnow routes. Only the following routes are designated for access via snowmobile to public lands:
(i)From the parking area at Shadow Mountain directly along the unplowed portion of the road to the east park boundary.
(ii)Along the unplowed portion of the Ditch Creek Road directly to the east park boundary.
(iii)The Continental Divide Snowmobile Trail, from the east park boundary to Moran Junction.
(iv)The superintendent may designate additional routes if necessary to provide access to other adjacent public lands.
(17)*For what purpose may I use the routes designated in paragraph (g)(16) of this section* ? You may only use those routes designated in paragraph (g)(16) of this section to gain direct access to public lands adjacent to the park boundary.
(18)*May I continue to access private property within or adjacent to the park via snowmobile* ? Until the United States takes full possession of an inholding in the park, the Superintendent may establish reasonable and direct snowmobile access routes to the inholding or to private property adjacent to park boundaries for which other routes or means of access are not reasonably available. Requirements established in this section related to air and sound emissions, snowmobile operator age, licensing, and guiding do not apply on these oversnow routes. The following routes are designated for access to properties within or adjacent to the park:
(i)The unplowed portion of Antelope Flats Road off U.S. 26/89/191 to private lands in the Craighead Subdivision.
(ii)The unplowed portion of the Teton Park Road to the piece of land commonly referred to as the “Clark Property.”
(iii)From the Moose-Wilson Road to the land commonly referred to as the “Barker Property”.
(iv)From the Moose-Wilson Road to those two pieces of land commonly referred to as the “Halpin Properties.”
(v)From the south end of the plowed sections of the Moose-Wilson Road to that piece of land commonly referred to as the “JY Ranch.”
(vi)From Highway 26/89/191 to those lands commonly referred to as the “Meadows”, the “Circle EW Ranch”, the “Moulton Property”, the “Levinson Property” and the “West Property.”
(vii)From Cunningham Cabin pullout on U.S. 26/89/191 near Triangle X to the piece of land commonly referred to as the “Lost Creek Ranch.”
(viii)The superintendent may designate additional routes if necessary to provide reasonable access to inholdings or adjacent private property.
(ix)Maps detailing designated routes will be available from Park Headquarters.
(19)*For what purpose may I use the routes designated in paragraph (g)(18) of this section* ? Those routes designated in paragraph (g)(18) of this section are only to access private property within or directly adjacent to the park boundary. Use of these roads via snowmobile is authorized only for the landowners and their representatives or guests. Use of these roads by anyone else or for any other purpose is prohibited.
(20)*Is violating any of the provisions of this section prohibited* ? Violating any of the terms, conditions or requirements of paragraphs (g)(1) through (g)(19) of this section is prohibited. Each occurrence of non-compliance with these regulations is a separate violation. Dated: April 10, 2007. David M. Verhey, Acting Assistant Secretary, Fish and Wildlife and Parks. [FR Doc. E7-9351 Filed 5-15-07; 8:45 am] BILLING CODE 4312-CT-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 20, and 43 [WC Docket No. 07-38; FCC 07-17] Development of Nationwide Broadband Data To Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans, Improvement of Wireless Broadband Subscribership Data, and Development of Data on Interconnected Voice Over Internet Protocol
(VoIP)Subscribership AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission requests comment about how it can continue to acquire the information it needs to develop and maintain appropriate broadband policies. In particular, it seeks comment on: How best to ensure that it receives sufficient information about the availability and deployment of broadband services nationwide, particularly in rural and other hard-to-serve areas; how it can improve the data about wireless broadband Internet access services that it currently collects on FCC Form 477; and whether it should modify the speed-tier information it currently collects. It also requests comment on how it can best collect information about subscribership to interconnected voice over Internet Protocol service, or VoIP. DATES: Comments must be filed on or before June 15, 2007, and reply comments must be filed on or before July 16, 2007. ADDRESSES: You may submit comments, identified by WC Docket No. 07-38, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Federal Communications Commission's Web site: *http://www.fcc.gov/cgb/ecfs/* . Follow the instructions for submitting comments. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *fcc504@fcc.gov* , 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: Alan Feldman or Ellen Burton, Wireline Competition Bureau, Industry Analysis and Technology Division, 202-418-0940. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Notice of Proposed Rulemaking (NPRM)* in WC Docket No. 07-38, released April 16, 2007. The complete text of this document, including attachments, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. It is available on the Commission's Web site: *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-17A1.pdf* , *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-17A1.doc* , and *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-17A1.txt* . The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, via Web site: *http://www.bcpiweb.com* or phone: 800-378-3160. When ordering documents from BCPI please provide the appropriate FCC document number (in this case: FCC 07-17). Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before June 15, 2007 and reply comments on or before July 16, 2007. 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 (in this case: 07-38). 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 may 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). Paper filings must be addressed to: Marlene H. Dortch, 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. • 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). Comments filed in WC Docket No. 07-38 will be available for public inspection and copying during business hours at the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. They will also be available via the Commission's ECFS: *http://www.fcc.gov/cgb/ecfs/* . Initial Paperwork Reduction Act of 1995 Analysis This document does not contain proposed 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). Summary of the Notice of Proposed Rulemaking I. Introduction 1. In this *NPRM* , the Commission seeks comment about how it can continue to acquire the information it needs to develop and maintain appropriate broadband policies. First, the *NPRM* seeks comment about how the Commission can best ensure that it receives sufficient information about the availability and deployment of broadband services nationwide, particularly in rural and other hard-to-serve areas, including tribal lands. Second, it seeks comment about how the Commission can improve the data about wireless broadband Internet access services that it currently collects on FCC Form 477. Third, it asks whether the Commission should modify the speed-tier information it currently collects. Fourth and finally, it seeks comment about how the Commission can best collect information about subscribership to interconnected voice over Internet Protocol (interconnected VoIP) service. 2. The *NPRM* specifically solicits comment about the balance between the burden of additional data collection and the benefits such information provides. II. Background 3. To date, the Commission has based its analysis of nationwide broadband deployment on three sources of information: data submitted on FCC Form 477; public comment submitted in response to inquiries undertaken pursuant to Section 706(b) of the Telecommunications Act of 1996, Public Law 104-104; and ancillary information gathered by Commission staff from publicly available sources. The Commission adopted the Form 477 program in 2000, after concluding that the collected information would materially improve its ability to develop, evaluate, and revise policy regarding broadband deployment and local telephone service competition, and provide valuable benchmarks for Congress, the Commission, other policy makers, and consumers. Pursuant to the broadband portions of the Form 477, facilities-based providers of broadband connections list, by state, those Zip Codes in which they have at least one broadband subscriber. Reporting entities include incumbent and competitive local exchange carriers (LECs), cable companies, operators of terrestrial and satellite wireless facilities, municipalities, and any other facilities-based provider of broadband connections to end users. 4. The Commission significantly improved the Form 477 in 2004 by extending the data collection program for five years beyond its original sunset; eliminating reporting thresholds which effectively exempted small entities from reporting requirements; requiring more granular reporting of broadband data, *e.g.* , about services offered at speeds in excess of 200 kbps, about symmetric xDSL connections as distinguished from T-1/DS1 and other “traditional wireline” connections, and about power line connections; requiring technology-specific lists of Zip Codes; requiring cable companies to report, by state, the extent to which cable modem service is available to the households to whom they can provide cable TV service, and requiring incumbent LECs to report comparable information about their DSL connections; and adopting various other modifications. The Commission acknowledged that mobile broadband services differ in particular respects from fixed broadband services—noting that the end user of a mobile wireless broadband service must be within a mobile wireless broadband service coverage area to make use of the service, but may move around within and among coverage areas—and made provisions for such differences in the data collection. The Commission rejected suggestions to add to the Form 477 questions specifically about VoIP service, noting that only a very small portion of local telephone service was being provided by entities exclusively utilizing VoIP and that LECs may already include information about VoIP subscribers in their Form 477 filings. 5. Based in large part on analysis of Form 477 data, the Commission's various reports have demonstrated significant and steady progress in broadband deployment and availability nationwide. Reflecting such robust deployment statistics, the Commission's Section 706 reports have consistently concluded that broadband is being deployed nationwide in a reasonable and timely fashion. 6. A report issued by the United States Government Accountability Office (GAO), *Broadband Deployment Is Extensive throughout the United States, but It Is Difficult to Assess the Extent of Deployment Gaps in Rural Areas* (May 2006), reviews the strengths and weaknesses of available data about broadband availability, including FCC Form 477 data. The report concludes that, while broadband deployment is extensive nationwide, it remains very difficult to assess the extent of deployment gaps in rural areas. It recommends that, in order to develop a better understanding of the dynamics of broadband deployment and availability in rural areas particularly, the Commission should “develop information regarding the degree of cost and burden that would be associated with various options for improving the information about broadband deployment.” 7. Mobile wireless services have developed rapidly since the Commission revised the Form 477 program in 2004, as nationwide mobile telephone operators Verizon Wireless, Sprint Nextel, and Cingular, and some regional wireless carriers such as Alltel, have expanded or initiated their deployment of Third Generation (or “3G”) wireless networks based on the EV-DO and WCDMA/HSDPA standards. 8. Interconnected VoIP subscribership in the United States also appears to have grown rapidly. In a separate proceeding, the Commission has explained that the growth of interconnected VoIP services is one of the changing market conditions that are placing under significant strain the existing system to preserve and advance universal service, which is a fundamental goal of communications policy in the United States. III. Discussion 9. Notwithstanding the robust statistics and the more granular broadband data that have been reported on FCC Form 477 beginning September 1, 2005, the Commission continues to consider the need to improve its data collection, particularly regarding data reflecting broadband deployment and availability in rural and other hard-to-serve areas, and also regarding subscribership to new broadband-enabled services such as interconnected VoIP service. 10. *Broadband Deployment Data* . In rural and other hard-to-serve areas, the Commission questions whether submission of simple Zip Code information such as that currently required by the Form 477 is sufficient to provide a truly accurate picture of the state of broadband deployment. Wireline broadband service providers filing Form 477 are currently required to list those Zip Codes where they have at least one broadband subscriber. In sparsely populated rural Zip Codes this could mean that a given provider has just one broadband subscriber who is located in a small town or at some other location convenient to telephone or cable facilities. Broadband “availability” could be non-existent for that carrier's other customers located a few blocks or many miles away from that single customer. Ideally, information would be available about the choices that a customer faces on a house-by-house and business-by-business basis. The *NPRM* discusses several options that might move the Commission closer to that ideal. 11. *Wireless Broadband Data* . The Commission believes it should modify the Form 477 reporting instructions for wireless broadband providers in certain respects and seeks comment on how best to do so. 12. First, the Commission believes that it should modify the reporting instructions for terrestrial mobile wireless providers to solicit data that will enable the Commission to distinguish among the numbers of subscribers to month-to-month or longer term broadband Internet access packages and casual users. In the current Form 477, information about numbers and types of broadband connections is collected in Part I.A, where filers are directed to “[c]omplete Part I.A if you provide one or more lines or wireless channels in the state that connect end users to the Internet [at broadband speed].” However, the detailed reporting instructions for terrestrial mobile wireless providers are to “[r]eport the number of subscribers to broadband services provided over terrestrial mobile wireless facilities * * * .” More specifically, the instructions are to “report the number of end users whose mobile device, such as wireless modem laptop cards, smartphones, or handsets, are capable of sending or receiving data at speeds in excess of 200 kbps * * *.” The Commission finds that it is currently unable to determine from the reported data the number of subscribers who make regular use of a broadband Internet access service as part of their mobile service package. Moreover, the Commission believes the current instructions make it likely that more and more mobile voice service subscribers will be reported as mobile broadband subscribers merely by virtue of purchasing a broadband-capable handset, rather than a specific Internet plan. 13. The Commission has observed that many mobile data services are marketed primarily as an add-on to mobile voice service. These services include mobile data services that enable subscribers to send text and multimedia messages, download ringtones and games, and access other content on handsets, as well as mobile data services that enable subscribers to browse web sites customized for handsets. The Commission has discussed how mobile service subscribers who wish to browse web sites customized for handsets generally may choose a month-to-month plan that includes such browsing, and that some carriers also offer a casual usage plan. And the Commission has observed that, aside from handset-based applications, mobile wireless carriers offer month-to-month Internet access packages for data users who access the Internet through laptop computers or certain Personal Digital Assistants (“PDAs”), including mobile wireless Internet access packages for wireless broadband networks. 14. Based on these observations about various mobile wireless data services, the *NPRM* seeks comment on whether the Commission should revise the Form 477 instructions to require mobile wireless providers to report, separately, the number of month-to-month (or longer term) subscriptions to broadband Internet access service designed for wireless devices that have their own browsers (“full Internet browsing” for purposes of this *NPRM* ), such as laptop computers and PDAs. The *NPRM* also asks whether the Commission should require mobile wireless providers to report, separately, the number of month-to-month (or longer term) subscriptions for broadband-speed browsing of customized-for-mobile web sites (“mobile web browsing” for purposes of this *NPRM* ). Further, the *NPRM* seeks comment on whether the Commission should require mobile wireless providers to report, separately, the number of unique mobile voice service subscribers who are not month-to-month (or longer term) subscribers to an Internet access service, as discussed above, but who nevertheless made any news, music, video, or other entertainment downloads to the subscriber's handset at broadband speed during the month preceding the Form 477 reporting date ( *i.e.* , during June, or during December). The *NPRM* seeks specific comment on whether the above-described delineations among types and levels of service are appropriate in light of market and technological factors. Commenters should explain how an alternative approach would ensure that mobile voice service subscribers will not be reported as mobile broadband subscribers merely by virtue of purchasing a broadband-capable handset, rather than a specific Internet plan. 15. The *NPRM* also seeks comment about whether the Commission should modify any other parts of the Form 477 instructions for mobile wireless broadband providers. The current instructions direct these providers to include in their subscriber counts those end users “whose billing addresses are within the areas of terrestrial mobile wireless broadband availability * * *.” The idea behind this instruction is that end users should not be reported as broadband subscribers if they are not generally present in an area where mobile broadband service is available. While this may become less likely as wireless broadband networks are more extensively deployed, it appears that some voice service subscribers are reported as mobile broadband subscribers only because they have broadband-capable handsets and that this may include persons who do not reside (or work) where mobile broadband is available. However, the billing address for some business end users may not indicate where the broadband Internet access service is primarily used, *i.e.* , if a single corporate address is the billing address for subscriptions used by employees working in various areas. Therefore, the *NPRM* invites comments on how this particular instruction might be improved, while keeping in mind that the Commission does not want to count, as broadband subscribers, mobile voice service subscribers who have purchased a broadband-capable handset but not an Internet plan. 16. The *NPRM* also seeks comment about how the Commission could improve the Form 477 instructions for reporting the percentage of mobile wireless broadband subscribers who are residential end users. Experience with the current Form 477 suggests that mobile wireless broadband providers are not using comparable methodologies to estimate the residential percentage. In the latest aggregated Form 477 data, about 11 percent of mobile wireless broadband subscribers are reported as residential. This percentage may be low, since broadband-capable handsets are widely available and appear to be an increasingly popular consumer product. Therefore, the *NPRM* seeks comment on whether the Commission should modify the instructions for mobile wireless broadband providers to require that they report, as residential subscribers, all subscriptions that are not billed to a corporate customer account, to a non-corporate business customer account, or to a government or institutional account. Would this modification result in more accurate estimates of residential end users than the Commission currently receives? Are there different modifications to the current reporting instructions that would yield even better estimates? Or, instead, should the Commission explicitly require providers to undertake special studies for this purpose? 17. Regarding wireless broadband Internet access services more generally, the *NPRM* invites comment in three areas. First, it asks whether, and how, the Commission could modify our Form 477 instructions to collect useful information about households and businesses who subscribe to commercially deployed community Wi-Fi broadband Internet access service, for primary use at the subscriber's residence or business location. Second, it specifically invites comment on whether the Commission should add a terrestrial portable (or nomadic) wireless broadband technology category to the Form 477. Adding this technology category could provide the Commission with an improved ability to monitor the development of terrestrial wireless broadband services, including services over WiMax infrastructures, which need not be used on a fixed basis but cannot be used while traveling at high speeds with signal handoff. Third, it seeks comment on whether the Commission needs to clarify how the Form 477 instructions apply to satellite broadband capabilities provided by carriers to enterprise customers who operate their own corporate networks. 18. *Speed Tiers* . The *NPRM* seeks comment on whether the Commission should refine the speed-tier information currently collected on Form 477 by splitting into two tiers the speed tier defined by information transfer rates greater than 200 kbps and less than 2.5 mbps. Specifically, would be appropriate to define the lower of the resulting two tiers by information transfer rates greater than 200 kbps and less than 1.0 mbps? 19. The *NPRM* asks whether the Commission should develop a higher or more varied measurement of broadband speed in the Form 477 program. Do the current speed-tier definitions enable the Commission to understand the evolving dynamics of the broadband marketplace as providers offer faster and faster connections? Would the Commission's understanding of the rapidly evolving broadband marketplace be enhanced if it raised the current minimum threshold for reporting the speed-tier information specified on Form 477 ( *i.e.* , greater than 200 kbps in both directions)? More generally, should the Commission's definition of broadband allow different upstream and downstream speeds? The *NPRM* also asks if the Commission should raise the current minimum threshold for reporting *any* connections on the Form 477 ( *i.e.* , greater than 200 kbps in at least one direction, which is generally “downstream” to the end user)? Do services with downstream connection speeds only slightly greater than 200 kbps continue to be an important stepping stone for broadband adoption by households, including households in rural and other hard-to-serve areas? 20. The *NPRM* seeks comment on whether and how the Commission could establish a system whereby the Form 477 speed tiers would be automatically adjusted upwards over time to reflect technological advances. What information would the Commission need to design a meaningful system? Would the bandwidth requirements of particular services and applications provide useful guidance? The *NPRM* specifically invites comment on the extent to which there is general industry agreement on the bandwidth requirements of such regularly cited applications as distance learning, telemedicine, downloading of movies, latency-sensitive video services, and high definition TV. How should the Commission account for differences in the bandwidth requirements of particular applications across different delivery platforms ( *e.g.* , high definition TV requires about half of a 6 MHz channel on a cable system using 264 QAM modulation and MPEG-2 compression encoding, but about half that bandwidth when MPEG-4 encoding is used)? 21. The *NPRM* asks whether broadband providers are placing their reported broadband connections into speed tiers in a consistent manner. It seeks comment on industry practices for matching advertised “up to” speeds with probable customer experience. The Commission also wishes to refresh the record on whether the Commission effectively could modify the Form 477 reporting instructions to require filers to categorize broadband connections by the download and upload speeds experienced by actual customers rather than the theoretical maximum that a given network can support or the particular service configuration allow. Are there existing, administratively workable industry standards or practices for measuring typical or actual speeds delivered to end users? 22. *Interconnected VoIP Subscribership Data* . At present, only some LECs include interconnected VoIP subscribers in the local telephone service information they report on Form 477. Interconnected VoIP service providers who are not LECs are not required to file Form 477. Therefore, the *NPRM* invites comment on how the Commission could modify the Form 477 to collect useful information about the number of interconnected VoIP service subscribers in service in the least burdensome manner. It specifically invites comment on whether collecting the following state-level information, from all retail and wholesale providers of interconnected VoIP service, would yield sufficient information for us to track deployment and adoption of VoIP service across the nation. The *NPRM* proposes requiring all retailers of interconnected VoIP service to report:
(1)The number of interconnected VoIP subscribers in service for whom the filer is the service retailer,
(2)the percentage of retail interconnected VoIP subscribers who are residential, as opposed to business, end users, and
(3)the percentage of retail interconnected VoIP subscribers who receive that service over a broadband connection provided by the filer (or by the filer's affiliate). The *NPRM* also proposes requiring wholesalers of interconnected service to report the number of interconnected VoIP service subscribers the filer serves on a wholesale basis. 23. *Proposals for Refining Commission Analysis of Broadband Deployment and Availability* . The *NPRM* discusses several possible methods for increasing the Commission's understanding of broadband deployment and availability. Some approaches for increasing our understanding of broadband deployment place little or no additional burdens on data filers but may yield commensurately modest analytic benefits. Other approaches could yield a more detailed and dynamic understanding of broadband deployment, some of which could prove to be costly to data reporters or impractical. The *NPRM* seeks comment about whether, and how, data filers should be required to report information about the prices at which they offer broadband services. It seeks comment about the technical feasibility, costs and benefits of each of the approaches discussed below. In order to appropriately analyze the costs and benefits of each approach/proposal, the Commission seeks evidence that quantifies the costs of each alternative, including initial set up costs, recurring direct costs and reasonably attributable indirect costs. Commenters should identify all costs with as much precision as they can and should identify and analyze the potential benefits that each approach yields. The Commission also invites commenters to suggest and to explain in detail alternative methods of data collection beyond those identified herein. 24. The Commission concluded in 2004 that the benefits to the policymaking process that derive from requiring all filers—including smaller entities that serve sparse populations over wide geographical areas—to report the same data outweigh the reporting burdens on new Form 477 filers ( *i.e.* , entities required to file Form 477 once mandatory reporting thresholds were eliminated). The Commission recognized, however, the particular concerns about the reporting burdens of some smaller carriers, and consequently decided not to pursue at that time certain options similar to options about which this *NPRM* seeks comment. Therefore, this *NPRM* seeks comment on whether, if the Commission requires the submission of additional information, it should require all filers to report those data. The *NPRM* also invites comment on ways to mitigate the burden on smaller filers short of implementing reporting thresholds or other exemptions. 25. *Additional Analysis of Current Broadband Subscribership Data* . The *NPRM* first asks whether the Commission could more closely analyze the broadband subscribership data it currently collects to identify more precisely the areas where broadband is not available, particularly to households. For example, currently available data suggest that about 12 percent of 5-digit geographical Zip Codes have no providers of primarily residential, wired high-speed Internet access services delivered over “last mile” facilities the provider primarily owns. These Zip Codes contain about 2 percent of the U.S. population. Should the Commission simply identify such areas for further, individual study? For these identified areas, should it analyze the full range of competitive choices including deployed broadband infrastructure, service offerings in the marketplace, and service offering prices? How should the Commission conduct such studies? Do existing data sources available to the Commission, including the Form 477 data, allow it to study the needs of discrete communities of users, for example, Native Americans on tribal lands? Are there better and more fruitful ways to frame questions about Form 477 data in the context of particular technologies utilized by broadband providers, for example, providers using satellite technology? 26. As the Commission considers the possible need for additional data, it remains vigilant for ways to use the data it has currently as effectively as possible. GAO worked with a state broadband alliance (ConnectKentucky) to use their data to troubleshoot Form 477 data regarding broadband availability in Kentucky. Based on its comparison analysis, GAO concluded that the Form 477 data “may overstate the availability and competitive deployment of nonsatellite broadband.” Should the Commission explore collaborations, such as the one between GAO and ConnectKentucky, to troubleshoot its own data or to prepare discrete state or region-specific reports? How feasible is this given related costs and company concerns about sharing confidential information with private/commercial third parties? Would information developed by collaboration with various third parties be consistent? Which states have public-private economic development or other initiatives that have developed comprehensive localized information about broadband availability? Where such information exists, can it be shared with the Commission? Where such information does not exist, are there plans to develop it? For example, might the ConnectKentucky approach be readily adaptable in other states? In sum, the *NPRM* invites comment regarding methods of analyzing currently available data that could provide better or more focused insights into the dynamics of broadband deployment and availability nationwide or in particular geographic regions, in connection with specific technologies, or with regards to the needs of discrete communities of users. 27. The *NPRM* seeks comment on ways to better utilize Zip Code data currently submitted by Form 477 filers. Would requiring filers to submit customer counts along with Zip Code lists facilitate better analysis of broadband availability/deployment in specific Zip Codes? The Commission is skeptical that analysis of customer totals submitted at the 5-digit level of aggregation could significantly increase our understanding of the dynamics of broadband availability and deployment, *i.e.* , because any methodology based on a 5-digit Zip Code aggregation will continue to yield results that do not accurately depict broadband availability in particular, localized areas within a Zip Code. Nevertheless, the *NPRM* seeks comment on whether such an approach could be fruitful. In particular, the Commission seeks detailed comment regarding the costs as well as the benefits of such an approach. It asks commenting providers to provide projected costs and related analysis at a level of detail sufficient to support their assertions, as well as other relevant information. For example, what steps would providers have to implement to furnish this information per available network/system technology and personnel and other resources? Do the characteristics of particular technologies make counting subscribers by Zip Code problematic and, if so, are there useful substitute approaches for those technologies? The *NPRM* asks commenters to estimate separately the cost for an initial collection, which would presumably entail certain start-up costs, and the cost of subsequent collections, which might be able to realize certain efficiencies. 28. The *NPRM* invites comment on whether the Commission should require all broadband providers to report the number of residential customers served (in place of the current requirement to report the percentage of total broadband connections in service that are residential connections) and also the number of homes “passed” by their broadband-enabled infrastructure. Collecting both the number of residential customers served and the number of homes passed by each Form 477 filer's broadband-enabled infrastructure could enable the Commission to calculate and compare consumer broadband uptake figures ( *i.e.* , the ratio between adoption and availability). The *NPRM* seeks specific comment on how “passing” should be defined for this purpose, for each of the broadband technologies specified in the current Form 477, to enable us meaningfully to compare consumer uptake figures. 29. The *NPRM* asks generally whether there are other ways in which the Commission could make better use of the broadband data it currently collects on Form 477. For example, the semiannual report based on the Form 477 data includes tables showing how broadband Internet subscribership varies among 5-digit geographical Zip Codes based on population density and household incomes. The Commission is able to develop these tables because a commercial vendor has translated Census Bureau data (which is not collected by Zip Code) into Zip Code-level data for those particular variables ( *i.e.* , population density and income). The *NPRM* invites commenters to identify, with specificity, comparable commercial products that translate, to the Zip Code level, Census Bureau information about household education, race (including tribal lands), or disability status, so that the Commission might include in its semiannual report tables showing how broadband Internet subscribership varies among Zip Codes based on these demographic variables. 30. The *NPRM* also invites comment on whether the Commission's semiannual report should include figures about international broadband adoption, prices, or other measures that are developed by the Organization for Economic Cooperation and Development
(OECD)or the International Telecommunications Union (ITU). It asks for comment about which such figures the Commission should include. Ideally, any such figures will be published regularly and will be based on comparable definitions, measurement standards, and reporting practices. The *NPRM* asks, in particular, if a regularly published, reliably comparable figure is available on the cost per bit in leading industrial nations (for both residential and business customers). More generally, how could the Commission conduct a regular analysis of broadband policies in other nations and how their regulatory policies have played out? The *NPRM* seeks specific comment on whether and how the Commission should present such an analysis, *e.g.* , either in its semiannual report or the less frequent Section 706 report. 31. *Subscribers per 9-digit Zip Code.* The *NPRM* seeks comment about whether the Commission should require Form 477 data filers to submit 9-digit Zip Codes and associated customer counts. A 9-digit level of geographic aggregation coupled with such customer information could provide more granular information about deployment than 5-digit information. Nevertheless, associated costs could be greater. The *NPRM* asks, specifically, whether current Form 477 filers, including any of their affiliates, or their marketing partners or agents maintain information about the end-user termination locations ( *e.g.* , service addresses) of wired and fixed wireless broadband connections that includes the 9-digit Zip Codes of those locations—particularly information about residential end-user termination locations. If not, do Form 477 filers maintain billing address information at the 9-digit Zip Code level, and would such data be a sufficiently accurate proxy for service location? Do Form 477 filers typically maintain any other types of information that could be used to identify the 9-digit Zip Codes of end-user termination locations? The *NPRM* asks commenters to undertake the same kind of cost/benefit analysis regarding 9-digit Zip Code data as discussed in the previous paragraphs, *i.e.* , by discussing costs associated with implementation and associated potential benefits. It also seeks comment about whether there is significant value associated with simply requiring data filers to report lists of 9-digit Zip Codes where they have at least one customer, but without requiring associated customer counts by Zip Code. 32. *Purchase of Commercial Databases or Services.* The *NPRM* seeks specific comment regarding the availability of commercial sources of broadband deployment data or data-processing programs that could augment or otherwise add value to the Commission's use of Form 477 data, or reduce the associated costs and other burdens imposed on reporting providers. What existing databases could the Commission combine productively with the current Form 477 data? Are such databases accurate, current, and national in scope? The *NPRM* asks, specifically, whether the online-search software, and associated databases, that many broadband providers have developed to allow households to check whether broadband service is available at their home telephone number, street address, or Zip Code can readily be adapted to provide localized broadband deployment information. Do data-processing or consulting companies exist whose operations or services could add value, or diminish associated collection burdens? For example, if (as discussed below) the Commission decides to require additional Zip Code information (9-digit codes) or subscriber information per Zip Code in connection with the current Form 477 program, would it be feasible and/or desirable for a data-processing company, rather than the provider itself, to add 5-digit or 9-digit Zip Codes to subscriber lists, and to identify the number of subscribers per Zip Code? Would there be economies of scope and scale to a region- or nationwide contract that would make such private assistance affordable to providers? Would such an approach raise special concerns about confidentially-submitted company information or consumer privacy, and how could such concerns be addressed? As the Commission seeks to understand more clearly the cost to providers of gathering and reporting additional broadband data, should it also explore engaging commercial data processors to conduct sample surveys and report sample information? Commenters are encouraged to carefully consider such approaches to current data augmentation as well as ways to reduce associated burdens. 33. *Geocoded Information about Subscriber Locations.* The *NPRM* also seeks comment about non-Zip Code based approaches to using subscriber-based information to more precisely identify the geographic areas where broadband is deployed, such as requiring providers to report geocoded information ( *e.g.* , latitude and longitude) for the premises of their subscribers. Requiring subscriber counts by Zip Code could prove to be the least costly and most feasible change to our Form 477 data collection, *i.e.* , to most efficiently produce additional information that would materially advance the Commission's understanding of broadband availability. Are there other, more exact and accurate means of attaining that goal? How would such a method of data collection operate? The *NPRM* encourages suggestions from commenters that envision a non-Zip Code based approach to data collection, particularly alternatives that would yield data that is at least as granular as 9-digit Zip Code data augmented with customer counts by Zip Code. 34. *Develop Automated System of Voluntary Reporting by Non-served Households.* The *NPRM* also seeks comment about the feasibility and value of implementing a voluntary self-reporting system by non-served households, patterned after the National Do-Not-Call Registry. Under this proposal, non-served households could identify themselves at a Commission-maintained electronic bulletin board (web page address) and/or telephone number call-in address where they would provide the limited information, *e.g.* , home address with (preferably 9-digit) Zip Code, and the wired or fixed wireless telephone number at that particular location, that is needed to identify the particular non-served location. Would such a system be an effective and efficient way to identify localized areas where broadband services are not available? Would the reported information be accurate or, for example, might potential subscribers not be aware of all broadband options available to them? Would such a system in fact enable the Commission and other governmental entities to focus (limited) government resources to encourage broadband availability more efficiently, *i.e.* , by targeting areas where there is evidence of actual demand for broadband services? The *NPRM* seeks comment on the costs and potential benefits of such a proposal. 35. *Broadband-enabled Service Territory Report by Provider* . Each of the previously discussed approaches relies on *broadband subscription* as a proxy for broadband availability. The approaches assume that, in Zip Codes where none or very few of the residents subscribe to broadband services, such services are unavailable, and vice versa. As GAO has found, while broadband infrastructure deployment is extensive, information about where subscribers are served may not depict with a high degree of accuracy the local deployment of broadband, especially in rural areas. Alternatively, the Commission could require data filers to report information about their customers and the broadband-enabled service territory— *i.e.,* the specific geographic area, which might include only parts of particular Zip Codes—where they offer and/or currently deploy broadband services, particularly residential services. By collecting and studying such data comparatively, the Commission could arrive at a far clearer understanding of the actual dynamics of broadband availability in discrete geographic areas and to different communities of users. The *NPRM* seeks comment about the need for and feasibility of requiring broadband providers to report information that delineates in detail the boundaries of their broadband-enabled service territories. What methodologies are available for developing such information? What requirements would the Commission need to specify to ensure that providers apply a methodology with enough uniformity to yield useful information? Terrestrial mobile wireless broadband service providers are currently required to report Zip Codes that best represent their coverage areas. Does this standard yield a sufficient level of detail about the deployment of those services? Are there alternate or additional reporting requirements that would provide more useful data on mobile wireless broadband deployment without imposing an undue burden on the providers? The *NPRM* asks commenters to undertake the same kind of cost/benefit analysis discussed earlier with respect to 5-digit and/or 9-digit Zip Code information, *i.e.,* by discussing costs associated with implementation and associated potential benefits. 36. While, at present, precise information about the boundaries of the localized areas where broadband is generally available might be difficult for certain broadband providers to gauge, results achieved by broadband mapping initiatives such as those in Kentucky and Wyoming suggest that the difficulties are not insurmountable. For example, municipal cable systems and the Kentucky Cable Telecommunications Association
(KCTA)are working with ConnectKentucky to map in fine detail ( *e.g.* , street-by-street, and sometimes block-by-block) the boundaries of the areas where cable modem broadband is available. The Kentucky mapping initiative has identified localized areas of DSL broadband availability by obtaining, from at least some carriers, detailed location information ( *i.e.,* latitude and longitude) for the carrier's DSL-enabled wire centers and remote terminals, and assuming that DSL service is available within a 13,200-foot (2.5-mile) radius around the DSL-enabled equipment. The Kentucky initiative has also collected detailed facilities information ( *e.g.* , latitude and longitude of towers, type of antenna technology, whether coverage is omni-directional or partial) from at least some commercial providers of wireless broadband service. Therefore, the Kentucky experience suggests that providers can delineate their areas of broadband deployment at much finer levels of detail than the Zip Code based data now collected on Form 477. The Commission is also aware that, in localized areas where broadband is generally available, site-specific factors may impede availability to individual households. What steps, if any, should the Commission take to enable providers to report broadband availability, not by subscriber proxy but by actual territory served ( *e.g.,* a data collection or mapping system)? 37. The *NPRM* invites comment on whether this approach is feasible for tribal lands and how it could most effectively be implemented on tribal lands. As GAO found in its report *Challenges to Assessing and Improving Telecommunications for Native Americans on Tribal Lands (January 2006),* subscribership to Internet-access services (of any speed) by Native American households on tribal lands is unknown because no federal survey has been designed to track this information. As GAO also found, the Commission's Form 477 data cannot be used to determine the number of residential Internet subscribers on tribal lands. The *NPRM* seeks specific comment on how the Commission can best measure broadband deployment/availability and adoption on tribal lands. 38. *Other Alternatives.* The *NPRM* asks whether there are other alternatives the Commission can explore to better identify the extent of broadband deployment in rural areas and tribal lands across the nation. 39. *Extrapolating Nationwide Competitive Conditions from Conditions in Representative Areas.* The *NPRM* invites comment on whether, even if more granular data cannot reasonably be collected across the entire country, it would be appropriate and feasible for the Commission to develop more accurate estimates of the competitive choices in representative urban, metropolitan, exurban, low-income, tribal, and rural areas and then use weighted extrapolation techniques to get a picture of nationwide competitive conditions. It asks whether detailed infrastructure deployment maps for representative areas could be developed, based on the location of municipal cable-system facilities and local exchange carrier DSLAMs, which would give a house-by-house picture of where those broadband infrastructures are deployed. 40. The *NPRM* seeks comment on whether the Commission should collect key demographic information ( *e.g.,* income, education, race (including tribal status), and disability status) about households located in those parts of the representative areas in which cable modem or DSL infrastructures have been deployed, to illustrate the relationship between these factors and broadband adoption. Which demographic variables should the Commission measure? Does conducting meaningful analysis require demographic information about individual households? If it does, could the cable system and/or DSL service provider in the representative area provide that information? Alternatively, could the Commission effectively use publicly available Census Bureau detailed demographic information (which would not identify individual households)? In general, are there public sources of detailed demographic information for representative areas? Commenters who are aware of such sources should identify them with specificity and explain why they are appropriate to use. 41. The *NPRM* asks if the Commission should also collect income, education, and other demographic information about households located in the parts of the representative areas where broadband infrastructures have not been deployed, to illustrate the relationship between these factors and broadband deployment. Which demographic variables should the Commission measure? Could the cable system and DSL service provider (or the local exchange carrier, if DSL infrastructure has not been deployed) provide that information? Would it be more cost effective or appropriate to use demographic information that is publicly available from the Census Bureau (which does not identify individual households)? Are there publicly available commercial sources of geographically detailed demographic data that the Commission could use? The *NPRM* asks commenters to identify such sources with specificity and to explain why they are appropriate to use. 42. The *NPRM* asks whether collecting detailed information about deployment of two broadband technologies ( *i.e.* , cable modem and DSL) would be sufficient to inform broadband policy making. Are there any other broadband technologies for which it is feasible to develop a house-by-house picture of infrastructure deployment and key household demographic variables ( *e.g.* , income, education, race (including tribal status), and disability status) in representative areas? 43. The *NPRM* invites specific comment on how the Commission should identify particular areas as representative areas, to ensure that weighted extrapolation techniques will provide a statistically accurate picture of nationwide competitive conditions. Is there at this time a known set of such representative areas? If not, what is the Census Bureau or other source of data that can be used to select specific areas to represent urban, metropolitan, exurban, low-income, tribal, and rural areas, respectively? The *NPRM* asks commenters to identify that data source, or sources, with specificity and to explain why the source is appropriate to use. Should the extent of broadband deployment in an area be taken into account in selecting the representative areas? If so, how should it be taken into account? As noted above, there is a detailed broadband deployment mapping initiative underway in Kentucky. While there are no tribal lands in Kentucky, would it be appropriate for the Commission to select Kentucky areas to represent each of the other types of areas ( *i.e.* , urban, metropolitan, exurban, low-income, and rural)? 44. The *NPRM* asks for comment about how to select a representative area for tribal lands, in particular. As GAO has found, tribal lands vary dramatically in size, demographics, and location. GAO conducted interviews with 26 tribes and 12 Alaska regional native nonprofit organizations and visited 6 of the tribes that have taken action to improve their telecommunications. The *NPRM* seeks comment on whether, and why, a particular one of the six tribes would be an appropriate choice for the representative tribal lands area. 45. *Price, Broadband Availability, and Consumer Uptake.* The *NPRM* seeks comment on whether and how the Commission could collect price information that depicts competitive choice in representative areas. Would it be sufficient to collect price information only for cable modem and DSL service options? If so, should the Commission collect price information for the full range of cable modem and DSL service options in the representative areas? How should it treat the prices of introductory offers and bundled services? Should it calculate separate representative prices for residential and non-residential service offerings? How should it treat service offerings that appear both in advertisements for residential services and in advertisements for business services? 46. The *NPRM* also asks whether the Commission should modify Form 477 to collect price information from all entities that report broadband connections. What price information should it collect? Should it collect the price information at the Zip Code, state, regional, or national level? What would be an appropriate way to define a region for this purpose? Should the Commission require filers to estimate and report the cost of residential broadband services measured as price per bit? 47. The *NPRM* seeks specific comment on whether and how the Commission could provide a deeper understanding of the market for broadband services by collecting price information and comparing it to consumer uptake of broadband ( *i.e.* , the ratio between adoption and deployment). Commenters should address how non-price variables found to be correlated with consumer broadband uptake ( *e.g.* , income, education, race (including tribal lands), and disability status) should be incorporated into the comparison. Procedural Matters *Ex Parte Rules.* This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's *ex parte rules* . 47 CFR 1.1200 *et seq.* 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. 47 CFR 1.1206(b)(2). Other requirements pertaining to oral and written presentations are set forth in Section 1.1206(b) of the Commission's rules. 47 CFR 1.1206(b). Initial Regulatory Flexibility Analysis 1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared the present Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on small entities that might result from today's *NPRM* . 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 *NPRM* provided above. The Commission will send a copy of the *NPRM* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the *NPRM* and IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for, and Objectives of, the Proposed Rules 2. In the *NPRM* , the Commission seeks comment on various proposals that would deepen and refine its current understanding of broadband availability and deployment and its understanding of end user adoption of relatively new broadband-enabled services such as interconnected VoIP service. The Commission believes that a better understanding would assist it to adopt policies to promote the deployment of broadband services. At the same time, it recognizes that certain methods of collecting more precise data might impose burdens on small entities, and invites comment on ways to mitigate burdens on smaller entities. In this regard, the *NPRM* proposes many methods for collecting further data and analyzing current data that would impose little or no burden on small entities whatsoever. B. Legal Basis 3. The legal basis for any action that may be taken pursuant to the *NPRM* is contained in Sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503, and Section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules May Apply 4. 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. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). As discussed in sections D and E below, many of the proposals contained in the *NPRM* would not impose any burden whatsoever on small entities. However, to the extent that other proposals contained in the *NPRM* might impact small entities, those possible entities are listed below. The Commission has perhaps been overbroad in the list of entities directly affected, below, in an effort to encourage comment. 5. As noted above, in addition to covering small businesses, the RFA covers small organizations. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. 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.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small. 6. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, is the data that the Commission publishes in its *Trends in Telephone Service* report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, we discuss the total estimated numbers of small businesses that might be affected by our actions. 7. We have included small incumbent local exchange carriers
(LECs)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.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 8. *Wireline Carriers and Service Providers.* 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.” 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. 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. 9. *Incumbent Local Exchange Carriers (ILECs).* Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to incumbent local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,307 carriers reported that they were engaged in the provision of local exchange services. Of these 1,307 carriers, an estimated 1,019 have 1,500 or fewer employees and 288 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our action. 10. 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. According to Commission data, 859 carriers reported that they were engaged in the provision of either competitive local exchange carrier or competitive access provider services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our action. 11. *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. According to Commission data, 184 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 181 have 1,500 or fewer employees and three 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 action. 12. *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. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 853 have 1,500 or fewer employees and 28 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 action. 13. *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. According to Commission data, 657 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 653 have 1,500 or fewer employees and four 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 action. 14. *Interexchange Carriers (IXCs).* Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to interexchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 330 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 330 companies, an estimated 309 have 1,500 or fewer employees and 21 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by our action. 15. *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. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our action. 16. *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. According to Commission data, 104 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, an estimated 102 have 1,500 or fewer employees and two have 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 action. 17. *800 and 800-Like Service Subscribers.* 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. The most reliable source of information regarding the number of these service subscribers appears to be data the Commission collects on the 800, 888, 877, and 866 numbers in use. According to our data, at the beginning of July 2006, the number of 800 numbers assigned was 7,647,941; the number of 888 numbers assigned was 5,318,667; the number of 877 numbers assigned was 4,431,162; and the number of 866 numbers assigned was 6,008,976. We do not have data specifying the number of these subscribers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, we estimate that there are 7,647,941 or fewer small entity 800 subscribers; 5,318,667 or fewer small entity 888 subscribers; 4,431,162 or fewer small entity 877 subscribers; and 5,318,667 or fewer small entity 866 subscribers. 18. *Wireless Carriers and Service Providers.* Below, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. 19. *Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” 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. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 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. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. 20. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. According to Commission data, 432 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio
(SMR)Telephony services, which are placed together in the data. We have estimated that 221 of these are small, under the SBA small business size standard. Thus, under this category and size standard, about half of firms can be considered small. This information is also included in the discussion of Wireless Telephony, below. 21. *Common Carrier Paging.* The SBA has developed a small business size standard for Paging, under which a business is small if it has 1,500 or fewer employees. According to Commission data, 365 carriers have reported that they are engaged in Paging or Messaging Service. Of these, an estimated 360 have 1,500 or fewer employees, and 5 have more than 1,500 employees. Consequently, the Commission estimates that the majority of paging providers are small entities that may be affected by our action. In addition, in the *Paging Third Report and Order* , we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 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. 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 $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. 22. *Wireless Communications Services.* This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services
(WCS)auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, held in April 1997, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity. 23. *Wireless Telephony.* Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio
(SMR)telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony. We have estimated that 221 of these are small under the SBA small business size standard. 24. *Broadband Personal Communications Service.* The broadband Personal Communications Service
(PCS)spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification 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. These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. 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. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. 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. 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. 25. *Narrowband Personal Communications Services.* To date, two auctions of narrowband personal communications services
(PCS)licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the *Narrowband PCS Second Report and Order* . 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. 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. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas
(MTAs)and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future actions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined under the Commission's Rules. The Commission assumes, for purposes of this analysis, that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules. 26. *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 small business size standard for 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. Under this category, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. The Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard. 27. *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 “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size 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. A “very small business” is 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. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. 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. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses. 28. *800 MHz and 900 MHz Specialized Mobile Radio Licensees.* The Commission awards “small entity” and “very 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, or that had revenues of no more than $3 million in each of the previous calendar years, respectively. These bidding credits apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service 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. The Commission assumes, for purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities. 29. *700 MHz Guard Band Licensees.* In the *700 MHz Guard Band Order* , we adopted a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. 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 $3 million for the preceding three years. An auction of 52 Major Economic Area
(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. 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. 30. *Rural Radiotelephone Service.* The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. 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 adopted herein. 31. *Air-Ground Radiotelephone Service.* The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. We will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small under the SBA small business size standard. 32. *Aviation and Marine Radio Services.* Small businesses in the aviation and marine radio services use a very high frequency
(VHF)marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 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. 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. 33. *Fixed Microwave Services.* Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. 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. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. We noted, however, that the common carrier microwave fixed licensee category includes some large entities. 34. *Offshore Radiotelephone Service.* This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. 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. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 35. *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. 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. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by our action. 36. *Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and ITFS.* 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). In connection with the 1996 MDS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. MDS also includes licensees of stations authorized prior to the auction. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, which includes all such companies generating $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein. This SBA small business size standard also appears applicable to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we tentatively conclude that at least 1,932 licensees are small businesses. 37. *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. The auction of the 1,030 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. 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 $13.5 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. 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 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers. The license terms require the licensees to build their wireless facilities within ten years of the grant. As a result, more information on the licensees will become available in the year 2008, when the licensees are required to show the Commission that they have achieved substantial service as part of the application renewal process. 38. *218-219 MHz Service.* The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area
(MSA)licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was 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. In the *218-219 MHz Report and Order and Memorandum Opinion and Order* , we established a small business size standard for 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 to exceed $15 million for the preceding three years. 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 to exceed $3 million for the preceding three years. These size standards will be used in future auctions of 218-219 MHz spectrum. 39. *24 GHz—Incumbent 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. We believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is our understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity. 40. *24 GHz—Future Licensees.* With respect to new applicants in the 24 GHz band, the small business size standard for “small business” is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million. “Very small business” in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards. These size standards will apply to the future auction, if held. 41. *Satellite Telecommunications and Other Telecommunications.* 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. 42. 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.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 43. 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.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. 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. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. 44. *Cable and OVS Operators.* In addition to the estimates provided above, we consider certain additional entities that may be affected by the data collection from broadband service providers. Because Section 706 requires us to monitor the deployment of broadband regardless of technology or transmission media employed, we anticipate that some broadband service providers will not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others. 45. *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.” 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. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. 46. *Cable Companies and Systems.* The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 47. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 48. *Open Video Services.* Open Video Service
(OVS)systems provide subscription services. As noted above, the SBA has created a small business size standard for Cable and Other Program Distribution. This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified approximately 45 OVS operators to serve 75 areas, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc.
(RCN)received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that 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 44 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies adopted herein. 49. *Electric Power Generation, Transmission and Distribution.* The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities:
(1)Operate generation facilities that produce electric energy;
(2)operate transmission systems that convey the electricity from the generation facility to the distribution system; and
(3)operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” The SBA has developed a small business size standard for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.” According to Census Bureau data for 2002, there were 1,644 firms in this category that operated for the entire year. Census data do not track electric output and we have not determined how many of these firms fit the SBA size standard for small, with no more than 4 million megawatt hours of electric output. Consequently, we estimate that 1,644 or fewer firms may be considered small under the SBA small business size standard. 50. *Internet Service Providers.* The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 51. *Web Search Portals.* Our action pertains to VoIP services, which could be provided by entities that provide other services such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The Commission has not adopted a size standard for entities that create or provide these types of services or applications. However, the Census Bureau has identified firms that “operate web sites that use a search engine to generate and maintain extensive databases of Internet addresses and content in an easily searchable format. Web search portals often provide additional Internet services, such as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home base for Internet users.” The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 342 firms in this category that operated for the entire year. Of these, 303 had annual receipts of under $5 million, and an additional 15 firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 52. *Data Processing, Hosting, and Related Services.* Entities in this category “primarily * * * provid[e] infrastructure for hosting or data processing services.” The SBA has developed a small business size standard for this category; that size standard is $23 million or less in average annual receipts. According to Census Bureau data for 2002, there were 6,877 firms in this category that operated for the entire year. Of these, 6,418 had annual receipts of under $10 million, and an additional 251 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 53. *All Other Information Services.* “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” Our action pertains to VoIP services, which could be provided by entities that provide other services such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 155 firms in this category that operated for the entire year. Of these, 138 had annual receipts of under $5 million, and an additional four firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 54. *Internet Publishing and Broadcasting.* “This industry comprises establishments engaged in publishing and/or broadcasting content on the Internet exclusively. These establishments do not provide traditional (non-Internet) versions of the content that they publish or broadcast.” The SBA has developed a small business size standard for this census category; that size standard is 500 or fewer employees. According to Census Bureau data for 2002, there were 1,362 firms in this category that operated for the entire year. Of these, 1,351 had employment of 499 or fewer employees, and six firms had employment of between 500 and 999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 55. *Software Publishers.* These companies may design, develop or publish software and may provide other support services to software purchasers, such as providing documentation or assisting in installation. The companies may also design software to meet the needs of specific users. The SBA has developed a small business size standard of $23 million or less in average annual receipts for all of the following pertinent categories: Software Publishers, Custom Computer Programming Services, and Other Computer Related Services. For Software Publishers, Census Bureau data for 2002 indicate that there were 6,155 firms in the category that operated for the entire year. Of these, 7,633 had annual receipts of under $10 million, and an additional 403 firms had receipts of between $10 million and $24,999,999. For providers of Custom Computer Programming Services, the Census Bureau data indicate that there were 32,269 firms that operated for the entire year. Of these, 31,416 had annual receipts of under $10 million, and an additional 565 firms had receipts of between $10 million and $24,999,999. For providers of Other Computer Related Services, the Census Bureau data indicate that there were 6,357 firms that operated for the entire year. Of these, 6,187 had annual receipts of under $10 million, and an additional 101 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of the firms in each of these three categories are small entities that may be affected by our action. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 56. In the *NPRM* , many of the proposals to increase the Commission's understanding of broadband availability would impose no reporting, recordkeeping or other compliance requirements on small entities. However, the *NPRM* invites comment on several other proposals that would impose further reporting and recordkeeping requirements on current Form 477 filers. Specifically, the *NPRM* invites comment on whether current Form 477 filers should
(1)report numbers of subscribers per 5-digit Zip Code,
(2)report 9-digit Zip Codes where there is at least one subscriber or report numbers of subscribers per 9-digit Zip Code,
(3)report geocoded information about subscriber locations, or
(4)report information that delineates in detail the boundaries of their broadband-enabled service territories. The *NPRM* also seeks comment on whether the Commission should
(1)refine the speed-tier information the Commission currently collects by splitting an existing speed tier into two;
(2)require all broadband filers to report the number of residential customers served and also the number of homes “passed” by their broadband enabled infrastructure;
(3)collect demographic information about households from filers located in representative areas; and
(4)collect price information from filers in representative areas or from filers more generally. In addition, the *NPRM* invites comment whether there are any alternatives not discussed in the *NPRM* that would also serve the objectives of the *NPRM* . The Commission invites comment on ways to mitigate the burden that might be imposed on small entities by proposals discussed in the *NPRM* . The Commission also invites comment on alternatives to these proposals that would meet the objectives of the *NPRM* but would impose lesser burdens on small entities. E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 57. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) 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. 58. From the outset, the *NPRM* invites comments on significant alternatives to improving data about broadband availability throughout the nation—particularly availability in rural and other hard-to-serve areas—that would impose no burden on small entities whatsoever. These alternatives ask whether the Commission would be able to meet its objectives by conducting further analysis of current data, conducting its own studies, or purchasing databases from other entities to supplement Commission data. The *NPRM* asks whether the Commission should simply identify for further, individual study those Zip Code areas where deployment appears to be particularly limited. The *NPRM* invites comment on whether the Commission might collaborate with state public-private economic development or other initiatives to supplement and refine Commission data. Furthermore, the *NPRM* invites comment whether it might purchase commercial databases or services that would provide data without imposing additional burdens on filers. Finally, the Commission inquires whether it might rely on a voluntary self-reporting system by non-served households, patterned after the National Do-Not-Call Registry, to identify localized areas where broadband services are not available. None of these alternatives would impose burdens on small entities, but commenters are invited to comment on whether these alternatives would provide sufficient information for the Commission to assess whether it should institute new policies to encourage deployment of broadband services to rural and hard-to-serve areas. 59. With regard to proposals that would increase the reporting requirements of small entities, the *NPRM* invites comments on how these proposals might be tailored to mitigate the burden on smaller entities but nevertheless obtain data that would enable the Commission to determine whether subscribers in those territories have access to broadband services. As noted above, the *NPRM* invites comment on whether current Form 477 filers should
(1)report numbers of subscribers per 5-digit Zip Code,
(2)report 9-digit Zip Codes where there is at least one subscriber or report numbers of subscribers per 9-digit Zip Code,
(3)report geocoded information about subscriber locations, or
(4)report information that delineates in detail the boundaries of their broadband-enabled service territories. The *NPRM* also seeks comment on whether the Commission should
(1)refine the speed-tier information the Commission currently collects by splitting an existing speed tier into two;
(2)require all broadband filers to report the number of residential customers served and also the number of homes “passed” by their broadband enabled infrastructure;
(3)collect demographic information about households from filers located in representative areas; and
(4)collect price information from filers in representative areas or from filers more generally. To analyze the impact on small entities, the *NPRM* specifically asks whether entities maintain these types of information in billing or marketing databases and asks commenters to demonstrate the burden for the entities to collect and report this type of information. This information will assist the Commission in determining whether these various proposals would impose a significant economic impact on small entities. Commenters are invited to comment on whether there are alternative methods that would obtain the same information while lessening the economic impact on small entities. 60. The *NPRM* also invites comment on how we should modify the reporting requirements for wireless broadband providers and interconnected VoIP providers. Specifically, the *NPRM* invites comment on whether mobile wireless providers should
(1)report the number of month-to-month (or longer term) subscriptions to broadband Internet access service designed for full Internet browsing;
(2)report the number of month-to-month (or longer term) subscriptions for broadband-speed browsing of customized-for-mobile web sites; and
(3)report the number of unique mobile voice service subscribers who are not month-to-month subscribers to an Internet access service, but who nevertheless made any news, video, or other entertainment downloads to the subscriber's handset at broadband speed during the month preceding the Form 477 reporting date. The *NPRM* also seeks comment on how to improve the reporting estimate of the percentage of mobile wireless broadband subscribers who are residential end users. In doing so, the *NPRM* specifically suggests and seeks comment on alternative methods for arriving at the best estimates of residential end users. Finally, the *NPRM* specifically invites comment on how to collect useful information about the number of interconnected VoIP subscribers in the least burdensome manner. This information will assist the Commission in determining whether these various proposals would impose a significant economic impact on small entities. Commenters are invited to comment on whether there are alternative methods that would obtain the same information while lessening the economic impact on small entities. 61. Based on these questions, and the alternatives discussed is the *NPRM* , the Commission anticipates that the record will be developed concerning alternative ways in which it could lessen the burden on small entities of obtaining improved data about broadband availability throughout the nation. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 62. None. Ordering Clauses Accordingly, *it is ordered* that, pursuant to Sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503, and Section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt, this *NPRM* , with all attachments, is adopted. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this *NPRM* , including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-9300 Filed 5-15-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA 2006-26339] Federal Motor Vehicle Safety Standards; Occupant Crash Protection AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Denial of petition for rulemaking. SUMMARY: This document denies a petition for rulemaking submitted by Siemens VDO to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant Crash Protection.” The petition requests that the agency add a dynamic automatic suppression option under the advanced air bag options for the 12-month CRABI infant test dummy analogous to that for the 3-year and 6-year-old dummies. FOR FURTHER INFORMATION CONTACT: For non-legal issues: David Sutula, Office of Crashworthiness Standards, at
(202)366-3273. Fax:
(202)493-2739. For legal issues: Edward Glancy, Office of Chief Counsel, at
(202)366-2992. Fax:
(202)366-3820. You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. The Petition III. Data Submission and NHTSA Analysis A. Data Submission B. Ex Parte Meeting With Siemens, Volkswagen and Audi C. NHTSA Analysis IV. Conclusion I. Background Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection,” specifies performance requirements for the protection of vehicle occupants in crashes (49 CFR 571.208). On May 12, 2000, we published an interim final rule that amended FMVSS No. 208 to require advanced air bags (65 FR 30680; (Advanced Air Bag Rule). Among other things, the rule addressed the risk of serious air bag-induced injuries, particularly for small women and young children, and amended FMVSS No. 208 to require that future air bags be designed to minimize such risk. The Advanced Air Bag Rule established a rigid barrier crash test with a 5th percentile adult female test dummy, as well as several low risk deployment and static suppression tests using a range of dummy sizes and a number of specified child restraint systems (CRSs). The Advanced Air Bag Rule allows for passenger side compliance through any of three options. The first option, Low Risk Deployment (LRD), defines a reduced deployment strength for occupants in close proximity to the air bag. The second option suppresses the air bag when a child is present. The third option, Dynamic Automatic Suppression (DASS), senses the location of an occupant with respect to the air bag, interprets the occupant characteristics and movement, and determines whether or not to allow the air bag to deploy. Performance tests for determining compliance with the LRD and suppression options were specified in the Advanced Air Bag Rule. A performance test for determining compliance with the DASS option was not specified in the rule because at that time it was not known what technologies would be used to attempt to meet the DASS option. The agency received multiple petitions for reconsideration to the Advanced Air Bag Rule. Petitioners raised a large number of concerns about the various test procedures in their written submissions. The agency then addressed each petition in a **Federal Register** notice published on December 18, 2001, and made a number of refinements to the test dummy positioning procedures in the barrier tests and the low risk deployment tests used in the Advanced Air Bag Rule (66 FR 65376). The December 18, 2001 response to petitions for reconsiderations (66 FR 65383) stated that: To address the risks posed by passenger air bags, the rule requires vehicles to either
(1)have a passenger air bag that deploys in a low-risk manner to out-of-position occupants,
(2)to have a feature that suppresses the air bag when a young child is present in a variety of positions, or
(3)to have a feature that suppresses the air bag when a passenger is out-of-position (including in dynamic events). *The risk minimization requirements must be met separately for 1-year-old, 3-year-old and 6-year-old children, and manufacturers may choose different options for these three classes of occupants [emphasis added].* ” In making this statement, the agency clarified that for each dummy type, the selected “risk minimization” strategy had to be met in full for each dummy. That is, it was not acceptable to comply with only the suppression strategy for an infant in a rear facing child restraint system (RFCRS) and the low risk deployment strategy for an infant in a forward facing child restraint system (FFCRS). This was further emphasized in letters responding to request for interpretation from TRW Automotive
(TRW)1 and International Electronics and Engineering
(IEE)2 in July and October of 2003, respectively. The IEE interpretation also indicated that “[m]anufacturers may not use suppression technology to ensure that there will be no air bag deployment in the indicant test if they are certifying to the low risk deployment test.” 1 Docket Management System NHTSA-2003-15650. 2 Docket Management System NHTSA-2003-16296. In both regulatory and non-regulatory environments the agency has discussed extensively its concern about the danger of air bag deployment in the presence of an infant in a RFCRS. It was for this reason that the infant low risk deployment certification option effectively requires a broader range of crash severities for which the air bag must deploy in a low risk manner. II. The Petition On August 20, 2003, Siemens VDO (Siemens) petitioned the agency to amend FMVSS No. 208 to add a DASS option under the advanced air bag options for the 12-month-old CRABI infant test dummy. This would be an option analogous to that provided for the 3-year-old and 6-year-old dummies in S21.3 and S23.3, respectively. Siemens stated that “including the DASS option with the 1-year-old (12-month-old) dummy could have a positive impact on motor vehicle safety by enabling the development and certification of advanced air bag suppression systems.” The petition stated that the lack of a DASS option (for infants) is limiting advanced air bag technologies for the following reasons: 1. Using a vision-based DASS system it is not possible, under *all circumstances* , [emphasis added] to distinguish between a 12-month-old child in a FFCRS with a sunshield or blanket and a 5th percentile female. The system would suppress the air bag and eliminate potential benefits to children older than 1-year and small adults. 2. Test data Siemens submitted with the petition show that a 12-month-old properly positioned in a FFCRS is not at risk from a statically deploying air bag. In out-of-position
(OOP)situations, the infant in the FFCRS does not have injury measures in excess of the required FMVSS No. 208 criteria. 3. A DASS option for the 12-month-old dummy would deactivate the air bag when the infant enters the air bag suppression zone. An infant in a rear facing child restraint system (RFCRS) would always be in this suppression zone. Siemens believes that the agency has never expressed its reasoning for not allowing the DASS option for the 12-month-old dummy. The petitioner stated that if its petition were granted and the standard amended accordingly, it would submit a petition for a DASS test procedure in accordance with S27.1(a). The petitioner's claimed need for the relief is predicated on the contention that their vision system cannot tell the difference between a 12-month-old in a FFCRS covered by a blanket or sunshield (a test required in the suppression option for the 12-month-old dummy) and a 5th percentile female sitting in the passenger seat. Since the air bag must not be suppressed for the 5th percentile female, their vision system alone could not be used for a compliance strategy that suppresses for the 12-month-old and uses DASS for all other occupants. III. Data Submission and NHTSA Analysis A. Data Submission Siemens provided sled and static testing data in support of their petition. The petitioner's stated goal of the testing was to determine: 1. The risk of injury from air bag deployment for infants and children in FFCRS; and 2. If there is any benefit to air bag deployment for small children. The petitioner's test matrix consisted mostly of sled testing using the 3-year-old dummy. Tests were conducted with the dummy unrestrained and also restrained using two different CRSs. The tests were done in three positions of vehicle seat adjustment: Forward track/highest height (for/up), middle track/middle height (mid/mid), and rearward track/lowest height (rear/low). The sled speeds were reported as 16, 22, and 35 mph. Siemens also reported that a 10 mph out-of-position test was performed, but no data was provided for this test. Finally, Siemens also reported static air bag deployments using a 12-month-old dummy and four different CRSs. The complete test matrix is shown below in Table 1. Table 1.—Test Data Submitted in Support of Petition Air bag status w/out air bag w/air bag Seat position Dummy mid/mid for/up misuse for/up mid/mid rear/low for/mid for/mid misuse 3-year-old × 2 CRSs 35 mph 16 † and 35 mph 35 mph 35 mph 35 mph 3-year-old unbelted 22 mph 10 mph OOP 22 mph 12-month-old × 4 CRSs Static * Static ‡. † One child restraint. * Both stages of a dual stage air bag. ‡ Current production single stage air bag. B. Ex Parte Meeting With Siemens, Volkswagen and Audi On June 17, 2004, representatives from Siemens and vehicle manufacturers, Volkswagen and Audi, met with NHTSA to discuss the Siemens petition. During the meeting, Siemens made a presentation reiterating the petition material. 3 No new supporting data was provided, but the following additional justifications for granting the petition were presented: 3 Test Requirements for 1 YO Dummy in Standard No. 208, Information supporting the Siemens VDO petition for rulemaking, Washington DC, June 17, 2004. See the docket for this notice for a copy of the meeting materials. • Maximizes the number of occupants that benefit from air bag protection. • Minimizes the risk of air bag-induced fatalities. • Avoids weight-based classification grey zones through a position-dependent deployment decision. C. NHTSA Analysis The petition requested that the agency allow a DASS option for the 12-month-old infant dummy. However, the dynamic test data submitted in support of the petition attempted to show the protective effect of the air bag for a belted 3-year-old dummy in two different CRSs and also unbelted, sitting in the vehicle seat. The agency does not consider this to be directly supportive of the petition in that a DASS option for the 3-year-old already exists. The data submitted using the 12-month-old dummy were static first-stage air bag deployments. The dummy was placed in four different FFCRSs. In one set of data the CRS was in-position and in another it was leaning forward. The space between the instrument panel and dummy head was not provided with the petition. However, in the June 17, 2004 meeting with the petitioners, they stated that the distance was approximately 100-200 mm (4-8 inches). None of the dummy IARVs 4 were exceeded, but for at least one CRS tested, the injury measures were within 80 percent of the head, neck and chest criteria limits. 4 Reference: S19 of FMVSS Standard No. 208. The data showed that at some dummy distance from the air bag, a first-stage air bag deployment might not exceed the injury threshold for the 12-month-old dummy. However, it does not demonstrate that air bags have a potential protective effect for a 12-month-old occupant dummy in a dynamic environment as claimed in the petition. IV. Conclusion The DASS option is intended to provide manufacturers the flexibility of deploying an air bag when such a deployment would not be harmful, and potentially beneficial, as opposed to suppressing the air bag or relying on a low risk deployment. However, central to the DASS option is that when an air bag is deployed, the risk of harm to an occupant is minimized. The petitioner has not provided such data, and instead presented dynamic test data using a 3-year-old test dummy. The agency's Special Crash Investigation data 5 indicate that the only fatalities for children younger than 2-years old in FFCRSs were in pre-advanced air bag systems without suppression and when they were improperly used. However, the Special Crash Investigation data does not prove that an air bag deployment for a properly restrained child in a FFCRS is not injurious. Although these fatalities might have been avoided through air bag suppression, it is not clear that a DASS system would provide comparable benefit to static suppression for a 12-month-old child. 5 *http://www-nrd.nhtsa.dot.gov/departments/nrd-30/ncsa/sci.html* Further, we believe that manufacturers will be able to, if they have not already done so, design DASS systems that can distinguish between the 5th percentile female test dummy and the 12-month-old test dummy in all positions required by the suppression option. Therefore, the requested relief is not necessary to implement a DASS compliance strategy for 3-year-old and 6-year-old test dummies and suppression for the 12-month-old dummy. In accordance with 49 CFR part 552, this completes the agency's review of the petition. Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30162; delegation of authority at 49 CFR 1.50. Dated: May 10, 2007. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E7-9382 Filed 5-15-07; 8:45 am] BILLING CODE 4910-59-P 72 94 Wednesday, May 16, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request May 10, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Forest Service *Title:* Timber Purchasers' Cost and Sales Data. *OMB Control Number:* 0596-0017. *Summary of Collection:* The Multiple-Use Sustained Yield Act of 1960, the Forest Rangeland Renewable Resources Planning Act of 1974, and the National Forest Management Act of 1976, authorizes the Forest
(FS)to sell forest products and National Forest System timber. FS timber appraisers develop advertised timber sale prices using a transaction evidence method of appraisal. Transaction evidence appraisals begin with an average of past successful bids by timber purchasers for timber for which the stumpage rate has been adjusted for the timber sale and the market conditions at the time. FS will collect cost data through the review of submissions by the timber purchasers both locally and nationally. There are no forms required for the collection of costs and timber sale data. *Need and Use of the Information:* FS will collect information to verify the minimum rates returned a fair value to the Government and that the transaction system is a reliable approach to valuing timber. The information is also used to assure the accuracy of the transaction evidence system and to develop minimum stumpage rates for small sales or for areas where there is no current sale activity to use for transaction evidence. If the information is not collect, FS does not have a sound check to determine if the value being received from timber sales really reflects the timber's true value. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 20. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 20. Forest Service *Title:* Annual Wildfire Summary Report. *OMB Control Number:* 0596-0025. *Summary of Collection:* The Cooperative Forestry Assistance Act of 1978 (U.S.C. 2101) requires the Forest Service
(FS)to collect information about wildfire suppression efforts by State and local fire fighting agencies in order to support specific congressional funding requests for the Forest Service State and Private Forestry Cooperative Fire Program. The program provides supplemental funding for State and local fire fighting agencies. The FS works cooperatively with State and local fire fighting agencies to support their fire suppression efforts. FS will collect information using form FS 3100-8, Annual Wildfire Summary Report. *Need and Use of the Information:* FS will collect information to determine if the Cooperative Fire Program funds, provided to the State and local fire fighting agencies have been used by State and local agencies to improve their fire suppression capabilities. The information collected will be shared with the public about the importance of the State and Private Cooperative Fire Program. FS would be unable to assess the effectiveness of the State and Private Forestry Cooperative Fire Program if the information provided on FS-3100-8, were not collected. *Description of Respondents:* State, Local or Tribal Government. *Number of Respondents:* 56. *Frequency of Responses:* Reporting: Annually. *Total Burden Hours:* 28. Forest Service *Title:* 36 CFR Part 228, Subpart C—Disposal of Mineral Materials. *OMB Control Number:* 0596-0081. *Summary of Collection:* The Forest Service
(FS)is responsible for overseeing the management of National Forest System land. The Multiple-Use Mining Act of 1955 (30 U.S.C. 601, 603, 611-615) gives the FS specific authority to manage the disposal of mineral materials mined from National Forest land. FS uses form FS-2800-9, “Contract for the Sale of Mineral Materials” to collect detailed information on the planned mining and disposal operations as well as a contract for the sale of mineral materials. *Need and Use of the Information:* FS will use information collected from the public to ensure that environmental impacts of mineral material disposal are minimized. A review of the operating plan provides the authorized officer the opportunity to determine if the proposed operation is appropriate and consistent with all applicable land management laws and regulations. The information also provides the means of documenting planned operations and the terms and conditions that the FS deems necessary to protect surface resources. If FS did not collect this information, a self-policing situation would exist. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 8,400. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 21,000. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-9387 Filed 5-15-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request May 11, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Agricultural Marketing Service *Title:* Onions Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon. *OMB Control Number:* 0581-0241. *Summary of Collection:* Marketing Order No. 958 regulates the handling of onions grown in certain designated counties in Idaho, and Malheur County, Oregon. The Agricultural Marketing Agreement Act of 1937, Secs. 1-19, 48 Stat. 31, as amended, (7U.S.C. 601-674) authorizes the promulgation of marketing orders for certain agricultural commodities and the issuance of regulations thereof for the purpose of providing orderly marketing conditions in interstate and intrastate commerce and for improving returns to producers. *Need and Use of the Information:* The Idaho-Eastern Onion Committee will use forms to collect information about the issuance of grade, size, quality, maturity, pack, container markings, shipping holidays, inspection and reporting requirements from individuals and firms who are involved in the production, handling and processing of onions grown in the production area. This information is necessary to effectively carry out the requirements of the Order, and fulfill the intent of the Act as expressed in the Order. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 55. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 359. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-9457 Filed 5-15-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0006] Availability of an Environmental Assessment and Finding of No Significant Impact for a Proposed Field Release of Rice Genetically Engineered To Express Lactoferrin, Lysozyme, or Serum Albumin AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service has prepared an environmental assessment for confined field release of rice plants genetically engineered to express the human proteins lactoferrin, lysozyme, or serum albumin. After assessment of the application, review of pertinent scientific information, and consideration of comments provided by the public, we have concluded that these field releases will not present a risk of introducing or disseminating a plant pest. We have completed the environmental assessment and concluded that this field release will not have a significant impact on the quality of the human environment. Based on its finding of no significant impact, the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared for these field releases. EFFECTIVE DATE: May 16, 2007. ADDRESSES: You may read the environmental assessment (EA), the finding of no significant impact (FONSI), and any comments we received on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. The EA, FONSI and decision notice, and responses to comments are available on the Internet at the following links: • *http://www.aphis.usda.gov/brs/aphisdocs/06_27801r_ea.pdf* • *http://www.aphis.usda.gov/brs/aphisdocs/06_27802r_ea.pdf* • *http://www.aphis.usda.gov/brs/aphisdocs/06_28502r_ea.pdf* FOR FURTHER INFORMATION CONTACT: Mr. John Cordts, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1236;
(301)734-5531. To obtain copies of the EA, FONSI and decision notice, and response to comments, contact Ms. Cynthia Eck at
(301)734-0667; e-mail: *cynthia.a.eck@aphis.usda.gov* . SUPPLEMENTARY INFORMATION: The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.” A permit must be obtained or a notification acknowledged before a regulated article may be introduced. The regulations set forth the permit application requirements and the notification procedures for the importation, interstate movement, or release in the environment of a regulated article. On October 5, 2006, the Animal and Plant Health Inspection Service (APHIS) received two permit applications (06-278-01r and 06-278-02r) followed by a third permit application (06-285-02r) received on October 12, 2006, from Ventria Bioscience, Sacramento, CA, for confined field release of rice ( *Oryza sativa* ) plants genetically engineered to express genes coding for the proteins lactoferrin, lysozyme, or serum albumin, respectively. The proposed field releases are to be conducted in Geary County, KS. The subject plants have been genetically engineered, using techniques of micro-projectile bombardment or disarmed *Agrobacterium* -mediated transformation, to express proteins for recombinant human lactoferrin, lysozyme, or serum albumin. Expression of the genes is controlled by the rice glutelin 1 promoter (GT1), the rice glutelin 1 signal peptide (gt1), and the nopaline synthase
(NOS)terminator sequence from *Agrobacterium tumefaciens* . The genes are expressed only in the seed. In addition, the plants may contain either or both of the coding sequences for the genes hygromycin phosphotransferase ( *hpt* ) or phosphinothricin acetyltransferase ( *pat* ), which are marker genes that allow for the selection of transgenic tissues in the laboratory using the antibiotic hygromycin and/or the herbicide bialaphos. Neither selectable marker gene is expressed in mature rice tissues, nor do they have any inherent plant pest characteristics or enhance gene transfer from plants to other organisms. The genetically engineered rice plants are considered regulated articles under the regulations in 7 CFR part 340 because they contain gene sequences from plant pathogens. The purpose of these field releases is for pure seed production and for the extraction of lactoferrin, lysozyme, and serum albumin for a variety of research and commercial products. There is currently no commercial rice production in Geary County or in any other location in the State of Kansas. The planting will be conducted using physical confinement measures. In addition, the protocols and field plot design, as well as the procedures for termination of the field plantings, are designed to ensure that none of the subject rice plants persist in the environment after the crop is harvested. On February 28, 2007, APHIS published a notice 1 in the **Federal Register** (72 FR 8959-8960, Docket No. APHIS-2007-0006) announcing the availability of an environmental assessment
(EA)for the proposed field release of rice genetically engineered to express lactoferrin, lysozyme, or serum albumin. During the designated 30-day comment period, which ended March 30, 2007, APHIS received 20,034 comments. Of the 20,034 comments received, 20,005 were opposed to APHIS' approval of these permits. Respondents opposing APHIS' approval of these permits were four public interest groups, academic professionals, organic food producers, rice growers, millers (or from related industries), and individuals. One public interest group submitted 13,289 nearly identical comments, and 5,621 nearly identical comments were submitted by another public interest group. There were 29 comments supporting APHIS' approval of these permits. Respondents supporting the approval of these permits were from academia, a farm bureau, a corn and grain sorghum growers association, a corporation, a State government agency, and individuals. APHIS has addressed the issues raised during the comment period and has provided responses to these comments as an attachment to the finding of no significant impact (FONSI). Pursuant to the regulations in 7 CFR part 340 promulgated under the Plant Protection Act, APHIS has determined that these field releases will not pose a risk of introducing or disseminating a plant pest. Additionally, based upon analysis described in the EA, APHIS has determined that the action proposed in Alternative 3 of the EA, issue the permit with supplemental permit conditions, will not have a significant impact on the quality of the human environment. You may read the FONSI and decision notice on the Internet or in the APHIS reading room (see ADDRESSES above). Copies may also be obtained from the person listed under FOR FURTHER INFORMATION CONTACT . The EA and FONSI were prepared in accordance with
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). Authority: 7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3. Done in Washington, DC, this 9th day of May, 2007. W. Ron DeHaven, Administrator, Animal and Plant Health Inspection Service. 1 To view the notice, EA, and the comments we received, go to *http://www.regulations.gov* , click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2007-0006, then click on “Submit.” Clicking on the Docket ID link in the search results page will produce a list of all documents in the docket. [FR Doc. E7-9432 Filed 5-15-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Beaver Creek Allotment Management Plan on the Medicine Wheel/Paintrock Ranger Districts, Bighorn National Forest, Big Horn County, WY AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The USDA, Forest Service, will prepare an environmental impact statement
(EIS)to update range management planning on fourteen
(14)cattle/horse and sheep/goat grazing allotments in the Beaver Creek area, which will result in development of new allotment management plans (AMPs). The agency gives notice of the full environmental analysis and decision-making process that will occur on the proposal so that interested and affected people may become aware of how they may participate in the process and contribute to the final decision. DATES: Comments and input regarding the proposal were requested from the public, other groups and agencies, via a legal notice published in the Casper Star-Tribune on March 4, 2007. Additional comments may be made at the addresses below, and would be most helpful if submitted within thirty days of the publication of this notice. Based on the comments received and preliminary analysis, the Responsible Official has determined that an environmental impact statement will be prepared for this project. The draft environmental impact statement is expected in December, 2007 and the final environmental impact statement is expected April, 2007. ADDRESSES: Send written comments and suggestions concerning this proposal to Dave Sisk, District Ranger, Medicine Wheel/Paintrock Ranger District, Bighorn National Forest, 604 E. Main, Lovell, Wyoming 82431. FOR FURTHER INFORMATION: Direct questions to Bernie Bornong, Interdisciplinary Team Leader, Bighorn National Forest, phone
(307)674-2600. SUPPLEMENTARY INFORMATION: The allotments are located approximately 35 miles, by road, southeast of Lovell, Wyoming in the Bighorn River drainage. National Forest System lands within the Bighorn National Forest will be considered in the proposal. The purpose of the analysis is to determine if livestock grazing will continue on the analysis area. If the decision is to continue livestock grazing, then updated management strategies outlining how livestock will be grazed will be developed to assure implementation of Forest Plan management direction. The analysis will consider actions that continue to improve trends in vegetation, watershed conditions, and ecological sustainability relative to livestock grazing within the allotments. Management actions are proposed to be implemented beginning in the year 2009. The Bighorn National Forest Land and Resource Management Plan (Forest Plan) identifies livestock grazing as an appropriate use and makes initial determinations for lands capable and suitable for grazing by domestic livestock. The fourteen allotments involved are: Bear/Crystal Creek Sheep and Goat (S&G), Beaver Creek S&G, Finger Creek Cattle and Horse (C&H), Grouse Creek S&G, Hunt Mountain S&G, Matthews Ridge C&H, Red Canyon S&G, Red Canyon C&H, Sunlight Mesa C&H, South Park C&H, Whaley Creek S&G, Wiley Sundown C&H, Antelope Ridge S&G, and Little Horn S&G Allotments. Purpose and Need for Action: The purpose of this project is to determine if livestock grazing will continue to be authorized on the fourteen allotments, and if it is to continue, how to best to utilize adaptive management strategies to maintain or achieve desired conditions and meet forest plan objectives. Livestock grazing is currently occurring on most of the allotments under the existing allotment management plan
(AMP)and through direction provided in the Annual Operating Instructions. A few of the allotments are currently vacant. Continuation of livestock grazing will require reviewing existing management strategies and, if necessary, updating them to implement forest plan direction and meet Section 504 of Public Law 104-19 (Rescission Bill, signed 7/27/95). The results of this analysis may require modifying term grazing permits and AMPs. Modifications will be documented in updated AMPs for the allotments. An additional purpose of this project is to maintain or move toward desired conditions for sagebrush/grassland communities; specifically, to maintain a mosaic of vegetation composition and structure that emulates, or moves toward, natural processes. The need to provide a mosaic of sagebrush cover densities has been identified in the project area. *Proposed Action:* The proposed action is to continue livestock grazing using adaptive management strategies to meet or move toward Forest Plan and allotment-specific desired conditions. This includes changing livestock management strategies, constructing additional improvements (fences and water developments), and treating sagebrush. *Possible Alternatives:* Two additional alternatives have been identified to date:
(a)Remove livestock grazing from these allotments; and,
(b)Continue current management strategies. *Responsible Official:* Dave Sisk, District Ranger, Medicine Wheel/Paintrock Ranger District, Bighorn National Forest, 604 E. Main, Lovell, Wyoming 82431. *Nature of Decision to be Made:* The Responsible Official will consider the results of the analysis and its findings and then document the final decision in a Record of Decision (ROD). The decision will determine whether or not to authorize livestock grazing on all, part, or none of the allotments, and if so, what adaptive management design criteria, adaptive options, and monitoring will be implemented so as to meet or move toward the desired conditions in the defined timeframe. *Scoping Process:* Formal scoping for this project occurred in March 2007. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC* , 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc* . v. *Harris* , 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: March 4, 2007. Dave Sisk, Medicine Wheel/Paintrock District Ranger. [FR Doc. E7-9386 Filed 5-15-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RIN 0648-XA17] Endangered and Threatened Species; Take of Anadromous Fish AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Notice; issuance of permit. SUMMARY: This notice advises the public that an incidental take permit has been issued to the Grants Pass Irrigation District for the continued operation and maintenance of Savage Rapids Dam at Grants Pass, Oregon, and that the decision documents are available upon request. DATES: Permit 1607 was issued on May 7, 2007, subject to certain conditions set forth therein, and took effect on May 7, 2007. The permit expires on November 1, 2009. ADDRESSES: Requests for copies of the decision documents or any of the other associated documents should be directed to the Habitat Conservation Division, NOAA's National Marine Fisheries Service, 2900 NW Stewart Parkway, Roseburg, OR 97470. The documents are also available on the Internet at *www.nwr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Ken Phippen, at phone number:
(541)957-3385, e-mail: *ken.phippen@noaa.gov* . SUPPLEMENTARY INFORMATION: This notice is relevant to the following species: Coho salmon ( *Oncorhynchus kisutch* ): threatened Southern Oregon and Northern California Coasts evolutionarily significant unit. Dated: May 10, 2007. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-9423 Filed 5-15-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA32 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for an Exempted Fishing Permit AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for comments. SUMMARY: The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator), has made a preliminary determination that an Exempted Fishing Permit
(EFP)application submitted by Dr. Pingguo He of the University of New Hampshire
(UNH)contains all of the required information and warrants further consideration. The Assistant Regional Administrator has made a preliminary determination that the activities authorized under this EFP would be consistent with the goals and objectives of the Northeast
(NE)Multispecies Fishery Management Plan (FMP). However, further review and consultation may be necessary before a final determination is made to issue an EFP. Therefore, NMFS announces that the Assistant Regional Administrator proposes to recommend that an EFP be issued that would allow one commercial fishing vessel to conduct fishing operations that are otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The EFP would enable researchers to test an experimental whiting net that uses wheeled ground gear by granting exemption from the requirement to use a raised footrope trawl. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs. DATES: Comments must be received on or before May 31, 2007. ADDRESSES: You may submit written comments by any of the following methods: • Email: *DA7-138@noaa.gov* . Include in the subject line “Comments on wheeled whiting trawl EFP.” • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, NE Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on wheeled whiting trawl EFP, DA7-138.” • Fax:
(978)281-9135. FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Management Specialist, 978-281-9341. SUPPLEMENTARY INFORMATION: An application for an EFP was submitted on May 2, 2007, by Dr. He of UNH and his industry partner Vincent Balzano, for a project funded under the Northeast Consortium. The primary goal of this study is to conduct feasibility and field testing of a trawl net equipped with a novel wheeled ground gear that may reduce the environmental impact on the seabed and reduce fuel consumption by the vessel. The EFP would exempt one vessel from the requirement to use a raised footrope trawl net as specified at 50 CFR 648.80(a)(16) while conducting research trips in the Gulf of Maine
(GOM)Grate Raised Footrope Trawl Whiting Exempted Fishery. Initial testing of this gear will be conducted on a beach by towing the ground gear between two rented beach vehicles. During these trials, video recordings and photographs will be taken to evaluate the gear's rolling function and necessary initial adjustments and modifications will be made. At sea research trips would be conducted over four days between July 1 and November 30, 2007. The experimental trawl net, with the exception of the ground gear, would conform to the requirements of this exempted fishery including a minimum 2.5-inch (6.35 cm) mesh size and a properly installed finfish excluder device. During trials, observations of the gear would be made with an underwater camera system and acoustic monitoring instruments would be used to measure net geometry. The applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited. Authority: 16 U.S.C. 1801 *et seq.* Dated: May 11, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-9376 Filed 5-15-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [XRIN: 0648-XA29] New England Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The New England Fishery Management Council's (Council) Vessel Monitoring Systems (VMS)/Enforcement Committee will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). DATES: The meeting will be held on Monday, June 18, 2007, at 1 p.m. ADDRESSES: The meeting will be held at the Eastland Park Hotel, 157 High Street, Portland, ME 04101; telephone:
(207)775-5411. *Council address* : New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978)465-0492. SUPPLEMENTARY INFORMATION: The items of discussion in the committee's agenda are as follows: 1. Introduction: safety, regulation compliance, and familiarizing industry with the proper use of VMS. 2. Presentation by NOAA's Office for Law Enforcement: the capabilities and limitations of VMS as an enforcement tool. 3. Comments and recommendations from the public, VMS users, state agencies and the Coast Guard. The committee has received the following requests: a. Safe harbor protocol, to suspend a fishing trip due to storms or other emergencies; b. Produce a laminated sheet of emergency contacts; c. Declaration in/out of a fishery while at sea, rather than in port; d. Change polling frequency, to be based on fishery declaration; e. Closed area transit declaration, to minimize gear stowage requirements; f. Completion of the days-at-sea
(DAS)web page by NMFS; g. Inform fishermen of existing safety features on their VMS units by vendors. h. Examine polling outages, frequency and duration, by vendor. i. Improve safety by consistently applying the minimum landing limit to once per 24 hours across all fisheries. j. Develop an updated VMS program to eliminate inconsistent or duplicative regulations, and increase flexibility and improve administration of industry reporting requirements. 4. Industry and law enforcement dialog on VMS usage and how it can be improved. 5. Other business. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES ) at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 *et seq.* Dated: May 11, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-9373 Filed 5-15-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [XRIN: 0648-XA30] Fisheries of the South Atlantic; Southeastern Data, Assessment, and Review (SEDAR); greater amberjack; red snapper. AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of SEDAR Workshops for South Atlantic greater amberjack and red snapper. SUMMARY: The SEDAR assessments of the South Atlantic stocks of greater amberjack and red snapper will consist of a series of three workshops: a Data Workshop, an Assessment Workshop, and a Review Workshop. This is the fifteenth SEDAR. See SUPPLEMENTARY INFORMATION . DATES: The Data Workshop will take place July 9-13, 2007; the Assessment Workshop will take place October 22-26, 2007; the Review Workshop will take place January 28-February 1, 2008. See SUPPLEMENTARY INFORMATION . ADDRESSES: The Data Workshop will be held at the Francis Marion Hotel, 387 King Street, Charleston, SC 29103; telephone:
(843)722-0600. The Assessment Workshop will be held at the Center for Coastal Fisheries and Habitat Research Beaufort Laboratory, 101 Piver's Island Road, Beaufort, NC 28516. The Review Workshop will be held at the Holiday Inn Brownstone, 1707 Hillsborough Street, Raleigh, NC 27605; telephone:
(919)828-0811. FOR FURTHER INFORMATION CONTACT: John Carmichael, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone:
(843)571-4366. SUPPLEMENTARY INFORMATION: The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the SEDAR process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR includes three workshops:
(1)Data Workshop,
(2)Stock Assessment Workshop and
(3)Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Stock Assessment Workshop is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Consensus Summary documenting Panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies. SEDAR 15 Workshop Schedule: July 9-13, 2007; SEDAR 15 Data Workshop July 9, 2007: 1 p.m. - 8 p.m.; July 3-12, 2007: 8 a.m. - 8 p.m.; July 13, 2007: 8 a.m. - 1 p.m. An assessment data set and associated documentation will be developed during the Data Workshop. Participants will evaluate all available data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery dependent and fishery independent measures of stock abundance. October 22-26, 2007; SEDAR 15 Assessment Workshop October 22, 2007: 1 p.m. - 8 p.m.; October 23-25, 2007: 8 a.m. - 8 p.m.; October 26, 2007: 8 a.m. - 1 p.m. Using datasets provided by the Data Workshop, participants will develop population models to evaluate stock status, estimate population benchmarks and Sustainable Fisheries Act criteria, and project future conditions. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters. Participants will prepare a workshop report, compare and contrast various assessment approaches, and determine whether the assessments are adequate for submission to the review panel. January 28-February 1, 2008; SEDAR 15 Review Workshop January 28, 2008: 1 p.m. - 8 p.m.; January 29-31, 2008: 8 a.m. - 8 p.m.; February 1, 2008: 8 a.m. - 1 p.m. The Review Workshop is an independent peer review of the assessment developed during the Data and Assessment Workshops. Workshop Panelists will review the assessment and document their comments and recommendations in a Consensus Summary. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see FOR FURTHER INFORMATION CONTACT ) at least 10 business days prior to each workshop. Dated: May 11, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-9374 Filed 5-15-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RIN 0648-XA19] Endangered and Threatened Species; Take of Anadromous Fish AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Receipt of application for scientific research/enhancement permit
(1610)and request for comment. SUMMARY: Notice is hereby given that NMFS has received an application for a permit from Thomas R. Payne and Associates, Arcata, California (Permit 1610). This permit would affect the Southern California
(SC)steelhead ( *Oncorhynchus mykiss* ) distinct population segment (DPS), Northern California
(NC)steelhead DPS, Central California Coast
(CCC)steelhead DPS, California Coastal
(CC)Chinook salmon ( *Oncorhynchus tshawytscha* ) Evolutionarily Significant Population (ESU), Southern Oregon/Northern California Coast (SONCC) coho salmon ( *Oncorhynchus kisutch* ) ESU, and CCC coho salmon ESU. This document serves to notify the public of the availability of the permit application for review and comment before a final approval or disapproval is made by NMFS. DATES: Written comments on the permit application must be received at the appropriate address or fax number (see ADDRESSES ) no later than 5 p.m. Daylight Savings Time on June 15, 2007. ADDRESSES: Written comments on this permit request should be sent to the office indicated below. Comments may also be sent via fax to the number indicated for the request. Comments will not be accepted if submitted via e-mail or the internet. The application and related documents are available for review, by appointment at NMFS, 1655 Heindon Road, Arcata, CA 95521 (ph: 707-825-5185, fax: 707-825-4840). FOR FURTHER INFORMATION CONTACT: Diane Ashton at phone number (707-825-5185), or e-mail: *diane.ashton@noaa.gov* SUPPLEMENTARY INFORMATION: Authority Issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications:
(1)Are applied for in good faith;
(2)would not operate to the disadvantage of the listed species which are the subject of the permits; and
(3)are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations governing listed fish and wildlife permits (50 CFR parts 222-226). Those individuals requesting a hearing on the application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see ADDRESSES ). The holding of such a hearing is at the discretion of the Assistant Administrator for Fisheries, NOAA. All statements and opinions contained in the permit action summaries are those of the applicant and do not necessarily reflect the views of NMFS. Species Covered in This Notice This notice is relevant to the endangered CCC coho salmon ESU, and the following threatened salmonid DPSs and ESUs: SC steelhead DPS, NC steelhead DPS, CCC steelhead DPS, CC Chinook salmon ESU, and SONCC coho salmon ESU. Permit Request Received. Permit 1610 Thomas Payne has requested a Permit
(1610)for take of the above listed species associated with four studies. Study 1 (Ventura River Project) would assess the distribution and estimate the abundance of juvenile steelhead/rainbow trout, with a comparison to estimates from 2006, in the Ventura River and principal tributaries, Ventura County, California. Study 2 (Martin Slough Project) would assess the fish habitat quality of Martin Slough and to document the distribution and abundance of fish, including juvenile salmonids, in Martin Slough which flows into Swain Slough, a tributary to Elk River which flows into Humboldt Bay, Humboldt County, California . Study 3 (Russian River Project) would assess the fish habitat quality and fish distribution, including juvenile salmonids, in two tributaries of the upper Russian River basin near Ukiah, Mendocino County, California. Study 4 (PALCO Marsh Project) would assess the fish populations in PALCO Marsh and tidal channels to Humboldt Bay, Humboldt County, California. Permit 1610, if issued, would expire September, 2017. Dated: May 10, 2007. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-9422 Filed 5-15-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE Department of the Army Preparation of the Programmatic Environmental Impact Statement
(PEIS)for the Growth of the United States Army AGENCY: Department of the Army, DOD ACTION: Notice of intent. SUMMARY: The President of the United States has directed the growth of the United States Army. In an unpredictable and rapidly changing global security environment, this directive is designed to ensure the Nation has the ground forces necessary to meet its strategic security and defense needs. These needs, as outlined in the National Security Strategy, include the disruption of terrorist networks, the prevention of nuclear proliferation, the support of peace and regional stability, the denial of rogue Nation support to terrorist organizations, and the promotion and advancement of democratic forms of government. The President has determined that the implementation of these security goals in the 21st century will require increased numbers of U.S. Army forces to sustain the military operaitons required to support these objectives. The Army, therefore, intends to prepare a PEIS to analyze alternatives for executing the Presidentially directed growth required to support the defense and security missions of the Nation in the 21st century. The Presidential decision directs the Army to add 74,200 active and reserve component Soldiers to its total end strength. This growth includes the addition of six Brigade Combat Teams
(BCTs)and the combat support
(CS)and combat service support
(CSS)units required to support them. In addition, the growth of the force will include “right sizing” or rebalancing the Army force structure to add increaed numbers of high demand critical skills which have been identified as shortfalls. Military skills, such as military police, engineers, and explosive ordnance detachments, must be added to the force in greater numbers to meet the increased needs for these types of units in operational theaters abroad. Rebalancing of the Army's force is needed to ensure the Army has the proper capabilities to sustain operations for promoting global and national security now and into the foreseeable future. In addition to this growth, the Army recognizes the need to continue with initiatives to restructure its forces to implement the standard modular unit configurations directed by the Quadrennial Defense Review
(QDR)in 2001 and 2006. Modularity is a critical component of Army Transformation and the Army continues to implement the QDR directive to standardize its units and their force structure. This standardization of Army force structure will continue to improve management and generate increased operational efficiencies within the Army. Stationing actions supporting modularity will be evaluated and considered in conjunction with stationing actions required to support Army growth. The PEIS will assess the environmental capacity of the Army's installations to accommodate different types and combinations of new units as part of the growth and restructuring. The PEIS will examine the potential environmental and socioeconomic impacts at installations resulting from various combinations of new unit stationing actions. These stationing actions could include additional CS or CSS units, the addition of different types of modular BCTs, or combinations of these actions at a given stationing location. Under the Army's modularity initiative, which standardizes BCT force structure, there are three types of maneuver BCTs that will be discussed in the PEIS. These include the infantry BCT which consists of approximately 3,500 Soldiers; the Stryker BCT which consists of approximately 4,000 Soldiers; and the heavy BCT which consists of approximately 3,800 Soldiers. Potential impacts resulting from stationing actions of new CS and CSS units and these maneuver BCTs will be discussed and assessed at installation locations that have potential to support the growth and restructuring of the Army. The PEIS will analyze the proposed action's impacts upon the natural, cultural, and man-made environments at those stationing locations best able to meet the needs of the Army and its Soldiers and Families. The Army intends to analyze the following alternatives in the PEIS:
(1)Grow and restructure the Army by permanently stationing new units at existing Army installations within the United States and retaining some units at overseas installations outside of the continental United States that were originally scheduled to return to the United States;
(2)Grow and restructure the Army by permanently stationing units at existing stationing locations within the United States. As part of this alternative, overseas installations would be used to temporarily accommodate a portion of Army growth while permanent facilities were constructed at existing Army installations within the United States; and
(3)Grow and restructure the Army by permanently stationing new units at new and existing Army stationing locations within the United States. This alternative would include the construction of permanent party facilities at locations where the Army owns land but does not currently station permanent party personnel. As part of this alternative, overseas installations would be used to temporarily accommodate a portion of Army growth while permanent facilities were constructed within the United States. In addition to the above alternatives, the no-action alternatives will be considered and used as a baseline for comparison of alternatives. The no-action alternative is to retain the U.S. Army at its current and strength and force structure. The no-action alternative includes those realignments and stationing actions directed by Base Realignment and Closure legislation in 2005, Army Global Defense Posture Realignment, and Army Modular Forces initiatives. The no-action alternative serves as a baseline for the comparison only and is not a viable means for meeting the current and future strategic security and defense requirements of the Nation. Viable alternative stationing locations considered in this analysis for the growth of the Army are those installations that are best able to meet Army unit requirements for training ranges and maneuver space, housing and office space, maintenance and vehicle parking, and Soldier and Family quality of life (e.g., schools, gyms, medical facilities, reducing family disruption). The proposed action will require the Army to balance strategic, sustainment, and environmental considerations with evolving world conditions and threats to national defense and security. FOR FURTHER INFORMATION CONTACT: Mr. Robert E. DiMichele, Public Affairs Officer, U.S. Army Environmental Command, Aberdeen Proving Ground, MD 21010; phone
(410)436-2556. SUPPLEMENTARY INFORMATION: The global security environment is turbulent, unpredictable, and rapidly changing. It has placed considerable demands on the Nation's military, and highlighted the need for the Army to correct shortfalls in high demand skills while reassessing its force capability. No one has felt the impacts of the recent demands of the modern security environmental more than Soldiers and their Families. To meet the challenges of the wider range of security threats present in the 21st century the Army requires the growth and restructuring of its forces in order to sustain the broad range of operations required for national and global stability. The PEIS is being prepared to comply with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321 *et seq.* ) and meet Army NEPA procedures, which are outlined in Environmental Analysis of Army Actions (32 CFR part 651). These regulations require the Army to consider the environmental impacts of its proposed action and alternatives and to solicit the views of the public so it can make an informed final decision regarding how to proceed. Proposed alternatives to grow the Army could involve three primary action depending on the installation being analyzed. These actions include the construction of housing and quality of life facilities (i.e., schools, gymnasiums, hospitals), the construction of new training ranges and infrastructure, and changes in the intensity of use of maneuver land and firing ranges associated with the increased frequency of training events. Evaluations will include strategic military and national security considerations for new stationing actions at locations which, if selected, are capable of supporting the National Security Strategy (2006), the QDR (2006), National Military Strategy, and the Army Campaign Plan. These strategic guidance documents have been incorporated into the Army's decision-making process. All of these individual components will be considered in the Army's PEIS for growth of the force in order to ensure a range of reasonable alternatives are carried forward which support the Nation's security requirements. Based on public scoping and the factors discussed above, the Army will refine its range of reasonable alternatives to the extent possible to accommodate both mission requirements and quality of life considerations. In reaching its decision, the Army will assess and consider public concerns. The PEIS compares the direct, indirect, and cumulative environmental effects that may result from stationing actions connected with initiatives to grow the Army. The primary environmental issues to be analyzed will include those identified as the result of the scoping process and installation-specific considerations. These issues may include impacts to soil, water and air quality, airspace conflicts, natural and cultural resources, land use compatibility, noise, socioeconomics, environmental justice, energy use, human health and safety considerations, and infrastructure and range/training requirements. Scoping and Public Comment: All interested members of the public, federally-recognized Indian Tribes, Native Alaskans, Native Hawaiian groups, federal, state, and local agencies are invited to participate in the scoping process for the preparation of the PEIS. Written comments identifying environmental issues, concerns and opportunities to be analyzed in the PEIS will be accepted for 30 days following publication of this Notice of Intent in the **Federal Register.** Comments may be sent to Mr. Robert E. DiMichele at the above address. Dated: May 11, 2007. Addison D. Davis, Deputy Assistant Secretary of the Army, (Environment, Safety, and Occupational Health). [FR Doc. 07-2405 Filed 5-15-07; 8:45am]
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U.S. Code
43 references not yet in our index
  • 10 CFR 609
  • 42 USC 16511-16514
  • Pub. L. 110-5
  • 10 CFR 1021
  • 5 CFR 1320.1
  • Pub. L. 105-277
  • 48 CFR 9.4
  • 2 CFR 180
  • 14 CFR 39
  • 33 CFR 100
  • 36 CFR 7
  • 40 CFR 1051
  • 40 CFR 86.004-25(b)(3)(iii)
  • 36 CFR 1
  • 47 CFR 1.415
  • Pub. L. 104-13
  • Pub. L. 107-198
  • Pub. L. 104-104
  • 47 CFR 1.1200
  • 47 CFR 1.1206(b)(2)
  • 47 CFR 1.1206(b)
  • 47 USC 151-155
  • 49 CFR 571
  • 49 CFR 571.208
  • 49 CFR 552
  • 49 CFR 1.50
  • 36 CFR 228
  • 48 Stat. 31
  • 7 USC 601-674
  • 7 CFR 340
  • 7 CFR 1
  • 7 CFR 372
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • Pub. L. 104-19
  • 435 U.S. 519
  • 803 F.2d 1016
  • 490 F. Supp. 1334
  • 40 CFR 1503.3
  • 40 CFR 1501.7
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Notice of proposed rulemaking and opportunity for comment
Fed. Reg.Notices
Fed. Reg.Proposed Rules
Fed. Reg.Notices
Fed. Reg.Notices
U.S.C.§ 661
U.S.C.§ 16512
U.S.C.§ 661c
U.S.C.§ 103
U.S.C.§ 149
SCOTUS435 U.S. 519
F. App'x803 F.2d 1016
F. Supp.490 F. Supp. 1334
Cites 83 · showing 12Cited by 0 across 0 sources
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