Background

FSIS administers the Federal Meat Inspection Act, the Poultry Products Inspection Act, and the Egg Products Inspection Act. The Agency's activities are intended to prevent the distribution in domestic and foreign commerce, as human food, of unwholesome, adulterated, or misbranded meat, poultry, and egg products, including products that may transmit diseases or that may be otherwise injurious to health.

On February 27, 2001, (66 FR 12589) FSIS issued proposed regulations to require that each establishment that produces ready-to-eat meat and poultry products test food contact surfaces for Listeria spp., in order to verify the efficacy of its sanitation standard operating procedures, unless it has incorporated one or more controls for Listeria monocytogenes into its HACCP plan. Under the proposed regulations, food contact surface positives for Listeria would trigger mandatory product testing. In November 2002, FSIS issued a directive outlining additional steps to be taken by U.S. Department of Agriculture inspectors to ensure that establishments producing ready-to-eat meat and poultry products are taking the necessary steps to prevent contamination with Listeria.

FSIS has recently completed an extensive, scientific risk assessment on Listeria to determine how the pathogen may contaminate meat and poultry products during production and packaging processes. The draft risk assessment will provide important additional data that the Agency will use in developing a final regulation concerning the reduction and control of Listeria in processing plants producing ready-to-eat products, and a new directive to replace Directive 10,240.3 (Microbial Sampling of Ready To Eat Products for the FSIS Verification Testing Program), if appropriate, as a consequence of the final rule.

FSIS requests comment on this draft risk assessment and will hold a public meeting to discuss and seek input on it on February 26, 2003, at the Washington Plaza Hotel (See ADDRESSES above).

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it and make copies of this Federal Register publication available through the FSIS Constituent Update. FSIS provides a weekly Constituent Update, which is communicated via Listserv, a free e-mail subscription service. In addition, the update is available on-line through the FSIS web page located at http://www.fsis.usda.gov/oa/update/update.htm. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent Listserv consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through the Listserv and web page, FSIS is able to provide information to a much broader, more diverse audience.

For more information, contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS Web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the “Subscribe to the Constituent Update Listserv” link, then fill out and submit the form.

In July 2002, the Flagtain Fire burned approximately 8,200 acres, of which 7,250 occur on the Malheur National Forest. The remainder of the fire includes approximately 950 acres of private land. The 7,250-acre decision area for the Flagtail Fire Recovery Project includes those portions of the Flagtail Fire that burned within the Silvies Watershed on National Forest System lands.

The purposes and needs for action in the project planning area are to:

• Reduce fuel loadings,

• Reduce the risk of insect infestation in surviving stands,

• Capture economic value of the killed and damaged trees,

• Provide safe and adequate roaded access in the fire area,

• Reduce the effects of roads on wildlife and water quality,

• Re-establish upland vegetation, and

• Designate suitable dedicated and replacement old growth areas to replace those degraded by the fire.

The proposed project could include the following activities:

About 80% of the proposed timber salvage units would be harvested using ground-based logging systems. Access for the salvage activities would require construction of less than 1 mile of road, construction of approximately 60 miles of road. The temporary roads would be decommissioned after completion of project activities. Approximately 20% of the area to be salvaged would be harvested using helicopter based logging systems. Connected actions in association with salvage include water barring and erosion control measures such as scattering of slash on skid trails and treatment of slash.

Approximately 5,200 acres would be planted with tree seedlings following site preparation. Fuels, including those created by the fire, by salvage activity, and by site preparation, would be reduced to meet the range of historic levels throughout the project area. A variety of fuel treatment methods would be used including removing marketable timber through salvage harvest, burning in place, piling and burning, and whole tree yarding.

All proposed activities are responsive to the stated purpose and need for this project.

A full range of alternatives will be considered, including a “no action” alternative in which none of the activities proposed above would be implemented. Based on the issues gathered through scoping, the action alternatives could differ in the silvicultural and post-harvest treatments prescribed, the amount and location of harvest, or the amount and location of fuels reduction activity. Tentative alternatives to the proposed action could include an alternative that does not require the construction of additional temporary or permanent roads, other than temporary re-opening of existing roads. Another alternative could emphasize removal (or other fuels treatment options) of dead timber in the size classes most likely to reburn. Currently available science on snag and coarse woody debris dependent species habitat will be a factor in alternative development and could result in a proposal of a site-specific Forest Plan amendment to update standards and guidelines for these species. Consideration of various regeneration strategies including planting at relatively low stocking levels could also be a factor that differentiates alternatives.

The public will have an opportunity to participate at several points during the analysis including the scoping period after publication of the notice of intent, and during the comment period after publication of the draft EIS. Notification of these opportunities will appear in subsequent issues of the Malheur National Forest's Schedule of Proposed Activities; letters to agencies, organizations, and individuals who have previously indicated their interest in such activities; and a legal notice in the Blue Mountain Eagle. Public meetings may be scheduled during the winter/spring of 2002-2003. The scoping process will include identifying potential issues, identifying major issues to be analyzed in depth, eliminating non-significant issues or those previously covered by a relevant environmental analysis, considering additional alternatives based on themes which will be derived from issues recognized during scoping activities, and identifying potential environmental effects of the proposed action and alternatives (i.e. direct, indirect, and cumulative effects and connected actions).

Preliminary issues include snag and downed wood habitat; noxious weeds; effects of proposed activities on soils exposed by the fire; effects of proposed activities on the recovery of water quality and resident fisheries resource; ability of proposed activities to contribute to restoration of historic vegetation composition, structures, and patterns; potential loss of commercial timber value; and economic viability of timber salvage.

Public comments about this proposal are requested in order to assist in properly scoping issues, to determine how to best manage the resources, and to fully analyze environmental effects. Comments received to this notice, including names and addresses of those who comment, will be considered part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR parts 215 and 217. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that under FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality and, where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted with or without name and address within a specific number of days.

The comment period on the draft EIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register the draft EIS is expected in May 2003 and the final EIS is expected in September 2003.

The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of a draft EIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft EIS stage but that are not raised until after completion of the final EIS may be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986) and Wisconsin Heritages, Inc. v. Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final EIS.

To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft EIS. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.

The Forest Service is the lead agency. The Responsible Official is the Forest Supervisor, Malheur National Forest, 431 Pattern Bridge Road, John Day, Oregon 97845. The Responsible Official will decide which, if any, of the proposed projects will be implemented. The Responsible Official may also decide on site-specific Forest Plan amendments regarding standards and guidelines for snag and coarse woody debris, as well as big game habitat, if warranted by the analysis of those components in light of recent science.

The Responsible Official will document the Flagtail Fire Recovery Project decision and reasons for the decision in the Record of Decision. That decision will be subject to Forest Service Appeal Regulations (36 CFR part 215).

The Forest Service is issuing interim directives (IDs) to Forest Service Manual (FSM) chapter 2720 and Forest Service Handbook (FSH) 2709.11, chapter 30 to guide its employees in the permitting and administration of authorizations and the collection of land use fees for commercial filming and still photography consistent with the provisions of the Act of May 26, 2000 (16 U.S.C. 460l-6d).

Prior to this act, the Forest Service's authority to issue permits for commercial filming and still photography and to collect land use fees for these uses was the Organic Act of 1897 (16 U.S.C. 551) and implementing regulations at title 36, Code of Federal Regulations, part 251, subpart B. Legislative history for the Act of May 26, 2000, states that the act is intended to supplement the Forest Service's existing authorities to regulate commercial filming and still photography.

The interim directive to FSM 2720 provides a definition for “commercial filming” that establishes the types of filming activities for which a special use permit is required. This definition specifically excludes “breaking news” as an activity for which a special use permit is required, because the need for commercial filming and still photography to cover breaking news arises suddenly, may evolve quickly, and may cease to be newsworthy by the time a permit is issued. The ID also sets out definitions of other terms common to commercial filming and still photography. A clear understanding of these definitions is essential so that agency personnel can correctly determine under what situation or condition a special use permit is required.

The Act of May 26, 2000, also provides the Forest Service with the authority to collect, retain, and spend without further appropriation the land use fees collected for commercial filming and still photography. The ID to FSH 2709.11, chapter 30, instructs agency personnel to continue to use current Regional and Forest fee schedules established for these activities and provides direction for the accounting and expenditure of these funds.

The interim directive to FSM 2720 is issued as ID number 2700-2003-1 and the interim directive to FSH 2709.11, chapter 30, is issued as ID number 2709.11-2003-2.

On October 2, 2002, the Department published in the Federal Register (67 FR 61849) a notice of opportunity to request an administrative review of the antidumping order regarding extruded rubber thread from Malaysia for the period October 1, 2001, through September 30, 2002. In accordance with 19 CFR 351.213(b)(2), on October 31, 2002, one producer/exporter of extruded rubber thread (i.e., Heveafil Sdn. Bhd. and Filmax Sdn. Bhd. (collectively “Heveafil”)) requested a review of the antidumping duty order on extruded rubber thread from Malaysia.

On November 22, 2002, the Department initiated an administrative review for this company (67 FR 70402) and issued it a questionnaire. Heveafil requested an extension to respond to the questionnaire on December 10, 2002, which the Department granted.

On January 13, 2003, Heveafil withdrew its request for review.

Heveafil withdrew its request for an administrative review for the above-referenced period on January 13, 2003. Therefore, because no other interested party requested a review for this period of review, in accordance with 19 CFR 351.213(d)(1) and consistent with our practice, we are rescinding this review of the antidumping duty order on extruded rubber thread from Malaysia for the period of October 1, 2001, through September 30, 2002. This notice is published in accordance with section 751 of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).

On November 27, 2002, Bethlehem Steel Corporation, National Steel Corporation, and U.S. Steel Corporation (Bethlehem Steel et al.), the petitioners in the original investigation in this case, in accordance with 19 CFR 351.213(b), requested an administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from Romania. On December 19, 2002, in accordance with 19 CFR 351.221(c)(1)(i), we initiated an administrative review of this order for the period May 3, 2001, through October 31, 2002. See Notice of Initiation of Antidumping and Countervailing Duty Administrative Reviews, 67 FR 78772 (December 26, 2002). On December 24, 2002, Bethlehem Steel et al. withdrew their request for this review.

The Department's regulations at 19 CFR 351.213(d)(1) provide that the Department will rescind an administrative review if the party that requested the review withdraws its request for review within 90 days of the date of publication of the notice of initiation of the requested review, or withdraws its request at a later date if the Department determines that it is reasonable to extend the time limit for withdrawing the request. Bethlehem Steel et al. were the only parties to request this review and they withdrew their request within the 90-day period. Accordingly, this review is rescinded.

This notice is issued and published in accordance with section 751 of the Tariff Act of 1930, as amended (19 U.S.C. 1675), and 19 CFR 351.213(d)(4).

The NWHI Coral Reef Ecosystem Reserve is a new marine protected area to conserve and protect the coral reef ecosystem and related natural and cultural resources of the area. The Reserve was established by Executive Order pursuant to the National Marine Sanctuaries Amendments Act of 2000 (Pub. L. 106-513). The NWHI Reserve was established by Executive Order 13178 (December 2000) and Executive Order 13196 (January 2001).

The Reserve encompasses an area of the marine waters and submerged lands of the Northwestern Hawaiian Islands, extending approximately 1200 nautical miles long and 100 nautical miles wide. The Reserve is adjacent to and seaward of the seaward boundary of Hawaii State waters and submerged lands and the Midway Atoll National Wildlife Refuge, and includes the Hawaiian Islands National Wildlife Refuge to the extent it extends beyond Hawaii State waters and submerged lands. The Reserve is managed by the Secretary of Commerce pursuant to the National Marine Sanctuaries Act and the Executive Orders. The Secretary has also initiated the process to designate the Reserve as a National Marine Sanctuary. The management principles and implementation strategy and requirements for the Reserve are found in the enabling Executive Orders, which are part of the application kit and can be found on the website listed above.

In designating the Reserve, the Secretary of Commerce was directed to establish a Coral Reef Ecosystem Reserve Advisory Council, pursuant to section 315 of the National Marine Sanctuaries Act, to provide advice and recommendations on the development of the Reserve Operations Plan and the designation and management of a Northwestern Hawaiian Islands National Marine Sanctuary by the Secretary.

The National Marine Sanctuary Program (NMSP) has established the Reserve Advisory Council and is now accepting applications from interested individuals for Council Representatives and Alternates for the following seven citizen/constituent positions on the Council:

1. Two (2) representatives from the non-Federal science community with experience specific to the Northwestern Hawaiian Islands and with expertise in at least one of the following areas:

2. One (1) representative from a non-governmental wildlife/marine life, environmental, and/or conservation organization.

3. One (1) representative from the recreational fishing industry that conducts activities in the Northwestern Hawaiian Islands.

4. One (1) representative from the ocean-related tourism industry.

5. One (1) representative from the non-Federal community with experience in education and outreach regarding marine conservation issues.

6. One (1) citizen-at-large representative.

Current Reserve Council Representatives and Alternates may re-apply for these vacant seats.

The Council consists of 25 members, 15 of which are non-government voting members and 10 of which are government non-voting members. The voting members are representatives of the following constituencies: Conservation, Citizen-At-Large, Ocean-Related Tourism, Recreational Fishing, Research, Commercial Fishing, Education, State of Hawaii and Native Hawaiian. The government non-voting seats are represented by the following agencies: Department of Defense, Department of the Interior, Department of State, Marine Mammal Commission, NOAA's Hawaiian Islands Humpback Whale National Marine Sanctuary, NOAA's National Marine Fisheries Service, National Science Foundation, U.S. Coast Guard, Western Pacific Regional Fishery Management Council, and NOAA's National Ocean Service.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Permission may be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Subsection 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. The MMPA defines “harassment” as:

Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

On August 16, 2002, NMFS received a letter from the USCG requesting an IHA for the possible harassment of small numbers of California sea lions (Zalophus californianus) and Pacific harbor seals (Phoca vitulina), incidental to the installation of a new floating dock.

The installation of a new floating dock is needed to provide better and safer access to an 87-ft (26.6-m) Coastal Patrol Boat, USCGC Hawksbill (Hawksbill). Currently, the Hawksbill moors at a fixed wharf which does not meet the Coast Guard's minimum standards for mooring a patrol boat. The tidal range causes severe chafing to the mooring lines and difficulties with the access gangway. The Coast Guard estimates that the cost of mooring line replacement is approximately $10,000 a year. When the patrol boat is at the dock, a crewmember is required to be continually present to adjust mooring lines and the gangway about every 40 minutes. The Hawksbill has a 10-person crew, which is not designed to have one person awake the entire night while in port. Finally, several locally produced gangways, mounted from the wharf, have failed to give adequate access to the Hawksbill during the entire tidal cycle. The installation of a floating dock will eliminate the excessive cost to mooring lines and gangway replacement, as well as, any unnecessary burden on the crew.

The project is located at 100 Lighthouse Avenue in the city and county of Monterey, California. The fixed pier extends east into Monterey Bay. The floating dock will be located on the south side near the end of the fixed wharf. The installation of the new floating dock will consist of installing a new 10 ft x 100 ft (3.05 x 30.5 m) pier, including the driving of five new piles.

The pile driving work will be completed from a welded steel barge equipped with a pedestal mounted revolving crane that has a 105-foot (32-meter) boom with a 30-ton (27,216-kg) capacity and 25-ft (7.62-m) radius. The barge will be mobilized, moved, and tended by a barge tender/work boat. The pile driving will be completed using a “DELMAG D19-32 Pile Hammer,” which is a single piston internal combustion type hammer powered by diesel fuel. The pile hammer motor has a single piston, which is attached to a 2,000 lb (907 kg) weight. The weight is used to drive the piles. The pile design was completed with the existing conditions (5 ft (1.5 m) of mud over approximately 5 to 10 ft (1.5 to 3.05 m) of 500 lbs. (227 kgs) rock over decomposed granite) in mind. The new pile will consist of a 12-in (0.3-m) I-beam driven to refusal. It is anticipated that the I-beam will penetrate the mud through the rock and a firm toe will be established in the decomposed granite. This I-beam will be covered with a 24-in (0.6-m) round pile that will be driven to refusal creating a seal with the ocean floor. This second pile will be attached to the existing pier with metal braces and drained of seawater. After the pile is drained and stabilized, the 24-in (0.6 m) pile will be filled with concrete using a pump truck.

The manufacturer of the pile hammer has stated that the maximum in-air noise level under extreme driving conditions and at maximum refusal will be between 90 and 100 decibels (dB)(re 20 microPascal-m) at the source; however during this project, extreme conditions will not be encountered, and anticipated in-air noise levels should be between 60 and 85 dB. The manufacturer was not able to estimate the underwater noise level. However, acoustic monitoring of pile driving operations on the Noyo River (Fort Bragg, CA) using a similar size hammer under similar conditions (2 m (6.6 ft) water, mud bottom) and a 12-in (0.3 m) I-beam pile measured noise levels of 169 dB (dB re 1 microPascal-meter) at 100 m. The closest measurement to the hammer was 30 m, with an underwater noise level of approximately 170 dB.

The pile driving and in water work for this project is expected to last 10 days, while the entire project should be completed within 30 days. Because the site is adjacent to a haul-out for California sea lions and near a small colony of Pacific harbor seals, the potential exists that these marine mammals may be harassed by the action; therefore, an IHA is warranted.

A description of the Monterey Harbor and its associated marine mammals can be found in the USCG application (USCG, 2002) which is available upon request (see ADDRESSES).

The marine mammals under NMFS' jurisdiction likely to be found in the project area are limited to the California sea lion and the Pacific harbor seal. General information on harbor seals and California sea lions found in Central California waters can be found in Caretta et al. (2001).

The California sea lion primarily uses the Central California area to feed during the non-breeding season. Following the breeding season on the Channel Islands, most adult and sub-adult males migrate northward to central and northern California and to the Pacific Northwest, while most females and young animals either remain on or near the breeding grounds throughout the year or move southward or northward, as far as Monterey Bay.

California sea lions are regularly observed in the Monterey Harbor area in the autumn, winter, and into the early spring. They regularly haul out on the Coast Guard Jetty. Based on ground surveys conducted from June 1997 through October 1999, an average of between 143.3 (standard deviation (SD) = 51.5) and 425 (SD=130.5) sea lions hauled out on the jetty during the autumn. Mean number of sea lions observed during the winter season (1997-98) was 628 (SD=238.5) animals (Weise 2000). During ground counts from 1997 to 1999, Weise (2000) estimated that approximately 74 percent (SD=18.1 percent) of the sea lions observed were juveniles, 14.9 percent were adults (SD=15.3 perecent), and 10.5 percent (SD=6.7 percent) were sub-adult males or females. No pupping occurs in the project area.

A small number of harbor seals are also expected to be found in the project area. Harbor seals are distributed throughout the west coast of California. In general, they do not migrate, preferring instead to forage within several miles of their haul-out sites. In Monterey Harbor, harbor seals haul out on a rocky outcropping located approximately 300 m (984 ft) inshore of the proposed project site and approximately 100 m (328 ft) from a small beach and the Monterey Fisherman's Wharf. Based on surveys conducted in the Monterey Harbor, less than 20 harbor seals are expected to be found on this site within the harbor. The presence of all size classes of animals are possible. Harbor seals do not pup on this haulout, although several pupping sites are located around the Monterey Peninsula within 3 to 20 km ( 1.9 to 12.4 mi)of the project site.

It is possible that California sea lions and harbor seals swimming in the vicinity of the project during pile driving may be subject to elevated sound pressure levels that could produce a temporary shift in the animal's hearing threshold. Construction and human activity around the site could also potentially result in behavioral changes in nearby pinnipeds. California sea lions and harbor seals may temporarily cease normal activities, such as feeding, or pop their heads up above water in response to the noise. They may also be curious and choose to investigate the project site. However, existing evidence shows that most marine mammals tend to avoid loud noises and will likely move away from the project site (Richardson et al., 1995). Disturbance from these activities is expected to have a short-term negligible impact to a number of sea lions and harbor seals. These disturbances will be reduced to the lowest level practicable by implementation of the proposed work restrictions and mitigation measures (see Mitigation).

During the installation of the floating dock, the incidental harassment of California sea lions is expected to occur on a daily basis upon initiation of the pile driving. Sea lions are also likely to be initially harassed by the barge tender moving the barge into place. If the animals no longer perceive construction noise and activity as being threatening, they are likely to resume their regular hauling out behavior. The number of sea lions disturbed will vary daily, but animals in the water near the project site or hauled out closest to the project site are more likely to be disturbed than animals hauled out at the farther end of the jetty. Based on past ground surveys, the number of California sea lions that may potentially be harassed could range from 200 to 400, and possibly as many as 600 animals may move each day as a result of the project activities.

Whether harbor seals will react to construction noise and associated activity and move away from the rock outcropping during construction activities (especially pile driving) is unknown. While seals are generally thought to be less tolerant of human activities than sea lions, the location of their haulout from the project site may be far enough away that disturbances may be less likely. Seals that are swimming near the project site may be harassed during construction activity, especially pile driving, and may swim away from the immediate area.

The activity will take place on a part of the Monterey USCG pier that is not used directly by any marine mammal species. Short-term impacts of the activities are expected to result in a temporary reduction in utilization of the rock jetty at the end of the USCG pier by California sea lions and perhaps of the nearby rocky outcropping by Pacific harbor seals while work is in progress or until pinnipeds acclimate to the disturbance. This will not likely result in any permanent reduction in the number of sea lions or seals at these haulouts. Sea lions are regularly disturbed by boats and human activities in Monterey Harbor. In addition, approximately 4 to 5 m (13.2 to 16.4 ft) above the harbor seal haul-out, there is a busy bike path and pedestrian walkway. Seals are frequently disturbed year-round due to their proximity to the bike path, particularly during the daytime. The abandonment of either haulout is not anticipated since existing foot traffic, commercial and recreational boating, and human activity currently occurring within the area have not caused long-term abandonment.

Therefore, other than the potential, short-term abandonment by California sea lions and harbor seals of part of their existing haulouts in Monterey Harbor during floating dock installation, no impacts on the habitat or food sources of marine mammals are likely from this project.

Several mitigation measures to reduce the potential for harassment from installation of the floating dock will be implemented by USCG as part of their activity. General restrictions include: the work will be performed during daylight hours only so that potential impacts can be detected more easily and steps can taken to avoid them; shouting, loud noises, fast movements, and other activities that would disturb the haul-out sites will be minimized (considering human safety concerns foremost); the number of people and the amount of equipment on the USCG pier in close proximity to the sea lion haulout will be restricted to the minimum required to effectively perform the work; all equipment will be kept on the west side of the USCG pier and, as much as possible, out of sight of the sea lion haulout site; a NMFS-approved biological monitor will be on site at all times during the project operations to monitor marine mammal disturbances and to advise personnel on ways to minimize or avoid disturbances.

General restrictions during pile driving will include: no piles will be driven between the hours of 5 pm and 8 am. Based on a recommendation from NMFS, the USCG will avoid exposing pinnipeds to unsafe noise levels (greater than 190 dB re 1 microPascal-m). Given the acoustic monitoring from pile driving exercises for the Noyo River Bridge, the USCG will establish an initial safety zone of 50 m (164 ft) around the pile-driving site. The marine mammal monitor will scan the safety zone continuously for 5 minutes just prior to, and during, pile driving to determine whether marine mammals are present. Pile driving will not begin until the safety zone is clear. If an animal is in the safety zone before initiation of the pile driving activity on any given work day, operations will be delayed until the animal has moved a safe distance away. If an animal enters the safety zone while pile driving is occurring, operations will be stopped immediately until the animal has moved beyond the range of the safety zone. In consultation with NMFS, the safety zone may be increased if animals beyond 50 m (164 ft)show excessive behavioral changes in response to pile driving operations. If pile driving stops for less than 45 minutes, another 5-minute scan will not be necessary; if it stops for longer than 45 minutes, another scan will be performed.

In order to provide further protection to pinnipeds hauled out near the project area, the USCG also proposes to “dry fire” the hammer prior to operating at full capacity. A “dry fire” occurs when the hammer is raised and dropped with no compression of the pistons which produces approximately 50 percent of the maximum in-air noise level, or 45-55 dB (dB re 20 microPascal-meter). This dry-firing should allow pinnipeds in the area to voluntarily move from the area and should expose fewer animals to loud sounds both underwater and above water.

NMFS will require USCG to monitor the impact of the floating dock installation activities on California sea lions and harbor seals in Monterey Harbor. Monitoring will be conducted by one or more NMFS-approved monitors.

In general, the marine mammal monitor(s) will record the date, time of arrival and departure of the monitor and work crew. The monitor will also conduct counts of sea lions on the jetty and counts of pinnipeds in the water near the project site every hour, commencing 1 hour before the start of project activity each day and ending 15 minutes after all project activities have ceased. Data on size classes and sex (when possible) of sea lions on the jetty will be collected. Counts of harbor seals will be obtained at the beginning and the end of each work day. If possible, data on size class and sex of animals will be collected. The monitor(s) will also collect information on disturbance reactions, including the number of animals disturbed, the source (including type, location, timing, and duration of disturbance). The monitor will also record environmental conditions, including date, time, cloud cover, visibility, wind direction and velocity, swell direction and height, and tides.

During pile driving operations, the monitor will monitor the 50-meter safety zone, as described above (see Mitigation). The safety zone will be marked with temporary buoys in order to facilitate monitoring efforts.

The USCG will provide weekly reports to the Southwest Regional Administrator (Regional Administrator), NMFS, including a summary of the previous week's monitoring activities and an estimate of the number of California sea lions and harbor seals that may have been disturbed as a result of floating dock installation activities. These reports will include data collected during daily monitoring.

A draft final report must be submitted to the Regional Administrator within 60 days after the conclusion of the project. A final report must be submitted to the Regional Administrator within 30 days after receiving comments from the Regional Administrator on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.

The main agenda item for this meeting is to discuss 2003 planning priorities for summer flounder, scup, and black sea bass.

Although non-emergency issues not contained in this agenda may come before the Council and ASMFC for discussion, these issues can not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Council (see ADDRESSES) least 5 days prior to the meeting date.

The purpose of this meeting is to discuss possible management measures to address over-capacity in the Loligo fishery including additional limited entry provisions, seasonal allocation of quota, trip limits, and individual fishing quotas for inclusion in Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the MAFMC's intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Mid-Atlantic Council Office (see ADDRESSES) at least 5 days prior to the meeting date.

The USPTO published the proposed guidelines and requested comments on October 23, 2002 (67 FR 65092). No comments were received in response to this notice and request for comments.

Neither the Federal Acquisition Regulation (FAR) nor the procedures set forth in this notice will be binding on USPTO contracting officers or other USPTO employees involved in the procurement process. However, USPTO employees may assume that following either the FAR procedures or, to the extent applicable, the alternate procedures set forth in this notice will ensure compliance with applicable legal requirements and result in fair and appropriate decisions. USPTO employees may use procedures other than those set forth in the FAR and this notice so long as these procedures comply with all applicable statutes, Executive Orders and regulations, will further the legitimate interests of the USPTO and are calculated to result in fair decisions.

Neither the FAR nor the alternate guidance provided in this notice is binding on USPTO vendors or any other member of the public, except to the extent provisions therefrom are incorporated in legally enforceable contracts. Instructions set forth in solicitations or other procurement documents are also binding in that they may establish conditions on an offeror's continued participation in the procurement process.

The alternate procedures set forth in this notice are intended to incorporate brevity of content, streamlined procedures, innovation in process, flexibility, and discretion to the acquisition process while ensuring objectivity and maximum reasonable competition. The following are highlights of the benefits the USPTO hopes to achieve through this alternate guidance:

• Increase the competitive threshold from $2500 to $5000 to decrease processing time and costs.

• Use “maximum reasonable competition” instead of “full and open competition” for a more efficient procurement process.

• Reflect the USPTO's increased flexibility in procuring printing services.

• Increase the threshold for the use of simplified acquisition procedures for commercial items from $5 million to $10 million to reduce the lead time for processing requirements and decrease acquisition costs.

• Provide guidance on the use of an Alternative Streamlined Contracting Approach. This process involves the early identification of highly qualified vendors, which will reduce the investment of vendor time and resources, provide greater flexibility, and establish better partnerships with the vendor community. The use of a pre-set number of firms for the competitive range also reduces unreasonable contractor expectations.

• Permit limited discussions after the establishment of the competitive range in lieu of making an award without discussions. USPTO hopes to reduce processing time and administrative burdens associated with proposal revisions.

• Permit use of contract types not included in the FAR (i.e., contract types that combine elements of the various contract types listed in the FAR (Labor Hour Award Fee, for one example). This provides greater flexibility to improve mission accomplishment and improved partnering relationships with vendors.

Recognizing that the Internet provides a valuable means of disseminating information, USPTO intends to continue and expand its use of electronic commerce to facilitate streamlining of the acquisition process. While the USPTO will continue to synopsize proposed actions and contract awards, the objective is to use the USPTO Office of Procurement web site as the foremost method of publicizing requirements, business opportunities, and providing procurement information to the business community.

The USPTO will endeavor to acquire products and services to the maximum extent possible in all acquisitions on a competitive basis; however, it is exempt from the requirement to meet the test of “full and open competition” as defined in FAR part 6.

The USPTO will use competition as a principal tool in achieving results and intends to adopt means of affording competition that it determines will effectually serve the performance goals established for particular acquisitions.

It is the policy of the USPTO to promote competition to the maximum extent possible. Competition reduces the risk of having to rely on only one source for critical goods or services and reduces costs. USPTO intends to balance these considerations with the program benefits that can be gained from developing a reduced supplier base and building strategic alliances with its suppliers. The degree of competition sought will be influenced by knowledge of the marketplace and successful past performance records, with competition in most cases limited to a reasonable number of capable sources.

Under the USPTO process, all firms will be apprised of opportunities, but only those judged to be the most viable will commit the resources to fully participate. USPTO intends to have an open interchange with industry about USPTO potential requirements and contractor capabilities long before any formal solicitation is issued. It is the policy of the USPTO to inform all firms of opportunities and seek to ensure only the most viable will need to commit resources to fully participate.

Where justifications for limiting competition are prepared, they will be approved at the following levels:

a. Justifications of procurements $1,000,000 or less will be approved by the Contracting Officer.

b. Justifications over $1,000,000 and less than $10,000,000 will be approved by the Director, Office of Procurement.

c. Justifications greater than $10,000,000 will be approved by the Agency Competition Advocate.

Competitive quotations need not be sought for purchases under $5,000 provided that the Contracting Officer can readily determine the price to be fair and reasonable. Written solicitations should only be utilized when appropriate given the complexity of the requirement.

The USPTO contracting officer may use procedures similar to those set forth at subpart 13.5 of the FAR for acquisitions of commercial items not in excess of $10 million.

The Contracting Officer may utilize the streamlined process described below to solicit offers. The characteristics of this process include:

a. Early identification of the most highly qualified contractors;

b. Establishing a pre-set number of firms for the competitive range to limit the investment of contractor time and resources and to reduce the administrative burden of the procurement process; and

c. Conducting negotiations only where it is practical and efficient to do so and without the requirement for a common cut-off date for concluding negotiations.

The USPTO intends to use a project team to conduct acquisitions under the alternative streamlined contracting approach. The project team will be a multi-disciplinary team that consists of a warranted contracting officer, representatives from the program office whose requirement is the subject of the procurement, the Office of Corporate Planning, and the Office of the General Counsel. The project team will possess the necessary authority needed to conduct all aspects of the acquisition. No further approvals will be required to conduct the acquisition.

The Alternative Streamlined Contracting Process is conducted as follows:

a. A project team conducts all aspects of the acquisition.

b. The team employs strategies and methods that best fulfill the needs of the acquisition.

c. When using the streamlined Alternative Streamlined Contracting Approach, USPTO may employ announcements of opportunities rather than announcement of individual actions over $25,000.

d. Initially, a high-level solicitation document is used. It should solicit basic and essential information such as offeror qualifications, broad-based product data, proposed technical concept, past performance, and pricing. The solicitation document will typically consist of:

1. Information on goals and objectives of the requirement,

2. Specific procedures related to conducting the acquisition,

3. Instructions to offerors on preparing a response,

4. Information on how responses will be evaluated,

5. Budget information on the value of the acquisition, where appropriate, and

6. Project and acquisition timeframes and schedules.

e. A competitive range will be established after initial evaluation of responses. Respondents judged as not being among the most highly rated will be eliminated from further consideration.

f. After establishment of the competitive range, a detailed Statement of Need is issued to solicit additional information and obtain a more complete offer from all firms. The Statement of Need will incorporate the principles of performance-based contracting to permit offerors the opportunity to propose the best solution to meet the USPTO's needs.

g. Oral presentations may be used. The Contracting Officer should maintain an adequate record of oral presentations.

Based on responses to the Statement of Need, the Contracting Officer may negotiate or conduct discussions only with the highest ranked offeror based on the evaluation factors set forth in the solicitation. If the USPTO Contracting Officer is unable to reach agreement with this offeror, negotiations will be initiated with the next highest-ranked firm. This process will continue until those firms remaining in the competitive range have been considered. If agreement cannot be reached, negotiations may be reopened with all firms in the competitive range or the solicitation may be canceled.

Where appropriate, the USPTO may use any contract type (e.g., fixed price or labor hour) provided for in the FAR without regard to any limitations specified therein, and in addition may use hybrid or other contract types not provided for in the FAR.

Because it is exempt from the Federal Property and Administrative Services Act (FPAS), the USPTO is not required to make multiple awards for indefinite-quantity contracts under any circumstances, or, where multiple awards are made, to use any specific procedures for placing task or delivery orders. Contracting Officers are encouraged, however, to consider the use of multiple awards where doing so would result in benefits to the USPTO. A solicitation contemplating multiple awards should address the procedures the USPTO will use for selecting between contractors when awarding task or delivery orders. Where a specific procurement includes procedures for seeking task or delivery order proposals from multiple contractors, applying these procedures to individual requirements below $5,000 normally will not be in the best interest of the USPTO.

Because of the USPTO's exemption from FPAS, it may make award on the basis of unpriced options contained in an existing contract without seeking further competition. The USPTO intends to consider the use of this technique in connection with performance-based contracting under the following circumstances:

a. The award of additional option periods to the incumbent contractor without competition is used as an incentive and reward for good contract performance;

b. The solicitation notifies offerors that unpriced options will be used as a performance incentive; and

c. The contract includes provisions for measuring contract performance and the pricing, negotiation, and exercise of additional option periods.

Acquisition planning serves two important purposes: it establishes how an agency will meet programmatic requirements within the agency's budgetary goals and it serves as a guideline for the acquisition.

Annual Acquisition Plans—As a means of funds control, prioritization, and workload scheduling, USPTO intends to continue to utilize yearly acquisition plans that are tied to the budget process. The plans should be updated as priorities and funding changes occur to ensure accuracy and currency. Plans will be concise. All planned acquisitions for a given fiscal year should be included on the yearly acquisition plan.

Separate Project Agreements—The USPTO may use a separate project agreement for individual or multiple actions that utilize the Alternative Streamlined Contracting Approach. Project Agreement documents tailored to the size and complexity of the various acquisitions will be developed.

Individual Acquisition Plans—The content of the individual acquisition plan shall be left to the discretion of the Contracting Officer. At a minimum, acquisitions plans should contain the following:

a. Statement of need.

b. Applicable conditions.

c. Cost.

d. Risks.

e. Plan of action.

f. Milestones.

The Patent and Trademark Efficiency Act, 35 U.S.C. 2(b)(4)(B), exempts the USPTO from requirements for printing by the Government Printing Office. Accordingly the USPTO intends to acquire printing by the most economic and efficient means available, which may in particular acquisitions include the Government Printing Office.

The purpose of USPTO's approach to market research is to identify and determine the availability of products or services that will satisfy its requirements. The USPTO will use such research, as appropriate, to help it ascertain the most efficient acquisition strategy—with consideration of the range of potential sources, availability of commercial items, and identification of standard commercial practices. Accordingly, the USPTO intends to conduct market research that, to the extent possible, is based upon clear statements of an acquisition's intended outcome and does not foreclose, before research is conducted, the consideration of any reasonable solution or technology for accomplishing its goal. The best result of market research will be achieved when there is a clear statement of the acquisition's intended outcome.

Market research is the responsibility of the entire acquisition team. USPTO Contracting Officers should work closely with technical/program staff to ensure that appropriate market research is conducted. The extent and results of market research efforts should be documented in acquisition planning documents and/or project agreements when the Alternative Streamlined Contracting Approach is utilized.

The USPTO continues to be subject to the bid protest jurisdiction of the General Accounting Office and of the Court of Federal Claims. The USPTO is also subject to Executive Order 12979 concerning protests to the agency. Its procedures for considering such protests are available at: http://www.uspto.gov/web/offices/ac/comp/proc/protest.htm.

In 1979, the Commission issued the Safety Standard for Walk-Behind Power Lawn Mowers (16 CFR part 1205) under provisions of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2051 et seq.) to eliminate or reduce risks of amputations, avulsions, lacerations, and other serious injuries which have resulted from the accidental contact of some part of an operator's body with the rotating blade of a power lawn mower. The standard contains performance and labeling requirements for walk-behind power lawn mowers to address risks of blade-contact injuries.

Section 14(a) of the CPSA (15 U.S.C. 2063(a)) requires manufacturers, importers, and private labelers of a consumer product subject to a consumer product safety standard to issue a certificate stating that the product complies with all applicable consumer product safety standards. Section 14(a) of the CPSA also requires that the certificate of compliance must be based on a test of each product or upon a reasonable testing program.

Section 14(b) of the CPSA authorizes the Commission to issue regulations to prescribe a reasonable testing program to support certificates of compliance with a consumer product safety standard. Section 16(b) of the CPSA (15 U.S.C 2065(b)) authorizes the Commission to issue rules to require that firms “establish and maintain” records to permit the Commission to determine compliance with rules issued under the authority of the CPSA.

The Commission has issued regulations prescribing requirements for a reasonable testing program to support certificates of compliance with the standard for walk-behind power mowers. These regulations also require manufacturers, importers, and private labelers of walk-behind power mowers to establish and maintain records to demonstrate compliance with the requirements for testing to support certification of compliance. 16 CFR part 1205, subpart B.

The Commission uses the information compiled and maintained by manufacturers and importers of walk-behind power mowers to protect consumers from risks of injuries associated with walk-behind power lawn mowers. More specifically, the Commission uses this information to determine whether the mowers produced and imported comply with the applicable standard. The Commission also uses this information to obtain corrective actions if walk-behind power mowers fail to comply with the standard in a manner which creates a substantial risk of injury to the public.

The Office of Management and Budget (OMB) approved the collection of information requirements for walk-behind mowers under control number 3041-0091. OMB's most recent extension of approval will expire on March 31, 2003. The Commission proposes to request an extension of approval without change for these collection of information requirements.

The Commission staff estimates that about 20 firms are subject to the testing and recordkeeping requirements of the certification regulations. The Commission staff estimates further that the annual testing and recordkeeping burden imposed by the regulations on each of these firms on average is approximately 390 hours. Thus, the total annual burden imposed by the certification regulations on all manufacturers and importers of walk-behind power mowers is about 7,800 hours.

The Commission staff estimates that the hourly wage for the time required to perform the required testing and to maintain the required records is about $26.46, and that the annual total cost to the industry is approximately $206,388.

The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:

In 1973, the Commission issued safety requirements for electrically operated toys and children's articles to protect children from unreasonable risks of injury from electric shock, electrical burns, and thermal burns. These regulations are codified at 16 CFR part 1505 and were issued under the authority of sections 2 and 3 of the Federal Hazardous Substances Act (15 U.S.C. 1261, 1262).

These regulations are applicable to toys, games, and other articles intended for use by children that are powered by electrical current from a 120 volt circuit. Video games and articles designed primarily for use by adults that may be incidentally used by children are not subject to these regulations.

The regulations prescribe design, construction, performance, and labeling requirements for electrically operated toys and children's articles. The regulations also require manufacturers and importers of those products to develop and maintain a quality assurance program. Additionally, section 1505.4(a)(3) of the regulations requires those firms to maintain records for three years containing information about: (1) Material and production specifications; (2) the quality assurance program used; (3) results of all tests and inspections conducted; and (4) sales and distribution of electrically operated toys and children's articles.

The Office of Management and Budget (OMB) approved the collection of information requirements in the regulations under control number 3041-0035. OMB's most recent extension of approval expires on April 30, 2003. The Commission now proposes to request an extension of approval without change for the information collection requirements in the regulations.

The safety need for this collection of information remains. Specifically, if a manufacturer or importer distributes products that violate the requirements of the regulations, the records required by section 1505.4(a)(3) can be used by the firm and the Commission (i) to identify specific lots or production lines of products which fail to comply with applicable requirements, and (ii) to notify distributors and retailers in the event the products are subject to recall.

The Commission staff estimates that about 40 firms are subject to the testing and recordkeeping requirements of the regulations. Each one may have an average of ten products each year for which testing and recordkeeping would be required. The Commission staff estimates that the tests required by the regulations can be performed on one product in 16 hours and that recordkeeping and maintenance can be performed for one product in four hours. Thus, the total annual burden imposed by the regulations on all manufacturers and importers is about 8,000 hours. Using the rate of $42.30 per hour as the average total compensation (Total Compensation, Private Goods-Producing Section, Managerial, Executive, and Administrative Category, Bureau of Labor Statistics), the estimated annualized cost is $338,400.

The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:

These forms obtain medical information which affects entrance physical examinations, routine in-service physical examinations, separation physical examinations, and other medical examinations as required. The respondents are all applicants for enlisted, induction or commissioning. The applicant(s) completes the medical history information recorded on the form. This information collected provides the Armed Services and the medical history of applicants. The DD Forms 2807-1 and 2807-2 are the method of collecting and verifying medical data on applicants applying for entrance. These DD Forms are the official DoD medical documents used by the Services through which historical medical information is collected, reviewed and maintained.

Title 10 U.S.C., Sections 504, 505, 508, 12102 and 520a, Title 14 U.S.C., Sections 351 and 632, and Title 50 U.S.C., Section 451, require applicants to meet standards for enlistment into the Armed Forces. This information collection is the basis for determining eligibility of applicants for enlistment in the Armed Forces and is needed to verify data given by the applicant and to determine his/her qualification of enlistment. The information collected aids in the determination of qualifications, term of service, and grade in which a person, if eligible, will enter active duty or reserve status.

The terrorist activity at the Pentagon on September 11, 2001, resulted in the destruction of a large amount of building materials and equipment in a devastating manner. The catastrophe has raised concerns of possible health effects, ranging from acute and temporary to longer-term and permanent, resulting from exposures to hazardous materials and air contaminants of the building occupants and first responders on September 11th, and, for some contaminants, continuing since that date. This program will enumerate potentially affected individuals, estimate their exposures on and since September 11, 2001, and based on these exposure estimates, make recommendations on an individual basis for their appropriate medical follow-up. Collecting symptomatic and location information from individuals at and near the crash site is essential in executing a thorough and accurate medical surveillance program.

Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.

The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.

Type of Review: New Collection.

Title: National Assessment of Educational Progress: Foreign Language Assessment, field test 2003 and full scale 2004.

Frequency: Other: One-time.

Affected Public: Individuals or household (primary), State, Local, or Tribal Gov't, SEAs or LEAs.

Reporting and Recordkeeping Hour Burden:

 Responses: 50250.

 Burden Hours: 14252.

Abstract: The National Assessment of Educational Progress Foreign Language assessment will assess the current status of the foreign language skills of high school seniors in the U.S. as well as collecting information about foreign language programs, instructional practices, and attitudes towards learning foreign languages.

Written requests for information should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW., Room 4050, Regional Office Building 3, Washington, DC 20202-4651 or to the e-mail address Vivian.reese@ed.gov. Requests may also be faxed to 202-708-9346. Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her e-mail address Kathy.axt@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

In May of 2002, a workshop on Theory and Modeling in Nanoscience was held in San Francisco, sponsored by the Basic Energy Sciences and Advanced Scientific Computing Research Advisory Committees to the Office of Science of the U.S. Department of Energy. The charge to the workshop was to identify challenges and opportunities for theory, modeling and simulation in nanoscience and nanotechnology, and to investigate the growing and promising role of applied mathematics and computer science in meeting those challenges. The final report of the workshop can be found at http://www.sc.doe.gov/bes/Theory_and_Modeling_in_Nanoscience.pdf.

The past two decades have seen the fundamental techniques of theory, modeling and simulation undergo a revolution that paralles the experimental advances on which the new field of nanoscience is based. This period has seen the development of density functional algorithms, quantum Monte Carlo techniques, ab initio molecular dynamics, advances in classical Monte Carlo methods and mesoscale methods for soft matter and fast-multipole and multigrid algorithms. The application of these and other new theoretical capabilities are providing quantitative understanding of the novel behavior of nanoscale systems. The same two decades have also seen dramatic advances in computing hardware, which have increased raw computing power by four orders of magnitude. The combination of new theoretical and computational methods with increased computing power has made it now possible to simulate systems with millions of degrees of freedom.

The application of new experimental tools to nanosystems has created a concurrent need for a quantitative, predictive understanding of matter at the nanoscale. The absence of quantitative models that describe newly observed phenomena increasingly limits progress in the field. Without reliable, robust predictive tools and models for the quantitative description of structure and dynamics at the nanoscale, the research community will miss important scientific opportunities in nanoscience. The lack of such tools inhibits widespread applications in fields of nanotechnology ranging from molecular electronics to biomolecular materials. New investments in both human and computational resources are required to maintain the creative pace of nanoscience and nanotechnology.

The nanoscale is not just another step towards miniaturization. It is a qualitatively new scale where materials properties depend on size and shape, as well as composition, and differ significantly from the same properties in the bulk or in insolated molecules. It is at this scale where one crosses over from the smallest scales, where a quantum mechanical description is required, to the larger scales, where a classical description in often adequate. All approximations and assumptions used previously are suspect for systems at this scale and must be reexamined. Fundamental methods for theory, modeling and simulation developed for larger of smaller scales will need to be modified, extended, and sometimes combined into a more complete description.

Completely new methods may be required. Synergism created within a team of researchers from nanoscience, computational science and applied mathematics can accelerate progress and broaden insight. Thus, the current solicitation for applications allows for and encourages the building of teams of theorists, computational scientists, applied mathematicians, and experts in high-performance computing. There are many theory, modeling and simulation challenges in the broad topical areas of: (1) Nano building blocks (nanotubes, quantum dots, clusters and nanoparticles); (2) complex structures and interfaces involving such building blocks; and (3) the assembly and growth of nanostructures, including (but not limited to):

• Determining the essential science of transport mechanisms at the nanoscale.

• Devising theoretical and simulation approaches to study nanointerfaces, which dominate many nanoscale systems and are highly complex and heterogeneous.

• Simulating, with reasonable accuracy, the optical properties of nanoscale structures and modeling nanoscale opto-electronic devices.

• Simulating complext nanostructures involving “soft” biological or organic structures, and “hard” inorganic ones, as well as nanointerfaces between hard and solt matter.

• Simulating self-assembly and directed self-assembly.

• Bringing from length- and time-scales appropriate for electronic motion to those needed for larger scale phenomena—all the way up to macroscopic properties.

• Devising theoretical and simulation approaches to quantum coherence, decoherence, and spintronics.

• Devising self-validating and benchmarking methods.

Each of these challenges represents an opportunity for theory, modeling and simulation to provide new insights into the dynamic behavior of nanoscale systems.

A new investment in theory, modeling and simulation in nanoscience will have a major impact on the national nanoscience initiative, by stimulating the formation of alliances and teams of experimentalists, theorists, applied mathematicians and computer and computational scientists to meet the challenge of developing a broad quantitative understanding of structure and dynamics at the nanoscale. The Department of Energy is uniquely situated to build such a program in theory, modeling and simulation in nanoscience. First, DOE currently supports much of the nation's experimental work in nanoscience, and new facilities dedicated to nanoscience research are currently being built at the DOE national laboratories. Second, the Department maintains an internationally renowned program in applied mathematical sciences research, a program that has been responsible for must of the fundamental research that forms the foundation of mathematical modeling and computational science. Third, the Department provides unique resources and more than two decades of experience in high performance computing and algorithms. The combination of these three capabilities makes the Department a natural home for nanoscience theory, modeling and simulation. This solicitation of strengths by stimulating new research efforts in theory, modeling and simulation in nanoscience, built around strong teams of interdisciplinary reseachers.

This solicitation is to accelerate computional nanoscience. Nanoscience is considered to be the study of the properties and processes unique to nanoscale and of the larger systems that incorporate nanoscale objects, so long as one or more nanoscale-driven properties remain significant. A nanoscale object is one in which two dimensions are in the range between a few and a few hundred nanometers. Applications are sought which seek to establish new capabilities in nanoscience that incorporate, and thereby elucidate, its special features. Applications may involve any of the broad topical areas or any combination thereof:

Addressing prediction of properties and dynamical behavior. Nanotechnology, which is the design of specific devices, is not directly a part of this solicitation.

It is expected that a responsive project will progress beyond current limitations and will require serious development. This joint solicitation anticipates the necessity of a closely interacting team of researchers composed of people from the nanoscience field(s), computer experts, and applied mathematicians. Applied mathematics research applicable to theory, modeling and simulation in nanoscience includes (but is not limited to):

• Fast algorithms—new algorithms or variants of algorithms that lower the asymptotic computational complexity of a computation. Examples include fast multipole methods, fast Poisson solvers in complex geometries, fast eigensolvers, fast linear solvers, Monte Carlo (including improvements in variants such as Quantum Monte Carlo and Kinetic Monte Carlo), fast data exploration techniques, and fast computational geometry.

• Optimization and Predictability—energy minimization problems of unprecedented size and complexity, optimization methods that incorporate domain knowledge, optimization methods for understanding self-assembly processes, optimal control methods for design of nanosystems, predictability analysis and uncertainty quantification.

• Multiscale mathematics—that is, new mathematical techniques for effectively transferring quantitative information across a wide range of length- and time-scales, for merging atomistic and continuum modeling, new adaptive methods, separation of scales, and for coping with models where complex interactions between scales makes separation impossible. Here, it should be pointed out that nanoscience offers two separate opportunities. In the individual building blocks, the number of interacting scales is significantly reduced permitting addressing fundamental issues. The composites, on the other hand, exhibit greater interactions between different scales but with special constraints.

Applications to the BES and ASCR base programs through the Continuing Solicitation for all Office of Science Programs Notice 03-01, found at: http://www.science.doe.gov/production/grants/grants.html, which may have the potential for contributing to the nanoscience theory, modeling and simulation activities, should so indicate.

Applicants are encouraged to collaborate with researchers in other institutions, such as: universities, industry, non-profit organizations, federal laboratories and Federally Funded Research and Development Centers (FFRDCs), including the DOE National Laboratories, where appropriate, and to include cost sharing wherever feasible. Additional information on collaboration is available in the Application Guide for the Office of Science Financial Assistance Program that is available via the Internet at: http://www.sc.doe.gov/production/grants/Colab.html.

It is anticipated that up to $4 million annually will be available for multiple awards for this program. Initial awards will be made late in Fiscal Year 2003 or early Fiscal Year 2004, in the categories described above, and applications may request project support for up to five years. All awards are contingent on the availability of funds and programmatic needs. Annual budgets for successful projects are expected to range from $1,000,000 to $2,000,000 per project although smaller projects of exceptional merit may be considered. Annual budgets may increase in the out-years but should remain within the overall annual maximum guidance. Any proposed effort that exceeds the annual maximum in the out-years should be separately identified for potential award increases if additional funds become available.

Preapplications are strongly encouraged but not required prior to submission of a full application. However, notification of a successful preapplication is not an indication that an award will be made in response to the formal application. The preapplication should identify on the cover sheet the institution, Principal Investigator name(s), address(s), telephone, and fax number(s) and E-mail address(es), and the title of the project. A brief (one-page) vitae should be provided for each Principal Investigator. The preapplication should consist of a two to three page narrative describing the research project objectives, the approach to be taken, and a description of any research partnerships.

Applications will be subjected to scientific merit review (peer review) and will be evaluated against the following evaluation criteria listed in descending order of importance as codified at 10 CFR 605.10(d):

1. Scientific and/or Technical Merit of the Project,

2. Appropriateness of the Proposed Method or Approach,

3. Competency of Applicant's Personnel and Adequacy of Proposed Resources,

4. Reasonableness and Appropriateness of the Proposed Budget.

The evaluation of applications under item 1, Scientific and Technical Merit, will pay particular attention to:

(a) The potential of the proposed projects to make a significant impact in nanoscience research;

(b) The demonstrated capabilities of the applicants to perform basic research related to nanoscience and transform these research results into software that can be widely deployed;

(c) The likelihood that the algorithms, methods, mathematical libraries, and software components that result from this effort will have a substantial impact on the nanoscience research community outside of the projects;

The evaluation under item 2, Appropriateness of the Proposed Method of Approach, will also consider the following elements related to Quality of Planning:

(a) Quality of the plan for effective coupling of nanoscience researchers, computational scientists and applied mathematicians;

(b) Quality and clarity of proposed work schedule and deliverables.

Note that external peer reviewers are selected with regard to both their scientific expertise and the absence of conflict-of-interest issues. Non-federal reviewers may be used, and submission of an application constitutes agreement that this is acceptable to the investigator(s) and the submitting institution. Reviewers will be selected to represent expertise in the technology areas proposed, applications groups that are potential users of the technology, and related programs in other Federal Agencies or parts of DOE, such as the Advanced Strategic Computing Initiative (ASCI) within DOE's National Nuclear Security Administration.

Information about the development and submission of applications, eligibility, limitations, evaluation, selection process, and other policies and procedures including detailed procedures for submitting applications from multi-institution partnerships may be found in 10 CFR part 605, and in the Application Guide for the Office of Science Financial Assistance Program. Electronic access to the Guide and required forms is made available via the World Wide Web at: http://www.science.doe.gov/production/grants/grants.html. The Project Description must be 20 pages or less, including tables and figures, but exclusive of attachments. The application must contain an abstract or project summary, letters of intent from collaborators, and short vitae. DOE is under no obligation to pay for any costs associated with the preparation or submission of applications if an award is not made.

The projects must meet the relevant requirements of the program providing the funding, as well as of the SEP as specified in the 2003 State Energy Program Special Projects Solicitation. The goals of the special projects activities are to assist States accelerate deployment of energy efficiency and renewable energy technologies; facilitate the acceptance of emerging and underutilized energy efficiency and renewable energy technologies; and increase the responsiveness of Federally funded technology development efforts to private sector needs.

Fiscal Year 2003 is the eighth year special project activities have been funded in conjunction with the State Energy Program (10 CFR part 420). Most of these special projects are related to or based on similar efforts that have been funded by other DOE programs.

With this publication, DOE is anticipating the availability of an estimated $16.3 million in new financial assistance awards from Fiscal Year 2003 appropriations. DOE's obligation for performance of this Solicitation is contingent upon the availability of appropriated funds from which financial assistance awards can be made.

The awards will be made through a competitive process. The programs that are participating in the State Energy Program Special Projects for Fiscal Year 2003, with the estimated amount of funding available for each, are as follows:

• Clean Cities: The program will provide funds to support the deployment of alternative fuels and alternative fuel vehicles (AFV) in the following four categories: (1) Projects that promote acquisition of commercially-available AFVs that maximize alternative fuel use, especially when those vehicles support an AFV niche market activity center or niche deployment strategy; (2) projects that promote AFV infrastructure development; (3) Projects that promote the acquisition of AFV school buses; (4) Projects that support coalition activities ($5,000,000).

• Industrial Technology Program: The objective is to broaden the impact of investments in advanced industrial technologies and practices geared toward energy savings and waste reduction. This will be done through increased partnerships composed of State agencies, universities and local small and mid-sized manufacturing entities ($2,000,000).

• Building Codes and Standards: Support States' actions to adopt, update, implement, enforce and evaluate the effectiveness of their residential and commercial building energy codes ($1,650,000).

• Rebuild America: Support Rebuild America State Programs which are consistent with the Rebuild America Strategic Plan that identifies specific and measurable building and related energy saving projects. The goal is for 50% of the partnerships to have completed at least one major building renovation project by 2005. The partnerships must define a program and process that would show a significant opportunity for completion of building projects ($3,000,000).

• Building America: Applications should include research that coordinates with Building America's goal of creating building system performance packages that make new houses 40% to 70% more energy efficient than those built to local building code standards. Existing houses should be 30% more energy efficient than the local building code ($300,000).

• Federal Energy Management Program: Applications should promote and facilitate sustainable design and construction, energy efficient operations and maintenance, distributed and renewable energy, renewable energy purchases, siting of renewable power on Federal sites, and assessment and implementation of load and energy reduction techniques ($500,000).

• Solar Technology Program: To determine if islanding is a reasonable concern for distributed energy resources, grants are available to utilities to conduct measurements of the actual watts, Volt-Amp Reactives (VARs), and harmonics present on 12 distribution lines ($250,000).

• State Wind Energy Support: Applications are sought for (1) State outreach and technical assistance, and (2) regional consortia on transmissions ($400,000).

• Distributed Energy and Electric Reliability—Transmission Reliability, Energy Storage, and Interconnection: Applications are sought for (1) Energy Storage, Renewable Generation Dispatch, and Transmission Stability, and (2) Electrical Interconnection Regulatory Education and Outreach ($205,000).

• Distributed Energy and Electric Reliability—Regional Combined Cooling Heating and Power Applications Centers: The objectives of the Regional Application Centers will be to provide essential and appropriate applied research and development support, focused on the technology transfer and deployment of advanced Combined Heat and Power (CHP) technologies. The Regional Application Centers will achieve this objective through targeted education and outreach programs as well as project assistance ($1,200,000).

• Distributed Energy and Electric Reliability—High Temperature Superconductivity, State Outreach Centers: Project requests are for the development and facilitation of State meetings and workshops designed to disseminate information on the technical, economic, environmental feasibility, and effectiveness of High Temperature Superconductivity (HTS) technologies and their systems integration approach ($400,000).

• Geothermal Outreach: Program funding will be provided for outreach and information sharing with State-based agricultural/rural sectors in States with direct use geothermal resources. Additional funding will be provided for projects that update the inventory of geothermal resources in a given State (300,000).

• Biomass: To foster significant penetration of biomass-based technologies and products, cost-shared proposals are sought under two broad categories (1) outreach and information transfer to consumers, farmers, and industry; or (2) Development of innovative State or local incentives that facilitate increased market penetration of bio-based products and biomass-based technologies ($600,000).

• Residential Deployment: The goal of this solicitation is to develop self-sustaining energy efficiency programs for the existing home market that incorporate marketing efforts, builder training/certification, home inspections, and quality assurance of contractor work ($500,000).

Eligible Applicants under this solicitation are limited to the 50 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U. S. Virgin Islands. Applications must be submitted by the State Energy Office or other agency responsible for administering the State Energy Program pursuant to 10 CFR part 420, although States may work in collaboration with non-State partners. For convenience, the term “State” in this solicitation refers to all eligible Applicants.

The Catalog of Federal Domestic Assistance number assigned to the State Energy Program Special Projects is 81.119.

Requirements for cost sharing contributions are addressed in each category. Cost sharing contributions beyond any required percentage is desirable.

A first tier review for compliance will occur at the appropriate DOE Regional Office. Applications found to be in compliance will undergo a merit review process by panels comprised of members representing the participating programs at DOE's Office of Energy Efficiency and Renewable Energy. The program offices recommend projects to the Office of Weatherization and Intergovernmental Program Manager who is the designated selecting official. DOE reserves the right to fund, in whole or in part, any, all or none of the applications submitted in response to this notice.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 20, 2002 (67 FR 41981), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.

EPA has established a public docket for this ICR under Docket ID Number OECA-2002-0011, which is available for public viewing at the Enforcement and Compliance Docket Information Center (ECDIC), in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the ECDIC Docket is (202) 566-1514. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at http://www.epa.gov/edocket. Use EDOCKET to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID number identified above.

Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice, and according to the following detailed instructions: (1) Submit your comments to EPA online using EDOCKET (our preferred method), by e-mail to docket.oeca@epa.gov, or by mail to: EPA Docket Center, Environmental Protection Agency, Mailcode: 2201T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, and (2) Mail your comments to OMB at: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.

EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's Federal Register notice describing the electronic docket at 67 FR 38102 (May 31, 2002), or go to http://www.epa.gov/edocket.

Title: NSPS for Synthetic Fiber Production Facilities (40 CFR part 60, subpart HHH) (OMB Control Number 2060-0059 and EPA ICR Number 1156.09). This is a request to renew an existing approved collection that is scheduled to expire on January 31, 2003. Under the OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The NSPS for Synthetic Fiber Production Facilities, published at 40 CFR part 60, subpart HHH, were proposed on November 23, 1982, and promulgated on April 5, 1984. These standards apply to affected facilities at synthetic fiber production facilities including: each solvent-spun synthetic fiber process that produces more than 500 megagrams of fiber per year and that commenced construction or reconstruction after November 23, 1982. The provisions of this subpart do not apply to any facility that uses the reaction spinning process to produce spandex fiber or the viscose process to produce rayon fiber, nor to facilities that commence modification but not reconstruction after November 23, 1982. Volatile organic compounds (VOCs) are the pollutants regulated under this subpart. This information is being collected to assure compliance with 40 CFR part 60, subpart HHH.

Owners or operators of the affected facilities described must make one-time-only initial notifications and report on the results of the initial performance test. Owners or operators also are required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Monitoring requirements specific to synthetic fiber production facilities provide information on VOC emissions. Owners or operators of affected facilities are required to install, calibrate, maintain, and operate a continuous monitoring system for the measurement of makeup solvent and solvent feed. These values shall be used in calculating monthly VOC emissions. Section 60.603(b)(1) provides three options for determining solvent feed.

Each owner or operator calculates VOC emissions every month from the amount of solvent feed and makeup solvent used in each affected facility. These values are used to calculate compliance with the emission limitations on a six-month rolling average basis.

Also required are semiannual reports, and quarterly reports of instances of excess emissions. The owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least two years following the date of such measurements. Responses to this collection of information are mandatory and are being collected to assure compliance with 40 CFR part 60, subpart HHH. All reports are sent to the delegated State or Local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA Regional Office. These notifications, reports, and records are essential in determining compliance. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average approximately 29 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Respondents/Affected Entities: Synthetic fiber production facilities.

Estimated Number of Respondents: 25.

Frequency of Response: Initial, quarterly and semiannual.

Estimated Total Annual Hour Burden: 1,838.

Estimated Total Annualized Cost: $293,000 of which $188,000 are O&M annual costs.

There is a decrease of 848 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This is due to a decrease in the number of sources and the assumption that no new sources will become subject to the standard. The estimate on the number of sources was based on the most recent data on major sources subject to the NSPS program for the corresponding SIC codes subject to this rule available on the EPA AFS database.

On October 19, 2001, EPA published a Federal Register notice redesignating the Pittsburgh area to attainment for the one-hour ozone standard, and approving a revision to the area's maintenance plan as a revision to the SIP. 66 FR 53094. On December 18, 2001, Sierra Club and GASP filed a petition for review of this action in the United States Court of Appeals for the Third Circuit, contending that the redesignation did not meet statutorily-required prerequisites for redesignation. Sierra Club v. EPA, No. 01-4426. The Commonwealth of Pennsylvania and the Southwestern Pennsylvania Growth Alliance were granted leave to participate as intervenors. Briefing was stayed pending settlement discussions.

The proposed Settlement Agreement, which was executed on January 22, 2003, provides for a stay of proceedings to allow the Commonwealth of Pennsylvania to submit to EPA, not later than May 1, 2003, a revision to the Pennsylvania contingency measures portion of the maintenance plan SIP that adds additional contingency measures and procedures for implementing them. The contingency measures are outlined in Attachment A to the proposed Settlement Agreement. The Agreement further allows EPA an opportunity to sign a final approval of the revision no later then February 1, 2004, to be forwarded within five business days for publication in the Federal Register, and to sign a final approval of the final rule in finally adopted form, that is referenced in paragraph 1(b) of Attachment A, no later than November 1, 2004. EPA must also provide status reports at 120-day intervals. (In an order dated January 2, 2003, the Court unilaterally changed the interval to 60-days from the date of the Court's order until the settlement agreement has been finalized and implemented.) Petitioners agree not to challenge in any court or administrative proceeding the validity of any EPA action fully approving these revisions. Within 30 days of November 1, 2004, the parties will file a joint stipulation dismissing the petition in accordance with Rule 42 of the Federal Rules of Appellate Procedure if EPA has published the final rulemakings fully approving the revisions and the stay of the litigation has not been lifted. Finally, EPA agrees to pay, and the Petitioners agree to accept, the sum of $30,987.00 in full settlement of all claims by Petitioners for their costs of litigation (including reasonable attorney's fees and expenses).

For a period of thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the proposed Settlement Agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed Settlement Agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determine, following the comment period, that consent is inappropriate, the Settlement Agreement will be final.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide. Potentially affected entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPP-2002-0018. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.

1. Electronically. If you submit an electronic comment as prescribed in this unit, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in docket ID number OPP-2002-0018 The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by e-mail to opp-docket@epa.gov, Attention: Docket ID Number OPP-2002-0018. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.C.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By mail. Send your comments to: Public Information and Records Integrity Branch (PIRIB), Office of Pesticide Programs (OPP), Environmental Protection Agency (7502C), 1200 Pennsylvania Ave., NW., Washington, DC, 20460-0001, Attention: Docket ID Number OPP-2002-0018.

3. By hand delivery or courier. Deliver your comments to: Public Information and Records Integrity Branch (PIRIB), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA., Attention: Docket ID Number OPP-2002-0018. Such deliveries are only accepted during the docket's normal hours of operation as identified in Unit I.B.1.

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternative ways to improve the registration activity.

7. Make sure to submit your comments by the deadline in this notice.

8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.

File Symbol: 68467-G. Applicant: Dow AgroSciences, 9330 Zionsville Road, Indianapolis, IN 46268-1054. Product Name: Bacillus Thuringiensis Cry 1F(Synpro)/Cry 1Ac(synpro constuct 281/3006 Insectical Crystal Protein As Expressed in Cotton. Proposed Classification/Use: Plant-Incorporated Protectant.

A. Affected Entities: Entities that will be affected by this section are those facilities subject to 40 CFR 355.30 Emergency Planning and 40 CFR part 370 Hazardous Chemical Reporting: Community Right-to-Know.

To determine whether your facility is affected by this action, you should carefully examine the applicability provisions at 40 CFR part 350, 40 CFR part 355, and 40 CFR part 370. If you have any questions regarding the applicability of this action to a particular entity, consult the person(s) listed in the FOR FURTHER INFORMATION CONTACT section.

A. Docket: EPA has established an official public docket for this action under Docket ID No. SFUND-2003-0002.

The public docket includes information considered by EPA in developing this action, including the documents listed below, which are physically located in the docket. In addition, interested parties should consult documents that are referenced in the documents that EPA has placed in the docket, regardless of whether these referenced documents are physically located in the docket. For assistance in located documents that are referenced in documents that EPA has placed in the docket, but that are not physically located in the docket, please consult the person(s) in the preceding FOR FURTHER INFORMATION CONTACT section. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW., Washington DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-0274.

B. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in section II.A. of this document. Once in the system, select “search,” then key in the appropriate docket identification number.

You may submit comments through the mail, in person, or electronically. Be sure to identify the appropriate docket control number (i.e., SFUND-2003-0002) in your correspondence.

1. By Mail. All comments should be sent in triplicate to : Chemical Emergency Preparedness and Prevention Office, Mail code 5104 A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Ariel Rios Building, Washington DC 20460.

2. In person or by courier. Comments may be delivered in person or by courier to: EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW., Washington DC 20460. The Docket Center is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the docket is (202) 566-1744.

3. Electronically. Submit your comments electronically by e-mail to: “superfund.docket@epa.gov”. Please note that you should not submit any information electronically that you consider to be CBI. Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data will also be accepted on standard computer disks in WordPerfect 6.1/8.0 or ASCII file format. All comments and data in electronic form must be identified by the docket control number SFUND-2003-0002. Electronic comments on this document may also be filed online at many Federal Depository Libraries.

All comments which contain information claimed as CBI must be clearly marked as such. Three sanitized copies of any comments containing information claimed as CBI must also be submitted and will be placed in the public record for this document. Persons submitting information on any portion of which they believe is entitled to treatment as CBI by EPA must assert a business confidentiality claim in accordance with 40 CFR 2.203(b) for each such portion. This claim must be made at the time that the information is submitted to EPA. If a submitter does not assert a confidentiality claim at the time of submission, EPA will consider this as a waiver of any confidentiality claim and the information may be made available to the public by EPA without further notice to the submitter.

The Emergency Planning Notification (codified in 40 CFR part 355) and the Hazadous Chemical Reporting (codified in 40 CFR part 370) are mandated by the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPCRA established a program designed to require state and local planning and preparedness for spills or releases of hazardous substances and to provide the public and local governments with information concerning potential chemical hazards in their communities. Under EPCRA section 303, (codified in 40 CFR part 355) a facility which has present an Extremely Hazardous Substance in excess of its threshold planning quantity (TPQ) must notify the State emergency response commission and local emergency planning committee as well as participate in local emergency planning activities. Under EPCRA sections 311 and 312, (codified in 40 CFR part 370), a facility is required to submit an inventory of hazardous chemicals present at their site at or above the specified threshold quantities.

Under section 322 of EPCRA (codified in 40 CFR part 350), facilities submitting reports under sections 303, 311 and 312 of EPCRA, may be eligible to claim Trade Secret for the specific chemical identity of the extremely hazardous substance or the hazardous chemical being reported. Pursuant to 40 CFR 350.23 (“Disclosure to authorized representatives”), information entitled to trade secret or confidential treatment may not be disclosed by the Agency to the Agency's authorized representative until each affected submitter has been furnished notice of the contemplated disclosure by the EPA program office and has been afforded a period found reasonable by that office (not less than five working days) to submit its comments. Such notice shall include a description of the information to be disclosed, the identity of the contractor, subcontractor, or grantee, the contract, subcontract, or grant number, if any, and the purposes to be served by the disclosure. This notice may be published in the Federal Register or may be sent to individual submitters.

The contract to manage the trade secret submissions under sections 303, 311, 312 and 313 was recompeted in 1998 and was awarded to the Computer Based Systems Incorporated, now known as Titan Systems, Inc. This contract ended on January 31, 2003. The new contract was transitioned to Computer Sciences Corporation (CSC) (GSA Contract GSOOT99ALD0203) at the end of December 2002. This new facility is located in New Carrollton, MD. All trade secret submissions for sections 303, 311, 312 and 313 pursuant to 40 CFR part 350 will be managed by CSC. (See 67 FR 65566, Oct. 25, 2002, for notice authorized representative to receive claims of trade secrecy under EPCRA section 313.)

In accordance with 40 CFR 350.23, EPA has determined that CSC and their subcontractors require access to trade secret and confidential information submitted under 40 CFR part 350 in order to receive, manage, process, and safely store such information. The contractor's and subcontractor's personnel will be required to sign a “Confidentiality Agreement” prior to being permitted access to trade secret and confidential information submitted under 40 CFR part 350. All contractor and subcontractor access to trade secrets and confidential information filed for sections 303, 311, 312 and 313 of EPCRA will take place at the contractor's facility in New Carrollton, MD. The contractor will have appropriate procedures and facilities in place to safeguard these trade secrets and confidential information submissions to which the contractor and subcontractors have access during the term of this contract.

This is a summary of the Auction No. 48 Procedures Public Notice released on December 20, 2002. The complete text of the Auction No. 48 Procedures Public Notice, including attachments and statements, 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-B402, Washington, DC 20554. The Auction No. 48 Procedures Public Notice 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.

1. By the Auction No. 48 Procedures Public Notice, the Wireless Telecommunications Bureau (“Bureau”) announces the procedures and minimum opening bids for the upcoming auction of licenses for the lower and upper paging bands (Auction No. 48) scheduled for May 13, 2003. In accordance with the Balanced Budget Act of 1997, the Bureau released a public notice on November 7, 2002, seeking comment on reserve prices or minimum opening bids and the procedures to be used in Auction No. 48. The Bureau received two comments and no reply comments in response to the Auction No. 48 Comment Public Notice, 67 FR 72683 (December 6, 2002).

2. In the Paging Second Report and Order, 62 FR 11616 (March 12, 1997), the Commission adopted rules governing geographic licensing for exclusive channels in the 35 MHz, 43 MHz, 152 and 158 MHz, 454 MHz and 459 MHz, 929 MHz, and 931 MHz bands allocated for paging, and competitive bidding procedures for granting mutually exclusive applications for non-nationwide geographic area licenses in those bands. In order to facilitate geographic licensing, the Commission dismissed all pending mutually exclusive paging applications and all non-mutually exclusive paging applications filed after July 31, 1996. In part, the Commission developed a standard methodology for providing protection to incumbent licensees from co-channel interference for the 929-930 MHz and 931-932 MHz paging bands to supplement the existing formulas for determining interference contours on other paging bands.

3. The licenses available in Auction No. 48 include 8,874 lower paging bands (35 MHz, 43 MHz, 152 and 158 MHz, 454 MHz and 459 MHz, 929 MHz, 931 MHz bands) licenses, as well as 1,328 upper paging bands (929-931 MHz) licenses that remained unsold from a previous auction or were defaulted on by a winning bidder in a previous auction. The lower bands licenses will be offered in each of the 175 geographic areas known as Economic Areas (EAs) and the upper bands licenses will be offered in all but three of the 51 geographic areas known as Major Economic Areas (MEAs). These EAs and MEAs both encompass the United States, Guam and Northern Mariana Islands, Puerto Rico and the United States Virgin Islands, and American Samoa. The tables contain the block/frequency cross-reference list for the paging bands. Due to the large volume of licenses in Auction No. 48, the complete list of licenses available for this auction will be provided in electronic format only, available as “Attachment A” of the Auction No. 48 Procedures Public Notice at http://wireless.fcc.gov/auctions/48/.

Each frequency listed in this chart is the center frequency of the channel to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channel to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channel to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channels to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channels to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channel to be auctioned in each block.

Each frequency listed in this chart is the center frequency of the channel to be auctioned in each block.

4. Prospective bidders must familiarize themselves thoroughly with the Commission's rules relating to the paging services, contained in title 47, part 22 and part 90 of the Code of Federal Regulations, and those relating to application and auction procedures, contained in title 47, part 1 of the Code of Federal Regulations. Prospective bidders must also be thoroughly familiar with the procedures, terms and conditions (collectively, “Terms”) contained in the Auction No. 48 Procedures Public Notice; the Auction No. 48 Comment Public Notice; the Part 1 Fifth Report and Order 65 FR 52401 (August 29, 2000), (as well as prior and subsequent Commission proceedings regarding competitive bidding procedures); the Paging Notice; the Paging First Report and Order; the First Paging Reconsideration Order; the Paging Second Report and Order; the Second Paging Reconsideration Order; the Paging Third Report and Order; and the Third Paging Reconsideration Order.

5. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in our public notices at any time, and will issue public notices to convey any new or supplemental information to bidders. It is the responsibility of all prospective bidders to remain current with all Commission rules and with all public notices pertaining to this auction. Copies of most Commission documents, including public notices, can be retrieved from the FCC Auctions Internet site at http://wireless.fcc.gov/auctions. Additionally, documents are 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 or may 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. When ordering documents from Qualex, please provide the appropriate FCC number (for example, FCC 99-98 for the Paging Third Report and Order).

6. To ensure the competitiveness of the auction process, the Commission's rules prohibit applicants for the same geographic license area from communicating with each other during the auction about bids, bidding strategies, or settlements. This prohibition begins at the short-form application filing deadline and ends at the down payment deadline after the auction. Bidders competing for licenses in the same geographic license areas are encouraged not to use the same individual as an authorized bidder. A violation of the anti-collusion rule could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between the bidders he or she is authorized to represent in the auction. A violation could similarly occur if the authorized bidders are different individuals employed by the same organization (e.g., law firm or consulting firm). In such a case, at a minimum, applicants should certify on their applications that precautionary steps have been taken to prevent communication between authorized bidders and that applicants and their bidding agents will comply with the anti-collusion rule.

7. However, the Bureau cautions that merely filing a certifying statement as part of an application will not outweigh specific evidence that collusive behavior has occurred, nor will it preclude the initiation of an investigation when warranted. The Commission's anti-collusion rules allow applicants to form certain agreements during the auction, provided the applicants have not applied for licenses covering the same geographic areas. Note that in Auction No. 48, applicants for licenses in overlapping EAs and MEAs will not be able to take advantage of these rule provisions, even though the licenses are not completely co-extensive. For example, assume that one applicant applies for several lower paging bands licenses, i.e., licenses covering EAs, in its Auction No. 48 FCC Form 175 and that a second applicant applies for licenses in the upper paging bands, i.e., licenses covering MEAs, in its Auction No. 48 FCC Form 175. If the first applicant selects licenses for EAs that are within MEAs covered by licenses selected by the second applicant, the two parties will have applied for licenses covering the same geographic areas. Consequently, unlike applicants who have applied for licenses that do not cover the same geographic areas, these two applicants will not be permitted to form a consortium or bid jointly for licenses after they file FCC Form 175. However, all applicants may enter into bidding agreements before filing FCC Form 175, as long as they disclose the existence of the agreement(s) in their FCC Form 175. If parties agree in principle on all material terms prior to the short-form filing deadline, those parties must be identified on the short-form application pursuant to § 1.2105(c), even if the agreement has not been reduced to writing. If the parties have not agreed in principle by the filing deadline, an applicant would not include the names of those parties on its application, and may not continue negotiations with other applicants for licenses covering the same geographic areas. By signing their FCC Form 175 short-form applications, applicants are certifying their compliance with § 1.2105(c).

8. In addition, § 1.65 of the Commission's rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application. Thus, §§ 1.65 and 1.2105 require an auction applicant to notify the Commission of any violation of the anti-collusion rules upon learning of such violation. Bidders therefore are required to make such notification to the Commission immediately upon discovery.

9. A summary listing of documents from the Commission and the Bureau addressing the application of the anti-collusion rules may be found in Attachment F of the Auction No. 48 Procedures Public Notice.

10. Incumbent (non-geographic) paging licensees operating under their existing authorizations are entitled to full protection from co-channel interference. Geographic area licensees are likewise afforded co-channel interference protection from incumbent licensees. Adjacent geographic area licensees are obligated to resolve possible interference concerns of adjacent geographic area licensees by negotiating a mutually acceptable agreement with the neighboring geographic licensee. Incumbency issues are further discussed.

11. Potential bidders are reminded that there are a number of incumbent licensees already licensed and operating on frequencies that will be subject to the upcoming auction. Geographic area licensees in accordance with the Commission's rules must protect such incumbents from harmful interference. See 47 CFR 22.503(i). These limitations may restrict the ability of such geographic area licensees to use certain portions of the electromagnetic spectrum or provide service to certain areas in their geographic license areas.

12. In addition, potential bidders seeking licenses for geographic areas adjacent to the Canadian and Mexican border should be aware that the use of some or all of the channels they acquire in the auction could be restricted as a result of current or future agreements with Canada or Mexico. Licensees on the lower paging channels must submit a Form 601 to obtain authorization to operate stations north of Line A or east of Line C because these channels are subject to the Above 30 Megacycles per Second Agreement with Industry Canada. Although the upper paging channels do not require coordination with Canada, the U.S.-Canada Interim Coordination Considerations for the Band 929-932 MHz, as amended, assigns specific 929 and 931 MHz frequencies to the United States for licensing along certain longitudes above Line A, and assigns other specific 929 and 931 MHz frequencies to Canada for licensing along certain longitudes along the U.S.-Canada border. In addition, the 929 and 931 MHz frequencies assigned to Canada are unavailable for use by U.S. licensees above Line A as set out in the agreement. Also, licensees in some EAs and MEAs may be required to protect quiet zones.

13. Potential bidders should also be aware that certain applications (including those for modification), petitions for rulemaking, requests for special temporary authority (“STA”), waiver requests, petitions to deny, petitions for reconsideration, and applications for review may be pending before the Commission and relate to particular applicants or incumbent licensees. In addition, certain judicial proceedings that may relate to particular applicants or incumbent licensees, on the licenses available in Auction No. 48 may be commenced, or may be pending, or may be subject to further review. We note that resolution of these matters could have an impact on the availability of spectrum in Auction No. 48. Some of these matters (whether before the Commission or the Courts) may not be resolved by the time of the auction.

14. Potential bidders are solely responsible for identifying associated risks, and investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of licenses available in Auction No. 48.

15. To aid potential bidders, Attachment G of the Auction No. 48 Procedures Public Notice lists paging matters pending before the Commission that relate to licenses or applications in the bands being auctioned. The Commission makes no representations or guarantees that the listed matters are the only pending matters that could affect spectrum availability in these bands.

16. Copies of pleadings from pending cases relating to paging matters identified in Attachment G of the Auction No. 48 Procedures Public Notice are available for public inspection and copying during normal reference room hours at: Office of Public Affairs (OPA), Reference Operations Division, 445 12th Street, SW., Room CY-C314, Washington, DC 20554.

17. In addition, potential bidders may research the Bureau's licensing database on the Internet in order to determine which frequencies are already licensed to incumbent licensees. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into the database. Potential bidders are strongly encouraged to physically inspect any sites located in, or near, the EA or MEA for which they plan to bid.

18. Licensing records for paging are contained in the Bureau's Universal Licensing System (ULS) and may be researched on the Internet at http://wireless.fcc.gov/uls. Potential bidders may query the database online and download a copy of their search results if desired. Detailed instructions on using License Search (including frequency searches and the GeoSearch capability) and downloading query results are available online by selecting the “?” button at the upper right-hand corner of the License Search screen.

19. Potential bidders should direct questions regarding the search capabilities to the FCC Technical Support hotline at (202) 414-1250 (voice) or (202) 414-1255 (TTY), or via e-mail at ulscomm@fcc.gov. The hotline is available to assist with questions Monday through Friday, from 8 a.m. to 6 p.m. e.t. In order to provide better service to the public, all calls to the hotline are recorded.

20. All applicants must certify on their FCC Form 175 applications under penalty of perjury that they are legally, technically, financially and otherwise qualified to hold a license, and not in default on any payment for Commission licenses (including down payments) or delinquent on any non-tax debt owed to any Federal agency. Prospective bidders are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.

21. The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC licensee in this service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular services, technologies or products, nor does a FCC license constitute a guarantee of business success. Applicants and interested parties should perform their own due diligence before proceeding, as they would with any new business venture.

22. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction No. 48 to deceive and defraud unsuspecting investors. Common warning signals of fraud include the following:

• The first contact is a “cold call” from a telemarketer, or is made in response to an inquiry prompted by a radio or television infomercial.

• The offering materials used to invest in the venture appear to be targeted at IRA funds, for example, by including all documents and papers needed for the transfer of funds maintained in IRA accounts.

• The amount of investment is less than $25,000.

• The sales representative makes verbal representations that: (a) The Internal Revenue Service (“IRS”), Federal Trade Commission (“FTC”), Securities and Exchange Commission (“SEC”), FCC, or other government agency has approved the investment; (b) the investment is not subject to State or Federal securities laws; or (c) the investment will yield unrealistically high short-term profits. In addition, the offering materials often include copies of actual FCC releases, or quotes from FCC personnel, giving the appearance of FCC knowledge or approval of the solicitation.

23. Information about deceptive telemarketing investment schemes is available from the FTC at (202) 326-2222 and from the SEC at (202) 942-7040. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Fraud Information Center at (800) 876-7060. Consumers who have concerns about specific proposals regarding Auction No. 48 may also call the FCC Consumer Center at (888) CALL-FCC ((888) 225-5322).

24. Licensees must comply with the Commission's rules regarding the National Environmental Policy Act (NEPA). The construction of a wireless antenna facility is a Federal action and the licensee must comply with the Commission's NEPA rules for each such facility. The Commission's NEPA rules require, among other things, that the licensee consult with expert agencies having NEPA responsibilities, including the U.S. Fish and Wildlife Service, the State Historic Preservation Office, the Army Corp of Engineers and the Federal Emergency Management Agency (through the local authority with jurisdiction over floodplains). The licensee must prepare environmental assessments for facilities that may have a significant impact in or on wilderness areas, wildlife preserves, threatened or endangered species or designated critical habitats, historical or archaeological sites, Indian religious sites, floodplains, and surface features. The licensee must also prepare environmental assessments for facilities that include high intensity white lights in residential neighborhoods or excessive radio frequency emission.

25. The auction will begin on Tuesday, May 13, 2003. The initial schedule for bidding will be announced by public notice at least one week before the start of the auction. Unless otherwise announced, bidding on all licenses will be conducted on each business day until bidding has stopped on all licenses.

26. Auction No. 48—Lower and Upper Paging.

27. The bidding methodology for Auction No. 48 will be simultaneous multiple round bidding. The Commission will conduct this auction over the Internet. Telephonic bidding will also be available. As a contingency, the FCC Wide Area Network will be available as well. Qualified bidders are permitted to bid telephonically or electronically.

28. Listed are important dates associated with Auction No. 32:

Auction seminar: March 6, 2003.

Short-form application (FCC Form 175): March 21, 2003; 6 p.m. e.t.

Upfront payments (via wire transfer): April 14, 2003; 6 p.m. e.t.

Mock auction: May 8, 2003.

Auction begins: May 13, 2003.

29. Those wishing to participate in the auction must:

• Submit a short-form application (FCC Form 175) electronically by 6 p.m. e.t., March 21, 2003.

• Submit a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6 p.m. e.t., April 14, 2003.

• Comply with all provisions outlined in the Auction No. 48 Procedures Public Notice.

30. The following is a list of general contact information relating to Auction No. 32.

General Auction Information: General Auction Questions, Seminar Registration.

FCC Auctions Hotline, (888) 225-5322, Press Option #2, or direct (717) 338-2888. Hours of service: 8 a.m.—5:30 p.m. e.t.

Auction Legal Information: Auction Rules, Policies, Regulations.

Auctions and Industry Analysis Division, Legal Branch (202) 418-0660.

Licensing Information: Rules, Policies, Regulations, Licensing Issues, Due Diligence, Incumbency Issues.

Commercial Wireless Division (202) 418-0620.

Technical Support: Electronic Filing, Automated Auction System.

FCC Auctions Technical Support Hotline, (202) 414-1250 (Voice), (202) 414-1255 (TTY). Hours of service: Monday through Friday 8 a.m. to 6 p.m. e.t.

Payment Information: Wire Transfers, Refunds.

FCC Auctions Accounting Branch, (202) 418-0578 or (202) 418-0496, (202) 418-2843 (Fax).

Telephonic Bidding: Will be furnished only to qualified bidders.

FCC Copy Contractor: Additional Copies of Commission Documents.

Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. (202) 863-2893, (202) 863-2898 (Fax), qualexint@aol.com (E-mail).

Press Information: Lauren Kravetz (202) 418-7944.

FCC Forms: (800) 418-3676 (outside Washington, DC), (202) 418-3676 (in the Washington Area), http://www.fcc.gov/formpage.html.

FCC Internet Sites: http://www.fcc.gov. http://wireless.fcc.gov/auctions. http://wireless.fcc.gov/uls.

31. Guidelines for completion of the short-form (FCC Form 175) are set forth in Attachment D of the Auction No. 48 Procedures Public Notice. The short-form application seeks the applicant's name and address, legal classification, status, small business bidding credit eligibility, identification of the license(s) sought, the authorized bidders and contact persons. Applicants must certify on their FCC Form 175 applications under penalty of perjury that they are legally, technically, financially and otherwise qualified to hold a license and, as discussed in section II.E (Provisions Regarding Defaulters and Former Defaulters), that they are not in default on any payment for Commission licenses (including down payments) or delinquent on any non-tax debt owed to any Federal agency.

32. In Auction No. 48, Form 175 will include a mechanism that allows an applicant to filter the 10,202 licenses by paging service, frequency band, market area, and/or channel block/license suffix to create customized lists of licenses. The applicant will make selections for one or more of the filter criteria and the system will produce a list of licenses satisfying the specified criteria. The applicant may apply for all the licenses in the customized list by using the “Select All” option; select individual licenses separately from the list; or create a second customized list without selecting any of the licenses from the first list. Applicants also will be able to select licenses from one customized list and then create a second customized list to select additional licenses.

33. All applicants must comply with the uniform part 1 ownership disclosure standards and provide information required by §§ 1.2105 and 1.2112 of the Commission's rules. Specifically, in completing FCC Form 175, applicants will be required to file an “Exhibit A” providing a full and complete statement of the ownership of the bidding entity. The ownership disclosure standards for the short-form are set forth in § 1.2112 of the Commission's rules.

34. Applicants will be required to identify on their short-form applications any parties with whom they have entered into any consortium arrangements, joint ventures, partnerships or other agreements or understandings which relate in any way to the licenses being auctioned, including any agreements relating to post-auction market structure. Applicants will also be required to certify on their short-form applications that they have not entered into any explicit or implicit agreements, arrangements or understandings of any kind with any parties, other than those identified, regarding the amount of their bids, bidding strategies, or the particular licenses on which they will or will not bid. As discussed, if an applicant has had discussions, but has not reached a joint bidding agreement by the short-form deadline, it would not include the names of parties to the discussions on its applications and may not continue discussions with applicants after the deadline. Where applicants have entered into consortia or joint bidding arrangements, applicants must submit an “Exhibit B” to the FCC Form 175.

35. A party holding a non-controlling, attributable interest in one applicant will be permitted to acquire an ownership interest in, form a consortium with, or enter into a joint bidding arrangement with other competing applicants provided that (i) the attributable interest holder certifies that it has not and will not communicate with any party concerning the bids or bidding strategies of more than one of the applicants in which it holds an attributable interest, or with which it has formed a consortium or entered into a joint bidding arrangement; and (ii) the arrangements do not result in a change in control of any of the applicants. While the anti-collusion rules do not prohibit non-auction related business negotiations among auction applicants, bidders are reminded that certain discussions or exchanges could touch upon impermissible subject matters because they may convey pricing information and bidding strategies.

36. In the Paging Second Report and Order, the Commission adopted small business bidding credits to promote and facilitate the participation of small businesses in competitive bidding for licenses in the paging service. In the Second Paging Reconsideration Order, the Commission subsequently increased the size of the bidding credits.

37. Bidding credits are available to small businesses, or consortia thereof, (as defined in 47 CFR 1.2110(c) and 22.217(a)). A bidding credit represents the amount by which a bidder's winning bids are discounted. The size of the bidding credit depends on the average of the aggregated annual gross revenues for each of the preceding three years of the bidder, its affiliates, its controlling interests, and the affiliates of its controlling interests:

• A bidder with attributed average annual gross revenues of not more than $15 million for the preceding three years receives a 25 percent discount on its winning bids for paging licenses;

• A bidder with attributed average annual gross revenues of not more than $3 million for the preceding three years receives a 35 percent discount on its winning bids for paging licenses.

38. Bidding credits are not cumulative; a qualifying applicant receives either the 25 percent or the 35 percent bidding credit on its winning bids, but not both.

39. To encourage the growth of wireless services in federally recognized tribal lands the Commission has implemented a tribal land bidding credit. See part V.D. of the Auction No. 48 Procedures Public Notice.

40. Controlling interest standard. On August 14, 2000, the Commission released the Part 1 Fifth Report and Order, in which the Commission, inter alia, adopted a “controlling interest” standard for attributing to auction applicants the gross revenues of their investors and affiliates in determining small business eligibility for future auctions. The Commission observed that the rule modifications adopted in the various part 1 orders would result in discrepancies and/or redundancies between certain of the new part 1 rules and existing service-specific rules, and the Commission delegated to the Bureau the authority to make conforming edits to the Code of Federal Regulations (CFR) consistent with the rules adopted in the part 1 proceeding. Part 1 rules that superseded inconsistent service-specific rules will control in Auction No. 48. Accordingly, the “controlling interest” standard as set forth in the part 1 rules will be in effect for Auction No. 48.

41. Control. The term “control” includes both de facto and de jure control of the applicant. Typically, ownership of at least 50.1 percent of an entity's voting stock evidences de jure control. De facto control is determined on a case-by-case basis. The following are some common indicia of de facto control:

• The entity constitutes or appoints more than 50 percent of the board of directors or management committee;

• The entity has authority to appoint, promote, demote, and fire senior executives that control the day-to-day activities of the licensee; or

• The entity plays an integral role in management decisions.

42. Attribution for small business eligibility. In determining which entities qualify as small businesses, the Commission will consider the gross revenues of the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests. The Commission does not impose specific equity requirements on controlling interest holders. Once the principals or entities with a controlling interest are determined, only the revenues of those principals or entities, the affiliates of those principals or entities, the applicant and its affiliates, will be counted in determining small business eligibility.

43. A consortium of small businesses is a “conglomerate organization formed as a joint venture between or among mutually independent business firms,” each of which individually must satisfy the definition of small business in §§ 1.2110(f) and 22.223(b). Thus, each consortium member must disclose its gross revenues along with those of its affiliates, its controlling interests, and the affiliates of its controlling interests. The Bureau notes that although the gross revenues of the consortium members will not be aggregated for purposes of determining eligibility for small business credits, this information must be provided to ensure that each individual consortium member qualifies for any bidding credit awarded to the consortium.

44. Applicants should note that they will be required to file supporting documentation to their FCC Form 175 short-form applications to establish that they satisfy the eligibility requirements to qualify as small businesses (or consortia of small businesses) for this auction.

45. Applicants should further note that submission of an FCC Form 175 application constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, has read the form's instructions and certifications, and that the contents of the application and its attachments are true and correct. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution.

46. Small business eligibility (Exhibit C). Entities applying to bid as small businesses (or consortia of small businesses) will be required to disclose on Exhibit C to their FCC Form 175 short-form applications, separately and in the aggregate, the gross revenues for the preceding three years of each of the following: (i) the applicant, (ii) its affiliates, (iii) its controlling interests, and (iv) the affiliates of its controlling interests. Certification that the average annual gross revenues for the preceding three years do not exceed the applicable limit is not sufficient. A statement of the total gross revenues for the preceding three years is also insufficient. The applicant must provide separately for itself, its affiliates, its controlling interests, and the affiliates of its controlling interests, a schedule of gross revenues for each of the preceding three years, as well as a statement of total average gross revenues for the three-year period. If the applicant is applying as a consortium of small businesses, this information must be provided for each consortium member.

47. Each applicant must certify on its FCC Form 175 application that it is not in default on any Commission licenses and that it is not delinquent on any non-tax debt owed to any Federal agency. In addition, each applicant must attach to its FCC Form 175 application a statement made under penalty of perjury indicating whether or not the applicant, its affiliates, its controlling interests, or the affiliates of its controlling interest have ever been in default on any Commission licenses or have ever been delinquent on any non-tax debt owed to any Federal agency. The applicant must provide such information for itself, its affiliates, its controlling interests, and the affiliates of its controlling interests, as defined by § 1.2110 of the Commission's rules (as amended in the Part 1 Fifth Report and Order). Applicants must include this statement as Exhibit D of the FCC Form 175. Prospective bidders are reminded that the statement must be made under penalty of perjury and, further, submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.

48. “Former defaulters”—i.e., applicants, including their attributable interest holders, that in the past have defaulted on any Commission licenses or been delinquent on any non-tax debt owed to any Federal agency, but that have since remedied all such defaults and cured all of their outstanding non-tax delinquencies—are eligible to bid in Auction No. 48, provided that they are otherwise qualified. However, as discussed infra in section III.D.iii, former defaulters are required to pay upfront payments that are fifty percent more than the normal upfront payment amounts.

49. Installment payment plans will not be available in Auction No. 48.

50. Applicants owned by minorities or women, as defined in 47 CFR 1.2110(c)(2), may attach an exhibit (Exhibit E) regarding this status. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of “designated entities” in its auctions. Applicants wishing to submit additional information may do so, on Exhibit F (Miscellaneous Information) to the FCC Form 175.

51. After the short-form filing deadline (March 21, 2003), applicants may make only minor changes to their FCC Form 175 applications. Applicants will not be permitted to make major modifications to their applications (e.g., change their license selections or proposed service areas, change the certifying official, change control of the applicant or change bidding credits). See 47 CFR 1.2105. Permissible minor changes include, for example, deletion and addition of authorized bidders (to a maximum of three) and revision of exhibits. Applicants must make these modifications to their FCC Form 175 electronically and should submit a letter, briefly summarizing the changes, by electronic mail to the attention of Margaret Wiener, Chief, Auctions and Industry Analysis Division, at the following address: auction48@fcc.gov. The electronic mail summarizing the changes should include a subject or caption referring to Auction No. 48. The Bureau requests that parties format any attachments to electronic mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents.

52. A separate copy of the letter should be faxed to the attention of Kathryn Garland at (717) 338-2850. Questions about other changes should be directed to Rosemary Cabral of the Auctions and Industry Analysis Division at (202) 418-0660.

53. Applicants have an obligation under 47 CFR 1.65, to maintain the completeness and accuracy of information in their short-form applications. Amendments reporting substantial changes of possible decisional significance in information contained in FCC Form 175 applications, as defined by 47 CFR 1.2105(b)(2), will not be accepted and may in some instances result in the dismissal of the FCC Form 175 application.

54. On Thursday, March 6, 2003, the FCC will sponsor a free seminar for Auction No. 48 at the Federal Communications Commission, located at 445 12th Street, SW., Washington, DC. The seminar will provide attendees with information about pre-auction procedures, conduct of the auction, the FCC Automated Auction System, and the paging and auction rules. The seminar will also provide an opportunity for prospective bidders to ask questions of FCC staff.

55. To register, complete the registration form found in Attachment B of the Auction No. 48 Procedures Public Notice and submit it by Tuesday, March 4, 2003. Registrations are accepted on a first-come, first-served basis.

56. In order to be eligible to bid in this auction, applicants must first submit a FCC Form 175 application. This application must be submitted electronically and received at the Commission no later than 6 p.m. e.t. on March 21, 2003. Late applications will not be accepted.

57. There is no application fee required when filing an FCC Form 175. However, to be eligible to bid, an applicant must submit an upfront payment. See Part III.D.

58. Applicants must file their FCC Form 175 applications electronically. Applications may generally be filed at any time beginning at noon ET on March 6, 2003, until 6 p.m. e.t. on March 21, 2003. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. Applicants may update or amend their electronic applications multiple times until the filing deadline on March 21, 2003.

59. Applicants must press the “SUBMIT Application” button on the “Submission” page of the electronic form to successfully submit their FCC Form 175s. Any form that is not submitted will not be reviewed by the FCC. Information about accessing the FCC Form 175 is included in Attachment C of the Auction No. 48 Procedures Public Notice. Technical support is available at (202) 414-1250 (voice) or (202) 414-1255 (text telephone (TTY)); hours of service Monday through Friday, from 8 a.m. to 6 p.m. e.t. In order to provide better service to the public, all calls to the hotline are recorded.

60. Applicants can also contact Technical Support via e-mail. To obtain the address, click the Support tab on the Form 175 Homepage.

61. Applicants should carefully review 47 CFR 1.2105, and must complete all items on the FCC Form 175. Instructions for completing the FCC Form 175 are in Attachment D of the Auction No. 48 Procedures Public Notice. Applicants are encouraged to begin preparing the required attachments for FCC Form 175 prior to submitting the form. Attachments C and D of the Auction No. 48 Procedures Public Notice provide information on the required attachments and appropriate formats.

62. The FCC Form 175 electronic review system may be used to locate and print applicants' FCC Form 175 information. Applicants may also view other applicants' completed FCC Form 175s after the filing deadline has passed and the FCC has issued a public notice explaining the status of the applications. Note: Applicants should not include sensitive information (i.e., TIN/EIN) on any exhibits to their FCC Form 175 applications. There is no fee for accessing this system. See Attachment C of the Auction No. 48 Procedures Public Notice for details on accessing the review system.

63. After the deadline for filing the FCC Form 175 applications has passed, the FCC will process all timely-submitted applications to determine which are acceptable for filing, and subsequently will issue a public notice identifying: (i) Those applications accepted for filing; (ii) those applications rejected; and (iii) those applications which have minor defects that may be corrected, and the deadline for filing such corrected applications.

64. As described more fully in the Commission's rules, after the March 21, 2003, short-form filing deadline, applicants may make only minor corrections to their FCC Form 175 applications. Applicants will not be permitted to make major modifications to their applications (e.g., change their license selections, change the certifying official, change control of the applicant, or change bidding credit eligibility).

65. In order to be eligible to bid in the auction, applicants must submit an upfront payment accompanied by a FCC Remittance Advice Form (FCC Form 159). After completing the FCC Form 175, filers will have access to an electronic version of the FCC Form 159 that can be printed and faxed to Mellon Bank in Pittsburgh, PA. All upfront payments must be received at Mellon Bank by 6 p.m. e.t. on April 14, 2003.

Please note that:

• All payments must be made in U.S. dollars.

• All payments must be made by wire transfer.

• Upfront payments for Auction No. 48 go to a lockbox number different from the lockboxes used in previous FCC auctions, and different from the lockbox number to be used for post-auction payments.

• Failure to deliver the upfront payment by the April 14, 2003, deadline will result in dismissal of the application and disqualification from participation in the auction.

66. Wire transfer payments must be received by 6 p.m. e.t. on April 14, 2003. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their banker several days before they plan to make the wire transfer, and allow sufficient time for the transfer to be initiated and completed before the deadline. Applicants will need the following information:

ABA Routing Number: 043000261.

Receiving Bank: Mellon Pittsburgh.

Beneficiary: FCC/Account # 910-1182.

OBI Field: (Skip one space between each information item) “Auctionpay”

FCC Registration Number (FRN): (same as FCC Form 159, block 11 and/or 21).

Payment Type Code (same as FCC Form 159, block 24A: A48U).

FCC Code 1 (same as FCC Form 159, block 28A: “48”).

Payer Name (same as FCC Form 159, block 2).

Lockbox No. # 358415.

67. Applicants must fax a completed FCC Form 159 (Revised 2/00) to Mellon Bank at (412) 209-6045 at least one hour before placing the order for the wire transfer (but on the same business day). On the cover sheet of the fax, write “Wire Transfer—Auction Payment for Auction Event No. 48.” Bidders should confirm receipt of their upfront payment at Mellon Bank by contacting their sending financial institution.

68. A completed FCC Remittance Advice Form (FCC Form 159, Revised 2/00) must be faxed to Mellon Bank in order to accompany each upfront payment. Proper completion of FCC Form 159 (Revised 2/00) is critical to ensuring correct credit of upfront payments. Detailed instructions for completion of FCC Form 159 are included in Attachment E of the Auction No. 48 Procedures Public Notice. An electronic version of the FCC Form 159 is available after filing the FCC Form 175. The FCC Form 159 can be completed electronically, but must be filed with Mellon Bank via facsimile.

69. In the Part 1 Order the Commission delegated to the Bureau the authority and discretion to determine appropriate upfront payment(s) for each auction. In addition, in the Part 1 Fifth Report and Order, the Commission ordered that “former defaulters,” i.e., applicants that have ever been in default on any Commission license or have ever been delinquent on any non-tax debt owed to any Federal agency, be required to pay upfront payments fifty percent greater than non-“former defaulters.” For purposes of this calculation, the “applicant” includes the applicant itself, its affiliates, its controlling interests, and affiliates of its controlling interests, as defined by § 1.2110 of the Commission's rules (as amended in the Part 1 Fifth Report and Order).

70. In the Auction No. 48 Comment Public Notice, the Bureau proposed that the amount of the upfront payment would determine the number of bidding units on which a bidder may place bids. In order to bid on a license, otherwise qualified bidders that applied for that license on Form 175 must have an eligibility level that meets or exceeds the number of bidding units assigned to that license. At a minimum, therefore, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one of the licenses applied for on Form 175, or else the applicant will not be eligible to participate in the auction. An applicant does not have to make an upfront payment to cover all licenses for which the applicant has applied on Form 175, but rather to cover the maximum number of bidding units that are associated with licenses on which the bidder wishes to place bids and hold high bids at any given time.

71. In the Auction No. 48 Comment Public Notice, the Bureau proposed setting upfront payments for each license equal to the license's minimum opening bid. The Bureau further proposed setting the bidding units for each license equal to the license's upfront payment on a bidding unit for dollar basis. The bidding unit level for each license will remain constant throughout the auction. The Bureau received no comments on this issue. The Bureau adopts its proposed upfront payments. The specific upfront payments and bidding units for each license are set forth in the list of licenses available for Auction No. 48 (“Attachment A”), available with the Auction No. 48 Procedures Public Notice at http://wireless.fcc.gov/auctions/48/.

72. In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to be active (bidding units associated with licenses on which the bidder has the standing high bid from the previous round and licenses on which the bidder places a bid in the current round) in any single round, and submit an upfront payment covering that number of bidding units. In order to make this calculation, an applicant should add together the upfront payments for all licenses on which it seeks to bid in any given round. Bidders should check their calculations carefully, as there is no provision for increasing a bidder's maximum eligibility after the upfront payment deadline.

73. Former defaulters should calculate their upfront payment for all licenses by multiplying the number of bidding units they wish to purchase by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit.

74. The Commission will use wire transfers for all Auction No. 48 refunds. To ensure that refunds of upfront payments are processed in an expeditious manner, the Commission is requesting that all pertinent information as listed be supplied to the FCC. Applicants can provide the information electronically during the initial short-form filing window after the form has been submitted. Wire Transfer Instructions can also be manually faxed to the FCC, Financial Operations Center, Auctions Accounting Group, ATTN: Tim Dates or Gail Glasser, at (202) 418-2843 by April 14, 2003. All refunds will be returned to the payer of record as identified on the FCC Form 159 unless the payer submits written authorization instructing otherwise. For additional information, please call Gail Glasser at (202) 418-0578 or Tim Dates at (202) 418-0496.

Name of Bank; ABA Number; Contact and Phone Number; Account Number to Credit; Name of Account Holder; FCC Registration Number (FRN); Taxpayer Identification Number; Correspondent Bank (if applicable); ABA Number; Account Number.

(Applicants should also note that implementation of the Debt Collection Improvement Act of 1996 requires the FCC to obtain a Taxpayer Identification Number (TIN) before it can disburse refunds.) Eligibility for refunds is discussed in part V.F.

75. Approximately ten days before the auction, the FCC will issue a public notice announcing all qualified bidders for the auction. Qualified bidders are those applicants whose FCC Form 175 applications have been accepted for filing and have timely submitted upfront payments sufficient to make them eligible to bid on at least one of the licenses for which they applied.

76. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by two separate overnight mailings, one containing the confidential bidder identification number (BIN) required to place bids and the other containing the SecurID cards. These mailings will be sent only to the contact person at the contact address listed in the FCC Form 175.

77. Applicants that do not receive both registration mailings will not be able to submit bids. Therefore, any qualified applicant that has not received both mailings by noon on Tuesday, May 6, 2003, should contact the Auctions Hotline at (717) 338-2888. Receipt of both registration mailings is critical to participating in the auction and each applicant is responsible for ensuring it has received all of the registration material.

78. Qualified bidders should note that lost bidder identification numbers or SecurID cards can be replaced only by appearing in person at the FCC Auction Headquarters located at 445 12th St., SW., Washington, DC 20554. Only an authorized representative or certifying official, as designated on an applicant's FCC Form 175, may appear in person with two forms of identification (one of which must be a photo identification) in order to receive replacement codes. Qualified bidders requiring replacements must call technical support prior to arriving at the FCC.

79. The Commission will conduct this auction over the Internet. Telephonic bidding will also be available. As a contingency, the FCC Wide Area Network will be available as well. Qualified bidders are permitted to bid electronically or telephonically, i.e., over the Internet or the FCC's Wide Area Network. In either case, each authorized bidder must have its own Remote Security Access SecurID card, which the FCC will provide at no charge. Each applicant with less than three authorized bidders will be issued two SecurID cards, while applicants with three authorized bidders will be issued three cards. For security purposes, the SecurID cards and the FCC Automated Auction System user manual are only mailed to the contact person at the contact address listed on the FCC Form 175. Please note that each SecurID card is tailored to a specific auction, therefore, SecurID cards issued for other auctions or obtained from a source other than the FCC will not work for Auction No. 48. The telephonic bidding phone number will be supplied in the first overnight mailing, which also includes the confidential bidder identification number. Each applicant should indicate its bidding preference—electronic or telephonic—on the FCC Form 175.

80. Please note that the SecurID cards can be recycled, and the Bureau encourages bidders to return the cards to the FCC. The Bureau will provide pre-addressed envelopes that bidders may use to return the cards once the auction is over.

81. All qualified bidders will be eligible to participate in a mock auction on Thursday, May 8, 2003. The mock auction will enable applicants to become familiar with the FCC Automated Auction System prior to the auction. Participation by all bidders is strongly recommended. Details will be announced by public notice.

82. The first round of bidding for Auction No. 48 will begin on Tuesday, May 13, 2003. The initial bidding schedule will be announced in a public notice listing the qualified bidders, which is released approximately 10 days before the start of the auction.

83. In the Auction No. 48 Comment Public Notice, we proposed to award all licenses in Auction No. 48 in a simultaneous multiple round auction. The Bureau received no comments on this issue. The Bureau concludes that it is operationally feasible and appropriate to auction the paging licenses through a simultaneous multiple round auction. Unless otherwise announced, bids will be accepted on all licenses in each round of the auction. This approach, the Bureau believes, allows bidders to take advantage of any synergies that exist among licenses and is administratively efficient.

84. In the Auction No. 48 Comment Public Notice, the Bureau proposed that the amount of the upfront payment submitted by a bidder would determine the initial maximum eligibility (as measured in bidding units) for each bidder. The Bureau received no comments on this issue.

85. For Auction No. 48, the Bureau adopts this proposal. The amount of the upfront payment submitted by a bidder determines the number of bidding units on which a bidder may place bids. Note again that each license is assigned a specific number of bidding units equal to the upfront payment, listed in the license inventory available for Auction No. 48 (“Attachment A”), available with the Auction No. 48 Procedures Public Notice at http://wireless.fcc.gov/auctions/48/, on a bidding unit per dollar basis. The total upfront payment defines the maximum number of bidding units on which the applicant will be permitted to bid and hold high bids during any given round. As there is no provision for increasing a bidder's eligibility after the upfront payment deadline, prospective bidders are cautioned to calculate their upfront payments carefully. The total upfront payment does not affect the total dollar amount a bidder may bid on any given license.

86. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until the end before participating. Bidders are required to be active on a specific percentage of their current eligibility during each round of the auction.

87. A bidder's activity level in a round is the sum of the bidding units associated with licenses on which the bidder is active. A bidder is considered active on a license in the current round if it is either the high bidder at the end of the previous bidding round and does not withdraw the high bid in the current round, or if it submits a bid in the current round (see “Bid Increments and Minimum Acceptable Bids” in Part IV.B.(iii)). The minimum required activity is expressed as a percentage of the bidder's current bidding eligibility, and increases by stage as the auction progresses. Because these procedures have proven successful in maintaining the pace of previous auctions (as set forth under “Auction Stages” in part IV.A.iii and “Stage Transitions” in part IV.A.iv), we adopt them for Auction No. 48.

88. In the Auction No. 48 Comment Public Notice, the Bureau proposed to conduct the auction in three stages and employ an activity rule. The Bureau further proposed that, in each round of Stage One, a bidder desiring to maintain its current eligibility would be required to be active on licenses encompassing at least 80 percent of its current bidding eligibility. In each round of Stage Two, a bidder desiring to maintain its current eligibility would be required to be active on at least 90 percent of its current bidding eligibility. Finally, the Bureau proposed that a bidder in Stage Three, in order to maintain its current eligibility, would be required to be active on 98 percent of its current eligibility. The Bureau received no comments on this proposal.

89. The Bureau will adopt its proposals for the activity rules. Listed are the activity levels for each stage of the auction. The FCC reserves the discretion to further alter the activity percentages before and/or during the auction.

Stage One: During the first stage of the auction, a bidder desiring to maintain its current eligibility will be required to be active on licenses that represent at least 80 percent of its current bidding eligibility in each bidding round. Failure to maintain the required activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding (unless an activity rule waiver is used). During Stage One, reduced eligibility for the next round will be calculated by multiplying the bidder's current activity (the sum of bidding units of the bidder's standing high bids and bids during the current round) by five-fourths (5/4).

Stage Two: During the second stage of the auction, a bidder desiring to maintain its current eligibility is required to be active on 90 percent of its current bidding eligibility. Failure to maintain the required activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding (unless an activity rule waiver is used). During Stage Two, reduced eligibility for the next round will be calculated by multiplying the bidder's current activity (the sum of bidding units of the bidder's standing high bids and bids during the current round) by ten-ninths (10/9).

Stage Three: During the third stage of the auction, a bidder desiring to maintain its current eligibility is required to be active on 98 percent of its current bidding eligibility. Failure to maintain the required activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding (unless an activity rule waiver is used). In this stage, reduced eligibility for the next round will be calculated by multiplying the bidder's current activity (the sum of bidding units of the bidder's standing high bids and bids during the current round) by fifty-forty ninths (50/49).

Caution: Since activity requirements increase in each auction stage, bidders must carefully check their current activity during the bidding period of the first round following a stage transition. This is especially critical for bidders that have standing high bids and do not plan to submit new bids. In past auctions, some bidders have inadvertently lost bidding eligibility or used an activity rule waiver because they did not re-verify their activity level at stage transitions. Bidders may check their activity against the required activity level by using the bidding system's bidding module.

90. Because the foregoing procedures have proven successful in maintaining proper pace in previous auctions, the Bureau adopts them for Auction No. 48.

91. In the Auction No. 48 Comment Public Notice, the Bureau proposed that the auction would generally advance to the next stage (i.e., from Stage One to Stage Two, and from Stage Two to Stage Three) when the auction activity level, as measured by the percentage of bidding units receiving new high bids, is below 20 percent for three consecutive rounds of bidding in each Stage. The Bureau further proposed that it would retain the discretion to change stages unilaterally by announcement during the auction. This determination, the Bureau proposed, would be based on a variety of measures of bidder activity, including, but not limited to, the auction activity level, the percentages of licenses (as measured in bidding units) on which there are new bids, the number of new bids, and the percentage increase in revenue. The Bureau received no comments on this subject.

92. The Bureau adopts its proposal. Thus, the auction will start in Stage One and will advance to the next stage (i.e., from Stage One to Stage Two, and from Stage Two to Stage Three) when, in each of three consecutive rounds of bidding, the high bid has increased on 20 percent or less of the licenses being auctioned (as measured in bidding units). In addition, the Bureau will retain the discretion to regulate the pace of the auction by announcement. This determination will be based on a variety of measures of bidding activity, including, but not limited to, the auction activity level, the percentages of licenses (as measured in bidding units) on which there are new bids, the number of new bids, and the percentage increase in revenue. The Bureau believes that these stage transition rules, having proven successful in prior auctions, are appropriate for use in Auction No. 48.

93. In the Auction No. 48 Comment Public Notice, the Bureau proposed that each bidder in the auction would be provided five activity rule waivers. Bidders may use an activity rule waiver in any round during the course of the auction. The Bureau received no comments on this subject.

94. Based upon our experience in previous auctions, the Bureau adopts its proposal that each bidder be provided five activity rule waivers that may be used in any round during the course of the auction. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required level. An activity rule waiver applies to an entire round of bidding and not to a particular license. The Bureau is satisfied that its practice of providing five waivers over the course of the auction provides a sufficient number of waivers and flexibility to the bidders, while safeguarding the integrity of the auction.

95. The Automated Auction System assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any round where a bidder's activity level is below the minimum required unless: (i) There are no activity rule waivers available; or (ii) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the required activity level. If a bidder has no waivers remaining and does not satisfy the required activity level, the current eligibility will be permanently reduced, possibly eliminating the bidder from the auction.

96. A bidder with insufficient activity that wants to reduce its bidding eligibility rather than use an activity rule waiver must affirmatively override the automatic waiver mechanism during the round by using the “reduce eligibility” function in the bidding system. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described in “Auction Stages” (see part IV.A.iii). Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility.

97. Finally, a bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the proactive waiver function in the Automated Auction System) during a round in which no bids are submitted, the auction will remain open and the bidder's eligibility will be preserved. However, an automatic waiver triggered during a round in which there are no new bids or withdrawals will not keep the auction open.

98. For Auction No. 48, the Bureau proposed to employ a simultaneous stopping rule approach. The Bureau also sought comment on a modified version of the stopping rule. The modified version of the stopping rule would close the auction for all licenses after the first round in which no bidder submits a proactive waiver, a withdrawal, or a new bid on any license on which it is not the standing high bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the standing high bidder would not keep the auction open under this modified stopping rule.

99. The Bureau further proposed retaining the discretion to keep the auction open even if no new acceptable bids or proactive waivers are submitted and no previous high bids are withdrawn in a round. In this event, the effect will be the same as if a bidder had submitted a proactive waiver. Thus, the activity rule will apply as usual, and a bidder with insufficient activity will either use an activity rule waiver (if it has any left) or lose bidding eligibility.

100. In addition, the Bureau proposed that it reserve the right to declare that the auction will end after a designated number of additional rounds (“special stopping rule”). If the Bureau invokes this special stopping rule, it will accept bids in the final round(s) only for licenses on which the high bid increased in at least one of the preceding specified number of rounds. The Bureau proposed to exercise this option only in circumstances such as where the auction is proceeding very slowly, where there is minimal overall bidding activity or where it appears likely that the auction will not close within a reasonable period of time. Before exercising this option, the Bureau is likely to attempt to increase the pace of the auction by, for example, moving the auction into the next stage (where bidders will be required to maintain a higher level of bidding activity), increasing the number of rounds per day and/or adjusting the minimum acceptable bids and bid increments for the licenses.

101. The Bureau received no comments concerning the auction stopping rules; therefore, it adopts the proposals. Auction No. 48 will begin under the simultaneous stopping rule, and the Bureau will retain the discretion to invoke the other versions of the stopping rule. The Bureau believes that these stopping rules are most appropriate for Auction No. 48, because its experience in prior auctions demonstrates that the auction stopping rules balance the interests of administrative efficiency and maximum bidder participation.

102. In the Auction No. 48 Comment Public Notice, the Bureau proposed that, by public notice or by announcement during the auction, the Bureau may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair conduct of competitive bidding.

103. Because this approach has proven effective in resolving exigent circumstances in previous auctions, the Bureau adopts its proposed auction cancellation rules. By public notice or by announcement during the auction, the Bureau may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and competitive conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. The Bureau emphasizes that exercise of this authority is solely within the discretion of the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers.

104. The initial bidding schedule will be announced in the public notice listing the qualified bidders, which is released approximately 10 days before the start of the auction. Each bidding round is followed by the release of the round results. Multiple bidding rounds may be conducted in a given day. Details regarding round results formats and locations will also be included in the qualified bidders public notice.

105. The FCC has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors.

106. Background. The Balanced Budget Act calls upon the Commission to prescribe methods by which a reasonable reserve price will be required or a minimum opening bid established when FCC licenses are subject to auction (i.e., because they are mutually exclusive), unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction. Among other factors, the Bureau should consider the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, the extent of interference with other spectrum bands, and any other relevant factors that could have an impact on the spectrum being auctioned. The Commission concluded that the Bureau should have the discretion to employ either or both of these mechanisms for future auctions.

107. In the Auction No. 48 Comment Public Notice, the Bureau proposed to establish minimum opening bids for Auction No. 48 and to retain discretion to lower the minimum opening bids. Specifically, for Auction No. 48, the Bureau proposed the following formula for minimum opening bids:

• For a license being auctioned by MEA, the minimum opening bid will be 20% of the average gross high bid received in Auction No. 40 in the same MEA and the same band.

• For a license being auctioned by EA, the minimum opening bid will be 20% of the average gross high bid received in Auction No. 40 in the same EA and the same band.

108. The Bureau will set a “floor” for minimum opening bids at $500 for licenses in both the upper paging bands (929-931 MHz) and the lower paging bands (35 MHz, 43 MHz, 152 and 158 MHz, 454 MHz and 459 MHz, 929 MHz, 931 MHz).

109. In the alternative, the Bureau sought comment on whether, consistent with the Balanced Budget Act, the public interest would be served by having no minimum opening bid or reserve price. The Bureau received one comment regarding this issue, suggesting that there be no minimum bid on all licenses that remain unsold from a previous auction.

110. After reviewing the comment, the Bureau has concluded that it should adopt its original proposal and the minimum opening bids listed in the Auction No. 48 Comment Paging Notice. The Bureau believes that the use of minimum opening bids is in the public interest because parties unable or unwilling to make proposed minimum opening bids most likely will be unable or unwilling to use the licenses to provide service to the public. The Bureau has concluded that the proposed absolute minimum opening bid of $500 will not impede any party willing and able to use the license to provide paging service. Under the Commission's current rules, the filing fee for a new paging service license or to make major modifications to an existing paging service license is $325. This fee is waived for applicants that obtained licenses through the auction process. Finally, small businesses qualifying for a thirty-five percent (35%) bidding credit and winning a lower paging bands license for the minimum opening bid of $500 will have to pay $325 for the license. Thus, even absent an auction, service providers would have to meet costs comparable to the proposed absolute minimum opening bids in order to obtain a license.

111. The Bureau will adopt minimum opening bids for Auction No. 48, that are reducible at the discretion of the Bureau. The Bureau emphasizes, however, that such discretion will be exercised, if at all, sparingly and early in the auction, i.e., before bidders lose all waivers and begin to lose substantial eligibility. During the course of the auction, the Bureau will not entertain requests to reduce the minimum opening bid on specific licenses.

112. The specific minimum opening bid for each license available in Auction No. 48 is set forth in the list of licenses provided in electronic format as the Auction No. 48 Procedures Public Notice at http://wireless.fcc.gov/auctions/48/.

113. In the Auction No. 48 Comment Public Notice, the Bureau proposed to set the minimum acceptable bid as the minimum opening bid or the standing high bid plus the defined increment. Eligible bidders will be able to place bids on a given license in any of nine different amounts. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. In the rounds after a bid is placed on a license, the minimum acceptable bid for that license will be equal to the standing high bid plus the defined increment. With respect to calculating the defined increment, the Bureau proposed basing the defined increment on a percentage of the standing high bid or, if no standing high bid had been placed, on a percentage of the minimum opening bid. The Bureau proposed that at the outset of the auction, it would use twenty percent of the standing high bid or minimum opening bid to calculate the increment. The Bureau further proposed to retain the discretion to change the percentage used to calculate the defined increment if circumstances so dictate and to set a floor for the increment used to calculate the minimum acceptable bid at an absolute dollar amount. Finally, the Bureau proposed that it have discretion to use a smaller percentage to calculate the increment used in setting acceptable bids higher than the minimum acceptable bid. In all other respects, such as rounding, the smaller defined increment would be calculated in the same manner as the defined increment used to set the minimum acceptable bid.

114. For Auction No. 48, the Bureau proposed to use a fixed 20 percent bid increment. This means that the minimum acceptable bid for a license will be approximately 20 percent greater than the previous standing high bid received on the license. The minimum acceptable bid amount will be calculated by multiplying the standing high bid times one plus the fixed percentage—i.e., minimum acceptable bid amount = (standing high bid) * (1.20){rounded}. The Bureau will round the result using its standard rounding procedure for minimum acceptable bid calculations: Results above $10,000 are rounded to the nearest $1,000; results below $10,000 but above $1,000 are rounded to the nearest $100; and results below $1,000 are rounded to the nearest $10.

115. At the start of the auction and until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. Corresponding additional bid amounts will be calculated using bid increments defined as the difference between the minimum opening bid times one plus the percentage increment, rounded as described, and the minimum opening bid—i.e., bid increment = (minimum opening bid)(1 + percentage increment){rounded}—(minimum opening bid). At the start of the auction and until a bid has been placed on a license, the nine acceptable bid amounts for each license consist of the minimum opening bid and additional amounts are calculated using multiple bid increments (i.e., the second bid amount equals the minimum opening bid plus the bid increment, the third bid amount equals the minimum opening bid plus two times the bid increment, etc.).

Example bid amount calculation for licenses at the start of the auction and without standing high bids:

116. Once there is a standing high bid on the license, the Automated Auction System will calculate a minimum acceptable bid for that license for the following round, as described. The difference between the minimum acceptable bid and the standing high bid for each license will define the bid increment—i.e., bid increment = (minimum acceptable bid) − (standing high bid). The nine acceptable bid amounts for each license consist of the minimum acceptable bid (the standing high bid plus one bid increment) and additional amounts calculated using multiple bid increments (i.e., the second bid amount equals the standing high bid plus two times the bid increment, the third bid amount equals the standing high bid plus three times the bid increment, etc.).

Example bid amount calculation for a license with standing high bids:

117. The Bureau retains the discretion to change the minimum acceptable bids and bid increments and the methodology for determining the minimum acceptable bids and bid increments if it determines circumstances so dictate. The Bureau will do so by announcement in the FCC Automated Auction System. The Bureau may also use its discretion to adjust the minimum bid increment without prior notice if circumstances warrant.

118. The Bureau will adopt its proposals contained in the Auction No. 48 Comment Public Notice. In doing so, the Bureau will retain the discretion to set the percentages being used. Advance notice of the Bureau's decision to exercise its discretion with regard to acceptable bids in any manner will be announced via the Automated Auction System.

119. At the end of each bidding round, the high bids will be determined based on the highest gross bid amount of the bids received for each license.

120. In the Auction No. 48 Comment Public Notice, the Bureau proposed to use a random number generator to select a high bid in the event of identical high bids on a license in a given round (i.e., tied bids). A random number will be assigned to each bid. The tied bid having the highest random number will become the standing high bid. The remaining bidders, as well as the high bidder, will be able to submit a higher bid in a subsequent round. If no bidder submits a higher bid in a subsequent round, the high bid from the previous round will win the license. If any bids are received on the license in a subsequent round, the high bid will once again be determined on the highest gross bid amount received for the license. The Bureau received no comments on this issue. Therefore, the Bureau adopts its proposal.

121. During a round, a bidder may submit bids for as many licenses as it wishes (subject to its eligibility), withdraw high bids from previous bidding rounds, remove bids placed in the same bidding round, or permanently reduce eligibility. Bidders also have the option of making multiple submissions and withdrawals in each round. If a bidder submits multiple bids for a single license in the same round, the system takes the last bid entered as that bidder's bid for the round. Bidders should note that the bidding units associated with licenses for which the bidder has removed or withdrawn its bid do not count towards the bidder's activity at the close of the round.

122. Please note that all bidding will take place remotely either through the Automated Auction System or by telephonic bidding. (Telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are therefore reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. Normally, five to 10 minutes are necessary to complete a bid submission. Due to the large number of licenses in Auction No. 48, bidders may require more time to submit their bids than in past auctions.) There will be no on-site bidding during Auction No. 48.

123. A bidder's ability to bid on specific licenses in the first round of the auction is determined by two factors: (i) the licenses applied for on FCC Form 175 and (ii) the upfront payment amount deposited. The bid submission screens will allow bidders to submit bids on only those licenses for which the bidder applied on its FCC Form 175.

124. In order to access the bidding functions of the Automated Auction System, bidders must be logged in during the bidding round using the bidder identification number provided in the registration materials, and the generated SecurID code. Bidders are strongly encouraged to print bid confirmations for each round after they have completed all of their activity for that round.

125. In each round, eligible bidders will be able to place bids on a given license in any of nine different amounts. For each license, the Automated Auction System interface will list the nine acceptable bid amounts in a drop-down box. Bidders may use the drop-down box to select from among the nine acceptable bid amounts. The Automated Auction System also includes an import function that allows bidders to upload text files containing their bid information.

126. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. In the rounds after an acceptable bid is placed on a license, the minimum acceptable bid for that license will be equal to the standing high bid plus the defined increment.

127. As detailed, for each license in Auction No. 48, the defined increment for the minimum acceptable bid is based on a percentage of the standing high bid on the license or, if no bid has been placed on the license, a percentage of the minimum opening bid for the license. Presuming, for example, that the percentage being used is 20 percent—the initial value at the start of the auction—and the standing high bid for a license is $10,000, the minimum acceptable bid will be $12,000.

128. In addition, the Bureau proposed discretion to use a smaller defined increment to calculate acceptable bids higher than the minimum acceptable bid. The smaller defined increment would be calculated using a smaller percentage than the percentage used to calculate the defined increment that sets the minimum acceptable bid. For example, 20 percent might be used to calculate the defined increment for the minimum acceptable bid and 10 percent might be used to calculate the smaller defined increment used to calculate higher acceptable bids. In all other respects, the smaller defined increment would be calculated in exactly the manner described for the initial defined increment, including rounding. In this case, for the example in which the standing high bid for a license is $10,000 and the minimum acceptable bid is $12,000, the values for the minimum acceptable bid and higher amounts will be calculated as follows:

129. This procedure would enable bidders unwilling to raise the standing high bid by twice the defined increment to place bids higher than the minimum acceptable bid. Thus, in the example, a bidder wanting to bid above the minimum acceptable bid but unwilling to raise the standing high bid of $10,000 by twice the defined increment of $2,000 ($4,000 or 40 percent) would have the flexibility to bid $13,000, raising the standing high bid by $3,000. In the case of a license for which the standing high bid has been withdrawn, the minimum acceptable bid will equal the second highest bid received for the license. The additional bid amounts are calculated using the defined increment, as stated. The Bureau will adopt these proposals for Auction No. 48.

130. Finally, bidders are cautioned in selecting their bid amounts because, as explained in the following section, bidders who withdraw a standing high bid from a previous round, even if mistakenly or erroneously made, are subject to bid withdrawal payments.

131. In the Auction No. 48 Comment Public Notice, the Bureau proposed bid removal and bid withdrawal procedures. With respect to bid withdrawals, the Bureau proposed limiting each bidder to withdrawals in no more than two rounds during the course of the auction. The two rounds in which withdrawals are utilized, the Bureau proposed, would be at the bidder's discretion. The Bureau received no comments on this issue.

132. Procedures. Before the close of a bidding round, a bidder has the option of removing any bids placed in that round. By using the “remove bid” function in the bidding system, a bidder may effectively “unsubmit” any bid placed within that round. A bidder removing a bid placed in the same round is not subject to withdrawal payments. Removing a bid will affect a bidder's activity for the round in which it is removed, i.e., a bid that is subsequently removed does not count toward the bidder's activity requirement. This procedure, about which the Bureau received no comments, will enhance bidder flexibility during the auction. Therefore, the Bureau will adopt these procedures for Auction No. 48.

133. Once a round closes, a bidder may no longer remove a bid. However, in later rounds, a bidder may withdraw standing high bids from previous rounds using the withdraw bid function in the Automated Auction System (assuming that the bidder has not exhausted its withdrawal allowance). A high bidder that withdraws its standing high bid from a previous round during the auction is subject to the bid withdrawal payments specified in 47 CFR 1.2104(g).

134. In previous auctions, the Bureau has detected bidder conduct that, arguably, may have constituted strategic bidding through the use of bid withdrawals. While the Bureau continues to recognize the important role that bid withdrawals play in an auction, i.e., reducing risk associated with efforts to secure various licenses in combination, it concludes that, for Auction No. 48, adoption of a limit on their use to two rounds per bidder is the most appropriate outcome. By doing so the Bureau believes it strikes a reasonable compromise that will allow bidders to use withdrawals. The Bureau's decision on this issue is based upon our experience in prior auctions, particularly the PCS D, E and F block auctions, and 800 MHz SMR auction, and is in no way a reflection of its view regarding the likelihood of any speculation or “gaming” in this auction.

135. The Bureau will therefore limit the number of rounds in which each bidder may place withdrawals to two rounds. These rounds will be at the bidder's discretion, and there will be no limit on the number of bids that may be withdrawn in either of these rounds. Withdrawals during the auction will still be subject to the bid withdrawal payments specified in 47 CFR 1.2104(g). Bidders should note that abuse of the Commission's bid withdrawal procedures could result in the denial of the ability to bid on a market.

136. If a high bid is withdrawn, the minimum acceptable bid will equal the second highest bid received for the license, which may be less than, or equal to, in the case of tied bids, the amount of the withdrawn bid. To set the additional bid amounts, the second highest bid also will be used in place of the standing high bid in the formula used to calculate bid increments. The Commission will serve as a “place holder” high bidder on the license until a new bid is submitted on that license.

137. Calculation. Generally, the Commission imposes payments on bidders that withdraw high bids during the course of an auction. If a bidder withdraws its bid and there is no higher bid in the same or subsequent auction(s), the bidder that withdrew its bid is responsible for the difference between its withdrawn bid and the net high bid in the same or subsequent auction(s). In the case of multiple bid withdrawals on a single license, within the same or subsequent auctions(s), the payment for each bid withdrawal will be calculated based on the sequence of bid withdrawals and the amounts withdrawn. No withdrawal payment will be assessed for a withdrawn bid if either the subsequent winning bid or any of the intervening subsequent withdrawn bids, in either the same or subsequent auctions(s), equals or exceeds that withdrawn bid. Thus, a bidder that withdraws a bid will not be responsible for any withdrawal payments if there is a subsequent higher bid in the same or subsequent auction(s). This policy allows bidders most efficiently to allocate their resources as well as to evaluate their bidding strategies and business plans during an auction while, at the same time, maintaining the integrity of the auction process. The Bureau retains the discretion to scrutinize multiple bid withdrawals on a single license for evidence of anti-competitive strategic behavior and take appropriate action when deemed necessary.

138. In the Part 1 Fifth Report and Order, the Commission modified § 1.2104(g)(1) of the rules regarding assessments of interim bid withdrawal payments. As amended, § 1.2104(g)(1) provides that in instances in which bids have been withdrawn on a license that is not won in the same auction, the Commission will assess an interim withdrawal payment equal to 3 percent of the amount of the withdrawn bids. The 3 percent interim payment will be applied toward any final bid withdrawal payment that will be assessed after subsequent auction of the license. Assessing an interim bid withdrawal payment ensures that the Commission receives a minimal withdrawal payment pending assessment of any final withdrawal payment. The Part 1 Fifth Report and Order provides specific examples showing application of the bid withdrawal payment rule

139. In the Auction No. 48 Comment Public Notice, the Bureau proposed disclosing all information relating to the bids during Auction No. 48 after each round of bidding closes, including all bids and withdrawals placed in each round, the identity of the bidder placing each bid or withdrawal, and the net and gross amounts of each bid or withdrawal. Accordingly, the Bureau will adopt the proposal in the Auction No. 48 Comment Public Notice.

140. Bids placed during a round will not be published until the conclusion of that bidding period. After a round closes, the Bureau will compile reports of all bids placed, bids withdrawn, current high bids, new minimum acceptable bids, and bidder eligibility status (bidding eligibility and activity rule waivers), and post the reports for public access. Reports reflecting bidders' identities and bidder identification numbers for Auction No. 48 will be available before and during the auction. Thus, bidders will know in advance of this auction the identities of the bidders against which they are bidding.

141. The FCC will use auction announcements to announce items such as schedule changes and stage transitions. All FCC auction announcements will be available by clicking a link on the Automated Auction System.

142. As noted in part II.H., after the short-form filing deadline, applicants may make only minor changes to their FCC Form 175 applications. For example, permissible minor changes include deletion and addition of authorized bidders (to a maximum of three) and certain revision of exhibits. Applicants must make these modifications to their FCC Form 175 electronically and submit a letter, briefly summarizing the changes, by electronic mail to the attention of Margaret Wiener, Chief, Auctions and Industry Analysis Division at the following address: auction48@fcc.gov. The electronic mail summarizing the changes should include a subject or caption referring to Auction No. 48. The Bureau requests that parties format any attachments to electronic mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents.

143. A separate copy of the letter should be faxed to the attention of Kathryn Garland at (717) 338-2850. Questions about other changes should be directed to Rosemary Cabral of the Auctions and Industry Analysis Division at (202) 418-0660.

144. After bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying winning bidders, down payments and any withdrawn bid payments due.

145. Within 10 business days after release of the auction closing notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Government to 20 percent of its net winning bids (actual bids less any applicable small business bidding credits). See 47 CFR 1.2107(b). In addition, by the same deadline all bidders must pay any bid withdrawal payments due under 47 CFR 1.2104(g), as discussed in “Bid Removal and Bid Withdrawal,” Part IV.B.vi. (Upfront payments are applied first to satisfy any withdrawn bid liability, before being applied toward down payments.)

146. On June 8, 2000, the Commission awarded Qualcomm, Inc. a transferable Auction Discount Voucher (“ADV”) in the amount of $125,273,878.00. This ADV may be used by Qualcomm or its transferee, in whole or in part, to adjust a winning bid in any spectrum auction prior to June 8, 2003, subject to terms and conditions set forth in the Commission's Order. Qualcomm transferred $10,848,000.00 of the ADV to a winning bidder in FCC Auction No. 35 and the transferee used its portion of the ADV to pay a portion of one of its winning bids in Auction No. 35. The remaining portion of Qualcomm's ADV could be used to adjust winning bids in another FCC auction, including Auction No. 48.

147. Within 10 business days after release of the auction closing notice, winning bidders must electronically submit a properly completed long-form application (FCC Form 601) and required exhibits for each license won through Auction No. 48. Winning bidders that are small businesses must include an exhibit demonstrating their eligibility for small business bidding credits. See 47 CFR 1.2112(b), 24.709(c)(2)(i). Further filing instructions will be provided to auction winners at the close of the auction.

148. A winning bidder that intends to use its license(s) to deploy facilities and provide services to federally-recognized tribal lands that are unserved by any telecommunications carrier or that have a telephone service penetration rate equal to or below 70 percent is eligible to receive a tribal land bidding credit as set forth in 47 CFR 1.2107 and 1.2110(f). A tribal land bidding credit is in addition to, and separate from, any other bidding credit for which a winning bidder may qualify.

149. Unlike other bidding credits that are requested prior to the auction, a winning bidder applies for the tribal land bidding credit after winning the auction when it files its long-form application (FCC Form 601). When filing the long-form application, the winning bidder will be required to advise the Commission whether it intends to seek a tribal land bidding credit, for each market won in the auction, by checking the designated box(es). After stating its intent to seek a tribal land bidding credit, the applicant will have 90 days from the close of the long-form filing window to amend its application to select the specific tribal lands to be served and provide the required tribal government certifications. Licensees receiving a tribal land bidding credit are subject to performance criteria as set forth in 47 CFR 1.2110(f).

150. For additional information on the tribal land bidding credit, including how the amount of the credit is calculated, applicants should review the Commission's rule making proceeding regarding tribal land bidding credits and related public notices. Relevant documents can be viewed on the Commission's web site by going to http://wireless.fcc.gov/auctions and clicking on the Tribal Land Credits link.

151. Any winning bidder that defaults or is disqualified after the close of the auction (i.e., fails to remit the required down payment within the prescribed period of time, fails to submit a timely long-form application; fails to make full payment, or is otherwise disqualified) will be subject to the payments described in 47 CFR 1.2104(g)(2). In such event the Commission may re-auction the license or offer it to the next highest bidder (in descending order) at its final bid. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing licenses held by the applicant.

152. All applicants that submitted upfront payments but were not winning bidders for a license in Auction No. 48 may be entitled to a refund of their remaining upfront payment balance after the conclusion of the auction. No refund will be made unless there are excess funds on deposit from that applicant after any applicable bid withdrawal payments have been paid. All refunds will be returned to the payer of record, as identified on the FCC 159, unless the payer submits written authorization instructing otherwise.

153. Bidders that drop out of the auction completely may be eligible for a refund of their upfront payments before the close of the auction. Qualified bidders that have exhausted all of their activity rule waivers, have no remaining bidding eligibility, and have not withdrawn a high bid during the auction must submit a written refund request. If you have completed the refund instructions electronically, then only a written request for the refund is necessary. If not, the request must also include wire transfer instructions, Taxpayer Identification Number (TIN) and FCC Registration Number (FRN). Send refund request to: Federal Communications Commission, Financial Operations Center, Auctions Accounting Group, Gail Glasser or Tim Dates, 445 12th Street, SW, Room 1-C863, Washington, DC 20554.

154. Bidders are encouraged to file their refund information electronically using the refund information portion of the FCC Form 175, but bidders can also fax their information to the Auctions Accounting Group at (202) 418-2843. Once the information has been approved, a refund will be sent to the party identified in the refund information.

This is a summary of the Auction No. 49 Comment Public Notice released on January 30, 2003. The complete text of the Auction No. 49 Comment Public Notice 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. The Auction No. 49 Comment Public Notice 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.

1. By the Auction No. 49 Comment Public Notice, the Wireless Telecommunications Bureau (“Bureau”) announces that the auction of licenses in the MVDDS previously scheduled to commence on August 6, 2003 (“Auction No. 53”) has been rescheduled for June 25, 2003. The Auction No. 49 Comment Public Notice seeks comment on specific terms and conditions of this auction. The key dates are listed:

Auction Seminar: May 1, 2003.

Short Form Deadline: May 12, 2003.

Upfront Payment Deadline: May 30, 2003.

Mock Auction: June 20, 2003.

Auction Begins: June 25, 2003.

2. Auction No. 53 will offer one block of unpaired spectrum in the 12.2-12.7 GHz band. MVDDS licensees may use this spectrum for any digital fixed one-way non-broadcast service including direct-to-home/office wireless service.1 Mobile and aeronautical services are not authorized. Two-way services may be provided by using other spectrum or media for the return or upstream path.2

3. In the MVDDS Second Report and Order, 67 FR 43031 (June 26, 2002), the Commission adopted Component Economic Areas (“CEAs”) as the geographic licensing areas for this service. CEAs are based on Economic Areas delineated by the United States Department of Commerce. There are a total of 354 CEAs and FCC-defined CEA-like service areas that encompass the United States, American Samoa, Guam, the Northern Mariana Islands, San Juan (Puerto Rico), Mayaguez/Aguadilla-Ponce (Puerto Rico), and the United States Virgin Islands. The 354 CEA service areas are based on the 348 Component Economic Areas delineated by the Regional Economic Analysis Division, Bureau of Economic Analysis, U.S. Department of Commerce, February 1995, with the following six FCC-defined service area additions: American Samoa, Guam, the Northern Mariana Islands, San Juan (Puerto Rico), Mayaguez/Aguadilla-Ponce (Puerto Rico), and the United States Virgin Islands. County definitions for the 348 U.S. Department of Commerce Component Economic Areas can be obtained from a file posted on the internet at http://www.fcc.gov/oet/info/maps/areas/ via the link labeled “CEA DATA.” (This link is to a compressed file (ceadata.zip) that includes the text file Eacodes.fin. The Eacodes.fin file includes county, metro area, Component Economic Area, and Economic Area codes for each county, and alphabetic names for all counties, Component Economic Areas, and Economic Areas.)

4. The Commission has before it petitions for reconsideration of the MVDDS Second Report and Order, and a pleading filed in response to these petitions that urges the Commission, inter alia, to reconsider its decision to use CEAs and instead use Designated Market Areas (“DMAs”) as the geographic licensing areas. DMAs have been developed by Nielsen Media Research (“Nielsen”) utilizing audience survey information from cable and non-cable households to determine the assignment of counties to local television markets.3 There are a total of 214 DMAs and FCC-defined DMA-like service areas that encompass the United States, Guam and the Northern Mariana Islands, Puerto Rico and the United States Virgin Islands, and American Samoa.

5. The 214 service areas are based on the 210 DMAs delineated by Nielsen in its publication entitled “U.S. Television Household Estimates” dated September 2002 plus the following four FCC-defined service area additions: Alaska—Balance of State (all geographic areas of Alaska not included in Nielsen's three DMAs for the state: Anchorage, Fairbanks, and Juneau), Guam and the Northern Mariana Islands, Puerto Rico and the United States Virgin Islands, and American Samoa. While most DMAs consist of one contiguous geographic area, a few are composed of multiple noncontiguous areas.

6. To minimize any delay in the auction process that might result from a decision by the Commission to change the MVDDS geographic license areas, the Bureau seeks comment on reserve prices, minimum opening bids, and other auction procedures as they would apply to an auction of either CEA licenses or DMA licenses. With respect to licenses for the 210 DMAs developed by Nielsen, the Bureau seeks comment on reserve prices, minimum opening bids, and other auction procedures as they would apply to DMAs as defined in Nielsen's publication entitled “U.S. Television Household Estimates” dated September 2002.4

7. As discussed, the Bureau proposes to use the same auction rules and procedures for an auction of MVDDS licenses whether the licenses are based on CEAs or DMAs, but it proposes different upfront payments and minimum opening bids for each of these geographic licensing areas.

8. A complete list of the CEA licenses that are available for Auction No. 53 is included in Attachment A of the Auction No. 49 Comment Public Notice. Attachment B of the Auction No. 49 Comment Public Notice provides a complete list of the licenses that would be available in Auction No. 53 if licenses were based on DMAs.

9. The following table describes the licenses that will be auctioned, depending on whether the Bureau uses a CEA or DMA geographic license area:

10. The Balanced Budget Act of 1997 requires the Commission to “ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed * * * before issuance of bidding rules, to permit notice and comment on proposed auction procedures * * *.” Consistent with the provisions of the Balanced Budget Act and to ensure that potential bidders have adequate time to familiarize themselves with the specific rules that will govern the day-to-day conduct of an auction, the Commission directed the Bureau, under its existing delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of each auction. The Bureau therefore seeks comment on the issues set forth relating to Auction No. 53. Parties submitting comments in response to the Auction No. 49 Comment Public Notice should file an additional copy of such comments in ET Docket No. 98-206. Instructions for filing comments are provided.

11. The Bureau proposes to award all licenses included in Auction No. 53 in a simultaneous multiple-round auction. As described further, this methodology offers every license for bid at the same time with successive bidding rounds in which bidders may place bids. The Bureau seeks comment on this proposal.

12. The Bureau has been delegated authority and discretion to determine an appropriate upfront payment for each license being auctioned, taking into account such factors as the population in each geographic license area, and the value of similar spectrum. As described further, the upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on licenses. Upfront payments related to the specific spectrum subject to auction protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction. With these guidelines in mind for Auction No. 53, the Bureau proposes to calculate upfront payments on a license-by-license basis.

13. The Bureau proposes to calculate upfront payments on a license-by-license basis for CEAs using the following formula: $0.025 * License Area Population with a minimum of $1,000 per license.

14. Accordingly, the Bureau lists all CEA licenses, including the related license area population and proposed upfront payment for each license, in Attachment A of the Auction No. 49 Comment Public Notice. The Bureau seeks comment on this proposal.

15. The Bureau proposes to calculate upfront payments on a license-by-license basis for DMAs as follows: From the total upfront payment amount for all CEA licenses ($7,139,300), subtract the upfront payments for CEA349-CEA354 ($104,700), for a remainder of $7,034,600. For each DMA (DMA001-DMA210), the upfront payment is calculated by multiplying $7,034,600 by a percentage that is the ratio of television households in that DMA to the total television households in DMA001-DMA210, with a minimum of $1,000 per license. The upfront payment for DMA211 is set at the minimum upfront payment amount of $1,000. Upfront payments for DMA212-DMA214 are calculated as the sum of the upfront payments for the corresponding CEA licenses.5 Accordingly, the Bureau lists all DMA licenses, including the related percentage of total television households and proposed upfront payment for each license, in Attachment B of the Auction No. 49 Comment Public Notice. The Bureau seeks comment on this proposal.

16. The Bureau further proposes that the amount of the upfront payment submitted by a bidder will determine the number of bidding units on which a bidder may place bids. This limit is a bidder's “maximum initial eligibility.” Each license is assigned a specific number of bidding units equal to the upfront payment listed in Attachment A of the Auction No. 49 Comment Public Notice (CEAs) or Attachment B of the Auction No. 49 Comment Public Notice (DMAs), on a bidding unit per dollar basis. This number does not change as prices rise during the auction. A bidder's upfront payment is not attributed to specific licenses. Rather, a bidder may place bids on any combination of licenses as long as the total number of bidding units associated with those licenses does not exceed the bidder's eligibility. Eligibility cannot be increased during the auction. Thus, in calculating its upfront payment amount, an applicant should determine the maximum number of bidding units it may wish to bid on (or hold high bids on) in any single round and submit an upfront payment covering that number of bidding units. The Bureau seeks comment on this proposal.

17. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively on a percentage of their current bidding eligibility during each round of the auction rather than waiting until the end to participate. A bidder that does not satisfy the activity rule will either use an activity rule waiver (if any remain) or lose bidding eligibility for the next round.

18. The Bureau proposes to divide the auction into three stages, each characterized by an increased activity requirement. The auction will start in Stage One. The Bureau proposes that the auction generally will advance to the next stage (i.e., from Stage One to Stage Two, and from Stage Two to Stage Three) when the auction activity level, as measured by the percentage of bidding units receiving new high bids, is approximately twenty percent or below for three consecutive rounds of bidding. However, the Bureau further proposes that it retain the discretion to change stages unilaterally by announcement during the auction. In exercising this discretion, the Bureau will consider a variety of measures of bidder activity, including, but not limited to, the auction activity level, the percentage of licenses (as measured in bidding units) on which there are new bids, the number of new bids, and the percentage increase in revenue. The Bureau seeks comment on these proposals.

19. For Auction No. 53, the Bureau proposes the following activity requirements:

Stage One: In each round of the first stage of the auction, a bidder desiring to maintain its current eligibility is required to be active on licenses representing at least 80 percent of its current bidding eligibility. Failure to maintain the requisite activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding (unless an activity rule waiver is used). During Stage One, reduced eligibility for the next round will be calculated by multiplying the current round activity by five-fourths (5/4).

Stage Two: In each round of the second stage, a bidder desiring to maintain its current eligibility is required to be active on 90 percent of its current bidding eligibility. During Stage Two, reduced eligibility for the next round will be calculated by multiplying the current round activity by ten-ninths (10/9).

Stage Three: In each round of the third stage, a bidder desiring to maintain its current eligibility is required to be active on 98 percent of its current bidding eligibility. In this final stage, reduced eligibility for the next round will be calculated by multiplying the current round activity by fifty/forty-ninths (50/49).

20. The Bureau seeks comment on these proposals. Commenters that believe these activity rules should be modified should explain their reasoning and comment on the desirability of an alternative approach. Commenters are advised to support their claims with analyses and suggested alternative activity rules.

21. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding and not to a particular license. Activity rule waivers can be either proactive or automatic and are principally a mechanism for auction participants to avoid the loss of auction eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round.

22. The FCC Automated Auction System assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any bidding round in which a bidder's activity level is below the minimum required unless: (i) the bidder has no activity rule waivers remaining; or (ii) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the minimum requirements.

23. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding period by using the “reduce eligibility” function in the bidding system. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described. Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility.

24. A bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the “proactive waiver” function in the bidding system) during a bidding period in which no bids or withdrawals are submitted, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver invoked in a round in which there are no new valid bids or withdrawals will not keep the auction open.

25. The Bureau proposes that each bidder in Auction No. 53 be provided with five activity rule waivers that may be used at the bidder's discretion during the course of the auction as set forth. The Bureau seeks comment on this proposal.

26. For Auction No. 53, the Bureau proposes that, by public notice or by announcement during the auction, it may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. The Bureau emphasizes that exercise of this authority is solely within its discretion, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers. The Bureau seeks comment on this proposal.

27. The Commission will conduct Auction No. 53 over the Internet. Telephonic Bidding will also be available. As a contingency, the FCC Wide Area Network will be available as well. The telephone number through which the backup FCC Wide Area Network may be accessed will be announced in a later public notice. Full information regarding how to establish such a connection, and related charges, will be provided in the public notice announcing details of auction procedures.

28. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction, and will be included in the registration mailings. The simultaneous multiple round format will consist of sequential bidding rounds, each followed by the release of round results. Details regarding the location and format of round results will be included in the same public notice.

29. The Bureau has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors. The Bureau seeks comment on this proposal.

30. The Balanced Budget Act calls upon the Commission to prescribe methods for establishing a reasonable reserve price or a minimum opening bid when FCC licenses are subject to auction, unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission has directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction.

31. Normally, a reserve price is an absolute minimum price below which an item will not be sold in a given auction. Reserve prices can be either published or unpublished. A minimum opening bid, on the other hand, is the minimum bid price set at the beginning of the auction below which no bids are accepted. It is generally used to accelerate the competitive bidding process. Also, the auctioneer often has the discretion to lower the minimum opening bid amount later in the auction. It is also possible for the minimum opening bid and the reserve price to be the same amount.

32. In light of the Balanced Budget Act's requirements, the Bureau proposes to establish minimum opening bids for Auction No. 53. The Bureau believes a minimum opening bid, which has been utilized in other auctions, is an effective bidding tool.

33. For Auction No. 53, the Bureau proposes the following license-by-license formula for calculating minimum opening bids for CEAs: $0.05 * License Area Population with a minimum of $1,000 per license.

34. The specific minimum opening bid for each CEA license available in Auction No. 53 is set forth in Attachment A of the Auction No. 49 Comment Public Notice. Comment is sought on this proposal.

35. The Bureau proposes to calculate minimum opening bids on a license-by-license basis for DMAs as follows: From the total minimum opening bid amount for all CEA licenses ($14,283,500), subtract the minimum opening bids for CEA349-CEA354 ($210,500), for a remainder of $14,073,000. For each DMA (DMA001-DMA210), the minimum opening bid is calculated by multiplying $14,073,000 by a percentage that is the ratio of television households in that DMA to the total television households in DMA001-DMA210, with a minimum of $1,000 per license. The minimum opening bid for DMA211 is set at the minimum amount of $1,000. Minimum opening bids for DMA212-DMA214 are calculated as the sum of the minimum opening bids for the corresponding CEA licenses.6 Accordingly, the Bureau lists all DMA licenses, including the related percentage of total television households and proposed minimum opening bid for each license, in Attachment B of the Auction No. 49 Comment Public Notice. The Bureau seeks comment on this proposal.

36. If commenters believe that these minimum opening bids will result in substantial numbers of unsold licenses, or are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so, and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested reserve prices or minimum opening bid levels or formulas. In establishing the minimum opening bids, the Bureau particularly seeks comment on such factors as the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, issues of interference with other spectrum bands and any other relevant factors that could reasonably have an impact on valuation of the MVDDS spectrum. Alternatively, comment is sought on whether, consistent with the Balanced Budget Act, the public interest would be served by having no minimum opening bid or reserve price.

37. In each round, eligible bidders will be able to place bids on a given license in any of nine different amounts. The FCC Automated Auction System interface will list the nine acceptable bid amounts for each license. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. In the rounds after an acceptable bid is placed on a license, the minimum acceptable bid for that license will be equal to the standing high bid plus the defined increment.

38. Once there is a standing high bid on a license, the FCC Automated Auction System will calculate a minimum acceptable bid for that license for the following round, as described. The difference between the minimum acceptable bid and the standing high bid for each license will define the bid increment. The nine acceptable bid amounts for each license consist of the minimum acceptable bid (the standing high bid plus one bid increment) and additional amounts calculated using multiple bid increments (i.e., the second bid amount equals the standing high bid plus two times the bid increment, the third bid amount equals the standing high bid plus three times the bid increment, etc.).

39. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. The additional bid amounts for licenses that have not yet received a bid will be calculated differently, as explained.

40. For Auction No. 53, the Bureau proposes to calculate minimum acceptable bids by using a smoothing methodology, as it has done in several other auctions. The smoothing formula calculates minimum acceptable bids by first calculating a percentage increment, not to be confused with the bid increment. The percentage increment for each license is based on bidding activity on that license in all prior rounds; therefore, a license which has received many bids throughout the auction will have a higher percentage increment than a license which has received few bids.

41. The calculation of the percentage increment used to determine the minimum acceptable bids for each license for the next round is made at the end of each round. The computation is based on an activity index, which is a weighted average of the number of bids in that round and the activity index from the prior round. The current activity index is equal to a weighting factor times the number of new bids received on the license in the most recent bidding round plus one minus the weighting factor times the activity index from the prior round. The activity index is then used to calculate a percentage increment by multiplying a minimum percentage increment by one plus the activity index with that result being subject to a maximum percentage increment. The Commission will initially set the weighting factor at 0.5, the minimum percentage increment at 0.1 (10%), and the maximum percentage increment at 0.2 (20%). Hence, at these initial settings, the percentage increment will fluctuate between 10% and 20% depending upon the number of bids for the license.

42. Under the smoothing methodology, once a bid has been received on a license, the minimum acceptable bid for that license in the following round will be the high bid from the current round plus the dollar amount associated with the percentage increment, with the result rounded to the nearest thousand if it is over ten thousand or to the nearest hundred if it is under ten thousand.

i. Calculation of percentage increment for round 2 using the smoothing formula:

ii. Calculation of dollar amount associated with the percentage increment for round 2 (using I2):

iii. Minimum acceptable bid for round 2 = $1,200,000

i. Calculation of percentage increment for round 3 using the smoothing formula:

ii. Calculation of dollar amount associated with the percentage increment for round 3 (using I3):

iii. Minimum acceptable bid for round 3 = $2,400,000

The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.

A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Commissioner of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).

FDA recently approved for marketing the human drug product TEMODAR (temozolomide). TEMODAR is indicated for the treatment of adult patients with refractory anaplastic astrocytoma, i.e., patients at first relapse who have experienced disease progression on a drug regimen containing a nitrosourea and procarbazine. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for TEMODAR (U.S. Patent No. 5,260,291) from Schering Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated April 13, 2000, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of TEMODAR represented the first permitted commercial marketing or use of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.

FDA has determined that the applicable regulatory review period for TEMODAR is 2,032 days. Of this time, 1,668 days occurred during the testing phase of the regulatory review period, while 364 days occurred during the approval phase. These periods of time were derived from the following dates:

1. The date an exemption under section 505(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(i)) became effective: January 19, 1994. The applicant claims January 20, 1994, as the date the investigational new drug application (IND) became effective. However, FDA records indicate that the IND effective date was January 19, 1994, which was 30 days after FDA receipt of the IND.

2. The date the application was initially submitted with respect to the human drug product under section 505(b) of the act: August 13, 1998. The applicant claims August 12, 1998, as the date the new drug application (NDA) for TEMODAR (NDA 21-029) was initially submitted. However, FDA records indicate that NDA 21-029 was submitted on August 13, 1998.

3. The date the application was approved: August 11, 1999. FDA has verified the applicant's claim that NDA 21-029 was approved on August 11, 1999.

This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,136 days of patent term extension.

Anyone with knowledge that any of the dates as published are incorrect may submit to the Dockets Management Branch (see ADDRESSES) written or electronic comments and ask for a redetermination by April 7, 2003. Furthermore, any interested person may petition FDA by for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period August 5, 2003. To meet its burden, the petition must contain sufficient facts to merit an FDA investigation. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41-42, 1984.) Petitions should be in the format specified in 21 CFR 10.30.

Comments and petitions should be submitted to the Dockets Management Branch (see ADDRESSES). Three copies of any information are to be submitted, except that individuals may submit single copies. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Applications will be reviewed by an objective review committee. The review criteria will include:

(1) Needs assessment and development of goals and objectives (e.g., Does the applicant demonstrate knowledge of the region's health status, referral and usage patterns, issues of practitioner recruitment/retention, other telehealth activities in the region, etc? Are the expected outcomes for each objective described using qualitative and quantitative measures?);

(2) Program priorities—Does the applicant address any or all of the following: (a) Clinical telemedicine networks that address chronic conditions (e.g., asthma, diabetes) in a variety of settings, such as patient homes, schools, and other community settings; (b) projects that are designed to demonstrate improved health care outcomes (e.g., improved access, productivity, dollars saved) as well as improved quality of services (e.g. reduction of medical errors); (c) clinical telemedicine networks that include distance-learning education for health professionals, and patients and their families, if such activities are in conjunction with the delivery of health services; and (d) clinical telemedicine networks that integrate their telemedicine information system into overall electronic clinical information systems (e.g. electronic medical record) used by network members.

(3) Implementation and monitoring of the work plan (e.g., Is the proposed work plan feasible? Are the qualifications and responsibilities of key individuals in the telehealth network clearly identified?);

(4) Community involvement, cost participation, and sustainability (e.g., How will network members and members of the community have an active role in planning the telehealth network project? Does the applicant demonstrate a long-term commitment to the project, beyond the 3-year funding cycle?);

(5) Evaluation and dissemination (e.g. Do the data collection tools and strategies directly address the objectives outlined for the program? Is there a plan for disseminating information about the project, including “lessons learned?”); and

(6) Budget (e.g. Are program needs for equipment, supplies, contractual services, etc., adequately justified in terms of the goal(s), objectives, and proposed activities?).

The Secretary will give preference to an eligible entity that meets at least one (1) of the following requirements:

(a) Organization—The eligible entity is a rural community-based organization, other community-based organization, or a faith-based organization.

(b) Service—The eligible entity proposes to use Federal funds made available through such a grant to develop plans for, or to establish, telehealth networks that provide mental health, public health, long-term care, home care, preventive health, or case management services.

(c) Coordination—The eligible entity demonstrates how the project to be carried out under the grant will be coordinated with other relevant federally funded projects in the areas, communities, and populations to be served through the grant.

(d) Network—The eligible entity demonstrates that the project involves a telehealth network that includes an entity that—

(i) Provides clinical health care services, or educational services for health care providers and for patients or their families; and

(ii) Is—

(I) A public school;

(II) A public library;

(III) An institution of higher education; or

(IV) A local government entity.

(e) Connectivity—The eligible entity proposes a project that promotes local connectivity within areas, communities, or populations to be served through the project.

(f) Integration—The eligible entity demonstrates that health care information has been integrated into the project.

Priority will be given to applications that address the following program priorities:

(g) Clinical telemedicine networks that address chronic conditions (e.g., asthma, diabetes) in a variety of settings, such as patient homes, schools, and other community settings;

(h) Projects designed to improve health care outcomes (e.g., improved access, productivity, dollars saved) as well as improved quality of services (e.g., reduction of medical errors);

(i) Clinical telemedicine networks that include distance-learning education for health professionals, and patients and their families, if such activities are in conjunction with the delivery of health services; and

(j) Clinical telemedicine networks that integrate their telemedicine information system into overall electronic clinical information systems (e.g., electronic medical record) used by network members.

Paperwork Reduction Act: Should any of the data collection activities associated with this grant program fall under the purview of the Paper Reduction Act of 1995, OMB approval will be sought.

The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.

This Notice also lists the following information:

Title of Proposal: Data Collection Techniques for Identifying the Housing Subsidy Status of Survey Respondents.

OMB Approval Number: 2528-XXXX.

Form Numbers: None.

Description of the Need for the Information and its Proposed Use:

This collection will test new questions developed to better identify respondents housing subsidy status in the American Housing Survey.

Respondents: Individuals or households.

Frequency of Submission: Once.

Total Estimated Burden Hours: 82.

Status: New Collection.

The 1988 amendment to the Fish and Wildlife Conservation Act (FWCA) of 1980 (Pub. L. 100-653, Title VIII) requires the Secretary of the Interior, through the U.S. Fish and Wildlife Service, to “identify species, subspecies, and populations of all migratory nongame birds that, without additional conservation actions, are likely to become candidates for listing under the Endangered Species Act [ESA] of 1973.” Birds of Conservation Concern 2002 fulfills that mandate, and supersedes Migratory Nongame Birds of Management Concern in the United States: The 1995 List. The current document differs from the 1995 version in that it identifies birds of conservation concern at three different scales: Bird Conservation Regions, U.S. Fish and Wildlife Service Regions, and National. This will maximize flexibility and increase the utility of the document for a variety of users and purposes. The species that appear in Birds of Conservation Concern 2002 are deemed to be the highest priority for conservation actions. We anticipate that the document will be consulted by Federal agencies and their partners prior to undertaking cooperative research, monitoring, and management actions that might directly or indirectly affect migratory birds. Our goal in publishing this document is to stimulate coordinated and collaborative proactive conservation actions among Federal, State, and private partners.

To serve as a broad early warning system in the context of the FWCA, this document includes all of the species for which we have some basis, no matter how remote, to consider them to be of conservation concern. Our objective in publishing this list is to focus conservation attention on bird species of concern well in advance of a possible or plausible need to consider them for listing under the ESA. Inclusion on this list does not constitute a finding that listing under the ESA is warranted, or that substantial information exists to indicate that listing under the ESA may be warranted. Many of the species on this list will probably never have to be considered for ESA listing, even if no additional conservation actions are taken.