Brucellosis is a contagious disease caused by bacteria of the genus Brucella. It affects both animals and humans. In its principal animal hosts, it causes loss of young through spontaneous abortion or birth of weak offspring, reduced milk production, and infertility. There is no economically feasible treatment for brucellosis in livestock. In humans, brucellosis initially causes flu-like symptoms, but the disease may develop into a variety of chronic conditions, including arthritis. Humans can be treated for brucellosis with antibiotics.

Brucellosis is mainly a disease of cattle, bison, and swine. Brucella abortus affects mainly bovines; B. suis affects mainly swine. Goats, sheep, and horses are also susceptible to B. abortus. In horses, the disease is known as fistulous withers. A third strain, B. melitensis, affects mainly goats and sheep.

In the United States, goats, sheep, and horses are rarely infected with B. abortus or B. melitensis. When they are, it is almost always because they have been in direct contact with infected animals or in an environment contaminated by discharges from infected animals.

The continued presence of brucellosis in a herd or flock seriously threatens the health of other animals. To prevent any possible spread of infection, we ask livestock owners to promptly destroy all infected and exposed animals. To encourage them, we pay Federal indemnity for certain cattle, bison, and swine destroyed because of brucellosis. Regulations governing indemnity for cattle, bison, and swine are contained in 9 CFR part 51.

Animals infected with brucellosis must be quarantined. Quarantining is lengthy and expensive for both the owner and the U.S. Department of Agriculture (USDA). USDA must pay to have the quarantined herd or flock tested periodically, until it is found to be free of brucellosis. In the interim, the owner may not sell or move any breeding animals, except for slaughter. This means a financial loss for the animal owner, as slaughter animals generally receive lower prices than breeding animals. Without financial incentives to destroy infected animals, some owners choose to keep their affected herds or flocks, even though the animals must remain under quarantine.

Maintaining herds/flocks under quarantine also has another major drawback—it does not guarantee that brucellosis will not spread. Brucellosis spreads both directly and indirectly. For example, a quarantined animal may jump the fence and spread disease directly to adjacent herds, or a fox, dog, vulture, or other animal may move infective materials, such as placentas, from the quarantined area to other pastures where nonquarantined livestock can come in contact with it. For these reasons, it is important to remove infected animals rapidly.

State, Federal, and industry efforts have almost completely eliminated brucellosis in the United States. B. abortus and B. suis are now present only in a few areas. As of December 2000, there were no longer any cattle herds in the United States affected with B. abortus. B. melitensis is not known to exist in the United States at this time. However, B. melitensis does exist in Mexico. In 1999, one herd of mixed goats and sheep in southern Texas was destroyed because they were found to be infected with B. melitensis. This was the first known case of B. melitensis in the United States since the 1970's.

We believe our current indemnity program is sufficient to encourage owners of affected cattle herds to allow them to be destroyed. However, goats, sheep, and horses can spread brucellosis to other livestock and to humans. The brucellosis eradication program is in its final critical stages. Removing all infected animals and herds is ultimately the only effective means of eradicating the disease. Being able to pay indemnity for goats, sheep, and horses, as we do for cattle, bison, and swine, is a crucial tool to encourage livestock owners to destroy infected or exposed animals and eliminate the last sources of infection.

The proposed indemnity program for goats, sheep, and horses that is the subject of this proposed rule would be a voluntary program. If producers respond positively, animals that pose a disease threat would be destroyed. This would advance our program to eradicate brucellosis in the United States. If brucellosis is eradicated, U.S. livestock will be valued higher in international markets. In addition, brucellosis-related restrictions on the movement of livestock within the United States will also be removed, reducing costs for U.S. producers. These factors together indicate that U.S. livestock and livestock products will be more competitive in both national and international markets.

Therefore, we are proposing to amend the regulations in part 51 by adding a new subpart containing provisions for an indemnity program for goats, sheep, and horses.

We modeled these proposed regulations on our existing indemnity regulations for cattle and bison, making adjustments as necessary to better address brucellosis in goats, sheep, and horses, and we reorganized and rewrote the requirements to make them easier to understand. Definitions of words used in the subpart are contained in proposed § 51.20. Proposed § 51.21 contains a statement that we will cooperate with State authorities to eradicate brucellosis and pay indemnity for animals destroyed because of brucellosis. The remainder of the proposed regulations are contained in §§ 51.22 through 51.33.

Goats and sheep are herd/flock animals. A single infected animal in a herd or flock exposes all the animals in that herd/flock to the disease, and goats and sheep infected with brucellosis can easily spread it to other members of the herd/flock. Therefore, in order to eliminate any possibility of brucellosis spreading from a herd of goats, flock of sheep, or herd of mixed goats and sheep, all animals in the herd or flock must be destroyed, or depopulated. As a result, under our proposed regulations we would pay brucellosis indemnity for goats and sheep only if they are destroyed as part of a whole herd/flock depopulation (§§ 51.22(a) and 51.23(a) and (b)). An epidemiologist would have to determine if the herd/flock was affected. Whether to depopulate a herd/flock would be decided based on all available information about the affected herd/flock, including blood test results, culture results, and exposure to other animals.

Horses infected with brucellosis almost always become infected by contact with brucellosis-infected cattle, bison, swine, goats, or sheep. There is little evidence that horses play a significant role in spreading brucellosis, and we do not know of any case in the United States where an entire herd of horses has been affected with brucellosis. Therefore, horses would not be subject to the same whole herd depopulation requirement as sheep and goats. Rather, under our proposed regulations, individual horses tested and found to be infected with brucellosis would be eligible for indemnity (§ 51.23(c)).

Under the proposed regulations, the Administrator would authorize the payment of indemnity for approved herds/flocks or horses as long as: (1) Sufficient funds are available, (2) the State or area in which the animal is located is not under Federal quarantine, (3) the State has requested payment of Federal indemnity, or (4) the State has not requested a rate lower than the maximum. Prior to paying indemnity, the Veterinarian in Charge would have to have received proof that the animal or animals had been destroyed (§ 51.22(c)). These proposed regulations are the same as our current requirements for paying indemnity for cattle and bison destroyed because of brucellosis.

We would pay indemnity only for those animals that had been identified and disposed of according to our regulations. Proposed § 51.24 states that animals must be individually appraised, and that the indemnity amount will be the appraised fair market value minus the salvage value of the animal. The USDA will select and pay for an independent appraiser to determine that amount. There would be an upper limit of $20,000 on the amount of indemnity that would be paid for an individual horse. As the 1997 average U.S. sales price for a horse was $3,165, with State average sales prices ranging between $794 and $18,795, this proposed cap of $20,000 would potentially affect the owners of only the most expensive horses (e.g., purebred horses). Given that the proposed indemnity program would be voluntary, the owner of any horse would have the option of maintaining the horse in quarantine rather than destroying the horse and accepting an indemnity payment. The proposed regulations include instructions on how to prove that animals have been destroyed (§ 51.25), how to compile test records and identify animals for testing (§ 51.26), how to mark animals with identification showing they are to be destroyed (§ 51.27), how to move animals to slaughter or other locations (§ 51.28), and how to destroy animals (§ 51.29). There are time limits for marking animals with identification showing they are to be destroyed, specified in proposed § 51.27, and for destroying animals, specified in proposed § 51.29.

The regulations in proposed § 51.29 are modeled on our indemnity requirements for cattle affected with B. abortus. The only significant difference is that goats and sheep infected with B. melitensis could not be sent to slaughter. Instead, they would have to be destroyed and then buried, incinerated, or rendered in accordance with applicable State law. B. melitensis is easily transmitted by handling the carcasses of infected animals. Therefore, to protect slaughterhouse workers, we would require these animals to be disposed of by other means. B. abortus poses a very minimal risk to slaughterhouse workers, and infected animals can be safely slaughtered. Owners may, however, choose to bury, incinerate, or render carcasses of animals infected with B. abortus.

The proposed regulations require records on each animal destroyed. We would require records of tests and test results, and records showing the individual identification of animals tested and destroyed. These records would help us do three things: Ensure that the animals intended for destruction are actually infected or exposed to brucellosis; track individual animals intended for destruction to be sure they are actually destroyed; and ensure that the animals we would be paying indemnity for are the same animals that were destroyed (§§ 51.26, 51.27, and 51.29).

In addition, we would require infected and exposed animals moving interstate to do so only under permit. The animals could only be moved interstate to slaughter. This is consistent with our regulations for cattle and bison. The animals would have to be accompanied directly to slaughter by an Animal and Plant Health Inspection Service (APHIS) or State representative, or moved in vehicles closed with official seals (§ 51.28). This would help ensure that animals are not diverted en route.

All the requirements for filing an indemnity claim are in proposed § 51.30. These proposed requirements are the same as under our indemnity program for cattle.

The regulations would also include cleaning and disinfecting requirements. Premises where infected animals have been held would have to be cleaned and disinfected within a stated time limit to ensure that new animals brought there do not contract brucellosis. These proposed requirements, which are found in § 51.31, are the same as our requirements under the cattle, bison, and swine indemnity program.

Proposed § 51.32 contains a lists of claims we would not allow. Proposed § 51.33 states that if an indemnity claim is paid for animals destroyed because of brucellosis, no other claims for indemnity will be paid for the same animals. These two sections are modeled on our current requirements concerning the payment of indemnity for cattle, bison, and swine destroyed because of brucellosis.

We are also proposing to make a minor, nonsubstantive change in part 51 to reflect the creation of new subparts A and B.

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Brucellosis is a contagious, costly disease of livestock. It affects mainly ruminants and swine. However, it may also infect other animals, including horses. In addition, it is contagious to humans. Because of the serious consequences of infection in its animal hosts, which include loss of young through abortion or birth of weak offspring, reduced milk production, infertility, weight loss, and lameness, and its rapid spread among animals and potential for human infection, brucellosis is considered one of the most serious livestock diseases. At present, there is no effective treatment for animals. Affected herds/flocks and infected animals can be quarantined. However, quarantining does not eliminate possible spread; only destroying infected and exposed animals ensures that the disease is not transmitted to other animals.

We are proposing to amend the brucellosis indemnity regulations to allow us to pay indemnity for sheep, goats, and horses destroyed because of brucellosis, which would make it easier to eliminate affected herds/flocks and infected animals as sources of infection and would encourage herd and flock owners to cooperate with our brucellosis eradication program. This proposed action is intended to help reduce the incidence of brucellosis and the likelihood of it spreading within the United States.

It is estimated that there were approximately 9.8 million sheep and lambs in the United States in 1999.1 Small farms 2 account for over 99 percent of farms raising sheep and lambs, while farms considered to be large account for less than 0.3 percent of farms raising sheep and lambs. About 85 percent of all farms raising sheep and lambs have fewer than 100 animals each; these farms collectively accounted for about 17 percent of domestic sheep and lamb holdings. On the other hand, large sheep operations with 5,000 or more sheep accounted for about 26 percent of domestic sheep and lamb holdings.

According to the most recent figures available, there were approximately 57,925 goat producers in the United States in 1997, who raised about 1,989,799 goats, valued at approximately $74 million.3 With an average holding of about 35 goats, most, if not all, goat operations are relatively small and earn less than $500,000.

The United States has limited foreign trade in live sheep, live goats, and their products. Figures for 1999 are shown in table 1.

The United States also imports and exports sheep and goat meat. During 1999, U.S. imports totaled 111 million pounds of sheep and goat meat, valued at $183.74 million. Exports totaled 5.6 million pounds, valued at $6.46 million.

According to the 1997 Census of Agriculture, there were 375,218 farms in the United States with a total 2,427,277 horses. During 1997, 79,516 of these farms sold 325,306 horses for about $1.03 billion, with an average value per horse of $3,165.4 Using this average value, the total market value of horses in the United States was $10.847 billion in 1997. Over 98 percent of farms with horses had gross annual sales of less than $500,000 and thus are considered to be small entities according to the Small Business Administration size standards.5

The contribution of horses to the economy of the Nation is substantial. A study for the American Horse Council showed that the horse industry directly contributed about $25.3 billion to the gross domestic product. The horse industry's indirect and induced impact on the national economy is about $112 billion.

Horses also play an important role in the international trade of the United States. Figures for 1999 are shown in table 2.

Under this proposed rule, the amount of indemnity would be the fair market value of each animal, minus salvage, if any, received for the animal. There would usually be no salvage value for sheep and goats destroyed because of B. melitensis, as the carcass would have to be buried, incinerated, or rendered after the animal was destroyed. Animals would have to be individually appraised before destruction to determine their fair market value. An independent appraiser selected by the Administrator and paid by USDA would conduct all appraisals.

It is impossible to estimate indemnity expenditures, as market values vary depending upon the specific animal. However, as of January 1, 1999, the average national sales price of a sheep was $88, while as of January 1, 1998, it was $102. These prices reflect the average of the sale of millions of slaughter sheep, and the sale of a few thousand registered breeding sheep.6  

As of January 1, 1999, the average sales price for goats was $35 per head. As in the case of sheep, market values vary, depending whether the animal is a slaughter goat, angora goat, dairy goat, crossbred or purebred, etc.

There is much variation in the price of horses. In 1997, the average U.S. sales price for a horse was $3,165. Purebred horses are more expensive than nonpurebred. State average sales prices ranged between $794 and $18,795, with a median price of about $1,860 per horse. The median indicates that the market value of a horse in 50 percent of States was above $1,860 per head and in 50 percent below it.

At this time, there are no goats, sheep, or horses in the United States known to be infected with B. abortus or B. melitensis. We estimate that fewer than a dozen herds, flocks, or individual animals would be eligible for indemnity under this proposed rule by the time brucellosis is eradicated from the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection and recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 00-002-1. Please send a copy of your comments to: (1) Docket No. 00-002-1, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule would provide for the Department to pay indemnity for the voluntary depopulation of herds of goats, flocks of sheep, and mixed herds of goats and sheep affected with B. abortus or B. melitensis and for the voluntary slaughter of individual horses infected with brucellosis. Implementing the proposed indemnity program would necessitate the use of several information collection activities, including the completion of indemnity claims, test records, and permits; the use of official seals and animal identification; and the submission of proof of destruction and requests for the extension of certain program-related deadlines.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 15 minutes per response.

Respondents: Sheep, goat, and horse owners who may be eligible to participate in a brucellosis indemnity program; State and accredited veterinarians; and slaughter plant operators.

Estimated annual number of respondents: 4.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 4.

Estimated total annual burden on respondents: 1 hour.

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

Accordingly, we propose to amend 9 CFR part 51 as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 81-ASW-27.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 81-ASW-27, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

The FAA issued AD 81-18-01, Amendment 39-4192 (46 FR 42651, August 24, 1981), to require a retirement life on the trunnions installed on BHTI Model 206A, 206B, 206A-1, 206B-1, 206L, and 206L-1 helicopters. That action was prompted by the FAA's determination that a retirement life should be imposed on the trunnion based on fatigue testing, fatigue analysis, and service experience. That condition, if not corrected, could result in failure of the trunnion due to fatigue cracks and subsequent loss of control of the helicopter.

Since the issuance of AD 81-18-01, the FAA has issued AD 99-17-19 (64 FR 45433, August 20, 1999) that required a different method of calculating the retirement life for the trunnion, part number (P/N) 206-011-120-103, installed on BHTI Model 206L series helicopters. AD 81-18-01 established a retirement life for certain trunnions based on hours TIS. AD 99-17-19 requires a retirement life based on a Retirement Index Number (RIN) for the trunnion, P/N 206-011-120-103, installed on the Model 206L series helicopters. This AD revises AD 81-18-01 to remove the trunnion, P/N 206-011-120-103, from the applicability of that AD so that the trunnions for those models will only be affected by the RIN retirement life as required by AD 99-17-19. However, the model 206L and 206L-1 helicopters must be included in this AD because the other trunnions affected by the AD may be installed on these helicopters.

Since we have identified an unsafe condition that is likely to exist or develop on other BHTI Model 206A, 206B, 206A-1, 206B-1, 206L, and 206L-1 helicopters of the same type designs, the proposed AD would revise AD 81-18-01. This AD would contain the same requirements as AD 81-18-01 but would remove trunnion, P/N 206-011-120-103, from the applicability of that AD.

The FAA estimates that since the requirements of the AD are not changed and fewer helicopters of U.S. registry will be affected by this proposed AD revision, there will be no additional cost impact from the AD revision on U.S. operators.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that 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); (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-01-048), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The Metro North (Park Avenue) Bridge, at mile 2.1, across the Harlem River, has a vertical clearance of 25 feet at mean high water and 30 feet at mean low water. The existing drawbridge operation regulations listed at 33 CFR 117.789(e) require the bridge to open on signal, from 10 a.m. to 5 p.m., except as provided in paragraph (b).

The owner of the bridge, Metro North, requested a change to the operating regulations to allow the bridge to open on signal, from 10 a.m. to 5 p.m., after a four-hour advance notice is given.

Metro North advised the Coast Guard that all the bridge openings during the last five years were for either vessel traffic employed in the construction of the Oak Point Link railroad Bridge located upstream or Metro North test openings at the bridge. The large construction barges, with equipment such as cranes on board, generally require a bridge opening.

The vessels that frequently use this waterway on a regular basis fit under the bridges without requiring bridge openings, with the exception of the Spuyten Duyvil railroad bridge, which has only 5 feet of vertical clearance at mean high water. All the upstream bridges, with the exception of the Spuyten Duyvil railroad bridge, presently require a four-hour advance notice for bridge openings, from 10 a.m. to 5 p.m., daily.

The existing drawbridge operation regulations are consistent with regard to the four-hour advance notice requirement, from 10 a.m. to 5 p.m., daily.

In addition, all the bridges, except Spuyten Duyvil, have similar or greater vertical clearances at mean high water (MHW) and at mean low water (MLW). The clearances for the bridges on the Harlem River are as follows.

As a result of all the above information the Coast Guard believes that it is reasonable to allow the Metro North (Park Avenue) railroad bridge to open on signal, from 10 a.m. to 5 p.m., after a four-hour advance notice is given, except as provided in paragraph (b).

The Coast Guard proposes to revise the operating regulations at 33 CFR 117.789(e) to require that the draw of the Metro North (Park Avenue) Bridge, mile 2.1, shall open on signal, except as provided in paragraph (b) of this section, from 10 a.m. to 5 p.m., if at least a four-hour advance notice is given by calling the number posted at the bridge.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge will continue to open for vessel traffic after the advance notice is given.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, Feb. 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under paragraph 10e of the regulatory policies and procedures of DOT, is unnecessary. This conclusion is based on the fact that the bridge will open on signal after the advance notice is given.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under section 5 U.S.C. 605(b), that this proposed rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based upon the fact that the bridge will open on signal after the advance notice is given.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

We have analyzed this proposed rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons set out in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

Throughout this document wherever “we,” “us,” or “our” are used, we mean EPA.

The Clean Air Act was first enacted in 1970. In the 1970s and early 1980s, thousands of state and local agency regulations were submitted to EPA for incorporation into the SIP in order to fulfill the new federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements not required by the Act. Due to time and resource constraints, EPA's review of these submittals focussed primarily on the new substantive requirements and we approved many other elements into the SIP with minimal review.

We now recognize that many of these elements were not appropriate for approval into the SIP. In general, these elements are appropriate for state and local agencies to adopt and implement, but it is not necessary or appropriate to make them federally enforceable by incorporating them into the applicable SIP. These include:

A. Various local fee provisions that are not economic incentive programs and are not designed to replace or relax a SIP emission limit. While it is appropriate for local agencies to implement fee provisions, for example, to recover costs for issuing permits, it is generally not appropriate to make local fee collection federally enforceable.

B. Various provisions describing local agency investigative or enforcement authority such as some rules titled enforcement, authority to inspect, authority to arrest, violation notices, and orders for abatement. States may need to adopt such rules to demonstrate adequate enforcement authority under section 110(a)(2) of the Act, but they should not be approved into the applicable SIP to avoid potential conflict with EPA's independent authorities provided in sections 113, 114 and elsewhere.

C. Local adoption of federal NSPS requirements either by reference or by adopting text identical or modified from the requirements found in 40 CFR part 60. Since EPA has independent authority to implement 40 CFR part 60, it is not appropriate to make parallel local authorities federally enforceable by approving them into the applicable SIP.

D. Local adoption of NESHAP requirements found in 40 CFR part 61 as similarly discussed regarding NSPS.

EPA has determined that the California rules listed in the tables below are inappropriate for inclusion in the SIP, but were previously approved into the SIP in error. Dates that these rules were submitted by the State and approved by EPA are provided. We are proposing deletion of these rules and any earlier versions of these rules from the individual air pollution control district portions of the California SIP under section section 110(k)(6) as inconsistent with the requirements of CAA section 110 and part D.

For further information on this action, pertaining to approval of PADEP's delegation of authority for the hazardous air pollutant emission standards for perchloroethylene dry cleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide sterilizers, halogenated solvent cleaning and secondary lead smelters (Clean Air Act section 112), please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases of hazardous substances. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, pollutants, or contaminants under CERCLA. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken. See Report of the Senate Committee on Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR 40659 (September 8, 1983).

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing an HRS score and determining whether the facility is placed on the NPL. EPA generally is not the lead agency at Federal Facilities Section sites, and its role at such sites is accordingly less extensive than at other sites.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: Ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Each State may designate a single site as its top priority to be listed on the NPL, regardless of the HRS score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State (see 42 U.S.C. 9605(a)(8)(B)); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed regardless of their HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• EPA determines that the release poses a significant threat to public health.

• EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on June 14, 2001 (66 FR 32235).

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to remedy the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. As a legal matter, the site is not coextensive with that area, and the boundaries of the installation or plant are not the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location to which contamination from that area has come to be located, or from which that contamination came.

In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site properly understood is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to nor confined by the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. The precise nature and extent of the site are typically not known at the time of listing. Also, the site name is merely used to help identify the geographic location of the contamination. For example, the “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site.

EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a Remedial Investigation/Feasibility Study (“RI/FS”) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, this inquiry focuses on an evaluation of the threat posed; the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, supporting information can be submitted to the Agency at any time after a party receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate. As of August 23, 2001, the Agency has deleted 239 sites from the NPL.

In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use. As of August 23, 2001, EPA has deleted 24 portions of 23 sites.

EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) The site qualifies for deletion from the NPL.

As of August 23, 2001, there are a total of 773 sites on the CCL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund.

Yes, documents that form the basis for EPA's evaluation and scoring of the sites in this rule are contained in dockets located both at EPA Headquarters in Washington, DC and in the Regional offices.

You may view the documents, by appointment only, in the Headquarters or the Regional dockets after the appearance of this proposed rule. The hours of operation for the Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal holidays. Please contact the Regional dockets for hours.

Following is the contact information for the EPA Headquarters docket: Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202, 703/603-9232. (Please note this is a visiting address only. Mail comments to EPA Headquarters as detailed at the beginning of this preamble.)

The contact information for the Regional dockets is as follows:

Ellen Culhane, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023; 617/918-1225.

Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4343.

Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/814-5364.

Lauren Brantley, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8127.

Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SMR-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/353-5821.

Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.

Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101; 913/551-7335.

David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th Street, Suite 500, Mailcode 8EPR-SA, Denver, CO 80202-2466; 303/312-6757.

Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/744-2343.

Robert Phillips, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor, 1200 6th Avenue, Mail Stop ECL-110, Seattle, WA 98101; 206/553-6699.

You may also request copies from EPA Headquarters or the Regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents.

The Headquarters docket for this rule contains: HRS score sheets for the proposed sites; a Documentation Record for the sites describing the information used to compute the score; information for any sites affected by particular statutory requirements or EPA listing policies; and a list of documents referenced in the Documentation Record.

The Regional dockets for this rule contain all of the information in the Headquarters docket, plus, the actual reference documents containing the data principally relied upon and cited by EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the Regional dockets.

Comments must be submitted to EPA Headquarters as detailed at the beginning of this preamble in the ADDRESSES section. Please note that the addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.

EPA considers all comments received during the comment period. Significant comments will be addressed in a support document that EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that EPA should consider and how it affects individual HRS factor values or other listing criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988)). EPA will not address voluminous comments that are not specifically cited by page number and referenced to the HRS or other listing criteria. EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in EPA's stated eligibility criteria is at issue.

Generally, EPA will not respond to late comments. EPA can only guarantee that it will consider those comments postmarked by the close of the formal comment period. EPA has a policy of not delaying a final listing decision solely to accommodate consideration of late comments.

During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the Regional docket approximately one week after the formal comment period closes.

In certain instances, interested parties have written to EPA concerning sites which were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

With today's proposed rule, EPA is proposing to add 17 new sites to the NPL; 16 sites to the General Superfund Section of the NPL and one site to the Federal Facilities Section. (Please note that the Sauget 1 site in Illinois is being reproposed to the NPL.) The sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above. The sites are presented in Table 1 and Table 2 which follow this preamble.

A final rule published elsewhere in today's Federal Register finalizes 11 sites to the NPL; resulting in an NPL of 1,240 final sites; 1,080 in the General Superfund Section and 160 in the Federal Facilities Section. With this proposal of 17 new sites, there are now 72 sites proposed and awaiting final agency action, 65 in the General Superfund Section and 7 in the Federal Facilities Section. (Please note that one of the 17 sites is being reproposed to the NPL.) Final and proposed sites now total 1,312. (These numbers reflect the status of sites as of August 23, 2001. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register.)

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

No. The listing of sites on the NPL does not impose any obligations on any entities. The listing does not set standards or a regulatory regime and imposes no liability or costs. Any liability under CERCLA exists irrespective of whether a site is listed. It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before EPA promulgates a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

No, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. This rule will not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL.

For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule listing sites on the NPL, if promulgated, would not impose any obligations on any group, including small entities. This proposed rule, if promulgated, also would establish no standards or requirements that any small entity must meet, and would impose no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking. Thus, this proposed rule, if promulgated, would not impose any requirements on any small entities. For the foregoing reasons, I certify that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

No. This proposed rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” as well as through EPA's April 1995, “Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agenda Report,” and National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities.

No. While this rule proposes to revise the NPL, no action will result from this proposal that will have disproportionately high and adverse human health and environmental effects on any segment of the population.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed rule present a disproportionate risk to children.

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

No. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This proposed rule does not significantly or uniquely affect the communities of Indian tribal governments because it does not significantly or uniquely affect their communities. The addition of sites to the NPL will not impose any substantial direct compliance costs on Tribes. While Tribes may incur costs from participating in the investigations and cleanup decisions, those costs are not compliance costs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), requires EPA to prepare and submit a Statement of Energy Effects to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, for certain actions identified as “significant energy actions.” Section 4(b) of Executive Order 13211 defines “significant energy actions” as “any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.”

This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866 (See discussion of Executive Order 12866 above.)

This is a summary of the Further Notice of Proposed Rulemaking (FNPRM) portion of the Commission's Memorandum Opinion and Order (MO&O) and FNPRM in ET Docket Nos. 00-258 and 95-18, and IB Docket No. 99-81, FCC 01-224, adopted August 9, 2001, and released August 20, 2001. The complete text of this FNPRM is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW, Washington, DC, and also may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554.

1. This FNPRM continues our exploration of the possible use of frequency bands below 3 GHz to support the introduction of new advanced mobile and fixed terrestrial wireless services (advanced wireless services), including third generation (3G) and future generations of wireless systems. The Commission initiated this proceeding by Notice of Proposed Rulemaking in ET No. 00-258, which can be found at 66 FR 18740, April 11, 2001. The FNPRM also resolves a petition for rulemaking filed by the Cellular Telecommunications & Internet Association (CTIA). The MO&O portion of this decision is published elsewhere in this edition of the Federal Register.

2. The Commission, in the FNPRM, explores the possibility of introducing new advanced wireless services in frequency bands not identified in the NPRM, including bands currently designated for the Mobile Satellite Service (MSS), the Unlicensed Personal Communications Service (UPCS), the Amateur Radio Service (ARS), and the Multipoint Distribution Service (MDS). Specifically, the Commission seeks comment on reallocating spectrum in the 1910-1930 MHz, 1990-2025 MHz, 2150-2160 MHz, 2165-2200 MHz, and 2390-2400 MHz bands for new advanced wireless services.

3. The purpose of this FNPRM is to supplement the record by providing new allocation options that were not addressed in the NPRM, and by seeking comment on the benefits and costs of each new allocation option. These spectrum options complement rather than substitute for options identified previously in the NPRM. The FNPRM solicits comment on the potential for commercial use of these additional spectrum bands directly for new advanced wireless services, both paired and unpaired. The FNPRM also invites comment on the use of these or other bands for the relocation of incumbent licensees or operators who could be displaced by the final allocation established in this proceeding. The FNPRM seeks comment on the advantages and disadvantages of these options, including the potential for new advanced wireless services in these bands. Further, the FNPRM seeks comment on the potential effect of the allocation proposals described in the full text of the FNPRM on existing and prospective users of these bands and the services they provide (e.g., MSS, UPCS, ARS, and MDS). Finally, the FNPRM seeks comment on the costs and benefits to the United States of regional or global spectrum harmonization for advanced wireless services.

4. In its petition for rulemaking, CTIA asked that the 2 GHz MSS bands be reallocated for other uses and that the Commission withhold grant of 2 MHz licenses while it considers CTIA's petition. The FNPRM grants CTIA's petition in part, but denies the petition insofar as it requests reallocation of the entire 2 GHz MSS band and a delay in authorizing 2 GHz MSS systems.

5. As required by the Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in this FNPRM. The Commission requests written public comment on the IRFA. In order to fulfill the mandate of the Contract with America Advancement Act of 1996 regarding the Final Regulatory Flexibility Analysis, the Commission asks a number of questions in the IRFA regarding the prevalence of small businesses in the affected industries. Comments on the IRFA must be filed in accordance with the same filing deadlines as comments filed on the FNPRM, but they must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

6. The Further Notice of Proposed Rulemaking does not contain a proposed information collection.

7. For purposes of this permit-but-disclose notice and comment rulemaking proceeding, members of the public are advised that ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed under the Commission's Rules. (See generally 47 CFR 1.1202, 1.1203, 1.1206(a).)

8. Pursuant to applicable procedures set forth in 47 CFR 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before October 11, 2001, and reply comments on or before October 25, 2001. The Commission asks that comments to the IRFA be submitted to all three dockets listed in the caption of the FNPRM, ET Docket No. 00-258, ET Docket No. 95-18, and IB Docket No. 99-81.

9. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. To file formally in this proceeding, interested parties must file an original and four copies of all comments, reply comments, and supporting comments. If interested parties want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters who file by paper must submit two additional copies for each additional docket or rulemaking number. Interested parties should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Room TW-A325, 445 Twelfth Street, SW, Washington, DC 20554, with a copy to John Spencer, Wireless Telecommunications Bureau, 445 Twelfth Street, SW, Washington, DC 20554. Parties are also encouraged to file a copy of all pleadings on a 3.5-inch diskette in Word 97 format.

10. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

11. Comments and reply comments will be available for public inspection during regular business hours at the FCC Reference Center, Room CY-A257, at the Federal Communications Commission, 445 Twelfth Street, SW, Washington, DC 20554. Copies of comments and reply comments are available through the Commission's duplicating contractor: Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554, 202-863-2893.

12. Pursuant to the authority contained in sections 1, 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 308, and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. sections 151, 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 308, and 309(j), this Further Notice of Proposed Rulemaking is adopted.

13. The Petition for Rulemaking filed by the Cellular Telecommunications & Internet Association is granted to the extent indicated in the Further Notice of Proposed Rule Making, and is otherwise denied.

14. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

15. This is a summary of the Initial Regulatory Flexibility Analysis for the FNPRM. The full text of the Initial Regulatory Flexibility Analysis may be found in Appendix A of the full FNPRM.

16. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this FNPRM, ET Docket No. 00-258, ET Docket No. 95-18, and IB Docket No. 99-81. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM. The Commission further asks that comments to the IRFA be submitted to all three dockets listed in the caption of the FNPRM, ET Docket No. 00-258, ET Docket No. 95-18, and IB Docket No. 99-81.

17. The objective of the proposed actions is to consider reallocating spectrum that could be used to provide a wide range of voice, data, and broadband services over a variety of mobile and fixed networks, thus offering all entities, including small entities, greater opportunity to participate in the telecommunications industry and greater flexibility.

18. The proposed action is authorized under sections 1, 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 308, and 309(j) of the Communications Act of 1934, 47 U.S.C. 151, 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 308, and 309(j).

19. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”

20. The term “small business” has the same meaning as the term “small business concern” under Section 3 of the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Nationwide, as of 1992 there were approximately 4.44 million small business firms, according to SBA reporting data.

21. 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 1992, there were approximately 275,801 small organizations.

22. The definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. As of 1992, there were approximately 85,006 governmental entities in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number have populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that ninety-six percent, or about 81,600, are small entities that may be affected by our proposed rules.

23. Geostationary, Non-Geostationary Orbit, Fixed Satellite, or Mobile Satellite Service Operators. The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit, fixed-satellite or mobile-satellite service operators. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified, which provides that a small entity is one with $11.0 million or less in annual receipts. According to Census Bureau data, there are 848 firms that fall under this category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. Small businesses may not have the financial ability to become geostationary or non-geostationary, fixed-satellite or mobile-satellite service system operators because of the high implementation costs associated with satellite systems and services. At this time, at least one of the 2 GHz MSS applicants may be considered a small business. The Commission expects, however, that by the time of implementation it will no longer be considered a small business due to the capital requirements for launching and operating its proposed system. Because there are limited spectrum and orbital resources available for assignment, the Commission estimates that no more than nine entities will be approved by the Commission as operators providing these services.

24. Multipoint Distribution Service (MDS). In connection with the 1996 MDS auction, the Commission defined small businesses as entities that had annual average gross revenues for the three preceding years not in excess of $40 million. The SBA has approved this definition of a small entity in the context of MDS auctions. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities. Of the 67 auction winners, 61 meet the definition of a small business.

25. MDS is also heavily encumbered with licensees of stations authorized prior to the MDS auction. SBA has developed a definition of small entities for pay television services, which includes all such companies generating $11 million or less in annual receipts. This definition includes MDS systems, and thus applies to incumbent MDS licensees and wireless cable operators which may not have participated or been successful in the MDS auction. For purposes of this analysis, we find there are approximately 892 small MDS providers as defined by the SBA and the Commission's auction rules, all of which could be affected by the Commission's proposed action.

26. Amateur Radio Service (ARS). Incumbent licensees in the ARS could be affected by actions taken in this proceeding. However, because the ARS is comprised of individuals, no small entities will be affected.

27. Unlicensed Personal Communications Service (UPCS). As its name indicates, UPCS is not a licensed service. There is no accurate source for the number of operators in the UPCS. Manufacturers could be affected if UPCS frequencies are transferred for other uses, however, because need for their product could be minimized or eliminated, depending on the final action taken. This hardship could be offset if UPCS operators are moved to other frequencies or if manufacturers can sell equipment to new services occupying the UPCS frequencies. The Commission has not developed a definition of small entities applicable to UPCS equipment manufacturers. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified, which provides that a small entity is one with $11.0 million or less in annual receipts. According to Census Bureau data, there are 848 firms that fall under this category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. There are currently 15 manufacturers that have 45 equipment authorizations for devices that operate in the 1910-1930 MHz band. No equipment authorizations have been issued for devices operating in the 2390-2400 MHz band.

28. This FNPRM deals only with the possible reallocation of frequency bands below 3 GHz to support the introduction of new wireless services, and does not propose assignment or service rules. Thus, the item proposes no new reporting, recordkeeping, or other compliance requirements. Once it has been decided whether to reallocate this spectrum, the Commission will consider adoption of implementing rules, some of which might entail compliance requirements.

29. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; (4) an exemption from coverage of the rule, or any part thereof, for small entities.

30. Providing spectrum to support the introduction of new advanced mobile and fixed terrestrial wireless services is critical to the continuation of technological advancement. First and foremost, the Commission believes that our proposal to explore the possible use of several frequency bands that could offer a wide range of voice, data, and broadband services over a variety of mobile and fixed networks may provide substantial new opportunities for small entities.

31. However, depending on the final action taken in this proceeding, small incumbent entities could be affected in a negative way as well, because some entities must be displaced to clear spectrum for new uses. The Commission endeavored to avoid this effect by identifying unencumbered spectrum, but spectrum in the suitable frequency range is heavily used already and sufficient unencumbered spectrum simply does not exist. The Commission has therefore sought to minimize an adverse impact by proposing to reallocate frequency bands for those incumbents, including small entities, which might be accommodated in other spectrum and could be relocated more easily. The Commission is also considering compensation of displaced incumbents, including any small entity, which is displaced. At this nascent stage of the proceeding, the Commission is soliciting comment on a variety of issues relevant to these possibilities.

32. Paragraph 40 of the full text of the FNPRM further suggests the alternative of grandfathering incumbent licensees who qualify as small entities, until they are ready to move to new frequencies, thus easing their transition to new spectrum. Another alternative that the Commission believes has worked in the past, would be to encourage small entities to participate by offering them bidding credits if the reallocation is adopted and the spectrum is auctioned.

33. The FNPRM more specifically considers a variety of alternatives that could make frequencies available to incumbents, including small entities, who could be subject to relocation. For example, one alternative discussed in paragraphs 11-13 of the FNPRM would be to use spectrum in the 1910-1930 MHz or 2390-2400 MHz bands for relocation. A second alternative, discussed in paragraphs 27-28 of the FNPRM, would be to use some of the 2 GHz MSS spectrum for relocation. Paragraph 38 of the full FNPRM seeks comment on using the 2150-2160 MHz MDS band for relocation purposes. Any of these alternatives would facilitate the relocation of displaced incumbents, including small entities.

34. Finally, the Commission has already received extensive comments on issues related to the possible reallocation of the 2150-2160 MHz (2.1 GHz) spectrum for advanced wireless purposes. Comments filed by the multipoint distribution/instructional television fixed services industry and several equipment manufacturers argue that the 2.1 GHz band is necessary for the continued roll-out of fixed wireless services across the country. Other commenters support the use of 2.1 GHz for advanced wireless services.

We are considering both alternatives, and are attempting to minimize any negative impact on licensees, including small entities, in the 2150-2160 band. These alternatives are discussed in paragraphs 37-41of the FNPRM, and include the possibility of providing displaced incumbents with relocation spectrum or compensating such licensees.

35. None.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, IB Docket No. 01-185, ET Docket No. 95-18, adopted August 9, 2001 and released August 17, 2001. The full text of this Notice of Proposed Rulemaking is available for inspection and copying during normal business hours in the FCC Reference Room, Room CY-A257, Portals II, 445 12th Street, SW, Washington, DC and also may be purchased from the Commission's copy contractor, International Transcription Services, Inc. (“ITS”), Portals II, 445 12th Street, SW Room CY-B402, Washington, DC 20554.

Interested parties may file comments by using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. The Commission will consider all relevant and timely comments prior to taking final action in this proceeding. To file formally, interested parties must file an original and four copies of all comments, reply comments, and supporting comments. If interested parties want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. Parties not filing via ECFS are also encouraged to file a copy of all pleadings on a 3.5-inch diskette in Word 97 format.

Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To receive filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message: “get form <your e-mail address.” A sample form and directions will be sent in reply.

This NPRM contains proposed information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collections contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due November 13, 2001. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-XXXX. (New collection).

Title: Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Band.

Form Number: N/A.

Type of Review: New collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 143.

Number of Responses: 440.

Estimated Time Per Response: 4-31 hours.

Frequency of Response: On occasion reporting and third party disclosures.

Total Annual Burden: 3,082 hours.

Total Annual Costs: $141,000.

Needs and Uses: In this proceeding, the Commission releases an NPRM that seeks comment on issues regarding whether and how the Commission might bring flexibility to the delivery of Mobile Satellite Service. The proposals contained in this NPRM would result in new or modified information collection requirements that would be necessary to facilitate the proposed rules if and when they become definitive. The information collections would be used by the Commission under its authority to license commercial satellite services in the U.S.

On August 9, 2001 the Federal Communications Commission (Commission) adopted a Notice of Proposed Rulemaking (NPRM) seeking comment on: (1) Proposals submitted by two satellite operators to allow flexibility in the delivery of communications by mobile satellite service (MSS) providers, and (2) other options pertaining to flexible use of MSS spectrum. Specifically, the Commission seeks comment on: (1) The specific proposals made by MSS operators outlined below, (2) an alternative proposal that would allow an entity to use MSS spectrum to provide terrestrial service in conjunction with (or alternatively to) MSS, and (3) whether the Commission should consider allowing MSS operators in Big LEO bands to provide terrestrial services in these bands.

In the NPRM, the Commission seeks comment on approaches by which the Commission may permit more flexible use of MSS spectrum. The Commission recognizes that this concept raises new issues regarding allocation and licensing of spectrum-based services, particularly different approaches for licensing satellite and terrestrial services. The Commission intends to establish a record on a variety of policy, economic, and technical issues raised by the MSS Petitioners' proposals, including potentially innovative ideas that may result in improved quality and availability of services to the public.

First, both New ICO Global Communications (Holdings) Ltd. (New ICO) and Motient Services, Inc. (Motient) (collectively, the MSS Petitioners) filed proposals with the Commission, suggesting incorporation of a wireless “ancillary terrestrial component” (ATC) in their MSS networks. To date, MSS operators have not been allowed to provide terrestrial operations. These parties contend that although a satellite system is ideally suited to serve rural areas, it is technically more difficult for MSS systems to deliver service in urban areas where satellite signals may be blocked. In initiating the proceeding, the Commission recognizes the potential long-term benefits of expanded use of MSS, such as deployment of broadband services to rural areas.

The NPRM seeks comment on the MSS Petitioners' claims that allowing terrestrial operations in conjunction with MSS networks is important to ensure the commercial viability of MSS systems, and that such flexibility will promote the Commission's goal of bringing access to advanced communications services to rural and underserved areas of the country. The NPRM seeks comment on the severity of the signal problems that underlie the MSS Petitioners' proposals. Further, the NPRM asks: should we view the MSS Petitioners' proposals as indicating that too much spectrum has been allocated for MSS? Would using this spectrum for terrestrial service in urban areas diminish spectrum capacity for satellite service to rural and unserved areas? Does the technology exist to provide this integrated service? Would it be in the public interest to adopt a segmentation plan wherein separated bands for terrestrial services would be identified and available for licensing to a larger group of parties, for example, through an auctions process? Are technological advances likely to occur in the next few years that will change the nature of the sharing relationship between terrestrial and satellite services in the near future?

The NPRM also seeks comment on the following issues that would arise if the MSS Petitioners' proposal were adopted: (1) Conditions on the use of terrestrial components to ensure ancillary operation, such that 2 GHz band MSS operators would be required to demonstrate that they can provide space segment service covering all 50 states, Puerto Rico, and the Virgin Islands 100% of the time, and L-band operators would be required to demonstrate that they can provide space segment service across their entire satellite coverage area, (2) licensing requirements, such that for U.S.-licensed systems, the licenses would permit these additional operations, and for non-U.S. licensed systems, authority for such operations would be provided for in Declaratory Orders reserving spectrum for the non-U.S. licensed systems, (3) technical issues and rules modeled on rules in place for broadband PCS 1 , (4) modifications to the Table of Allocations, and (5) the impact on existing relocation and reimbursement rules.

With respect to technical issues, the NPRM seeks comment in the following specific areas relating to terrestrial operations in MSS bands: (1) Protection of adjacent and intra-band operations, (2) coordination with co-frequency systems, (3) frequency stability, (4) use of handheld terminals aboard aircraft, (5) system architecture, and (6) technical requirements specific to the L-band including extending special requirements relating to the protection of emergency operations and global radiolocation operations.

Second, the Commission seeks comment on an alternate plan: Making some MSS spectrum available for use by any entity to provide terrestrial service either in conjunction with MSS systems or as an alternative mobile service. Under this approach, portions of the spectrum currently designated for 2 GHz and L-band MSS would be made available for use by terrestrial operations, separated from the MSS operations in the bands, and possibly assigned by auction. The NPRM seeks comment on how such an identification and assignment process might work from the perspective of MSS operators and others interested in providing terrestrial services in this spectrum. The NPRM also seeks comment on the implications of section 309(j) with regard to this option.

Third, the NPRM seeks comment on whether the Commission should consider extending to Big LEOs MSS licensees the opportunity to incorporate terrestrial operations within the Big LEO MSS bands into their respective MSS networks. In particular, the NPRM seeks comment on whether the general approach discussed for 2 GHz and L-band MSS could be adopted for Big LEO MSS. In the alternative, the NPRM asks whether the Commission should consider opening the Big LEO MSS band to parties other than Big LEO licensees to provide services either in conjunction with Big LEO MSS operators or to provide additional alternative services.

The NPRM contains a proposed information collection. As part of our continuing effort to reduce paperwork burdens, we invite the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law No. 104-13.2 Public and agency comments are due at the same time as other comments on this NPRM; OMB comments are due November 13, 2001. Comments should address:

• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility.

• The accuracy of the Commission's burden estimates.

• Ways to enhance the quality, utility, and clarity of the information collected.

• Ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Written comments by the public on the proposed information collections are due November 13, 2001. In addition to filing comments with the Secretary, a copy of any comments on the proposed information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to jboley@fcc.gov, and to Virginia Huth, OMB Desk Officer, 10236 New Executive Office Building, 725 17th Street, NW., Washington, DC 20503, or via the Internet to fain_t@al.eop.gov.

As required by the Regulatory Flexibility Act (RFA),3 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this 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 provided in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

This NPRM seeks comment on proposals to bring flexibility to delivery of MSS. The NPRM seeks comment on issues regarding whether and how we might bring flexibility to MSS either by: (1) permitting MSS operators to provide coverage to areas where the MSS system is attenuated by integrating terrestrial operations within their networks using assigned MSS frequencies, as has been proposed by two operators, or (2) opening up portions of the 2 GHz and L-band for MSS or terrestrial operators to provide a stand-alone terrestrial service offered in conjunction with MSS or use it for additional alternative services. We believe that permitting greater flexibility would reduce regulatory burdens and, with minimal disruption to existing permittees and licensees, result in the continued development of 2 GHz and L-band MSS and other satellite services to the public.

This action is taken pursuant to sections 1, and 4(i) and (j) of the Communications Act, as amended, 47 U.S.C. 151, 154(i), 154(j), and section 201(c)(11) of the Communications Satellite Act of 1962, as amended, 47 U.S.C. 721(c)(11), and section 553 of the Administrative Procedure Act, 5 U.S.C. 553.

The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.4 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” under section 3 of the Small Business Act.5 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.6

The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit fixed-satellite or mobile satellite service operators. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to Communications Services, Not Elsewhere Classified.7 This definition provides that a small entity is one with $11.0 million or less in annual receipts. According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified which could potentially fall into the 2 GHz, L-band, or Big LEO MSS category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. The rules proposed in this NPRM apply only to entities providing 2 GHz, L-band, or Big LEO mobile satellite service. Small businesses may not have the financial ability to become 2 GHz MSS system operators because of the high implementation costs associated with satellite systems and services. At least one of the 2 GHz MSS licensees and one of the Big LEO licensees may be considered a small business at this time. We expect, however, that by the time of implementation they will no longer be considered small businesses due to the capital requirements for launching and operating its proposed system. Since there is limited spectrum and orbital resources available for assignment at 2 GHz, we estimate that no more than eight entities will be approved by the Commission as operators providing these services. Therefore, because of the high implementation costs and the limited spectrum resources, we do not believe that small entities will be impacted by this rulemaking to a great extent.

The proposed action in this NPRM would affect those entities applying for 2 GHz, L-band, and Big LEO MSS space station authorizations and those applying to participate in assignment of 2 GHz, L-band, and Big LEO MSS spectrum. In this NPRM, we seek comment on requiring U.S.-licensed operators to file an authorization request to use terrestrial facilities and to demonstrate that the eligibility criteria have been met. Foreign-licensed operators would be required to file a Letter of Intent and/or an appropriate earth station authorization, including the terrestrial facilities as part of the application, demonstrating compliance with the eligibility and coverage requirements. We seek comment on alternatives to these proposed licensing requirements.

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

In developing the proposals contained in this NPRM, we have attempted to allow flexibility for efficient operations by all participants in the 2 GHz, L-band, and Big LEO MSS market, regardless of size, consistent with our other objectives. We believe the proposed conditions under which these entities would be granted this additional flexibility would not impose a significant economic impact on small entities because: (1) The conditions are reasonable and not overly burdensome and (2) as mentioned above, we do not expect small entities to be impacted by this rulemaking due to the substantial implementation costs involved. Nonetheless, we seek comment on the impact of our proposals on small entities and on any possible alternatives that could minimize any such impact.

None.

Under §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the Further Notice of Proposed Rule Making on or before October 11, 2001. Reply comments are due October 25, 2001. Interested parties may file comments by using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.8 The Commission will consider all relevant and timely comments prior to taking final action in this proceeding. To file formally, interested parties must file an original and four copies of all comments, reply comments, and supporting comments. If interested parties want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. Interested parties should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554. Parties not filing via ECFS are also encouraged to file a copy of all pleadings on a 3.5-inch diskette in Word 97 format.

Accordingly, It Is Ordered that pursuant to the authority contained in sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308, this Notice of Proposed Rulemaking is adopted.

It Is Further Ordered that the Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

On September 16, 1999, NMFS published a final rule listing the California Central Valley spring-run chinook and California Coastal chinook ESUs as threatened species (64 FR 50394). In a final rule published on June 7, 2000, NMFS also listed the Northern California steelhead ESU as a threatened species (65 FR 36074). These final rules describe the background for the listing actions and provide a summary of NMFS’ conclusions regarding the status of the three ESUs. No protective regulations, pursuant to section 4(d) of the ESA, have been promulgated for these three ESUs. On October 31, 1996, NMFS listed the Central California Coast coho salmon ESU as a threatened species and simultaneously promulgated a 4(d) which imposed the section 9(a)(1) take prohibitions on this ESU (61 FR 56138). This 4(d) rule, however, does not include any of the take limitations which NMFS has incorporated into subsequent 4(d) rules for threatened salmonid ESUs (65 FR 42422).

On August 17, 2001, NMFS proposed an ESA 4(d) protective rule for these four threatened salmonid ESUs (66 FR 43150). The proposed 4(d) rule would apply the take prohibitions in section 9(a)(1) of the ESA, in most circumstances, to the California Central Valley spring chinook, California Coastal chinook, and Northern California steelhead ESUs. In addition to applying the section 9 take prohibitions, the proposed 4(d) rule would establish 10 categories of activities for which the take prohibitions would not apply for each of these three ESUs. NMFS believes these activities, if conducted as described in the proposed rule, would contribute to the conservation of the threatened salmonid ESUs. For the threatened Central California Coast coho salmon ESU, NMFS is proposing to amend the existing 4(d) rule which applies the section 9 take prohibitions to this ESU in order to establish the same 10 limitations on the take prohibitions that are being proposed for the other threatened ESUs covered by the rule.

Public hearings on the proposed ESA 4(d) rule provide the opportunity for the public to give comments and to permit an exchange of information and opinion among interested parties. NMFS encourages public involvement in such ESA matters and has decided to schedule hearings on these proposals prior to being requested to do so.

NMFS is soliciting specific information, comments, data, and/or recommendations on any aspect of the proposed 4(d) rule from all interested parties. In particular, NMFS is requesting information or data as described in the Federal Register documents announcing the proposed 4(d) rule. NMFS will consider all information, comments, and recommendations received before reaching a final decision.

The public will have the opportunity to provide oral and written testimony at the public hearings. Written comments on the proposals may also be submitted (see DATES and ADDRESSES).

These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other aids should be directed to Craig Wingert (see ADDRESSES) by 7 days prior to each hearing date.