Background

The petition for rulemaking designated PRM-50-78 was received by the NRC on September 9, 2002. A notice of receipt of the petition and request for public comment was published in the Federal Register (FR) on October 31, 2002 (67 FR 66347). The public comment period closed January 16, 2003. Four letters of public comment were received in response to the Federal Register notice.

In PRM-50-78, the petitioner, Mr. Robert H. Leyse, requested that regulations be developed to require addressing the impact of fouling on the performance of all significant heat transfer surfaces in nuclear power plants (NPPs). The requested rule changes would also require that fouling impact be addressed in NRC-funded test programs and NRC-produced computer codes that are used to assess cooling and heat exchanger performance. The petitioner contended that fouling of heat exchange surfaces is not adequately considered in the licensing and compliance inspection of NPPs, for example, licensing bases and technical specifications do not specifically limit fouling on fuel elements. The petitioner also requested that regulations be added to require publicly available performance reports on these surfaces, including records of mechanical degradation, and cleaning procedures and their effectiveness.

In addition, the petitioner contended that fouling would restrict fuel element cooling and that axial growth beyond design limits would cause fuel rods to bow, and contact other fuel rods and control rod guide tubes. The petitioner claimed that this would lead to a safety problem. In addition, the petitioner proposed that the rules should require investigating grossly off-normal performance of heat exchange equipment. For example, the petitioner stated that fouling of steam generator tubes should be investigated because it has occasionally reduced heat transfer effectiveness to force operation at below-normal secondary side pressure, creating a safety issue.

Four letters of public comment were received on PRM-50-78. Two were from the petitioner, who noted in support of his petition that the Advisory Committee on Reactor Safeguards (ACRS) did not address fouling of heat exchange surfaces during a meeting with Electric Power Research Institute (EPRI) in October 2002 and that one of the numerous heat transfer tests done for the NRC by Westinghouse (FLECHT Run 9573) resulted in tube failure. In addition, the petitioner noted that five additional ACRS subcommittee meetings did not address fouling issues.

The Nuclear Energy Institute (NEI) opposed the petition, noting that current reporting requirements in 10 CFR 50.72 and 50.73 require reporting any event or condition that could interfere with a safety function of any system needed to shutdown that plant and maintain it in a safe condition, remove residual heat, control radiological material, or mitigate accident consequences.

The Strategic Teaming and Resource Sharing (STARS) group, a consortium of nuclear utilities, opposed the petition noting that these same concerns were previously addressed by industry organizations in comments on PRM-50-73, PRM-50-73A, and PRM-50-76. In the STARS group's view, this latest petition restates the same concern in a different context, without presenting any further evidence to provide a basis for revising the regulations. The STARS group believes that the requested additional reporting burden would not be justified by the unproven and questionable scenarios presented in the petition.

The NRC reviewed each of the petitioner's requests and concluded that none of the requests justified the initiation of rulemaking. The NRC's responses to each of the petitioners' requests are as follows:

1. Regulations are needed to address the impact of fouling on the performance of heat exchange surfaces throughout licensed nuclear power plants. The petitioner stated that this included fuel elements, steam generators, condensers, fan coolers, etc.

The NRC disagrees with the petitioner's assertion. The petitioner's assertion that regulations are needed to address the impact of fouling on fuel elements was addressed previously in a Federal Register notice of denial of PRM-50-73 and PRM-50-73A (also submitted by the petitioner) published at 68 FR 41963 on July 16, 2003. The petitioner did not submit any new information or provide any additional considerations that would cause the NRC to reconsider the denial of PRM-50-73 and PRM-50-73A.

In regard to other heat exchange surfaces, regulations and guidance addressing fouling effects on heat exchanger performance already exist for the primary and secondary sides of NPPs.

Specifically:

• 10 CFR 50.65 requires licensees to monitor performance parameters or to demonstrate that monitoring is not needed, and to provide preventive maintenance sufficient to ensure that all safety related structures, systems, or components ( e.g. , heat exchangers important to safety) are capable of fulfilling their intended functions.

• 10 CFR part 50, Appendix A, Criterion 14 (or plant-specific principal design criteria in the plant design basis for plants issued construction permits before the effective date of 10 CFR part 50, Appendix A), requires that the reactor coolant pressure boundary heat exchangers critical to safety ( e.g. , steam generators) be designed and tested to ensure an extremely low probability of abnormal leakage that might be caused by fouling or other factors. Steam generator tube performance is closely monitored by inspection as detailed in plant technical specifications. Technical specifications vary from plant to plant, but each pressurized-water reactor (PWR) plant has requirements to monitor steam generator tube performance.

• 10 CFR part 50, Appendix A, Criterion 44 (and equivalent plant-specific criteria for pre-General Design Criteria (GDC) plants), requires provision of a cooling system to transfer heat from structures, systems, and components to an ultimate heat sink under normal operating and accident conditions. This heat transfer function is accomplished by structures and components (including heat exchangers) in key safety systems such as the residual heat removal and essential service water systems.

• 10 CFR part 50, Appendix A, Criteria 45 and 46 (and equivalent plant-specific criteria for pre-GDC plants), require the capability by design to perform inspection and testing of cooling water systems to ensure integrity and adequate performance. The technical specifications for each plant define limiting conditions for operation (LCO) for systems that mitigate design basis transients and accidents. The operability requirements for those systems defined in LCOs include the adequate performance of heat exchangers needed for the systems to perform their safety functions. The specific LCOs vary by plant type and format of the plant-specific technical specifications. However, each plant does have requirements related to safety-significant heat removal systems such as residual heat removal and safety-related service water. For a typical boiling water reactor, the LCOs include but are not limited to LCOs 3.4.9 and 3.4.10 for residual heat removal, LCO 3.5.1 for emergency core cooling, LCO 3.6.5.5 for drywell air temperature, LCO 3.7.1 for standby service water and ultimate heat sink, LCO 3.7.2 for high pressure core spray service water, and LCO 3.8.1 for diesel generators. Degradation of a heat exchanger that renders a system covered by an LCO inoperable would require completion of required actions, possibly including a shutdown of the affected unit, within the required completion times. The administrative requirements defined within all plants' technical specifications also require licensees to establish and maintain various procedures related to the operation and testing of plant requirement. A partial list of the required procedures is provided in Regulatory Guide 1.33, “Quality Assurance Program Requirements (Operation).” The NRC routinely performs inspections of licensees' programs for implementing the required procedures.

• Generic Letter (GL) 89-13, “Service Water System Problems Affecting Safety-Related Equipment,” July 18, 1989, recommended that licensees initiate test programs to verify heat transfer capability of all safety-related heat exchangers cooled by service water and routine inspection and maintenance programs to ensure serviceability of safety-related systems supplied by service water. Generic Letter 89-13 specifies that a continuing program for periodic retesting should address the effects of fouling, and licensees monitor parameters such as coolant flow, temperature, and pressure indicative of acceptable heat exchanger performance.

• The NRC oversees the licensees' testing and maintenance programs via the inspection and assessment procedures included in the reactor oversight process. The NRC inspection procedure IP 71111.07, “Heat Sink Performance,” defines the current sampling and review process for NRC inspectors assessing licensees' programs for the testing and maintenance of safety-significant heat exchangers.

• Standard Review Plan (SRP) 4.2 describes the NRC review of thermal margins, effects of corrosion products, and hydraulic loads. This review also addresses postulated fuel failure resulting from overheating of fuel cladding.

• SRP 4.2 also describes the NRC review of licensee fuel design analyses to ensure that dimensional changes due to thermal or irradiation effects (such as fuel rod bowing or growth) are addressed.

Thus, the NRC believes that additional regulations are not needed to address the impact of fouling on the performance of heat exchange surfaces throughout licensed nuclear power plants.

2. Fouling of heat exchange surfaces in reactors has the potential to cause significant safety problems.

The NRC acknowledges that, left undetected, excessive fouling of key heat exchange surfaces, or other problems that challenge the safety function of those heat exchangers, could represent a significant safety problem. The classification of the important heat exchangers as safety-related equipment, and the resultant requirements associated with their design and maintenance, demonstrates their importance. The NRC determined, for example, that the clogging of service water heat exchangers could have caused safety significant problems in the past and as a result issued several generic communications culminating in Generic Letter 89-13, “Service Water System Problems Affecting Safety-Related Equipment,” July 18, 1989. The NRC believes that the current regulatory requirements for the testing and maintenance of heat exchangers (as described in GL 89-13 along with recommendations for meeting the requirements) are adequate to identify and correct potential safety significant problems in safety-related heat exchangers. Consequently, the NRC has determined that no new regulations are required to address this issue. The NRC will continue to monitor the implementation of GL 89-13 and will take appropriate action if adverse trends are observed.

3. NRC regulations must require publicly available reporting on the performance of heat exchange surfaces, including records of mechanical degradation of heat transfer assemblies, and cleaning procedures and their effectiveness.

The NRC believes that it is not necessary to report the routine operational matters involving heat exchanger degradation and cleaning which the petitioner proposes. The NRC is interested in system performance degradation when the situation might lead to a loss of safety function and regulations requiring such reporting already exist. 10 CFR 50.72, “Immediate notification requirements for operating nuclear power reactors,” and 10 CFR 50.73, “Licensee event report system,” require licensees to report on performance of any safety system in the primary or secondary sides of reactors if an event occurs that might compromise safe operating conditions, such as a deviation from plant technical specifications pertaining to residual heat removal systems.

Specifically, section 50.72(b)(3)(ii) requires reporting to the NRC within eight hours any event or condition that results in: (1) the condition of the nuclear power plant, including its principal safety barriers, being seriously degraded, or (2) the nuclear power plant being in an unanalyzed condition that significantly degrades plant safety. In addition, section 50.72(b)(3)(v) requires eight hour reporting of any event or condition that at the time of discovery could have prevented fulfillment of the safety function of structures or systems needed to: (1) Shutdown the reactor and maintain it in a safe shutdown condition, (2) remove residual heat, (3) control the release of radioactive material, and (4) mitigate the consequences of an accident. Section 50.73 (a)(2)(i)(B) requires submittal of a Licensee Event Report (LER) within sixty days regarding any operation or condition prohibited by the plants' Technical Specifications, such as failure of a covered heat exchanger, and 50.73(a)(2)(ii)(A) requires an LER for any event or condition that resulted in the condition of the nuclear power plant, including its principal safety barriers, being seriously degraded. The NRC believes that existing reporting requirements adequately address degradation of performance of heat exchange surfaces in nuclear power plants.

4. NRC regulations must address the need for investigating the grossly off-normal performance of heat exchange equipment in NPPs.

The NRC believes that the existing structure of regulations, technical specifications, reporting requirements, and licensee programs subject to NRC inspection provides the necessary confidence that plant safety systems, including heat exchangers, are properly designed and maintained. A discussion of the existing structure of requirements and programs is provided in the NRC response to the petitioner's first request. An additional regulatory requirement related directly to the need for investigating the degradation of heat exchange equipment and to take those actions necessary to ensure that the performance of the equipment will support its safety function is provided by, Criterion XVI, “Corrective Action,” of Appendix B to 10 CFR Part 50. This regulation requires that conditions adverse to quality, such as a significant degradation of a heat exchanger that is important to safety, be promptly identified and corrected. The NRC ensures compliance with these requirements by routinely performing inspections of licensees' programs for identifying and correcting problems.

5. Severe fouling of nuclear fuel elements leads to axial growth of the fuel rods beyond design limits as the operating temperature of the fuel rods becomes greater than allowed for in design. This would cause fuel rods to bow and contact adjacent rods and control rod guide tubes, interfering with coolant flow.

The NRC believes that pressurized water reactor (PWR) and boiling water reactor (BWR) fuel bundle designs provide ample space for fuel pins to expand in the axial direction. A PWR fuel pin is neither supported at the bottom nor at the top; instead, spacers are used to hold the fuel pins together. Designed space both at the bottom and at the top of fuel bundles permits fuel pins to expand thermally without touching any other structures. A BWR fuel bundle is normally seated at the bottom and there is no restriction to prevent thermal expansion into the upper plenum. Expansion springs are sometimes used between fuel pins to allow nonuniform axial expansion within a fuel bundle. For these reasons, the NRC considers it unlikely that a fuel pin will bow enough to contact adjacent rods and control rod tubes and interfere with coolant flow. SRP 4.2 requires the NRC to review licensee fuel design analysis to confirm that dimensional changes due to thermal or irradiation effects such as fuel pin bowing or axial growth are adequately addressed.

6. Fouling of heat-transfer surfaces is generally not adequately considered in the licensing and compliance inspections of NPPs.

The NRC believes that the effects of fouling of heat transfer surfaces are adequately addressed in the following NRC licensing and compliance inspection program elements:

• The NRC conducts an extensive review of the licensee's design of key safety systems, structures, and components, including heat exchangers in the primary and secondary sides of a plant. NRC staff analyses of all key safety systems, including heat exchangers, are performed during development of NRC safety evaluation reports (SERs) pertaining to a license application. As previously discussed, various regulatory requirements such as 10 CFR 50.65, Appendix B to Part 50, and plant technical specifications require that licensees maintain, test and restore equipment such that the safety functions are maintained consistent with the licensing of the plant. These processes are subject to NRC inspection to ensure that the requirements are met.

• Inspections of safety systems, structures, and components, including safety-significant heat exchangers, are designed to determine compliance with Appendix A to Part 50, “General Design Criteria for Nuclear Power Plants.” Specifically, in the Reactor Oversight Program, Inspection Procedure 71111.07, “Heat Sink Performance,” requires that a sample of safety significant heat exchangers ( e.g. , for the residual heat removal, component cooling water, emergency core cooling systems) be inspected both annually for specific performance issues and biennially for an intense review of heat transfer characteristics.

7. The NRC must require by rule the inclusion of fouling considerations in NRC-funded heat transfer test programs and in the several heat exchanger computer programs produced by the NRC.

The NRC believes that these requirements do not need to be included by regulation.

• NRC-funded computer codes used to audit emergency core cooling system (ECCS) performance are capable of considering the impact of fouling on the performance of fuel element surfaces, and these codes have been used for that purpose when warranted.

• Ongoing experimental and analytical test programs ( e.g. , Argonne National Laboratory study on fuel cladding performance) in the NRC Office of Nuclear Regulatory Research (RES) are investigating transient and operational oxidation models, including effects of significant pre-oxidation.

• Calculations were performed by RES to support the evaluation of this petition using NRC computer codes. These calculations showed that fouling and excess pre-oxidation would not have a significant effect on reflood heat transfer capability.

• The NRC fuel performance code FRAPCON-3 can calculate enhanced oxidation from crud buildup on fuel element surfaces.

• The RELAP and TRACE codes use the FRAPCON information to calculate transient effects.

The NRC has evaluated the advantages and disadvantages of the rulemaking requested by the petitioner with respect to the five performance goals set out by the Commission in the Strategic Plan for Fiscal years 2004-2009 announced on August 12, 2004.

1. Maintaining Safety: The NRC believes that the requested rulemaking would not make a significant contribution to maintaining safety because current regulations, regulatory guidance and practices already provide for monitoring, detecting, and correcting possible fouling effects on heat exchanger performance. In addition, no data or evidence was provided by the petitioner to suggest that fouling of heat exchanger surfaces created any significant safety problems.

2. Ensure Secure Use and Management of Radioactive Material: The petitioner has not established, nor has the NRC found the existence of, any safety issues regarding the performance of heat exchange surfaces that would compromise the secure use of licensed radioactive material.

3. Ensuring Openness in the NRC Regulatory Process: The Administrative Procedures Act provides that any interested person has the right to petition an agency for issuance, amendment, or repeal of a rule. This statute expands on the “right to petition” provided by the First Amendment to the Constitution. The NRC implements this statute through 10 CFR 2.802, Petition for rulemaking, using guidance provided in NUREG-BR-0053, Revision 5, U.S. NRC Regulations Handbook, to ensure that the regulatory process takes place in an open manner.

4. Improving Efficiency, Effectiveness, and Realism: The proposed revisions would not improve efficiency, effectiveness, and realism because licensees and the NRC would be required to generate additional and unnecessary information as part of the evaluation of numerous heat exchanger surfaces throughout the nuclear power plant. Revising the regulations to be more specific about effects of fouling on heat exchanger performance would require an expenditure of NRC resources with little or no added safety benefit.

5. Ensure Excellence in NRC Management: The petitioner's request to revise the regulations to address the impact of fouling on all heat exchange surfaces in a nuclear power plant is not applicable to the strategic goal of continuous improvement in NRC management effectiveness.

The Commission is denying the petition for rulemaking (PRM-50-78).

The NRC regulation and oversight of nuclear power plants includes the establishment of regulations, the issuance of operating licenses and technical specifications, and continual inspections and technical reviews of licensee programs and plant performance. When viewed in total, these regulatory requirements and related oversight practices provide confidence in the safety of operating nuclear power plants. The NRC's finding that no rulemaking is required, is based on the determination that the existing structure of regulations ( i.e. , 10 CFR 50.65, Appendix A and B to part 50), technical specifications, and licensee programs subject to NRC inspection provides confidence that plant safety features, including heat exchangers, are properly designed and maintained in order to fulfill their intended function.

The Commission concludes that the integration of the various requirements and related NRC oversight functions provide reasonable assurance that systems important to safety, such as heat exchangers, will perform their intended functions. The addition of specific requirements to a regulation to address heat exchanger performance is not necessary.

For these reasons, the Commission denies PRM-50-78.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On April 20, 2001, Boeing Commercial Airplanes, PO Box 3707, Seattle, Washington 98124, applied for a type certificate design change to install inflatable lapbelts for head injury protection on certain seats in Boeing Model 777 series airplanes. The Model 777 series airplane is a swept-wing, conventional-tail, twin-engine, turbofan-powered transport. The inflatable lapbelt is designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, as determined by the Head Injury Criteria (HIC) measurement. The inflatable lapbelt behaves similarly to an automotive airbag, but in this case the airbag is integrated into the lapbelt, and inflates away from the seated occupant. While airbags are now standard in the automotive industry, the use of an inflatable lapbelt is novel for commercial aviation.

Because the existing airworthiness standards of 14 CFR part 25 do not address inflatable lapbelts, the FAA developed special conditions to address this design feature. Special Conditions No. 25-187-SC were issued to Boeing Commercial Airplanes on October 3, 2001, and published in the Federal Register on October 12, 2001 (66 FR 52017).

On February 26, 2004, The Boeing Company requested that the FAA amend SC No. 25-187-SC to address flammability of the airbag material. During the development of the inflatable lapbelt the manufacturer was unable to develop a fabric that would meet the inflation requirements for the bag and the flammability requirements of Part I(a)(1)(i) of appendix F to part 25. The fabrics that were developed that meet the flammability requirement did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric the meets the less stringent flammability requirements of Part I(a)(1)(iv) of appendix F to part 25 and has acceptable deployment characteristics.

Part I of appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in appendix F because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on both material types, as well as use, and have been specified in light of the state-of-the-art of materials available to perform a given function. In the absence of a specific reference, the default requirement would be for the type of material used to construct the inflatable restraint, which is a fabric in this case. However, in writing a special condition, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Since the safety benefit of the inflatable restraint is very significant, the flammability standard appropriate for these devices should not screen out suitable materials, thereby effectively eliminating use of inflatable restraints. The FAA will need to establish a balance between the safety benefit of the inflatable restraint and its flammability performance. At this time, the 2.5 inch per minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

The additional proposed safety standard would be added as Item 14 to existing SC 25-187-SC. Although Items 1 through 13 are standards already adopted in Special Conditions No. 25-187-SC and are not subject to further public comment, they are repeated later in this notice in order to place the additional standard in proper perspective.

Under the provisions of § 21.101, Boeing Commercial Airplanes must show that the Model 777 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE are as follows: Amendments 25-1 through 25-82 for the Model 777-200, and amendments 25-1 through 25-86 with exceptions for the Model 777-300. The U.S. type certification basis for the Model 777 is established in accordance with §§ 21.29 and 21.17 and the type certification application date. The U.S. type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25 as amended) do not contain adequate or appropriate safety standards for Boeing Model 777 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777 must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36.

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

Delivery of Model 777 airplanes with the additional flammability standard is currently scheduled for January 2006. Because a delay would significantly affect the applicant's installation and type certification of the airbag material, the public comment period is 20 days.

This action affects only certain novel or unusual design features on the Boeing Model 777 series airplanes. It is not a rule of general applicability, and it affects only Model 777 series airplanes listed on Type Certificate Data Sheet T00001SE.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration proposes the following additional special condition (Item No. 14) as part of the type certification basis for the Boeing Model 777 series airplanes with inflatable lapbelts installed. (Existing special condition Items 1-13 are repeated below for clarity only.).

1. Seats With Inflatable Lapbelts. It must be shown that the inflatable lapbelt will deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a ninety-fifth percentile male. The inflatable lapbelt must provide a consistent approach to energy absorption throughout that range. In addition, the following situations must be considered:

a. The seat occupant is holding an infant.

b. The seat occupant is a child in a child restraint device.

c. The seat occupant is a child not using a child restraint device.

d. The seat occupant is a pregnant woman.

2. The inflatable lapbelt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active seatbelts.

3. The design must prevent the inflatable lapbelt from being either incorrectly buckled or incorrectly installed such that the inflatable lapbelt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required head injury protection.

4. It must be shown that the inflatable lapbelt system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.

5. Deployment of the inflatable lapbelt must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys and an occupant whose belt is loosely fastened.

6. It must be shown that an inadvertent deployment that could cause injury to a standing or sitting person is improbable.

7. It must be shown that inadvertent deployment of the inflatable lapbelt during the most critical part of the flight will either not cause a hazard to the airplane or is extremely improbable.

8. It must be shown that the inflatable lapbelt will not impede rapid egress of occupants 10 seconds after its deployment.

9. The system must be protected from lightning and HIRF. The threats specified in Special Condition No. 25-ANM-78 are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lapbelt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.

10. The inflatable lapbelt must function properly after loss of normal aircraft electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lapbelt does not have to be considered.

11. It must be shown that the inflatable lapbelt will not release hazardous quantities of gas or particulate matter into the cabin.

12. The inflatable lapbelt installation must be protected from the effects of fire such that no hazard to occupants will result.

13. There must be a means for a crewmember to verify the integrity of the inflatable lapbelt activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals.

14. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test as defined in 14 CFR part 25, appendix F, part I, paragraph (b)(5). As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this document must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-17896/Airspace Docket No. 04-AGL-13.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class D airspace at Grissom AFB, IN. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing instrument approach procedures. The area would be depicted on appropriate aeronautical charts. Class D airspace areas extending upward from the surface of the earth are published in paragraph 5000 of FAA Order 7400.9L dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an establishment body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore this, proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to name, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this document must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-18534/Airspace Docket No. 04-AGL-17.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov./nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class E airspace at Hibbing, MN, for Chisholm-Hibbing Airport. Controlled airspace extending upward from 700 feet or more above the surface of the earth is needed to contain aircraft executing instrument approach procedures. The area would be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an establishment body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipation impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this document must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-18948/Airspace Docket No. 04-AGL-18.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class E airspace at Mount Comfort, IN, for Mount Comfort Airport. Controlled airspace extending upward from 700 feet or more above the surface of the earth is needed to contain aircraft executing instrument approach procedures. The area would be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an establishment body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore this, proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this document must submit with those comments a self-addressed, stamped postcard on which the following statment is made: “Comments to Docket No. FAA-2004-18533/Airspace Docket No. 04-AGL-16.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plains, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov/nara.

Additionally, any person may otain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to revoke Class E airspace at Findlay, OH, for Findlay Airport. Class E airspace areas extending upward from the surface of the earth are published in paragraph 6002 of FAA Order 7400.9L dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an establishment body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend CFR part 71 as follows:

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances and releases or substantial threats of releases into the environment of any pollutant or contaminant which may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant which may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

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

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants, or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing an HRS score and determining whether the facility is placed on the NPL. At Federal Facilities Section sites, EPA's role is less extensive than at other sites.

There are three mechanisms for placing sites on the NPL for possible remedial action ( see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Pursuant to 42 U.S.C 9605(a)(8)(B), each State may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each State as the greatest danger to public health, welfare, or the environment among known facilities in the State. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

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

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

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

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on July 22, 2004 (69 FR 43755).

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

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

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

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

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

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

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

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

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate. As of September 13, 2004, the Agency has deleted 285 sites from the NPL.

In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use. As of September 13, 2004, EPA has deleted 46 portions of 38 sites.

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

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

As of September 13, 2004, there are a total of 904 sites on the CCL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund.

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

You may view the documents, by appointment only, in the Headquarters or the Regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding Federal holidays. Please contact the Regional dockets for hours.

The following is the contact information for the EPA Headquarters docket: Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room B102, Washington, DC 20004, (202) 566-0276. (Please note this is a visiting address only. Mail comments to EPA Headquarters as detailed at the beginning of this preamble.)

The contact information for the Regional dockets is as follows:

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

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

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

John Wright, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., 9th floor, Atlanta, GA 30303; (404) 562-8123.

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

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

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

Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th Street, Suite 500, Mailcode 8EPR-B, Denver, CO 80202-2466; (303) 312-6463.

Jerelean Johnson, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; (415) 972-3094.

Tara Martich, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-115, Seattle, WA 98101; (206) 553-0039.

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

You may also access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr. You may use EPA Dockets at http://www.epa.gov/edocket to access the index listing of the contents of the Headquarters docket, and to access those documents in the Headquarters docket. Once in the system, select “search”, then key in the Docket ID No. SFUND-2004-0012. Please note that there are differences between the Headquarters Docket and the Regional Dockets and those differences are outlined below.

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

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

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

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

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

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

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

All public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket (EPA Dockets at http://www.epa.gov/edocket ) as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. Once in the EPA Dockets system, select “search”, then key in the Docket ID No. SFUND-2004-0012. For additional information about EPA's electronic public docket, visit EPA Dockets online at http://www.epa.gov/edocket or see the May 31, 2002 Federal Register (67 FR 38102).

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

With today's proposed rule, EPA is proposing to add 14 new sites to the NPL; all to the General Superfund Section of the NPL. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above. The sites are presented in Table 1 which follows this preamble.

A final rule published elsewhere in today's Federal Register finalizes two sites to the NPL; resulting in an NPL of 1,244; 1086 in the General Superfund Section and 158 in the Federal Facilities Section. With this proposal of 14 new sites and the withdrawal of one proposal discussed below, there are now 68 sites proposed and awaiting final agency action, 61 in the General Superfund Section and seven in the Federal Facilities Section. Final and proposed sites now total 1,312. (These numbers reflect the status of sites as of September 13, 2004. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register .)

EPA is withdrawing the proposal to add the East Multnomah County Ground Water Contamination site in Multnomah County, Oregon to the NPL. The proposed rule can be found at 58 FR 27507 (May 10, 1993). Refer to the Superfund docket for supporting documentation regarding this action.

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

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

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.

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

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is a summary of the Commission's Notice of Proposed Rule Making, ET Docket No. 04-295, FCC 04-187, adopted August 4, 2004, and released August 9, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov . Alternate formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before November 8, 2004, and reply comments on or before December 7, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number.

All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

1. In the Notice of Proposed Rulemaking (“NPRM”), the Commission examines issues relating to the scope of CALEA's applicability to packet-mode services, such as broadband Internet access, and implementation and enforcement issues. The Commission tentatively conclude that: (1) Congress intended the scope of CALEA's definition of “telecommunications carrier” to be more inclusive than that of the Communications Act; (2) facilities-based providers of any type of broadband Internet access service, whether provided on a wholesale or retail basis, are subject to CALEA; (3) “managed” Voice over Internet Protocol (“VoIP”) services are subject to CALEA; (4) the phrase in § 102 of CALEA “a replacement for a substantial portion of the local telephone exchange service” calls for assessing the replacement of any portion of an individual subscriber's functionality previously provided via “plain old telephone service” (“POTS”); and (5) call-identifying information in packet networks is “reasonably available” under § 103 of CALEA if the information is accessible without “significantly modifying a network.” We seek comment on: (1) the feasibility of carriers relying on a trusted third party to manage their CALEA obligations and to provide to law enforcement agencies (“LEAs”) the electronic surveillance information they require in an acceptable format; and (2) whether standards for packet technologies are deficient and should not serve as safe harbors for complying with § 103 capability requirements.

2. We also propose mechanisms to ensure that telecommunications carriers comply with CALEA. Specifically, we propose to restrict the availability of compliance extensions under CALEA § 107(c) and clarify the role and scope of CALEA § 109, which addresses the payment of costs of carriers to comply with the § 103 capability requirements. Additionally, we consider whether, in addition to the enforcement remedies through the courts available to LEAs under CALEA § 108, we may take separate enforcement action against carriers that fail to comply with CALEA. We tentatively conclude that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities; seek comment on cost recovery issues for wireline, wireless and other carriers; and refer to the Federal-State Separations Joint Board cost recovery issues for carriers subject to Title II of the Communications Act.

3. CALEA, which was enacted in 1994, requires telecommunications carriers to incorporate into their networks technical capabilities to enable law enforcement to conduct lawful electronic surveillance. See Public Law 103-414, 108 Stat. 4279 (1994) (codified as amended in 18 U.S.C. 2522 and 47 U.S.C. 229, 1001-1010). CALEA does not authorize electronic surveillance; rather, it is intended to ensure that law enforcement has the ability to conduct electronic surveillance effectively and efficiently in the face of rapid advances in telecommunications technology. The various statutory provisions of CALEA are focused on the following topics: assistance capability to law enforcement; system capacity for simultaneous wiretaps, implementation and enforcement.

4. The Commission initiated this rulemaking proceeding in response to a joint petition for rulemaking filed by the Department of Justice, Federal Bureau of Investigation and Drug Enforcement Administration on March 10, 2004. The petition requested the Commission to resolve outstanding issues regarding CALEA implementation, including identifying the types of packet-mode services and entities providing such services that are subject to CALEA, establishing benchmarks and deadlines for CALEA packet-mode compliance, establishing procedures for enforcement action by the Commission, and clarifying certain cost recovery issues.

5. In the NPRM, we addressed the types of services and entities encompassed by the terms “broadband access service” and “broadband telephony service.” We rely on Law Enforcement's definitions to a large extent in this endeavor. We attempt to identify services and processes that provide broadband access to the public Internet, focusing primarily on those services and entities using packet-mode technology. In the NPRM , we refer to “broadband access service” and “broadband Internet access service” interchangeably. Law Enforcement does not define the term “broadband,” and thus we will rely on previous uses we have made of this term, i.e. , those services having the capability to support upstream or downstream speeds in excess of 200 kilobits per second (“kbps”) in the last mile. Finally, this NPRM addresses broadly CALEA compliance for any packet-mode application and focuses specifically on voice communications. We recognize that although broadband access for voice telephony communications could be provided using various packet-mode technologies, most packet voice communications in commercial use today are provided using the Internet Protocol and are commonly referred to as “VoIP.” Thus, we refer to VoIP rather than “broadband telephony service” in the NPRM .

6. In the NPRM , we also addressed several other issues raised by Law Enforcement. Law Enforcement urges the Commission to take a more active role in CALEA implementation by, for example, establishing benchmarks and deadlines for packet-mode compliance and enforcement of CALEA requirements. We seek comment on these proposals, as well as alternatives, all designed with the goal of moving carriers toward full CALEA compliance rapidly. We therefore explore alternative methods of achieving the same objective. Finally, LEAs are very concerned about the cost of conducting electronic surveillance and believe that increased rates for such surveillance might hamper their ability to rely on this important investigative tool. As the number of electronic surveillances has increased, so have the rates carriers charge LEAs. In the NPRM , we clarify and seek comment on various cost and cost recovery issues.

7. We tentatively conclude that facilities-based providers of any type of broadband Internet access service, whether provided on a wholesale or retail basis, are subject to CALEA because, under the “Substantial Replacement Provision” of § 102(8)(B)(ii) of CALEA, they provide a replacement for a substantial portion of the local telephone exchange service used for dial-up Internet access service and treating such providers as telecommunications carriers for purposes of CALEA is in the public interest. Broadband Internet access providers include, but are not limited to, wireline, cable modem, satellite, wireless, and broadband access via powerline companies. We seek comment on this tentative conclusion. In addition, we tentatively conclude that providers of VoIP services that Law Enforcement characterizes as “managed” or “mediated” are subject to CALEA as telecommunications carriers under § 102(8)(B)(ii) of CALEA. Law Enforcement describes managed or mediated VoIP services as those services that offer voice communications calling capability whereby the VoIP provider acts as a mediator to manage the communication between its end points and to provide call set up, connection, termination, and party identification features, often generating or modifying dialing, signaling, switching, addressing or routing functions for the user. Law Enforcement distinguishes managed communications from “non-managed” or “peer-to-peer” communications, which involve disintermediated communications that are set up and managed by the end user via its customer premises equipment or personal computer. In these non-managed, or disintermediated, communications, the VoIP provider has minimal or no involvement in the flow of packets during the communication, serving instead primarily as a directory that provides users' Internet web addresses to facilitate peer-to-peer communications. We request comment on the appropriateness of this distinction between managed and non-managed VoIP communications for purposes of CALEA.

8. Law Enforcement asserts that CALEA applies to broadband Internet access service and mediated VoIP services and that application is critical to its efforts to combat crime and terrorism. We base our tentative conclusion that those services are subject to CALEA on an analysis of the statute and its legislative history—which demonstrate that the meaning of “telecommunications carrier” in CALEA is broader than its meaning under the Communications Act—and on Congress's stated intent “to preserve the government's ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission modes.” See, H.R. Rep. No. 103-827(I)(1994).

9. CALEA requires “telecommunications carriers” to ensure that their equipment, facilities, and services are capable of providing surveillance capabilities to LEAs, and CALEA contains its own unique definition of “telecommunications carrier.” CALEA defines this term in section 102(8). See 47 U.S.C. 1001(8). For purposes of CALEA, a “telecommunications carrier” is “a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire,” but also includes entities that provide “a replacement for a substantial portion of the local telephone exchange service” if the Commission deems those entities to be “telecommunications carriers” as well, 47 U.S.C. 1001(8).

10. We tentatively conclude that Congress intended the scope of CALEA's definition of “telecommunications carrier” to be more inclusive than that of the Communications Act. We base this tentative conclusion on the facial differences in the statutory language discussed below. We acknowledge the Commission's previous statement that it expected “in virtually all cases that the definitions of the two Acts will produce the same results,” see , Second R&O at 7112, ¶ 13. In making that statement, however, the Commission foreshadowed the possibility that the definitions under each of the two statutes may differ when it also concluded that it is “a matter of law that the entities and services subject to CALEA must be based on the CALEA definition * * * independently of their classification for the separate purposes of the Communications Act.” We seek comment on our analysis.

11. In the past, the Commission has never before exercised its § 102(8)(B)(ii) discretion to identify additional entities that fall within CALEA's definition of “telecommunications carrier.” Moreover, it has never, until now, solicited comment on the discrete components of this section or on specific classes of entities to which this section might apply. We therefore seek comment on what criteria we should apply to deem an entity a “telecommunications carrier” under the Substantial Replacement Provision and to which services CALEA should apply.

12. The Commission seeks comment on the three articulated components of the Substantial Replacement Provision. First, we seek comment on the phrase “engaged in providing wire or electronic communication switching or transmission service,” see 47 U.S.C. 1001(8)(B)(ii); see also 47 U.S.C. 1001(8)(A). Because of Congress's stated purpose to require compliance with CALEA “with respect to services or facilities that provide a customer or subscriber with the ability to originate, terminate or direct communication,” see 47 U.S.C. 1002(a), we read the phrase “switching or transmission service” broadly here. Specifically, we interpret “switching” in this section to include routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations. These functions are similar to the switching functions in a circuit-switched network and thus we believe CALEA's explicit inclusion of the word “switching” is meant to include these capabilities. With regard to “transmission,” we note that CALEA does not limit “transmission” in § 102 to transmission “without change in the form or content of the information as sent or received,” as does the Communications Act. Thus, we would interpret the “switching or transmission” component of the Substantial Replacement Provision to include entities that provide the underlying broadband transmission capability of Internet access services. The Commission seeks comment on this analysis and inquire specifically what types of “switching or transmission” satisfy this component of the Substantial Replacement Provision.

13. Second, we consider the meaning of the phrase “a replacement for a substantial portion of the local telephone exchange service.” We tentatively conclude that the phrase “a replacement for a substantial portion of the local telephone exchange service” reaches the replacement of any portion of an individual subscriber's functionality previously provided via POTS, e.g. , the telephony portion of dial-up Internet access functionality when replaced by broadband Internet access service. Finally, we seek comment on the meaning of “public interest” under § 102(8)(B)(ii) of CALEA.

14. Law Enforcement seeks a Commission declaration that all forms of broadband Internet access are subject to CALEA. Law Enforcement asserts that these services are so clearly subject to CALEA that the Commission should issue a ruling declaring so. While we agree with commenters that we must develop a more complete record on the substantial factual and legal issues involved before we can make final determinations, we tentatively conclude that facilities-based providers of any type of broadband Internet access, including but not limited to wireline, cable modem, satellite, wireless, and broadband access via the powerline, whether provided on a wholesale or retail basis, are subject to CALEA because they provide replacement for a substantial portion of the local telephone exchange service used for dial-up Internet access service and such treatment is in the public interest. We base this belief on our reading of CALEA and its legislative history as well as the record thus far.

15. In reaching this tentative conclusion, the Commission tentatively determine that such broadband Internet access service providers satisfy each of the three prongs of the Substantial Replacement Provision: broadband Internet access includes the switching (routing) and transmission functionality; it replaces a substantial portion of the local telephone exchange service used for narrowband Internet access; and the public interest factors we consider at a minimum, i.e. , the effect on competition, the development and provision of new technologies and services, and public safety and national security, weigh in favor of subjecting these broadband Internet access services to CALEA.

16. There may exist discrete groups of entities for which the public interest may not be served by including them under the Substantial Replacement Provision. As discussed in the NPRM, we will base such determination on the three public interest factors, at a minimum, including: whether it would promote competition, encourage the development of new technologies, and protect public safety and national security. For example, entities that deploy broadband capability to consumers in underserved areas may fall in this category because of the potential deterrent effect it could have on deployment in particular circumstances (negatively impacting the first and second factors, i.e. , protecting competition and encouraging the development of new technologies).

17. We do not believe that CALEA's exclusion for information services should alter our tentative conclusion. Congress expressly excluded “persons or entities insofar as they are engaged in providing information services” see 47 U.S.C. 1001(6)(B) & (C), from CALEA's definition of “telecommunications carrier.” See 47 U.S.C. 1001(8)(C)(i); see also 47 U.S.C. 1002(b)(2)(A) (stating that CALEA's capability requirements do not apply to information services). (We refer to this as the “Information Services Exclusion.”) We also note that § 103(b)(2)(A) of CALEA provides that the CALEA capability requirements do not apply to information services. CALEA's definition of “information services” is very similar to that of the Communications Act,” see 47 U.S.C. 153(20). For purposes of the Communications Act, the Commission has concluded that cable modem service is an information service and has tentatively concluded that wireline broadband Internet access service is also an information service. Assuming those determinations become final, those services would, nonetheless, have to be evaluated under CALEA's separate definition of “telecommunications carrier” which is broader than the definition in the Communications Act. Where a service provider is found to fall within CALEA's Substantial Replacement Provision it would be deemed a “telecommunications carrier” for purposes of CALEA to which CALEA obligations would apply. If, at the same time, we interpreted CALEA's Information Services Exclusion to apply, it would present an irreconcilable tension; that is, particular service providers would find themselves at the same time subject to CALEA under the Substantial Replacement Provision and exempted from it by virtue of the Information Services Exclusion. We believe that the better reading of the statute is to recognize and give full effect to CALEA's broader definition of “telecommunications carrier” and to interpret the statute to mean that where a service provider is determined to fall within the Substantial Replacement Provision, by definition it cannot be providing an information service for purposes of CALEA.

18. VoIP Services. There is a wide array of packet-based services currently using IP as well as numerous ways that VoIP capabilities might be provided to consumers. For example, one VoIP service in particular, which we refer to in this proceeding as “managed” VoIP, may be offered to the general public as a means of communicating with anyone, including parties reachable only through the public switched telephone network (“PSTN”). Other VoIP offerings involve the capability to communicate on a peer-to-peer basis only with other members of a closed user group or groups. Still other VoIP capabilities may be additional features of other services or applications that enable voice communications with a particular user group.

19. We tentatively conclude that providers of managed VoIP services, which are offered to the general public as a means of communicating with any telephone subscriber, including parties reachable only through the PSTN, are subject to CALEA. We believe that such VoIP service providers satisfy each of the three prongs of the Substantial Replacement Provision with respect to their VoIP services. That is, they provide an electronic communication switching or transmission service that replaces a substantial portion of local exchange service for their customers in a manner functionally the same as POTS service; and the public interest factors we consider at a minimum— i.e. , the effect on competition, the development and provision of new technologies and services, and public safety and national security—support subjecting these providers to CALEA. We believe there is an overriding public interest in maintaining Law Enforcement's ability to conduct wiretaps of on-going voice communications that are taking place over networks that are rapidly replacing the traditional circuit-switched network, yet providing consumers essentially the same calling capability that exists with legacy POTS service. We understand that basic capabilities essential to Law Enforcement's surveillance efforts, such as access to call management information ( e.g. , call forwarding, conference call features such as party join and drop) and call set up information ( e.g. , real time speed dialing information, post-dial digit extraction information) may not be reasonably available to the broadband access provider. Consequently, subjecting only the broadband access provider to CALEA without including managed VoIP service providers could undermine Law Enforcement's surveillance efforts. We seek comment on this analysis.

20. The Commission also seeks comment on our tentative conclusion that providers of non-managed, or disintermediated, communications should not be subject to CALEA. Non-managed VoIP services, such as peer-to-peer communications and voice enabled Instant Messaging, as currently provided, do not appear to be subject to CALEA for two reasons. First, because they are confined to a limited universe of users solely within the Internet or a private IP-network, they may be more akin to private networks, which Congress expressly excluded from section 103's capability requirements. Therefore, they do not appear to replace a substantial portion of local exchange service; as such they do not appear to fall within the Substantial Replacement Provision. Second, they may be excluded information services under § 103(b)(2)(A). We seek comment on this issue.

21. Identification of Future Services and Entities Subject to CALEA. We tentatively conclude that it is unnecessary for us to adopt Law Enforcement's proposal regarding the identification of future services and entities subject to CALEA. We recognize Law Enforcement's need for more certainty regarding the applicability of CALEA to new services and technologies. We expect, however, the Commission's Report and Order in this proceeding to provide substantial clarity on the application of CALEA to new services and technologies that should significantly resolve Law Enforcement's and industry's uncertainty about compliance obligations in the future.

22. Packet technologies are fundamentally different from the circuit switched technologies that were the primary focus of the Commission's earlier decisions on CALEA. These differences have led to disagreements among Law Enforcement and industry as to how to interpret and apply telecommunications carriers' obligations under § 103 of CALEA. Telecommunications carriers are required, under § 103 of CALEA, to enable LEAs, pursuant to a court order or other lawful authorization, (1) to intercept, to the exclusion of other communications, wire and electronic communications carried by the carrier to or from a subject, and (2) to access call-identifying information that is reasonably available to the carrier, subject to certain conditions. Further, the interception of communications or access to call-identifying information is to be delivered to LEAs in a format that may be transmitted, over the equipment, facilities or services procured by LEAs, to a location other than the provider's premises and in a way that protects the privacy and security of communications and information not authorized to be intercepted or accessed.

23. CALEA defines call-identifying information as “dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier,” 47 U.S.C. 1001(2). We believe that carriers, manufacturers and Law Enforcement have applied the statutory definition of call-identifying information, as well as the Commission's definitions for the terms origin, destination, direction and termination, in developing standards or proprietary solutions for packet-mode technologies. However, the exact application of these terms is not always clear because call-identifying information may be found within several encapsulated layers of protocols.

24. We seek comment on whether the Commission needs to clarify the statutory term “call-identifying information” for broadband access and VoIP services. We ask that commenters provide specific suggestions for these definitional issues. A more precise understanding of these terms would support the Commission's efforts to encourage carriers' compliance with their CALEA obligations whether in acting on petitions filed under § 107(c) or 109(b) or in pursuing enforcement actions for violations of the Commission's rules. We also invite comment as to how the Commission should apply the term “reasonably available” to broadband access.

25. We tentatively conclude that we should apply the same criteria that we applied to circuit-mode technology— i.e. information may not be “reasonably” available if the information is only accessible by significantly modifying a network—to broadband access and VoIP providers. We seek comment on this tentative conclusion. We recognize that, when looking at end-to-end service architectures, it is not always readily apparent where call-identifying information is available. We seek comment on where content and various kinds of call-identifying information are available in the network and further whether the information is reasonably available to the carrier.

26. Compliance solutions based on use of a “trusted third party. ” Telecommunications carriers under CALEA may use a variety of means for making content or call-identifying information available to LEAs. We seek comment on one approach that, although it would not relieve carriers of their obligation to comply with CALEA, may simplify or ease the burden on carriers and manufacturers in providing packet content and call-identifying information. We refer to this approach as the “trusted third party” approach, that is being used today both in the United States and elsewhere. A trusted third party is a service bureau with a system that has access to a carrier's network and remotely manages the intercept process for the carrier. The service bureau may manage CALEA operations for multiple carriers, and the service bureau's system may be completely external to all of those carriers' networks.

27. The trusted third party approach recognizes that, even if a carrier does not process certain call-identifying information, that information may be extracted from that carrier's network and delivered to a LEA. The trusted third party obtains the call content and call-identifying information in either of two ways. The trusted third party could rely on a mediation device to collect separated call content and call-identifying information from various points in the network and to deliver the appropriate information to a LEA. Alternatively, the trusted third party could rely on an external system to collect combined call content and call-identifying information and to deliver the appropriate information to a LEA. We believe that the availability of a trusted third party approach makes call-identifying information “reasonably” available to a telecommunications carrier under § 103(a)(2). We seek comment on this analysis.

28. We seek comment on the feasibility of using a trusted third party approach to extract the content and call-identifying information of a communication from packets. In particular, we seek comment on whether an external system would be an efficient method to extract information from packets. It seems that external systems might provide economies of scale for small carriers. What would be the approximate relative costs of internal versus external systems for packet extraction?

29. We recognize, however, that there may be some tension between relying on a trusted third party model and relying on “safe harbor” standards for complying with CALEA § 103 capability requirements. For example, if a trusted third party approach makes call-identifying information “reasonably” available to a telecommunications carrier, should a standard that requires a carrier to provide only the information it uses to process a packet be considered a “safe harbor” if a LEA would not have all call-identifying information for the communication?

30. Finally, we seek comment on how a telecommunications carrier that relies on a trusted third party would meet its obligations under § 103(a) of CALEA, e.g. , to protect the privacy and security of communications and call-identifying information not authorized to be intercepted, as well as to protect information regarding the government's interception of communications and access to call-identifying information.

31. Compliance solutions based on CALEA “Safe Harbor” standards. Subsection 107(a)(2) of CALEA states that “[a] telecommunications carrier shall be found to be in compliance with the assistance capability requirements under § 103, and a manufacturer of telecommunications transmission or switching equipment or a provider of telecommunications support services shall be found to be in compliance with section 106, if the carrier, manufacturer, or support service provider is in compliance with publicly available technical requirements or standards adopted by an industry association or standard-setting organization, or by the Commission under subsection (b), to meet the requirements of § 103.” See, 47 U.S.C. 1001(2). We ask parties to comment on industry standards for packet-mode technologies in an attempt to determine whether any of these standards are deficient and thus preclude carriers, manufacturers and others from relying on them as safe harbors in complying with CALEA § 103. By doing so, however, we do not intend to inhibit the ongoing work by standards organizations, carriers and manufacturers to develop and deploy CALEA-compliant facilities and services. We recognize that CALEA provides that carriers and others may rely on publicly available technical requirements or standards adopted by an industry association or standard-setting organization to meet the requirements of CALEA § 103, unless the Commission takes specific action in response to a petition.

32. CALEA compliance for satellite networks based on system-by-system agreements. We note that satellite carriers have used a CALEA approach based on negotiation with LEAs, resulting in private agreements to provide information to LEAs. Satellite networks differ in fundamental ways not only from terrestrial networks but also from each other. These differences arise from unique aspects of the type of satellite used in the network ( e.g. , non-geostationary vs. geostationary satellites) and the gateway earth stations that may be located both within and outside the United States. System-by-system agreements between LEAs and satellite carriers account for the unique aspects of each system. We tentatively conclude that continued use of system-by-system arrangements is the appropriate method for satellite systems and will aid in meeting CALEA's goals. We seek comment on this tentative conclusion.

33. We propose to restrict the availability of compliance extensions under § 107(c), particularly in connection with packet-mode requirements, and we clarify the role and scope of CALEA § 109(b), which provides that the Commission may find that compliance with CALEA § 103 is not reasonable achievable, leaving it to the Attorney General to determine whether to pay telecommunications carriers' compliance costs, see 47 U.S.C. 1008(b)(2)(A).

34. We recognize that carriers have continued to rely on CALEA § 107(c) when submitting extension requests for packet-mode compliance. We intend to resolve the status of those petitions in this proceeding, but in a way that is not unduly disruptive. Accordingly, we intend to afford all carriers a reasonable period of time in which to comply with, or seek relief from, any determinations that we eventually adopt. We tentatively conclude that a “reasonable period of time” is 90 days and request comment on this tentative conclusion. We may, on less than 90 days notice, require any or all carriers to provide additional information to support their extension requests. We seek comment on all issues identified in the following analysis, as well as any other issues that relate to disposition of pending and future extension requests.

35. Section 107(c) expressly limits extensions to cases where the petitioning carrier proposes to install or deploy, or has installed or deployed, its “equipment, facility, or service prior to the effective date of § 103 * * * ” i.e. , prior to October 25, 1998. See 47 U.S.C. 1006(c)(1). Given this limitation, we believe that a § 107(c) extension is not available to cover equipment, facilities, or services installed or deployed after October 25, 1998. This interpretation of the scope of § 107(c) would likely preclude granting § 107(c) relief in connection with packet-mode applications because, in our experience, most if not all carrier packet-based “equipment, facilit[ies], or service” have been installed or deployed after the § 107(c)-mandated cut-off date. We seek comment on this analysis.

36. Moreover, we believe that carriers face a high burden in making an adequate showing to obtain alternative relief pursuant to § 109(b). Under the requirements of that section, carriers must demonstrate that compliance is not reasonably achievable, and we must evaluate submitted petitions under the criteria set out in § 109(b)(1), including cost and cost-related criteria and an assessment of the effect of any granted extension “on public safety and national security.” It would be difficult for a petitioner to make such a showing unless the request was made in connection with precisely identified “equipment, facilities, or services.” We seek comment on this analysis.

37. Under this interpretation of the applicability and scope of § 107(c) and 109(b), we believe that many carriers could find it difficult to obtain either CALEA compliance extensions or exemptions in connection with packet requirements. As a result, they may become immediately subject to enforcement action. This outcome could be precisely what Congress intended, because it would encourage carriers to press for the development of CALEA standards by industry-staffed committees and for solutions from manufacturers. Under this reading of the statute, neither § 107(c) nor § 109(b) provides a permanent exemption from CALEA's § 103 compliance mandate. And it reflects a statutory expectation that whenever a carrier replaces or upgrades its network architecture after § 107(c)'s mandated compliance date, it must do so by employing CALEA-compliant equipment, or explain why it could not do so under the stringent requirements of a § 109(b) petition. We seek comment on this interpretation of the relationship of CALEA § 103, 107(c), and 109(b) and the likely effects if we apply it to pending packet-mode § 107(c) extension petitions.

38. We consider whether, in addition to the enforcement remedies through the courts available to LEAs under § 108 of CALEA, see 47 U.S.C. 1007, the Commission may take separate enforcement action against telecommunications carriers, manufacturers and providers of telecommunications support services that fail to comply with CALEA. The Commission has broad authority to enforce its rules under the Communications Act. Section 229(a) of the Communications Act provides broad authority for the Commission to adopt rules to implement CALEA and, unlike § 229(b), does not limit such rulemaking authority to common carriers. While the “penalties” provision of § 229(d) of the Communications Act refers to CALEA violations “by the carrier,” nothing in § 229(d) appears to limit the Commission's general enforcement authority under the Communications Act. As such, it appears the Commission has general authority under the Communications Act to promulgate and enforce CALEA rules against carriers as well as non-common carriers. We seek comment on this analysis. We also seek comment on whether CALEA § 108 and/or 201 impose any limitations on the nature of the remedy that the Commission may impose ( e.g. injunctive relief) and whether CALEA § 106 imposes any limitations on the Commission's enforcement authority over manufacturers and support service providers.

39. We seek comment on how the Commission would enforce the assistance capability requirements under § 103 of CALEA. To facilitate enforcement, we tentatively conclude that, at a minimum, we should adopt the requirements of § 103 as Commission rules. We ask whether, given this tentative conclusion, the lack of Commission-established technical requirements or standards under § 107(b) for a particular technology would affect the Commission's authority to enforce § 103. How would the lack of publicly available technical requirements or standards from a standard-setting organization impact the Commission's authority/ability to enforce § 103? In addition, we ask whether there are other provisions of CALEA, such as § 107(a)'s safe harbor provisions, that the Commission should adopt as rules in order to effectively enforce CALEA. How would the upgrade of a standard by a standard-setting organization impact the application of § 107(a)'s safe harbor provision?

40. We believe it is in the public interest for covered carriers to become CALEA compliant as expeditiously as possible and recognize the importance of effective enforcement of Commission rules affecting such compliance. We seek comment on whether the Commission's general enforcement procedures are sufficient for purposes of CALEA enforcement. The Commission has broad authority to enforce its rules under the Communications Act. It can, for example, issue monetary forfeitures and cease and desist orders against common carriers and non-common carriers alike for violation of Commission rules. Is this general enforcement authority sufficient or should we implement some special procedures for purposes of CALEA enforcement? Would an established enforcement scheme expedite the CALEA implementation process? We seek comment on any other measures we should take into consideration in deciding how best to enforce CALEA requirements.

41. We seek comment on various cost determination and recovery issues that different telecommunications carriers face in complying with CALEA. We seek comment on whether individual carriers should bear responsibility for the costs of CALEA compliance. We further seek comment on specific jurisdictional issues, depending on whether carriers provide wireline or wireless service that may affect our determinations concerning what responsibilities they should have in bearing those costs.

42. CALEA § 109 places financial responsibility on the Federal Government for CALEA implementation costs related to equipment deployed on or before January 1, 1995. See 47 U.S.C. 1008(a), (d). Where the Federal Government refuses to pay for such modifications, a carrier's pre-1995 deployed equipment and facilities will be considered CALEA compliant until such equipment or facility “is replaced or significantly upgraded or otherwise undergoes major modification” for purposes of normal business operations. See, 47 U.S.C. 1008(d). See also, CALEA § 108(c)(3), 47 U.S.C. 1007(c)(3). However, for CALEA implementation costs associated with equipment deployed after January 1, 1995, § 109 places financial responsibility on the telecommunications carriers unless the Commission determines compliance is not “reasonably achievable.” See, 47 U.S.C. 1008(b)(1). Based on CALEA's delineation of responsibility for compliance costs, we tentatively conclude that carriers bear responsibility for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities. We seek comment on this analysis.

43. We also seek comment on other cost recovery options that could reduce CALEA-related burdens otherwise imposed on carriers and their customers. Given the public benefits of CALEA-supported surveillance of criminals and terrorists, does it make sense to consider cost recovery devices that more equitably spread costs among the general public? For example, should CALEA costs be recovered directly from telecommunications and other consumers by means of a Commission-mandated, flat monthly charge similar to the current subscriber line charge (“SLC”)? Does the Commission have authority to impose such a charge? How would such a charge be developed? Our experience to date evaluating circuit-based CALEA-related costs indicates that developing an appropriate cost analysis for packet capabilities could be complex and difficult. We seek comment on how to assess the scope of CALEA-related costs in this proceeding. We ask commenters to submit cost calculations and analysis, and to identify any conditions or factors that may affect our ability to determine the true scope of CALEA-related costs.

44. We seek specific comment about how cost and cost-recovery issues connected with CALEA affect small and rural carriers. Should we adopt specific rules and policies to help ensure that such carriers can become CALEA compliant? Is it sufficient that such carriers have recourse to the CALEA § 109(b) petition process to seek funding from the Attorney General? Would exclusive reliance on CALEA § 109(b) tend to encourage hundreds of rural carriers to file such petitions? If the Attorney General finds, in such a case, that it cannot pay for CALEA compliance upgrades, successful petitioners would be deemed CALEA compliant. Is this result desirable from the perspective of providing for the reasonable needs of LEAs to engage in intercept activities in rural areas?

45. We also seek comment on whether we should distinguish carrier recovery of CALEA-incurred capital costs generally from recovery of specific intercept-related costs. We seek comment on whether CALEA limits the available cost recovery for intercept provisioning, and on whether carriers should be allowed to adjust their charges for such intercept provisioning to cover costs for CALEA-related services, which would include CALEA-related intercept provisioning charges. We seek comment as to whether recovery for capital costs associated with intercept provisioning should be different in the circuit-mode and packet-mode contexts, and if so, why.

46. In 1997, the Commission referred CALEA cost recovery issues to the Federal-State Joint Board on Jurisdictional Separations (“Federal-State Separations Joint Board”). At that time, parties were focused on cost recovery issues related to deployment of CALEA capabilities in circuit-switched networks of telecommunications carriers; standards for CALEA implementation had not yet been developed. Since then, a number of significant technological, marketplace, and regulatory developments have taken place, including the development of standards for circuit-mode and packet-mode CALEA implementation and widespread deployment of packet- switching capabilities. Meanwhile, the Federal-State Separations Joint Board recommended, and the Commission adopted, an interim freeze on further modifications to the Commission's jurisdictional separations rules. The separations freeze went into effect on July 1, 2001 and is scheduled to end on June 30, 2006, absent further action by the Commission.

47. As a result of the separations freeze, the Federal-State Separations Joint Board has not had the opportunity to consider fully CALEA cost recovery issues and their implications for the Commission's jurisdictional separations rules. We therefore refer to the Federal-State Separations Joint Board the following CALEA-related cost recovery issues: (i) Whether costs for circuit-based capabilities should be separated, and if so, how the associated costs and revenues should be allocated for jurisdictional separations purposes; (ii) whether costs for packet-mode capabilities should be separated, and if so, how the associated costs and revenues should be allocated for jurisdictional separations purposes. We emphasize that our separations rules apply only to incumbent local exchange carriers under the Communications Act, and do not apply to entities that may be deemed telecommunications carriers under CALEA. As such, the Federal-State Separations Joint Board shall focus on the foregoing questions only insofar as they pertain to entities subject to jurisdictional separations.

48. In addition, we ask parties to refresh the record on the CALEA issues identified in the Separations NPRM, i.e. , whether costs should be allocated in a new CALEA-specific category or in previously-existing categories, whether revenues received from the Attorney General should be allocated in a particular manner (and if so, how), and whether CALEA-related revenues could be allocated to the jurisdictions based on relative-use factors derived from the relative electronic surveillance requirements of Federal, State, and local LEAs. Finally, because of the national importance of CALEA issues, we request that the Federal-State Separations Joint Board issue its recommended decision no later than one year from the release of this NPRM.

49. If the Commission ultimately decides, as discussed in the NPRM, that broadband access providers or additional entities are subject to CALEA, entities that heretofore have not been subject to CALEA will have to comply with its requirements. Thus, entities previously identified as information service providers under the Commission's previous decisions would be subject to CALEA and would have to comply with various requirements, including the assistance capability requirements in CALEA § 103, the capacity requirements in CALEA § 104, and the system security requirements in CALEA § 105 and in § 229(b) of the Communications Act.

50. If the Commission ultimately decides that entities that heretofore have not been subject to CALEA will have to comply with its requirements, we seek comment on what would be a reasonable amount of time for those entities to come into compliance with §§ 103 and 105 of CALEA. Should newly-identified entities either come into compliance with or seek relief from § 103 requirements within 90 days, as we propose for carriers that have filed § 107(c) petitions? Or should newly-identified entities have 15 months to come into compliance with § 103, as Law Enforcement suggests, or is some other amount of time reasonable? Regarding compliance with CALEA § 105 and § 229(b) of the Communications Act, should newly-identified carriers comply with the system security requirements previously adopted by the Commission within 90 days, which was the amount of time the Commission provided when it adopted those rules, or is some other amount of time reasonable? Commenters should address factors that would support their suggestions for §§ 103, 105 and 229(b) compliance deadlines.

51. Pursuant to sections 1, 4(i), 7(a), 229, 301, 303, 332, and 410 of the Communications Act of 1934, as amended, and sections 103, 106, 107, and 109 of the Communications Assistance for Law Enforcement Act, 47 U.S.C. 151, 154(i), 157(a), 229, 301, 303, 332, 410, 1002, 1005, 1006, and 1008, the Notice of Proposed Rulemaking is hereby Adopted.

52. Pursuant to section 410(c) of the Communications Act of 1934, 47 U.S.C. 410(c), the Federal-State Joint Board on Jurisdictional Separations is requested to review the CALEA cost recovery issues of the NOTICE OF PROPOSED RULEMAKING and to provide recommendations to the Commission.

53. The Joint Petition for Expedited Rulemaking, filed by the Department of Justice, Federal Bureau of Investigation, and Drug Enforcement Administration on March 10, 2004, Is Granted to the Extent Indicated in the NPRM.

54. The Commission's Consumer Information and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

55. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), 1 the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rule Making ( “NPRM” ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided above. The Commission will send a copy of the Notice of Proposed Rule Making, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). 2 In addition, the Notice of Proposed Rule Making (or summaries thereof), including the IRFA, will be published in the Federal Register . 3

56. The NPRM proposes to permit law enforcement agencies (“LEAs”) to better perform electronic surveillance of telecommunications carriers under several existing statutes by tentatively concluding that new broadband Internet services and “managed” Voice over Internet Protocol (“VoIP”) services— i.e. , services that offer voice communications calling capability whereby the VoIP provider acts as a mediator to manage the communication between its end points and to provide, e.g. , call set up, connection, termination, and party identification features—are subject to the assistance capability requirements of the 1994 Communications Assistance for Law Enforcement Act (“CALEA”). The NPRM also proposes steps to ensure that telecommunications carriers comply with CALEA. However, the NPRM tentatively concludes that non-managed VoIP services are not subject to CALEA, and does not propose to establish a pre-approval process for new technologies and services that would determine whether they are subject to CALEA, as requested by the Law Enforcement Petition. The Commission believes that these proposals strike an appropriate balance between better permitting LEAs to combat crime and terrorism and the limited scope of CALEA.

57. This proposed action is authorized pursuant to sections 1, 4(i), 7(a), 229, 301, 303, 332, and 410 of the Communications Act of 1934, as amended, and sections 103, 106, 107, and 109 of the Communications Assistance for Law Enforcement Act, 47 U.S.C. 151, 154(i), 157(a), 229, 301, 303, 332, 410, 1002, 1005, 1006, and 1008.

58. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. 4 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 6 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 7

59. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.”  8 The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. 9 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

Incumbent Local Exchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 10 According to Commission data, 11 1,337 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our action.

Competitive Local Exchange Carriers, Competitive Access Providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 12 According to Commission data, 13 609 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 carriers, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1.500 or fewer employees. In addition, 35 carriers have reported that they are “Other Local Service Providers.” Of the 35, an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our action.

Payphone Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 14 According to Commission data, 15 761 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 757 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by our action.

Interexchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 16 According to Commission data, 17 261 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 223 have 1,500 or fewer employees and 38 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our action.

Operator Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 18 According to Commission data, 19 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our action.

Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 20 According to Commission data, 21 37 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by our action.

60. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging”  22 and “Cellular and Other Wireless Telecommunications.”  23 Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 24 Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. 25 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. 26 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 27 Thus, under this second category and size standard, the majority of firms can, again, be considered small.

Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.”  28 Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category Cellular and Other Wireless Telecommunications firms, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. 29 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 30 Thus, under this category and size standard, the great majority of firms can be considered small. According to the most recent Trends in Telephone Service data, 719 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (“PCS”), or Specialized Mobile Radio Telephony services, which are placed together in the data. 31 We have estimated that 294 of these are small, under the SBA small business size standard. 32

Common Carrier Paging. The SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.”  33 Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 34 Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. 35 Thus, under this category and associated small business size standard, the great majority of firms can be considered small. In the Paging Third Report and Order , we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 36 A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. 37 The SBA has approved these small business size standards. 38 An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. 39 Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. According to the most recent Trends in Telephone Service , 433 carriers reported that they were engaged in the provision of paging and messaging services. 40 Of those, we estimate that 423 are small, under the SBA approved small business size standard. 41

Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. 42 The Commission auctioned geographic area licenses in the wireless communications services. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. 43 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 44 According to the most recent Trends in Telephone Service data, 719 carriers reported that they were engaged in the provision of wireless telephony. 45 We have estimated that 294 of these are small under the SBA small business size standard.

Broadband Personal Communications Service. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. 46 For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.”  47 These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. 48 No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. 49 On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. In addition, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

61. Cable and Other Program Distribution. This category includes cable systems operators and other program distribution services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. 50 According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. 51 Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein.

Cable System Operators (Rate Regulation Standard). The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. 52 The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995. 53 Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,439 small entity cable system operators that may be affected by the rules and policies adopted in the NPRM.

Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”  54 The Commission has determined that there are 67,700,000 subscribers in the United States. 55 Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. 56 Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,450. 57 The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, 58 and therefore are unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934.

62. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (“ISPs”). ISPs “provide clients access to the Internet and generally provide related services such as Web hosting, Web page designing, and hardware or software consulting related to Internet connectivity.”  59 Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. 60 According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. 61 Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24, 999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

63. The proposed rules require that telecommunications carriers providing Internet broadband access and managed VoIP services be CALEA-compliant. 62 The proposed rules also limit extensions of compliance deadlines under CALEA § 107(c), which authorizes extensions if technology is not available to carriers to meet the assistance capability requirements of CALEA § 103. 63 We also note that telecommunications carriers, including small entities, may petition the Commission under CALEA § 109(b) and argue that CALEA compliance is not reasonably achievable for a variety of reasons, including a carrier's financial resources.

64. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 64

We also note that telecommunications carriers, including small entities, may petition the Commission under CALEA § 109(b) and argue that CALEA compliance is not reasonably achievable for a variety of reasons, including a carrier's financial resources. We believe that this provision safeguards small entities from any significant adverse economic impacts of CALEA compliance. We are unaware of any alternatives that would better safeguard small entities, but we solicit comment on any such alternatives.

65. None.