The regulations in “Subpart—Hawaiian Fruits and Vegetables” (7 CFR 318.13 through 318.13-17, referred to below as the regulations) govern, among other things, the interstate movement of fruits, vegetables, and other products, including cut flowers, from Hawaii. Regulation is necessary to prevent the spread of plant pests that exist in Hawaii.

The regulations in § 318.13-3(b)(1) currently provide that cut flowers (except cut blooms of gardenia, mauna loa, and jade vine, and leis thereof ) may be moved interstate under certain conditions and if accompanied by a limited permit. The movement of cut blooms of gardenia is currently prohibited due to gardenia's status as a host of green scale ( Coccus viridus ), also known as green coffee scale.

The green scale feeds along the main vein of the leaf and near the tips of green shoots. Damage due to the feeding of an individual scale is small. However, when large populations are present, yellowing, defoliation, reduction in fruit set, and loss in plant vigor occur. In addition, green scale excrete honeydew. This sweet and watery excretion is fed on by bees, wasps, ants, and other insects. The honeydew serves as a medium on which a sooty fungus grows, called sooty mold. Sooty mold blackens the leaf and decreases photosynthesis.

In this document, we are proposing to amend the regulations to provide for the interstate movement of gardenia from Hawaii. Cut blooms of gardenia from Hawaii would be eligible for movement to other parts of the United States if they were treated with irradiation in Hawaii or grown in accordance with certain prescribed conditions. Each of these options is explained below.

Section 318.13-4f provides instructions for the irradiation treatment of fruits and vegetables from Hawaii. Research conducted by the University of Hawaii and reviewed by the U.S. Department of Agriculture's (USDA's) Agricultural Research Service has demonstrated that the irradiation treatment described in that section is an effective treatment for green scale on gardenias, so we are proposing to add cut blooms of gardenia to the list in 318.13-4f(a) of regulated articles for which irradiation is an approved treatment. We would also make some minor changes throughout the section, such as replacing references to “fruits and vegetables” with references to “regulated articles,” to ensure that the section's provisions apply to gardenias. A description of the provisions of § 318.13-4f as they currently stand is set forth below. Our specific proposed changes are discussed after that description.

Currently, paragraph (b) of § 318.13-4f provides that:

1. Irradiation treatment must be carried out at an approved facility only in Hawaii or in non-fruit-fly-supporting areas of the mainland United States (i.e., States other than Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, South Carolina, Tennessee, Texas, or Virginia). With one limited exception, prior to treatment, the fruits and vegetables cannot move into or through these non-fruit-fly-supporting States;

2. The irradiation treatment facility and treatment protocol must be approved by the Animal and Plant Health Inspection Service (APHIS);

3. In order to be approved, a facility must be capable of administering a minimum absorbed ionizing radiation dose of 250 Gray (25 krad), be constructed so as to provide physically separate locations for treated and untreated fruits and vegetables, complete a compliance agreement with APHIS, and be certified by Plant Protection and Quarantine, APHIS, for initial use and annually for subsequent use;

4. Irradiation treatment must be monitored by an inspector, who may be either an APHIS employee or a designated State plant regulatory official;

5. If treated in Hawaii, the fruits and vegetables must be packaged in cartons that have no openings that will allow the entry of fruit flies. The cartons must be sealed with seals that will visually indicate if the cartons have been opened. Then, the pallet-load of cartons must be wrapped, before leaving the irradiation facility, in one of the following ways: (1) With polyethylene sheet wrap; (2) with net wrapping; or (3) with strapping so that each carton on an outside row of the pallet-load is constrained by a metal or plastic strap. In addition, pallet-loads must be labeled with treatment lot numbers, packing and treatment facility identification and location, and dates of packing and treatment;

6. If moving to the mainland for treatment, the untreated fruits and vegetables must be shipped in shipping containers sealed prior to interstate movement with seals that will visually indicate if the shipping containers have been opened;

7. The fruits and vegetables must receive a minimum absorbed ionizing radiation dose of 250 Gray (25 krad);

8. Dosimetry systems in the irradiation facility must map, control, and record the absorbed dose;

9. The absorbed dose must be measured by a dosimeter that can accurately measure an absorbed dose of 250 Gray (25 krad);

10. The number and placement of dosimeters must be in accordance with American Society for Testing and Materials standards;

11. An inspector will issue a certificate for the interstate movement of fruits and vegetables treated and handled in Hawaii in accordance with the regulations at § 318.13-4f. An inspector will issue a limited permit for the interstate movement of untreated fruits and vegetables from Hawaii for irradiation treatment on the mainland United States; and

12. The irradiation facility must keep records or invoices for each treated lot for a period that exceeds the shelf life of the irradiated food product by 1 year and must make those records available to an inspector for inspection.

Paragraphs (c) and (d) of § 318.37-4f set forth procedures for applying for approval and inspection of a treatment facility, and procedures for denial and withdrawal of approval.

Paragraph (e) of § 318.13-4f further provides that the USDA and its inspectors are not responsible for any loss or damage resulting from any treatment prescribed or supervised.

The one substantive change we would make to the provisions described above is with regard to the location of treatment. As described in item 1 above, the irradiation treatment may be carried out in Hawaii or in a non-fruit-fly-supporting area of the mainland United States. Because green scale can survive in those non-fruit-fly supporting areas, we would require that cut blooms of gardenia be treated only in Hawaii. To put this restriction in place, we would make two changes to the regulations. First, we would amend the first sentence of § 318.13-4f(b)(1) to read, “The irradiation treatment must be carried out at an approved facility in Hawaii or, if authorized by a limited permit issued under paragraph (b)(7)(ii) of this section, on the mainland United States.” Second, we would amend the provisions in § 318.13-4f(b)(7)(ii) regarding limited permits to state that cut blooms of gardenia may be treated only in Hawaii and are not eligible for a limited permit for movement to the mainland United States for treatment. A limited permit is already required under § 318.13-4f(b)(7)(ii) for the movement of untreated fruits and vegetables to the mainland for treatment, so these proposed change would have no effect on the current requirements governing the movement of fruits and vegetables.

As noted previously, it would be necessary to change the references to “fruits and vegetables” that appear in several places to “regulated articles” to include cut blooms of gardenias within the scope of the regulations. In addition, our proposed addition of provisions for the interstate movement of cut blooms of gardenias would make several other changes necessary. Specifically, we would:

• Change the title of the subpart from “Subpart Hawaiian Fruits and Vegetables” to “Subpart—Hawaiian Fruits, Vegetables, and Flowers.”

• Add an entry for cut blooms of gardenias to the list in § 318.13-2(b) of regulated articles that are eligible for interstate movement from Hawaii.

• Modify the prohibition in § 318.13-3(b)(1) on the movement of cut blooms of gardenia to limit that prohibition to cut blooms that have not been treated with irradiation or grown under the conditions described in this document.

• Amend § 318.13-4f(e) to include green scale along with the Trifly complex (i.e., Mediterranean fruit fly, melon fruit fly, and Oriental fruit fly) as a pest against which irradiation is approved as a treatment to assure quarantine security.

As an alternative to the irradiation treatment described above, cut blooms of gardenia would also be eligible for interstate movement from Hawaii if the gardenias were grown and shipped under the following conditions:

1. The grower's production area would have to be inspected annually by an inspector and found free of green scale. If green scale is found during an inspection, a 2-month ban would be placed on the interstate movement of cut blooms of gardenia from that production area unless the grower chose to have the blooms treated with irradiation in accordance with § 318.13-4f. Near the end of the 2-month period, an inspector would reinspect the grower's production area to determine whether green scale is present. If reinspection determines that the production area is free of green scale, shipping could resume. If reinspection determines that the production area still has green scale, another 2-month ban on shipping would be placed on the movement of gardenia from that production area. The grower, at this point, would again have the option of treating the blooms with irradiation, rather than waiting 2 months for reinspection.

2. The gardenia production area would have to be surrounded by a buffer area extending 20 feet from the edge of the production area. Within the buffer area, the growing of gardenias and other green scale host plants would be prohibited. The following 18 green scale hosts would be specified as prohibited in the buffer area: Ixora, ginger ( Alpina purpurata ), plumeria, coffee, rambutan, lichee, guava, citrus, anthurium, avocado, banana, cocoa, macadamia, celery, Pluto indicia (a weed introduced into Hawaii), mango, orchids, and annona.

3. An inspector would have to visually inspect the cut blooms of gardenias in each shipment prior to their interstate movement from Hawaii. If the inspector does not detect green scale in the shipment, the inspector would issue a certificate in accordance with § 318.13-4(a), which would allow the shipment to move interstate without further restrictions. If the inspector finds green scale in a shipment, that shipment would have to be treated with irradiation in accordance with § 318.13-4f to be eligible for interstate movement from Hawaii.

These proposed growing and shipping conditions would provide gardenia producers with an opportunity to move pest-free cut blooms of gardenia interstate without treatment while at the same time making irradiation treatment available as an option should green scale be detected in their production areas or on cut blooms offered for interstate movement.

In addition to the changes discussed above, we are also making several nonsubstantive changes to correct editorial errors in the regulations.

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.

In this document, we are proposing to amend the regulations to provide for the movement of cut blooms of gardenia from Hawaii. We have determined that specific growing and inspection protocols or treatment with irradiation can effectively mitigate the plant pest risks associated with gardenia grown in Hawaii. This action would provide for the interstate movement of gardenias from Hawaii while continuing to prevent the spread of plant pests within the United States.

Under this proposed rule, gardenia growers in Hawaii who wish to move cut blooms of gardenia interstate from Hawaii would be able to do so if the gardenias were produced in a growing area determined by APHIS to be free of green scale and the cut blooms were inspected prior to interstate movement. Alternatively, cut blooms of gardenia could be moved interstate from Hawaii if the blooms were treated with irradiation prior to movement.

According to the USDA's Pacific Basin Agricultural Research Center in Hawaii, the total planted area of gardenias in Hawaii is 26.6 acres. Of the 26.6 acres of gardenias, only 3.6 acres belong to commercial farms: 2 acres in Kona, on the island of Hawaii; 1.1 acres in the Manoa Valley (Oahu), and 0.5 acres in Waipahu (Oahu). The remaining 23 acres of planted gardenias in Hawaii are owned by approximately 100 growers, each having an average of 20 to 25 bushes or about 10,000 square feet of production area. These gardenias are grown in “backyard” type production conditions.

The largest commercial gardenia production area in Hawaii consists of 2 acres of planted gardenia bushes that produce about 69,200 flowers per year, with annual gross receipts from sales of just under $13,000. While sales figures are not available for the two smaller commercial producers, we presume that their annual sales are less than those of the largest producer.

According to Small Business Administration (SBA) size standards, an entity involved in floriculture production (NAICS code 111422) is considered a small entity if it has annual sales of less that $750,000. Under this definition, all commercial gardenia growers in Hawaii would be considered small entities.

The proposed irradiation treatment of gardenias would take place prior to their shipment to the mainland United States at an irradiation facility on the island of Hawaii. This facility began its commercial operation in August 2000 and is currently approved by APHIS for the irradiation of fruits and vegetables under § 318.13-4f of the regulations.

The irradiation facility can be classified under NAICS code 115114, “Postharvest Crop Activities (except Cotton Ginning).” According to SBA standards, an entity in that classification is considered a small entity if its annual sales are less than $6 million. Applying this definition, the facility would be considered a small entity.

Under the Regulatory Flexibility Act, agencies are required to specifically consider the economic effects of their rules on small entities. The entities most likely to be affected by this proposed rule are the commercial producers of gardenias and the irradiation treatment facility discussed previously in this analysis; the producers and treatment facility are all considered to be small entities.

We expect that commercial gardenia producers would benefit from the ability to move their products interstate to markets in the continental United States while incurring the costs associated with establishing and maintaining a green-scale-free growing area and/or treating the cut blooms with irradiation. While we cannot estimate the amount of additional sales that might be enjoyed by commercial gardenia producers as a result of this proposed rule, we do not expect that amount would be substantial, given the limited scale of commercial gardenia production in Hawaii. The costs associated with the proposed production area requirements are likely to be negligible and limited to the maintenance of a 20-foot host-plant-free buffer zone around the production area, as the required inspections will be provided free of charge. The costs for irradiating fruit currently ranges from $0.22 to $0.33; how those costs would translate to the cost of irradiating cut blooms of gardenias is unknown, given the differing weight-volume ratios of fruit and cut flowers. In order for the treatment to be cost effective, treatment costs would have to be only a small percentage of the producer price for the cut blooms, which, according to the Pacific Basin Agricultural Research Center, range from $3.50 per 10 units for heads to $9.80 per 10 units for fancy extra-long (12 inches and above) stems.

We also expect that the irradiation facility used for treating cut blooms of gardenias would benefit from this proposed rule. However, in the absence of data regarding the number of gardenia producers that would use the facility, the volume of business those producers would bring, and the prices that the facility would charge for irradiating cut blooms, we cannot estimate the size of those benefits. Nonetheless, we expect that the amount of additional revenue that could result from this proposed rule would be small, given the limited scale of commercial gardenia production in Hawaii.

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 inconsistent 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 or 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. 01-042-1. Please send a copy of your comments to: (1) Docket No. 01-042-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 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.

We are proposing to amend the Hawaiian fruits and vegetables regulations to provide for the movement of cut blooms of gardenia from Hawaii. We have determined that specific growing and inspection protocols or treatment with irradiation can effectively mitigate the plant pest risks associated with gardenia grown in Hawaii. This action would provide for the interstate movement of gardenia from Hawaii while continuing to prevent the spread of plant pests within the United States.

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 proposed 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 0.425 hours per response.

Respondents: Gardenia producers, irradiation facility personnel, and State plant regulatory officials.

Estimated annual number of respondents: 13.

Estimated annual number of responses per respondent: 6.1538.

Estimated annual number of responses: 80.

Estimated total annual burden on respondents: 34 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

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 7 CFR part 318 as follows:

The Virus-Serum-Toxin Act regulations in 9 CFR part 113 (referred to below as the regulations) prescribe Standard Requirements for the preparation and testing of veterinary biological products. A Standard Requirement consists of test methods, procedures, and criteria that define the standards of purity, safety, potency, and efficacy for a given type of veterinary biological product. When a Standard Requirement for a product type does not exist, test methods, procedures, and criteria for evaluating the purity, safety, potency, and efficacy are provided in an Outline of Production for the product filed with the Animal and Plant Health Inspection Service (APHIS). Once uniform standards for a type of product are established, they are codified in the regulations as a Standard Requirement.

Because there is no Standard Requirement in 9 CFR part 113 for Equine Influenza Vaccine, each manufacturer of these products has devised its own procedures, which are a part of the Outline of Production, to meet the requirements of the Virus-Serum-Toxin Act that all veterinary biological products be pure, safe, potent, and efficacious. Although several equine influenza vaccines have been licensed, the lack of standardized procedures for updating such products to compensate for the short-lived antibody response in horses and the natural antigenic shift and drift that is characteristic of the influenza virus, has resulted in horse owners having to revaccinate their animals every 3 to 4 months in order to ensure protection. Therefore, we are proposing to add a new § 113.217 to the standards that would require uniform criteria, test methods, and procedures that would provide vaccine manufacturers a method by which to update their products to compensate for the natural evolution of the virus and ensure that equine influenza vaccines remain pure, safe, potent, and efficacious.

In the proposed Standard Requirement, equine influenza vaccine would be evaluated for immunogenicity by vaccinating susceptible horses at the minimum age recommended on the label and challenging those horses at least 60 days after the last vaccine dose using a relevant equine influenza challenge virus provided by or acceptable to APHIS. Protection would have to be demonstrated for at least one component strain of each equine influenza virus subtype present in the vaccine, and would be based on the demonstration of a statistically significant difference in the characteristic clinical signs of equine influenza virus infection in vaccinated horses as compared to non-vaccinated control horses. In addition, once host animal protection against challenge has been demonstrated for any strain of a particular equine influenza virus subtype, protection may be claimed for other strains of the same subtype contained in the same product by using hemagglutination titers to demonstrate an acceptable dose-response relationship between the challenge and non-challenge strain(s) in horses or guinea pigs. Hemagglutination inhibition titers (HI titers) could serve as a basis for adding or substituting strains of a particular subtype as long as at least one strain of each subtype present in the vaccine has been evaluated in a host animal challenge-protection study.

The proposed serial release potency test for equine influenza vaccine is a serum hemagglutination inhibition test performed in guinea pigs; other tests could be used if they were found by APHIS to be acceptable. We are proposing HI titers in guinea pigs as a serial release potency test based on our experience with such tests that indicates manufacturers should be able to develop the dose-response data and mean relative potency value needed to establish the required correlation between guinea pig titers and HI titers in horses.

In addition, we are proposing to add a new paragraph to the regulations in § 112.7 to require equine influenza vaccine labeling to list the subtype(s) and strain(s) of the virus used in the product.

This proposed Standard Requirement was developed with the cooperation of licensees, researchers, and scientists at APHIS' Center for Veterinary Biologics-Laboratory. The proposed Standard Requirement would establish uniform immunogenicity and potency criteria for equine influenza vaccine and improve the protection such vaccine provides.

We are proposing that equine influenza vaccine be evaluated for immunogenicity in horses. For at least one strain of each subtype of equine influenza virus contained in the vaccine, 15 equine influenza susceptible horses (10 vaccinates and 5 controls) of the minimum age recommended on the label would be vaccinated with equine influenza vaccine made with virus at the highest passage from Master Seed and at the minimum preinactivation titer provided in the filed Outline of Production.

This proposed rule would also require equine influenza vaccine to protect horses against the characteristic signs of equine influenza for a minimum of 60 days. To demonstrate protection and duration of immunity, horses used in the immunogenicity study would be challenged not less than 60 days after vaccination with a representative strain of each equine influenza virus subtype present in the vaccine.

Under this proposed rule, the potency of each serial would have to be evaluated for potency in guinea pigs. Each strain of each subtype of equine influenza virus contained in the vaccine would be evaluated for potency using guinea pigs as test animals.

For safety, we are proposing that the guinea pigs used in the potency test be observed each day during the post-vaccination observation period for unfavorable reactions attributable to the vaccine.

Veterinary biologics manufacturers that produce equine influenza vaccine under present standards described in their filed Outlines of Production would be allowed 2 years after the effective date of the final rule to come into compliance. In the interim, we would allow such manufacturers to continue to release serials of equine influenza vaccine using the standard described in their filed Outlines of Production, provided that such serials of product are shown to be effective and the labels for such products specify the demonstrated duration of immunity.

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

We are proposing to amend the Virus-Serum-Toxin Act regulations in 9 CFR part 113 by adding a new Standard Requirement for Equine Influenza Vaccine, Killed Virus. This proposed rule would require equine influenza vaccines to protect against clinical signs of equine influenza virus infection for at least 60 days based on challenge protection studies performed in horses. In addition, this proposed rule would allow claims for protection to be made for other strains of the equine influenza virus of the same subtype contained in the same product provided that the manufacturer demonstrates an acceptable dose-response relationship between the challenge and non-challenge strain(s) in host animals or guinea pigs. This proposed Standard Requirement would affect all licensed manufacturers of veterinary biologics producing any new equine influenza vaccine by requiring manufacturers of equine influenza vaccine to incur the expense associated with demonstrating protection of horses against the characteristic signs of equine influenza for at least 60 days.

Currently, only 8 of the approximately 135 licensed veterinary biologics manufacturers produce equine influenza vaccine and would be affected by this proposal. According to the standards of the Small Business Administration, most veterinary biologics establishments would be classified as small entities.

Veterinary biologics manufacturers that produce equine influenza vaccine that does not meet this proposed standard would be allowed 2 years from the effective date of the final rule to come into compliance. In the interim, we would allow such manufacturers to continue to release serials of equine influenza vaccine using the current standard described in their filed Outlines of Production.

We do not have an alternative option to this proposed rule in light of the ever-changing antigenic profile of the equine influenza virus, which has created a demand for equine influenza vaccine that provides better protection than the currently available products. This proposed rule, if adopted, would aid firms manufacturing equine influenza vaccines. The proposal contains a Standard Requirement for immunogenicity testing that would provide uniformity among firms instead of each firm having to meet APHIS' requirements by methods of its own design. This would reduce a firm's cost of research and development needed to design a method to test immunogenicity. In addition, once host animal protection has been demonstrated for any strain of a particular equine influenza virus subtype, non-host animal methods may be used to claim protection for other strains of the same subtype.

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 is listed in the category 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. It is not intended to have retroactive effect. This rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. The Virus-Serum-Toxin Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we propose to amend 9 CFR parts 112 and 113 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 shall 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, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-48-AD.” 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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-48-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. The CAA advises that an investigation into the use of “Low Temp” terminal blocks “G” in engine zones 412, 422, 432, and 442, has revealed that those blocks are made of a non-fireproof material and do not meet the fireproof requirements of these engine zones. The CAA advises that, in the event of a fire in the engine, the existing “Low Temp” terminal blocks “G” could melt, which could prevent electricity from reaching the fire detection and suppression systems. This condition, if not corrected, could result in failure of the engine fire detection and suppression systems to operate properly in the event of a fire, and consequent undetected and uncontrollable fire in an engine.

BAE Systems (Operations) Limited has issued Service Bulletin SB.71-077-01693A, dated October 10, 2001, which describes procedures for replacing the existing “Low Temp” terminal blocks “G” with new, fireproof ceramic terminal blocks “G” in engine zones 412, 422, 432, and 442. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAA classified this service bulletin as mandatory and issued British airworthiness directive 005-10-2001 in order to assure the continued airworthiness of these airplanes in the United Kingdom.

These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type designs registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.

The FAA estimates that 55 Model BAe 146 and Avro 146-RJ series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per airplane (1 hour per engine, 4 engines per airplane) to accomplish the proposed actions, and that the average labor rate is $60 per work hour. The cost for required parts would be negligible. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $13,200, or $240 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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); and (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 by contacting the Rules Docket at the location provided under the caption ADDRESSES .

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 shall 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, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2001-NM-357-AD.” 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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket 2001-NM-357-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports of one instance of smoke in the flight compartment and several instances of an acrid odor on a Model MD-11 airplane. Investigation revealed the dimmer control unit of the overhead instrument lighting as the source of the smoke and odor. Limited heat dissipation in the overhead installation area may have contributed to the overheating and internal component failure of the dimmer control unit of the overhead instrument lighting. This condition, if not corrected, could result in smoke and/or fire in the flight compartment.

The FAA has reviewed and approved McDonnell Douglas Alert Service Bulletin MD11-33A071, Revision 01, dated September 24, 2001. The alert service bulletin describes procedures for relocating the dimmer control unit of the overhead instrument lighting, and revising the wire routing of the dimmer control unit. Accomplishment of the actions specified in the alert service bulletin is intended to adequately address the identified unsafe condition.

Alert Service Bulletin MD11-33A071 identifies McDonnell Douglas Service Bulletin MD11-33-045 as a related service bulletin. The FAA has issued AD 98-24-02, amendment 39-10889 (63 FR 63402, November 13, 1998), which requires a design change to the dimmer control unit in accordance with Service Bulletin MD11-33-045. Affected operators may accomplish the actions of either AD first.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in Alert Service Bulletin MD11-33A071.

There are approximately 195 airplanes of the affected design in the worldwide fleet. The FAA estimates that 74 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $101 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $25,234, or $341 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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); and (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 by contacting 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:

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 shall 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, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-406-AD.” 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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-406-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On November 25, 1998, the FAA issued AD 98-24-51, amendment 39-10929 (63 FR 66422, December 2, 1998), applicable to McDonnell Douglas Model MD-11 series airplanes equipped with Collins LRA-900 radio altimeters having certain part numbers. The AD requires a revision to the Airplane Flight Manual to prohibit autopilot coupled autoland operations in certain conditions; or, for certain airplanes, replacement of Collins LRA-900 radio altimeters having certain part numbers with Collins LRA-700 radio altimeters. That action was prompted by a report that a fault in those radio altimeters could result in an incorrect and unbounded output of radio altitude to other airplane systems. The requirements of that AD are intended to prevent an undetected anomalous radio altitude signal that is passed along to the flare control law of the flight control computer, which could cause the airplane to flare too high or too low during landing, and consequently result in a hard landing.

When AD 98-24-51 was issued, it was considered to be interim action until final action was identified, at which time the FAA might consider further rulemaking. Since the issuance of that AD, Rockwell Avionics/ Collins, the manufacturer of the LRA-900 radio altimeter transmitter/receiver, has developed a modification that will enable the radio altimeter to process negative altitude correctly. As discussed below, the manufacturer has issued a service bulletin which describes that modification.

The existing AD, AD 98-24-51, is applicable to Model MD-11 series airplanes, equipped with Collins LRA-900 radio altimeters, having part number 822-0334-002, 822-0334-020, or 822-0334-220.” However, Collins LRA-900 radio altimeters having part number 822-0334-002 or 822-0334-020 have not been approved for installation on Model MD-11 or “11F airplanes. Therefore, the proposed AD is applicable only to those MD-11 or “11F airplanes which are equipped with Collins LRA-900 radio altimeters having part number 822-0334-220.

The FAA has reviewed and approved McDonnell Douglas Service Bulletin MD11-34-091, dated August 19, 1999, which describes procedures for determining whether or not Collins LRA-900 radio altimeter receiver/transmitters having part number 822-0334-220 are installed, modifying such receiver/transmitters by installing software which handles negative altitude correctly, and re-identifying the receiver/transmitter as having part number 822-0334-221.

The service bulletin refers to Rockwell Avionics/ Collins Service Bulletin LRA-900-34-D, Revision 1, dated May 26, 1999, as an additional source of service information.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 98-24-51 to require a one-time inspection to determine whether a Collins LRA-900 radio altimeter receiver/transmitter having part number 822-0334-220 is installed. If it is, the proposed AD would require that the radio altimeter receiver/transmitter be modified by installing software which handles negative altitude correctly, and re-identifying the receiver/transmitter as having part number 822-0334-221. The actions would be required to be accomplished in accordance with the service bulletin described previously.

The FAA has revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models. The existing AD specifies the applicability as McDonnell Douglas Model MD-11 series airplanes equipped with certain Collins LRA-900 radio altimeters. The proposed AD specifies the applicability as McDonnell Douglas Model MD-11 and -11F airplanes equipped with certain Rockwell Collins LRA-900 radio altimeters.”

There are approximately 195 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. The FAA estimates that 64 airplanes of U.S. registry would be affected by this proposed AD.

The actions that are currently required by AD 98-24-51 take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $3,840, or $60 per airplane.

The new actions that are proposed in this AD action would also take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $3,840, or $60 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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); and (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 by contacting 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:

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 shall 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, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-402-AD.” 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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-402-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report that the airplane manufacturer's review of the support structure on Boeing Model 757-200 series airplanes in passenger-carrying configuration revealed inadequate support structure for the overhead stowage bin(s) at Station 680. Due to this inadequate support structure, the attachment fitting for the overhead stowage bin does not have an adequate load path. Under certain conditions (i.e., 9G forward acceleration with the overhead stowage bin at maximum weight), the stowage bin attachment fitting at Station 680 could fail. This condition, if not corrected, could result in the overhead stowage bin falling onto the passenger seats below and injuring passengers or impeding the evacuation of passengers in an emergency.

The FAA has reviewed and approved Boeing Service Bulletin 757-25-0194, dated February 11, 1999, which describes procedures for a one-time visual inspection to determine if an intercostal is installed between stringers 8 and 9 at Station 680 on the left and right sides of the airplane. That intercostal would provide the support for the overhead stowage bin(s). As follow-on actions if no intercostal is installed, the service bulletin specifies a visual inspection for cracking or damage of stringer 8 and the tie rod mounting assembly, and installation of a new intercostal between stringers 8 and 9. If any cracking or damage is found during the visual inspection, the service bulletin specifies to contact the airplane manufacturer for repair instructions. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note the following differences between this proposed AD and the service bulletin:

• Though the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require the repair of those conditions to be accomplished per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle Aircraft Certification Office, to make such findings.

• The service bulletin recommends that the actions therein be done “at the next scheduled maintenance time when personnel and material are available.” However, the FAA finds that such a compliance time may not ensure that the proposed actions are accomplished in a timely manner. Therefore, this proposed AD would require that the proposed actions be done within 24 months after the effective date of the AD.

• The service bulletin specifies a visual inspection for cracking or damage of stringer 8 and the tie rod mounting assembly, if no intercostal is installed between stringers 8 and 9 at Station 680. The FAA has determined that the procedures for this inspection constitute a “detailed inspection.” Therefore, the proposed AD identifies the inspection for cracking or damage as a “detailed inspection” and Note 3 of this proposed AD defines such an inspection.

There are approximately 403 airplanes of the affected design in the worldwide fleet. The FAA estimates that 219 airplanes of U.S. registry would be affected by this proposed AD.

The proposed inspection would take up to 2 work hours per airplane (1 work hour per side of the airplane), at the average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection proposed by this AD on U.S. operators is estimated to be up to $26,280, or $120 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

Should an operator be required to do the proposed installation, it would take up to 2 work hours per airplane (1 work hour per side of the airplane), at the average labor rate of $60 per work hour. Required parts would cost approximately $1,310 per airplane. Based on these figures, the cost impact of the installation proposed by this AD is estimated to be $1,430 per airplane.

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); and (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 by contacting 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:

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 shall 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, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-66-AD.” 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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-66-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain EMBRAER Model EMB-120 series airplanes, was published as a first supplemental notice of proposed rulemaking (NPRM) in the Federal Register on January 16, 2001 (66 FR 3511). That first supplemental NPRM proposed to supersede AD 92-16-51, amendment 39-8355 (57 FR 40838, September 8, 1992), which is applicable to all EMBRAER Model EMB-120 series airplanes. It would have continued to require repetitive visual checks or inspections to verify that the flight idle stop system circuit breakers are closed, and repetitive functional tests to determine if the backup flight idle stop system is operative. It also would have required modification of the secondary flight idle stop system (SFISS), which would terminate the requirements for the repetitive actions. That first supplemental NPRM was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions specified by that supplemental NPRM are intended to prevent an inoperative backup flight idle stop system.

EMBRAER has issued the following three revised service bulletins. The major changes in these revisions are described below:

Service Bulletin 120-76-0015, Change No. 06, dated October 3, 2000, adds Part III to the Accomplishment Instructions to revise the SFISS modification procedures by including a new inspection. These procedures specify inspecting the attachment of the power control cable end at the bellcrank in the left and right nacelles using a mirror, and verifying the type of bolt used. If a countersunk-head bolt is found, no further action is required. If a hex-head bolt is found, corrective actions include inspecting the existing hole in the bellcrank and replacing the bolt with a new bolt.

Service Bulletin 120-76-0018, Change No. 04, dated March 30, 2001, corrects the number of work hours required to accomplish the procedures specified in Part I and Part II of the Accomplishment Instructions.

Service Bulletin 120-76-0022, Change No. 01, dated October 9, 2000, adds Part IV to the Accomplishment Instructions to include procedures for verifying that the correct countersunk- head bolt was used to attach the power control cable to the bellcrank, and provide additional clarification and corrections. Change No. 02, dated February 8, 2001, of the service bulletin includes only editorial changes to Figure 6 of the service bulletin.

Due consideration has been given to the one comment received in response to the first supplemental NPRM:

The commenter requests that the 18-month compliance time in paragraph (d) of the supplemental NPRM be extended significantly because of two factors. First, the proposed action adds considerable cost to airline operations, especially when considered along with other FAA requirements currently being implemented (e.g., modifications to the cargo compartment and flight data recorder). Second, the proposed action alleviates the safety concern with the flight idle stop system.

The FAA does not concur with the commenter's request to extend the compliance time. We point out that recent service experience indicates that the SFISS has proved to be vulnerable to certain maintenance failures and has inherent design aspects that reduce the reliability of the system. Based on this information, we have determined that the increased reliability of the system is essential to the continued airworthiness of Model EMB-120 series airplanes. In developing an appropriate compliance time for this action, we considered the compliance time specified in the Brazilian airworthiness directive (18 months), the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the modification. In consideration of these items, we have determined that 18 months or 4,000 flight hours, whichever occurs earlier, represents an appropriate interval of time allowable wherein SFISS modifications can be accomplished during scheduled maintenance intervals for the majority of affected operators, and an acceptable level of safety can be maintained. No change to this second supplemental NPRM is necessary in this regard.

Operators should note the following clarifications made to this supplemental NPRM:

• The unsafe condition of the first supplemental NPRM only states that the actions specified by this proposed AD are intended “to prevent an inoperative backup flight idle stop system.” However, this second supplemental NPRM further clarifies and describes the unsafe condition.

• The applicability of the first supplemental NPRM specifies serial numbers 120004 through 120354 inclusive for Model EMB-120 series airplanes. However, because the applicability of the Brazilian airworthiness directive does not include serial number 120005, the applicability of this second supplemental NPRM also does not include serial number 120005.

• The compliance time in paragraph (d)(3) of this second supplemental NPRM has been clarified. Although paragraph (d)(3) of the first supplemental NPRM specifies “400 flight hours,” this second supplemental NPRM specifies “4,000 flight hours.” The FAA points out that it was our intent to specify the same compliance time for modifying the SFISS in paragraphs (d)(1) through (d)(4) in the first supplemental NPRM. We also point out that this second supplemental NPRM includes only paragraphs (d)(1), (d)(2), and (d)(3).

This supplemental NPRM would retain the actions required by AD 92-16-51: repetitive visual checks or inspections to verify that the flight idle stop system circuit breakers are closed, and functional tests to determine if the backup flight idle stop system is operative. This supplemental NPRM also would require modification of the secondary flight idle stop system (SFISS), which would terminate the repetitive actions. In addition, this supplemental NPRM would remove one airplane from the applicability; and would add new inspections and corrective actions if necessary.

Operators should note that, although the Accomplishment Instructions of EMBRAER Service Bulletin 120-76-0015, Change No. 06; and Service Bulletin 120-76-0018, Change No. 04; specify that the manufacturer may be contacted for disposition of certain repair conditions, this second supplemental NPRM would require the repair of those conditions per a method approved by either the FAA or the Departmento de Aviacao Civil (DAC), the airworthiness authority of Brazil, (or its delegated agent). In light of the type of repair that would be required to address the identified unsafe condition, and in consonance with existing bilateral airworthiness agreements, the FAA has determined that, for this second supplemental NPRM, a repair approved by either the FAA or the DAC would be acceptable for compliance with this proposed AD.

Operators also should note that Figure 10 of previously referenced Service Bulletin 120-76-0015 specifies contacting the manufacturer if the existing hole in the bellcrank is not a countersunk hole. However, this second supplemental NPRM would require operators to contact the FAA in that case.

The FAA has revised this second supplemental NPRM to specify new requirements based on new revisions to the previously referenced service bulletins. Since these changes expand the scope of the first supplemental NPRM, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The FAA estimates that 230 EMBRAER Model EMB-120 series airplanes of U.S. registry would be affected by this second supplemental NPRM.

The actions that are currently required by AD 92-16-51 take approximately 5 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of that AD on U.S. operators is estimated to be $69,000, or $300 per airplane, per inspection cycle.

The approximate cost, at an average labor rate of $60 per work hour, for the modifications proposed by this AD are listed in the following table:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [COTP San Diego 02-008], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Marine Safety Office San Diego Port Operations 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 .

This proposed temporary safety zone is necessary to provide for the safety of the crew, spectators, and participants of the 4th of July fireworks show. This proposed safety zone is also necessary to protect other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

The proposed safety zone encompasses that portion of the Colorado River between Laughlin Bridge and the Golden Nugget Hotel and Casino. We are proposing to enforce this safety zone from 9 p.m. to 9:30 p.m. on July 4, 2002. The on scene Captain of the Port designated representative is expected to be a Coast Guard patrol commander. This temporary safety zone is necessary to provide for the safety of the participants, spectators, and sponsor vessels of the Laughlin 4th of July fireworks show.

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

Because of its limited duration, of one half (1/2) hour, we expect the economic impact of this proposed rule would be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

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 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed safety zone would not have a significant economic impact on a substantial number of small entities because it will be in effect for only half (1/2) an hour on July 4, 2002.

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Austin Murai, Marine Safety Office San Diego at (619) 683-6495.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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.

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

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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.

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 have considered the environmental impact of this proposed rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lD, this proposed rule, a safety zone, is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

For additional information see the direct final rule published in the rules section of this Federal Register .

On February 13, 2002, the Pennsylvania Department of Environmental Protection (PADEP) submitted a State Implementation Plan (SIP) revision. This revision consists of revised regulations for the control of VOC emissions from solvent cleaning operations. PADEP submitted this SIP revision in order to reduce VOCs emitted from solvent cleaning operations statewide. These regulations will help to achieve additional VOC emission reduction benefits needed in the Philadelphia-Wilmington-Trenton severe nonattainment area (the Philadelphia area) to close an EPA-identified shortfall in the attainment demonstration submitted by Pennsylvania for the Philadelphia area and approved by EPA on October 26, 2001 (66 FR 54143).

Under the Federal Clean Air Act (CAA), states are required to ensure that the ambient air meets the National Ambient Air Quality Standards (NAAQS). In areas where those standards are not met, states are required to develop and implement emission control plans to meet the standards, and then to ensure that the standards are maintained.

The Ozone Transport Commission (OTC) was created by Congress, pursuant to the CAA amendments of 1990, to help coordinate control plans for reducing ground-level ozone in the Northeast and mid-Atlantic states. The OTC continues to work individually and collectively to ensure attainment and maintenance of the national ambient air quality standards (NAAQS). This includes identifying any remaining control measures that may be necessary to attain and maintain the NAAQS. Six states (Connecticut, Delaware, Maryland, New Jersey, New York, and Pennsylvania) in particular are focusing on additional control measures as part of their severe area ozone attainment demonstrations. Working regionally, the OTC states expedited development of control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing these model rules. Implementing the model rules will result in SIP emission reductions in VOC and NO X to support the attainment demonstrations, as well as reducing ground-level ozone in other areas of the states. The model rules that were developed may be used by states as a framework for state-specific regulations. Each state must act pursuant to its own administrative process in order to promulgate and implement the model rules.

On October 26, 2001 (66 FR 54143), EPA approved the one-hour attainment demonstration SIP submitted by Pennsylvania for the Philadelphia area, with the understanding that the Commonwealth would submit additional emission reduction measures to address EPA-identified emission shortfalls. One of the emission reduction measures identified by the OTC to help attain and maintain the one-hour ozone standard was a regulation reducing VOC emissions from solvent cleaning operations. Pennsylvania submitted a SIP revision to its solvent cleaning regulations to EPA on February 13, 2002, based upon the model rule developed by the OTC.

This revision will reduce VOCs emitted from solvent cleaning operations throughout the Commonwealth and will help achieve the additional VOC emission reduction benefits needed by the Philadelphia area to meet its attainment demonstration commitments.

On February 13, 2002, the Commonwealth of Pennsylvania submitted a SIP revision revising its VOC control requirements for solvent cleaning operations throughout the state. Specifically, a new section, section 129.63 of Chapter 129, Standards for Sources, Sources of VOCs, VOC Cleaning Operations, is replacing the current section 129.63 to update equipment requirements for solvent cleaning machines to make the requirements consistent with current technology. In addition, the operating requirements in section 129.63 are being revised to specify improved operating practices. This SIP revision also adds and revises definitions for terms in Chapter 121, section 121.1 Definitions, that are used in the substantive sections of Chapter 129 relating to standards for sources.

This revision also specifies volatility limits for solvents used in cold cleaning machines. This revision only applies to those operations that use solvents containing greater than 5 percent VOC content by weight for the cleaning of metal parts. This revision exempts solvent cleaning machines that are subject to the Federal Solvent Cleaning NESHAP (National Emission Standard for Hazardous Air Pollutants), and provides operators of solvent cleaning machines a choice of compliance options for meeting the requirements of this rulemaking. Owners and operators of affected solvent cleaning machines can either implement a program using low volatility solvents or they can assure that the affected units meet specific hardware requirements. Some of the VOC control requirements in this rulemaking are more stringent than the control requirements in the Federal Control Techniques Guidelines issued in 1977. PADEP revised the solvent cleaning operations control requirements to enable the Commonwealth to attain and maintain the ozone NAAQS. Specifically, this SIP revision includes requirements adopted in the Federal Solvent Cleaning NESHAP for cleaning operations utilizing nonhazardous air pollutant VOC solvents, as well as hazardous air pollutant (HAP) VOC solvents. This will discourage operators from converting to non-HAP VOC solvents to avoid the more stringent NESHAP requirements, which could adversely affect air quality.

Except for machines subject to the Federal Solvent Cleaning NESHAP promulgated under 40 CFR part 63, subpart T, the changes to section 129.63(a)-(c) and the addition of section 129.63(d) apply to cold cleaning machines, batch vapor cleaning machines, in-line vapor cleaning machines, airless cleaning machines, and airtight cleaning machines that use solvents containing greater than 5 percent VOC content by weight to clean metal parts. These revisions update equipment requirements for these solvent cleaning machines to make the equipment requirements consistent with current technology. These equipment specifications are consistent with the requirements of the Federal Solvent Cleaning NESHAP. Section 129.63(e) specifies volatility limits for solvents in certain cleaning machines.

This section specifically applies to cold cleaning machines except for those subject to the Federal Solvent Cleaning NESHAP. This section applies to cold cleaning machines that use 2 gallons or more of solvents containing greater than 5 percent VOC content by weight for the cleaning of metal parts. The section outlines the operating practices and procedures that are to be followed when operating a cold cleaning machine.

This section specifically applies to batch vapor cleaning machines, except for those subject to the Federal Solvent Cleaning NESHAP. This section applies to batch vapor cleaning machines that use solvent containing greater that 5 percent VOC by weight for the cleaning of metal parts. This section outlines equipment requirements and additional options required for batch vapor cleaning machines with a solvent/air interface area of 13 square feet or less, and for batch vapor cleaning machines with a solvent/air interface area of greater than 13 square feet. The operating procedures for batch vapor cleaning machines are also outlined in this section.

This section specifically applies to in-line vapor cleaning machines except for those subject to the Federal Solvent Cleaning NESHAP. This section applies to in-line vapor cleaning machines that use solvent containing greater than 5 percent VOC by weight for the cleaning of metal parts. This section outlines the equipment requirements, the additional devices or strategies required in operation, and good operating procedures for in-line vapor cleaning machines.

This section specifically applies to airless cleaning machines and airtight cleaning machines except for those subject to the Federal Solvent Cleaning NESHAP. This section applies to airless cleaning machines and airtight cleaning machines that use solvent containing greater than 5 percent VOC by weight for the cleaning of metal parts. This section outlines the operating and equipment requirements for airless cleaning machines and airtight cleaning machines as well as the allowable emission limits from each machine. The operator of each machine shall demonstrate that the emissions from each machine, on a 3-month rolling average, are equal to or less than the allowable limit determined by the use of the following equation:

This section describes the alternative provisions for solvent cleaning machines used to process metal parts that use solvents containing greater than 5 percent VOC by weight. As an alternative to complying with sections (b)-(d), the operator of a solvent cleaning machine may demonstrate compliance with paragraph (1) or (2) of section 129.63(e). The operator shall maintain records sufficient to demonstrate compliance. These records shall include, at a minium, the quantity of solvent added to and removed from the machine and the dates of the addition and removal. These records shall be maintained for at least 2 years.

Section 129.63(e)(1) outlines the requirements for solvent cleaning machines if the solvent cleaning machine has a solvent/air interface. In this instance, the owner or operator is required to maintain a log of solvent additions and deletions for each solvent cleaning machine, and to ensure that the emissions from each solvent cleaning machine are equal to or less than the applicable emission limit presented in Table 1.

Section 129.63(e)(2) specifies the volatility limits if the solvent cleaning machine is a batch vapor cleaning machine and it does not have a solvent/air interface. In that case, the owner or operator is required to maintain a log of solvent additions and deletions for each machine and to ensure that the emissions from each machine are equal to or less than the appropriate limits as described in paragraphs (3) and (4) of this section.

Section 129.63(e)(3) specifies the volatility limits for solvent cleaning machines without a solvent/air interface with a cleaning capacity that is less than or equal to 2.95 cubic meters. The emission limit for these machines is to be determined using Table 2 or the equation in paragraph (4) of section 129.63(e). If the table is used, and the cleaning capacity of a cleaning machine falls between two cleaning capacity sizes, the lower of the two emission limits applies.

Section 129.63(e)(4) specifies volatility limits for solvent cleaning machines without a solvent/air interface with a cleaning capacity that is greater than 295 cubic meters. The emission limit for these machines is to be determined using the following quotation:

This regulation also requires the owner or operator of a batch vapor or in-line solvent cleaning machine complying with this subsection to demonstrate compliance with the applicable 3-month rolling average monthly emission limit on a monthly basis. If the applicable 3-month rolling average emission limit is not met, an exceedance will have occurred. Exceedances shall be reported to the Department within 30 days of the determination of the exceedance.

This SIP revision adds definitions and revises certain existing definitions to Chapter 121, General Provisions, section 121.1, Definitions for terms used in the substantive provisions of Chapter 129, Pennsylvania's regulations which contain VOC emission standards. Additional definitions are provided for the following: Airless cleaning system, Airtight cleaning system, Batch vapor cleaning machine, Carbon absorber, Cold cleaning machine, Dwell, Dwell time, Extreme cleaning service, Freeboard refrigeration device, Idling mode, Immersion cold cleaning machine, In-line vapor cleaning machine, Reduced room draft, Remote reservoir cold cleaning machine, Solvent/air interface, Solvent cleaning machine, Solvent cleaning machine automated parts handling system, Solvent cleaning machine down time, Solvent vapor zone, Superheated vapor system, Vapor cleaning machine, Vapor cleaning machine primary condenser, Vapor pressure, Vapor up control switch, and Working mode cover.

These amendments also include a revision to the definition of “freeboard ratio” to make it consistent with the definition in the Federal Solvent Cleaning NESHAP.

The February 13, 2002 SIP revision submitted by the Commonwealth revises the existing solvent cleaning requirements as recommended by the OTC in their model rule for solvent cleaning operations to help attain and maintain the one-hour ozone standard. The new VOC regulations submitted by the Commonwealth of Pennsylvania as a SIP revision on February 13, 2002, related to solvent cleaning operations, and the addition of definitions used in the substantive sections of Chapter 129 strengthen Pennsylvania's SIP by providing enforceable emission control measures that will reduce VOC emissions from solvent cleaning operations throughout the Commonwealth.

These regulations implement one of the VOC control strategies recommended by the OTC to address the emission reduction shortfall in Pennsylvania's attainment demonstration. The emission reductions that will result from this rulemaking are a significant part of the Commonwealth's efforts to continue toward attainment and maintenance of the one-hour NAAQS for ozone throughout the Commonwealth.

EPA is proposing to approve the Commonwealth of Pennsylvania SIP revision for solvent cleaning operations, which was submitted on February 13, 2002. EPA is also proposing to approve the additions and revisions of definitions used in the solvent cleaning regulations. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document. A more detailed description of the state submittal and EPA's evaluation are included in a Technical Support Document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This proposed rule to revise Pennsylvania's VOC control requirements for solvent cleaning operations does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This is a summary of the Federal Communications Commission's Notice of Proposed Rule Making , FCC 02-83, adopted on March 14, 2002, and released on March 20, 2002. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. In this Notice of Proposed Rule Making (“ NPRM ”), the Commission proposes to amend § 1.937 of its Rules to prohibit the filing of any repetitious license application in the Wireless Radio Services within twelve months of the denial or dismissal with prejudice of a substantially similar application. The Commission's Rules have long prevented the filing of repetitious license applications. As written, however, § 1.937 can be interpreted as permitting the filing of other repetitious applications that are not specified in the rule. In at least one instance, a licensee has filed a repetitious application for the same service less than twelve months after the denial of his renewal application. Such cases can consume significant resources to re-litigate identical issues involving the same applicants very close in time. Therefore, we hereby propose to amend § 1.937 to prohibit any repetitious application in the Wireless Radio Services within twelve months of the denial or dismissal with prejudice of a substantially similar application.

2. Also the Commission proposes to streamline its Rules by combining §§ 1.937(a) and (b) into one simplified rule. Our goal is to simplify and clarify our rules against repetitious applications. This will promote the most efficient use of the Commission's resources by preventing the filing of such applications and barring applicants from immediately re-litigating decided matters.

3. This is a permit-but-disclose notice and comment rule making proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in our Rules.

4. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The purpose of this Notice is to prohibit the filing of applications for radio station licenses within twelve months of the denial of a substantially similar application. This change is proposed to promote the most efficient use of the Commission's resources by preventing the immediate filing of repetitious applications. The proposed rule change does not impose any additional compliance burden on small entities regulated by the Commission. Accordingly, we certify, pursuant to section 605(b) of the RFA, that the rule proposed in this Notice will not have a significant economic impact upon a substantial number of small entities, as that term is defined by the RFA. The Commission's Office of Public Affairs, Reference Operations Division, shall send a copy of this Notice , including this certification, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with the RFA. We shall also publish a copy of this certification in the Federal Register . With respect to the proposed rules, we shall analyze the information submitted during the comment period and, if we determine at the time we issue a final rule that such final rule changes will have a significant economic impact on a significant number of small entities, we shall prepare a Final Regulatory Flexibility Analysis.

5. This Notice does not contain either a proposed or modified information collection.

6. Pursuant to §§ 1.415 and 1.419 of the Commission's Rules, interested parties may file comments on or before June 14, 2002 and reply comments on or before July 1, 2002. Comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies.

7. 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. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, then commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. 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.

8. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

9. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Genevieve Augustin, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, 445 12th St., SW., Room 3-A431, Washington, DC 20554. Such a submission should be on a 3.5-inch diskette formatted in an IBM compatible format using Microsoft Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number in this case, WT Docket No. 02-87), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters should send diskette copies to the Commission's copy contractor, Qualex International, Inc., 445 12th St., SW., Room CY-B402, Washington, DC 20554.

10. Pursuant to Sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, this Notice of Proposed Rule Making is hereby adopted , and notice is hereby given of the proposed regulatory changes described in the Notice of Proposed Rule Making and contained in the rule changes.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 1 as follows:

This is a summary of the Commission's Notice of Proposed Rulemaking in WC Docket No. 02-60, FCC 02-122, released on April 19, 2002. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC, 20554. The full document can also be viewed at < http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-122A1.pdf>.

This Notice of Proposed Rulemaking (NPRM) contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding.

The NPRM contains discussion of information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection(s) discussed in this NPRM, as required by the PRA, Public Law 104-13. Public and agency comments on the information collections discussed in this NPRM are due on or before June 14, 2002. Written comments must be submitted by the OMB on the proposed information collections on or before July 15, 2002.

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: 3060-0804.

Title: Universal Service—Health Care Providers Universal Service Program.

Form No.: FCC Forms 465, 466, 466-A, 467 and 468.

Type of Review: Proposed revised collection.

Respondents: Business or other for-profit, not-for-profit institutions, State, Local or Tribal Governments.

Total Annual Burden: 70,550.

Cost to Respondents: $0.

Needs and Uses: In this NPRM the Commission has updated its data estimating the number of health care providers who could be respondents, to a total of approximately 8,300 rural health care providers. The Commission might further refine the burden estimates after receiving comment.

The purpose of the NPRM is to explore modifications that would increase the number of eligible health care providers that would participate in the program. It is not possible to estimate the number of eligible health care providers that would take advantage of this program as the NPRM asks for comment about possible changes in interpretation of the eligibility criteria for both entities and services. Therefore, we have included the largest possible number of applicants the total estimated number of rural health care providers—in the above burden estimates.

1. In this NPRM, we seek comment on proposed modifications to our rules and other changes governing the rural health care universal service support mechanism. The Commission implemented the rural health care mechanism at the direction of Congress as provided in the Telecommunications Act of 1996 (1996 Act). In the first five years of its operation, the rural health care mechanism has provided discounts that have facilitated the ability of health care providers to provide critical access to modern telecommunications and information services for medical and health maintenance purposes to rural America. Participation in the rural health care universal service support mechanism, however, has not met the Commission's initial projections. After five years of experience with the mechanism and considering recent developments, we find it appropriate to assess whether our rules and policies require modification.

2. In light of changes in technology and market conditions as well as recent national events, we find it appropriate to ask whether various aspects of the rural health care support mechanism can be streamlined and improved, in order to best effectuate the mandate of Congress. We seek comment on certain specific changes to the mechanism based on our past experience with the mechanism, and solicit input regarding other changes to improve efficiency, fairness, and overall operation of the mechanism. We believe certain changes to our rules affecting the rural health care support mechanism could significantly bolster the availability of telemedicine and telehealth, thereby enhancing critical diagnosis and communication support for isolated health centers throughout the rural United States in the event of a national public health emergency.

3. Our goals in undertaking this proceeding, consistent with the statute, are four-fold: (1) To ensure that the benefits of the universal service support mechanism for rural health care providers continue to be distributed in a fair and equitable manner; (2) to examine current rules and, if necessary, implement changes to improve and streamline operation of the rural health care universal service support mechanism; (3) to maintain our effective oversight over operation of the mechanism to ensure the statutory goals of section 254 of the Act are met without waste, fraud, or abuse; and (4) to strengthen the ability of rural health care providers to provide critical health care services, consistent with section 254, and thereby further our national homeland security.

4. In this NPRM, we seek comment on several general categories of issues, including whether to: clarify how we should treat eligible entities that also perform functions that are outside the statutory definition of “health care provider'; provide support for Internet access; and change the calculation of discounted services, including the calculation of urban and rural rates. In addition, we seek comment on other administrative changes to the rural health care mechanism, including whether and how to: streamline the application process; allocate funds if demand exceeds the annual cap; modify the current competitive bidding rules; and encourage partnerships with clinics at schools and libraries. We also seek comment on other measures to prevent waste, fraud, and abuse; and any other issues concerning the structure and operation of the rural health care universal service support mechanism.

5. We seek comment on these specific proposals, and how such changes could be implemented. We also seek comment on the effect that any such changes may have on demand for support under the universal service mechanism as well as data to support any comments made. We welcome any alternative proposals that are consistent with the statute and that satisfy the expressed goals of this proceeding. We seek comment from state members of the Federal-State Joint Board on Universal Service on the matters raised in this proceeding.

6. Section 254(h)(1)(A) of the Act requires telecommunications carriers to provide discounted telecommunications service “to any public or nonprofit health care provider that serves persons who reside in rural areas in that State.” Section 254(h)(2)(A) directs the Commission to enhance access to “advanced telecommunications and information services” for, inter alia, “public and non-profit . . . health care providers.” The term “health care provider” as used in these sections is defined in section 254(h)(7)(B) as follows:

For purposes of this subsection: * * * [t]he term “health care provider” means—

(i) Post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools;

(ii) Community health centers or health centers providing health care to migrants;

(iii) Local health departments or agencies;

(iv) Community mental health centers;

(v) Not-for-profit hospitals;

(vi) Rural health clinics; and

(vii) Consortia of health care providers consisting of one or more entities described in clause (i) through (vi).

7. The Commission initially addressed the scope of this statutory definition in the Universal Service Order, 62 FR 32862, June 17, 1997, finding that the seven statutory categories adequately described the entities that Congress intended to qualify as health care providers. It declined to expand the definition of “health care provider” beyond the statutorily-enumerated categories, concluding that, had Congress intended any other entities to qualify, it would have included them in the list explicitly. On reconsideration of the Universal Service Order, the Commission rejected arguments that it had too narrowly defined the term “health care provider” and that it should expand the definition to include rural nursing homes, hospices, or other long-term care facilities, as well as emergency medical service facilities.

8. The Commission concluded that a nursing home, in particular, would be ineligible even if it was part of an eligible rural health clinic. The Commission reasoned that an ineligible entity's relationship with an eligible entity is an insufficient basis for allowing an entity omitted from the list in the statute to qualify for the benefits of the universal service support mechanism and that there was “no rational basis for distinguishing between a rural nursing home that is part of a not-for-profit * * * rural health clinic and a rural nursing home that is associated with any of the other categories of eligible entities listed in the statute.” The Commission also rejected eligibility of nursing homes that were part of a rural health clinic because granting such eligibility “would very likely result in a flood of other types of ineligible entities requesting similar treatment, and thus would render meaningless the limitations imposed by Congress in section 254(h)(7)(B).”

9. In this NPRM, we again affirm that eligible health care providers are limited to the seven categories enumerated in the statutory definition of “health care provider.” In light of the very low utilization of the discounts provided pursuant to section 254(h)(1)(A), however, we invite comment on whether we should revisit our prior interpretations of the terms “health care provider” and “rural health clinic” to enable rural health care providers to be eligible for discounts even if they or their affiliates also function in capacities that do not fall under the statutory definition in section 254(b)(7)(B). In particular, if an entity allocates some of its resources acting as a “rural health clinic” or in another capacity that would qualify it as a “health care provider” under section 254(b)(7)(B), should that entity be eligible for discounts irrespective of whether it (or an affiliate) also functions in a capacity—even on a primary basis—that would not qualify it as a “health care provider” under the Act? Such part-time or multipurpose providers may play a vital role in responding to public health crises affecting communities located in remote regions of our country. In some communities, for example, there are rural health clinics and emergency service facilities that are not currently eligible for support because they are operated by entities that also function as nursing homes, hospices, or other long-term care facilities. We seek comment on whether we can and should interpret the statute to enable such clinics and emergency service providers to receive discounted services supported under the rural health care mechanism. The number and importance of clinics with these or similar arrangements may be becoming—or may have already become—a critical part of the health care network in rural America.

10. We also seek comment on how the rural health care mechanism would benefit entities that function both as covered health care providers and as entities that do not fall under section 254(b)(7)(B). In particular, we seek comment on whether it would be both practicable and consistent with the statute to prorate discounts. Such proration could ensure that the rural health care universal service support mechanism benefits such entities only to the extent that they operate as covered health care providers. We seek comment on the best way to implement such a proposal and how it would affect administrative costs. We also seek comment on what safeguards, if any, we should consider or adopt to ensure that discounted services provided to such multipurpose facilities are used consistent with the statute and our rules.

11. Under section 254(h)(1)(A) of the Act, a telecommunications carrier may receive reimbursement for providing telecommunications services to rural health care providers in a State at rates that are reasonably comparable to rates charged for similar services in urban areas of that State, with the amount of the reimbursement equal to the difference, if any, between the rural and urban rates. Under section 254(h)(2)(A), the Commission is authorized to establish competitively neutral rules “to enhance, to the extent technically feasible and economically reasonable, access to advanced telecommunications and information services for all public and non-profit elementary and secondary school classrooms, health care providers, and libraries * * * .” Thus, the 1996 Act contemplates both support for telecommunications services provided to rural health care providers and enhancing access for health care providers to advanced telecommunications and information services.

12. In the Universal Service Order, the Commission, relying on these provisions, authorized limited support for access to the Internet for health care providers. The Commission declined at that time to adopt any proposals for support of the Internet access provided by an ISP, due to the limited information available and the complexity of the proposals. The Commission did find, however, that rural health care providers incur large telecommunications toll charges and those charges were a major deterrent to full use of the Internet for health-related services. Therefore, acting pursuant to its authority under section of 254(h)(2)(A), the Commission provided support for toll charges incurred by all health care providers that could not obtain toll-free access to an ISP. The support was limited to the lesser of $180.00 or 30 hours of usage per month, if a rural health care provider could not reach an ISP without incurring toll charges. The Commission determined that the dollar cap per provider was “a specific, sufficient, and predictable mechanism, as required by section 254(b)(5) * * * because it limits the amount of support that each health care provider may receive per month to a reasonable level.” The Commission recognized, however, that the proliferation of ISPs and the competitive marketplace “soon should eliminate the need for such support.”

13. We now seek comment on whether to alter our current framework for providing support for Internet access for rural health care providers. We note that the support for toll charges is presently unused by applicants because, as a result of the proliferation of ISPs, virtually all rural health care providers can now reach an ISP without incurring toll charges. We seek comment on whether we should eliminate support for toll charges to ISPs and instead provide support for any form of Internet access provided to rural health care providers.

14. The Commission has previously concluded that we have statutory authority to implement a mechanism of universal service support for non-telecommunications services to enhance access to advanced telecommunications and information services under section 254(h)(2)(A), as long as the mechanism is competitively neutral, technically feasible, and economically reasonable. Indeed, in the Universal Service Order, the Commission specifically rejected the notion “that support for non-telecommunications services is * * * barred under * * * section 254(h)(2). Moreover, in the schools and libraries universal service support context, the Fifth Circuit affirmed the Commission's determination that 254(h)(2)(A) authorized direct support for Internet access to non-telecommunications service providers.

15. We continue to believe that we have authority to support the services necessary to access the Internet under sections 254(h)(2)(A) and 154(i), and invite comment on this view. Given the rapid development of the Internet's capacities, the proliferation of applications available on the Internet, and the increase in the number of Internet users since the Universal Service Order was issued, it is time to reevaluate our previous policy decision not to support Internet access service provided by an ISP. Indeed, the Commission has previously recognized that the most efficient and cost-effective way to provide many telemedicine services may be via the Internet. In addition, health care information shared across the Internet may be an important benefit to enable rural health care providers to diagnose, treat, and contain possible outbreaks of disease or respond to health emergencies. We also wish to reduce isolation in rural communities by providing additional health care services to remote areas. We seek comment on the range of health care services and information that are available via the Internet, on the ability of the Internet to provide to rural communities the type of health care information that is available in urban areas, and, in general, on how health care providers can make use of the Internet to provide better health-related services. In light of these changes, the provision of support for Internet access could be beneficial in achieving the goal of section 254. We therefore seek comment on whether the rural health care support mechanism should now include discounts on Internet access, whether provided on a dial-up or high-speed broadband basis, and whether such support would be economically reasonable and technically feasible.

16. We seek comment on how support to rural health care providers for Internet access could be implemented. In determining an appropriate method of implementation, we seek comment on the appropriate balance among various competing factors. If we were to adopt this proposal, we would want to provide an adequate level of support to enable health care providers to afford such access. We also would want not to deter health care providers from seeking service offerings appropriate to their individual needs. At the same time, we seek to ensure that any implementation of support includes measures to avoid waste and fraud without imposing unnecessary costs on the Administrator, and to ensure that support is used for the purposes that Congress intended. One possible solution could be a percentage discount on Internet access charges, analogous to the operation of the schools and libraries support mechanism. Alternatively, we seek comment on whether support for Internet access provided under section 254(h)(2)(A) should include a rural-urban rate comparison of the sort required under section 254(h)(1)(A). We seek comment on the advantages and disadvantages of each proposal and how such proposals could be efficiently and effectively implemented. Further, we encourage commenters suggesting methods of implementation to address these competing concerns, to be specific as to the level of support that we should offer, and to provide us with the facts that they rely upon in advocating a level of support.

17. If commenters believe that Internet access support should take the form of a percentage discount, we invite them to discuss whether we should adopt a single discount rate broadly applicable to all rural health care providers or apply different rates depending on a factor or factors. If commenters argue that the latter approach is preferential, they should specify the factors that we should rely upon in determining rates and, where possible, how rates will vary depending on variations in the applicable factors. In all cases, commenters should specify the facts on which they rely in proposing a particular rate or schedule of rates.

18. Further, to accurately gauge the effect of such a proposal, we should understand how authorizing support for Internet access would increase the demand for support from rural health care providers. We therefore seek comment on the likely demand for Internet access, and from service providers on the cost of such services. We seek comment on whether demand for Internet access is likely to reach the $400 million cap on the amount of support to be provided by the rural health care mechanism, and how increased demand would affect the operation of the rural health care mechanism.

19. We recognize that, in certain circumstances, offering support for Internet access to health care providers in rural areas may not adequately ensure that such providers have access to critical medical and public health resources, particularly in the event of a national security emergency. In particular, we lack an adequate record upon which to evaluate whether the non-rural institutions with such resources have the financial wherewithal or alternate public funding to make those medical resources available on networks used by rural health providers. Thus, we encourage interested parties to identify what, if any, new policies we should establish to enhance access to advanced telecommunications and information services for health care providers consistent with the scope of our authority under section 254(h)(2)(A).

20. In general, we seek comment on the positive or negative effects that a decision to support Internet access will have on the rural health care support mechanism, from the perspective of the health care providers, the service providers, and the Administrator. In addition, we seek comment on how such implementation could be effectuated in keeping with the Commission's long standing universal service principles, specifically competitive neutrality and technological neutrality. We encourage parties to discuss any issues relevant to whether we should provide support for Internet access, which parties should be eligible for such support, what level of support to provide, the nature of the support, what restrictions we should place on such support, what administrative problems and concerns may arise if we provide such support, and the impact of such support on the mechanism's ability to support other services. We also seek comment on the effects on competition, if any, resulting from providing universal service support for Internet access under the rural health care mechanism. Specifically, we seek comment on whether such support would have positive or negative effects on facilities-based broadband deployment in rural areas.

21. Under section 254(h)(1)(A), rural health care providers may receive support only for “telecommunications services which are necessary for the provision of health care services * * * including instruction relating to such services * * * ” In the Universal Service Order, the Commission found that the phrase “necessary for the provision of health care services * * * including instruction relating to such services” meant reasonably related to the provision of health care services or instruction. The Commission further required that the health care provider certify that the requested service would be used exclusively for purposes reasonably related to the provision of health care services or instruction that the health care provider is legally authorized to provide under applicable state law, to help ensure that only eligible services are funded.

22. We seek comment on whether we should adopt any additional measures to effectuate the statutory restriction in cases where a health care provider engages in both the provision of health care services and other activities. We could rely solely on the certification that none of the telecommunications services being supported will be used in connection with the non-health care related activities. However, if we decide to support services to entities engaged in a substantial amount of a non-health care related activities, the current certification procedure may not be adequate to avoid waste and fraud. We therefore seek comment on how best to avoid waste and fraud, specifically in situations where entities perform a significant amount of non-health related activities.

23. Section 254(h)(1)(A) of the Act provides that “[a] telecommunications carrier shall, upon receiving a bona fide request, provide telecommunications services which are necessary for the provision of health care services in a State, including instruction relating to such services, to any public or nonprofit health care provider that serves persons who reside in rural areas in that State at rates that are reasonably comparable to rates charged for similar services in urban areas in that State.” Under our rules, the amount of support for an eligible service provided to a rural health care provider is the difference, if any, between the urban rate and the rural rate charged for the service.

24. For service charges that are not distance-based, qualifying entities receive discounts for the difference in urban and rural rates. Pursuant to our rules, the Administrator determines the “standard urban distance,” (SUD) which is the average of the longest diameters of all cities in the state with a population of at least 50,000. The Administrator also calculates the Maximum Allowable Distance (MAD), which is the distance between the rural health care provider and the farthest point on the jurisdictional boundary of the nearest large city in the state with a population of at least 50,000. Under our rules, qualifying entities receive discounts on distance-based charges for services over any distance greater than the SUD but less than the MAD.

25. As discussed below, we seek comment on whether the “similarity” of urban and rural services should be determined on the basis of functionality from the perspective of the end-user, rather than on the basis of whether urban and rural services are technically similar. We also seek comment on whether, for purposes of determining the urban rate, the Administrator should allow comparison of rates in any urban area in the state, not just comparison with the rates in the nearest city with a population of over 50,000. In addition, we seek comment on whether to eliminate the MAD restriction, and seek comment on other alternatives. Furthermore, we seek comment on certain changes relating to the calculation of the urban rate in insular areas.

26. As noted, section 254(h)(1)(A) of the Act provides that “[a] telecommunications carrier shall, upon receiving a bona fide request, provide telecommunications services which are necessary for the provision of health care services in a State, including instruction relating to such services, to any public or nonprofit health care provider that serves persons who reside in rural areas in that State at rates that are reasonably comparable to rates charged for similar services in urban areas in that State.”

27. However, our rules do not specify precisely how urban and rural services are to be compared for purposes of determining what are “similar.” It has been our policy to base discounts on the difference in urban and rural rates between the same or similar services, such as comparing the rates for rural T-1 service with those of urban T-1 service. Our current policy of comparing technically similar services may, however, inadvertently create inequities between urban and rural health care providers. Doing so does not take into account the fact that some less expensive urban services are unavailable at any price in rural areas, and health care providers are thus required to seek out more expensive services.

28. We seek comment on changing our policy of comparing urban and rural rates for particular telecommunications services, such that the discounts would be calculated by comparing services based on functionality of the service from the perspective of the end user. In particular, we seek comment on whether comparisons should be made between or among different types of high-speed transport offered by telecommunications carriers that may be viewed as functionally equivalent by end-users. We also seek comment on whether this proposed policy change would better effectuate the statutory goals of section 254.

29. We seek comment on the fairest and most effective way to compare functionality between or among different types of telecommunications services. We seek comment on how a functionality-based approach would affect discounts for all telecommunications services, including fractional T-1 lines, ISDN, Frame Relay services, and ATM services, and any other such telecommunications services for which the rural health care universal service support mechanism may offer discounts.

30. We note that the discussion above presupposes that such functionality comparisons would be made between services provided as telecommunications services. If, however, the Commission rules that broadband Internet access services are information services, any such services would be eligible for support only under section 254(h)(2)(A), and not under section 254(h)(1)(A). As noted, we seek comment on whether any support for information services provided under section 254(h)(2)(A) should include a rural/urban rate comparison of the sort required under section 254(h)(1)(A).

31. We also seek comment on how this possible modification would affect health care providers seeking discounts for satellite services. Providers using satellite services have been particularly disadvantaged under the mechanism's current rules. In some areas throughout the United States and related territories, particularly remote and insular areas, satellite systems may provide the only viable means for a rural health care provider to receive telecommunications services. A rural provider using satellite services typically does not receive a discount under this mechanism because, under our current policies, the cost of rural satellite service would be compared to the cost of urban satellite service, and the price of satellite service does not vary by location. In some cases, satellite-based services can be more costly than traditional wireline services. Therefore, we recognize that widespread use of satellite-based services by rural health care providers that do have reasonably priced land-based alternatives, if fully funded by the rural health care mechanism, may prove costly for the universal service support mechanism and offer an unnecessarily expensive service option for some applicants. We therefore seek comment on how to address this concern, which is similar to our concerns with respect to traditional wireline services.

32. The Commission currently has before it a Petition for Reconsideration filed by Mobile Satellite Ventures Subsidiary (MSV), regarding the 1997 Universal Service Order, concerning, inter alia, the issue of discounts in the rural health care universal service support mechanism for satellite services. MSV, which offers satellite-based emergency medical communications, argues that because the cost of satellite systems is the same in rural and urban areas, providers of satellite-based services are at a disadvantage compared to terrestrial carriers, whose prices are distance sensitive. MSV proposes that the Commission establish “that the urban services that are `similar' to MSV's rural [services] are the terrestrial mobile communications services typically used by ambulances and other emergency medical vehicles in a state's urban areas * * * [and that] support for rural health care providers that use MSV's services should be calculated on the basis of actual airtime usage rates that MSV charges for calls outside a customer's predefined talk-group.” We seek comment on MSV's proposal as a way to make the functional comparison for mobile satellite services, and seek any other proposals for resolving this issue.

33. We further seek comment on whether, and how, a functionality approach could be implemented consistent with current requirements concerning the Maximum Allowable Distance. If the MAD requirement is altered or eliminated as discussed below, we seek comment on how that change may interrelate with any proposed treatment of satellite services.

34. Section 254(h)(1)(A) of the Act directs us to provide support for “rates that are reasonably comparable to rates charged for similar services in urban areas in that State.” Under our rules, as described, the urban rate is based on the rate for similar services in the “nearest large city,” defined as “the city located in the eligible health care provider's state, with a population of at least 50,000, that is nearest to the healthcare provider's location, measuring point to point, from the health care provider's location to the point on that city's jurisdictional boundary closest to the health care provider's location. In the Universal Service Order, the Commission chose to base the urban rate on the rate in the nearest city of at least 50,000 in the belief that such cities “are large enough that telecommunications rates based on costs would likely reflect the economies of scale and scope that can reduce such rates in densely populated urban areas.” In addition, the Commission stated that because the telecommunications services a rural health care provider would use would likely involve transmission facilities linked to the nearest large city, using that location would provide more accurate and realistic comparable rates than using rates from more distant cities. The Commission also noted that while every state has a city of at least 50,000, not every state has larger cities.

35. Our experience with the rural health care universal service support mechanism leads us to consider reevaluating our previous conclusion. A number of applicants have suggested that the last several years of experience have demonstrated that rates and services available in small cities do not yet fully reflect the economies of scale and scope that are found in the most densely populated areas of the state. There is evidence that suggests the largest cities in a state have significantly lower rates and more service options than the city of at least 50,000 nearest the rural health care provider. In addition, our previous assumption that services used by rural health care providers would likely involve transmission links to the nearest city appears not always to be the case. There is increasing evidence that many rural health care providers choose to link their telemedicine networks to pockets of expertise located in larger cities in the state. We seek comment on whether to alter our rules to allow comparison with rates in any city in a state.

36. We recognize allowing a comparison of urban rates with any city in a state may result in certain rural health care providers receiving lower rates, by virtue of this support mechanism, than those obtained in the nearest city of 50,000 or more. The Commission previously expressed concerns about such an outcome in the context of relying on average urban rates in a state. We also note that this change would obviate the Commission's previous concern that some states may not have cities much larger than 50,000, because the comparison would be based on any city in the state. We seek comment on whether this proposal is the best way to effectuate the statutory mandate. We also seek comment on the potential effect this change may have on demand for support under the rural health care mechanism.

37. We further seek comment on any other changes involving the calculation of the urban and rural rate, in order to fulfill the goals and mandate of section 254.

38. We seek comment on eliminating or revising the MAD restriction in our rules, which limits support for rural health care providers to distances less than the “distance between the eligible health care provider's site and the farthest point from that site that is on the jurisdictional boundary of the nearest [city of at least 50,000].” In establishing the MAD, the Commission determined that providing discounts only for distance-based charges for the distance between a rural health care provider and the nearest city of 50,000 or more was sufficient to connect the health care provider to adequate services, and would protect against health care providers requesting telemedicine connections to “far flung areas in search of the real or imagined “expert” in the field.” However, our experience to date suggests that limiting rural heath care providers to discounts for connection to the nearest city of 50,000 or more may not be adequate for purposes of creating a comprehensive telemedicine network. We therefore seek comment on changes that would better effectuate the intent of the statute.

39. Removing the MAD would offer rural health care providers greater flexibility in developing appropriate networks, which should improve the delivery of health care in rural areas. There are several legitimate reasons providers would seek connections to places farther away than the nearest city of 50,000. For example, in the case of large telemedicine networks, the circuit from a rural site may run to another rural site to link all sites in a consortium together. Similarly, a carrier may lay cable in a more complex route, but because the Administrator calculates the MAD on the basis of the shortest distance between points, a rural health care provider may lose discounts if the circuit exceeds the MAD. Rural health care providers may wish to connect with a health care facility with the appropriate expertise or other pockets of expertise located beyond the MAD.

40. Eliminating the MAD should reduce the administrative costs because calculating the MAD requires labor-intensive and time-consuming efforts on the part of the Administrator. The RHCD estimates that for each application seeking support for telecommunications service over a distance that exceeds the MAD, the Administrator must devote an average of three additional hours to the application in order to ascertain the proportion of the service for which the applicant is eligible. This process diverts important resources available for all applicants, which may not be cost-effective administratively. It also adds to the complexity of the rural health care universal health care mechanism for applicants. Eliminating the MAD restriction would therefore simplify the application process while reducing administrative overhead, thereby freeing up funds for discounts for other applicants. However, we recognize that eliminating the MAD may result in substantially increased demand if more entities seek support under the mechanism. We seek comment on whether to eliminate the MAD, including the benefits and impact on demand for support under the mechanism, and whether and how we may need to constrain increased costs resulting from changes to the MAD requirement.

41. We seek comment on alternative proposals to address this issue, including whether, in lieu of eliminating the restriction, we should modify it or adopt another limitation, such as the greatest distance between the location of the rural health care provider and the furthest point on the border of the same state or the distance between the health care provider and the nearest point of so-called tertiary care. If we elect to provide discounts to the nearest point of tertiary care, what standard would be used to define this point, and should we codify that in our regulations? In the alternative, would the creation of a state-by-state matrix listing the longest diameter in each state as the MAD for such state be feasible? We seek comment on whether all of these proposed approaches are consistent with the statutory scheme. Further, if we were to adopt any of the stated proposals, we seek comment on whether it makes sense to retain our rule that support not be provided on telecommunications service over a distance shorter than the Standard Urban Distance (SUD).

42. Section 254(h)(1)(A) specifies that “telecommunications carriers shall . . . provide telecommunications services which are necessary for the provision of health care services in a State . . . to any public or nonprofit health care provider that serves persons who reside in rural areas in that State. at rates that are reasonably comparable to rates charged for similar services in urban areas in that State. ” Consistent with this statutory language, the Commission's rules determine the “urban rate” for purposes of determining the amount of support by looking to the rates charged customers for a similar service in the nearest large city in the State. In the Universal Service Order, the Commission noted that using urban rates within a State as the benchmark for reasonable rates may be ill-suited to certain insular areas that are relatively rural all over, including areas of the Pacific Islands and the U.S. Virgin Islands. Following up on this concern, the Commission sought comment in the Unserved and Underserved Areas Further Notice, 64 FR 52738, September 30, 1999, on whether the calculation of support should be modified for these areas, and invited commenters to propose specific revisions.

43. In response, certain commenters suggested that the Commission had authority under section 254(h)(2)(A) to designate an out-of-state urban locale as the relevant urban benchmark for insular areas such as Guam and the Northern Mariana Islands. We seek comment on whether section 254(h)(2)(A) gives us the authority to allow rural health care providers to receive discounts by comparing the rural rate to the nearest large city even outside of their “State.” We also seek comment on any alternative means for addressing the special problems of insular areas, consistent with section 254.

44. We seek comment on ways to streamline the application process to make it more accessible to rural health care providers. The Commission has recognized in the past that the application process, and the complicated nature of the forms involved, may sometimes be a barrier to applicants. We understand that this process may still provide unnecessary barriers to applicants. We believe the proposals in this NPRM could further simplify the operation of the rural health care universal service support mechanism. We seek comment in general on additional ways that the process of submitting, reviewing, and approving applications may be streamlined or otherwise improved to ensure timely, fair, and efficient decision-making.

45. While we welcome comments on all aspects of the application process, we specifically seek comment on the following areas. We seek comment on any additional ways that the calculation of the urban-rural differential on the forms may be made easier. We further seek comment on ways to eliminate delays and lack of response from eligible telecommunications carriers in supplying the information necessary for rural health care providers to complete the process.

46. We also seek comment on ways to ensure that rural health care providers are apprised of changes in deadlines for application filings and other material changes in the application and appeals process.

47. We seek comment on whether to modify our current rules governing the allocation of funds under the rural health care universal service support mechanism if demand exceeds the annual cap. The annual cap on universal service support for health care providers is currently $400 million per funding year. Under our rules, if the total demand for support in a year exceeds the cap, the Administrator shall divide the total annual support available by the total amount requested in that year, then multiply that result, which is the pro-rata factor, by the amount requested by each applicant, in order to determine the amount each applicant shall receive.

48. Discounts amounts requested under the rural health care universal service support mechanism, to date, have never exceeded the annual cap. However, it is possible that changes adopted in response to this NPRM could increase the level of discounts requested in a year such that discounts requested may, at some point in the future, exceed the cap. We therefore seek comment on whether this pro-rata distribution of funds for requested discounts is the most effective and equitable means of distributing limited funds in accordance with the goals and purposes of the statute, or whether an alternative approach should be adopted.

49. We seek comment on the effectiveness of the rural health care universal service support mechanism's competitive bidding rules. Under current rules, applicants are required to participate in a competitive bidding process pursuant to Commission regulations and any additional applicable state, local, or other procurement requirements. Applicants are required to submit to the Administrator an FCC Form 465, in which it solicits bids for services from telecommunications carriers, and makes various certifications relating to eligibility under the rural health care universal service support mechanism. The Administrator then posts the form on its website, notifying telecommunications carriers that may wish to bid for an applicant's services about the rural health care provider's request. An applicant's FCC Form 465 must be posted on the Administrator's website for at least 28 days before the applicant may enter into a contract for services with a telecommunications carrier, in order to allow sufficient time for different carriers to bid on the requested services.

50. After selecting a telecommunications carrier, the applicant must certify to the Administrator that it has selected the most cost-effective method of providing the requested services, defined as “the method that costs the least after consideration of the features, quality of transmission, reliability, and other factors that the health care provider deems relevant to choosing a method of providing the required health care services.” Applicants must also submit to the Administrator paper copies of the responses or bids received.

51. The purpose of the posting requirement for the FCC Form 465 is to provide a rapid and easy mechanism for notifying all potential bidders for services of rural health care providers' requests, in order to encourage competition among bids and enable applicants to secure the most cost-effective services. However, to the extent that some rural areas may have only one service provider, the requirement may result in needless delays for applicants in securing support. We seek comment on whether the requirement can and should be waived in certain circumstances ( e.g. , when applications are submitted by small entities), whether such a change is necessary or prudent, and how we may implement it with minimal administrative effort and expense, while fulfilling our obligations to reduce waste, fraud, and abuse and ensuring that universal service support is used “wisely and efficiently.”

52. We seek comment on whether there currently are adequate measures to ensure that rural health care providers buy the most cost-effective services. As described, current rules require applicants to select the most cost-effective method of providing the requested services. However, there are no restrictions on the type of service offerings a rural health care provider may select. We seek comment on how best to ensure that applicants choose the most cost-effective services under the rural health care universal service support mechanism. We also seek comment on how such a change in our rules, if adopted, could be implemented most effectively and equitably, preventing waste and abuse without imposing undue burdens on rural health care providers. In addition, we seek comment on whether we should implement changes to encourage applicants to use lowest cost technology available, regardless of whether that technology involves wireline, coaxial cable, fiber, terrestrial wireless, satellite, or some other technology. If so, we seek comment on how those changes should be implemented.

53. We seek comment on ways in which the rules or policies of the rural health care universal service support mechanism might be altered to better encourage rural health providers to pool resources with other entities in order to limit costs for themselves and thereby utilize support more efficiently. Some parties have questioned the rural health care universal service support mechanism for denying school-based clinics support on the grounds that such clinics are only eligible for discounts under the schools and libraries universal service support mechanism, while the schools and libraries mechanism denies the clinics support for the reason that the clinics are only eligible under the rural health care universal service support mechanism. We seek comment on the extent to which such clinics are or should be eligible under either mechanism, and on whether our rules and policies may encourage rural health care providers to partner with clinics at schools and libraries in rural locations. We further seek comment on other ways in which the Commission might promote similar cost-sharing in order to maximize the appropriate and beneficial use of universal service funds while minimizing waste and abuse.

54. In keeping with our goal of preventing waste, fraud, and abuse, we seek comment on the effectiveness of our current rules regarding audits, and other procedures to ensure the appropriate use of funds available under the rural health care universal service support mechanism. Rural health care providers that receive support are currently subject to record-keeping and record production requirements, and random audits to ensure compliance. We seek comment on the effectiveness of these measures, and whether additional record-keeping or audit requirements are necessary. We further seek comment on any other rules that would help to combat potential waste, fraud, and abuse with respect to the rural health care universal service support mechanism.

55. In initiating this inquiry, we seek comments on various alternatives to enhance our existing rural health care universal service support mechanism. We are cognizant that these proposals contain measures that may significantly spur demand for advanced telecommunications and information services as well as implement critical cost savings measures designed to improve the efficiency and effectiveness of the mechanism. Given these numerous proposals, we ask that interested parties, to the extent possible, separately identify in their comments what, if any, potential effect individual proposal may have on demand for rural health care support. We note that any such increase in demand for rural health care support will be constrained by the operation of the $400 million rural health care support cap, and thus we seek input from commenters on any assistance they may provide in identifying which specific proposals will be most beneficial to ensuring access to advanced telecommunications and information services for all eligible rural health care providers.

56. Lastly, we seek comment on the effect these proposals may have on demand for rural health care support. We note that any such increase in demand for rural health care support will be constrained by the operation of the $400 million rural health care support cap.

57. This NPRM contains a proposed information collection. As part of a 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 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB comments are due July 15, 2002. 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.

58. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of 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 for comments on the NPRM provided. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

59. The Commission is required by section 254 of the Act to promulgate rules to implement the universal service provisions of section 254. On May 8, 1997, the Commission adopted rules that reformed its system of universal service support mechanisms so that universal service is preserved and advanced as markets move toward competition. Among other things, the Commission adopted a mechanism to provide discounted telecommunications services to public or non-profit health care providers that serve persons in rural areas. Over the last few years, important changes have occurred affecting the rural health universal service support mechanism. As discussed, several factors prompt us to review anew the rural health care universal service support mechanism, including the underutilization of the mechanism, changes in telecommunications technology and its use by the medical community, and the need to develop a broader and more fully integrated network of health care providers across the nation.

60. In this NPRM, we seek comment on whether to: clarify how we should treat eligible entities that also perform functions that are outside the statutory definition of “health care provider; provide support for Internet access; and modify the calculation of discounted services, including the calculation of urban and rural rates. We also seek comment on other administrative changes to the rural health care mechanism, including whether and how to streamline the application process; allocate funds if demand exceeds the annual cap; modify the current competitive bidding rules; encourage partnerships with clinics at schools and libraries. We also seek comment on other measures to prevent waste, fraud, and abuse; and any other issues concerning the structure and operation of the rural health care universal service support mechanism on which commenters wish to make recommendations. We seek further comment on these proposals and how such changes could be implemented. We also seek comment on the effect that any such changes may have on demand for support under the universal service mechanism as well as data to support any comments made.

61. The legal basis for this NPRM is contained in sections 151 through 154, and 254 of the Communications Act of 1934, as amended.

62. 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.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

63. 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. The term “small governmental jurisdiction” is defined as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 1997, there were approximately 87,453 government jurisdictions in the United States. This number includes 39,044 counties, municipal governments, and townships, of which 27,546 have populations of fewer than 50,000 and 11,498 counties, municipal governments, and townships have populations of 50,000 or more. Thus, we estimate that the number of small government jurisdictions must be 75,955 or fewer. Small entities potentially affected by the proposals herein include small rural health care providers, small local health departments and agencies, and small eligible service providers offering discounted services to rural health care providers, including telecommunications carriers and ISPs.

64. Section 254(h)(5)(B) of the Act defines the term “health care provider” and sets forth seven categories of health care providers eligible to receive universal service support. Although SBA has not developed a specific size category for small, rural health care providers, recent data indicate that there are a total of 8,297 health care providers, consisting of: (1) 625 “post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools”; (2) 866 “community health centers or health centers providing health care to migrants”; (3) 1633 “local health departments or agencies”; (4) 950 “community mental health centers”; (5) 1951 “not-for-profit hospitals”; and (6) 2,272 “rural health clinics.” We have no additional data specifying the numbers of these health care providers that are small entities. Consequently, using those numbers, we estimate that there are 8,297 or fewer small health care providers potentially affected by the actions proposed in this NPRM.

65. As noted, non-profit businesses and small governmental units are considered “small entities” within the RFA. In addition, we note that census categories and associated generic SBA small business size categories provide the following descriptions of small entities. The broad category of Ambulatory Health Care Services consists of further categories and the following SBA small business size standards. The categories of providers with annual receipts of $6 million or less consists of: Offices of Dentists; Offices of Chiropractors; Offices of Optometrists; Offices of Mental Health Practitioners (except Physicians); Offices of Physical, Occupational and Speech Therapists and Audiologists; Offices of Podiatrists; Offices of All Other Miscellaneous Health Practitioners; and Ambulance Services. The category of Ambulatory Health Care Services providers with $8.5 million or less in annual receipts consists of: Offices of Physicians; Family Planning Centers; Outpatient Mental Health and Substance Abuse Centers; Health Maintenance Organization Medical Centers; Freestanding Ambulatory Surgical and Emergency Centers; All Other Outpatient Care Centers, Blood and Organ Banks; and All Other Miscellaneous Ambulatory Health Care Services. The category of Ambulatory Health Care Services providers with $11.5 million or less in annual receipts consists of: Medical Laboratories; Diagnostic Imaging Centers; and Home Health Care Services. The category of Ambulatory Health Care Services providers with $29 million or less in annual receipts consists of Kidney Dialysis Centers. For all of these Ambulatory Health Care Service Providers, census data indicate that there is a combined total of 345,476 firms that operated in 1997. Of these, 339,911 had receipts for that year of less than $5 million. In addition, an additional 3414 firms had annual receipts of $5 million to $9.99 million; and additional 1475 firms had receipts of $10 million to $24.99 million; and an additional 401 had receipts of $25 million to $49.99 million. We therefore estimate that virtually all Ambulatory Health Care Services providers are small, given SBA's size categories. In addition, we have no data specifying the numbers of these health care providers that are rural and meet other criteria of the Act.

66. The broad category of Hospitals consists of the following categories and the following small business providers with annual receipts of $29 million or less: General Medical and Surgical Hospitals, Psychiatric and Substance Abuse Hospitals; and Specialty Hospitals. For all of these health care providers, census data indicate that there is a combined total of 330 firms that operated in 1997, of which 237 or fewer had revenues of less than $25 million. An additional 45 firms had annual receipts of $25 million to $49.99 million. We therefore estimate that most Hospitals are small, given SBA's size categories. In addition, we have no data specifying the numbers of these health care providers that are rural and meet other criteria of the Act.

67. The broad category of Nursing and Residential Care Facilities consists of the following categories and the following small business size standards. The category of Nursing and Residential Care Facilities with annual receipts of $6 million or less consists of: Residential Mental Health and Substance Abuse Facilities; Homes for the Elderly; and Other Residential Care Facilities. The category of Nursing and Residential Care Facilities with annual receipts of $8.5 million or less consists of Residential Mental Retardation Facilities. The category of Nursing and Residential Care Facilities with annual receipts of less than $11.5 million consists of: Nursing Care Facilities; and Continuing Care Retirement Communities. For all of these health care providers, census data indicate that there is a combined total of 18,011 firms that operated in 1997. Of these, 16,165 or fewer firms had annual receipts of below $5 million. In addition, 1205 firms had annual receipts of $5 million to $9.99 million, and 450 firms had receipts of $10 million to $24.99 million. We therefore estimate that a great majority of Nursing and Residential Care Facilities are small, given SBA's size categories. In addition, we have no data specifying the numbers of these health care providers that are rural and meet other criteria of the Act.

68. The broad category of Social Assistance consists of the category of Emergency and Other Relief Services and small business size standard of annual receipts of $6 million or less. For all of these health care providers, census data indicate that there is a combined total of 37,778 firms that operated in 1997. Of these, 37,649 or fewer firms had annual receipts of below $5 million. An additional 73 firms had annual receipts of $5 million to $9.99 million. We therefore estimate that virtually all Social Assistance providers are small, given SBA's size categories. In addition, we have no data specifying the numbers of these health care providers that are rural and meet other criteria of the Act.

69. We have included small incumbent local exchange carriers in this present RFA analysis. As noted, a “small business” under the RFA is one that, inter alia , meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

70. Total Number of Telephone Companies Affected. The United States Bureau of the Census (the “Census Bureau”) reports that, at the end of 1997, there were 6,239 firms engaged in providing telephone services, as defined therein. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems certain that some of those 6,239 telephone service firms may not qualify as small entities because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that 6,239 or fewer telephone service firms are small entity telephone service firms that may be affected by the decisions and rules adopted in this NPRM.

71. Local Exchange Carriers, Interexchange Carriers, Competitive Access Providers, Operator Service Providers, Payphone Providers, and Resellers. Neither the Commission nor SBA has developed a definition particular to small local exchange carriers (LECs), interexchange carriers (IXCs), competitive access providers (CAPs), operator service providers (OSPs), payphone providers or resellers. The closest applicable definition for these carrier-types under SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of these carriers nationwide of which we are aware appears to be the data that we collect annually on the Form 499-A. According to our most recent data, there are 1,335 incumbent LECs, 349 CAPs, 204 IXCs, 21 OSPs, 758 payphone providers and 454 resellers. Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 1,335 incumbent LECs, 349 CAPs, 204 IXCs, 21 OSPs, 758 payphone providers, and 541 resellers that may be affected by the decisions and rules adopted in this NPRM.

72. Internet Service Providers. Under the new NAICS codes, SBA has developed a small business size standard for “On-line Information Services,” NAICS Code 514191. According to SBA regulations, a small business under this category is one having annual receipts of $21 million or less. According to SBA's most recent data, there are a total of 2,829 firms with annual receipts of $9,999,999 or less, and an additional 111 firms with annual receipts of $10,000,000 or more. Thus, the number of On-line Information Services firms that are small under the SBA's $21 million size standard is between 2,829 and 2,940. Further, some of these Internet Service Providers (ISPs) might not be independently owned and operated. Consequently, we estimate that there are fewer than 2,940 small entity ISPs that may be affected by the decisions and rules of the present action.

73. Satellite Service Carriers. The SBA has developed a definition for small businesses within the category of Satellite Telecommunications. According to SBA regulations, a small business under the category of Satellite communications is one having annual receipts of $12.5 million or less. According to SBA's most recent data, there are a total of 371 firms with annual receipts of $9,999,999 or less, and an additional 69 firms with annual receipts of $10,000,000 or more. Thus, the number of Satellite Telecommunications firms that are small under the SBA's $12 million size standard is between 371 and 440. Further, some of these Satellite Service Carriers might not be independently owned and operated. Consequently, we estimate that there are fewer than 440 small entity ISPs that may be affected by the decisions and rules of the present action.

74. Wireless Service Providers. The SBA has developed a definition for small businesses within the two separate categories of Cellular and Other Wireless Telecommunications or Paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's most recent Telephone Trends Report data, 1,495 companies reported that they were engaged in the provision of wireless service. Of these 1,495 companies, 989 reported that they have 1,500 or fewer employees and 506 reported that, alone or in combination with affiliates, they have more than 1,500 employees. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 989 or fewer small wireless service providers that may be affected by the rules.

75. Cable Systems. The Commission has developed, with SBA's approval, its own definition of small cable system operators. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable system operators that may be affected by the proposals.

76. The Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenue in the aggregate exceeds $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Act.

77. The NPRM seeks comment on changes that could modify the reporting and recordkeeping requirements imposed on entities covered by the universal service support mechanism for rural health care providers. Specifically, the NPRM proposes that the application process for universal service support for rural health care providers be streamlined. The NPRM, however, does not contain any concrete proposals for streamlining, but rather seeks comment on ways that the process of reviewing, submitting and approving applications can be improved and streamlined. This NPRM also asks for general comment on measures that could be taken to reduce fraud, waste, and abuse with respect to the rural health care universal service support mechanism, particularly with regards to competitive bidding, measures for ensuring the selection of cost-effective services, and school-library partnerships, but again there are no specific proposals or compliance requirements.

78. In this NPRM, we also seek comment on whether it would be appropriate to prorate services for rural health care providers that provide other services. A change in this reporting requirement potentially could require the use of professional skills, including legal and accounting expertise. Without more data, however, we cannot accurately estimate the cost of compliance by small entities.

79. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach impacting small business, which may include the following four alternatives (among others): (1) The establishment of differing compliance and 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 part thereof, for small entities.

80. In this NPRM, we make a number of proposals that could have an economic impact on small entities that participate in the universal service support mechanism for rural health care providers. Specifically, we seek comment on: (1) Allowing discounts for Internet access by eligible rural health care providers; (2) expanding the number of entities eligible for discounts by changing the definition of “urban area” and the definition of eligible entities; and (3) other proposals that could change how those discounts are calculated. If adopted, these proposals could change the size of the overall pool of eligible applicants for universal service support for rural health care providers, as well as affect the amount of discounts that eligible entities may receive. In seeking to minimize the burdens imposed on small entities where doing so does not compromise the goals of the universal service mechanism, we have invited comment on how these proposals might be made less burdensome for small entities. We again invite commenters to discuss the benefits of such changes on small entities and whether these benefits are outweighed by resulting costs to rural health care providers that might also be small entities.

81. We have also sought comment on how to address financial support of rural health care providers if demand exceeds the annual cap on universal support. Rural health care providers that received discounts in the past may be unable to obtain such support in the future should the demand increase significantly due to changes in eligibility and how discounts are calculated. As current demand has not exceeded the annual cap, however, we are unable to determine the net economic impact of changes to the current system to small entities as a whole. We therefore request that commenters, in proposing possible alterations to our proposed rules, discuss the economic impact that those changes will have on small entities.

82. None.

83. We invite comment on the issues and questions set forth in the Notice of Proposed Rulemaking, Paperwork Reduction Analysis, and Initial Regulatory Flexibility Analysis contained herein. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before July 1, 2002, and reply comment on or before July 29, 2002. Comments may be filed 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.

84. 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. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. 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 electronic comments 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. Or you may obtain a copy of the ASCII Electronic Transmittal From (FORM-ET) at < www.fcc.gov/e-file/email.html >.

85. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at a new location in downtown Washington, DC. The address is 236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. The filing hours at this location will be 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

86. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW, Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

87. Parties who choose to file by paper should also submit their comments on diskette. These diskettes, plus one paper copy, should be submitted to: Sheryl Todd, Telecommunications Access Policy Division, Wireline Competition Bureau, at the filing window at 236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. Such a submission should be on a 3.5-inch diskette formatted in an IBM compatible format using Word or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number, in this case WC Docket No. 02-60, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, Qualex International, Portals II, 445 12st Street, SW., Room CYB402, Washington, DC 20554 (see alternative addresses for delivery by hand or messenger).

88. Regardless of whether parties choose to file electronically or by paper, parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, Qualex International, Portals II, 445 12th Street SW., CY-B402, Washington, DC 20554 (see alternative addresses for delivery by hand or messenger) (telephone 202-863-2893; facsimile 202-863-2898) or via e-mail at qualexint@aol.com .

89. Written comments by the public on the proposed information collections pursuant to the Paperwork Reduction Act of 1995, Public Law No. 104-13, are due on or before July 1, 2002. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collections on or before July 15, 2002. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judith Boley Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 (see alternative addresses for delivery by hand or messenger), or via the Internet to jboley@fcc.gov and to Jeanette Thornton, OMB Desk Officer, 10236 NEOB, 725—17th Street, NW., Washington, DC 20503.

90. The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com. Alternative formats (computer diskette, large print, audio cassette and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or at bmillin@fcc.gov.

91. It is ordered that, pursuant to the authority contained in sections 151 through 154, and 254 of the Communications Act of 1934, as amended, this Notice of Proposed Rulemaking is adopted, as described herein.

92. 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.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in CC Docket No. 02-53 released on March 20, 2002. The full text of this document is available on the Commission's Web site Electronic Comment Filing System and for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW, Washington, DC, 20554.

This NPRM contains proposed information collections subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding.

This Notice of Proposed Rulemaking (NPRM) contains a proposed information collection. The Commission, as part of the 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, 44 U.S.C. 3501 et seq. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due July 15, 2002. Comments should address: (1) 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; (2) the accuracy of the Commission's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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: None.

Title: Presubscribed Interexchange Carrier Charges.

Form No.: Not applicable.

Type of Review: Proposed new collection.

Respondents: Business or other for-profit.

Number of Respondents: 69.

Estimated Time Per Response: 85.5 hours.

Total Annual Burden: 5900 hours.

Total Annual Costs: $45,885.00.

Needs and Uses: The information would be used to determine local exchange carriers' costs of providing PIC-change charges for setting rates for these charges.

This Notice of Proposed Rulemaking, adopted March 14, 2002 and released March 20, 2002 in CC Docket No. 02-53, FCC 02-79, initiates a proceeding to examine the charges imposed on consumers for changing long distance carriers, known as PIC-change charges. These charges currently are subject to a $5 safe harbor within which a PIC-change charge is considered reasonable. This $5 safe harbor was established by the Commission in 1984 and affirmed in 1987, but the Commission has not reviewed the reasonableness of this safe harbor since that time.

On May 16, 2001, the Competitive Telecommunications Association (CompTel) petitioned the Commission to initiate a rulemaking proceeding to revise its policies governing the PIC-change charge. Based on CompTel's petition and the comments received in response to it, we conclude that circumstances have changed since the Commission's last comprehensive review of this issue, and the $5 safe harbor may no longer be reasonable. The current safe harbor was established based on the difficulty of assessing actual costs by carrier for this service, what was known generally about the costs of providing this service, and a determination that it was good policy to discourage excessive switching of carriers. All three of these factors are now ripe for reexamination.

We undertake this rulemaking with the goal of establishing a reasonable PIC-change charge under current conditions. We will examine whether to base the PIC-change charge on an examination of carrier costs or whether we can rely on market forces to ensure reasonable rates. We will consider what costs carriers reasonably can recover through the PIC-change charge and whether to take non-cost factors into account in determining a reasonable charge. We will also examine whether to establish a national safe harbor, whether carriers should submit individualized cost support with their tariffs, or whether we should review rates solely through our enforcement processes. We seek comment on these issues, as well as any alternative means of ensuring the reasonableness of PIC-change charges.

As a threshold matter, we think it is important to examine whether the PIC-change charge should be a regulated cost-based charge, or whether market forces will constrain PIC-change charges to reasonable levels. The current safe harbor was established in 1984, based largely on an analysis of carrier costs. When a market is not competitive we cannot rely on market forces to constrain rates. Thus, we must examine the market for PIC-change services to determine whether a cost-based or market-based approach is the appropriate means to regulate PIC-change charges. Under current network configurations, a PIC change must be completed by an end user's LEC. The change relates, however, to a customer-carrier relationship between the end user and an IXC, which may or may not be affiliated with the end user's LEC. We seek comment on the nature of the market for PIC-change services and the need for the Commission to continue to apply a cost-based standard to ensure reasonable rates for PIC-change charges. We also seek comment on whether reliance on market forces could be made more practicable by modifying network configurations or the relationships between LECs, IXCs, and end users.

If we conclude that market forces will not ensure reasonable PIC-change charges, we must determine whether PIC-change charges should be based on costs, and, if so, what costs those charges should recover. In the 1984 access charge order, the Commission simply said that a presubscription charge that covers the unbundled costs of a subscription PIC change would be reasonable. Parties submitting comments on CompTel's Petition have widely varying contentions with regard to the relevant costs. Some commenters contend that costs related to the actions necessary to process a request and implement the change are the only costs that should be recovered. Another contends that the PIC-change charge should recover a wider array of costs, including costs incurred in administering customer allegations of slamming. We seek comment on the types of costs that should or should not be recovered through the PIC-change charge and why. We ask that commenters be as specific as possible. Our goal is to establish a standard that does not require continuous revision as technology evolves. Accordingly, we ask that commenters identify the individual functions that make up the PIC-change process, describe the process in detail, and explain why each function is necessary. For example, if customer care personnel perform multiple functions manually, commenters shall separately identify each function and its purpose. Likewise, commenters should identify by function the services that are automated, not merely name the automated facilities that are used to perform these services.

Some commenters assert that it is more costly to perform PIC-change services for certain customers than others. For example, SBC notes that customers subscribing to SBC's “PIC freeze” service require more manual intervention than non-subscribers to process a PIC change. The carrier also suggests that “excessive” PIC changes would justify an above-cost PIC-change charge. Many parties contend that this is no longer a valid policy reason for maintaining a safe harbor that is not supported by current cost data. We seek comment on whether and how such issues should be taken into account in establishing a reasonable PIC-change charge. Should the same PIC-change charge apply to all customers, regardless of whether they subscribe to an incumbent LEC's PIC-freeze service, or should LECs impose a higher charge for PIC-freeze usage? Carriers may allow customers to freeze their PICs for multiple services, i.e. , interstate, intraLATA intrastate, and local service. If commenters argue that the additional costs of conducting a PIC change for a customer subscribing to a PIC-freeze service should be recovered through the PIC-change charge, we seek comment on how to allocate the additional costs among jurisdictions. Should end users incur the same charge each time they request a PIC change, or should a higher charge be imposed upon a customer that requests “excessive” PIC changes? If the latter, why, and what constitutes “excessive” PIC changes? Additionally, when the Commission first identified the potential for excessive carrier switching as a basis for the safe harbor, significant uncertainty about the ability of carriers to identify the costs of PIC changes existed. There is evidence that this circumstance has changed. How should a carrier's ability to identify accurately its actual PIC-change costs affect the weight to be given to non-cost-based rationales for a particular safe harbor?

In light of the existence of intrastate, intraLATA toll dialing parity, most end users currently have a choice of both interLATA and intraLATA interexchange service providers. Accordingly, end users may change both their interLATA and intraLATA carriers simultaneously to a single carrier. In that circumstance, incumbent LECs may impose both an interstate and intrastate PIC-change charge for the transaction. We seek comment on whether this amounts to a double recovery. Interested parties are asked to comment on whether it is reasonable for incumbent LECs to recover both charges, a percentage of each charge, only one of the charges, or some totally different charge under these circumstances.

If we determine that the PIC-change charge should be cost-based, we must then establish a means to ensure incumbent LEC PIC-change charges recover only the costs associated with that service. We seek comment on whether the Commission should (1) require the filing of cost support with each PIC-change charge tariff; (2) rely on the formal complaint process and other enforcement mechanisms to review rates; or (3) establish a safe harbor to ensure reasonable rates.

If we conclude that a safe harbor is the most efficient means of ensuring reasonable rates, we will need to establish that safe harbor. We seek comment on the best means for doing so. Should we establish a safe harbor on the basis of the incumbent LECs' average costs? Should we base the safe harbor on the incumbent LECs' lowest cost, giving carriers the option of providing cost support to justify a higher charge? If so, what would the lowest cost be? In this respect, we note that some carriers charge substantially less than the current safe harbor. For example, as noted above, BellSouth charges $1.49. Does BellSouth's $1.49 charge, or any other charge differing from the safe harbor, establish a lower or upper bound? Commenters should provide cost evidence supporting any safe harbor proposed. Should the Commission distinguish between incumbent LECs, and, if so, on what bases? Should the Commission use a proxy and, if so, what is a reasonable proxy for the PIC-change service? Should there be separate proxies for large and small incumbent LECs? Do market proxies exist? Are state-arbitrated rates for unbundled network element platform (UNE-P) and resale migrations or state-regulated rates for intraLATA PIC-change charges reasonable proxies for the interstate PIC-change service? Is there a weighted average of several rates that would constitute a reasonable proxy? Parties are asked to comment on these options, and submit alternative suggestions for our consideration.

This proceeding will be governed by “permit-but-disclose” ex parte procedures that are applicable to non-restricted proceedings under 47 CFR 1.1206. Parties making oral ex parte presentations are reminded that memoranda summarizing the presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented generally is required. See 47 CFR 1.1206(b)(2). Other rules pertaining to oral and written presentations are set forth in § 1.1206(b) as well. Interested parties are to file any written ex parte presentations in this proceeding with the Commission's Secretary, Marlene H. Dortch, 445 12th Street, SW, TW-B204, Washington, DC 20554, and serve with three copies: Pricing Policy Division, Common Carrier Bureau, 445 12th Street, SW, Room 5-A452, Washington, DC 20554, Attn: Jennifer McKee. Parties shall also serve with one copy: Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC 20554, (202) 863-2893.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this NPRM. The RFA, see 5 U.S.C. 601 et seq. , has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

In this NPRM, the Commission seeks comment on its policies for regulating presubscribed interexchange carrier-change charges (PIC-change charges). Specifically, we will examine whether to base the PIC-change charge on an examination of carrier costs or whether we can rely on market forces to ensure reasonable rates. We will consider what costs carriers reasonably can recover through the PIC-change charge and whether to take non-cost factors into account in determining a reasonable charge. We will also examine whether to establish a national safe harbor, whether carriers should submit individualized cost support with their tariffs, or whether we should review rates solely through our enforcement processes. We seek comment on these issues, as well as any alternative means of ensuring the reasonableness of PIC-change charges.

The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 4, 201-202, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 201-202, and 303, and §§ 1.1, 1.411, and 1.412 of the Commission's rules, 47 CFR 1.1, 1.411, and 1.412.

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). For the purposes of this NPRM, the RFA defines a “small business” to be the same as a “small business concern” under the Small Business Act, 15 U.S.C. 632, unless the Commission has developed one or more definitions that are appropriate to its activities. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 5 U.S.C. 632). 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) meets any additional criteria established by the SBA. 15 U.S.C. 632.

We have included small incumbent local exchange carriers (LECs) in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” 15 U.S.C. 632. The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. See Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small business concern,” which the RFA incorporates into its own definition of “small business.” See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. 13 CFR 121.102(b). Since 1996, out of an abundance of caution, the Commission has included small incumbent LECs in its regulatory flexibility analyses. See, e.g., Implementation of the Local Competition Provisions of the Telecommunications Act of 1996 , 61 FR 45476, August 29, 1996. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

The Census Bureau reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. U.S. Department of Commerce, Bureau of the Census, 1992 Census of Transportation, Communications, and Utilities, UC 92-S-1, Subject Series, Establishment and Firm Size, at Firm Size 1-123 (1995). This number contains a variety of different categories of carriers, including LECs, interexchange carriers (IXCs), competitive access providers, operator service providers, pay telephone operators, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” See generally 15 U.S.C. 632(a)(1). It seems reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by this analysis.

Neither the Commission nor the SBA has developed a special small business size standard for small LECs. The closest applicable category for these types of carriers under SBA rules is for telecommunications carriers, wired. 13 CFR 121.201, NAICS code 513310. See also 13 CFR 121.201, NAICS codes 513330 (telecommunications resellers), and 513340 (telephone communications carriers, satellite). The most reliable source of information regarding the number of LECs nationwide appears to be the data that we collect annually in connection with FCC Form 499-A, the Telecommunications Reporting Worksheet. Information from the Telecommunications Reporting Worksheets is compiled in the Carrier Locator report. See Carrier Locator: Interstate Service Providers , FCC Common Carrier Bureau, Industry Analysis Division (rel. Nov. 2001) (Carrier Locator). According to our most recent data, there are 1,329 incumbent LECs. Carrier Locator at Table 1. Although some of these carriers may not be independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are no more than 1,329 small entity incumbent LECs that may be affected by the proposals in the NPRM.

Although our actions as proposed would not directly affect IXCs, and therefore IXCs are not within the RFA for purposes of this IRFA, we voluntarily include them here to create a fuller record and encourage public comment. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services. The closest applicable definition under the SBA rules is for wired telecommunications carriers. 13 CFR 121.201, NAICS code 513310. See also 13 CFR 121.201, NAICS codes 513330 (telecommunications resellers), and 513340 (telephone communications carriers, satellite). According to the most recent Carrier Locator report, 229 carriers reported that their primary telecommunications service activity was the provision of interexchange services. See Carrier Locator at Table 1. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 229 or fewer small entity IXCs that may be affected by the rules.

We are seeking comment on whether we can rely on market forces to set reasonable PIC-change charges, or whether these charges must be regulated. If we find that the market reasonably sets these charges, there will be no additional reporting or recordkeeping burden on incumbent LECs with respect to these charges. If we determine that the market will not successfully constrain PIC-change charges, we must determine whether to establish a safe harbor below which PIC-change charges are to be deemed reasonable, or whether these charges should be cost-based. If we adopt a safe harbor, incumbent LECs will be in the same situation as under the current rules, i.e. , PIC-change charges tariffed at rates below the safe harbor are deemed reasonable, and LECs have the option of demonstrating that their costs for PIC changes exceed that rate. If we decide not to adopt a safe harbor and require incumbent LECs to set PIC-change charges at cost, incumbent LECs will be required to file information demonstrating the costs of providing PIC changes.

The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance 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. 5 U.S.C. 603(c)(1)-(c)(4).

We are seeking comment on alternative methods of setting a PIC-change charge, including whether market forces will successfully constrain these charges, and whether to adopt a safe harbor below which rates are presumed reasonable. These proposals would reduce the reporting and recordkeeping burden on all incumbent LECs, including small LECs.

None.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before June 14, 2002, and reply comments July 1, 2002. All comments and reply comments should reference the docket number of this proceeding, CC Docket No. 02-53. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS), or by filing paper copies.

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. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the filing to each docket or rulemaking number referenced in the caption. 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 copy by Internet e-mail. To get 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 email address>.” A sample form and directions will be sent in reply. Commenters also may obtain a copy of the ASCII Electronic Transmittal Form (FORM-ET) at http://www.fcc.gov/e-file/email.html.

Parties filing paper copies must file an original and four copies of each filing. If multiple docket or rulemaking numbers appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW, Washington, DC 20554.

Interested parties who wish to file comments via hand-delivery are also notified that effective December 18, 2001, the Commission will only receive such deliveries weekdays from 8 a.m. to 7 p.m. at 236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. The Commission no longer accepts these filings at 9300 East Hampton Drive, Capitol Heights, MD 20743. Please note that all hand deliveries must be held together with rubber bands or fasteners, and envelopes must be disposed of before entering the building. In addition, this is a reminder that as of October 18, 2001, the Commission no longer accepts hand-delivered or messenger-delivered filings at its headquarters at 445 12th Street, SW, Washington, DC 20554. Messenger-delivered documents ( e.g. , FedEx), including documents sent by overnight mail (other than United States Postal Service (USPS) Express and Priority Mail), must be addressed to 9300 East Hampton Drive, Capitol Heights, MD 20743. This location is open weekdays from 8 a.m. to 5:30 p.m. USPS First-Class, Express, and Priority Mail should be addressed to the Commission's headquarters at 445 12th Street, SW, Washington, DC 20554.

Regardless of whether parties choose to file electronically or by paper, parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, Qualex International, Portals II, 445 12th Street SW, CY-B402, Washington, DC 20554 (telephone 202-863-2893; facsimile 202-863-2898) or via e-mail at qualexint@aol.com. In addition, one copy of each submission must be filed with the Chief, Pricing Policy Division, 445 12th Street, SW, Room 5-A225, Washington, DC 20554. Documents filed in this proceeding will be available for public inspection during regular business hours in the Commission's Reference Information Center, 445 12th Street, SW, Washington, DC 20554, and will be placed on the Commission's Internet site.

Written comments by the public on the proposed information collections are due June 14, 2002. Written comments must be submitted by OMB on the proposed and/or modified information collections on or before July 15, 2002. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judith Boley Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet to JBoley@fcc.gov, and to Jeanette Thornton, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or via the Internet to JThornto@omb.eop.gov.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-93, adopted April 26, 2002, and released May 3, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-102, adopted May 3, 2002, and released May 9, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-101, adopted May 3, 2002, and released May 9, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: