This amendment adopts a new AD applicable to MDHI Model MD900 helicopters with a TT strap, part number (P/N) 900R3442009-103, 900R6442009-103, 900R3442009-101, or 500N5311-5, installed. This action requires:

• Before further flight, for TT strap, P/N 900R3442009-103 and 900R6442009-103, reducing the life limit from 3034 to 2500 hours time-in-service (TIS);

• Within 10 hours TIS, for any TT strap that has accumulated 1190 or more hours TIS, doing a visual and x-ray inspection of each TT strap and replacing any unairworthy part before further flight;

• Before the TT strap accumulates 1200 hours TIS, for any TT strap with less than 1190 hours TIS, doing a visual and x-ray inspection of each strap and replacing any unairworthy part before further flight; and

• Within 7 days, reporting information about any unairworthy TT strap to Roger Durbin, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712, telephone (562) 627-5233, fax (562) 627-5210.

We have reviewed MD Helicopters Service Bulletin SB-900-095, dated November 3, 2004. The service bulletin advises of the reduction of the TT strap life limit and describes procedures for performing an inspection of each TT strap for nicks, cuts, cracks, or wear. Procedures for a Level II or higher X-Ray Technician to do and interpret an x-ray inspection of each TT strap for progressive fiber fractures are also included in the service bulletin.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to prevent failure of a TT strap resulting in loss of directional control and subsequent loss of control of the helicopter. This AD requires, before further flight, reducing the life limit of certain part-numbered TT straps. This AD also requires, depending on the hours accumulated on the TT strap, doing a visual and x-ray inspection within 10 hours TIS or before the accumulation of 1200 hours TIS and replacing any unairworthy part before further flight. Reporting the discovery of any unairworthy TT strap is also required. Accomplishing the inspections in accordance with the previously described service bulletin is required. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, reducing the TT strap life limit before further flight, inspecting each TT strap at the specified time interval, and reporting information about any unairworthy TT strap is required within 7 days, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect 31 helicopters. It will take approximately 7 work hours for each inspection and replacement at an average labor rate of $65 per work hour. It will also cost $100 for each x-ray inspection. Required parts will cost approximately $757 per TT strap replacement. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $40,672 (assuming a visual and x-ray inspection on each helicopter and a TT strap replacement on 8% of the fleet).

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19613; Directorate Identifier 2004-SW-38-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of our docket web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.

We have received three reports of cracks in the hubs of certain McCauley Propeller Systems propeller assemblies. An operator reported an oil leak at the end of a flight. Investigation revealed a significant crack in the propeller hub. In addition, the same operator reported cracks in two other hubs that might be related to the first report. In both of those reports, the operator inspected the hub because of reported oil leaks. The operator performed a voluntary inspection program, and did not find any more cracks. About 30 percent of the remaining fleet has complied with the voluntary inspection over the past several months. No operator has reported any more cracked hubs. Although we believe the cracks are caused by fatigue, we don't know the exact cause. One possibility is that operating the propeller in the restricted RPM range during ground operation is contributing to premature failure of the propeller hub. This condition, if not corrected, could result in failure of the propeller hub and loss of control of the airplane.

We have reviewed and approved the technical contents of McCauley Alert Service Bulletin (ASB) No. ASB247A, Revision A, dated August 18, 2004. That ASB describes procedures for removing the propeller from the airplane, performing an eddy-current inspection, and installing the propeller after the inspection.

The unsafe condition described previously is likely to exist or develop on other McCauley Propeller Systems propeller assemblies, P/Ns B5JFR36C1101/114GCA-0, C5JFR36C1102/L114GCA-0, B5JFR36C1103/114HCA-0, and C5JFR36C1104/L114HCA-0, of the same type design. We are issuing this AD to detect cracked hubs, which could cause failure of the propeller hub and loss of control of the airplane. This AD requires performing a one-time eddy-current inspection of the propeller hub for cracks within:

• 200 hours time-since-last inspection (TSLI), but not later than 30 days after the effective date of this AD, on propeller assemblies with more than 8,000 hours time-in-service (TIS) and, if necessary, replacing the propeller assembly.

• 400 hours TSLI, but not later than 60 days after the effective date of this AD, on propeller assemblies with 8,000 or fewer hours TIS and, if necessary, replacing the propeller assembly.

You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in fewer than 30 days.

These actions are interim actions and we might take further rulemaking actions in the future.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send any written relevant data, views, or arguments on this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2004-19242; Directorate Identifier 2004-NE-21-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to adjust it.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel about this AD. Using the search function of the Docket Management System (DMS) web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment for an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

Has FAA taken any action to this point? The FAA issued AD 91-03-15, Amendment 39-6870 to prevent the discharge of high temperature exhaust gases inside the engine compartment that could result in the airplane cabin catching fire for certain Mooney Model M20M airplanes. AD 91-03-15 currently requires replacing the tailpipe coupling.

What has happened since AD 91-03-15 to initiate this AD action? The FAA received a report that a fire erupted below the pilot's rudder pedals shortly after takeoff on one of the airplanes affected by AD 91-03-15, which caused smoke to fill the cabin. Investigation revealed that the V-clamp attaching the exhaust tailpipe to the turbocharger had fallen off. This allowed the exhaust tailpipe to drop away form the turbocharger. Hot exhaust gases from the turbocharger outlet were blasted onto the lower left firewall. The fire ignited in the left lower cockpit area below the rudder/brake pedals and behind the firewall. Hydraulic fluid ignited when a plastic hydraulic supply line behind the firewall melted.

What is the potential impact if FAA took no action? The V-clamp could detach from the turbocharger and expose the firewall to hot exhaust gases, which could result in an in-flight fire. An in-flight fire could lead to loss of control of the airplane and passenger injury.

Is there service information that applies to this subject? Mooney has issued Service Bulletin M20-283A, dated March 30, 2004.

What are the provisions of this service information? The service bulletin includes procedures for:

What has FAA decided? We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design.

Since the unsafe condition described previously is likely to exist or develop on other Mooney Model M20M airplanes of the same type design, we are issuing this AD to prevent the V-clamp from detaching from the turbocharger and to prevent exposure of the firewall to hot exhaust gases, which could result in an in-flight fire. An in-flight fire could lead to loss of control of the airplane and passenger injury.

What does this AD require? This AD supersedes AD 91-03-15 and requires you to incorporate the actions in the previously-referenced service bulletin.

In preparing this rule, we contacted type clubs and aircraft operators to get technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included a discussion of any information that may have influenced this action in the rulemaking docket.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, we published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2004-19618; Directorate Identifier 2004-CE-39-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2004-19618; Directorate Identifier 2004-CE-39-AD” in your request.

This rulemaking is promulgated under the authority in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, the FAA is charged with prescribing minimum standards required in the interest of safety for the design of aircraft. This regulation is within the scope of that authority since it corrects an unsafe condition in the design of the aircraft caused by the V-clamp detaching from the turbocharger and exposing the firewall to hot exhaust gases.

Federal Register document 04-23387, published on Tuesday, October 19, 2004 (69 FR 61439), modified the Class E airspace area designated as a surface area and the Class E airspace area extending upward from 700 feet above the surface at Dodge City, KS. The modification corrected discrepancies in the Dodge City Regional Airport airport reference point (ARP) used in the legal descriptions, corrected the airspace dimensions to protect for diverse departures, established an extension to the airspace area extending upward from 700 feet above the surface and brought the legal descriptions of the Dodge City, KS Class E airspace areas into compliance with FAA Orders 7400.2E, Procedures for Handling Airspace Matters, and 8260.19C, Flight Procedures and Airspace. However, the Dodge City Regional Airport ARP has since been recomputed requiring a further revision to the Dodge City, KS Class E airspace areas.

The Commission adopted the application procedures specified in Commission Regulations 37.5  1 and 38.3  2 for boards of trade applying to be registered as DTEFs or designated as DCMs in 2001 when it first implemented the Commodity Futures Modernization Act of 2000 (CFMA). 3 These procedures presume that an application will be submitted and reviewed pursuant to a fast-track procedure under which a board of trade is deemed to be designated as a DCM 60 days after submitting its application, 4 or registered as a DTEF 30 days after submitting its application, 5 unless notified otherwise during the respective review period. These fast-track review periods are substantially shorter than the 180-day review period specified in Section 6(a) of the Act for reviewing DCM and DTEF applications. 6 The rules provide procedures for terminating the fast-track review, including termination by the Commission if it appears that the application's form or substance fails to meet the requirements of the Commission's regulations. 7

Among other things, the application procedures also generally identify information required to be included in applications for registration as a DTEF  8 or designation as a DCM, 9 require that the applicant support requests for confidential treatment of information included in the application with reasonable justification, 10 and identify where additional guidance for applicants can be found. 11 The rules also provide procedures for the withdrawal of an application for registration or vacation of registration as a DTEF  12 and for the withdrawal of an application for designation or vacation of designation as a DCM, 13 and specify the extent of the delegation of authority from the Commission to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, with respect to the termination of expedited review procedures. 14

On September 1, 2004, the Commission published proposed amendments to its part 37 and 38 regulations governing application procedures. 15 The proposed amendments would modify the application procedures in a number of respects. With respect to the timeliness of the review of applications generally, the proposed amendments would establish the presumption that all applications are submitted for review under the 180-day timeframe specified in section 6(a) of the Act. 16 An expedited 90-day review could be requested by the applicant, in which case the Commission would register the applicant as a DTEF or designate the applicant as a DCM during or by the end of the 90-day period unless the Commission terminated the expedited review for certain specifically identified reasons. The proposed amendments would lengthen the expedited review periods for DCM applications by 30 days and for DTEF applications by 60 days. The longer time periods were believed to be necessary, based upon the Commission's review of eight DCM applications under the current DCM expedited review period, to ensure a comprehensive review of applications and to meet other public policy objectives, including the Commission's policy to promote transparency in Commission operations, implemented in August of 2003, by providing for the posting of all such applications on the Commission's website for a period of at least 15 days for public review and comment. 17 The proposed 90-day review period should provide sufficient time to review applications and to respond to any public comments. While longer than the current fast-track review periods, the 90-day review period would be substantially shorter than the 180-day review period established under the Act. 18

The proposed amendments would also modify the Commission's internal processing procedures under which an applicant would be registered as a DTEF or designated as a DCM. Under the proposal, an applicant would no longer be deemed to be registered or designated based upon the passage of time (30 days for DTEFs, 60 days for DCMs). If the applicant requested expedited review, the Commission would take affirmative action to register or designate the applicant as a DTEF or DCM, respectively, subject to conditions if appropriate, not later than 90 days after receipt of the application, unless the Commission terminated the expedited review. Thus, registration as a DTEF or designation as a DCM would involve affirmative action by the Commission, which would normally be in the form of issuance of a Commission order. It would be possible, under the proposed procedures, for applicants who submit applications that are complete and not amended or supplemented during the review period to be registered as a DTEF or designated as a DCM in less than 90 days.

With respect to the termination of expedited review, the rules provide that fast-track review may be terminated because the application's form or substance fails to meet the requirements of Part 37 or 38, as appropriate, or upon written instruction of the applicant during the review period. The proposed amendments would clarify and expand the rationale for terminating expedited review and would provide that the expedited review period also could be terminated if the application is materially incomplete, raises novel or complex issues that require additional time for review or, as more fully described below, undergoes major amendment or supplementation. If expedited review were terminated for any of the reasons cited above, the application would continue to be reviewed pursuant to the 180-day statutory procedure. Finally, the proposed amendments would delete the provision of the rules that would require the Commission, upon terminating fast-track review, to commence a proceeding to deny a DCM or DTEF application upon the request of the applicant. This procedure has proved to be unnecessary to date, and an analogous procedure is available under the statutory review procedure. 19

In order to further enhance the application process, the proposed amendments would more completely identify and expand the information required to be provided by an applicant under both the statutory 180-day and the expedited 90-day review procedures. The proposal would clarify that the rules required to be included in all applications are those rules as defined in Commission Regulation 40.1 and would more clearly identify the documents required to be provided pertaining to the applicant's legal status and governance structure. The Commission anticipates that such documents would include copies of corporate charters, limited liability corporation or partnership agreements, and the like. 20

The proposed amendments would make it clear that all applicants would be required to submit for review an executed or executable copy of any agreements or contracts entered into or to be entered into by the applicant that enable the applicant to comply with a requirement for trading or registration criterion (DTEFs) or a designation criterion or core principle (DCMs) and that final, signed copies of such documents would be required to be submitted prior to registration or designation. The initial application would be required to include something more than a letter of intent or draft contract or agreement, such as a final contract or agreement signed by at least one of the parties. While the Commission is cognizant that applicants may prefer to defer the finalization of contracts in order to defer associated costs until registration or designation, it must balance that preference against the assurance that a contract or agreement will actually be executed prior to registration or designation.

With respect to the additional information that would be required to be submitted as part of the application, 21 the proposed amendments would require that applicants submit a “regulatory chart” that describes the manner in which the items included in the application enable the applicant to comply with each requirement for trading and registration criterion (DTEFs) or with each designation criterion and core principle (DCMs). The proposal would also require that the applicant identify any item included in the application that raises novel issues and explain how that item satisfies the requirements for trading or the registration criteria (DTEFs) or the designation criteria or the core principles (DCMs). In addition, the proposed amendments would require that the applicant submit a copy of any manual or other document describing the manner in which the applicant will conduct trade practice, market, and financial surveillance. Based upon experience in reviewing DCM applications, the Commission recognizes that this additional information is necessary for Commission review of the application when determining whether the applicant satisfies the requirements for trading and registration criteria (DTEFs) or the designation criteria and core principles (DCMs). Finally, the proposed amendments would eliminate the requirement that the applicant support requests for confidential treatment of information included in the application with reasonable justification. The Commission believes that the procedures provided in Commission Regulation 145.9, Petition for confidential treatment of information submitted to the Commission, should be followed by all applicants.

Under the proposed amendments, the items required to be included in an application to be reviewed under the statutory 180-day review procedures would be identical to those required to be included in an application to be reviewed under the expedited review procedures with the following exceptions for the expedited review applicants and applications: (1) The applicant must request expedited review; and (2) the application must not be amended or supplemented by the applicant, except as requested by the Commission or for correction of typographical errors, renumbering or other nonsubstantive revisions. The proposal would provide that amending or supplementing an application in a manner that is inconsistent with the above provision would result in termination of the expedited review.

The proposed amendments would also modify and standardize the delegation of authority provisions applicable to applications for registration as a DTEF and for designation as a DCM. Currently, the rules provide for the delegation of authority to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, (1) to terminate the fast-track review of both types of applications and (2) to designate an applicant as a DCM subject to conditions. Under the proposed amendment, the Commission would also delegate to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, the authority to stay the running of the 180-day statutory review period for both types of applications if they are materially incomplete, as is provided under section 6(a) of the Act. Because one result of the proposed amendments would be that registration as a DTEF and designation as a DCM would involve affirmative action on the part of the Commission, the proposal would rescind the delegation of the authority to designate the applicant as a DCM subject to conditions.

Finally, the proposed amendments would reorganize the sequence of paragraphs in the rules where appropriate and to make minor word changes and deletions in order to clarify the application requirements. The proposal would also delete certain guidance regarding applications for designation as that information duplicates information available elsewhere in Part 38. 22

In response to the proposed amendments, the Commission received comment letters from the Chicago Mercantile Exchange and the Chicago Board of Trade (CBOT), both of which voiced support for the proposed amendments. With respect to the proposed application content requirements, however, the CBOT, suggested that the Commission should also require submission of documents detailing the applicant's plans to offer payment for order flow, or other incentives that could encourage wash trading or compromise the fiduciary responsibilities of intermediaries, as well as documentation of plans to allow or encourage trading off the centralized market. The Commission has carefully considered this suggestion, but does not believe that the application content requirements need to be expanded to include this information.

If an applicant's plans regarding payment for order flow  23 or other incentive plans are established at the time of the application, it is expected that they would be included in the application because they would be considered to be rules and the applicant's proposed rules are required to be submitted as part of the application. The same is true with respect to plans to allow or encourage trading off the centralized market, such as block trading. Of course, any proposal to implement incentive and/or off-centralized market trading plans after DCM designation or DTEF registration would have to be submitted to the Commission by the registrant as rule changes, either seeking Commission approval or certifying compliance with designation criteria and core principles (DCM) or with core principles (DTEF) as required under the Act.

Although the Commission expects that an application represents the applicant's actual business plan at the time of its submission, the Commission has never required an applicant to reveal all of its potential future plans, which may be in various stages of development and indeed may never be adopted, when considering whether the application satisfies the designation criteria and core principles. Commission staff appropriately considers the materials filed and representations made by an applicant in drawing conclusions as to whether designation or registration is warranted. Subsequent to designation or registration, the DCM or DTEF may adopt changes to its rules and procedures; however, under the Act, DCMs and DTEFs must, on a continuing basis, comply with all designation criteria and core principles (DCMs) and core principles (DTEFs). In implementing changes to their business plans, DCMs and DTEFs seek Commission approval or certify compliance with the designation criteria and core principles, as applicable, as required under the Act. The Commission considers whether to approve new rules or rule amendments or whether to take action concerning certifications when a DCM or DTEF proposes to implement its revised plans. 24

For the reasons cited above, the Commission does not believe that the application content requirements need to be expanded to include documents detailing the applicant's incentive plans or documentation of plans to allow or encourage trading off the centralized market. After careful review and consideration of the comments received, the Commission has determined to adopt the proposed amendments to the application procedures as written. The Commission continues to encourage would-be applicants to consult with Commission staff prior to formally submitting a DTEF or DCM application to help ensure that an application, once formally submitted, will be reviewed in a timely manner.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , requires Federal agencies, in promulgating rules, to consider the impact of those rules on small entities. The rules adopted herein would affect DCMs and DTEFs. The Commission has previously established certain definitions of small entities to be used by the Commission in evaluating the impact of its rules on small entities in accordance with the RFA. 25 In its previous determinations, the Commission has concluded that DCMs and DTEFs are not small entities for the purpose of the RFA. 26

In the proposed rules, the Commission solicited comment on whether the proposed amendments would have a significant impact on a substantial number of small entities. The Commission received no comments in response to this request. Accordingly, the Commission hereby determines that the rules, as adopted herein, will not have a significant economic impact on a substantial number of small entities. Therefore, the Acting Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendments will not have a significant economic impact on a substantial number of small entities.

As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), the Commission submitted a copy of the proposed rule amendments to the Office of Management and Budget for its review. The Commission did not receive any public comments relative to its analysis of paperwork burdens associated with this rulemaking.

Section 15(a) of the Act, as amended by section 119 of the CFMA, requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.

Section 15(a) further specifies that the costs and benefits of the proposed rule shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission may, in its discretion, give greater weight to any one of the five enumerated areas of concern and may, in its discretion, determine that, notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.

The Commission published an analysis of costs and benefits when it proposed the rule amendments that have now been adopted. 27 The Commission did not receive any public comments pertaining to the analysis.

Fort Dodge Animal Health, Division of Wyeth, 800 Fifth St. NW., Fort Dodge, IA 50501, filed a supplement to NADA 141-043 for SYNOVEX PLUS (trenbolone acetate and estradiol benzoate) and SYNOVEX CHOICE (trenbolone acetate and estradiol benzoate), two subcutaneous implants products used in steers and heifers fed in confinement for slaughter for increased rate of weight gain and/or improved feed efficiency. The supplemental NADA provides for the addition of statements to labeling warning against the use of these products in calves to be processed for veal. The supplemental application is approved as of October 28, 2004, and the regulations are amended in 21 CFR 522.2478 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Ivy Laboratories, Division of Ivy Animal Health, Inc., 8857 Bond St., Overland Park, KS 66214, filed a supplement to NADA 118-123 for ENCORE (estradiol) and COMPUDOSE (estradiol). The supplemental NADA provides for the addition of statements to labeling warning against the use of these products in calves to be processed for veal. The supplemental application is approved as of October 28, 2004, and the regulations are amended in 21 CFR 522.840 to reflect the approval and a current format. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

The information in this section is organized as follows:

1. Submitting Confidential Business Information (CBI). Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

The following table outlines the submittals EPA received and is approving in this action:

The SIP revisions cover the addition of new rules and revisions to existing rules for I/M requirements in Division 256 Motor Vehicles (formerly Division 024). The submittal dated September 15, 2000 contained rules that were subsequently revised in later ODEQ submittals. Only the current version of each rule is being approved.

In addition to the rule revisions submitted by ODEQ, EPA is also approving rule renumbering for the Motor Vehicle Division 256 of the OAR. On November 5, 1999, ODEQ submitted a complete rule renumbering to EPA for approval into the SIP, with an effective date under State law of October 14, 1999. EPA approved portions of this submittal, but did not take action on Division 256 Motor Vehicles since the rules in this division had been subsequently revised by ODEQ. The rule renumbering is non-substantive.

EPA is removing the old rules (formerly Division 024) from the current SIP that are replaced and approved under the renumbering.

EPA is removing previously approved rules relating to noise emissions from the SIP in this action. These noise emissions rules were incorrectly approved into the SIP under a previous action. EPA also is removing the fee schedule for motor vehicle inspections.

Excess emissions rule revisions by the Lane Regional Air Pollution Authority (LRAPA) were submitted with the January 10, 2003 submittal. EPA is taking no action on the Excess Emissions Rules at this time.

ODEQ submitted two new rules for testing methods which include Clean Screen and Self Service testing. The rules state the possibility of implementation of this testing, but procedures and methods for implementation have not been developed and are currently not in place. Therefore, EPA is taking no action on these rules at this time.

The most salient aspects of approved rule changes include: revised rules for testing requirements based on vehicle model year, the introduction of the OBD test for 1996 and newer vehicles in the Portland and Medford area vehicle inspection programs, providing a waiver from the enhanced vehicle inspection testing requirements for vehicles owned by qualified households in the Portland vehicle inspection area, establishing an on-site vehicle testing program for used vehicles sold by auto dealers in the Portland and Medford areas, and revised rules for qualifications for testing personnel.

In local areas I/M programs are designed to reduce motor vehicle emissions by requiring that vehicles periodically pass a tailpipe emissions test or, depending on the model year, a check of the OBD system. Vehicles emissions are reduced when vehicles are repaired in order to pass these tests.

Current SIP approved rules include the basic and enhanced test requirements. This approval adds the OBD test as a requirement for certain vehicles in the Portland Vehicle Inspection (VI) Area and Medford-Ashland Air Quality Maintenance Area (AQMA). The emission control test method for the OBD test and OBD test equipment licensing criteria are also included in these rule changes.

This approval also includes a waiver from the enhanced vehicle test for qualified households in the Portland VI Area. Households eligible for the waiver would still be required to take the basic emissions test. Qualifications for the waiver are based on household income.

EPA is also approving an on-site vehicle testing program for used vehicles sold by auto dealers in the Portland and Medford area. This is a voluntary program that allows on-site testing by ODEQ employees for manufacturer franchised auto dealers only.

This approval also includes revisions made to the criteria for qualifications for persons eligible to inspect motor vehicles to include qualifications for administering testing for new vehicle tests and test methods.

SIP Volume 2, Section 5.4 is a programmatic description of the Oregon I/M program including boundaries, performance standards, network type, tools, test frequency, quality control, waivers, and compliance, data collection, inspector training, and repair effectiveness. This description has been updated to reflect the changes to the program. EPA reviewed these changes and will approve this section.

This provision allows the waiver of some households from the enhanced vehicle emissions test. The waiver program is only for the Portland VI Area. The waiver would be granted based on household income. These households would still be required to take the basic emissions test. This waiver benefits households by reducing vehicle repair costs to meet emission standards. In a two-year pilot program, repair costs to meet the enhanced vehicle tests were higher than the cost of repairs to comply with the basic emissions test.

A qualified household, under the enhanced test waiver program, has a net income of less than or equal to 1.3 times the Federal Poverty Guidelines for the year 2000. After the year 2000, the annual income requirement will be adjusted annually, using the Oregon Consumer Price Index for the Portland Metro Regional area.

In order to amend the SIP to include this provision, the ODEQ must demonstrate that the waiver program will not result in an exceedance of air quality standards. The information collected from a two-year pilot waiver program has shown that the number of vehicles granted waivers under this program would have a negligible effect on air quality.

OBD is a term describing a vehicle's on-board computer that monitors how certain vehicle components function. The OBD system alerts drivers of malfunctions in systems that affect exhaust emissions such as the oxygen sensor, exhaust gas re-circulation system, fuel system, catalytic converter, etc. The OBD system continuously monitors engine systems and detects problems early.

If a vehicle's computer system detects a malfunction, the computer stores a code that can aid in diagnosis of vehicle problems that can affect air quality. During emissions testing, a computer checks for these stored trouble codes by downloading the vehicle's computer, and the dashboard malfunction light is also checked.

On-site testing is vehicle emissions testing that takes place at an auto dealer's location, instead of at a ODEQ vehicle testing facility. ODEQ will perform the on-site testing using a traveling van equipped with OBD testing equipment. The OBDII test will be given to 1996 and newer model year vehicles equipped with OBDII systems. If a vehicle fails the test, the vehicle must be repaired before being re-tested.

Auto dealers may elect to take vehicles to ODEQ centralized testing locations if they decide not to participate in the on-site testing.

The clean screen test evaluates vehicle emissions while on the roadway to determine whether a vehicle has acceptable emissions. Clean screen testing may be administered using several methods. One technique would optically measure emissions using ultraviolet and infrared light beams directed across lane of traffic. Another technique would intercept a broadcast electronic OBD signal from a vehicle whose owner has volunteered for the program.

The clean screening test would be administered just prior to registration expiration. Clean vehicles would be issued a certificate of compliance and would not be required to undergo the traditional vehicle inspection test at a testing facility.

The clean-screen testing rule requires ODEQ to establish specific testing processes before implementing this type of testing. This testing program is developmental and the rule requires ODEQ develop documentation that this method would provide equal or greater accuracy in identifying vehicles that would pass or fail the required emission test.

The self-service testing would provide a testing method for the vehicle owner or owner's representative to perform the emissions test at a designated location. The test performed will be either a remote sensing optical quantification of tailpipe pollutants, a remote or computer connected OBD test, or other means as developed by ODEQ.

The self-service test rule requires ODEQ to establish specific testing processes before implementing this type of testing. This testing program is developmental and the rule requires ODEQ develop documentation that this method would provide equal or greater accuracy in identifying vehicles that would pass or fail the required emission test.

No. Both testing options are voluntary, and, if implemented, would be offered as an alternative to the standard emissions testing at ODEQ testing facilities. Vehicle owners would still be able to have their vehicles tested at the ODEQ test centers.

EPA is taking no action on these rules at this time because procedures for these tests have not yet been developed, and the testing programs are not ready to implement on a wide scale. However, this does not prevent ODEQ from developing these testing programs and later submitting the procedures to EPA for approval into the SIP.

ODEQ is proposing revisions to the Oregon SIP to maintain air quality in compliance with federal air quality standards for carbon monoxide and ozone. The I/M program is an important and integral part of the ongoing air quality control measures of the SIP. EPA approval will support and strengthen the I/M program.

These rule changes provide additional vehicle testing options that could make vehicle testing more convenient. Improvements in customer service could increase participation in the I/M program.

Chapter 340-256 Motor Vehicles Sections -0010, -0200, -0300, -0310, -0330, -0340, -0350, -0355, -0356, -0370, -0380, -0390, -0400, -0410, -0420, -0440, -0450, -0460, -0465, and -0470 and SIP Volume 2, Section 5.4.

Chapter 340 Division 024 Sections -0100, -0300, -0301, -0305, -0306, -0308, -0309, -0312, -0318, -0320, -0325, -0330, -0332, -0335, -0340, -0355, -0357, and -0360 and SIP Volume 2, Section 5.4.

Chapter 340 Division 024 Sections 0314 Motorcycle Noise Emission Control Test Method, 0337 Motor Vehicle Propulsion Exhaust Noise Standards, and 0307 Motor Vehicle Inspection Program Fee Schedule.

Lane Regional Air Pollution Authority Excess Emissions Rules, OAR 340-256-0357 Emissions Control Test Method for Clean Screen Testing Program, and 340-356-0358 Emissions Control Test Method for Self-Service Testing Program.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective January 21, 2005, without further notice unless the Agency receives adverse comments by December 22, 2004.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule in the Federal Register informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 21, 2005, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

During EPA's review of a SIP revision involving Oregon's statutory authority, a problem was detected which affected the enforceability of point source permit limitations. EPA determined that, because the five-day advance notice provision required by ORS 468.126(1) (1991) bars civil penalties from being imposed for certain permit violations, ORS 468 fails to provide the adequate enforcement authority that a state must demonstrate to obtain SIP approval, as specified in section 110 of the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to provide such notice would preclude Federal approval of a section 110 SIP revision.

To correct the problem the Governor of Oregon signed into law new legislation amending ORS 468.126 on September 3, 1993. This amendment added paragraph ORS 468.126(2)(e) which provides that the five-day advance notice required by ORS 468.126(1) does not apply if the notice requirement will disqualify a state program from Federal approval or delegation. ODEQ responded to EPA's understanding of the application of ORS 468.126(2)(e) and agreed that, because Federal statutory requirements preclude the use of the five-day advance notice provision, no advance notice will be required for violations of SIP requirements contained in permits.

Oregon has not demonstrated authority to implement and enforce the Oregon Administrative Rules within “Indian Country” as defined in 18 U.S.C. 1151.1 1 “Indian country” is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Therefore, this SIP approval does not extend to “Indian Country” in Oregon. See CAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits). This is consistent with EPA's previous approval of Oregon's PSD program, in which EPA specifically disapproved the program for sources within Indian Reservations in Oregon because the State had not shown it had authority to regulate such sources. See 40 CFR 52.1987(c). It is also consistent with EPA's approval of Oregon's title V operating permits program. See 59 FR 61820, 61827 (December 2, 1994) (interim approval does not extend to Indian Country); 60 FR 50106, 50106 (September 28, 1995) (full approval does not extend to Indian Country).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This document summarizes the Federal Communications Commission's Report and Order, Fifth R&O, Fourth MO&O, and Order, FCC 04-168, adopted on July 8, 2004, and released on August 6, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text 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/wtb . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov .

1. In the Report and Order, the Commission adopts changes to parts 2, 22 and 90 of the Commission's rules that were either proposed in or suggested in response to the Notice of Proposed Rule Making (NPRM) and subsequent Public Notices in this proceeding. The NPRM, released on March 15, 2002, 67 FR 16351-02 (April 5, 2002), sought to explore all available options and alternatives for improving the spectrum environment for public safety operations in the 800 MHz Band and to ensure that public safety agencies have access to adequate spectrum resources in the 800 MHz band to support their critical missions. On September 6, 2002, the Wireless Telecommunications Bureau (Bureau) released a public notice inviting comment on a “Consensus Proposal” band plan submitted by seventeen parties (Consensus Parties) in a reply comment in the proceeding. On January 3, 2003, the Bureau sought comment on the supplement, setting forth additional information about the Consensus Proposal, as supplemented on December 24, 2002, by the Consensus Parties, 68 FR 6687-01 (February 10, 2003).

2. The following is a summary of our major decisions. In the Report and Order, we: (i) Define “unacceptable interference” in the 800 MHz band as a function of the threshold received power levels of desired signals. Specifically, “unacceptable interference” occurs when the signals from a cellular architecture station or stations, cause the carrier-to-noise plus interference ratio of a radio meeting TIA-equivalent Class A standards to degrade below 20 dB in an area in which the median measured received signal power of the desired signal is equal to or greater than −104 dBm for mobile units or −101 dBm for portable units. In the case of data radios, unacceptable interference occurs when the received signal power criteria, above, are met and the bit error rate of the radio exceeds the value specified by the radio's manufacturer for reliable operations; (ii) require Enhanced Specialized Mobile Radio (ESMR) and cellular telephone licensees, on request, to notify public safety and CII licensees prior to activating new or modified cells; (iii) define relative responsibilities of ESMR and cellular telephone licensees for abatement of unacceptable interference both pre- and post-band reconfiguration; (iv) reconfigure the 800 MHz band by:

• Moving the public safety NPSPAC channels from 821-824 MHz/866-869 MHz to 806-809 MHz/851-854 MHz.

• Relocate all systems now operating in the current General Category band segment at 806-809.75 MHz/851-854.75 MHz elsewhere in the band.

• Certain existing non-cellular B/ILT systems and non-cellular SMR systems will continue to operate on interleaved channels between 809.75-816 MHz/854.75-861 MHz.

• Public safety systems will continue to operate on interleaved channels between 809-815 MHz/854-860 MHz. No public safety licensee will be required to operate in the 815-816 MHz/860-861 MHz segment that we have designated the “Expansion Band” or in the 816-817 MHz/861-862 MHz segment that we have designated the “Guard Band.” Every public safety system will be relocated from the Expansion Band unless a public safety licensee exercises its option to remain there.

• Relocate Nextel and other ESMR licensees to the 817-824 MHz/862-869 MHz band. Nextel will vacate all channels it now uses in the 806-817 MHz/851-862 MHz band segment.

• Public safety and later, CII licensees will have exclusive access to all channels in the 809-809.75 MHz/854-854.75 MHz band segment as well as the channels vacated by Nextel in the interleaved portion of the band below 815 MHz/860 MHz for a limited period of time.

• Unless the subject of mutual agreement among affected, parties, other CMRS ESMR Operations in the 800 MHz may stay where they are, subject to a stringent non-interference obligation, but will have the following relocation options: (1) relocate to non-cellular portion of the 800 MHz band at Nextel's expense, as close to ESMR band as possible in 814 MHz-816 MHz Expansion band; or (2) relocate at Nextel's expense in ESMR spectrum which they would share with Nextel on a pro-rata basis.

• In some markets where both Southern LINC and Nextel offer ESMR service insufficient spectrum exists in the 816-824 MHz/861-869 band segment to accommodate both the incumbent ESMR licensees already operating there and new ESMR entrants migrating from the lower channels. In order not to unduly restrict the operations of incumbent ESMR licensees we define the ESMR band in those markets as the band segment 813.5-824 MHz/858.5-869 MHz. The Expansion Band in this area shall extend from 812.5-813.5 MHz/857.5-858.5 MHz. All licensees operating in the band segment 806-813.5 MHz/851-858.5 MHz shall be afforded the same protection against unacceptable interference as specified in the Report and Order;

(v) Adopt financial and licensing safeguards directed to ensure completion of band reconfiguration regardless of Nextel's financial condition and that Nextel does not reap a financial windfall from our actions; (vi) accept Nextel's relinquishment of its current spectrum rights in the 700 MHz Guard Band in forty markets and contemplate a Further Notice of Proposed Rulemaking to determine future use of this spectrum; (vii) in exchange for the spectrum Nextel is surrendering coupled with the uncertain costs it must incur to accomplish 800 MHz band reconfiguration, clear the 1.9 GHz band of Broadcast Auxiliary Service (BAS) incumbents and reimburse UTAM Inc., (UTAM) for a portion of the costs it has incurred in clearing the 1910-1920 MHz and the 1920-1930 MHz band segments, the Commission will modify certain Nextel licenses to provide Nextel with a nationwide authority to operate in ten megahertz of spectrum in the 1.9 GHz band; (viii) establish a mechanism by which an independent Transition Administrator oversees the completion of band reconfiguration and records certain costs incurred by Nextel in connection therewith; (ix) consolidate the B/ILT Pools in the 800 MHz and 900 MHz bands; (x) allow 900 MHz Private Land Mobile Radio (PLMR) licensees to initiate CMRS operations on their currently authorized spectrum or to assign their authorizations to others for CMRS use.

3. In the Fifth Report and Order (Fifth R&O), Fourth Memorandum Opinion and Order (Fourth MO&O), and Order the Commission adopts changes to parts 15, 24, 74 and 78 of the Commission's rules that were either proposed in or suggested in response to the NPRM in WT Docket 02-55 or proposed in or suggested in the Third Notice of Proposed Rule Making (Third NPRM) in ET Docket No. 00-258. The Third NPRM, released on February 10, 2003, 68 FR 12015-03 (March 13, 2003), sought comments on the reallocation of spectrum in the 1910-1920 MHz band that can be paired with spectrum in the 1990-2000 MHz band to support fixed and mobile services, including Advanced Wireless Services. In the Fifth R&O, the Fourth MO&O, and Order we: (i) Designate two paired five megahertz blocks in the 1910-1915 MHz and 1990-1995 MHz bands for licensed Fixed and Mobile services; (ii) make the five megahertz block at 1910-1915 MHz available by re-designating the band from Unlicensed Personal Communications Services (UPCS) use to licensed Fixed and Mobile services; adopting a reimbursement plan to compensate UTAM, Inc., for relocation expenses it has incurred in relocating incumbents from the band; and addressing several pending petitions for rulemakings and petitions for waivers relating to new use of the 1910-1915 MHz band; (iii) address how Nextel will participate in the existing relocation and reimbursement plan for incumbent BAS licensees in the 1990-2025 MHz band—which has already been reallocated for Fixed and Mobile services—given our decision to provide Nextel access to the 1990-1995 MHz band; (iv) address Nextel's obligations to relocate incumbent BAS licensees in the 1990- 2025 MHz band, as well as address several petitions for reconsideration and clarification regarding the existing BAS relocation plan, given our decision to provide Nextel access to the 1990-1995 MHz band (which has already been reallocated for Fixed and Mobile Services).

4. This Report and Order contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this R&O as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due January 21, 2005. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

5. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. 2 The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. 3 Three commenting parties specifically addressed the IRFA. 4 We discuss those comments below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 5

6. In the Report and Order, we have concluded that reconfiguration of the 800 MHz band is essential, over the long term, to assure that critical public safety communications may be accommodated without unacceptable interference, as that term is defined in the Report and Order. Because increasing instances of interference to 800 MHz public safety communications systems made it imperative that we act to stem such interference without delay, we adopted rules that hold the involved ESMR and cellular telephone licensees strictly responsible for abating interference by application of a variety of technical remedies which have been subsumed in this proceeding under the rubric of Enhanced Best Practices . Specifically, the Commission took the following actions: (i) Adopted a new 800 MHz band plan that, after a transition period, will separate high-density ESMR systems in the band, principally those operated by Nextel, from public safety and other non-cellular 800 MHz operations; (ii) require Nextel to relinquish all of its 800 MHz spectrum holdings below 817 MHz/862 MHz resulting in an additional average of 4.5 megahertz of 800 MHz band spectrum becoming available to the public safety and critical infrastructure community; (iii) established a transition mechanism for band reconfiguration with minimal disruption to the operations of all affected 800 MHz incumbents during the transition period; (iv) required Nextel to pay all band reconfiguration costs of public safety and other 800 MHz incumbents that result from transition to the new band plan; (v) defined unacceptable interference as a function of threshold received power levels of desired signals; (vi) placed strict responsibility for abatement of unacceptable interference on the licensees whose systems are the source of such interference; (vii) required prior notification, upon request, of the activation or modification of ESMR and cellular telephone cells; (viii) established firm rules—including response times of twenty-four hours and abatement initiation time of forty-eight—for procedures to be used to identify, report and remedy instances of unacceptable interference; (ix) modified certain Nextel licenses to accommodate a nationwide allocation in the 1910-1915 MHz/1990-1995 MHz paired spectrum block, in exchange for Nextel's surrendering spectrum, and bearing the financial burden and risk of reconfiguring the 800 MHz band; (x) consolidated the Business and Industrial/Land Transportation Pools in the 800 MHz and 900 MHz bands, and; (xi) allowed 900 MHz Private Land Mobile Radio (PLMR) licensees to initiate CMRS operations on their currently authorized spectrum or to assign their authorizations to others for CMRS use.

7. The Commission has taken these actions to immediately stem increasing instances of interference to 800 MHz public safety communications systems. The Commission has long recognized that the nation's public safety community requires effective radio communications systems free of unacceptable interference if public safety agencies are to adequately protect the safety of lives and property. The actions taken by the Commission in the Report and Order create a suitable spectrum environment for public safety and Critical Infrastructure Industries communications systems operating in the 800 MHz band.

8. In the Fourth Memorandum Opinion and Order, we both grant and deny petitions for reconsideration and clarification of the Third Report and Order and Third Memorandum Opinion and Order. We grant petitions to the extent described herein and clarify several points relating to BAS operations by licensees operating on different channel plans during the transition to the new BAS channel plan at 2025-2110 MHz. We otherwise deny the petitions relating to BAS relocation issues in the 1990-2025 MHz band. We also no longer require BAS licensees in TV markets 31-210 to cease operation on channels 1 and 2 (1990-2008 MHz and 2008-2025 MHz, respectively) until they have been relocated to their final channel plan in the 2025-2110 MHz band, but otherwise retain our previously adopted relocation rules for MSS licensees. The changes we adopt are necessary to allow Nextel, as a new entrant in the 1990-2025 MHz band, to participate in the relocation process we had previously established for BAS incumbents.

9. Three parties submitted comments specifically in response to the IRFA: Business Autophones, Inc. (Business Autophones), Small Business in Telecommunications (SBT), and Skitronics, LLC (Skitronics). 6 Business Autophones opines that the Nextel Plan, which contemplated relocating B/ILT licensees from the 800 MHz band to the 700 MHz and 900 MHz at their own expense, would be financially devastating to small business B/ILT licensees and urges the Commission to either abate interference on a case-by-case basis or adopt the plan proposed by NAM/MRFAC which reconfigured the band but did not relocate B/ILT licensees. 7 For the reasons described infra we have adopted a band plan that does not relocate B/ILT licensees to the 700 MHz and 900 MHz band and requires Nextel to finance any necessary relocation of B/ILT licensees.

10. Skitronics posits on the impact of four separate alternatives set forth in the NPRM on small businesses: (i) Skitronics echoes Business Autophones concerns about the effect of the proposal to relocate B/ILT licensees from the 800 MHz band to the 700 MHz and 900 MHz at their own expense. 8 As we discuss at ¶ 30 infra , we did not choose this alternative. (ii) Skitronics argues that Nextel's alternative proposal, one that would allow incumbent 800 MHz operators to remain in the band on a secondary status, would deleteriously affect small business SMR operators by impacting these business' growth prospects as well as their ability to guarantee continuous service to their customers. 9 We note that although Nextel offered this alternative in its original White Paper proposal, Nextel removed it as part of the plan it submitted as a member of the Consensus Parties. Therefore, we ceased to consider this alternative at that time and we have not chosen to enact that alternative as a rule. (iii) Skitronics argues that the Commission's consideration of moving 800 MHz incumbents to the 2.1 GHz imposes significant costs on small business SMR licensees since the propagation qualities of the 2.1 GHz spectrum make it unsuitable for SMR use and there is a lack of available equipment suitable for SMR operations in this band. 10 As in the case of the alternative of allowing SMR licensees to remain in the 800 MHz band on a secondary basis, this alternative was superseded by the alternative set forth by the Consensus Parties in the Consensus Plan and we have not chosen to move 800 MHz incumbents to the 2.1 GHz band. (iv) Skitronics contends that the alternative mentioned in the NPRM that has the least impact on small business is enforcement of existing rules against those licensees responsible for causing interference to public safety on a case-by-case basis. 11 For the reasons discussed at ¶ 32 infra , we declined to adopt this alternative.

11. Unlike the two other comments received in response to the IRFA, SBT focuses its comments on the adequacy of the IRFA in terms of its compliance with the RFA. Specifically, SBT makes the following arguments: (i) The IRFA does not describe the significant or potential economic impact of the NPRM on small entities as required by the RFA;  12 (ii) the IRFA omits any description of the problem to be rectified by the regulation to be promulgated or an objective for any proposed rule as required by the RFA;  13 (iii) the Commission either relied on outdated statistical sources in calculating the number of affected small licensees or failed to cite to the source(s) entirely;  14 (iv) SBT agrees with the IRFA's conclusion that the NPRM does not propose a rule that will entail additional reporting, record-keeping, and other compliance requirements because the NPRM does not, in fact, propose any rules. 15 However, in Section D infra we add new reporting and other requirements; (v) SBT urges the Commission to amend the NPRM's IRFA in any subsequent IRFA or FRFA if a substantive rule emerges from this proceeding;  16 (vi) SBT contends that the Commission should convert the NPRM to a Notice of Inquiry (NOI) and issue a second NPRM to propose specific rules;  17 (vii) with regard to SBT's comments, as an initial matter we believe that we do not need to issue a NOI in this proceeding because the IRFA's description of the problem of interference to public safety systems in the 800 MHz band is a sufficient description of the problem to be rectified in this proceeding. 18 Moreover, we believe our description of the two plans under consideration in the NPRM adequately described the rules under consideration. 19 We also note that the Consensus Parties filed a plan superseding one of the plans discussed in the NPRM on September 23, 2002 and the major revision of that new plan on December 24, 2002. Both of these plans, as well as the comments received in response to these plans, proposed substantive rules. Moreover, in the interest of ensuring a complete record, the Commission opened two additional notice and comment rounds to obtain public comment on these two plans. Our position, therefore, is that the Commission clearly stated its proposals either in the NPRM and IRFA or fully clarified them in the two subsequent notice and comment rounds that permitted full comment on subsequently proposed plans. Indeed, the Commission received the bulk of all comments in this proceeding subsequent to the comment period initiated in the NPRM. Finally, we note that in Section C, infra, we are using updated statistical sources to assess the impact of the rules we adopt today on small businesses.

12. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one that is: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA). Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rule changes adopted herein.

13. A “small organization” is generally any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. 20 Nationwide, there are approximately 1.6 million small organizations. 21 We note that, according to SBA data, there are approximately 22.4 million small businesses nationwide. 22 We describe and estimate, below, the number of small entities'applicants, licensees, and radio equipment manufacturers'that may be affected by this Report and Order.

14. Governmental Entities. The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”  23 As of 1997, there were approximately 87,453 governmental jurisdictions in the United States. 24 This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer than 50,000, and of which 1,498 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 84,098 or fewer.

15. Wireless Telecommunications. The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.”  25 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. 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 category and size standard, the majority of firms can be considered small.

16. Public Safety Radio Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 28 The SBA rules contain a definition for cellular and other wireless telecommunications companies which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. 29 There are a total of approximately 127,540 licensees within these services. 30 With respect to local governments, in particular, since many governmental entities as well as private businesses comprise the licensees for these services, we include under public safety services the number of government entities affected.

17. Business, Industrial and Land Transportation Licensees. At present, there are 3239 Business and Industrial/Land Transportation (I/LT) licensees that may be affected by this Report and Order. 31 The Commission does not require B/ILT licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many B/ILT licensees constitute small entities under this definition. Moreover, we note that B/ILT licensees generally are not in the business of providing cellular or other wireless telecommunications services but instead use the licensed facilities in support of other business activities.

18. Specialized Mobile Radio Licenses. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years, respectively. 32 In the context of both the 800 MHz and 900 MHz service, the SBA has approved the definitions of “small entity” and “very small entity.”  33 These bidding credits apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. The Commission assumes, for purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz SMR band. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities.

19. Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for radio and television broadcasting and wireless communications equipment manufacturing. Under the standard, firms are considered small if they have 1000 or fewer employees. 34 Census Bureau data for 1997 indicates that, for that year, there were a total of 1,215 establishments  35 in this category. 36 Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The Commission estimates that the majority of wireless communications equipment manufacturers are small businesses. 37

20. Broadcast Auxiliary Service (BAS). BAS involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the stations). The Commission has not developed a definition of small entities specific to broadcast auxiliary licensees. The U.S. Small Business Administration (SBA) has developed small business size standards, as follows: (1) For TV BAS, we will use the size standard for Television Broadcasting, which consists of all such companies having annual receipts of no more than $12.0 million;  38 (2) for Aural BAS, we will use the size standard for Radio Stations, which consists of all such companies having annual receipts of no more than $6 million;  39 (3) for Remote Pickup BAS we will use the small business size standard for Television Broadcasting when used by a TV station and that for Radio Stations when used by such a station.

21. According to Commission staff review of BIA Publications, Inc. Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 million or less. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations  40 must be included. 41 Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. There are also 2,127 low power television stations (LPTV). 42 Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA size standard. According to Commission staff review of BIA Publications, Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945 commercial radio stations in the United States had revenue of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations with much higher revenue, and, that in assessing whether a business concern qualifies as small under the above definition, such business (control) affiliations  43 are included. 44 Our estimate, therefore, likely overstates the number of small businesses that might be affected by our action.

22. Cable Antenna Relay Service (CARS). CARS includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has developed a small business size standard for Cable and other Program Distribution, which consists of all such companies having annual receipts of no more than $12.5 million. According to Census Bureau data for 1997, there were 1,311 firms within the industry category Cable and Other Program Distribution, total, that operated for the entire year. 45 Of this total, 1,180 firms had annual receipts of under $10 million, and an additional 52 firms had receipts of $10 million to $24,999,999.00. 46 Thus, under this standard, the majority of firms can be considered small.

23. Geostationary, Non-Geostationary Orbit, Fixed Satellite, or Mobile Satellite Service Operators (including 2 GHz MSS systems). The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit, fixed-satellite or mobile-satellite service operators. The SBA has developed a small business size standard for Satellite Telecommunications Carriers, which consists of all such companies having $12.5 million or less in annual receipts. 47 According to Census Bureau data for 1997, there were 324 firms that operated for the entire year. 48 Of this total, 273 firms had annual receipts under $10 million, and an additional twenty-four firms had annual receipts of $10 million to $24,999,990. 49 Thus, under this size standard, the majority of firms can be considered small.

24. Fixed Microwave Services. Microwave services include common carrier, 50 private-operational fixed, 51 and broadcast auxiliary radio services. 52 At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of the FRFA, we will use the SBA's definition applicable to wireless and other telecommunications companies— i.e. , an entity with no more than 1,500 persons. 53 According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. 54 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. 55 Thus, under this size standard, majority of firms can be considered small.

25. We note that the number of firms does not necessarily track the number of licensees. We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. Of these licenses, approximately 14 are issued for frequencies in the Emerging Technology bands affected by this proceeding. This, assuming that these entities also qualify as small businesses, as many as 14 small business licensees could be affected by the rules we adopt. We note that these entities have been subject to relocation by UTAM under rules originally adopted in the Commission's Emerging Technologies proceeding. UTAM is the Commission's frequency coordinator for UPCS devices in the 1910-1930 MHz band. The Fifth Report and Order anticipates that these general relocation rules will continue to apply to FS microwave licensees and does not propose to modify the class of licensees that are subject to these relocation provisions.

26. We expect that, at most, the rules adopted herein will result in nominal new reporting, recordkeeping, or other compliance requirements imposed on entities affected in this proceeding. The rules we adopt herein require that any Cellular Radiotelephone and/or ESMR licensee that receives an interference complaint from a public safety/CII licensee shall promptly respond to such complaint. Cellular Radiotelephone licensees, in conjunction ESMR licensees, shall establish an electronic means of receiving the initial complaint and shall respond on an “as soon as possible” basis and no later than 24 hours after receipt of initial notification. The purpose of this notification rule is to provide public safety/CII licensees a means to communicate to Cellular Radio Telephone and/or ESMR licensees instances of interference and for Cellular Radiotelephone and/or ESMR licensees to immediately initiate corrective action.

27. Additionally, the rules we adopt today provide that, upon request by a public safety/CII licensee, Cellular Radiotelephone and/or ESMR licensees must provide to the public safety/CII licensee the following information before any new cell sites are constructed or any existing cells are modified: (i) Location; (ii) effective radiated power; (iii) antenna height; and (iv) channels in use. The purpose of this rule is for informational purposes only and does not entitle the public safety/CII licensee to approve or disapprove the activation of a proposed cell site or to demand changes to the proposed technical parameters. The principal purpose of this rule is to facilitate a dialogue between Cellular Radiotelephone licensees and public safety/CII licensees regarding potential interference, identification of interference, and voluntary corrective measures.

28. 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): (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance, rather than design standards; and (iv) an exemption from coverage of the rule, or any part thereof, for small entities. 56

29. Our decision to reconfigure the 800 MHz band is generally size-neutral, but some aspects are beneficial to small entities for the following reasons: (i) Although there are significant short-term costs associated with band reconfiguration, it is the solution most likely to yield maximum interference protection benefits for the least cost over the long run. This cost savings are significant for small entities with limited resources; (ii) once implemented, a reconfigured band will reduce both the upfront amount of coordinated engineering work necessary to prevent interference and the burden of troubleshooting interference incidents on a case-by-case basis. This will allow small entities to utilize their scarce engineering resources more effectively.

30. We also considered proposals to reallocate (1) Nextel's 700 MHz Guard Band Block B spectrum, and the Upper 700 MHz band to public safety use; and (2) provide private radio licensees 2:1 access to 900 MHz spectrum. Our decision to decline to adopt these proposals was generally size-neutral but has the following impact on small entities: (i) Since the Upper 700 MHz band is designated for auction, our decision not to utilize this band will allow small entities to bid on it in the future. (ii) Because we contemplate a future rulemaking proceeding to determine the ultimate disposition of Nextel's 700 MHz Guard Band spectrum, we afford small businesses an opportunity to comment on the future use of this spectrum.

31. We have considered the costs of realignment and the limited resources of small entities, including public safety, in effectuating band realignment. We believe that our decision will not have a significant economic impact on small entities in this regard because the cost of 800 MHz realignment will be borne by Nextel ( i.e. , Nextel will pay relocation costs). We reject the alternative of deferring final action on band reconfiguration, because deferral would increase the potential for increased interference to public safety systems because ESMR and Cellular telephone licensees would remain in close proximity to such systems while expanding their operations.

32. Although we have not codified the Best Practices Guide, we endorse the interference abatement strategies therein. However, when we considered the sole use of Enhanced Best Practices as an alternative to reconfiguring the 800 MHz band in its entirety, we found this alternative less effective and more costly over the long term than band reconfiguration, and therefore more likely to be harmful to smaller entities. Our finding in that regard rests on the following facts: (i) Addressing interference on a case-by-case basis is both labor-intensive and expensive, which puts smaller entities at risk due to their more limited resources; (ii) the transactional cost of applying Enhanced Best Practices as an exclusive remedy would increase as new public safety and other non-cellular systems came on line and ESMR and cellular telephone licensees increased the capacity of their systems by adding more cells; (iii) the increased cost and labor burden disproportionately affects public safety agencies, many of which are small entities operating with very limited human, technical and financial resources.

33. We have determined not to require public safety licensees to increase their signal strength. Such a requirement would impose a substantial burden on public safety licensees, including small entities, which would often continue to suffer from interference until the causes could be identified and until appropriate channels and sites for the construction of new base station facilities could be obtained.

34. Regarding our decision to permit negotiated agreements to swap or exchange channels as a means to resolve interference to public safety systems, we do not foresee any adverse impact on small entities. The channel swapping proposals to date have specified that Nextel will bear the costs thereof. To the extent that small entities bear channel swap expenses not assumed by Nextel, we believe, for the reasons discussed at ¶ 32 supra, the financial burden of these small-scale band reconfigurations should be less than the cost of reliance on Enhanced Best Practices for the long term abatement of unacceptable interference.

35. Regarding our decision to hold Cellular Radio Telephone and ESMR licensees strictly responsible for effectively abating actual or potential unacceptable interference to 800 MHz public safety systems in the shortest practicable time, we do not anticipate a significant burden on small entities. We recognize that our rule does not exempt small entities from its ambit. However, in eliminating the interference we afford licensees the flexibility to determine which system—ESMR, Cellular Telephone or CII/public safety—to modify and what particular technical parameters to change on these systems; and impose on the interfering licensee(s), the obligation to promptly implement such changes. Moreover, we note that small entities were generally not among the interfering parties in those instances of interference that were brought to our attention by parties in this proceeding. We considered the alternative of imposing system-wide, stringent technical limitations on ESMR and Cellular Telephone licensees; however, we found selection of that alternative unwarranted at this time. Such rules would have imposed a burden on all licensees, including small entities, which were not among those causing interference to 800 MHz public safety systems. In particular, we have heeded the filings of rural cellular telephone carriers who opposed imposition of out-of-band emission standards that would require them to add expensive equipment to their cell sites.

36. Regarding our adoption of rules establishing general standards and procedures to govern the abatement of interference to public safety systems, we recognize that they will apply equally to all licensees, including small entities, which cause interference to 800 MHz public safety systems. However, we do not anticipate any significant adverse impact on small entities. We adopted rules that were intentionally general in nature to confer considerable discretion on the parties involved in abating instances of interference to public safety systems. Moreover, as noted above, small entities were generally not among the interfering parties in those instances of interference that were brought to our attention by parties in this proceeding. To the extent that they can demonstrate that they are not contributing to the interference to the public safety systems, they will not be responsible for abating the interference. Therefore, the burden should be minimal for those small entities not contributing to the public safety interference problem in the 800 MHz band. The minimal burden imposed by these rules is necessary to ensure that critical public safety communications may be accommodated without unacceptable interference.

37. In this respect, we are mindful that a number of the public safety systems that are experiencing interference are small entities. We believe that the rules will impose a minimal burden on small public safety entities. First, because we will only require them to furnish certain necessary information to all licensees that may be responsible for causing the interference. Second, because this provision will assure them of timely responses to and analyses of their interference complaints. Ultimately, the burden of supplying this information will be significantly less than that associated with identifying each source of unacceptable interference and contacting such sources individually.

38. Regarding our decision to require notification of the activation of new or modified ESMR or cellular radiotelephone cells, we do not perceive any adverse impact on small entities. Indeed, the prior notification requirement will enable small entities, such as public safety/CII licensees, to take proactive, anticipatory steps to address potential interference. Without this requirement, public safety/CII licensees would first have to experience interference before taking recourse. Similarly, the requirement that Cellular Radiotelephone and/or ESMR licensees promptly initiate corrective actions after having been notified of interference by public safety/CII licensees minimizes the burden on small entities of having to endure prolonged periods of interference. Moreover, as noted above, small entities were generally not among the interfering parties in those instances of interference that were brought to our attention by parties in this proceeding.

39. Regarding our decision to consolidate the 800 MHz and 900 MHz Business and Industrial/Land Transportation Pools, we perceive no adverse impact on small entities. This decision will allow any eligible Business or Industrial/Land Transportation entity to be licensed on the consolidated channels. This consolidation will improve spectrum efficiency, promote the use of advanced technologies by affording licensees more contiguous spectrum, and reduce regulatory burdens on all licensees, including small entities. The alternative of retaining separate pools for each service would subject licensees to the unnecessary burden of seeking waivers to permit intercategory sharing, which may have been comparatively more onerous for smaller entities to prepare and file.

40. Regarding our decision to allow 900 MHz PLMR licensees to initiate CMRS operations on their currently authorized spectrum or to assign their authorizations to others for CMRS use, we perceive no adverse impact on small entities. This decision will improve spectrum efficiency, promote the use of advanced technologies by affording licensees access to addition spectrum.

41. Regarding our decision to allocate the 1910-1915 MHz/1990-1995 MHz paired spectrum blocks to Nextel, we perceive no adverse impact on small entities. Redesignating this spectrum for Nextel's use, for example, will facilitate 800 MHz realignment, by, among other things, introducing an additional entity that can participate in funding the relocation costs of public safety, critical infrastructure, and private wireless entities, including small entities. Alternatively, maintaining this spectrum without applying our relocation principles will expose such entities to continued interference without sufficient spectrum and funding to achieve realignment. Further, we are satisfied that our decision will not adversely impact BAS, UPCS, MSS, and microwave interests on account of expenditures in this spectrum. As noted in the Report and Order, Nextel has agreed to reimburse these interests or pay the upfront costs to relocate incumbents in the manner provided by our Rules, and we will hold Nextel to that agreement.

42. The Commission will send a copy of this Report and Order, Fifth R&O, Fourth MO&O, and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Report and Order, Fifth R&O, Fourth MO&O, and Order and this final certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration.

43. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Report and Order, Fifth R&O, Fourth MO&O, and Order including the Regulatory Flexibility Certification and to the Chief Counsel for Advocacy of the Small Business Administration.

44. Pursuant to the authority of Sections 1, 4(i), 303(f) and (r), 309, 316, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(f) and (r), 309, 316, and 332, parts 2, 15, 22, 24, 74, 78, and 90 of the Commission's rules, 47 CFR parts 2, 22, 24, 74, 78, and 90, is amended as set forth in Rule Changes, January 21, 2005 except for §§ 22.972, 22.973, 90.674, 90.675, 90.676, and 90.677 which contain information collection requirements that have not been approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date for these sections.

This is a summary of a Public Notice released by the Federal Communications Commission on October 22, 2004, extending certain deadlines set forth in the Order .

1. The extension of deadlines was prompted in order to avoid uncertainty for Nextel Communications, Inc. (Nextel) and certain other 800 MHz licensees, while the Commission seeks expedited comment on issues raised in certain ex parte presentations. The request for comments is designed to develop a full and complete record and to further the effective implementation of the 800 MHz band reconfiguration process. These issues are published in the Proposed Rules section of this issue. Therefore, the Commission believes it is appropriate to provide affected parties additional time in which to comply with certain deadlines set forth in the Order , released on August 6, 2004, a summary of which is published in the Rules and Regulations section of this issue. For this reason, with the exception of the statutory deadlines for filing petitions for reconsideration and for seeking judicial review of the Order , the Commission extends these deadlines by 45 days. For example, actions that previously were required within thirty (30) or sixty (60) days of Federal Register publication of the 800 MHz Report and Order are now required by February 7, 2005, or March 7, 2005, respectively. The Commission is not deferring the effective date of the rules in this proceeding published elsewhere in this issue. Specifically, the Commission extends the following deadlines an additional 45 days:

2. The Commission extends the deadlines contained in paragraph 342 of the Order . Paragraph 342 of the Order provides that:

3. The Commission extends the deadlines contained and referenced in paragraph 344 of the Order (as amended by the Second Erratum in this docket released October 6, 2004). Paragraph 344, as amended, provides that:

4. The Commission extends the deadline contained in paragraph 345 of the Order (as numbered in the Second Erratum released October 6, 2004). Paragraph 345, as numbered, provides that that “within thirty days of the publication of this Report and Order in the Federal Register , Nextel and Southern LINC shall deliver to the Commission an agreement for the channel distribution for all 800 MHz licensees in the areas shown in Appendix G.”

5. The Commission extends the Broadcast Auxiliary Service (BAS) relocation deadlines set out in paragraph 346 of the Order (as numbered in the Second Erratum released October 6, 2004). Paragraph 346 provides that, Nextel's modified licenses authorizing operations within the 1.9 GHz band are conditioned on several requirements, including:

6. The Commission extends the BAS relocation deadlines set forth in Paragraph 352 of the Order (as numbered in the Second Erratum released on October 6, 2004). Paragraph 352 provides that, “as a condition on Nextel's 1.9 GHz licenses, Nextel shall, as described herein, relocate all BAS licensees in the 1990-2025 MHz band within thirty months after the effective date of this Report and Order .” In this connection, Section 352 provides that Nextel shall comply with certain requirements, which include, but are not limited to:

7. This extension does not apply to the statutory deadlines for filing petitions for reconsideration and for seeking judicial review of the Order. Also, the Commission is not deferring the effective date of the rules set forth in Appendix C of the initial Order and published elsewhere in the Rules and Regulations section of this issue, including the effective dates of technical standards and procedural mechanisms adopted in the Order to abate unacceptable interference.

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The DFARS changes—

• Remove DFARS Subpart 217.4, which addresses the participation of small disadvantaged business concerns in leader company contracting. DoD rarely uses leader company contracting. Incentives for major DoD contractors to assist small disadvantaged business concerns are provided through the DoD Pilot Mentor-Protégé Program, in accordance with DFARS Subpart 219.71 and Appendix I.

• Lower the approval level at DFARS 219.705-4(d), from two levels above the contracting officer to one level above the contracting officer, for small business subcontracting plans that contain a small disadvantaged business goal of less than five percent.

DoD published a proposed rule at 69 FR 21996 on April 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule deletes text that is seldom used and revises review procedures that are internal to DoD.

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

DoD published an interim rule at 69 FR 31909 on June 8, 2004, to implement Section 1427 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1427 amended 10 U.S.C. 2855 to increase, from $85,000 to $300,000, the threshold below which acquisitions for architect- engineer services for military construction or family housing projects are set aside for small business concerns. DoD received no comments on the interim rule. Therefore, DoD has adopted the interim rule as a final rule without change.

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

DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 604. The analysis is summarized as follows:

This rule finalizes an interim DFARS rule published on June 8, 2004, to implement Section 1427 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1427 amended 10 U.S.C. 2855 to increase, from $85,000 to $300,000, the threshold below which acquisitions for architect-engineer services for military construction or family housing projects are set aside for small business concerns. DoD received no public comments on the initial regulatory flexibility analysis or the interim DFARS rule. Therefore, DoD has adopted the interim rule as a final rule without change. The rule will benefit small entities that perform architect-engineer services by increasing opportunities for these entities to receive DoD contract awards.

A copy of the analysis may be obtained from the point of contact specified herein.

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

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The rule deletes DFARS 224.102, which specifies that the Privacy Act (5 U.S.C. 552a) does not apply to certain contractor records. The DFARS text is unnecessary, because this issue is adequately addressed in DoD Regulation 5400.11-R, Department of Defense Privacy Program, which is referenced in DFARS 224.103.

DoD published a proposed rule at 69 FR 8152 on February 23, 2004. DoD received one comment in response to the proposed rule, and that comment supported the rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because deletion of the DFARS text does not represent a change in DoD policy. Applicability of the Privacy Act is adequately addressed in other DoD publications.

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

DoD published an interim rule at 69 FR 31911 on June 8, 2004, to implement Section 844 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136). Section 844 amended 10 U.S.C. 2320(b) to eliminate the requirement for contractors to furnish written assurance that delivered technical data is complete and accurate and satisfies the requirements of the contract. The interim rule removed the clause at DFARS 252.227-7036, Declaration of Technical Data Conformity, which implemented the previous statutory requirement. Three respondents submitted comments on the interim rule. All respondents supported the rule. One respondent also recommended that the change be made retroactive to reduce paperwork requirements for contracts currently in effect. DoD has made no change to the rule as a result of this comment. The interim rule became effective upon publication, on June 8, 2004. Consistent with FAR 1.108(d), the rule applies to solicitations issued on or after the effective date, but contracting officers may, at their discretion, apply the change to any existing contract with appropriate consideration.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because elimination of the requirement for a contractor to provide written assurance of technical data conformity does not diminish the contractor's obligation to provide technical data that is complete and accurate and in compliance with contract requirements.

The information collection requirements of the clause at DFARS 252.227-7036, Declaration of Technical Data Conformity, were previously approved by the Office of Management and Budget under Control Number 0704-0369. Elimination of the clause has reduced estimated annual public reporting burden by 126,886 hours (estimated 507,545 declarations annually at .25 hours per declaration).

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The rule deletes DFARS Subpart 235.70, Research and Development Streamlined Contracting Procedures. This subpart contains procedures for acquiring research and development using a standard solicitation and contract format and the capabilities of the World Wide Web. These procedures have become obsolete, due to further advances in technology since their creation.

DoD published a proposed rule at 69 FR 8157 on February 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule deletes research and development contracting procedures that are no longer in use.

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

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The DFARS changes include—

• Deletion of text at DFARS 251.102 containing procedures for authorizing a contractor to use Government supply sources. Text on this subject has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi.

• Deletion of text at DFARS 251.105 regarding contractor payment for purchases from Government supply sources. This subject is addressed in the clause at DFARS 252.251-7000 as amended by this rule.

DoD published a proposed rule at 69 FR 8159 on February 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the DFARS changes address procedural matters that apply only when a contractor is authorized to use Government supply sources.

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

This document changes the IFR effective date to April 1, 2005. Therefore, any requirements imposed by the IFR that pertain to 49 CFR parts 222 and 229 and would have taken effect before April 1, 2005 need not be complied with before that date. This document does not, however, modify any IFR requirements that are scheduled to take effect on or after April 1, 2005.

As the provisions of the IFR remain subject to further modification under the terms of the final rule, FRA intends to issue the final rule prior to April 1, 2005. Thus, this change of the IFR effective date will give public authorities additional time within which to establish the necessary conditions that will permit them to continue or establish quiet zones within their respective jurisdictions.

In order to address the concerns of communities that have been anxiously awaiting the issuance of the final rule, the provisions of the final rule for quiet zone-related administrative matters will become effective 30 days after publication of the final rule. Therefore, public authorities will be permitted to submit quiet zone applications and/or notification packages 30 days after the final rule is published. However, the provisions of the final rule which require railroads to sound the locomotive horn when approaching and entering public highway-rail grade crossings will not take effect until April 1, 2005. This delay should give communities additional time within which to come into compliance with the requirements of the final rule before routine locomotive horn sounding is initiated at public grade crossings within the area.