Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21137; Directorate Identifier 2002-NM-86-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed 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 proposed AD. Using the search function of our docket website, 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 on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified us that an unsafe condition may exist on all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes. The CAA advises that, following an extensive review of the primary airframe fatigue test results and Maintenance Steering Group 3 (MSG-3) analysis for the Model 4101 airplanes, new areas and thresholds of fatigue damage were identified. New inspections and revisions to existing inspections for fatigue damage (requirements and inspection thresholds in particular) are needed to address the findings. These inspections are necessary to maintain the structural integrity of the airplane. Fatigue damage of the fuselage, door, engine nacelle, empennage, and wing structures, if not detected and corrected in a timely manner, could result in reduced structural integrity of the airplane.

BAE Systems (Operations) Limited has issued Service Bulletin J41-51-001, Revision 2, dated April 30, 2003. The service bulletin describes procedures for repetitive detailed and specialized inspections of the fuselage to detect fatigue damage, replacement of the bolt assemblies of the pintle bearing housing and upper club foot fitting with new bolt assemblies, and corrective actions if necessary. The specialized inspections include eddy current inspections (including high frequency and rotating), radiographic inspections, a magnetic particle inspection, and a torque measurement. The areas to be inspected are located in or around door, fuselage, engine nacelle, empennage, and wing structures. In addition, the service bulletins specify submitting inspection reports after most of the inspection procedures are completed. The corrective actions include replacing a damaged part with a new part, and repairing damage in accordance with the service bulletin, or in accordance with a method approved by BAE Systems (Operations) Limited if damage is outside specified limits. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The CAA mandated the service information and issued British airworthiness directive 005-02-2002 to ensure the continued airworthiness of these airplanes in the United Kingdom.

This airplane model is manufactured in the United Kingdom and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the CAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletin.”

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describes procedures for submitting inspection reports, this proposed AD would not require those actions. We do not need this information from operators.

The service bulletin specifies that you may contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require you to repair those conditions using a method that we or the CAA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or the CAA approve would be acceptable for compliance with this proposed AD.

Operators should note that, although the service bulletin does not list a grace period in the compliance times for some of the actions, this proposed AD adds a grace period to the compliance times. We find that a grace period will keep airplanes from being grounded unnecessarily.

Also, although the service bulletin specifies a grace period for some actions, this proposed AD has a different grace period. We find that this modified grace period will keep airplanes from being grounded unnecessarily.

Operators should note that, although the Accomplishment Instructions of the referenced service bulletins use “flights” to define some compliance times, this proposed AD uses “total flight cycles.”

In this proposed AD, the “detailed visual inspection,” “detailed internal visual inspection,” “detailed internal inspection,” and “detailed external visual inspection” specified in the service bulletin are referred to as a “detailed inspection.” We have included the definition for a detailed inspection in Note 1 of the proposed AD.

For airplanes not inspected previously, the service bulletin specifies inspection thresholds of 8 years and 4 years after first flight. However, for these same airplanes, paragraph (g) of this proposed AD specifies an inspection threshold of 96 months (8 years) and 48 months (4 years), as applicable, after the date of issuance of the original standard Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness. This decision is based on our determination that “first flight” may be interpreted differently by different operators. We find that our proposed terminology is generally understood within the industry and records will always exist that establish these dates with certainty.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

The total proposed actions would take about 223 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the total proposed AD for U.S. operators is up to $826,215, or $14,495 per airplane, per inspection cycle.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21139; Directorate Identifier 2003-NM-196-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed 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 proposed AD. Using the search function of our docket 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 on behalf of 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.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model CL600-1A11 (CL-600), Model CL-600-2A12 (CL-601), and Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL604) series airplanes. TCCA advises that certain main landing gear (MLG) and nose landing gear (NLG) parts that are listed as safe-life items with structural life limits in the Airworthiness Limitations Section of the Instructions for Continued Airworthiness, could be removed from a landing gear and re-installed on another landing gear. These parts may not have part numbers or serial numbers, making tracking difficult. This condition, if not corrected, could result in life-limited landing gear parts being used beyond their safe-life limits, which could lead to collapse of the landing gear.

Bombardier has issued the service bulletins listed in the following table. These service bulletins describe procedures for assigning part numbers or serial numbers to certain MLG and NLG life-limited parts.

Bombardier has also issued the following Canadair temporary revisions (TR) to the applicable Airworthiness Limitations Section for the Instructions for Continued Airworthiness of the applicable Canadair Time-Limits/Maintenance Check Manual. These TRs incorporate new life limits for the landing gear parts described in the Bombardier service bulletins.

We have determined that accomplishment of the actions specified in the service information will adequately address the unsafe condition. TCCA mandated the service information and issued Canadian airworthiness directives CF-2003-18R1, dated January 17, 2005; CF-2003-20, dated July 24, 2003; and CF-2003-21R1, dated January 21, 2005; to ensure the continued airworthiness of these airplanes in Canada.

The Bombardier service bulletins refer to the following Messier-Dowty service bulletins as additional sources of service information for adding part numbers or serial numbers by vibro-peening the numbers on MLG and NLG components that do not have them. The Messier-Dowty service bulletins also give instructions for ensuring that the new serial numbers are listed in the aircraft log as life-limited parts, and for determining the number of landings for parts without a part number or serial number on which the time since new and cycles since new have not been tracked.

These airplane models are manufactured in Canada and are type-certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require operators to assign serial numbers or part numbers to certain landing gear parts; and to establish the number of landings on the parts, if necessary. This proposed AD also would require operators to revise the Airworthiness Limitations section of the Instructions for Continued Airworthiness to reflect the new life limits of the landing gear parts. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Difference Between the Proposed AD and the Bombardier Service Bulletins.”

The Bombardier service bulletins request that operators submit incorporation notices to Bombardier after each new part/serial number and landings assigned to these parts are added. This proposed AD does not include this action.

Canadian airworthiness directive CF-2003-18R1, dated January 17, 2005, does not list specific compliance times in paragraph D for recording the number of landings. For those airplanes affected by Canadian airworthiness directive CF-2003-18R1, this proposed AD would require compliance at the applicable compliance time listed in paragraphs A and B of that airworthiness directive.

The following table provides the estimated costs for U.S. operators to assign serial numbers or part numbers to certain landing gear parts to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21138; Directorate Identifier 2004-NM-131-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed 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 proposed AD. Using the search function of that 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 on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received reports of damage to the lugs of the inboard attach fittings of the wing leading edge slat tracks at slat numbers 2 and 5 on several Boeing Model 737-100, -200, and -200C series airplanes. Two reports addressed damage that occurred during takeoff and four reports addressed damage that occurred during flight. The other damaged fittings were found during routine maintenance inspections. In most of the reports, the lugs of the fittings had fractured or cracked. Both lugs of one fitting had fractured and were completely separated at the slat-to-track attach bolt. The auxiliary track was also lifted and there was damage to the upper skin of the leading edge cavity on each side. Boeing analysis has determined this fitting damage was due to cyclic fatigue. This condition, if not corrected, could result in a lifted slat, which, if the airplane performs any non-normal maneuver during takeoff or landing at very high angles of attack, could lead to loss of the slat and reduced control of the airplane.

We have reviewed Boeing Special Attention Service Bulletin 737-57-1273, Revision 2, dated October 30, 2003. The service bulletin describes procedures for a one-time detailed visual inspection for cracking of the lugs of the inboard attach fittings at slat tracks 2 and 5 of the wing leading edge, repetitive high-frequency eddy current (HFEC) inspections for cracking of the lug surfaces of those inboard attach fittings, and replacement of the aluminum inboard attach fittings with new, improved steel inboard attach fittings. Replacement of any aluminum inboard attach fitting with a new, improved steel inboard attach fitting eliminates the need for the one-time detailed inspection and the repetitive HFEC inspections for that fitting. Accomplishing the actions specified in the service bulletin is intended to adequately address the unsafe condition.

Service Bulletin 737-57-1273, Revision 2, specifies prior accomplishment of portions of Boeing Service Bulletin 737-57-1080, Revision 3, dated September 24, 1992 (applicable to Group 2 airplanes only as listed in Service Bulletin 737-57-1273). Among other things, Service Bulletin 737-57-1080, Revision 3, Figure 3, describes procedures for inspecting the slat tab support clip on slats 2 and 5 for interference with the slat track inboard attach fittings and trimming the subject slat tab support clips to eliminate any such interference.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require a one-time detailed inspection for cracking of the lugs of the inboard attach fittings at slat tracks 2 and 5 of the wing leading edge, related investigative actions, trimming the slat tab support clip on slats 2 and 5 to eliminate any interference with the slat track inboard attach fittings if necessary, and replacing the attach fittings with new, improved fittings. Replacement of any aluminum inboard attach fitting with a new, improved steel inboard attach fitting terminates the one-time detailed inspection and the repetitive HFEC inspections for that fitting. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Clarification of Inspection Terminology.”

In this proposed AD, the “detailed visual inspection” specified in the Boeing service bulletin is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in the proposed AD.

This proposed AD would affect about 909 airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21140; Directorate Identifier 2004-NM-274-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed 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 proposed AD. Using the search function of that website, 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 on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report of two incidents of a collapsed main landing gear (MLG) on one McDonnell Douglas Model DC-9-32 airplane and one Model DC-9-31 airplane. These incidents happened when the MLG cylinder cracked and failed. The cracks and failures were caused by fatigue stresses from inclusions in high-stress areas, which caused sub-surface fatigue cracks to propagate to the surface of the MLG cylinder. After the two failures, the airplane operator started an inspection program and found cracks in two additional cylinders before the cracks grew large enough to cause an MLG failure. These additional cracks were found on one McDonnell Douglas Model DC-9-14 airplane and one Model DC-9-15 airplane. Laboratory testing and failure analysis confirmed that inclusions and sub-surface fatigue cracks were present in all four cases, at the same location. This condition, if not corrected, could result in a collapsed MLG during takeoff or landing, and possible reduced structural integrity of the airplane.

We have reviewed Boeing Alert Service Bulletin DC9-32A350, dated December 3, 2004. The service bulletin gives procedures for verifying the number of landings on the MLG shock strut cylinder by examining each airplane's service history. For airplanes that have less than 60,000 landings on the MLG, the service bulletin states that no further action is required until the MLG reaches the 60,000-landing threshold.

The service bulletin also gives procedures for reviewing the maintenance records to determine if the MLG shock strut cylinders on airplanes identified in the service bulletin as Group 3 have always been on Group 3 airplanes.

The service bulletin gives two inspection options:

• Option 1: Fluorescent dye penetrant inspection combined with fluorescent magnetic particle inspection.

• Option 2: Phased array ultrasonic inspection.

For MLG shock strut cylinders on which no crack indication is found, the service bulletin gives procedures for repeating the inspections.

For MLG shock strut cylinders on which any crack indication is found during any inspection, the service bulletin recommends related investigative and corrective actions. The related investigative and corrective actions vary according to the inspection option and are described in the table below.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service bulletin described previously.

There are about 644 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

We have specified model designations in the applicability of this proposed AD as published in the most recent type certificate data sheet for the affected models. These model designations do not include the DC-9-10 and DC-9-33, which are listed in paragraph 1.A. “Effectivity,” of the referenced service bulletin.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20111; Directorate Identifier 2004-NM-154-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments.

We will post all comments submitted, 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 supplemental NPRM. Using the search function of our docket 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 on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level in the Nassif Building at the DOT street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an AD (the “original NPRM”) for certain Raytheon Model HS.125 series 700A airplanes, Model BAe.125 series 800A airplanes, and Model Hawker 800 and Hawker 800XP airplanes. The original NPRM was published in the Federal Register on January 24, 2005 (70 FR 3318). The original NPRM proposed to require an inspection to determine the current rating of the circuit breakers of certain cockpit ventilation and avionics cooling system blowers; and replacing the circuit breakers and modifying the blower wiring, as applicable.

Since we issued the original NPRM, we discovered an important inconsistency in the phrasing of the compliance time. Certain wording in paragraph (f) of the original NPRM reads “* * * and avionics cooling system blowers; and replace the circuit breakers * * *” To ensure that the unsafe condition is corrected in a timely manner, we have revised the wording in paragraph (f) of this supplemental NPRM to read “* * * and avionics cooling system blowers; and, before further flight, replace the circuit breakers * * *”

We have also determined that the phrasing of paragraph (f) would have placed undue hardship on operators by requiring reporting of compliance with the service bulletin. We do not need this information and have revised paragraph (f) and added a new paragraph (h) to explicitly remove the reporting requirement in this supplemental NPRM. Because of the new paragraph (h), we have reidentified the existing paragraph (h) of the original NPRM as paragraph (i) in this supplemental NPRM.

The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions according to a method approved by the FAA.

Although the service bulletin describes procedures for reporting compliance to the manufacturer, this supplemental NPRM would not make such a requirement. We do not need this information from operators.

There are about 350 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 250 airplanes of U.S. registry. The proposed inspection would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of this supplemental NPRM on U.S. operators is $16,250, or $65 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

3. 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 regulatory evaluation of the estimated costs to comply with this supplemental NPRM. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD13-05-007), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Marine Safety Office Portland, Oregon, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Each year in June, the annual Portland, Oregon, Rose Festival is held on the waters of the Willamette River near Portland, Oregon. On May 29, 2003, the Coast Guard published a final rule (68 FR 31979) establishing a security zone, in 33 CFR 165.1312, for the security of naval vessels on a portion of the Willamette River during the fleet week of the Rose Festival. The security zone in 33 CFR 165.1312 is enforced each year during the event to provide for public safety by controlling the movement of vessel traffic in the regulated area. The current regulation does not accurately describe the enforcement period.

In this proposed rule, the Coast Guard would amend 33 CFR 165.1312, “Security Zone; Portland Rose Festival on Willamette River”, to require compliance with the regulation each year in June from the first Wednesday in June falling on the 4th or later through the following Monday in June. The location of the security zone would remain unchanged.

This proposed rule, for safety and security concerns, would control vessel movements in a security zone surrounding vessels participating in the annual Portland, Oregon, Rose Festival. U.S. Naval Vessels are covered under 33 CFR part 165 subpart G—Protection of Naval Vessels, however, the Portland, Oregon, Rose Festival is a major maritime event that draws many different vessels including Navy, Coast Guard, Army Corps of Engineers, and Canadian Maritime Forces. It is crucial that the same level of security be provided to all participating vessels.

Entry into this zone is prohibited unless authorized by the Captain of the Port, Portland, Oregon, or his designated representatives.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area of the Willamette River is a small area, enforced for a short period of time, and it is established for the benefit and safety of the recreational boating public.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

Vessels desiring to transit this area of the Willamette River may do so by scheduling their trips in the early morning or evening when the restrictions on general navigation imposed by this section would not be in effect. For these reasons, the Coast Guard certifies under 5 U.S.C. 605(b) that this change would not have a significant economic impact on a substantial number of small entities.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Comments submitted in response to this finding will be evaluated under the criteria in the “Regulatory Information” section of this preamble.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.ID, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction from further environmental documentation. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (05-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register.

In its effort to thwart potential terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Espionage Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

On January 29, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA” in the Federal Register (69 FR 4267) proposing to establish a security zone extending approximately 150 feet around the Coast Guard Island Pier in the navigable waters of the Oakland Estuary in Alameda, California. We received no letters commenting on the proposed rule. No public hearing was requested, and none was held. On June 7, 2004, we published a final rule (codified as 33 CFR 165.1190) with the same title in the Federal Register (69 FR 31737) that established a security zone extending approximately 150 feet around the Coast Guard Island Pier in the navigable waters of the Oakland Estuary in Alameda, California.

Since that time, the Coast Guard has determined that a floating security barrier should also be installed to provide an added level of security for the Coast Guard Cutters that moor at the Coast Guard Island Pier. Because the navigational channel is less than 150 feet from the two ends of the Coast Guard Island Pier, and in order to provide approximately 150 feet of maneuvering space for the cutters along the entire length of the pier, the barrier would extend into the navigational channel approximately 30 to 50 feet at each end.

In this NPRM, the Coast Guard is proposing to revise the perimeter of the existing security zone around the Coast Guard Island pier to mirror the perimeter of a proposed floating security barrier. The need for the security zone still exits due to heightened security concerns and the catastrophic impact a terrorist attack on a Coast Guard Cutter would have on the crew on board and surrounding government property.

The Coast Guard proposes to revise the existing security zone around and under the Coast Guard Island Pier that encompasses all waters of the Oakland Estuary, extending from the surface to the sea floor, within approximately 150 feet of the pier. The revision to the existing security zone would ensure that a proposed floating security barrier could be installed and that the perimeter of the security zone would provide the necessary maneuvering space for Coast Guard Cutters. The perimeter of the proposed security barrier is located along the following coordinates: commencing at a point on land approximately 150 feet northwest of the northwestern end of the Coast Guard Island Pier at latitude 37°46′52.73″ N and longitude 122°15′06.99″ W; thence to the edge of the navigable channel at latitude 37°46′51.83″ N and longitude 122°15′07.47″ W; thence to a position approximately 30 feet into the charted navigation channel at latitude 37°46′51.27″ N and longitude 122°15′07.22″ W; thence closely paralleling the edge of the charted navigation channel to latitude 37°46′46.75″ N and longitude 122°15′00.21″ W; thence closely paralleling the edge of the charted navigation channel to a point approximately 50 feet into the charted navigation channel at latitude 37°46′42.36″ N and longitude 122°14′51.55″ W; thence to a point on land approximately 150 feet southeast of the southeastern end of the Coast Guard Island Pier at latitude 37°46′43.94″ N and longitude 122°14′49.89″ W; thence northwest along the shoreline back to the beginning point.

The security zone continues to be needed for national security reasons to protect Coast Guard Cutters, their crews, the public, transiting vessels, and adjacent waterfront facilities from potential subversive acts, accidents or other events of a similar nature. Entry into the revised security zone would be prohibited unless specifically authorized by the Captain of the Port or his designated representative.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this proposed rule restricts access to the waters encompassed by the security zone, the effect of this proposed rule would not be significant for the following reasons: (i) Vessel traffic would be able to pass safely around the area, (ii) vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the proposed security zone to engage in these activities, (iii) the perimeter of the proposed security zone would only extend 30 to 50 feet into the 500-foot wide navigational channel, and (iv) this proposed security zone is only slightly larger than the Coast Guard Island security zone that has been in place since July 7, 2004.

The size of the proposed zone is the minimum necessary to provide adequate protection for Coast Guard Cutters, their crews, other vessels and crews operating in the vicinity, adjoining areas, and the public while allowing adequate maneuvering space for the Coast Guard Cutters. The entities most likely to be affected are tug and barge companies transiting the Oakland Estuary and pleasure craft engaged in recreational activities and sightseeing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. We expect this proposed rule may affect owners and operators of private and commercial vessels, some of which may be small entities, transiting the Oakland Estuary. The proposed security zone would not have a significant economic impact on a substantial number of small entities for the following reasons: (i) Vessel traffic would be able to pass safely around the area, (ii) vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the proposed security zone to engage in these activities, and (iii) the perimeter of the proposed security zone would only extend 30 to 50 feet into the 500-foot wide navigational channel. In addition, small entities and the maritime public would be advised of this revision to the existing security zone via public notice to mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Doug Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety Office San Francisco Bay, (510) 437-3073. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” (CED) are available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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

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

On April 5, 2005, we received a letter from the Executive Director of the TCEQ requesting us to parallel process SIP revisions to 30 TAC, General Air Quality Rule 101, Subchapter F, subsections 101.221(g), 101.222(h), and 101.223(e). See section 2 of this document for more information on parallel processing. These subsections state that sections 101.221, 101.222 and 101.223, which address excess emissions resulting from SSM related activities, will expire by their own terms on June 30, 2005. The EPA has interpreted those provisions to mean the sections will expire from state law and from the approved SIP on that date. The proposed revision will delete the existing SIP provisions and add revised versions of those sections. The proposed provisions state,

The change will, in effect, extend the expiration date of the affected subsections from June 30, 2005, to January 15, 2006, unless the State submits a revised version of sections 101.221-101.223 to EPA for review and approval into the Texas SIP, which would have the effect of extending the expiration date in the SIP to June 30, 2006.

The EPA believes it is important to explain our interpretation of the phrase in the State's rule, “submits a revised version of this section.” If we receive a complete SIP submission of the revised version of the specified sections prior to January 15, 2006, we will make a preliminary determination of whether the rule is consistent with the Clean Air Act (the Act), EPA policy and guidance, and therefore approvable. We will interpret the June 30 date in the approved SIP to be effective, if the State submits a complete SIP revision prior to January 15, 2006, that, after our preliminary review, we determine can be fully approved. The EPA intends to work with the State during its rulemaking on the revised version of the rule to identify any issues that would prevent our approval of the rule. Although we cannot prejudge our ultimate decision on the SIP submission prior to our review of public comments, we will make clear through our public comments during the State's rulemaking and discussions with the State whether there are obvious problems which would prevent our approval of the revised rule, and hence, trigger the earlier January 15, 2006, date for the existing rule to expire from the Texas SIP. If we determine that the June 30, 2006, expiration date has become effective, the provisions will expire from the SIP on that date whether or not EPA has taken final action on the SIP submission. In sum, the proposed rule revision will extend the expiration date of affected subsections from June 30, 2005, to no later than June 30, 2006. Absent final action by EPA to approve this revision, sections 101.221, 101.222, and 101.223 will expire from the Texas SIP by their own terms on June 30, 2005, without further action by EPA. Due to the concerns expressed in our limited approval of March 30, 2005 (70 FR 16129), we will not extend limited approval of the expiration date of the affected subsections beyond the currently proposed June 30, 2006.

Today, we are proposing to grant limited approval of the deletion of existing SIP subsections 101.221(g), 101.222(h), and 101.223(e) and the addition of revised subsections 101.221(g), 101.222(h), and 101.223(e) into the Texas SIP. Specifically, we are seeking only those comments relevant to the date extension aspect of the proposed rule. Texas' rulemaking also seeks comments on the only proposed expiration date changes and does not intend to make changes to any other sections of Chapter 101. We will evaluate any future rule revisions or other components of the 30 TAC, General Air Quality Rule 101 independently in a separate Federal Register publication for consistency with the requirements of the Act, and EPA guidance and policy.

We are proposing limited approval of this revision to the Texas SIP using the parallel processing mechanism of concurrent state and federal rulemaking actions. Parallel processing means that EPA proposes rulemaking action on a rule revision before the state regulation becomes final under state law. See 40 CFR part 51, appendix V, section 2.3. Parallel processing generally saves total processing time and makes the SIP revision effective in a shorter period of time than our normal review process. Under parallel processing, EPA will take final action on its proposal if the final version of the adopted state submission remains substantially unchanged from the submission on which the proposed rulemaking was based. If there are significant changes in the State's final submission, EPA could not take final action on this proposal.

We are proposing to grant limited, rather than full, approval of this SIP submittal. We are proposing limited approval of this rule because we granted limited approval of the regulations which are modified by this revision. We are similarly proposing limited approval of these provisions. If finalized, this action will have the effect of extending the limited approval which we published on March 30, 2005 (70 FR 16129). For more information on the basis for our limited approval of revisions to 30 TAC, General Air Quality Rule 101, Subchapter A and Subchapter F concerning excess emissions during SSM activities, see sections 3 and 5 of our March 30, 2005 Federal Register publication. Today's action does not affect the position we expressed in that rulemaking action.

The proposed SIP submittal will affect all sources of air emissions operating within the State of Texas.

Today, we are proposing to grant limited approval of the deletion of existing SIP subsections 101.221(g), 101.222(h), and 101.223(e), and the addition of revised subsections 101.221(g), 101.222(h), and 101.223(e) into the Texas SIP.

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

This proposed 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 proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “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 proposed 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.).

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 05-92, adopted on April 29, 2005, and released on May 2, 2005. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due July 8, 2005. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-0980.

Title: SHVERA Rules; Implementation of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (Broadcast Signal Carriage Issues, Retransmission Consent Issues).

Form No.: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities.

Estimated Number of Respondents: 7,179.

Estimated Time Per Response: 1-5 hours.

Frequency of Response: On occasion reporting requirement; every three years reporting requirement.

Estimated Total Annual Burden: 10,196 hours.

Estimated Total Annual Costs: $30,000.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: On April 29, 2005, the Commission adopted a Notice of Proposed Rule Making (NPRM), In the Matter of the Implementation of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 to Amend Section 338 of the Communications Act, MB Docket No. 05-181, FCC 05-92. The NPRM proposed amendments to 47 CFR 76.66 to implement section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”). Section 210 of the SHVERA amends section 338(a) of the Communications Act of 1934, as amended, (“Communications Act” or “Act”). Section 338 governs the carriage of local television broadcast stations by satellite carriers. In general, the SHVERA amends this section to require satellite carriers to carry both the analog and digital signals of television broadcast stations in local markets in noncontiguous States (including Alaska and Hawaii), and to provide these signals to substantially all of their subscribers in each station's local market by December 8, 2005 for analog signals and by June 8, 2007 for digital signals.

On March 28, 2005, the Commission adopted an Order, FCC 05-81, Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”), Procedural Rules, to implement procedural rules as required by the SHVERA. The SHVERA is the third statute that addresses satellite carriage of television broadcast stations. The 2004 SHVERA gives satellite carriers the additional option to carry Commission-determined “significantly viewed” out-of-market signals to subscribers. The SHVERA requires the Commission to undertake several proceedings to implement new rules, revise existing rules, and conduct studies. The Procedural Rules Order to implement sections 202, 205, and 209 of the SHVERA is one of a number of Commission proceedings that will be required to implement the SHVERA.

1. In this Notice of Proposed Rulemaking, NPRM, we propose rules to implement section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”). The Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA), Pub. L. 108-447, section 210, 118 Stat 2809 (2004). SHVERA was enacted on December 8, 2004, as title IX of the “Consolidated Appropriations Act, 2005.” This proceeding to implement section 210 of SHVERA is one of a number of Commission proceedings that will be required to implement SHVERA. The other proceedings will be undertaken and largely completely in 2005; see section 202 of the SHVERA (entitled “Significantly Viewed Signals Permitted To Be Carried”), SHVERA NPRM, MB Docket No. 05-49, FCC 05-24, 2005 WL 289026 (rel. Feb. 7, 2005); sections 202, 204, 205, 207, 208, 209 and 210 of the SHVERA; see also Public Notice, “Media Bureau Seeks Comment for Inquiry Required by the SHVERA on Rules Affecting Competition in the Television Marketplace,” MB Docket No. 05-28, DA 05-169 (rel. Jan. 25, 2005) (Public Notice regarding Inquiry required by section 208 of the SHVERA concerning the impact of certain rules and statutory provisions on competition in the television marketplace); Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Reciprocal Bargaining Obligations, MB Docket No. 05-89, FCC 05-49 (rel. Mar. 7. 2005); and Procedural Rules, FCC 05-81 (rel. March 30, 2005) (Order implementing rule revisions required by sections 202, 205, and 209). Section 210 of the SHVERA amends section 338(a) of the Communications Act of 1934, as amended, (“Communications Act” or “Act”). Section 338 governs the carriage of local television broadcast stations by satellite carriers; see 47 U.S.C. 338. In general, the SHVERA amends this section to require satellite carriers to carry both the analog and digital signals of television broadcast stations in local markets in noncontiguous states, including Alaska and Hawaii, and to provide these signals to substantially all of their subscribers in each station's local market by December 8, 2005 for analog signals and by June 8, 2007 for digital signals; see 47 U.S.C. 338(a)(4) (as amended by section 210 of the SHVERA).

2. In 1988, Congress passed the Satellite Home Viewer Act (“SHVA”), which established a statutory copyright license for satellite carriers to offer subscribers access to broadcast programming via satellite when they are unable to receive the signal of a broadcast station over the air (that is, an “unserved” household). The Satellite Home Viewer Act of 1988, Pub. L. 100-667, 102 Stat. 3935, Title II (1988) (codified at 17 U.S.C. 111, 119). SHVA was enacted on November 16, 1988, as an amendment to the copyright laws. SHVA gave satellite carriers a statutory license to offer signals to “unserved” households. 17 U.S.C. 119(a). In 1999, Congress enacted the Satellite Home Viewer Improvement Act (“SHVIA”), which expanded on the 1988 SHVA by amending both the 1988 copyright laws, and the Communications Act to permit satellite carriers to retransmit local broadcast television signals directly to subscribers in the station's local market (“local-into-local” service) without requiring that they be in “unserved” households; see 17 U.S.C. 119 and 122, 47 U.S.C. 325, 338 and 339. The Satellite Home Viewer Improvement Act of 1999, Pub. L. 106-113, 113 Stat. 1501 (1999) (codified in scattered sections of 17 and 47 U.S.C.). SHVIA was enacted on November 29, 1999, as Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999 (“IPACORA”) (relating to copyright licensing and carriage of broadcast signals by satellite carriers). The SHVIA created the copyright license to provide local signals to subscribers regardless of whether they were “unserved;” see 17 U.S.C. 122.

3. A satellite carrier provides “local-into-local” service when it retransmits a local television station's signal back into the local market of the television station for reception by subscribers. If a carrier carries one or more stations in the market pursuant to the statutory copyright license, it is required to carry all of the other local stations in the local market, upon the station's request (that is, the “carry-one, carry-all” requirement); see 47 U.S.C. 338(a)(1). Generally, a television station's “local market” is the designated market area (“DMA”) in which it is located. Section 340(i)(1) (as amended by section 202 of the SHVERA), defines the term “local market” by using the definition in 17 U.S.C. 122(j)(2): “The term ‘local market,’ in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a station is located, and—(i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area are within the same local market; and (ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station.” DMAs describe each television market in terms of a unique geographic area, and are established by Nielsen Media Research based on measured viewing patterns; see 17 U.S.C. 122(j)(2)(A)-(C). There are 210 DMAs that encompass all counties in the 50 United States, except for certain areas in Alaska. Alaska has three DMAs situated around major population centers, but most of the State, which is sparsely populated, is not included in DMAs. A satellite carrier choosing to provide such local-into-local service is generally obligated to carry any qualified local station in a particular DMA that has made a timely election for mandatory carriage, unless the station's programming is duplicative of the programming of another station carried by the carrier in the DMA, or the station does not provide a good quality signal to the carrier's local receive facility; see 47 U.S.C. 338(a)(1), (b)(1) and (c)(1).

4. In December 2004, Congress passed and the President signed the Satellite Home Viewer Extension and Reauthorization Act of 2004. SHVERA again amends the 1988 copyright laws and the Communications Act to further aid the competitiveness of satellite carriers and expand program offerings for satellite subscribers; see 47 U.S.C. 325, 338, 339 and 340. Section 102 of SHVERA creates a new 17 U.S.C. 119(a)(3) to provide satellite carriers with a statutory copyright license to offer “significantly viewed” signals as part of their local service to subscribers. This rulemaking is required to implement provisions in section 210 of the SHVERA concerning satellite carriage of local stations in the noncontiguous states, including Alaska and Hawaii; see 47 U.S.C. 338(a)(4).

5. Section 210 of the SHVERA amends section 338(a) of the Communications Act to require satellite carriers with more than five million subscribers in the United States to carry the analog and digital signals of each television broadcast station licensed in local markets “within a State that is not part of the contiguous United States.” Analog signals are required to be carried by December 8, 2005, and digital signals by June 8, 2007. A carrier is required to provide these signals to substantially all of its subscribers in each station's local market. In addition, a satellite carrier is required to make available the stations that it carries in at least one local market to substantially all of its subscribers located outside of local markets and in the same State. The SHVERA also mandates that satellite carriers may not charge subscribers for these local signals more than they charge subscribers in other States to receive local market television stations. Although most of the requirements imposed by the new section 338(a)(4) are self-effectuating, the SHVERA requires the Commission to promulgate regulations concerning the timing of carriage elections by stations in local markets in the noncontiguous states; see 47 U.S.C. 338(a)(4) (as amended by the SHVERA), which provides: (4) CARRIAGE OF SIGNALS OF LOCAL STATIONS IN CERTAIN MARKETS-A satellite carrier that offers multichannel video programming distribution service in the United States to more than 5,000,000 subscribers shall (A) within 1 year after the date of the enactment of the Satellite Home Viewer Extension and Reauthorization Act of 2004, retransmit the signals originating as analog signals of each television broadcast station located in any local market within a State that is not part of the contiguous United States, and (B) within 30 months after such date of enactment retransmit the signals originating as digital signals of each such station. The retransmissions of such stations shall be made available to substantially all of the satellite carrier's subscribers in each station's local market, and the retransmissions of the stations in at least one market in the State shall be made available to substantially all of the satellite carrier's subscribers in areas of the State that are not within a designated market area. The cost to subscribers of such retransmissions shall not exceed the cost of retransmissions of local television stations in other States. Within 1 year after the date of enactment of that Act, the Commission shall promulgate regulations concerning elections by television stations in such State between mandatory carriage pursuant to this section and retransmission consent pursuant to section 325(b), which shall take into account the schedule on which local television stations are made available to viewers in such State. As required by the SHVERA, we open this rulemaking proceeding and seek comments on implementation of the SHVERA's amendments to section 338(a) of the Act, on rule proposals in this NPRM, and tentative conclusions regarding these rules. The proposed rules are in the Appendix to this NPRM. These amendments apply only to satellite service in the noncontiguous states. The existing signal carriage provisions in section 76.66 also continue to apply to satellite service in the noncontiguous states, where relevant and not inconsistent with the rules proposed in this proceeding; see 47 CFR 76.66.

6. The SHVERA adds subsection 338(a)(4) to the Act, which applies to a “satellite carrier that offers multichannel video programming distribution service in the United States to more than 5,000,000 subscribers;” see 47 U.S.C. 338(a)(4). We include this limitation in the proposed new section 76.66(b)(2). This provision applies to satellite carriers that have more than five million subscribers in 2005 and, in the future, to any carriers with more than five million subscribers. Currently, DirecTV and EchoStar qualify under this definition. We seek comments regarding the proposed rule.

7. Section 210 of SHVERA applies to “a State that is not part of the contiguous United States;” see 47 U.S.C. 338(a)(4). In the Communications Act, the definition of “State” includes “the Territories and possessions;” see 47 U.S.C. 153(40). We seek comment on whether “State” as used in the SHVERA includes the noncontiguous territories and possessions of the United States, including but not limited to Puerto Rico and Guam and whether considerations such as a satellite provider's regulatory authorizations and/or actual service area are relevant to interpreting the obligation under section 338(a)(4) to serve “noncontiguous states.” We note that territories in the Pacific, such as Guam, are in a different International Telecommunication Union (“ITU”) region. The contiguous United States, Alaska, Hawaii, Puerto Rico and the U.S. Virgin Islands are located in ITU Region 2 and have orbital assignments in the Region 2 BSS Plan. Guam, the Northern Marianas, Wake Island and Palmyra Island are located in ITU Region 3 and have orbital assignments in the Region 3 BSS plan at 122.0° E.L., 121.80° E.L., 140.0° E.L. and 170.0° E.L. respectively. We seek comment on the impact of regulatory differences (e.g., use of different frequency bands) between ITU regions in providing service to these locations. Spot beam technology may allow coverage of widely spaced areas if visible from the satellite location. Many areas are not visible to all satellites. For example, Guam is below the horizon for United States allocations east of 148° W.L. Previously the Commission recognized that contiguous United States (“CONUS”) antenna beams modified to include Puerto Rico and the U.S. Virgin Islands could divert power from other regions and potentially adversely affect the services of other countries. We seek comment on satellite carriers' current capability to serve these areas using current or planned technology.

8. The SHVERA requirements for satellite carriage to the noncontiguous states differ significantly from the existing satellite broadcast carriage requirements, both in scope and timing. Currently, under the Communications Act and Commission rules implementing the Act, satellite carriers choose whether to rely on the statutory copyright license in section 122 of title 17 to offer “local-into-local service,” which in turn triggers the carry-one, carry-all obligation; see 47 U.S.C. 338(a)(1) and 47 CFR 76.66(b), Implementation of the Satellite Home Viewer Improvement Act of 1999, 16 FCC Rcd 1918 (2000) 16 FCC Rcd 16544 (2001) (“DBS Must Carry Reconsideration Order”). The U.S. Court of Appeals for the Fourth Circuit upheld the constitutional validity of SHVIA and the reasonableness of the Commission's rules promulgated thereunder; see Satellite Broadcasting and Communications Ass'n v. FCC, 275 F.3d 337 (2001), cert. denied, 536 U.S. 922 (2002). The Communications Act, moreover, prohibits a multichannel video programming distributor from retransmitting the signal of a broadcast station unless it has “the express authority” of the station. 47 U.S.C. 325(b)(1)(A), 17 U.S.C. 122(a) (as amended by section 1002 of the SHVIA) and 47 U.S.C. 338(a)(1) (as amended by section 1008 of the SHVIA). Satellite carriers are not currently required to offer local-into-local service in all markets. The question of satellite carriage obligations concerning a station's digital signal is currently pending before the Commission.

9. The new SHVERA provision for noncontiguous states supersedes carry-one, carry-all and the pending digital carriage rulemaking proceeding by mandating dual analog and digital carriage in the noncontiguous states. A satellite carrier with more than five million subscribers is required by the SHVERA to retransmit the analog signals of each television station in local markets in the noncontiguous states to subscribers in those local markets by December 8, 2005 (one year after enactment of the SHVERA). The SHVERA expands this requirement to include the digital signals of each station no later than June 8, 2007 (30 months after enactment of SHVERA). If any or all of the local stations in the noncontiguous states are still broadcasting analog signals as well as digital signals, as of June 8, 2007, the SHVERA requirement mandates dual must carry. The Communciations Act provides for termination of analog signal licenses as of December 31, 2006, unless local stations request an extension and demonstrate that one or more criteria exist in their markets; see 47 U.S.C. 309(j)(14) (criteria include the so-called “85% test”). Section 210 of the SHVERA, which adds the carriage obligations for stations in noncontiguous states (section 338(a)(4)), requires carriage of “signals originating as analog signals” and “signals originating as digital signals” with no mention of a term such as “primary video,” the term used in the cable mandatory carriage provisions. 47 U.S.C. 534(b)(3) and 535(g). The Commission recently concluded that the statutory term relating to cable mandatory carriage, “primary video,” was ambiguous with respect to whether it requires cable operators to carry broadcasters' multicast signals. Faced with an ambiguous statute, the Commission did not require mandatory carriage of multicast signals by cable systems. The SHVERA provision before us contains no such ambiguity. Moreover, we note that section 210 uses the plural term “signals,” requiring satellite carriers to retransmit the signals originating as digital signals of each such station; see 47 U.S.C. 338(a)(4). In sum, this SHVERA amendment to section 338 does not contain any limitation on the nature of the broadcast signal that satellite operators must carry in the non-contiguous states. We believe, therefore, that the amendment requires that satellite carriers carry all multicast signals of each station in noncontiguous states and carry the high definition digital signals of stations in noncontiguous states in high definition format. We note that satellite carriage of high definition local signals is also under review in the ongoing broadcast carriage rulemaking docket in the context of applying the statutory prohibition on material degradation. We seek comment on these interpretations, and any alternative construction of the SHVERA as the statute relates to the carriage of multicast and/or high definition signals; see MB Docket Nos. 98-120 and 00-96, WHDT v. Echostar, 18 FCC Rcd 396 (MB 2003) (“WHDT Order”).

10. Section 210 of the SHVERA expressly requires only that the Commission promulgate regulations concerning the timing of the carriage elections related to the new carriage provisions in the noncontiguous states. Section 210 of the SHVERA also refers to the “cost to subscribers of such transmissions” but does not require rules for implementation. The Commission does not regulate rates, costs or prices for satellite service to subscribers. In this proceeding we propose regulations to implement the timing required by the carriage requirements in the noncontiguous states, and we will otherwise apply the rules pertaining to satellite carriage as they were adopted to implement section 338 pursuant to the SHVIA; see 47 U.S.C. 338(a)(1), (b)(1), and (c), 47 CFR 76.66(g) and (h). Therefore, carriage is mandated in the noncontiguous states for the above dates in 2005 and 2007 when requested by a television station; see proposed rule section 76.66(b)(2). The carriage procedures for stations in the noncontiguous states shall follow the existing requirements, except with respect to the carriage election process, as proposed here; see proposed rule section 76.66(c)(6). Non-commercial television stations do not elect carriage because they cannot elect retransmission consent; see 47 U.S.C. 325(b)(2)(A). They are entitled to mandatory carriage; see 47 U.S.C. 338, proposed rule section 76.66(c)(6). They are entitled to mandatory carriage; see 47 U.S.C. 338. We invite comment on these interpretations and proposals.

11. The analog signal carriage requirement mandated by the SHVERA for satellite carriers serving noncontiguous states commences several weeks before the carriage cycle that applies to satellite carriers and broadcast stations in the contiguous states, which commences January 1, 2006, and continues until December 31, 2008; see 47 CFR 76.66(c). The carriage election process enables stations to choose between carriage pursuant to retransmission consent or mandatory carriage. Retransmission consent is based on an agreement between a broadcast station and satellite carrier, and includes a station's authorization and terms for allowing its broadcast signal to be carried; see 47 U.S.C. 325(b). Broadcast stations and satellite carriers are required to negotiate retransmission consent agreements in good faith; see 47 U.S.C. 338(b)(3)(c). If a station elects must-carry status, it is, in general, entitled to insist without other terms that the satellite carrier carry its signal in its local market; see 47 U.S.C. 338(a), 47 CFR 76.66(c).

12. To implement the carriage election timing requirements in section 210 of the SHVERA, we propose to track the existing regulations as closely as possible so that carriage elections in the noncontiguous states will be synchronized with carriage elections in the contiguous states quickly and smoothly. This synchronization is intended to make the process simple and certain for both the local stations and the satellite carriers. The first satellite carriage cycle (pursuant to the SHVIA) will end on December 31, 2005. The carriage election deadline for the second cycle is October 1, 2005, for carriage beginning January 1, 2006; see 47 CFR 76.66(c)(4). Because the analog carriage requirement in the noncontiguous states is effective only 24 days earlier, December 8, 2005, we propose to keep the same election deadline of October 1, 2005. Thus, television broadcast stations in a local market in the noncontiguous states would be required to make a retransmission consent-mandatory carriage (must carry) election by October 1, 2005, which is the same deadline as for local stations in local-into-local markets in the contiguous states; see proposed section 76.66(c)(6). Carriage pursuant to a mandatory carriage election in the contiguous states will begin on January 1, 2006, and carriage under our proposed rules for noncontiguous states would begin by December 8, 2005; see 47 CFR 76.66(c)(2).

13. With respect to carriage of the digital signals of stations in a noncontiguous state, we propose that the retransmission consent-must carry election by a television station in a local market in the noncontiguous states should be a two-step process with one election that applies to the analog signal carriage, which commences December 8, 2005, and a second carriage election that would govern carriage of the digital signal; see proposed rule section 76.66(c)(6). Carriage of signals originating as digital must commence by June, 8, 2007, but may begin pursuant to retransmission consent at any time. The deadline for the second carriage election, for digital carriage, would be April 1, 2007, two months before carriage must commence. Alternatively, the station's election by October 1, 2005, for its analog signal, could also apply to its digital signal, for which mandatory carriage will commence by June 8, 2007. We seek comment on our proposed two-step approach and on the alternative of a single election. Two separate elections would be consistent with the Commission's Cable Must Carry decision in 2001 which permits stations broadcasting both analog and digital signals to elect must carry for their analog signal and retransmission consent for their digital signal. We believe that, regardless of whether the carriage election is two-step or one-step, stations in the noncontiguous states should be permitted to elect must carry for their analog signals and negotiate for carriage of the digital signals via retransmission consent before the mandatory digital signal carriage takes effect. That is, until the digital carriage rights for local stations in the noncontiguous states take effect as of June 8, 2007, stations should be permitted to separately negotiate for voluntary carriage of their digital signals even if they elect mandatory carriage for their analog signals; see proposed section 76.66(c)(6). We seek comment on these proposals.

14. After the initial carriage cycle in the noncontiguous states, the election cycle provided in section 76.66(c) will apply in the future; see proposed section 76.66(c)(6). For example, the next election after the upcoming 2005 election is required by October 1, 2008, for carriage beginning January 1, 2009; see 47 CFR 76.66(c)(2) and (4). The election made by a station in 2008 would apply uniformly to both its analog and digital signals, if both signals are continuing to be broadcast.

15. A new television station in a noncontiguous state will have a right to mandatory carriage for its analog signal if it begins service after December 8, 2005, and for its digital signal if it begins service after June 8, 2007. New stations should follow section 76.66(d)(3) of the Commission's rules to notify the satellite carrier and elect carriage; see 47 CFR 76.66(d)(3). We seek comments on our proposed rules governing the carriage election process.

16. The SHVERA provides that in the noncontiguous states, satellite retransmissions of local stations “shall be made available to substantially all of the satellite carrier's subscribers in each station's local market;” see 47 U.S.C. 338(a)(4). The SHVERA does not define what is meant by “substantially all” subscribers. This wording is consistent with the physical limitations of some satellite technology that may not be able to reach all parts of a state or a DMA, particularly where a spot beam is used to provide local stations. We believe that this provision recognizes the existing physical limitations on satellite service particularly in these noncontiguous states. With respect to DBS service to Alaska, for example, the Commission has stated that although reliable service usually requires a minimum elevation angle of ten degrees or more, service to Alaska is often offered at elevation angles as low as five degrees. The Commission defined elevation angle “as the upward tilt of an earth station antenna measured in degrees relative to the horizontal plane (ground), that is required to aim the earth station antenna at the satellite. When aimed at the horizon, the elevation angle is zero. If the satellite were below the horizon, the elevation angle would be less than zero. If the earth station antenna were tilted to a point directly overhead, it would have an elevation angle of 90°;” see 47 U.S.C. 338(a)(4). In addition, the Commission determined that in some areas of Alaska, from some orbit locations, the elevation angle was less than five degrees, or even below the horizon, thereby making service to those areas impossible. For example, the elevation angle for Attu Island, Alaska is less than zero or below the horizon for the 61.5°, 101°, and 110° orbit locations and only 4 for the 119° location. We note, however, that satellite carriers must abide by the geographic service rules that require service where technically feasible. We welcome comment on the meaning of “substantially all of the carrier's subscribers in each station's market.”

17. We do not believe it is necessary to adopt new rules to implement this provision. This provision is similar to the Commission interpretation adopted in the implementation of the SHVIA, that satellite carriers that offer local-into-local service are not required to provide service to every subscriber in a DMA. We seek comment on whether it is necessary to adopt a rule on this point, and, if so, what it should provide.

18. The SHVERA also addresses the anomalous situation in Alaska, the only one of the fifty states that has areas that are not included within any DMA. The eight major islands of Hawaii are currently included within the Honolulu DMA. If the reference to “noncontiguous States” is read to include territories and possessions, none of them are in DMAs and would be subject to the special treatment described in section 210. The statute requires a satellite carrier in Alaska to make available the signals of all the local television stations that it carries in at least one local market to substantially all of its subscribers in areas outside of local markets who are in the same State; see 47 U.S.C. 338(a)(4). In Alaska, there are three DMAs covering the main population centers, but most of the State, which is sparsely populated, is not included in a DMA. Thus, a satellite carrier in Alaska would be required to provide the television stations that it carries in at least one of the three DMAs, in which carriage of local stations is required by section 210 of the SHVERA, to areas of the State not included in DMAs. We believe that the statute speaks for itself and that no special rule is required to implement this statutory requirement. We seek comment on this conclusion.

19. Section 210 of the SHVERA does not expressly require revisions to the existing notification procedures in connection with the new carriage requirements in the noncontiguous states. However, to ensure that the purpose of section 210 is achieved, we seek comment on whether to require satellite carriers with more than 5 million subscribers to notify all television broadcast stations located in local markets in the noncontiguous states that they are entitled to carriage of their analog signals as of December 8, 2005, and of their digital signals as of June 8, 2007, and that they must elect mandatory carriage or retransmission consent by October 1, 2005 and April 1, 2007, respectively, to be assured of carriage, as provided in sections 76.66(b)(2) and (c)(6). If required, this notification to the stations should include a statement advising them of the opportunity to have their analog and digital signals made available by the carrier to the carrier's subscribers in the local market of each station. If adopted, this notification would be required by September 1, 2005, with respect to analog signal carriage election, and by March 1, 2007, with respect to the carriage election for digital signals; see proposed section 76.66(d)(2)(iii). A new satellite carrier that meets this definition after 2005 would be required to comply with section 76.66(d)(2) of the Commission's rules regarding “new local-into-local service” (imposes requirements when a new satellite carrier intends to retransmit a local television station back into its local market); see 47 CFR 76.66(d)(2). We seek comment on the need for this notification. We also request comment on whether such notice should be required only for stations in Alaska and Hawaii or also for television broadcast stations in all noncontiguous territories and possessions. We also seek comment on the need for a second notification 30 days prior to the second carriage election deadline, which is proposed for April 1, 2007 for carriage of digital signals. If, alternatively, the October 1, 2005 carriage election applies to both the analog and digital signals of local stations in the noncontiguous states, we propose that a second notification would not be required prior to the commencement of carriage of digital signals in June of 2007. We seek comment on these proposals.

20. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities;” see 5 U.S.C. 605(b), 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction;” see 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act; see 5 U.S.C. 601(3). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA); see 15 U.S.C. 632.

21. As described in this NPRM, we propose to amend section 76.66 of the Commission's rules as required by section 210 of the SHVERA. We expect these rule amendments, if adopted, will not have a significant economic impact on a substantial number of small entities. The proposed rules contained in this NPRM, as required by statute, are intended to allow for local television stations to elect carriage pursuant to retransmission consent or mandatory carriage with respect to satellite carriers with more than 5 million subscribers in a non-contiguous state. “Satellite carriers,” including Direct Broadcast Satellite (DBS) carriers, will be directly and primarily affected by the proposed rules, if adopted.

22. The satellite carriers covered by these proposed rules fall within the SBA-recognized small business size standard of Cable and Other Program Distribution; see 13 CFR 121.201. This size standard provides that a small entity is one with $12.5 million or less in annual receipts; see 13 CFR 121.201. The two satellite carriers that are subject to these proposed rule amendments because they currently have more than five million subscribers, DirecTV (DirecTV is the largest DBS operator and the second largest MVPD, serving an estimated 13.04 million subscribers nationwide) and EchoStar (EchoStar, which provides service under the brand name Dish Network, is the second largest DBS operator and the fourth largest MVPD, serving an estimated 10.12 million subscribers nationwide), report annual revenues that are in excess of the threshold for a small business. We anticipate that any satellite carrier that, in the future, has more than five million subscribers would necessarily have more than $12.5 million in annual receipts. Thus, the entities directly affected by the proposed rules are not small entities.

23. We also note that, in addition to satellite carriers, television broadcast stations are indirectly affected by the proposed rule in that they potentially benefit from the satellite carriage required by the rule and must elect between mandatory carriage and retransmission consent. This carriage election, however, follows the existing Commission rules. These existing rules currently permit stations in the noncontiguous states to elect carriage if and when a satellite carrier offers local-into-local service in their market. The proposed rules would affect these election rights by merely providing a date certain for carriage in these specified markets, which would not have a significant economic impact.

24. Therefore, we certify that the proposed rules, if adopted, will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of this Notice of Proposed Rulemaking, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA; see 5 U.S.C. 605(b). This initial certification will also be published in the Federal Register; see 5 U.S.C. 605(b).

25. This NPRM has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”), and contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the proposed information collection requirements contained in this NPRM, as required by the PRA.

26. Written comments on the PRA proposed information collection requirements must be submitted by the public, the Office of Management and Budget (OMB), and other interested parties on or before July 8, 2005. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees;” Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).

27. In addition to filing comments with the Office of the Secretary, a copy of any comments on the proposed information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th St, SW., Room 1-C823, Washington, DC 20554, or via the Internet to Cathy.Williams@fcc.gov; and also to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503, or via Internet to Kristy_L._LaLonde@omb.eop.gov, or via fax at (202) 395-5167.

28. Further Information. For additional information concerning the PRA proposed information collection requirements contained in this NPRM, contact Cathy Williams at (202) 418-2918, or via the Internet to Cathy.Williams@fcc.gov. If you would like to obtain or view a copy of this revised information collection, OMB Control Number 3060-0980, you may do so by visiting the FCC PRA Web page at: http://www.fcc.gov/omd/pra.

29. Permit-but-Disclose. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under section 1.1206(b) of the Commission's rules; see 47 CFR 1.1206(b); 47 CFR 1.1202, 1.1203. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented is generally required; see 47 CFR 1.1206(b)(2). Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b).

30. Comments and Replies. The SHVERA requires the Commission to complete action within one year of enactment (December 8, 2004) to take account of carriage elections in light of the schedule for carriage as required in the noncontiguous states; see 47 U.S.C. 338(a)(4). The carriage election deadline is October 1, 2005 for the next carriage cycle. If the Commission waited until December 8, 2005, to implement this provision, it would be too late for stations to elect between must carry and retransmission consent for the carriage to commence on December 8, 2005. In addition, the Commission is proposing to require satellite carriers to provide notice to local stations in the noncontiguous states concerning the new carriage requirements one month prior to the carriage election deadline. Thus, the proposed notification requirement, if adopted, must be in effect by September 1, 2005, 30 days prior to the carriage election deadline of October 1, 2005, with respect to carriage of the analog signals required to commence by December 8, 2005. Consequently, the pleading cycle for comments and replies must be compressed and expedited. Pursuant to sections 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before June 6, 2005, and reply comments on or before June 20, 2005; see 47 CFR 1.415, 1419. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (“ECFS”), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies; see 13 FCC Rcd 11322 (1998).

31. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

32. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.

33. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.

34. Accessibility Information. To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov.

35. Additional Information. For additional information on this proceeding, contact Eloise Gore, Eloise.Gore@fcc.gov, or Jim Keats, Jim.Keats@fcc.gov, of the Media Bureau, Policy Division, (202) 418-2120.

36. Accordingly, it is ordered that pursuant to section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, and sections 1, 4(i) and (j), and 338(a)(4) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), and 338(a)(4), notice is hereby given of the proposals and tentative conclusions described in this Notice of Proposed Rulemaking.

37. It is further ordered that the Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

Section 9105(a) of the Truck and Bus Safety and Regulatory Reform Act of 1988 [Pub. L. 100-690, November 18, 1988, 102 Stat. 4530] required the agency to issue minimum biometric identification standards for operators of commercial motor vehicles (CMVs) by December 31, 1990. The purpose of this system would be to provide positive identification of drivers in the Commercial Driver's License Information System (CDLIS) and to prevent drivers from obtaining more than one driver's license.

In 1988, FHWA 1 and a committee including four State licensing agencies and the American Association of Motor Vehicle Administrators (AAMVA) assessed the feasibility of using certain biometric identifier technologies to fulfill the statutory requirements of sec. 9105(a) of the Truck and Bus Safety and Regulatory Reform Act of 1988. The committee found both retinal scanning and automated fingerprint identification systems (AFIS) feasible 2 for use in the planned pilot study and identified an initial set of functional requirements 3 for a biometric identification system for CMV operators.

On May 15, 1989,4 the agency requested comments on the establishment of biometric identifiers for operators of CMVs and announced the pilot study on the use of fingerprints and retinal scan technology to positively and uniquely identify operators of CMVs. The pilot study was conducted in 1990.

On March 8, 1991,5 the agency published an ANPRM with the results of the pilot study and with a summary and response to comments to the 1989 ANPRM. (The 1991 ANPRM provided supplemental information on the biometric identifier issue but did not request additional comments.) FHWA concluded that neither retinal scanning nor AFIS was sufficiently accurate or cost effective to be practical at that time. Therefore, the agency did not issue a notice of proposed rulemaking. Instead, further rulemaking action on the matter was deferred until the technology developed to meet FHWA functional requirements. The agency continued to require States to make available in CDLIS a driver's personal identification information.

In 1998, section 4011(c) of the Transportation Equity Act for the 21st Century [49 U.S.C. 31308(2)] (TEA-21) required the agency to issue a rule mandating that all commercial driver's licenses (CDLs) issued by States after January 1, 2001, include a unique identifier that may be biometric. Although the 1998 legislation did not explicitly repeal the 1988 mandatory biometric identifier language, the agency concluded the contradictory language of the 1998 statute, when viewed against the lack of a statement of congressional intent in the legislative conference reports for TEA-21, supersedes and repeals by implication the 1988 mandate. Therefore, FMCSA found that TEA-21 changed the standard from mandating use of a biometric identifier to mandating use of a unique identifier, which may or may not be biometric.

In 1999, FMCSA again conducted a study to determine if a national biometric program was feasible and whether fingerprinting or facial imaging should be used. The results showed that a national biometric implementation program is feasible and that thumbprints are better than facial images as a biometric standard.

FMCSA believes the agency has satisfied the unique identifier standard in TEA-21 through its adoption of a specialized search procedure as part of the CDLIS. This procedure contains the following seven personal identifiers: Name, date of birth, sex, height, weight, eye color, and Social Security number, in an algorithm designed to produce a highly probable personal identification.

The Transportation Security Administration (TSA) currently is developing a Transportation Worker Identification Credential (TWIC) that will incorporate biometric identifiers. Because FMCSA is no longer required to promulgate a regulation on biometric identifiers, the agency believes TSA is the agency in a better position to lead further development of biometric identifiers, thereby avoiding a potential conflict in standards adopted by each agency. The adoption of different standards and/or technologies for CDLs and a TWIC could place an unnecessary burden on States. Therefore, FMCSA is withdrawing its ANPRMs dated May 15, 1989, and March 8, 1991, on biometric identifiers.

FMCSA has shared its research on biometric identifiers with TSA. FMCSA will continue to work in a collaborative effort with TSA on the development of TSA's biometric identifier standard and the development of a TWIC. In the future, FMCSA may assess the impact of the TWIC upon the Federal Motor Carrier Safety Regulations.

On March 4, 2004, the Center for Biological Diversity (CBD) petitioned us to list elkhorn, staghorn, and fused-staghorn corals as either threatened or endangered under the ESA and to designate critical habitat. On June 23, 2004, we made a positive 90-day finding (69 FR 34995) that CBD presented substantial information indicating that the petitioned actions may be warranted and announced the initiation of a formal status review as required by section 4(b)(3)(A) of the ESA. Concurrently, we solicited additional information from the public on these acroporid corals regarding historic and current distribution and abundance, population status and trends, areas that may qualify as critical habitat, any current or planned activities that may adversely affect them, and known conservation efforts. Additional information was requested during two public meetings held in December 2004 on: (1) distribution and abundance; (2) areas that may qualify as critical habitat; and (3) approaches/criteria that could be used to assess listing potential of the acroporids (e.g., viability assessment, extinction risk, etc.).

In order to conduct a comprehensive status review, we convened an Atlantic Acropora Biological Review Team (BRT). The members of the BRT were a diverse group of experts in their fields, including coral biologists and ecologists; specialists in coral disease, coral monitoring and restoration, climate change, water quality, coral taxonomy; regional experts in coral abundance/distribution throughout the Caribbean Sea; and state and Federal resource managers. The comprehensive, peer-reviewed status review report developed by the BRT incorporates and summarizes the best available scientific and commercial information as of March 2005. It addresses the status of the species, the five factors identified in ESA section 4(a)(1), and current regulatory, conservation and research efforts that may yield protection to the corals. The BRT also reviewed and considered the petition and materials we received as a result of the Federal Register document (69 FR 34995) and the public meetings; substantive materials were incorporated into the status review report.

Acropora spp. are widely distributed throughout the wider Caribbean (U.S. Florida, Puerto Rico, U.S. Virgin Islands (U.S.V.I.), Navassa; and Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Grenada, Guadeloupe, Haiti, Honduras, Jamaica, Martinique, Mexico, Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and Venezuela). Both elkhorn and staghorn corals used to be the most abundant and most important species on Caribbean coral reefs in terms of accretion of reef structure. In general, elkhorn and staghorn corals have the same distribution, with few exceptions. Staghorn coral's northern extent (Broward County, Florida) is farther north than that of elkhorn coral (Miami-Dade County, Florida). Relative to other corals, both have high growth rates that have allowed reef growth to keep pace with past changes in sea level. Additionally, both exhibit branching morphologies that provide important habitat for other reef organisms; no other Caribbean reef-building coral species is able to fulfill these ecosystem functions. At the current reduced abundance of A. palmata and A. cervicornis, it is highly likely that both these ecosystem functions have been largely lost.

The third Acropora spp. present in the Caribbean Sea is the fused-staghorn coral (A. prolifera). Although it has a history in the taxonomic literature, recent genetic research has determined that it is an F1 (i.e., first generation) hybrid between A. cervicornis and A. palmata. While there is genetic evidence that A. prolifera has backcrossed with A. cervicornis on evolutionary time scales, and it undergoes gametogenesis, there is no evidence that it interbreeds (i.e., produces sexual offspring in a cross between two A. prolifera colonies). For this reason, the BRT did not include fused-staghorn coral as a species within the status review, and we determined that it does not meet the definition of a species under the ESA.

Both elkhorn and staghorn corals underwent precipitous declines in abundance in the early 1980s throughout their range, and this decline has continued. Although quantitative data on former distribution and abundance are scarce, in the few locations where quantitative data are available (i.e., Florida Keys, Dry Tortugas, Jamaica and the U.S.V.I.), declines in abundance are estimated at greater than 97 percent. Although this decline trend has been documented as continuing in the late 1990s, and even in the past 5 years in some locations, local extirpations (i.e., at the island or country scale) have not been documented. While recruitment of new colonies has been reported in various geographic locations, new recruits appear to be suffering mortality faster than they can mature (to sizes greater than 1 m in colony diameter). In a very few locations (e.g., Buck Island Reef National Monument) moderate recovery of elkhorn coral appears to be progressing. In most cases the genetic origin of the recruits, presumably from sexual reproduction, is unknown so that their contribution to the corals' Caribbean-wide recovery remains undetermined.

We first considered whether all three of the corals listed in the petition met the definition of “species” pursuant to section 3 of the ESA. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Based on this language, a “species” is given its ordinary, accepted biological meaning.

Species diagnoses for both elkhorn and staghorn were not debated as both species are recognized as separate taxa in the literature, have separate and discrete diagnoses and morphologies, and produce viable gametes, larvae, and successful sexual offspring. On the other hand, we carefully reviewed and deliberated on the taxonomic diagnosis for fused-staghorn coral (A. prolifera). While A. prolifera has been recognized in the taxonomic literature as a species based on morphology, it has always been rare, and little specific scientific information is available regarding its distribution, abundance, and trends. In addition, a wide range of intermediate A. prolifera morphologies exist in nature, and this further complicates in situ assessment of abundance and distribution. For the purpose of the status review, we did not consider A. prolifera a species as it does not interbreed with itself to produce viable offspring, and is therefore a hybrid for the reasons summarized below:

1. Recent scientific literature indicates that individuals of A. prolifera sampled from throughout the Caribbean region were all F1 (i.e., first generation) hybrids of A. palmata and A. cervicornis. This finding is consistent with the observed rarity of A. prolifera. There is also genetic evidence that A. prolifera has undergone rare backcrossing with the parent A. cervicornis on an evolutionary time scale.

2. Data from a single unpublished study indicate that A. prolifera does undergo gametogenesis, but there is no direct evidence that zygotes are produced due to colony rarity, or that successful sexual offspring result.

3. While it is unclear whether or not A. prolifera's gametes are viable, it is highly unlikely that genetically distinct colonies occur within sufficient proximity to routinely accomplish successful fertilization in nature.

Therefore, based on the best information available and the generally accepted biological definition of a species (consisting of related organisms capable of interbreeding to produce viable offspring), we determined that A. prolifera is a hybrid which has not been shown to interbreed when mature, and it does not constitute a species under the ESA.

Furthermore, although fused-staghorn is known to have backcrossed with staghorn at some time, similar elkhorn chromosome mapping has not been conducted. Therefore, we are reluctant to identify potential genealogy of the fused-staghorn relative to either elkhorn or staghorn coral. Instead, we determined that the hybrid should be considered a separate entity and that individuals of this entity are not considered members of either staghorn or elkhorn coral populations.

Next, we carefully examined the definitions of endangered and threatened species pursuant to section 3 of the ESA wherein: (1) “endangered species” is defined as “any species which is in danger of extinction throughout all or a significant portion of its range;” and (2) “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

Corals are invertebrates, and, therefore, a listing determination must be based on the species' status throughout “all or a significant portion” of its range. The only information regarding discreteness or distinctiveness of Atlantic Acropora populations is a recent study that examined genetic exchange and clonal population structure in A. palmata by sampling and genotyping colonies from eleven locations throughout its geographic range using microsatellite markers. Results indicate that populations in the eastern Caribbean (St. Vincent and the Grenadines, U.S.V.I., Curacao, and Bonaire) have experienced little or no genetic exchange with populations in the western Caribbean (Bahamas, Florida, Mexico, Panama, Navassa, and Mona Island). Puerto Rico is an area of mixing where populations show genetic contribution from both regions, though it is more closely connected with the western Caribbean. Within these regions, the degree of larval exchange appears to be asymmetrical with some locations being entirely self-recruiting and some receiving immigrants from other locations within their region. No similar information exists for A. cervicornis. These results do not indicate source or sink areas, populations that are discrete or distinct, or any other specific geographic areas within the Caribbean Sea that should be considered more or less significant than another. Because there is no evidence indicating that any elkhorn or staghorn population within the geographic range of the species is more or less important than others, we considered the entire geographic range in determining status of these species.

Based on the ESA definition of an endangered species, the danger of extinction must be examined. While the number (in terms of abundance and coverage) of elkhorn and staghorn corals rangewide has precipitously declined over the last 30 years, total number of colonies and presumably individuals remains very, very large (although the absolute number of colonies or coverage is unquantified). Given the high number of colonies, the species' large geographic range that remains intact (no evidence of range constriction), and the fact that asexual reproduction (fragmentation) provides a source for new colonies (albeit perhaps clones) which likely buffers natural demographic and environmental variability, we believe that both species retain significant potential for persistence and are at a low risk of extinction in the near term. Additionally, both elkhorn and staghorn corals have persisted through climate cooling and heating fluctuation periods over millions of years as determined by the geologic record, where other corals have gone extinct. Therefore, we have determined as a preliminary matter that neither elkhorn nor staghorn corals are in danger of extinction throughout all of their range.

For many of the same reasons discussed above, we determined that both elkhorn and staghorn corals may meet the ESA definition of threatened species. First, we established that the appropriate period of time corresponding to the foreseeable future is a function of the particular kinds of threats, the life-history characteristics, and the specific habitat requirements for the species under consideration. It is also consistent with the purpose of the ESA that the timeframe for the foreseeable future be adequate to provide for the conservation and recovery of threatened species and the ecosystems upon which they depend. Given this conceptual framework and the fact that some threats such as hurricanes or major disease outbreaks can happen at anytime and other threats happen over longer periods of time (e.g., habitat degradation, global climate change), the slow-growing and late maturing aspects of the species life history, and the fact that the current decline as documented by the BRT occurred during the last 20 to 30 years, we have preliminarily determined the foreseeable future for these species to be 30 years.

We then considered the following items on the timescale outlined above in evaluating the status of elkhorn and staghorn corals:

1. Recent drastic declines in abundance of both species have occurred throughout their geographic range and abundances are at historic lows;

2. Broad geographic ranges could become constricted due to local extirpations resulting from a single stochastic event (e.g., hurricanes, new disease outbreak);

3. Sexual recruitment is limited in some areas and unknown in most as fertilization success from clones is virtually zero; settlement of larvae is often unsuccessful given limited amount of appropriate habitat;

4. The Allee effect is occurring (fertilization success declines greatly as adult density declines).

Based upon these facts, we believe that abundance and distribution of both elkhorn and staghorn coral are likely to become further reduced. Furthermore, a series of local extirpations are likely to occur within the next 30 years. We believe that while elkhorn and staghorn coral are not currently in danger of extinction throughout all or a significant portion of their range, they are likely to become so within the foreseeable future. Therefore, we propose to list them as threatened under the ESA.

Section 4 of the ESA (16 U.S.C. 1533) and regulations promulgated to implement the listing provisions of the ESA (50 CFR part 424) set forth the procedures for adding species to the Federal list. Section 4 requires that listing determinations be based solely on the best scientific and commercial data available, without consideration of possible economic or other impacts of such determinations. Section 4(a)(1) of the ESA provides that the Secretary of Commerce shall determine whether any species is endangered or threatened because of any of five specified factors; these factors and their relevance to the status of elkhorn and staghorn corals are analyzed below.

Seven stressors (natural abrasion and breakage, anthropogenic abrasion and breakage, sedimentation, persistent elevated temperature, competition, excessive nutrients and sea level rise) were identified as threats affecting both species through present or threatened destruction, modification, or curtailment of their habitats or ranges. This consists of both destruction or disruption of substrate to grow on, and modification or alteration of the aquatic environment in which the corals live. Although habitat loss has occurred, to date, the range of these two species has not been reduced. However, because of the species' extremely low abundance, local extirpations are possible in the foreseeable future, leading to a reduction in range.

Elkhorn and staghorn corals, like most corals, require hard, consolidated substrate (i.e., attached, dead coral skeleton) for their larvae to settle or fragments to reattach. When the substrate is physically disturbed, and when the attached corals are broken and reduced to unstable rubble or sediment, settlement and reattachment habitat is lost. The most common causes of natural abrasion and breakage (physical disturbance) are severe storm events, including hurricanes. Severe storms can lead to the complete destruction and mortality of entire reef zones dominated by these species as well as destruction of the habitat on which these species depend (i.e., by covering settlement, reattachment and growing surfaces with unstable rubble and sediment). These major storms have physically disrupted reefs throughout the wider Caribbean and are among the primary causes of elkhorn and staghorn coral habitat loss in certain locations. Human activity in coral reef areas is another source of abrasion and breakage (anthropogenic), and thus destruction of A. palmata and A. cervicornis habitat. These activities include boating, anchoring, fishing, recreational SCUBA diving and snorkeling, and an increasing variety of maritime construction and development activities. The shallow habitat requirements of these two species make them especially susceptible to impacts from these anthropogenic activities, which have been documented as causing effects similar to severe storms, though usually on a smaller scale.

Acropora spp. also appear to be particularly sensitive to shading effects resulting from increased sediments in the water column. Because these corals are almost entirely dependent upon sunlight for nourishment, they are much more susceptible to increases in water turbidity and sedimentation than other species. Increased sediments in the water column, which have been documented to impede larval settlement, can result from, among other things, land development and run-off, dredging and disposal activities, and major storm events.

Optimal water temperatures for elkhorn and staghorn coral range from 25 to 29° C, with the species being able to tolerate higher temperatures for a brief period of time (e.g., order of days to weeks depending on the magnitude of the temperature elevation). Global atmospheric air and sea temperatures have been documented as rising over the past century, and shallow reef habitats are especially vulnerable. Water with sea surface temperatures above the optimal range does not provide suitable habitat for either of the two species.