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

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601, the Agency has determined that there will not be a significant economic impact on a substantial number of small entities. All Farm Service Agency direct loan borrowers and all entities affected by this rule are small businesses according to the North American Industry Classification System, and the United States Small Business Administration. There is no diversity in size of the entities affected by this rule and the costs to comply with it are the same for all entities.

In this rule, FSA is proposing revisions to both loan making and loan servicing regulations. In loan making, the Agency will not require a real estate appraisal completed by a certified general appraiser when real estate is used to secure an operating loan (OL) of less than $50,000. This action will affect less than 5 percent of the OL's processed per year, or approximately 720 applicants. This would result in an annual savings to the Agency of approximately $540,000 ($750/appraisal). In loan servicing, the Agency will increase the dollar threshold for requiring a certified real estate appraisal from $10,000 to $25,000 when considering partial releases, subordinations, exchanges, or other real estate servicing actions. The Agency estimates that this will eliminate the need for approximately 150 certified real estate appraisals, for a savings to the Agency annually of approximately $112,500.

The Agency does not expect these changes to impose any additional cost on the borrowers. In fact, the reduced need for appraisals should benefit borrowers with increased timeliness of loan decisions by the Agency. Therefore, the costs of compliance from this rule are deemed not significant. Accordingly, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The environmental impacts of this rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR part 799, and part 1940, subpart G. FSA has completed an environmental evaluation and concluded that the rule requires no further environmental review. No extraordinary circumstances or other unforeseeable factors exist which would require preparation of an environmental assessment or environmental impact statement. A copy of the environmental evaluation is available for inspection and review upon request.

This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with this executive order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule unless those regulations specifically allow bringing suit at an earlier time.

For reasons set forth in the Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures of $100 million or more in any 1 year for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This proposed rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and tribal governments or the private sector. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of UMRA.

The policies contained in this rule do not have any substantial direct effect on States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does this proposed rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The amendments to 7 CFR Chapter XVIII contain no new information collections that require approval under the Paperwork Burden Reduction Act of 1995 for OMB control numbers 0560-0158, 0560-0162, and 0560-0178.

These changes affect the following FSA programs as listed in the Catalog of Federal Domestic Assistance:

This rule proposes to amend the regulations that govern the requirement for appraisals for FSA Farm Loan Programs (FLP) direct loans.

FSA proposes to remove the requirement for obtaining a real estate or chattel appraisal as part of the application process in 7 CFR 1910.4(b)(21). Under existing regulations, when real estate is to be taken as security, FSA usually obtains the appraisal by contracting with a qualified appraiser, prior to approval of a loan. Chattel appraisals are completed by FSA employees who have been adequately trained and delegated chattel appraisal authority. The proposed rule will allow FSA to approve loans with the condition that an acceptable appraisal, which reflects at least adequate collateral for the loan, will be obtained before the loan is closed. Therefore, FSA will not be required to wait on a real estate appraisal and may conditionally approve the loan.

The primary benefit to FSA is one of cost savings. As previously discussed, existing procedures require that an appraisal be obtained prior to loan approval. Because availability of loan funds is subject to Congressional appropriations, all FSA farm loans are approved subject to the availability of funds. When appropriation levels are inadequate to meet loan demand, approved applications are held until funding becomes available. Sometimes, a year or more may pass before loan funds become available for an applicant, particularly in the farm ownership (FO) loan program. In such cases, the real estate appraisal purchased prior to loan approval is outdated when funding becomes available, and FSA must purchase a new appraisal. Thus, FSA pays for two real estate appraisals for one loan. Under this proposed rule, FSA will not purchase an appraisal until funds are available for the loan, thus, eliminating the need for second appraisals and the costs associated with them. While delays in funding can occur, the appraisal requirement will not cause any additional delay in most loan closings as loan funds are usually available without delay. On the Agency's, “Request for Obligations of Funds,” applicants will agree that the 15-working day loan closing requirement may be exceeded to obtain the necessary appraisals. FSA will endeavor to minimize any delays. This change does not affect FSA's responsibility for ordering and funding the cost of real estate and chattel appraisals for loan making purposes.

FSA proposes to amend 7 CFR 1941.25 to require that a real estate appraisal be obtained when real estate is taken as primary security for an operating loan (OL) and the amount of the loan to be secured by the real estate exceeds $50,000. The section currently provides no threshold dollar amount. FSA has determined that OL loans of $50,000 or less generally constitute less risk than larger loans due to the relatively small dollar amount involved. In addition, operations with credit needs in this range are normally not complex. Loan officials will no longer have to wait for an appraisal in such cases before conducting a loan analysis and making a credit decision. Therefore, applicants will receive loan funds on a more timely basis. This revision adds consistency with the existing Low Documentation policy for operating loans of $50,000 or less, reduces the number of real estate appraisals required, and reduces FSA's real estate appraisal expenses.

FSA proposes to increase the transaction amount triggering the need for a real estate appraisal referenced in 7 CFR 1965.13(d), from $10,000 to $25,000. This will reduce the number of appraisals required by the Agency when borrowers wish to sell some portion of their real estate. Also, FSA is currently required to appraise the real property retained when processing a partial release. This measure ensures that the property retained by the borrower, after the sale, is not adversely affected by the loss of the tract sold (such as when the sale removes access to a paved road). The proposed rule would eliminate this requirement in most cases as this determination can usually be made without an appraisal. FSA may still obtain an appraisal on the property to be sold or retained when necessary to protect the government's financial interests.

Accordingly, 7 CFR chapter XVIII is proposed to be amended as follows:

The Commission is proposing several changes to its rules to establish a simple, uniform payment scheme covering all candidate travel on either government or private aircraft and other conveyances. The current regulation at 11 CFR 114.9(e) establishes the timing for reimbursement and the amount that a candidate must reimburse a corporation or labor organization for the use of a private airplane or other means of transportation, but does not address means of travel furnished by individuals, partnerships, and other entities. The current rules in section 114.9(e) are also not fully consistent with the Commission's treatment of similar travel by presidential and vice-presidential candidates using government-provided transportation under 11 CFR 9004.7 and 9034.7.

The Commission proposes several changes to the candidate travel rules currently set forth at 11 CFR 114.9(e). While 11 CFR part 114 focuses on corporate and labor organization activity, and current 11 CFR 114.9(e)(2) focuses on means of travel owned or leased by corporations or labor organizations, the Commission seeks to broaden the rules to include airplanes and other means of travel owned by persons other than corporations and labor organizations. The Commission recognizes that in most cases the means of travel used for campaign trips is likely to be owned or leased by a corporation or labor organization, but notes that the current section heading for 11 CFR 114.9, “Use of corporate and labor organization facilities and means of transportation,” would not accurately convey the scope of the proposed travel rules encompassing airplanes and other means of transportation owned by individuals, partnerships, or other entities. Therefore, the Commission proposes deleting the reference to “means of transportation” from the title of 11 CFR 114.9, removing and reserving paragraph (e) of 114.9, and relocating the substance of the travel reimbursement rules to a new section.

To accommodate the broadened scope of the travel reimbursement rules, the Commission proposes adding new section 100.93 to the enumerated exceptions to the definition of “contribution” in 11 CFR part 100, subpart C. This new section would describe circumstances in which the use of a private means of transportation not owned or leased by candidates or their authorized committees would not be contributions, much like current § 100.52 (also in subpart C), which describes when the use of commercial transportation is or is not a contribution. Proposed § 100.93 would be based on the current 11 CFR 114.9(e), with the organizational and substantive changes described below.

Proposed paragraph (a)(1) would define the scope of the rules and clarify any perceived ambiguity regarding the scope of the current 11 CFR 114.9(e)(1). The current rule focuses on the use of airplanes owned by corporations or labor organizations that “are not licensed to offer commercial service for travel in connection with a Federal election.” One district court found this wording to be ambiguous. In this case, a presidential candidate claimed that the regulation applied to all travel on airplanes except airplanes owned or leased by a corporation or labor organization possessing a license for travel in connection with a Federal election. See Federal Election Commission v. Arlen Specter ’96, 150 F. Supp. 2d 797, 804 and 808 (E.D. Pa. 2001). The Court noted that no such license existed and ultimately deferred to the Commission's longstanding determination that 11 CFR 114.9(e) applies to airplanes owned by corporations or labor organizations not engaged in the business of providing commercial air service generally, without regard to any connection with a Federal election. Id. at 812.

In order to remove this perceived ambiguity, the Commission proposes further clarification of the class of airplanes affected. As noted above, proposed 11 CFR 100.93 would apply to service providers depending on whether the airplane is or is not “normally operated for commercial passenger service,” rather than whether the owner of the airplane is “licensed to offer commercial service for travel in connection with a Federal election.”

The Commission notes that commercial and non-commercial air travel is subject to the authority of the Department of Transportation (DOT) and various certifications of the Federal Aviation Administration (FAA). Aircraft are permitted to operate pursuant to various FAA safety certifications based generally on passenger capacity, route frequency, and type of service offered. Private aircraft not offering commercial passenger service operations normally operate under certification provided pursuant to either 14 CFR parts 91 or 125.1 Some airlines receive certificates of public necessity and convenience to operate commercial passenger service as common carriers within specified domestic locations pursuant to 14 CFR part 135. Other common carriers, such as commercial air taxi service and on-demand charter service, are permitted to operate under special certification in 14 CFR part 298, which exempts them from certain requirements that would be otherwise required under 14 CFR part 135. Certain other aircraft are also permitted to serve as common carriers and offer passenger service for compensation under 14 CFR parts 121 and 129. Each of the FAA certifications focuses mainly on the technical specifications and safety requirements of the aircraft and crew.

Aircraft operating under 14 CFR part 91 certification are not usually permitted to accept any form of payment or reimbursement from passengers, but a special FAA exception permits Federal candidates to reimburse the owners of such aircraft for the use of planes pursuant to the Commission's regulations. See 14 CFR 91.321.2 The Commission therefore intends its regulations in proposed 11 CFR 100.93 to apply only to airplanes not authorized to conduct operations in air transportation as a common carrier (e.g., 14 CFR parts 91 or 125), while the current regulations at 11 CFR 100.52 would apply to all airplanes operated pursuant to other certifications that do permit carriage of passengers for compensation. Proposed 11 CFR 100.93, however, would focus on the normal use of the airplane, rather than the operating certificate possessed by its owner, to avoid the need for title and certification checks. The Commission seeks comment on whether the type of certification with the FAA, or some other method, should be used to determine whether an airplane is normally operated for commercial passenger service such that a normal and usual rate for that passenger service could be readily and accurately ascertained.

As noted above, the current rule distinguishes between the use of airplanes owned or leased by a corporation or labor organization licensed to offer commercial services for travel, and airplanes that are owned by other corporations or labor organizations not normally engaged in commercial air passenger service. This distinction requires an examination of the plane's ownership or lease structure to determine the proper reimbursement timing and amount. The Commission is concerned that the ownership determination may add unnecessary confusion to the payment process and is proposing to shift the focus of the rule away from whether the airplane's owner is a corporation or labor organization and onto the normal use of the airplane. The proposed rules would therefore apply not only to airplanes owned by corporations or labor organizations, but also to airplanes owned by any “person,” as defined at 11 CFR 100.10, as well as airplanes owned by the Federal government or a State or local government.

An alternative approach, which is not incorporated into the proposed rules, would be to focus the distinction on whether the service provider is a “commercial vendor,” as defined in 11 CFR 116.1(c), with respect to the transportation services. This approach would continue to require an examination of the ownership structure of service provider. Relying on the term “commercial vendor” could also lead to a different result in certain circumstances. For example, Commercial Airline A owns a specially configured jet that is reserved for its corporate executives and offers the use of that jet to Candidate B. Under the “commercial vendor” alternative, Commercial Airline A would likely qualify as a “commercial vendor” of transportation services, meaning that 11 CFR 100.52(d), rather than 11 CFR 100.93, would govern the reimbursement requirements for Candidate B's travel on the jet. This result would require Candidate B to calculate the “usual and normal rate” for the use of the jet under 11 CFR 100.52(d)(2), which could be difficult to ascertain because passengers on the jet are not normally charged any fee. However, under the proposed “not normally operated for commercial passenger service” approach, Candidate B's use of the jet would be governed by proposed § 100.93, not § 100.52, and the proper reimbursement could be calculated by referring to first-class or charter rates to that destination.

The Commission seeks comments on broadening the coverage of these travel rules from corporations and labor organizations to any “person” or government, as well as the proposed shift in focus from the ownership of the airplane to the normal use of the airplane.

The scope of proposed § 100.93, however, would be limited to non-commercial means of transportation. A campaign traveler using a commercial airline or other means of commercial transportation would continue to be subject to the more general definition in 11 CFR 100.52, which categorizes “the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services' as an “in-kind contribution.” 11 CFR 100.52(d). Thus, a candidate or other campaign traveler receives an in-kind contribution when he or she is provided commercial transportation without charge or at a charge that is less than the usual and normal charge for that transportation. Proposed § 100.93(a) would include a cross-reference to 11 CFR 100.52(a) and (d) to affirm the continued application of these rules to providers of commercial transportation.

Proposed paragraph (a)(2) would define several terms used in new § 100.93. The term “campaign traveler” would be defined to provide a succinct term covering the candidate, candidate's agent, or other individual traveling on behalf of a candidate or a candidate's authorized committee. “Service provider” would describe the person or entity providing the transportation to the campaign traveler. Given the complex ownership and leasing arrangements often associated with airplanes and other means of transportation, a “service provider” may be either the owner of the conveyance or a different person who is leasing the conveyance from the owner and making it available for the campaign traveler's use.

Under proposed paragraph (a)(2), the term “unreimbursed value” would be defined as the portion of the value provided to the campaign traveler, calculated according to the rules in this section, that is not reimbursed by the candidate's authorized committee. A late payment would not qualify as a reimbursement under this section, which means that the value of the service provided would be an in-kind contribution to the candidate. By contrast, a service provider would not make an in-kind contribution if the candidate's authorized committee provides payment within the time specified in this proposed section. The Commission seeks comments on each of these definitions.

Proposed § 100.93(b) would set forth the general rule for when travel by private means of transportation would not constitute a contribution to a candidate or authorized committee, as well as when and to what extent such travel is an in-kind contribution. Under proposed paragraph (b)(1), a candidate's authorized committee would not receive or accept a contribution if the authorized committee pays the service provider the full value of the transportation within the specified time, as determined in this proposed section. This proposed paragraph would generally require that the candidate's authorized committee, rather than the campaign traveler, pay the service provider to avoid receiving or accepting a contribution. The campaign traveler could pay the service provider directly for his or her own travel rather than having the campaign committee do so. Such payment would constitute an in-kind contribution by the campaign traveler to the candidate, unless it qualifies for the transportation expense exception set forth in 11 CFR 100.79.

In light of the fact that the current rules at 11 CFR 114.9(e) are limited to airplanes owned by corporations or labor organizations, payment is required because the unpaid use of the airplanes would constitute a contribution in violation of 2 U.S.C. 441b. In contrast, individuals, partnerships, and certain other persons are permitted to make in-kind contributions to candidates up to the amounts set forth in 2 U.S.C. 441a. Thus, a campaign traveler may use an airplane provided by someone permitted to make an in-kind contribution, and this use would be an in-kind contribution. Proposed 100.93(b)(2) would recognize this possibility by describing when a service provider would be making an in-kind contribution. For an in-kind contribution to be permissible, however, the candidate's authorized committee must comply with the payment conditions in proposed 11 CFR 100.93. If these conditions are not met, then the provision of the airplane would be prohibited if the service provider is a corporation or labor organization, or if the value of the service would, when added to other contributions to the same candidate by the service provider, exceed that service provider's contribution limit. See proposed 11 CFR 100.93(b)(2). The value of the in-kind contribution would be determined in the same manner as the amount of the reimbursement would normally be determined under proposed paragraphs (c), (d) or (e) of new section 100.93.

The Commission recognizes that this approach could, in some cases, require the same type of ownership analysis that otherwise would be avoided by the proposed rules. This analysis, however, would no longer be a necessary step in every circumstance because it would be employed only where the airplane's provider elects not to seek full or partial reimbursement from the candidate's authorized committee, or when the committee fails to reimburse the service provider. The Commission seeks comments on whether reimbursement should always be required, regardless of the ownership of the airplane, or whether the possibility of an in-kind contribution from a permissible source should be addressed in some other fashion.

When a candidate or other campaign passenger uses an airplane owned by a person who is not in the business of providing commercial air travel, the current rules set the rate of reimbursement at either the first-class airfare or the normal charter rate, depending on whether a destination city is served by regularly scheduled commercial air service. 11 CFR 114.9(e)(1). The charter rate, which is normally higher than first-class airfare to an airport in the same area, represents the actual cost that a campaign would incur, but for the use of the corporate or labor airplane, to reach a particular destination by air when that destination is not served by commercial air service. Nevertheless, the Commission recognizes that candidates who campaign in major metropolitan areas that have regularly scheduled airline service will generally be able to use a private plane and reimburse only the equivalent of a first-class airfare, whereas the candidates who campaign in more rural areas that have little, if any, commercial air service would be required to reimburse the equivalent charter rate. The Commission is concerned that the current reimbursement scheme might be unnecessarily complex and negatively affects campaigning in rural areas.

To address these concerns, the Commission seeks comments on three alternative reimbursement rules in proposed 11 CFR 100.93(c), as well as any other appropriate payment schemes. The Commission also seeks comments on whether and how it should further simplify the rules and address other inequities, if any, arising from the current application of 11 CFR 114.9(e) or the changes proposed for § 100.93.

In addition, the Commission notes that many charter services charge a traveler for “deadhead miles,” those miles the airplane travels empty while returning to its home base after a one-way flight. In some cases, charter services also require compensation for positioning costs for airplanes based many miles from the pickup and drop-off points. The Commission therefore seeks comments on how, if at all, the three alternative payment schemes should account for these expenses associated with the positioning of the airplane or “deadhead miles.” For example, when a candidate travels one-way from California to Virginia on a private airplane based in Nevada and that airplane returns empty to Nevada, should that candidate's authorized committee be required to pay the expenses associated with the Nevada-to-California and Virginia-to-Nevada flights? If so, should each of these positioning or “deadhead” flights be determined in the same manner as described in the three alternative payment schemes below, or by using some other method?

Alternative A would set the payment rate, for each individual traveling for campaign purposes, at the amount of the lowest non-discounted first-class airfare to the closest airport that has such service, regardless of whether the actual destination airport is served by regularly scheduled commercial air service. The proposed rule would focus on the closest destination airport, rather than the destination city, to avoid further confusion in light of the various geographic considerations discussed in Advisory Opinion (“AO”) 1999-13.3 Because airfares may vary based on the date of travel, the rate used in calculating the payment amount would have to correspond to the date of actual travel. The Commission seeks comments on how precisely the base rate should correspond to the actual date of travel. For example, some airlines or charter companies may set a base rate for tickets purchased over a month in advance of the travel date that is different than the price of the same ticket when purchased on the date of travel. Should a campaign be permitted to use the normal advance ticket price when calculating the comparable base rate as required in proposed § 100.93, or should a campaign be required to calculate the comparable rate based on purchase on a fixed date or period, such as the actual date of travel or the lowest price within seven days of the travel date?

Alternative A would also allow an authorized committee to reimburse the provider of a private airplane at the coach rate to the destination airport where the same airport is served by regularly scheduled coach airline service but not regularly scheduled first-class airline service. This distinction for coach service would accommodate industry trends and is based on the current rules governing presidential candidates' payments for the use of government aircraft. See 11 CFR 9004.7(b)(5)(i)(B) and 9034.7(b)(5)(i)(B). Please note, however, that if the actual destination is an airport that is not served by any regularly scheduled commercial air service, and the closest airport is served by regularly scheduled coach airline service but not regularly scheduled first-class airline service, the proposed reimbursement amount would still be the lowest non-discounted first-class airfare for the closest airport that is served by regularly scheduled first-class airline service and not the coach fare for the closest airport.

In addition, Alternative A would eliminate the advance payment requirement in 11 CFR 114.9(e)(1). Currently, because payment must be made prior to travel, the campaign must provide a check in advance to the corporation to cover a certain number of passengers. If last minute passengers are not paid for prior to boarding the airplane, the campaign has failed to comply with the requirements of current 11 CFR 114.9(e)(1), regardless of how promptly the campaign subsequently makes an after-the-fact reimbursement. However, where candidates use other means of transportation addressed in 11 CFR 109.2(e)(2), last minute passengers do not cause the same complications because the reimbursement may be made “within a commercially reasonable time,” rather than in advance, so that the number of passengers is settled at the time the reimbursement is made.

Alternative A would address this disparate treatment by allowing a fixed period of seven calendar days for payment after travel has begun. This seven-day period would be shorter than the thirty-or-sixty day period used for other forms of transportation, see below, because under Alternative A the campaign would have complete control over the timing of the reimbursement as all the necessary passenger information and costs would be fixed at the time the airplane departs. Thus, it should be possible for the candidate's authorized committee to calculate the proper reimbursement rate without a billing or invoice process to cause delay.

The Commission recognizes that the removal of the advance payment rule could be perceived as a departure from the previous approach under which corporations are prohibited from extending credit outside the ordinary course of their business. See 11 CFR part 116. While the creation of a fixed post-travel time period for reimbursement in these circumstances is technically an extension of credit, the Commission nevertheless seeks comments on the potential consequences of the proposed rule with respect to the use of an airplane owned by a corporation or labor organization where reimbursement does not occur in advance. The Commission also seeks comments on whether the advance payment requirement should be retained and what, if any, other reimbursement timetables would be appropriate.

Alternative B would provide for two different payment rates, following closely the travel valuation rules set forth in the ethics rules for the House of Representatives and the United States Senate. See Select Committee on Ethics, U.S. Senate, Senate Ethics Manual, S. Pub. No. 108-1 (2003), “Private Air Travel” at p. 60; Committee on Standards of Official Conduct, U.S. House of Representatives, Rules of the U.S House of Representatives on Gifts and Travel (2001), “Use of Private Aircraft for Travel” available at <http://www.house.gov/ethics/ Gifts_and_Travel_ Chapter.htm#_Toc476623633>. The first rate, in proposed paragraph (c)(1) of Alternative B, would apply to previously scheduled flights, as opposed to flights specifically scheduled for a campaign traveler, between cities with regularly scheduled air service. The payment rate for these trips would be the normal cost of first-class airfare between the cities. Thus, travel between airports served by regularly scheduled air service would be treated similarly under both Alternative A and Alternative B, except that Alternative B would not permit the first-class airfare amount where the airplane is chartered specifically for the campaign traveler's use. Both Alternative A and Alternative B would permit payment at the coach rate where coach service is regularly scheduled on the same route, but would not permit campaigns to pay the lower amount for discounted fares such as “supersavers,” “e-savers,” or a government rate.

Under proposed paragraph (c)(2) of Alternative B, the Commission would require the amount of payment for other air travel, including flights specifically scheduled for a campaign traveler or flights where the origin or destination city is not served by regularly scheduled air service, to be no less than the normal charter rate for a similar airplane. The valuation of travel to airports not served by regularly scheduled commercial airline service would therefore differ from the valuation in proposed paragraph (c)(3) of Alternative A, which would value such travel at the amount of the first-class rate to the nearest airport. For the same reasons discussed above for Alternative A, the candidate's authorized committee would be required to make the proper payment within seven calendar days of the departure date.

Alternative C would establish a uniform rule by requiring the payment amount to be the normal and usual cost of chartering a plane of sufficient size to accommodate all campaign travelers plus the news media and security personnel where applicable. This payment rate would depend on the rate for chartering the entire plane, rather than a per-passenger cost, and would not vary based on whether the destination airport is served by regularly scheduled commercial air service of any particular class. Alternative C could provide a more accurate reflection of the true value of the use of a private or governmental airplane by campaign travelers. Because the campaign would be responsible for the cost of chartering the entire plane and the addition of last minute travelers would not increase the cost, the payment amount would be known prior to the time of departure. Thus, the Commission would continue to require advance payment for the use of all airplanes not normally used for commercial passenger service. To the extent that Alternative C would increase the cost of candidate travel when private airplanes are used, should the Commission consider such a factor when it evaluates appropriate reimbursement rates?

The Commission proposes a set period of time for payment of travel by means other than by airplane: thirty calendar days from the receipt of the invoice, but no more than sixty calendar days following the date the travel commenced. See proposed 11 CFR 100.93(d). This fixed deadline would add more clarity and certainty than the current rule's reference to a “commercially reasonable” period, but would retain the flexibility necessary to account for costs that cannot be calculated until the completion of travel or shortly thereafter. The sixty-day cutoff would help to ensure that the invoice will be rendered to the campaign promptly. Any extensions of credit resulting from payments not being made within the sixty-day period would be considered in-kind contributions to the candidate and would therefore result in a violation of the Act and Commission regulations where such contributions are prohibited or excessive. The payment rate would be set at the usual and normal fare or rental readily available to the general public at the time of travel.

Paragraph (e) of proposed 11 CFR 100.93 would clarify the appropriate payment for travel using any means of transportation, including an airplane, that is owned or leased by the Federal government or any State or local government. For government airplanes, one of the three alternatives described above would be used. For other means of travel, a campaign traveler using a government conveyance would have to reimburse the government entity within thirty calendar days of the receipt of an invoice, but no later than sixty calendar days following the date on which travel commenced. The required payment rate would be the amount of the usual fare or rental charge readily available to the general public for the travel date.

Proposed paragraph (f)(1) of 11 CFR 100.93 would refer candidates and their authorized committees to the existing reporting requirements for the receipt of an in-kind contribution. Under 11 CFR 104.13, a candidate must report the amount of unreimbursed value for travel services as both the receipt of a contribution from the service provider and an expenditure by the candidate committee.

In addition, a candidate's authorized committee would be required to record the travel dates along with the report of the disbursement for repayment of the travel service. Under proposed paragraph (f)(2) of §100.93, the Commission would require the authorized committee to report the actual date of travel in the “purpose of disbursement” field corresponding to the disbursement.

Presidential and vice-presidential candidates are currently required to maintain records documenting the rates used in calculating their travel reimbursements. 11 CFR 9004.7(b)(5)(v) and 9034.7(b)(5)(v). Under proposed 11 CFR 100.93(g), these recordkeeping requirements would apply to other candidates.

Candidates who use government conveyance or accommodations for campaign-related travel are currently required to report an expenditure in the amount equivalent to the “rate for comparable commercial conveyance or accommodation.” 11 CFR 106.3(e). To eliminate disparities between campaign-related travel on private planes and travel on government planes, the Commission proposes revising 11 CFR 106.3 by replacing the reference to the “rate of comparable commercial conveyance” with a reference to the applicable rates for travel reimbursement set forth in proposed 11 CFR 100.93(c) and (d). Both the reimbursement rates and the payment due dates in proposed 11 CFR 100.93 would be applicable to travel by airplane and other means of travel, whether owned by an individual, corporation, labor organization, partnership, the Federal government, a State government, or any other person. The Commission seeks comment on this approach and the proposed revisions to 11 CFR 106.3(e).

The current regulations at 11 CFR 9004.7(b) and 9034.7(b) govern travel on government conveyance by primary and general election presidential and vice-presidential candidates receiving federal funding. The two rules are virtually identical and require the presidential or vice-presidential candidate to pay the appropriate government entity at one of several specified rates. These rates are established in largely the same manner as the reimbursement rates set forth in the current 11 CFR 114.9(e). The Commission proposes revising 11 CFR 9004.7(b)(5)(i) and (8) and 9034.7(b)(5)(i) and (8) to replace the parallel rate determinations in those rules with a reference to the reimbursement rates that would be set forth in proposed 11 CFR 100.93. As with the valuation of travel on government conveyances by non-presidential or vice-presidential candidates in 11 CFR 106.3(e), the reimbursement rates in proposed 11 CFR 100.93 would serve as the applicable valuation of travel by presidential and vice-presidential candidates aboard government conveyances. Minor changes would be made to the wording in paragraphs (b)(5)(i) through (iv) in sections 9004.7 and 9034.7 to clarify that the required reimbursement rate is a floor, not a ceiling on how much the candidate may reimburse, in order to permit a candidate to pay at a higher rate when required by other government agencies or branches. The Commission seeks comment on this approach and the proposed revisions to 11 CFR 9004.7 and 9034.7.

While the various approaches in the proposed rules may at times overstate or understate the actual cost or value of the air transportation service provided, the Commission anticipates that over time the costs will even out so that the actual disparity, if any, will be minor. The proposed rules are premised on the belief that an across-the-board approach to determining air travel costs is advisable, both for ease of compliance and for ease of administration. Nevertheless, the Commission recognizes that situations may arise that would not be readily addressed by the proposed rules. The Commission is therefore seeking comments describing how, if at all, some of these situations should be addressed in the rules.

The attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that few, if any, small entities would be affected by these proposals, which apply only to Federal candidates and their campaign committees. Federal candidates and their campaign committees are not small entities. To the extent that operators of air-taxi services or on-demand air charter services are affected, the effect would result from candidate travel choices rather than Commission requirements. These rules propose no sweeping changes, and are largely intended to simplify the process of determining payment and allocation ratios and reimbursement rates. The proposed rules would not increase the cost of compliance by small entities so as to cause a significant economic impact.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend subchapters A, E, and F of chapter 1 of title 11 of the Code of Federal Regulations as follows:

The Commission is considering changes to several separate rules to address three different issues. First, the Commission proposes changes to its rules regarding the certification requirements and contribution limits of a political committee that qualifies as a multicandidate committee. Second, the Commission proposes updating the annual limit on contributions from person other than multicandidate committees to national party committees in order to conform to the change made by Congress in the Bipartisan Campaign Reform Act of 2002 (“BCRA”). Finally, the Commission proposes corrections to its rules on the annual limit on aggregate individual contributions in light of BCRA. These proposed rules would implement the provisions of the Federal Election Campaign Act of 1971, as amended (“FECA” or the “Act”), 2 U.S.C. 431 et seq.

Section 110.2 sets forth contribution limits for multicandidate political committees in accordance with the limits established by 2 U.S.C. 441a(a)(2). Section 441a(a)(4) of the FECA provides that, “the term ‘multicandidate committee’ means a political committee which has been registered with [the Commission or Secretary of the Senate] for a period of not less than six months, which has received contributions from more than 50 persons, and except for any State political party organization, has made contributions to 5 or more candidates for Federal office.” 2 U.S.C. 441a(a)(4). On the basis of this statutory provision, the Commission's rules at 11 CFR 1005.(e)(3) define a “multicandidate committee” as a political committee meeting these three requirements.

FECA, prior to BCRA, provided significantly higher limits on contributions to candidates for political committees with multicandidate status than for those without that status ($5,000 per election versus $1,000). BCRA raised and indexed for inflation the contribution limit for non-multicandidate committees (to $2,000 per election), and due to the inflation adjustment such limit may eventually become higher than the limit imposed on multicandidate committees. See 2 U.S.C. 441a(c). Thus, this contribution limit itself one day may create a substantial disincentive for attaining multicandidate political committee status.

In addition, the limit on contributions to national party committees from multicandidate committees is $15,000 per year (as it was prior to BCRA), yet BCRA increased the limit on contributions to the same national party committees from non-multicandidate committees to $25,000 per year. 2 U.S.C. 441a(a)(2)(B) and (1)(B). Furthermore, the contribution limit for multicandidate committees is not indexed for inflation, which means that over time the current $10,000 difference in the contribution limit to national party committees will increase. 2 U.S.C. 441a(c).

These statutory changes have raised the issue of whether political committees may opt out of multicandidate committee status. The Commission preliminarily concludes that the definition of “multicandidate committee” in 2 U.S.C. 441a(a)(4) means that a political committee becomes a multicandidate committee by operation of law, not committee choice. Consequently the Commission proposes the addition of a sentence to 11 CFR 110.2(a) to state that a political committee automatically becomes a multicandidate committee at the time it satisfies the six-month waiting period, receives contributions from fifty or more contributors, and makes contributions to five or more candidates.

In the alternative, the Commission seeks comments on whether multicandidate political committee status may be considered optional. Commenters addressing this alternative are requested to provide the legal basis that would support this interpretation of 2 U.S.C. 441a(a)(4). Please note that the wording of the proposed rule in 11 CFR 110.2(a) does not implement this alternative.

To monitor compliance with the contribution limits, the Commission has required multicandidate political committees to file FEC Form 1M with the Commission to certify that they satisfied the criteria described above for becoming multicandidate political committees. Specifically, current 11 CFR 102.2(a)(3) requires that this certification be filed before a political committee may avail itself of the multicandidate committee contribution limits.

The Commission proposes to amend 11 CFR 102.2(a)(3) to eliminate the requirements that a political committee file Form 1M with the Commission before making any contributions under the increased contribution limits with respect to candidates in 11 CFR 110.2(b). Instead, § 102.2(a)(3) would specify that a political committee must certify its status as a multicandidate committee within ten days of satisfying the requirements of 11 CFR 1005.(e)(3). This certification provides clear notice of the political committee's status to the Commission and to recipients of contributions from the committee. The ten-day period corresponds to the usual time allotted for a political committee to report any changes to its Statement of Organization. See 11 CFR 102.2(a)(2). Thus, failure to file the form within the requisite time period would be a violation of the reporting requirements of 2 U.S.C. The Commission seeks comments on how it should address a failure to file the certification of multicandidate status. Specifically, how should the Commission address a situation where a political committee qualifies for multicandidate status, does not certify its status within ten days, but makes a contribution over $2,000 to a candidate for Federal office? The Commission also seeks comments on what certification process, if any, should be used if the Commission adopts an alternative approach and allows multicandidate status to be optional at the choice of the committee.

In section 307(a)(2) of BCRA, Congress raised the annual aggregate limit on contributions by persons other than multicandidate committees to national political party committees from $20,000 to $25,000. 2 U.S.C. 441a(a)(1)(B). The Commission proposes to revise the corresponding regulation in 11 CFR 110.1 to reflect this statutory change.

BCRA amended the provisions in the Act that limit the total amount of contributions that may be made by individuals. Section 441a(a)(3) of the FECA previously permitted individuals to make no more than $25,000 in aggregate contributions per calendar year. This provision was revised by BCRA to establish new biennial aggregate limits that permit individuals to make up to $95,000 in contributions, including up to $37,500 in contributions to candidates and their authorized committees, and up to $57,500 in contributions to any other political committees. 2 U.S.C. 441a(a)(3)(A) and (B). The $57,500 aggregate contribution limit contains a further restriction in that no more than $37,500 of this amount may be given to committees that are not the political committees of national political parties. 2 U.S.C. 441a(a)(3)(B). Regulations implementing these changes were issued as part of the rulemaking entitled “Contribution Limitations and Prohibitions.” See Contribution Limitations and Prohibitions; Final Rules, 67 FR 69928 (November 19, 2002). Previously, 2 U.S.C. 441a(a)(3) also provided that, for the purposes of the annual limitation, any contribution made to a candidate “in a year other than the calendar year in which the election is held with respect to which such contribution is made, is considered to be made during the calendar year in which such election is held.” BCRA deleted this language from the Act. However, the Commission retained 11 CFR 110.5(c), which specifically addressed contributions made in a non-election year. The proposed rules would amend § 110.5(c) to delete the current language and to replace it with language affirmatively stating that for the purposes of the biennial contribution limits in 11 CFR 110.5 (which are set forth in paragraph (b)), a contribution to a candidate will be attributed to the two-year period in which the contribution is actually made, regardless of when the election will be held. For example, for the purposes of the biennial limit, a contribution made in 2004 to a candidate in a 2006 Senate race would be attributed to the individual's limit for the 2003-2004 period. Similarly, a contribution made in 2005 to a candidate in the 2008 presidential race would be attributed to the individual's limit for the 2005-2006 period. In addition, a contribution made during 2007 to retire debt from a 2006 House election would be attributed to the individual's two-year limit for the 2007-2008 period, not for the 2005-2006 period.

The Commission seeks comments on whether the proposed revisions are consistent with BCRA. If the Commission revises its regulations in this manner, the Commission seeks comment on when such revisions should become effective.

The attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that few, if any, small entities would be affected by these proposals. These rules propose no sweeping changes, and are largely intended to simplify the process of determining the status of political committees and the aggregate biennial amounts that individuals may contribute to candidates for Federal office. Several of the proposed changes are purely technical, and those few proposals that might increase the cost of compliance by small entities would not do so in such an amount as to cause a significant economic impact.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend subchapter A of chapter 1 of title 11 of the Code of Federal Regulations as follows:

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-169-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-169-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On May 27, 2003, the FAA issued AD 2003-11-15, amendment 39-13174 (68 FR 33355, June 4, 2003), applicable to all McDonnell Douglas Model MD-90-30 airplanes. That AD requires replacing the lanyards on the pressure relief door for the thrust reverser with new, improved lanyards, and doing associated modifications. That action was prompted by a report indicating that the lanyards on the pressure relief door for the thrust reversers on the subject airplanes do not meet the certification requirements for strength. The requirements of that AD are intended to ensure that the lanyards on the pressure relief door for the thrust reverser have adequate strength so that the door will not detach from the thrust reverser in the event that an engine bleed air duct bursts, which could result in the door striking and damaging the horizontal stabilizer. This condition could result in reduced controllability of the airplane.

Paragraph (b) of AD 2003-11-15 prohibits installation of pressure relief door lanyards having certain part numbers. Since the issuance of that AD, the FAA has determined that the part numbers listed in that paragraph are incorrect. The numbers in that paragraph are Illustrated Parts Catalog numbers that correspond to new, improved lanyard assemblies that are acceptable for installation per the requirements of the existing AD. Paragraph (b) should have referred to the part numbers of the pressure relief door lanyards that paragraph (a) of AD 2003-11-15 requires to be replaced.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would revise AD 2003-11-15 to continue to require replacing the lanyards on the pressure relief door for the thrust reverser with new, improved lanyards, and doing associated modifications. The proposed AD would also prohibit installation of certain pressure relief door lanyards.

We have revised the heading that precedes paragraph (b) of this AD from “Spares” to “Parts Installation.” We find the heading “Parts Installation” more accurately describes the contents of that paragraph.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. However, for clarity and consistency in this proposed AD, we have retained the language of the existing AD regarding that material.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 110 airplanes of the affected design in the worldwide fleet. The FAA estimates that 21 airplanes of U.S. registry would be affected by this proposed AD. The proposed changes in this action add no additional economic burden. The current costs for this proposed AD are repeated for the convenience of affected operators, as follows:

It takes approximately 8 work hours per airplane to accomplish the actions currently required by AD 2003-11-15, at an average labor rate of $65 per work hour. Required parts are provided at no cost to the operator. Based on these figures, the cost impact of the actions currently required by AD 2003-11-15 is estimated to be $10,920, or $520 per airplane.

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

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

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

Since 1995, copyright owners of sound recordings have had the exclusive right to perform their works publicly by means of a digital audio transmission, subject to certain limitations. 17 U.S.C. 106(6). Among the limitations on the performance right was the creation of a new compulsory license for nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 114. Section 114 was later amended with the passage of the Digital Millennium Copyright Act of 1998 (“DMCA”), Public Law 105-304, to cover additional digital audio transmissions, including services making eligible nonsubscription transmissions. The DMCA also created a new statutory license to provide for the making of certain ephemeral phonerecords that facilitate the making of digital audio transmissions pursuant to the section 114 license. See 17 U.S.C. 112(e).

Rates and terms for use of sound recordings pursuant to these licenses by eligible nonsubscription services and by business-to-business establishment services were published in the Federal Register on July 8, 2002, after a full hearing before a Copyright Arbitration Royalty Panel (“CARP”), but these rates only applied to those transmissions made through December 31, 2002. See 67 FR 45239 (July 8, 2002).

In accordance with section 114(f)(2)(C)(i)(II), the Copyright Office initiated a new rate proceeding in January 2002 to set rates and terms for the current license period, January 1, 2003 through December 31, 2004. The first step in the rate adjustment process is the announcement of a voluntary six-month negotiation period See 67 FR 4472 (January 30, 2002). Although no agreements were reached during the early stages of this proceeding, copyright owners and performers did ultimately reach an agreement with certain licensees and the proposed settlement was published in the Federal Register on May 20, 2003. 68 FR 27506 (May 20, 2003). This agreement, however, did not make any special provisions for noncommercial entities who operate under the same statutory licenses, because noncommercial webcasters were involved in separate rate negotiations to establish an alternative rate structure to the one that would be set in accordance with the procedures set forth in 17 U.S.C. 112(e) and 114(f). These negotiations were conducted in accordance with the Small Webcaster Settlement Act of 2002 (“SWSA”), Public Law 107-321, 116 Stat. 2780.

The SWSA was passed in 2002 to address certain concerns of small webcasters with respect to the rates announced on July 8, 2002, and the CARP process which established those rates. Basically, it gave small commercial webcasters and noncommercial webcasters another opportunity to negotiate a different and separate rate schedule applicable to their use of sound recordings in digital transmissions for the period through 2004. The negotiations for these alternative agreements were conducted sequentially. SoundExchange, an unincorporated division of the Recording Industry Association of America, Inc. that is authorized to negotiate on behalf of copyright owners and performers, reached an agreement with small commercial webcasters in December 2002. See 67 FR 78510 (December 24, 2002). Negotiations between SoundExchange and the noncommercial webcasters followed and were completed in May 2003. The SWSA agreement applicable to the noncommercial entities was published in the Federal Register on June 11, 2003. 68 FR 35008 (June 11, 2003). Noncommercial webcasters who wished to take advantage of the rates and terms set forth in this agreement and had already made digital audio transmissions were required to submit a completed and signed election form to SoundExchange no later than 30 days after publication of the rates and terms in the Federal Register. Noncommercial webcasters who have not yet made a digital audio transmission may still elect to operate under the SWSA provided that they file the election form no later than the first date on which it would be obligated to make a royalty payment. See 68 FR at 35009.

Shortly thereafter, SoundExchange, the American Council on Education, and the Intercollegiate Broadcasting System, Inc., jointly with Harvard Radio Broadcasting Co., Inc. filed a petition with the Copyright Office for adjustment of the section 112 and 114 statutory rates and terms applicable to noncommercial licensees, requesting that the Office publish the proposed rates and terms for public comment pursuant to 37 CFR 251.63(b). The proposed rates and terms are identical to the applicable rates and terms for the period ending December 31, 2002, as established in the Order of the Librarian of Congress published July 8, 2002. See 67 FR 45239 (July 8, 2002).

The purpose for proposing these rates and terms is to ensure that a statutory rate is set for noncommercial licensees, so that there is no gap in the statutory rate scheme. Thus, a noncommercial licensee who does not opt to operate under the rates and terms negotiated in the SWSA agreement would operate according to the rates and terms announced today, should they be adopted as final rules. However, noncommercial webcasters who have elected to operate under the rates and terms negotiated pursuant to the SWSA and published on June 11, 2003, will not be affected by the proposed rates and terms announced today.

Section 251.63(b) of title 37 of the Code of Federal Regulations allows the Librarian to adopt proposed rates and terms without convening a CARP, provided that the proposed rates and terms are published in the Federal Register and no interested party with an intent to participate in the proceeding files a comment objecting to the proposed terms. In other words, unless there is an objection from a person with a significant interest in setting rates and terms applicable to noncommercial licensees and who is prepared and eligible to participate in a CARP proceeding, the Librarian can adopt the rates and terms in the proposed settlement in final regulations without convening a CARP. This procedure to adopt negotiated rates and terms in the case where an agreement has been reached has been specifically endorsed by Congress.

Accordingly, the Copyright Office is granting the joint petition filed on July 3, 2003, and is publishing for public comment the proposed rates and terms embodied in the agreement. Any party who objects to the proposed rates and terms set forth herein must file a written objection with the Copyright Office and an accompanying Notice of Intent to Participate, if the party has not already done so, in accordance with the requirements set forth in the Copyright Office's November 20, 2001, Notice. See 66 FR 58180, 58181 (November 20, 2001). The content of the written challenge should describe the party's interest in the proceeding, the proposed rule the party finds objectionable, and the reasons for the challenge.

Only a party with a significant interest in these rates and terms and who is prepared to participate in a CARP proceeding has standing to object. A noncommercial webcaster that has elected to operate under the rates and terms negotiated under the SWSA and published on June 11 would have no standing to object to the rates and terms announced today.

If no comments are received, the regulations shall become final upon publication of a final rule and shall cover the period from January 1, 2003, to December 31, 2004.

On August 18, 2004, the Copyright Office issued an order in this proceeding in which it: (1) Announced the consolidation of this proceeding with the proceeding to establish rates and terms for new subscription services, Docket No. 2001-2-DTNSRA; (2) set forth a new precontroversy discovery schedule and set a date for a meeting to discuss administrative issues; (3) directed parties in this proceeding to file a Notice of Intention to Submit a Written Direct Case; and (4) set a new briefing schedule for filing oppositions and replies to the pending motion to adopt the interim protective order.

Any new participants who may enter this proceeding by filing an objection to the proposed rates and terms as they apply to noncommercial entities must comply with the dates and requirements set forth in the August 18 order. See http://www.copyright.gov/carp/order81803.pdf. Accordingly, all parties to this proceeding, including any new participants, must be prepared to file a written direct case with the Copyright Office and serve a copy of the written direct case on all parties to this proceeding on October 6, 2003.

In consideration of the foregoing, the Copyright Office proposes adding part 263 to 37 CFR to read as follows:

DFARS 242.1104 presently requires the cognizant contract administration office to conduct a periodic risk assessment of each contractor to determine the degree of production surveillance needed for contracts awarded to that contractor, and to develop a production surveillance plan based on the risk level determined during the risk assessment. This proposed rule revises DFARS 242.1104 to eliminate requirements for production surveillance on contractors that have only Criticality Designator C (low-urgency) contracts, and for monitoring of progress on any Criticality Designator C contract, unless production surveillance or contract monitoring is specifically requested by the contracting officer. This change will enable contract administration offices to use production surveillance resources in a more effective manner.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the DFARS changes in this rule primarily affect the allocation of Government resources to production surveillance functions. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2002-D015.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD proposes to amend 48 CFR part 242 as follows:

1. The authority citation for 48 CFR part 242 continues to read as follows:

Migratory birds are protected under four bilateral migratory bird treaties the United States entered into with Great Britain (for Canada), Mexico, Japan, and Russia. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712). The Migratory Bird Treaty Act (Act) provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and by what means it is compatible with the conventions to allow hunting, killing, and other forms of taking of migratory birds, their nests, and eggs. The Act requires the Secretary to implement a determination by adopting regulations permitting and governing those activities.

Canada geese are Federally protected by the Act by reason of the fact that they are listed as migratory birds in all four treaties. These regulations must meet the requirements of the most restrictive of the four, which for Canada geese is the treaty with Canada. We have prepared these regulations compatible with its terms, with particular reference to Articles VII, V, and II.

Regulations governing the issuance of permits to take, capture, kill, possess, and transport migratory birds are promulgated in Title 50 Code of Federal Regulations (CFR) parts 13 and 21, and issued by the Service. Regulations governing the take, possession, and transportation of migratory birds under sport hunting seasons are annually promulgated in 50 CFR part 20 by the Service.

In recent years, numbers of Canada geese that nest and/or reside predominantly within the conterminous United States (resident Canada geese) have undergone dramatic population growth and have increased to levels that are increasingly coming into conflict with people and causing personal and public property damage. We believe that resident Canada goose populations must be reduced, more effectively managed, and controlled to reduce goose related damages. This rule would establish a new regulation authorizing State wildlife agencies to conduct (or allow) indirect and/or direct population control management activities, including the take of birds, on resident Canada goose populations. The intent of this rule is to allow State wildlife management agencies sufficient flexibility to deal with problems caused by resident Canada geese and guide and direct resident Canada goose population growth and management activities in the conterminous United States.

Waterfowl management activities frequently are based on the delineation of populations that are the target of management. Some goose populations are delineated according to where they winter, whereas others are delineated based on the location of their breeding grounds. For management purposes, populations can comprise one or more species of geese.

Canada geese (Branta canadensis) nesting within the conterminous United States are considered subspecies or hybrids of the various subspecies originating in captivity and artificially introduced into numerous areas throughout the conterminous United States. Canada geese are highly philopatric to natal areas, and no evidence presently exists documenting breeding between Canada geese nesting within the conterminous United States and those subspecies nesting in northern Canada and Alaska. Canada geese nesting within the conterminous United States in the months of March, April, May, or June, or residing within the conterminous United States in the months of April, May, June, July, and August will be collectively referred to in this proposed rule as “resident” Canada geese.

The recognized subspecies of Canada geese are distributed throughout the northern temperate and sub-arctic regions of North America (Delacour 1954; Bellrose 1976; Palmer 1976). Historically, breeding Canada geese are believed to have been restricted to areas north of 35 degrees and south of about 70 degrees latitude (Bent 1925; Delacour 1954; Bellrose 1976; Palmer 1976). Today, in the conterminous United States, Canada geese can be found nesting in every State, primarily due to translocations and introductions since the 1940s.

The majority of Canada geese still nest in localized aggregations throughout Canada and Alaska and migrate annually to the conterminous United States to winter, with a few reaching as far south as northern Mexico. However, the distribution of Canada geese has expanded southward and numbers have increased appreciably throughout the southern portions of the range during the past several decades (Rusch et al. 1995). The following is a brief description of the status and distribution of the major management populations of Canada geese covered by this proposed rule:

In the Atlantic Flyway, the resident population of Canada geese nests from Southern Quebec and the Maritime Provinces of Canada southward throughout the States of the Atlantic Flyway (Sheaffer and Malecki 1998; Johnson and Castelli 1998; Nelson and Oetting 1998). This population is believed to be of mixed racial origin (B. c. canadensis, B. c. interior, B. c. moffitti, and B. c. maxima) and is the result of purposeful introductions by management agencies, coupled with released birds from private aviculturists and releases from captive decoy flocks after live decoys were outlawed for hunting in the 1930s. Following the Federal prohibition on the use of live decoys in 1935, Dill and Lee (1970) cited an estimate of more than 15,000 domesticated and semi-domesticated geese that were released from captive flocks. With the active restoration programs that occurred from the 1950s through the 1980s, the population has grown to over 1 million birds in the northeastern United States and has increased an average of 5 percent per year since 1993 (Sheaffer and Malecki 1998; Atlantic Flyway Council 1999; U.S. Fish and Wildlife Service, 2002).

In the Mississippi Flyway, most resident Canada geese are giant Canada geese (B. c. maxima). Once believed to be extinct (Delacour 1954), Hanson (1965) rediscovered them in the early 1960s, and estimated the giant Canada goose population at about 63,000 birds in both Canada and the United States. In the nearly 40 years since their rediscovery, the breeding population of giant Canada geese in the Mississippi Flyway now exceeds 1.4 million individuals and has been growing at a rate of about 6 percent per year since 1993 (Rusch et al. 1996; Wood et al. 1996; Nelson and Oetting 1998; U.S. Fish and Wildlife Service, 2002).

In the Central Flyway, Canada geese that nest and/or reside in the States of the Flyway consist mainly of two populations, the Great Plains and Hi-Line. The Great Plains Population (Nelson 1962; Vaught and Kirsch 1966; Williams 1967) consists of geese (B. c. maxima/B. c. moffiti) that have been restored to previously occupied areas in Saskatchewan, North and South Dakota, Nebraska, Kansas, Oklahoma, and Texas. For management purposes, this population is often combined with the Western Prairie Population (composed of geese (B. c. maxima/B. c. moffiti/B. c. interior) that nest throughout the prairie regions of Manitoba and Saskatchewan) and winter together from the Missouri River in South Dakota southward to Texas. The Hi-Line Population (Rutherford 1965; Grieb 1968, 1970) (B. c. moffitti) nests in southeastern Alberta, southwestern Saskatchewan and eastern Montana, Wyoming, and northcentral Colorado. The population winters from Wyoming to central New Mexico. Overall, these three populations of large subspecies of Canada geese have increased tremendously over the last 30 years as the result of active restoration and management by Central Flyway States and Provinces. In 1999, the index for these three populations was over 900,000 birds, 95 percent higher than 1990, and 687 percent higher than 1980 (Gabig 2000). More recently, the 2002 mid-winter survey estimate of the Great Plains Population (surveyed together with the Western Prairie Population) was 710,300 geese and has increased an average of 10 percent per year since 1993. For the Hi-Line Population, both the mid-winter survey and the spring survey estimates have increased an average of 6 percent per year since 1993 (U.S. Fish and Wildlife Service, 2002).

In the Pacific Flyway, two populations of the western Canada goose, the Rocky Mountain Population and the Pacific Population, are predominantly composed of Canada geese that nest and/or reside in the States of the Flyway. The Rocky Mountain Population (B. c. moffitti) nests from southwestern Alberta southward through the intermountain regions of western Montana, Utah, Idaho, Nevada, Colorado, and Wyoming. They winter southward from Montana to southern California, Nevada, and Arizona. Highly migratory, they have grown from a breeding population of about 14,000 in 1970 (Krohn and Bizeau 1980) to over 130,000 (Subcommittee on Rocky Mountain Canada Geese 2000; U.S. Fish and Wildlife Service, 2002). Mid-winter survey estimates of Rocky Mountain Population Canada geese have increased an average of 4 percent per year since 1993, while spring populations have increased 6 percent per year over the last 10 years (U.S. Fish and Wildlife Service, 2002). The Pacific Population (Krohn and Bizeau 1980; Ball et al. 1981) (B. c. moffitti) nests from southern British Columbia southward and west of the Rockies in the States of Idaho, western Montana, Washington, Oregon, northern California, and northwestern Nevada. They are essentially nonmigratory and winter primarily in these same areas.

The Atlantic, Mississippi, Central, and Pacific Flyway Councils are administrative bodies established to cooperatively deliver migratory bird management under the flyway system. The Councils, which are comprised of representatives from each member State and Province, make recommendations to the Service on matters regarding migratory game birds. The Flyway Councils work with the Service and the Canadian Wildlife Service to manage populations of Canada geese that occur in their geographic areas. Since there are large numbers of resident Canada geese in each Flyway, the Councils developed and prepared cooperative Flyway management plans to address these populations and establish overall population goals and associated objectives/strategies. A common goal among the plans is the need to balance the positive aspects of resident Canada geese with the conflicts they can cause. While the Service does not formally adopt Flyway management plans, because of the cooperative nature of migratory bird management under the Flyway Council system, and the fact that the Flyway Councils and States are the most knowledgeable sources of information regarding the establishment of goose population goals and objectives under their purview, we believe incorporation of these management plans into the formulation of our overall resident Canada goose management help define the objectives for acceptable resident Canada goose population reduction and management. Thus, we have attempted to incorporate the goals and objectives of the Flyways' resident Canada goose management plans and their associated population objectives into the formulation of this proposed rule. A more detailed discussion of the Flyway management plans, their specific goals and objectives, is contained in the draft EIS described in the ADDRESSES section of this document.

The objective of this proposed rule is to allow State wildlife management agencies sufficient flexibility to deal with problems, conflicts, and damages caused by resident Canada geese and guide and direct resident Canada goose population growth and management activities in the conterminous United States. The program established by this rule should contribute to human health and safety, protect personal property and agricultural crops, protect other interests from injury, and allow resolution or prevention of injury to people, property, agricultural crops, or other interests from resident Canada geese. Further, the means must be effective, environmentally sound, cost-effective, flexible enough to meet the variety of management needs found throughout the flyways, should not threaten viable resident Canada goose populations as determined by each Flyway Council, and in accordance with the mission of the Service. Formulating such a national management strategy to reduce, manage, and control resident Canada goose populations in the continental United States and to reduce related damages, safety, and public health concerns was a complex problem, and Flyway input was essential for incorporating regional differences and solutions.

As such, we note that the overall population objectives established by the Flyways were derived independently based on the States' respective management needs and capabilities, and in some cases, these objectives were an approximation of population levels from an earlier time when problems were less severe. In other cases, population objective levels were calculated from what was professionally judged to be a more desirable or acceptable density of geese with respect to conflicts and concerns. We further note that these population sizes are only optimal in the sense that it was each Flyway's best attempt to balance the many competing considerations of both consumptive and nonconsumptive users. As with any goal or objective, we believe that these population objectives should be periodically reviewed and/or revised in response to changes in resident Canada goose populations, damage levels, public input, or other factors. Current resident Canada goose population estimates and population objectives for each Flyway are shown in Table 1. We note that over the last three years (2001-03), the total number of temperate-nesting Canada geese, or resident Canada geese, has averaged approximately 3.2 million in the U.S. and 1.1 in Canada for a total spring population of 4.3 million (Moser and Caswell, in press).

The rapid rise of resident Canada goose populations has been attributed to a number of factors. Most resident Canada geese live in temperate climates with relatively stable breeding habitat conditions and low numbers of predators, tolerate human and other disturbances, have a relative abundance of preferred habitat (especially those located in urban/suburban areas with current landscaping techniques), and fly relatively short distances to winter compared with other Canada goose populations. This combination of factors contributes to consistently high annual production and survival. Further, the virtual absence of waterfowl hunting in urban areas provides additional protection to those urban portions of the resident Canada goose population. Given these characteristics, most resident Canada goose populations are continuing to increase in both rural and urban areas.

We have attempted to curb the growth of resident Canada goose populations by several means. Expansion of existing annual hunting season frameworks (special and regular seasons), the issuance of control permits on a case-by-case basis, and a Special Canada goose permit have all been used with varying degrees of success. While these approaches have provided relief in some areas, they have not completely addressed the problem.

Normally, complex Federal and State responsibilities are involved with Canada goose control activities. All control activities, except those intended to either scare geese out of, or preclude them from using, a specific area, such as harassment, habitat management, or repellants, require a Federal permit issued by the Service. Additionally, permits to alleviate migratory bird depredations are issued by the Service in coordination with the Wildlife Services program of the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (Wildlife Services). Wildlife Services is the Federal agency with lead responsibility for dealing with wildlife damage complaints. In most instances, State permits are required as well.

Conflicts between geese and people affect or damage several types of resources, including property, human health and safety, agriculture, and natural resources. Common problem areas include public parks, airports, public beaches and swimming facilities, water-treatment reservoirs, corporate business areas, golf courses, schools, college campuses, private lawns, athletic fields, amusement parks, cemeteries, hospitals, residential subdivisions, and along or between highways.

Property damage usually involves landscaping and walkways, most commonly on golf courses, parks, and waterfront property. In parks and other open areas near water, large goose flocks create local problems with their droppings and feather litter (Conover and Chasko, 1985). Surveys have found that, while most landowners like seeing some geese on their property, eventually, increasing numbers of geese and the associated accumulation of goose droppings on lawns, which results in a reduction of both the aesthetic value and recreational use of these areas, cause many landowners to view geese as a nuisance (Conover and Chasko, 1985).

Negative impacts on human health and safety occur in several ways. At airports, large numbers of geese can create a very serious threat to aviation. Resident Canada geese have been involved in a large number of aircraft strikes resulting in dangerous landing/take-off conditions, costly repairs, and loss of human life. As a result, many airports have active goose control programs. Excessive goose droppings are a disease concern for many people. Public beaches in several States have been closed by local health departments due to excessive fecal coliform levels that in some cases have been traced back to geese and other waterfowl. Additionally, during nesting and brood-rearing, aggressive geese have bitten and chased people and injuries have occurred due to people falling or being struck by wings.

Agricultural and natural resource impacts include losses to grain crops, overgrazing of pastures, and degrading water quality. In heavy concentrations, goose droppings can overfertilize lawns and degrade water quality, resulting in eutrophication of lakes and excessive algae growth (Manny et al., 1994). Overall, complaints related to personal and public property damage, agricultural damage, public safety concerns, and other public conflicts have increased as resident Canada goose populations increased.

We have further described the various impacts of resident Canada geese on natural resources, public and private property, and health and human safety in our draft EIS on resident Canada goose management. Due to the volume of technical information, we refer the reader to the draft EIS for specific details. Procedures for obtaining a copy of the draft EIS are described in the ADDRESSES section of this document.

We fully analyzed the No Action alternative with regard to resident Canada goose management in our draft EIS, to which we refer the reader (U.S. Fish and Wildlife Service 2002). In summary, we expect that resident Canada goose populations will continue to grow. Within 10 years, populations could approach 1.6 million in the Atlantic Flyway, 2.0 million in the Mississippi Flyway, 1.3 million in the Central Flyway, and 450,000 in the Pacific Flyway. Additionally, resident Canada goose problems and conflicts related to goose distribution are likely to continue and expand. Resident Canada geese will continue to impact public and private property, safety, and health, and impacts are likely to grow as goose populations increase. Lastly, both Federal and State workloads related to dealing with these increasing conflicts and populations will also increase.

We fully analyzed our proposed action in the draft EIS on resident Canada goose management, to which we refer the reader for specific details (U.S. Fish and Wildlife Service 2002). In summary, under our proposed action, entitled “State Empowerment,” we expect a reduction in resident Canada goose populations, especially in problem areas. We also expect significant reductions in conflicts caused by resident Canada geese; decreased impacts to property, safety, and health; and increased hunting opportunities. We expect some initial State and Federal workload increases associated with implementation of the management strategies; however, over the long term, we expect that workloads would decrease. Lastly, we expect our proposed action to maintain viable resident Canada goose populations.

Recently completed resident Canada goose modeling in Missouri (Coluccy 2000; Coluccy and Graber 2000), when extrapolated to the entire Mississippi Flyway, indicates that reduction of the Mississippi Flyway's resident population from the current 1,335,683 geese to the Flyway Council's goal of 989,000 geese would require one of several management actions: (1) The harvest of an additional 240,000 geese annually over that already occurring; (2) the take of an additional 426,000 goslings per year; (3) a Flyway-wide nest removal of 264,000 nests annually; or (4) a combination of harvesting an additional 120,000 geese annually and the take of an additional 160,000 goslings per year. Each of these management alternatives would be required annually for 10 years to reach the Flyway's population management goal. In the Atlantic Flyway, where the resident Canada goose population is even further above established Flyway goals, these numbers would be even greater. Similar numbers would be expected in the Central Flyway, while numbers would be correspondingly smaller in the Pacific Flyway.

Thus, to reduce the four Flyways' resident populations from the current level of approximately 3.5 million to the Flyway Councils' goals of approximately 2.1 million geese would require, at a minimum for the next 10 years, either the harvest of an additional 480,000 geese annually, the take of an additional 852,000 goslings per year, a Flyway-wide nest removal of 528,000 nests annually, or a combination of the harvest of an additional 240,000 geese annually and the take of an additional 320,000 goslings per year. We believe the only way possibly to attain these numbers is to give the States the flexibility to address the problems caused by resident Canada goose populations within their respective States. By addressing population reductions on a wide number of available fronts, we believe the combination of various damage management strategies and population control strategies would successfully reduce numbers of resident Canada geese in those priority areas identified by the States. Since the States are the most informed and knowledgeable local authorities on wildlife conflicts in their respective States, we believe it is logical to authorize them to take the necessary actions within specified parameters.

To give States the needed flexibility to address the problems caused by resident Canada geese, this proposed rule would establish a regulation authorizing State wildlife agencies (or their authorized agents) to conduct (or allow) management activities, including the take of birds, on resident Canada goose populations. This proposed rule would authorize indirect and/or direct population control strategies such as aggressive harassment, nest and egg destruction, gosling and adult trapping and culling programs, expanded methods of take to increase hunter harvest, or other general population reduction strategies. The intent of this proposed rule is to allow State wildlife management agencies sufficient flexibility, within predefined guidelines, to deal with problems caused by resident Canada geese within their respective States. Other guidelines would include criteria for such activities as special take authorization during a portion of the Treaty closed period (August 1-31); control for the protection of airport safety, agriculture, and public health; and the take of nests and eggs without permits.

States could choose to implement specific strategies, such as specific depredation orders that address goose control at airports, agricultural sites, public health sites, and the non-permitted take of nests and eggs, identified under the regulation conditions and guidelines. The Orders would be for resident Canada goose populations only and, as such, in order to ensure protection of migrant Canada goose populations, could only be implemented between April 1 and August 31, except for the take of nests and eggs which could be additionally implemented in March.

Special Canada goose hunting seasons within the existing Treaty frameworks (i.e., September 1 to March 10) would continue to be handled within the existing migratory bird hunting season regulation development process. This proposed rule would also provide new regulatory options to State wildlife management agencies to potentially increase the harvest of resident Canada geese above that which results from existing special Canada goose seasons that target resident Canada geese. This proposed rule would authorize the use of additional hunting methods such as electronic calls, unplugged shotguns, and expanded shooting hours (one-half hour after sunset). During existing, operational, special September Canada goose seasons (i.e., September 1-15), these additional hunting methods would be available for use on an operational basis. Utilization of these additional hunting methods during any new special seasons or other existing, operational special seasons (i.e., September 15-30) could be approved as experimental and would require demonstration of a minimal impact to migrant Canada goose populations. These experimental seasons would be authorized on a case-by-case basis through the normal migratory bird hunting regulatory process. All of these expanded hunting methods and opportunities under Special Canada goose hunting seasons would be in accordance with the existing Migratory Bird Treaty frameworks for sport hunting seasons (i.e., 107-day limit from September 1 to March 10) and would be conducted outside of any other open waterfowl season (i.e., when all other waterfowl and crane hunting seasons were closed).

Take of resident Canada geese outside the existing Migratory Bird Treaty frameworks for sport hunting seasons (i.e., 107-day limit from September 1 to March 10) would also be available under this proposed rule by creation of a new subpart to 50 CFR part 21 specifically for the management of overabundant resident Canada goose populations. Under this new subpart, we would establish a regulation under the authority of the Migratory Bird Treaty Act with the intent to reduce and/or stabilize resident Canada goose population levels. The “managed take” regulation would authorize each State in eligible areas to initiate aggressive resident Canada goose take strategies, within the conditions that we provide, with the intent to reduce the populations. The regulation will enable States to use the general public acting under strict program controls to kill resident Canada geese, by way of shooting in a hunting manner, during the August 1 through September 15 period when all waterfowl and crane hunting seasons, excluding falconry, are closed, inside or outside the migratory bird hunting season frameworks. The regulation would also authorize the use of additional methods of take to kill resident Canada geese during that period. The regulation would authorize the use of electronic calls and unplugged shotguns, liberalize daily bag limits on resident Canada geese, and allow shooting hours to continue until one-half hour after sunset. The Service would annually assess the overall impact and effectiveness of the “managed take” regulation to ensure compatibility with long-term conservation of this resource. If at any time evidence is presented that clearly demonstrates that there no longer exists a serious threat of injury to the area or areas involved for a particular resident Canada goose population, we will initiate action to suspend the regulation, and/or regular-season regulation changes, for that population. Suspension of regulations for a particular population would be made following a public review process.

Under this proposed rule, the Service would maintain primary authority for the management of resident Canada geese, but the individual States would be authorized to implement the provisions of this regulation within the guidelines established by the Service. In addition to specific strategies, we would continue the use of special and regular hunting seasons, issued under 50 CFR 20, and the issuance of depredation permits and special Canada goose permits, issued under 50 CFR 21.41 and 21.26, respectively. Participating States would be required to annually monitor the spring breeding population to assess population status and provide for the long-term conservation of the resource. Additionally, States or other applicable parties (such as airports or public health officials) would be required to annually report all take of geese under authorized management activities.

In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), we prepared a draft EIS in February 2002. The draft EIS is available to the public at the location indicated under the ADDRESSES caption.

Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1531-1543; 87 Stat. 884) provides that “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat * * *.” We have initiated Section 7 consultation under the ESA for this proposed rule. The result of our consultation under Section 7 of the ESA will be available to the public at the location indicated under the ADDRESSES caption.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires the preparation of flexibility analyses for actions that will have a significant economic impact on a substantial number of small entities, which includes small businesses, organizations, or governmental jurisdictions. The economic impacts of this proposed rule will fall primarily on State and local governments and Wildlife Services because of the structure of wildlife damage management. Data are not available to estimate the exact number of governments affected, but it is unlikely to be a substantial number on a national scale. We estimate that implementation of new resident Canada goose management regulations would help alleviate local public health and safety concerns, decrease economic damage caused by excessive numbers of geese, and increase the quality of life for those people experiencing goose conflicts. Implementation of new resident Canada goose regulations would also help reduce agricultural losses caused by these geese. Our proposed rule would give State fish and wildlife agencies significantly more latitude to manage resident Canada goose populations. Goose populations would be reduced to levels that local communities can support, and agricultural damages from resident Canada geese would be reduced. We have determined that a Regulatory Flexibility Act analysis is not required.

In accordance with the criteria in Executive Order 12866, this proposed action is not a significant regulatory action subject to Office of Management and Budget (OMB) review. This rule will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This proposed action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. The Federal agency most interested in this action is Wildlife Services. The action proposed is consistent with the policies and guidelines of other Department of the Interior bureaus. This proposed action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This proposed action will not raise novel legal or policy issues because we have previously managed resident Canada geese under the Migratory Bird Treaty Act.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? (6)What else could the Service do to make the rule easier to understand?

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not have an annual effect on the economy of $100 million or more; nor will it cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Under the Act, information collections must be approved by OMB. Agencies 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. As required by the Act, we will submit the necessary paperwork to OMB for approval to collect this information. We will not collect any information until approved by OMB and a final regulation is published.

The proposed information collection, record-keeping, and reporting requirements imposed under proposed regulations in 50 CFR part 21, subpart E will be used to administer this program, and particularly in monitoring resident Canada goose population status and in the assessment of impacts that alternative regulatory strategies may have on resident Canada goose populations. The information collections will be required in order to authorize State governments responsible for migratory bird management to take (or allow the take of) resident Canada geese within the program guidelines.

Current total annual burden estimates for resident Canada goose depredation permits (those permits issued under 50 CFR 21.41), including the time for completing the application and filing annual reports, is 2,304 hours. The annual “out-of-pocket” cost to the applicants is approximately $12,225. Under the Special Canada Goose Permit program (50 CFR 21.26), the total annual burden, including application and reporting requirements, is 114 hours. There is no annual “out-of-pocket” cost to the respondents under the Special Canada Goose Permit program because State agencies are exempt from the $25 application processing fee (50 CFR 13.11).

Based on information in the DEIS, Wildlife Services annually receives approximately 2,000 requests for technical assistance for property damage caused by resident Canada geese. Further, in 2000, the Service issued about 1,600 depredation permits for resident Canada geese. We believe these numbers are fairly representative of the current needs status. However, we also recognize that some unknown number of needs for assistance go unreported due to either higher individual resident Canada goose damage tolerance levels or personal perceptions that the obtained assistance would not “solve” the problem. Additionally, we know that States operating under the Special Canada Goose Permit (50 CFR 21.26) have been issuing individual authorizations within their respective States. For example, in 2000, the States of Michigan, Minnesota, Missouri, and Ohio, operating under a Special Canada Goose Permit, issued 528 authorizations to individuals within their respective States. These authorizations enabled the named individual(s) to conduct control and management activities on resident Canada geese under the auspices of the State wildlife agency. Had these States not held the special permit, we believe some number of these individuals would have applied for depredation permits.

We expect that this proposed rule would alleviate approximately 2,000 current or potential permit holders from the requirement of applying for a Federal depredation permit to control and manage resident Canada geese. Thus, under this proposed rule, paperwork burden would be eliminated in two main areas: Application submission and annual reporting requirements.

Under the application-associated burden, using an average of 1.5 hours to complete an application for a depredation permit, we estimate that approximately 3,500 hours (2,000 × 1.5 hours) of existing or potential burden would be eliminated with this proposed rule. Additionally, the associated annual “out-of-pocket” cost to the current and potential applicants that would be eliminated is approximately $50,000 (2,000 applicants multiplied by a $25 application processing fee).

Under the burden associated with annual reporting requirements, a similar elimination of existing burden would occur. Normally, holders of depredation permits are required to submit an annual report detailing the number of birds, eggs, or nests actually taken under the permit. The Service uses this information to determine whether a permit holder is in compliance with the permit and to track the number of birds actually taken from the wild and monitor the impact on the resource. While most annual reporting requirements would be eliminated under the proposed rule, a few would remain (those required for the State wildlife agency summarizing activities under § 21.61(d)(1) and (6)). Others would be replaced by the maintenance of a log recording activities. As with the normal permit application, the amount of time it takes to complete the annual report or log depends on the scope of the activities. We estimate it normally takes an average of 1 hour to complete the annual report for a depredation permit. Maintenance of a log book would be significantly less burden than completion of an annual report. We estimate that maintenance of a log book would require approximately 10 minutes per logbook, or about 1 minute per entry. Thus, we estimate that the proposed rule would result in a total annual burden of 333 hours (2,000 × 10 minutes) or less for the reporting requirements.

States currently operating under the existing Special Canada Goose Permit would experience some changes in burden if they opt to operate under the proposed rule. Currently each permittee (i.e., State wildlife agency) is required to submit not only an application for the permit, but an annual report detailing the number of birds, eggs, or nests actually taken under the permit. Burden requirements for the application would be eliminated for those States that opt to participate in the new management program. However, under the proposed rule, annual reports would continue to be required for State wildlife agencies summarizing management activities under § 21.61(d)(1) and (6), similar to that required under the Special Canada Goose Permit program. We estimate it would take an average of 2 hours to complete this annual report (the same as that estimated under the Special Canada Goose Permit program). We estimate that the proposed rule would not significantly affect the overall burden associated under both programs of approximately 90 hours (45 States × 2 hours) or less.

Yes. Under § 21.61(d)(6)(iii)(H), States must keep detailed records of activities carried out under the Conservation Order and must submit an annual report summarizing such activities. We expect a maximum of 45 State wildlife agencies will participate under the authority of the Conservation Order, requiring an average of 24 hours to collect the information from program participants. Thus, the burden assumed by State participants would be 1,080 hours or less.

We estimate the maximum total annual burden would be about 1,503 hours (333 + 90 + 1,080).

Comments are invited from the public on: (1) Whether the collection of information is necessary for the proper performance of the function of the Service, including whether the information will have practical utility; (2) the accuracy of the Service's burden of the collection of information, including the validity of the methodology and assumptions used; (3) the quality, utility, and clarity of the information to be collected; and (4) how to minimize the burden of the collection of information on those who are to respond, including the use of electronic, mechanical, or other forms of information technology. Send your comments on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA via facsimile or e-mail using the following fax number or e-mail address: (202) 395-6566 (fax); OIRA_DOCKET@omb.eop.gov (e-mail); and a copy of the comments should be sent to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, ms 222-ARLSQ, 1849 C Street, NW., Washington, DC 20204.

The Unfunded Mandates Reform Act of 1995 requires agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. The purpose of the act is to strengthen the partnership between the Federal Government and State, local, and tribal governments and to end the imposition, in the absence of full consideration by Congress, of Federal mandates on these governments without adequate Federal funding, in a manner that may displace other essential governmental priorities. We have determined, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that the proposed action would not “significantly or uniquely” affect small governments, and will not produce a Federal mandate of $100 million or more in any given year on local or State government or private entities. Therefore, this action is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

We, in promulgating this rule, have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity, has been written to minimize litigation, provides a clear legal standard for affected conduct, and specifies in clear language the effect on existing Federal law or regulation. It is not anticipated that this rule will require any additional involvement of the justice system beyond enforcement of provisions of the Migratory Bird Treaty Act of 1918 that have already been implemented through previous rulemakings.

In accordance with Executive Order 12630, this proposed action, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This action will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this proposed action will help alleviate private and public property damage and concerns related to public health and safety and allow the exercise of otherwise unavailable privileges.

Due to the migratory nature of certain species of birds, the Federal Government has been given statutory responsibility over these species by the Migratory Bird Treaty Act. While legally this responsibility rests solely with the Federal Government, it is in the best interest of the migratory bird resource for us to work cooperatively with the Flyway Councils and States to develop and implement the various migratory bird management plans and strategies.

For example, in the establishment of migratory game bird hunting regulations, we annually prescribe frameworks from which the States make selections and employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Frameworks are developed in a cooperative process with the States and the Flyway Councils and any State or Tribe may be more restrictive than the Federal frameworks. This allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations.

The proposed rulemaking was developed following extensive input from the Flyway Councils, States, and Wildlife Services. Individual Flyway management plans were developed and approved by the four Flyway Councils, and States actively participated in the scoping process for the DEIS. This proposed rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. The proposed rule allows States the latitude to develop and implement their own resident Canada goose management action plan within the frameworks of the proposed alternative. Therefore, in accordance with Executive Order 13132, this proposed rule does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have determined that this rule has no effects on Federally-recognized Indian tribes. Specifically, Tribes were sent copies of our August 19, 1999, Notice of Intent (64 FR 45269) that outlined the proposed action in the Draft Environmental Impact Statement on Resident Canada Goose Management. In addition, Tribes were sent our December 30, 1999, Notice of Meetings (64 FR 73570), which provided the public additional opportunity to comment on the DEIS process. No known Native American tribes depend on this resource for sustenance or religious purposes.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

For the reasons stated in the preamble, we hereby propose to amend parts 20 and 21, of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below:

On November 27, 2001, based on a review of public comment, NOAA Fisheries announced its intent to revise the Alaska Groundfish Fisheries draft PSEIS released in January 2001 (66 FR 59228, November 27, 2001). An extensive public involvement process has resulted in the adoption of new multi-objective policy alternatives which have been analyzed in the revised PSEIS.