The regulations in 7 CFR part 319 prohibit or restrict the importation of plants, plant parts, and related materials to prevent the introduction of plant pests and noxious weeds into the United States. The regulations in “Subpart-Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the nursery stock regulations) restrict, among other things, the importation of living plants, plant parts, and seeds for propagation. Conditions governing the importation of cut flowers into the United States are contained in “Subpart—Cut Flowers” (§§ 319.74-1 through 319.74-4, referred to below as the cut flowers regulations).

Puccinia horiana Henn., a filamentous fungus and obligate parasite, is the causal agent of chrysanthemum white rust (CWR). CWR is a serious disease in nurseries, where it may cause complete loss of glasshouse chrysanthemum crops. The disease is indigenous to Japan, where it was noted in 1895, and it remained confined to China and Japan until 1963. However, since 1964, P. horiana has spread rapidly on infected imported cuttings and is now established in Europe, Africa, Australia, Central America, South America, and the Far East.

CWR is not established in the United States and is a regulated pest for the United States. This disease has the potential to be extremely damaging to the commercial horticulture and florist industries if it becomes established in greenhouses within the United States. Section 319.37-2 of the nursery stock regulations prohibits the importation of CWR-susceptible plant species from countries where the disease is established.

CWR was detected and eradicated in California in 1991; since then, there have been repeated incidents of CWR in several coastal California counties. There were also CWR outbreaks in commercial nurseries in New Jersey, Oregon, and Washington between 1995 and 1997 and in dooryard or hobbyist plantings in New York and New Jersey in 1997. Whenever CWR has been detected in the United States, it has been eradicated through immediate and cooperative action by Federal and State officials.

Plants for planting as well as cut flowers that are hosts can be a pathway for the introduction of CWR. Detections of CWR on cut flowers from Mexico and Venezuela, countries where the disease occurs, prompted APHIS to place administrative restrictions on cut flowers of CWR hosts from those countries because, in many cases, those cut flowers had been determined to be the pathway for the incursion of CWR into the United States. These restrictions are: (1) Cut flowers that are hosts of CWR are prohibited entry from Venezuela, (2) cut flowers that are hosts of CWR from Mexico are allowed entry into the United States if they are accompanied by a phytosanitary certificate issued by Mexico's national plant protection organization with an additional declaration that the shipment originated from an approved grower. The boxes and/or paperwork accompanying a shipment from Mexico must also be marked or stamped with the name of the approved grower.

Numerous findings of CWR on cut flowers from the Netherlands in 2003 prompted us to place administrative restrictions on certain cut flowers from the Netherlands also. These restrictions require cut flowers that are hosts of CWR from the Netherlands be allowed entry into the United States if they are accompanied by a phytosanitary certificate issued by the Netherlands. This certificate must contain an additional declaration stating that the place of production as well as the consignment have been inspected and found free of Puccinia horiana .

Because of these findings from the Netherlands and the risk of introducing CWR posed from other countries where the disease is known to occur, we are proposing to establish new entry requirements for cut chrysanthemums from all regions where CWR is known to occur.

Studies have shown that the following flowers are hosts of CWR (the studies cited are footnoted at the end of the table):

We are proposing to amend the cut flowers regulations to establish specific production and certification requirements that cut flowers of these types would have to meet in order to be eligible for importation from a region where CWR is known to occur. According to the information available to us, 1,2 CWR is known to occur in the following regions: The countries of Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Bulgaria, Canary Islands, Chile, China, Colombia, Croatia, Hungary, Iceland, Japan, Korea, Latvia, Liechtenstein, Lithuania, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Peru, Poland, Republic of South Africa, Romania, Russia, San Marino, Slovakia, Slovenia, Switzerland, Taiwan, Thailand, Tunisia, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and United Kingdom); and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude.

We propose to require that all production sites in the regions where CWR is known to occur be registered with the national plant protection organization of the country in which the production site is located, and that the national plant protection organization present APHIS with a list of registered production sites. Production sites would be subject to inspections to verify the absence of Puccinia horiana , therefore we would require that APHIS-authorized inspectors and NPPO inspectors be granted access to all production sites and other areas necessary to monitor them.

We would also require that cut flowers that are hosts to CWR and imported from any of the countries where the disease is known to occur be accompanied by a phytosanitary certificate issued by the national plant protection organization of the country of origin. The certificate would have to contain an additional declaration stating that the place of production as well as the consignment have been inspected and found free of Puccinia horiana . In addition, we would require that box labels and documents accompanying each shipment identify the registered production site. Cut flowers not meeting these requirements would be refused entry into the United States.

In addition, if any shipment of cut flowers is found to be infested with CWR upon arrival to the United States, we would prohibit imports from the originating production site until such time as APHIS and the national plant protection organization of the exporting country can agree that the eradication measures taken have been effective and the pest risk within the production site has been eliminated.

We believe that these proposed measures are necessary because of numerous recent findings of CWR on cut flowers from Europe. Currently, the administrative procedures for importing cut flowers vary, depending on the originating country. These proposed measures are being applied administratively to cut flowers imported from Mexico and the Netherlands and have proved effective in preventing the introduction of CWR by cut flowers imported from these countries. Therefore, we are proposing to add these mitigation measures to the regulations for all regions where CWR is known to exist.

This action would dispel the possible appearance of disparity in mitigation measures for different countries by consolidating all requirements for cut flowers imported from countries where CWR is known to occur. This action would also remove the current administrative prohibition on the importation of cut flowers that are hosts to CWR from Venezuela, provided they meet the import requirements discussed in the previous paragraphs.

In addition to the changes discussed above, we would amend the entries for Chrysanthemum spp. and Dendranthema spp. in the table in § 319.37-2(a) of the nursery stock regulations to update the list of CWR-affected countries found in each of those entries so that they match the list of regions we would establish in the cut flowers regulations. This change would ensure consistency in our regulations.

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are proposing to amend the cut flowers regulations to establish specific requirements for the importation of cut flowers that are hosts of CWR from countries where the disease is known to occur. We are also proposing to amend the nursery stock regulations to update lists of countries where CWR is known to occur. This action is necessary because of numerous recent findings of CWR on cut flowers from Europe that pose a risk of introducing CWR in the United States.

In 2002, U.S. floriculture and nursery crop sales were close to $14 billion based on growers' receipts. Chrysanthemums were among the most profitable flowers for their growers. Total U.S. sales of chrysanthemums were estimated at $182.4 million in 2002. Of this amount, $78.1 million were attributed to florists' cut chrysanthemums and the remaining $104.3 million to potted ( i.e. , hardy) chrysanthemums. Chrysanthemums were not only one of the top four garden plants in terms of sales in 2002, they were also the garden plants with the second fastest price gains since 1995. 3

In 2002, 11 percent ($63 million) of the money spent on imported cut flowers was for chrysanthemums. About 76 percent of the cut flowers imported into the United States originate in countries where, based on interceptions by U.S. inspectors, CWR exists.

APHIS has prepared a national management plan which describes procedures in the event a nursery in the United States is infected with CWR. The plan calls for the nursery to be placed into quarantine status. If there are very few infected chrysanthemum plants, the grower has the option to use a fungicide to control the disease or to destroy the crop by incineration. However, no plant should leave the nursery for 8 weeks or until the nursery has been inspected and certified as being free from CWR. In addition to these containment measures, the plan calls for an inspection of every chrysanthemum grower and every residence within a quarter mile to be inspected for CWR. 4

The fungicides most often recommended to fight the fungus Puccinia horiana Henn., which causes CWR, are Myclobutanil, Metam sodium, Dazomet, Chloropicrin, and methyl bromide. The cost of fungicide application varies, depending upon the plant size and number of leaves. A study by the National Agricultural Pesticide Impact Assessment Program and the University of California estimated the cost of different chemical treatments per acre of ornamental/nursery plants infected with fungus diseases, including CWR, by State. For field-grown nursery plants, all acreage was treated with fungicides. The treatment entailed spraying the flower plants with metam sodium, which costs $550 per acre, and then applying an herbicide at $200 per acre, totaling $750 per acre. For greenhouse plants, the treatment costs to fight CWR or any other fungus are higher. 5

In 1994, a property in California was quarantined after it was found to have chrysanthemums infected with CWR. The State followed with a survey around the affected residential area and found 70 more properties in the area with infected chrysanthemums. It cost $32,000, about $500 per residence, to eradicate the disease. A second survey by the State conducted 8 weeks following the first treatment process found very few remaining infected properties. However, the quarantine lasted much longer the second time and the average cost per property reached $7,000. 6

In 1995, chrysanthemum growers in San Diego County, CA, spent, on average, $5,000 per business establishment to fight a CWR infestation. The infestation was eradicated quickly and followed by an 8-week host-free period. However, the cost reached $100,000 for one greenhouse that experienced repeated infestations and remained quarantined for 10 months. Between 1992 and 1997, direct and indirect losses from CWR infestations to chrysanthemum growers in Santa Barbara County, CA, were approximately $2 million. The county reported an annual value of chrysanthemum production of more than $10 million in 1997. 7

The economic effects that could result from the proposed changes in the regulations are expected to be small for U.S. importers of cut chrysanthemums. The cost of the phytosanitary certification would be borne by the exporters, who may pass those costs on to U.S. importers. The expected benefit from the proposed change in import requirements for cut flowers from all CWR-affected countries is the protection of U.S. floriculture and nursery crop industries and the people they employ. In 2002, these two industries contributed $14 billion in sales revenue to the U.S. economy.

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects their rules on small entities. The Small Business Administration has established the size standards based on the North American Industry Classification System (NAICS) for determining which economic entities meet the definition of a small firm. The small entity size standard for nursery and tree production (NAICS code 111421) is $750,000 or less in annual receipts. A total of 1,691 floriculture operations out of 10,965 operations had sales of $500,000 or more. Thus, at least 85 percent of all floriculture operations can be classified as small entities, and it is likely that an even higher percentage can be classified as small entities due to the $250,000 discrepancy. 8

This proposed rule would continue to allow imports of cut chrysanthemums from CWR-affected countries, as long as the exporters from these countries comply with the proposed import requirements. We do not know the cost of certification in these countries compared to the average value of imported consignments of chrysanthemums, but it is expected to be minor. We do not expect that small entities in the U.S. floriculture industry will be significantly affected. However, the proposed requirements would help safeguard the U.S. floriculture and nursery industries from additional introductions of CWR.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 03-016-1. Please send a copy of your comments to: (1) Docket No. 03-016-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

We are proposing to amend the cut flowers regulations to establish specific requirements for the importation of cut flowers that are hosts of CWR from countries where the disease is known to occur. We are also proposing to amend the nursery stock regulations to update lists of countries where CWR is known to occur. We are proposing these changes in order to make our regulations consistent. This action is necessary because of numerous recent findings of CWR on cut flowers from Europe that pose a risk of introducing CWR in the United States.

We are proposing to require that each shipment of cut flowers must be accompanied by a phytosanitary certificate issued by the national plant protection organization of the country of origin that contains an additional declaration stating that the place of production as well as the consignment have been inspected and found free of Puccinia horiana .

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g. , permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.2294914 hours per response.

Respondents: Foreign national plant protection organizations.

Estimated annual number of respondents: 43,722.

Estimated annual number of responses per respondent: 8.1428571.

Estimated annual number of responses: 356,022.

Estimated total annual burden on respondents: 81,704 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.

Pursuant to the United States AMA, as amended, graded commodities have established standards which are used to measure and describe the physical and biological properties of the commodities at the time of inspection. The grade, class, and condition that are reported on the official inspection certificate are based on factors that are defined in these standards. There are three kinds of factors: Condition factors, grade determining factors, and non-grade determining factors.

Condition factors include heating, odor (musty, sour, and commercially objectionable), infestation, special grade factors ( e.g. , smut and aromatic), and distinctly low quality factors, such as toxic seeds. When a graded commodity is found to contain an unacceptable level of one or more of these condition factors, the commodity is graded U.S. Sample Grade or assigned a special grade, such as Infested.

Grade determining factors include, but are not limited to, foreign material, defects, damaged kernels, and other classes. These factors are common to most commodities. As the percentage of such factors increases, the numerical grade decreases. For example: U.S. No. 2 Long Grain Milled Rice may contain not more than 1.5 percent red rice and damaged kernels, U.S. No. 3 may contain not more than 2.5 percent, and U.S. No. 4 may contain not more than 4.0 percent.

Non-grade determining factors include, but are not limited to, total oil and free-fatty acid in rice, and seed count and checked seed coats in beans. These factors are only determined upon request as additional information and do not affect the numerical grade designation.

After the sample has been analyzed for all factors, a grade is assigned to the sample equal to the lowest grade determined for any one of the factors. For example, if all of the factors were determined to be at the U.S. No. 1 level, except for one factor that was at the U.S. No. 3 level, then the lot would be graded U.S. No. 3.

Therefore, the final grade assigned to a sample or lot is directly dependent on achieving accuracy (closeness to the true value) and precision (repeatability) in the values obtained for the various grading factors. Accuracy and precision are affected mainly by the type of sampling device, the sampling procedure, and the grading factors; i.e. , machine-determined values (objective), human judgment values (subjective), and sample homogeneity (inherent). The sources of variation are highly interrelated; each is involved, to some extent, in the final value ascribed to each grading factor of a lot and to the grade designation of that lot.

Due to inherent sampling and inspection variability, users of the official inspection system have an opportunity to obtain another inspection service when certificated results are questionable. That is, if an interested party disagrees with the grade or factor results assigned to the graded commodity, they may request that the GIPSA perform an appeal inspection.

From the original inspection service an interested person may obtain an appeal inspection service, or a Board appeal inspection service. The same inspection office that provided the original inspection service provides the appeal inspection. GIPSA's Board of Appeals and Review (BAR) in Kansas City, Missouri, provides the Board appeal inspection service, the highest level of inspection service available. The scope of the appeal or Board appeal inspection is limited to the scope of the original inspection.

Section 868.60 of the regulations currently require that appeal inspections for grade must include a complete review of all official factors that: (1) May determine the grade; or (2) are reported on the original certificate; and (3) are required to be shown. Consequently, even if the official inspector who is performing the appeal inspection finds there is only one grade-determining factor, all of the factors that were reported on the original certificate must be redetermined.

In most instances, the applicant for service does not need a complete review. Even though not allowed, most applications currently request an appeal inspection of a specific factor. Redetermining all official factors requires significant time to complete. This increases inspection costs.

The following table shows the total number of inspections versus number of appeal and Board appeal inspections for grade that have been determined during the last four fiscal years for dry beans, peas, lentils, and rice.

Under provisions of the AMA (7 U.S.C. 16210 et seq. ), it is not mandatory for rice and pulses (the subject of this rule) to be officially inspected. This proposed rule relieves regulatory requirements and improves the efficiency of official inspection services.

The cost savings of the proposed action on the graded commodity industry could be very positive. Although it is impossible to estimate an exact dollar savings, the time spent waiting for appeal inspection results could be reduced by at least 50 percent and could, in certain circumstances, exceed 90 percent.

To provide effective and efficient official inspection services that better meet industry needs, GIPSA proposes that applicants for service be allowed to specify the factor(s) that are to be redetermined as part of an appeal or Board appeal inspection service for grade. However, appeal and Board appeal inspections for grade may include a review of any pertinent factor(s), as deemed necessary by official personnel. All official inspections (original, appeal or Board appeal inspection) must be accurate. If there is an indication that a factor (or factors) may have been misgraded or overlooked on the previous inspection, then the factor(s) in question will be redetermined.

On August 21, 2002, GIPSA proposed this same action under the U.S. Grain Standards Act (67 FR 54133). GIPSA received seven comments regarding the proposed action. All comments supported the action. Accordingly, GIPSA amended the regulations to allow requests for a reinspection and an appeal inspection to one or more grade or condition factors. This final rule was published on October 28, 2003, in (68 FR 61326).

Two of the comments received from the original proposal were from associations involved with graded commodities inspected under the authority of the AMA, asking that GIPSA extend the action to include graded products (rice and pulses).

GIPSA proposes to revise §868.1 to redefine the definitions of appeal and Board appeal inspection services, and §868.60 to revise the conditions for requesting appeal and Board appeal inspection services.

This proposed rule has been determined to be non-significant for the purpose of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB). This action simplifies the regulations concerning official requirements for commodity inspections. This action reduces cost to the affected entities.

GIPSA has considered the economic impact of this proposed rule on small entities and has determined that its provision would not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ).

The proposed rule will affect entities engaged in shipping graded commodities to and from points within the United States and exporting graded commodities from the United States. GIPSA estimates there are approximately 2,500 rice mills, and bean, pea, and lentil processing plants in the United States that could receive official inspection services by GIPSA, designated/delegated states, and cooperators. Inspections of graded commodities are performed by eight GIPSA offices, one Federal/State office, and six designated States which operate under cooperative agreements and under GIPSA supervision. Under the provisions of the AMA, it is not mandatory for graded commodities to be officially inspected. Further, most users of the official inspection services and those entities that perform these services do not meet the requirement of small entities. Even though some users could be considered small entities, this proposed rule relieves regulatory requirements and improves the efficiency of official inspection services. No additional cost is expected to result from this action.

Requiring all appeal inspections and Board appeal inspections for grade to include a complete review of all official factors is not needed by applicants or other parties to transactions, or by official inspection personnel. Furthermore, this requirement often reduces the efficiency of providing official inspection services and increases the costs.

This proposed rule relieves regulatory requirements and improves the efficiency of official inspection services. Further the regulations are applied equally to all entities.

Under Executive Order 12988, Civil Justice Reform, this action is not intended to have a retroactive effect. This action will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this notice.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements in part 868 have been previously approved by OMB No. 0580-0013.

GIPSA is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

For reasons set out in the preamble, 7 CFR part 868 is proposed to be amended as follows:

NCUA seeks public comment and suggestions on ways it can reduce regulatory burdens consistent with our statutory obligations. Today, we request input to help identify which requirements in two regulatory categories—Directors, Officers and Employees and Rules of Procedure—are outdated, unnecessary, or unduly burdensome. The rules in these categories are listed in a chart at the end of this notice. The EGRPRA review supplements and complements the reviews of regulations that NCUA conducts under other laws and its internal policies.

We specifically invite comment on the following issues: Whether statutory changes are needed; whether the regulations contain requirements that are not needed to serve the purposes of the statutes they implement; the extent to which the regulations may adversely affect competition; the cost of compliance associated with reporting, recordkeeping, and disclosure requirements, particularly on small credit unions; whether any regulatory requirements are inconsistent or redundant; and whether any regulations are unclear.

In drafting this notice, the NCUA participated as part of the EGRPRA planning process with the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, and Office of Thrift Supervision (Agencies). Because of the unique circumstances of federally-insured credit unions and their members, NCUA is issuing a separate notice from the four bank regulatory agencies, which are issuing a joint notice. NCUA's notice is consistent and comparable with the joint notice, although there are differences. For example, unlike the bank regulators, NCUA included Powers and Activities of Credit Unions in an earlier notice, and so this notice makes no reference to that subject.

This notice is part of the regulatory review required by section 2222 of EGRPRA. 1 The NCUA described the review requirements in our initial Federal Register notice, published on July 3, 2003 (68 FR 39863). As we noted at that time, we anticipate that the EGRPRA review's overall focus on the “forest” of regulations will offer a new perspective in identifying opportunities to reduce regulatory burden. We must, of course, assure that the effort to reduce regulatory burden is consistent with applicable statutory mandates and provides for the continued safety and soundness of federally-insured credit unions and appropriate consumer protections.

The EGRPRA review required that NCUA categorize our regulations by type. Our July 3, 2003, Federal Register publication identified ten broad categories for our regulations.

The categories are:

1. Applications and Reporting.

2. Powers and Activities.

3. Agency Programs.

4. Capital.

5. Consumer Protection.

6. Corporate Credit Unions.

7. Directors, Officers and Employees.

8. Money Laundering.

9. Rules of Procedure.

10. Safety and Soundness.

To spread the work of commenting on and reviewing the categories of rules over a reasonable period of time, we proposed to publish one or more categories of rules approximately every six months between 2003 and 2006 and provide a 90-day comment period for each publication. We asked for comment on all aspects of our plan, including: The categories, the rules in each category, and the order in which we should review the categories. Because the NCUA was eager to begin reducing unnecessary burden where appropriate, our initial notice also published the first two categories of rules for comment (Applications and Reporting and Powers and Activities). NCUA published its second notice, soliciting comment on consumer protection rules in the lending area, on February 4, 2004 (69 FR 5300); its third notice, relating to other consumer protection rules, on July 8, 2004 (69 FR 41202); and its fourth notice, relating to safety and soundness and anti-money laundering, on February 4, 2005 (70 FR 5946). All our covered categories of rules must be published for comment and reviewed by the end of September 2006.

The EGRPRA review then requires the Agencies to: (1) Publish a summary of the comments we received, identifying and discussing the significant issues raised in them; and (2) eliminate unnecessary regulatory requirements. Within 30 days after the Agencies publish the comment summary and discussion, the Federal Financial Institutions Examination Council (FFIEC), which is an interagency body to which all of the Agencies belong, must submit a report to Congress. This report will summarize significant issues raised by the public comments and the relative merits of those issues. It will also analyze whether the appropriate Federal financial institution regulatory agency can address the burdens by regulation, or whether the burdens must be addressed by legislation.

NCUA received eight comments in response to its first notice, four comments in response to its second notice, six in response to the third notice and eleven in response to the fourth notice. The comments have been posted on the interagency EGRPRA Web site, http://www.EGRPRA.gov , and can be viewed by clicking on “Comments.” We are actively reviewing the feedback received about specific ways to reduce regulatory burden, as well as conducting our own analyses. Because the main purpose of this notice is to request comment on the next category of regulations, we will not discuss specific recommendations that we have received in response to our earlier notices here. However, as we develop initiatives to reduce burden on specific subjects in the future—whether through regulatory, legislative, or other channels—we will discuss the public's recommendations that relate to our proposed actions.

NCUA is asking the public to identify the ways in which the rules in the category of Directors, Officers, and Employees and Rules of Procedure may be outdated, unnecessary, or unduly burdensome. If the implementation of a comment would require modifying a statute that underlies the regulation, the comment should, if possible, identify the needed statutory change. We encourage comments that not only deal with individual rules or requirements but also pertain to certain product lines. A product line approach is consistent with EGRPRA's focus on how rules interact, and may be especially helpful in exposing redundant or potentially inconsistent regulatory requirements. We recognize that commenters using a product line approach may want to make recommendations about rules that are not in our current request for comment. They should do so since the EGRPRA categories are designed to stimulate creative approaches rather than limiting them.

Specific issues to consider. While all comments are welcome, NCUA specifically invites comment on the following issues:

• Need for statutory change. Do any of the statutory requirements underlying these regulations impose redundant, conflicting or otherwise unduly burdensome requirements? Are there less burdensome alternatives?

• Need and purpose of the regulations. Are the regulations consistent with the purposes of the statutes that they implement? Have circumstances changed so that the regulation is no longer necessary? Do changes in the financial products and services offered to consumers suggest a need to revise certain regulations or statutes? Do any of the regulations impose compliance burdens not required by the statutes they implement?

• General approach/flexibility. Generally, is there a different approach to regulating that NCUA could use that would achieve statutory goals while imposing less burden? Do any of the regulations in this category or the statutes underlying them impose unnecessarily inflexible requirements?

• Effect of the regulations on competition. Do any of the regulations in this category or the statutes underlying them create competitive disadvantages for credit unions compared to another part of the financial services industry?

• Reporting, recordkeeping and disclosure requirements. Do any of the regulations in this category or the statutes underlying them impose particularly burdensome reporting, recordkeeping or disclosure requirements? Are any of these requirements similar enough in purpose and use so that they could be consolidated? What, if any, of these requirements could be fulfilled electronically to reduce their burden? Are any of the reporting or recordkeeping requirements unnecessary to demonstrate compliance with the law?

• Consistency and redundancy. Do any of the regulations in this category impose inconsistent or redundant regulatory requirements that are not warranted by the purposes of the regulation?

• Clarity. Are the regulations in this category drafted in clear and easily understood language?

• Burden on small insured institutions. NCUA has a particular interest in minimizing burden on small insured credit unions (those with less than $10 million in assets). More than half of federally-insured credit unions are small—having $10 million in assets or less—as defined by NCUA in Interpretative Ruling and Policy Statement 03-2, Developing and Reviewing Government Regulations. NCUA solicits comment on how any regulations in this category could be changed to minimize any significant economic impact on a substantial number of small credit unions.

NCUA appreciates the efforts of all interested parties to help us eliminate outdated, unnecessary or unduly burdensome regulatory requirements.

Directors, Officers, and Employees and Rules of Procedure.

How do I comment on this proposed AD? We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include the docket number, “FAA-2005-21464; Directorate Identifier 2005-CE-32-AD” at the beginning of your 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 rulemaking. Using the search function of our docket Web site, anyone can find and read the comments received into 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.). This is docket number FAA-2005-21464; Directorate Identifier 2005-CE-32-AD. 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.

Are there any specific portions of this proposed AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. If you contact us through a nonwritten communication and that contact relates to a substantive part of this proposed AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend this proposed AD in light of those comments and contacts.

Where can I go to view the docket information? You may view the AD docket that contains the proposal, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m. (eastern standard time), Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation NASSIF Building at the street address stated in ADDRESSES . You may also view the AD docket on the Internet at http://dms.dot.gov. The comments will be available in the AD docket shortly after the DMS receives them.

What events have caused this proposed AD? The Direction Générale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified FAA that an unsafe condition may exist on certain SOCATA Model TBM 700 airplanes. The DGAC reports cracks in the fuselage skin by the passenger door on the affected airplanes. These airplanes have a VHF1 antenna mounted under the fuselage between frame C12 and C13 or C13 and C13bis.

Investigations reveal that antenna vibrations are causing the cracks.

What is the potential impact if FAA took no action? If not detected and corrected, cracks in the fuselage skin could cause loss of aircraft pressurization. Loss of pressurization could lead to flight crew incapacitation.

Is there service information that applies to this subject? SOCATA has issued Mandatory Service Bulletin TBM Aircraft, SB 70-103, Amendment 1, ATA No. 53, dated September 2003; and Recommended Service Bulletin TBM Aircraft, SB 70-111, ATA No. 53, dated October 2003.

What are the provisions of this service information? These service bulletins include procedures for:

What action did the DGAC take? The DGAC classified these service bulletins as mandatory and issued French AD Number F-2003-367 R1, Distribution A, Issue date: February 4, 2004, to ensure the continued airworthiness of these airplanes in France.

Did the DGAC inform the United States under the bilateral airworthiness agreement? These SOCATA Model TBM 700 airplanes are manufactured in France and are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Under this bilateral airworthiness agreement, the DGAC has kept us informed of the situation described above.

What has FAA decided? We have examined the DGAC's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described previously is likely to exist or develop on other SOCATA Model TBM 700 airplanes of the same type design that are registered in the United States, we are proposing AD action to detect and correct cracks in the fuselage skin, which could result in loss of aircraft pressurization. Loss of aircraft pressurization could lead to flight crew incapacitation.

What would this proposed AD require? This proposed AD would require you to incorporate the actions in the previously-referenced service bulletins.

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

How many airplanes would this proposed AD impact? We estimate that this proposed AD affects 185 airplanes in the U.S. registry.

What would be the cost impact of this proposed AD on owners/operators of the affected airplanes? We estimate the following costs to do the proposed inspection:

We estimate the following costs to do the proposed modification.

What authority does FAA have for issuing this rulemaking action? 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 AD.

Would this proposed AD impact various entities? 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.

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

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

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

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

We prepared a summary of the costs to comply with this proposed AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket FAA-2005-21464; Directorate Identifier 2005-CE-32-AD” in your request.

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

Congress enacted, and the President signed, the Justice for All Act (“Act”), which became effective October 30, 2004. Section 102 of the Act, 18 U.S.C. 3771 (“section 3771”), codifies crime victims” rights, requires officers and employees of the Department of Justice (“Department”) and other government departments and agencies to exercise best efforts to accord victims those rights, establishes enforcement measures for those rights, and requires the Attorney General to promulgate regulations within one year of the Act's effective date to promote compliance by responsible Department of Justice officials with their obligations regarding victims' rights. Section 3771(f) states that the regulations must: (a) Designate an administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim by Department employees; (b) require a course of training for Department employees and offices that fail to comply with their obligations regarding victims' rights; (c) contain disciplinary sanctions for willful and wanton failure to comply with obligations regarding victims' rights; and (d) provide that the Attorney General or his designee shall be the final arbiter of a complaint.

In order to implement this statutory directive, this proposed rule creates a new section in part 45, Employee Responsibilities, of title 28, Judicial Administration, of the Code of Federal Regulations. Proposed § 45.10 creates the office of the Victims' Rights Ombudsman (VRO) within the Executive Office for United States Attorneys (EOUSA) and designates the VRO as the administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim. The proposed rule authorizes the VRO to designate points of contact (POCs) in each office of the Department to perform initial investigations and review of complaints, in order to allow for complaints to be addressed at the most local level.

For purposes of the new section, victims of crime are defined identically to the definition in the Justice for All Act, and victims' rights are defined as those established in the Act.

The proposed rule then establishes a procedure for filing complaints, investigations of those complaints, and imposition of disciplinary sanctions against employees where warranted.

The proposed rule requires that a complaint must be in writing and must contain sufficient information to enable an investigation of the complaint by the POC. Complaints must be filed within 30 days of the alleged violation of a victim's rights, unless the victim demonstrates good cause for the delay. The precise requirements for the investigation will be established by internal Department policy guidance. At the end of the investigation, the POC will prepare a written report of the results of the investigation, including a signed statement by the victim as to whether or not he is satisfied that his complaint has been resolved. In either case, however, the report will be forwarded to the VRO for review. The VRO will then decide whether (a) No further action is necessary; (b) further investigation, to be conducted by the VRO, is necessary; or (c) the employee should be required to undergo training or be subject to disciplinary sanctions. The VRO's determination will not be dependent on the victim's satisfaction, although it may be taken into account. The VRO will be the final arbiter of whether the complaint has been adequately addressed.

If the VRO determines that no further action is necessary, the matter will be closed.

The VRO, upon either review of the POC's investigation or his own further investigation, may require an employee to undergo training on the obligations of Department employees regarding victims' rights. If, upon either review of the POC's investigation or his own further investigation, the VRO determines that the employee has willfully or wantonly violated a crime victim's rights, the VRO is authorized to recommend, in conformity with laws and regulations regarding employee discipline, a range of disciplinary sanctions to the head of the office in which the employee is located, or to the official who has been designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office. The head of that office of the Department of Justice, or the other official designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office, shall be the final decision-maker regarding the disciplinary sanction to be imposed.

Because of restrictions on the release of information regarding the status of Department employees and the need to balance the rights of the victim with the rights of the employee, the victim shall be notified of the results of the investigation only at the discretion of the VRO and in accordance with relevant statutes and regulations regarding privacy of Federal employees.

Both the POC and the VRO are required to refer to the Office of the Inspector General (OIG) or the Office of Professional Responsibility (OPR) any matters that fall under those offices' jurisdictions that may come to light in the POC's or the VRO's investigation.

An appendix listing the contact information for the VRO and the POCs of each relevant office of the Department of Justice will be attached to the final rule, when published.

Because this proposed rule affects only internal Department procedures, the Department states that this rule, if promulgated as a final rule, will not have any effect on small businesses of the type described in 5 U.S.C. 605. Accordingly, the Department has not prepared an initial Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 603.

The Department of Justice has reviewed this rule in light of Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f)(4), Regulatory Planning and Review. Accordingly, this rule has been reviewed by the Office of Management and Budget.

In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866 section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. The costs that the Department considered included the costs to victims of submitting complaints to the POC and VRO, the costs to the employees of participating in the complaint and disciplinary process, and the costs to the Federal Government of creating and maintaining the VRO office. The benefits considered by the Department are that the purpose of the Act and of these regulations is to protect victims' rights. The Department believes that the costs imposed by these regulations are justified by the benefits.

This regulation will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This proposed rule is exempt from the requirements of the Paperwork Reduction Act under 5 CFR 1320.4(1) because it relates to the conduct of a Federal criminal investigation or prosecution.

All comments and suggestions relating to the Paperwork Reduction Act, or questions regarding additional information, should be directed to Brenda Dyer, Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, 601 D Street, NW., Washington, DC 20530.

Accordingly, for the reasons stated in the preamble, the Department of Justice proposes to amend 28 CFR chapter I part 45 as follows:

FMCS proposes to amend 29 CFR part 1404. The original regulation was issued in June 1997. The amendments set forth procedures for the listing and removal of arbitrators from the arbitration roster maintained by FMCS, procedures for requesting arbitration lists and panels, and the nomination of arbitrators.

Pursuant to 29 U.S.C. 171(b) and 29 CFR part 1404, FMCS offers panels of arbitrators for selection by labor and management to resolve grievances and disagreements arising under their collective bargaining agreements and to deal with the fact finding and interest arbitration issues as well.

Title II of the Labor Management Relations Act of 1947 (Pub. L. 90-101) as amended in 1959 (Pub. L. 86-257) and 1974 (Pub. L. 93-360), states that it is the labor policy of the United States that “the settlement of issues between employers and employees through collective bargaining may be advanced by making available full and adequate governmental facilities for conciliation, mediation, and voluntary arbitration to encourage employers and representatives of their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions, and to make all reasonable efforts to settle their differences by mutual agreement reached through conferences and collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes.” Under its regulations at 29 CFR part 1404, FMCS has established policies and procedures for its arbitration function dealing with all arbitrators listed on the FMCS Roster of Arbitrators, all applicants for listing on the Roster, and all person or parties seeking to obtain from FMCS either names or panels of names of arbitrators listed on the Roster in connection with disputes which are to be submitted to arbitration or fact-finding. FMCS strives to maintain the highest quality of dispute resolution experts on its roster. FMCS now proposes to amend 29 CFR part 1404 to update its procedures and facilitate the maintenance and administration of its arbitration roster.

Information submitted as a comment concerning this document may be claimed confidential by marking any part or all of the information as “CBI.” Information so marked will not be disclosed but a copy of the comment that does contain CBI must be submitted for inclusion in the public record. FMCS may disclose information not marked confidential without prior notice. All written comments will be available for inspection in Room 704 at the Washington, DC address above from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

All comments and data in electronic form must be identified by the appropriate agency form number. No confidential business information (CBI) should be submitted through e-mail.

The Director, in accordance with the Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The fees assessed by FMCS for requests for panels are nominal and should not cause any significant economic effect on small entities which may request arbitration panels.

This regulation has been deemed significant under Section 3(f)(3) of E.O. 12866 and as such has been submitted to and reviewed by the Office of Management and Budget.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with Foreign based companies in domestic and export markets.

For the reasons stated in the preamble, the Federal Mediation and Conciliation Service proposes to amend 29 CFR Part 1404 as follows:

Section 641 of the National Defense Authorization Act for Fiscal Year 2004 (the Act), Public Law 108-136, amended section 1414 of title 10, United States Code. Section 641 permits certain veterans who are eligible for military retired pay and for veterans' disability compensation for a single service-connected disability rated at 50 percent or higher, or a combination of service-connected disabilities rated 50 percent or higher, to receive concurrent payment of both military retired pay and disability compensation. Public Law 108-136 establishes a phase-in period from January 1, 2004, to December 31, 2013, during which the monthly amount of military retired pay payable to a qualified retiree will gradually increase. Section 642 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Public Law 108-375, amended section 1414 of title 10, United States Code, by eliminating the phase-in period for retirees receiving compensation for a disability rated as 100 percent.

This amendment concerns entitlements administered by the Department of Defense (DoD) as well as VA. DoD must determine the phase-in amount for concurrent receipt. Regulations pertinent to this calculation or other matters specifically dealing with the receipt of military retired pay are the responsibility of DoD and are outside the scope of this proposed rulemaking. Section 1414(c) provides for the phase-in until December 31, 2013. ( See 10 U.S.C. 1414(c).) This proposed rulemaking is solely related to the effect of this law on VA's compensation payments.

Section 1414 of title 10, U.S.C., as amended by the Act, provides in subsection (a) that certain veterans are permitted to receive concurrent payment of military retired pay and veterans' disability compensation, notwithstanding sections of the law that prohibit the duplication of benefits and require a waiver of military retired pay to receive disability compensation. ( See 38 U.S.C. 5304, 5305.) Subject to the exception for retirees receiving compensation for a disability rated as 100 percent, from January 1, 2004, until December 31, 2013, payment to qualified retirees will be subject to a mathematical formula for the phase-in of full concurrent receipt. ( See 10 U.S.C. 1414(c).)

Special provisions, administered by DoD, exist with respect to concurrent receipt for Chapter 61 Disability Retirees. ( See 10 U.S.C. 1201-1221.) A veteran, retired under Chapter 61 with 20 or more years of service, must waive a portion of his or her disability retired pay to receive disability compensation. Veterans retired under Chapter 61 with less than 20 years of service are not entitled to this benefit.

The Act amends 10 U.S.C. 1414, which affects 38 CFR 3.750. The title of § 3.750 is “Retirement pay.” We propose to change the title of § 3.750 to “Entitlement to concurrent receipt of military retired pay and disability compensation.” This title more clearly conveys the content of the revised regulation.

Current § 3.750(a) prohibits concurrent receipt of military retired pay and disability compensation. Proposed paragraph (a) defines military retired pay.

Current paragraph (b) provides for election between military retired pay and disability compensation. We propose to move the information contained in current paragraph (b) to proposed paragraph (d). We propose in paragraph (b)(1), consistent with amended 10 U.S.C. 1414(a), to state that qualified veterans with a disability or disabilities rated at 50 percent or higher are entitled to concurrent receipt of both military retired pay and disability compensation benefits.

To comply with amended 10 U.S.C. 1414(b), we propose in paragraph (b)(2) to state that veterans who retire under 10 U.S.C. Chapter 61 with 20 or more years of creditable service must waive a portion of their disability retired pay to receive disability compensation, but only to the extent that disability retired pay exceeds the amount of retired pay they would have received had they retired based on length of service.

We propose in paragraph (b)(3) to state that Chapter 61 disability retirees who have less than 20 years of creditable service are not entitled to concurrent receipt.

Proposed paragraph (b)(4) is a restatement, in plain language, of the rule in current paragraph (d) that recipients of improved pension are entitled to receive military retired pay at the same time, but that in determining entitlement to improved pension, military retired pay will be treated as countable income.

Proposed paragraph (c) would amend the requirement that a veteran file a waiver of military retired pay in order to receive compensation benefits. All veterans eligible to receive military retired pay and disability compensation, but who are not qualified to receive them at the same time, must file a waiver of retired pay in order to receive compensation. Additionally, during the phase-in period, veterans must file a waiver even if they are eligible for concurrent receipt. By waiving military retired pay, eligible veterans will receive full disability compensation payments plus the appropriate phase-in amount of military retired pay from DoD. The phase-in period ends on December 31, 2013, and effective on January 1, 2014, a veteran eligible for concurrent receipt will no longer be required to file a waiver.

We propose in paragraph (c) to state that a veteran may file the waiver with VA rather than requiring the veteran to file it with the service department. This reflects current VA practice, and we believe it would be helpful to inform veterans of this practice. The proposed rule also describes what actions on the part of a claimant will be construed as a waiver of military retired pay. In paragraph (c)(1), we propose to describe how one files a waiver of military retired pay. Paragraph (c)(2) would restate, in plain language, the rule in current paragraph (c), that filing an application for VA benefits constitutes an election to receive disability compensation and a waiver of military retired pay.

Proposed paragraph (d)(1) would restate, in plain language, the rule in current paragraph (b), that the veteran may reelect between receipt of military retired pay and disability compensation and would make clear that this reelection may be made at any time. Proposed paragraph (d)(2) would restate the rule in current paragraph (b) concerning an election filed within 1 year of the date of notification of VA entitlement and that rule's application to incompetent veterans.

We have not included the provisions in § 3.750(d)(2) that state that recipients of old-law or section 306 pension must waive an equivalent amount of military retired pay. We propose to remove this section because no one may elect to receive old-law or section 306 pension, and the number of individuals that currently receive such pensions because they waived retired pay is very small. This deletion would not effect the entitlement of current beneficiaries. Should the occasion arise, VA will adjudicate any new claim relying on existing statutory authority.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, or tribal governments, or the private sector.

The Catalog of Federal Domestic Assistance program numbers for this proposed rule are 64.104, 64.105, and 64.110.

For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended as follows:

This section provides additional information by addressing the following questions:

On April 15, 2004, the Administrator of the EPA signed a final rule (69 FR 23858; April 30, 2004) announcing the designations under the 8-hour ozone NAAQS. That action designated several counties in the Syracuse area as unclassifiable and provided that the designation was effective on June 15, 2004. The Syracuse area designation was based on the review of ozone data from 2001 through 2003. The counties in the Syracuse area designated as unclassifiable are Onondaga, Madison, Cayuga, and Oswego in New York State. In that action, we stated that we would review all available information and make an attainment or nonattainment decision after reviewing the 2004 ozone data.

Section 107(d) of the Clean Air Act (CAA) sets forth the criteria and process for designations and redesignations. An explanation of statutory requirements for the 8-hour ozone designations that became effective on June 15, 2004, and the actions EPA took to meet those requirements can be found in the final rule that established the designations (69 FR 23858; April 30, 2004). In Section 107(d)(3), the CAA addresses redesignations and provides that the Administrator or the Governor of a state may initiate the redesignation process. One of the bases for redesignation under that section is air quality data.

To determine whether an area is attaining the 8-hour ozone NAAQS, we consider the most recent three consecutive years of data in accordance with 40 CFR part 50, Appendix I. For the purpose of this rulemaking, we reviewed the ozone data from 2002 through 2004.

On December 14, 2004 the New York State Department of Environmental Conservation submitted the quality assured 8-hour ozone data for 2004, the most recent ozone season; certified the ozone data as correct, complete and appropriate for regulatory use; and requested that EPA redesignate the Syracuse area from unclassifiable to attainment. The counties included in the redesignation request include Onondaga, Madison, Cayuga, and Oswego Counties.

Consistent with 40 CFR part 50, Appendix I, section 2.3, paragraph (d)(1), the 8-hour ozone standard is met if the three year average value of the annual fourth-highest daily maximum (the design value) is less than 0.085 parts per million (ppm). For the 2002-2004 time period, the design values at monitors in the Syracuse area are 0.079 ppm at East Syracuse and 0.077 ppm at Camp Georgetown, indicating that the 8-hour ozone NAAQS has been attained at all monitors in the Syracuse metropolitan area.

The design value at the Syracuse monitor was less than 0.085 ppm for ten years before 2003, so it is unlikely to violate the 8-hour standard in the future. EPA and the State will continue to review air quality data for violations of the 8-hour ozone standard.

Based upon regulatory requirements in 40 CFR part 50, Appendix I and including monitoring data from the most recent ozone season, the monitors in the Syracuse metropolitan area are in attainment of the 8-hour ozone standard. Thus, we are proposing to redesignate Onondaga, Madison, Cayuga, and Oswego Counties in New York as attainment for the 8-hour ozone standard.

We are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely designates an area for planning purposes based on air quality, and does not establish any new regulations. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The redesignation is an action which affects the status of a geographic area but does not impose any new requirements on governmental entities or sources. Therefore because it does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

The Onondaga and Oneida Tribes are located within the Syracuse area. The redesignation of the Syracuse area from unclassifiable to attainment will not create any new or burdensome requirements upon the tribes. Therefore, this redesignation 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 establishes the attainment status, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing state redesignation requests, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 redesignation request for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state recommendation, to use VCS in place of a state request that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this Federal Register .

This is a summary of the Federal Communications Commission's Further Notice of Proposed Rulemaking ( FNPRM ) FCC 05-75, adopted on March 16, 2005, and released on March 17, 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 FNPRM contains proposed information collection requirements. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the proposed information collection requirements contained in this FNPRM, as required by the PRA. Written comments on the PRA proposed information collection requirements must be submitted by the public, OMB, and other interested parties on or before September 6, 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, Pub. L. 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: 3060-0031.

Title: Application for Consent to Assignment of Broadcast Station Construction Permit or License; Application for Consent to Transfer Control of Entity Holding Broadcast Station Construction Permit or License; Section 73.3580, Local Public Notice of Filing of Broadcast Applications.

Form Number: FCC Form 314 and FCC Form 315.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; not-for-profit institutions.

Number of Respondents: 4,510.

Frequency of Response: On occasion reporting requirement; third party disclosure requirement.

Estimated Time Per Response: 1 hour to 6 hours.

Total Annual Burden: 15,890 hours.

Total Annual Costs: $33,349,150.

Privacy Impact Assessment: No impact(s).

Needs and Uses: On March 16, 2005 the Commission adopted a 2nd Order on Reconsideration and Further Notice of Proposed Rulemaking (FNRPM) , In the Matter of the Creation of a Low Power Radio Service, MM Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the transfer and/or assignment of Low Power FM (LPFM) authorizations.

FCC Forms 314 and 315 have been revised to encompass the assignment of LPFM authorizations, as proposed in the FNPRM, and to reflect the ownership and eligibility restrictions applicable to LPFM permittees and licensees.

FCC Form 314 and the applicable exhibits/explanations are required to be filed when applying for consent for assignment of an AM, FM, TV or Low Power FM (LPFM) broadcast station construction permit or license. In addition, the applicant must notify the Commission when an approved assignment of a broadcast station construction permit or license has been consummated.

FCC Form 315 and applicable exhibits/explanations are required to be filed when applying for transfer of control of an entity holding an AM, FM, TV or LPFM broadcast station construction permit or license. In addition, the applicant must notify the Commission when an approved assignment of a broadcast station construction permit or license has been consummated.

OMB Control Number: 3060-0009.

Title: Application for Consent to Assignment of Broadcast Station Construction Permit or License or Transfer of Control of Corporation Holding Broadcast Station Construction Permit or License.

Form Number: FCC Form 316.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; not-for-profit institutions; State, local or tribal government.

Number of Respondents: 730.

Frequency of Response: On occasion reporting requirement.

Estimated Time Per Response: 1-4 hours.

Total Annual Burden: 775 hours.

Total Annual Costs: $423,720.

Privacy Impact Assessment: No impact(s).

Needs and Uses: On March 16, 2005 the Commission adopted a 2nd Order on Reconsideration and Further Notice of Proposed Rulemaking (FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the assignment or transfer of control of Low Power FM (LPFM) authorizations where there is a change in the governing board of the permittee or licensee or in other situations analogous to “pro forma” assignments or transfers of control for other types of broadcast authorizations. FCC Form has been revised to encompass the assignment and transfer on control of these LPFM authorizations.

OMB Control Number: 3060-0920.

Title: Application for Construction Permit for a Low Power FM Broadcast Station; Report and Order in MM Docket No. 99-25 Creation of Low Power Radio Service.

Form Number: FCC Form 318.

Type of Review: Revision of a currently approved collection.

Respondents: Not-for-profit institutions; State, local or tribal government.

Number of Respondents: 16,422.

Frequency of Response: Recordkeeping requirement; on occasion reporting requirement; third party disclosure requirement.

Estimated Time Per Response: 15 minutes-12 hours.

Total Annual Burden: 33,866 hours.

Total Annual Costs: $23,850.

Privacy Impact Assessment: No impact(s).

Needs and Uses: On March 16, 2005 the Commission adopted a 2nd Order on Reconsideration and Further Notice of Proposed Rulemaking (FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM Docket No. 99-25, FCC 05-75. The FNPRM proposes to amend 47 CFR 73.870 and 73.871 to permit voluntary time-share applicants to relocate an LPFM transmitter to a central location by filing amendments to their pending FCC Form 318 applications.

FCC Form 318 is required to: (1) apply for a construction permit for a new LPFM station, (2) to make changes in the existing facilities of such a station or (3) to amend a pending FCC Form 318 application.

1. In January 2000, the Commission adopted a Report and Order establishing the low power FM (LPFM) service, Creation of Low Power Radio Service, 65 FR 7616, February 15, 2000. The Commission authorized the LPFM service to provide opportunities for new voices to be heard, while at the same time maintaining the integrity of existing FM radio service and preserving its ability to transition to a digital transmission mode. In the Report and Order, the Commission authorized two classes of LPFM service: The LP100 class, consisting of stations with a maximum power of 100 watts effective radiated power (ERP) at 30 meters antenna height above average terrain (HAAT), providing an FM service radius (1 mV/m or 60 dBu) of approximately 3.5 miles (5.6 kilometers), and the LP10 class, consisting of stations with a maximum power of 10 watts ERP at 30 meters HAAT, providing an FM service radius of approximately one to two miles (1.6 to 3.2 kilometers). The Report and Order also imposed separation requirements for LPFM with respect to full power stations.

2. In the Report and Order, the Commission also established ownership and eligibility rules for the LPFM service. The Commission restricted LPFM service to noncommercial educational (NCE) operation by non-profit entities and public safety radio services. With certain narrow exceptions, the Commission restricted ownership to entities with no attributable interest in any other broadcast station or other media subject to our ownership rules. The Commission prohibited the sale or transfer of an LPFM station. For the first two years of the LPFM service, the Commission prohibited multiple ownership of LPFM stations and limited ownership to locally-based entities. To resolve mutually exclusive applications, the Commission established a point system that favors local ownership and locally-originated programming, with time-sharing and successive license terms as tie-breakers.

3. The Report and Order directed the Mass Media Bureau to announce by public notice the opening of a national filing window for LP100 applications. In March 2000, the Mass Media Bureau announced that it would accept LPFM applications in five separate filing windows, each limited to an application group of ten states and at least one other U.S. jurisdiction, in order to “ensure the expeditious implementation of the LPFM service and to promote the efficient use of Commission resources.” See FCC Announces Five-Stage National Filing Window for Low Power FM Broadcast Station Applications, DA 00-621 (MMB rel. Mar. 17, 2000). The Commission conducted a lottery to determine the order of the application groups, and the Mass Media Bureau announced that the first LPFM filing window would open on May 30, 2000. Subsequent filing windows opened on August 28, 2000, January 16, 2001, and June 11, 2001. The fourth and fifth LPFM application groups were consolidated into a single window in order to speed the filing process for applicants in these states.

4. On reconsideration in September 2000, the Commission issued some revisions and clarifications, but generally affirmed the decisions reached in the Report and Order. See 65 FR 67289, November 9, 2000. The Making Appropriations for the Government of the District of Columbia for FY 2001 Act ( 2001 DC Appropriations Act ), Pub. L. 106-553 632, required the Commission to modify its rules to prescribe LPFM station third-adjacent channel spacing standards and to prohibit any applicant from obtaining an LPFM station license if the applicant previously had engaged in the unlicensed operation of a station. As a result of rule revisions adopted pursuant to the 2001 DC Appropriations Act, facilities proposed in a number of otherwise technically sufficient applications filed in the first two LPFM filing windows became short-spaced to existing full-power FM and/or FM translator stations, and were subsequently dismissed. The 2001 DC Appropriations Act also instructed the Commission to conduct an experimental program to evaluate whether LPFM stations would interfere with existing FM stations if the LPFM stations were not subject to the additional channel spacing requirements, and to submit a report to Congress, including the Commission's recommendations to Congress regarding reduction or elimination of the minimum separations for third-adjacent channels. The Commission selected an independent third party, the Mitre Corporation (Mitre), to conduct the field tests. On February 19, 2004, the Commission staff submitted the required report to Congress and, based on the Mitre study, recommended that Congress “modify the statute to eliminate the third-adjacent channel distant separation requirements for LPFM stations.”

5. On February 8, 2005, the Commission held a forum on LPFM. The forum was intended to inform the Commission of achievements by LPFM stations and the challenges faced as the service marks its fifth year. As of March 2005, more than 1,175 LPFM construction permits have been granted. Of these 1,175 permits, approximately 590 stations are on the air, serving mostly mid-sized and smaller markets.

6. Since the LPFM service was created, the experiences of LPFM applicants, permittees, and licensees have demonstrated that the Commission's LPFM rules may need some adjustment in order to ensure that the Commission maximize the value of the LPFM service without harming the interests of full-power FM stations or other Commission licensees. The Commission's actions in this FNPRM, based in part on testimony received at the LPFM forum, are designed to increase the number of LPFM stations on the air and strengthen the viability of those stations that are already operating. The Commission seeks comment on a number of technical and ownership issues related to LPFM.

7. In ex parte meetings and filings and at the recent LPFM forum hosted by the Commission, members of the LPFM community have urged the Commission to revise certain LPFM rules. Five years after the establishment of LPFM, the Commission believes it is now appropriate to assess the practical ramifications of the LPFM rules. The Commission believes that some of the LPFM community's proposals are appropriate for further consideration, and seeks comment on them as discussed below.

8. In the Report and Order, the Commission declined to allow the sale of LPFM stations. The Commission determined that a prohibition on transfers or assignments of construction permits and licenses for LPFM stations would best promote the Commission's interest in ensuring spectrum use for low power operations as soon as possible, without the delay associated with license speculation. The Commission concluded that the goals of the LPFM service would be best met if unused permits and licenses were returned to the Commission. 47 CFR 73.865 provides that “[a]n LPFM authorization may not be transferred or assigned except for a transfer or assignment that involves: (1) Less than a substantial change in ownership or control; or (2) An involuntary assignment of license or transfer of control.” Based on forum testimony, ex parte presentations, and requests for waiver of section 73.865 filed with the Media Bureau's Audio Division, the Commission now believes that the rule prohibiting transfer or assignment of LPFM construction permits or licenses may be unduly restrictive and may hinder, rather than promote, LPFM service. The Commission therefore seeks comment on whether to permit the transfer and/or assignment of LPFM authorizations and, if so, whether transfer or assignment should be broadly permitted or limited to special circumstances. The Commission also seeks comment on the effect, if any, of a change in transferability with respect to ownership amendments to pending LPFM new and major change applications.

9. First, the Commission seeks comment on whether to amend its rules to permit the transfer of control of LPFM licensee entities. If the Commission permits the transfer of control of LPFM licensees, should any restrictions be imposed on such transfers, beyond the requirement that the licensee entity continue to meet the LPFM eligibility criteria? The Commission seek comment regarding the types of organizational structures utilized by LPFM licensees and how transfers of control of LPFM licensees, if permitted, would be effectuated. For example, are LPFM licensees likely to undergo transfers of control by virtue of changes in governing boards, shifting composition of membership bodies, acquisition of a licensee by another organization, or other means? Because the question has been raised frequently on the record, the Commission seeks comment more specifically on whether and how to amend our rules to permit the transfer of control of an LPFM licensee in the case of a sudden change in the majority of a governing board. On reconsideration in 2000, the Commission clarified that the gradual change of a governing board or membership body to the point that a majority of its members are new since the authorization was granted will not, by itself, constitute a prohibited transfer of control. The Commission's rules, however, do not permit a sudden change in the board or membership of an LPFM licensee, which would constitute an impermissible transfer of control. Several panelists at the recent LPFM forum testified that this restriction causes unnecessary complications for LPFM licensees. The Media Access Project (MAP) has requested that the Commission modify its rules so that typical board changes on a non-profit board will be permissible under the Commission's rules. Prometheus Radio Project (Prometheus) argues that if the LPFM service is to be accessible to community groups, its regulations must take into account that changes in governing boards are part of the nature of existence of such groups. Based on the record, the Commission proposes to amend its rules to permit changes of more than 50 percent of the membership of governing boards that occur suddenly, in addition to the gradual board changes that are currently permitted under the rules. The Commission seeks comment on this proposal.

10. Similarly, the Commission seeks comment on whether to amend the rules to permit the assignment of LPFM authorizations from the licensee to another entity. If LPFM authorizations may be assigned and control of LPFM licensees may be transferred, should the Commission allow consideration for these transactions? In short, should the Commission permit the sale of LPFM stations? If so, should the Commission establish a holding period during which a station may not be sold at all, or may not be sold for more than the licensee's legitimate and prudent expenses? The Commission seeks comment below on whether to permanently restrict eligibility for LPFM authorizations to local entities and/or permanently prohibit multiple ownership of LPFM stations and how any actions in that regard should affect assignments and transfers.

11. Finally, assuming that the Commission amends the rules to permit transfer and/or assignment of LPFM authorizations, what procedures should be implemented to ensure the integrity of the process and the promotion of local service? Can general guidelines be established for the transfer of control or assignment of LPFM stations, or should the Commission delegate to the Media Bureau authority to review proposed transfers and assignments on a case-by-case basis? In particular, the Commission seeks comment on the process by which LPFM permittees and licensees may request approval for or report transfers of control. For LPFM licensees with a traditional corporate organizational structure, should the Commission apply the rules governing transfers of control of stock corporations? (With respect to traditional corporations, the Commission has developed general guidelines for determining where control resides, what constitutes a transfer of control, and how permittees and licensees may seek approval of such transfers). Given the non-profit nature of LPFM licensees, it is likely that many LPFM authorizations are held by non-stock corporations. The Commission has never formally adopted a policy setting forth a clear standard for transfers of control by non-stock corporations. In 1989, the Commission issued a notice of inquiry ( NOI ) regarding transfers of non-stock corporations, but the proceeding did not reach the rulemaking stage. Nevertheless, this notice of inquiry may provide helpful guidance in establishing the process by which the Commission will consider transfers of control of LPFM licensees, if such transfers are permitted. In the NOI, the Commission proposed that gradual changes in the governing boards of membership organizations and governmental entities—even if the changes ultimately resulted in the replacement of a majority of the original board members—would not be considered transfers of control within the meaning of the Act, and would need to be reported only as appropriate on the licensee's ownership reports. This approach is consistent with the Commission's clarification regarding LPFM stations on reconsideration in 2000. Under the proposal in the NOI, a sudden change in a majority of the governing board of a membership organization or governmental entity would be considered an insubstantial transfer of control, subject to a modified “short form” consent procedure, including the filing of an FCC Form 316. The Commission seeks comment on whether to adopt a similar approach for changes in governing boards of LPFM licensees that are non-stock entities.

12. As discussed in detail above, the current rule prohibiting the transfer of LPFM stations is hampering the LPFM service by, for example, impeding routine transitions to new governing boards and limiting the ability of an LPFM licensee to assign its license to a new, jointly-controlled entity composed of several similarly focused organizations. Introducing some level of transferability to the LPFM service is critical, and delaying relief to LPFM stations until this proceeding is completed will not serve the public interest. Accordingly, the Commission delegates to the Media Bureau authority to consider, on a case-by-case basis, requests for waivers of 47 CFR 73.865. The Media Bureau may grant a waiver upon determination that such waiver will maximize spectrum use for low power FM operations. For example, waiver may be appropriate, assuming the public interest would be served, in certain circumstances: a sudden change in the majority of a governing board with no change in the organization's mission; development of a partnership or cooperative effort between local community groups, one of which is the licensee; and transfer to another local entity upon the inability of the current licensee to continue operations. This is not an exhaustive list of circumstances appropriate for waiver. However, until the Commission has further considered the transferability issue, waiver is not appropriate to permit the for-profit sale of an LPFM station to any entity or the transfer of an LPFM station to a non-local entity or an entity that owns another LPFM station.

13. In the Report and Order, the Commission placed certain restrictions on LPFM ownership for the first two years after the opening of the first filing window for the LPFM service. First, for the first two years, no entity may own more than one LPFM station. After the first two years, one entity may own up to five stations nationally, and after the first three years, an entity may own up to ten stations nationwide. No entity may own more than 10 LPFM stations. Second, for the initial and subsequent windows opened within two years of the first filing window for LPFM, all LPFM applicants were required to be based within 10 miles of the station they sought to operate. Beginning two years after the first window for LPFM service opened, non-local applicants were eligible to apply for LPFM stations. UCC requests that the Commission permanently prohibit multiple ownership and either permanently restrict eligibility to local entities or extend the restriction for an additional period of time.

14. The Commission adopted these rules in order to foster diversity and to maximize the opportunities for applicants to obtain LPFM authorizations by disallowing any common ownership of LPFM stations during the start-up of the service. After the start-up phase was over, however, the Commission allowed the accumulation of additional stations where local applicants had not applied. The Commission stated in the Report and Order that, in addition to ensuring the fullest use of LPFM spectrum in the long term, this approach would balance the interests of local entities, whom the Commission expected to be the first entrants in the service, and national NCE entities, which the Commission anticipated would be interested in additional local outlets to increase their reach and achieve certain efficiencies of operation. Our intention was to make it more likely that local entities would operate this service, but to ensure that if no local entities came forward, the available spectrum would not go unused. On reconsideration, the Commission considered a request from UCC to extend the two-year time periods for the community-based requirement and the national cap, and concluded that the Report and Order struck an appropriate balance between the interests of local groups and the Commission's interest in ensuring that the LPFM service is used fully. Accordingly, the Commission declined to modify these rules at that time.

15. Now that more than two years has passed since the first set of LPFM filing windows, the Commission seeks comment regarding whether to amend the rules to reinstate for a period of time or make permanent the restrictions regarding local entities and multiple ownership. Would a continued limitation on multiple ownership foster diversity of programming and viewpoint or would it prevent LPFM licensees from achieving economies of scale? Does an eligibility restriction for local entities ensure local service for listeners or might it result in some communities losing LPFM service because no local entity seeks to provide it? Should the Commission permanently restrict eligibility to local entities but grant a waiver of such restriction in cases in which the applicant can demonstrate that no local entity has sought to provide service? The Commission further seeks comment regarding the relationship between any such restrictions and our consideration regarding transferability of LPFM stations. Specifically, if the Commission makes permanent the local entity eligibility restriction and the prohibition on multiple ownership, how should such limitations be considered in the context of applications for assignment or transfer of control of LPFM stations, discussed above?

16. In the Report and Order, the Commission established a point system for resolving mutual exclusivity among LPFM applicants. If mutually exclusive applicants have the same point total, any two or more of the tied applicants may propose to share use of the frequency by submitting a time-share proposal within 30 days of the release of a public notice announcing the tie. Such proposals are treated as amendments to the time-share proponents' applications and become part of the terms of the station's license. MAP asserts that because LPFM applicants have few resources, the 30-day deadline for the submission of a time-share proposal is too short. MAP has requested that the Commission extend the submission deadline to 90 days from the date a mutually exclusive group is announced. The Commission agrees that 30 days may not afford sufficient time for two or more small organizations to commence and complete negotiations and prepare a time-share proposal for the Commission's consideration. Accordingly, the Commission proposes to extend the period to 90 days and seeks comment on this proposal.

17. If a tie among mutually exclusive applications is not resolved through time-sharing, the tied applications are reviewed for acceptability and applicants with tied, grantable applications are eligible for equal, successive, non-renewable license terms of no less than one year each for a total combined term of eight years. In the Report and Order, although LP100 and LP10 licensees were provided with the same license terms and renewal expectancy as full-power FM radio stations, the Commission determined not to extend a renewal expectancy to licenses granted under these final tie-breaker procedures. The Commission now believes that the public interest would be better served by permitting the renewal of viable time-share arrangements, rather than subjecting operating stations to the uncertainty of window filing schedules and the risks of the LPFM comparative process. Accordingly, the Commission tentatively proposes to permit the renewal of licenses granted under involuntary time-sharing successive license term procedures. The Commission seeks comment on this proposal and the means of implementing such renewal expectancy. Should licenses be renewed in the same order as they are granted, i.e. , the sequence in which the parties file applications for licenses to cover their construction permits? Increased flexibility in transferability of LPFM licenses, combined with a renewal expectancy, may result in involuntary time-sharing licensees modifying their time-sharing arrangements prior to seeking renewal. The Commission seeks comment on how best to accommodate such developments in the renewal process.

18. In the Report and Order, the Commission established an 18-month construction period for both LP10 and LP100 services. The Commission believed that most permittees would be able to and would have sufficient incentive to construct their low power stations in a much shorter time period than other broadcast permittees, given the relative technical simplicity of such stations. The Commission recognized, however, that zoning and permitting processes could, in some cases, delay construction. Accordingly, the Commission afforded permittees 18 months to construct, and stated that the 18-month deadline would be strictly enforced. The Commission is aware that some LPFM permittees have met the construction deadline only with great difficulty, and that some have been unable to complete construction within the 18-month period. MAP has requested that the Commission waive or extend construction deadlines to avoid forfeit of LPFM construction permits for failure to construct. However, the Commission's current policy regarding all broadcast station construction deadlines is to extend such deadlines only in extremely limited situations that dictate the tolling of the construction period: Acts of God; administrative or judicial review of a construction permit grant; failure of a Commission-imposed condition precedent on the permit; or judicial action related to necessary local, state, or federal requirements. See 47 CFR 73.3598. Thus, although some LPFM permittees may face delays that are outside of their control, if such delays do not qualify under the tolling rules, a permittee must either complete construction or forfeit the permit. The policy regarding extension of broadcast station construction deadlines generally serves the public interest. The Commission recognizes, however, that the LPFM 18-month construction period may be too short in some cases. The Commission's intention is to maximize the likelihood that LPFM permittees will get on the air. Accordingly, the Commission proposes to extend the LPFM construction period to three years, the same period afforded other broadcast permittees, and seeks comment on this proposal.

19. Some LPFM construction permits are scheduled to expire in the near future, while the Commission is considering this issue, and other LPFM permittees with expired permits have requests pending before the Media Bureau for additional time to construct. The Commission adopts an interim waiver policy to increase the likelihood that these permittees will complete construction and commence operation. Although the rules do not generally permit waiver of broadcast construction permit deadlines, all other broadcast permittees are afforded 36 months to construct facilities. See 47 CFR 73.3598. Here, where the construction period is half as long, the Commission finds that waivers generally are warranted to extend outstanding LPFM construction permits to three years. Pending Commission action on this FNPRM, the Commission delegates to the Media Bureau the authority to consider requests for waiver of the construction period even if the requirements under the tolling rules are not met. The Media Bureau may determine that a waiver is appropriate if an LPFM permittee demonstrates that it cannot complete construction within the allotted 18 months for reasons beyond its control, that it reasonably expects to be able to complete construction within the additional 18 months that the construction extension would provide, and that the public interest would be served by the extension.

20. In the Order on Reconsideration accompanying this FNPRM, the Commission amends 47 CFR 73.871 to permit greater flexibility for applicants to file minor amendments to relocate transmitter sites. However, the amended rule will continue to preclude time-sharing applicants from relocating the transmitter to a central location, unless such location falls within the new distance limits. UCC has requested that the Commission amend its rules to allow applicants that submit a time-share agreement to relocate the transmitter to a central location, provided one is available in the channel finder. The Commission agrees that increasing flexibility for time-sharing applicants to relocate the transmitter will facilitate time-share arrangements and expedite grant of LPFM licenses. Accordingly, the Commission proposes to permit applicants that submit a time-sharing proposal to file a minor amendment proposing to relocate the transmitter to a central location, notwithstanding the site relocation limits set forth in 47 CFR 73.871, and seeks comment on this proposal.

21. As part of the overall plan to protect FM stations from interference from new LPFM stations, the Report and Order adopted minimum distance separation requirements for LPFM stations. The Commission concluded that minimum spacing rules would provide the most efficient means to process a large number of applications while ensuring the overall technical integrity of the FM service. Because FM translator and booster stations generally do not have specific class limitations, LPFM-FM translator separation requirements were determined by analyzing the 60 dBu contours of authorized translator stations and grouping them into three cohorts based on station power and height. The Report and Order also amended certain part 74 rules to require that FM translator and booster stations protect the 60 dBu contour of LP100 stations. On reconsideration, the Commission stated that the interference protections “place LPFM stations and FM translators on essentially equal footing” with respect to protecting each other from interference. However, Commission policy treats translators as a secondary service and a “proper role of FM translators among aural services to the public is to provide secondary service to areas in which direct reception of signals from FM broadcast stations is unsatisfactory due to distance or intervening terrain obstructions.” The Commission declined on reconsideration to eliminate the protections afforded to LP100 stations because such modifications would have rendered LPFM stations secondary to translators.

22. LPFM advocates now request that the Commission reassess the relationship between FM translators and LPFM stations for licensing purposes. Prometheus argues that because NCE translators may be fed by satellite, see 47 CFR 74.1231(b), such translators often are used to retransmit distant signals, contrary to the intended purpose of the translator service to merely extend the reach of local stations. Prometheus contends that every new translator that does not expand the reach of a station originating local programming takes the place of a potential LPFM station that will originate local programming. In particular, Prometheus argues that the Commission's March 2003 filing window for translator applications opened in major cities before a full LPFM filing window opened, thereby eliminating virtually all opportunities for new LPFM stations in top-25 markets. Prometheus also claims that translator applications are being filed not by members of local communities, but by non-local organizations applying for large numbers of translator licenses. To overcome the preclusive impact of the 2003 translator window, Prometheus requests that the Commission give locally controlled and operated LPFM stations priority over translators.

23. The Commission agrees that it is appropriate to reevaluate the current co-equal status of LPFM and FM translator stations as a result of the extraordinary volume of FM translator construction permit applications—more than 13,000—filed with the Commission during the March 2003 filing window. The Media Bureau's Audio Division already has granted approximately 3,300 new station construction permit applications from the singleton filings, a number nearly equal to the total number of FM translator stations licensed and operating prior to the filing window. Approximately 8,000 applications remain on file. New LPFM station applications must protect each of these authorized facilities and pending applications. Because LPFM and FM translator stations are licensed under fundamentally different technical rules, it is impossible to determine the precise extent to which the 2003 window-filed FM translator applications have impacted the potential licensing of new LPFM stations. In this regard, Prometheus's contention that every new translator “takes the place” of a potential LPFM station is incorrect. Nonetheless, the Commission is confident that these filings have had a significant preclusive impact on future LPFM licensing opportunities based solely on application volume. This impact is of particular concern because the 2000-2001 national LPFM window filing process demonstrated that very few opportunities for LPFM stations remained in major markets at that time. Moreover, as Prometheus notes, many of the translator applications were filed by a relatively small number of non-local filers without any apparent connection to the communities specified in the applications.

24. On the other hand, “translator-based delivery of broadcast programming is an important objective,” and the Commission continues to support this objective. Some FM translators provide important aural services to unserved and underserved areas. Translators also are used to deliver syndicated national programming to well-served communities. The Commission's rules impose strict ownership limits on commercial translator licensees, see 47 CFR 74.1232(d), and require the use of off-air signal delivery systems, see 47 CFR 74.1231(b), for both commercial and NCE translators operating in the non-reserved FM band. (The March 2003 window was limited to proposals for non-reserved band stations, none of which may rebroadcast signals delivered direct to the station via satellite; thus, the Commission finds misplaced Prometheus's attempt to link the “problem” of the 2003 window to the satellite delivery rules). These rules generally prohibit a commercial FM station from using translators to expand service beyond its protected contour. In contrast, an NCE licensee may own and operate translators that reach listeners far beyond the service area of its co-owned primary station. Thus, many NCE licensees use FM translators to distribute programming throughout the country. Notwithstanding Prometheus's complaint regarding non-local filers in the March 2003 translator window, this is not a recent development in the FM translator service.

25. In a notice of inquiry in the broadcast localism proceeding, the Commission sought comment on how best to harmonize the licensing processes for FM translators and LPFM stations to enhance localism. See 19 FCC Rcd 12425. As the Commission asked, “[r]ecognizing that both LPFM stations and translators provide valuable service, what licensing rule changes should the Commission adopt to resolve competing demands by stations in these two services for the same limited spectrum?” The Commission seeks comment on whether and, if so, under what conditions LPFM applications should be treated as having “primary” status to prior-filed FM translator applications and authorized FM translator stations. Should all LPFM applications have primary status because LPFM stations are permitted to originate local programming? Should primary status be limited to LPFM applicants that pledge to originate locally at least eight hours of programming per day? Should the Commission provide “grandfathered” protection rights to certain classes of FM translators? Possible class designations include currently licensed and operating stations; stations licensed prior to the adoption of the Report and Order; currently authorized translator stations, including the construction permits issued to the 2003 window filers; and/or “fill-in” FM translators but not “other area” translator stations. Should the Commission dismiss all pending applications for new FM translator stations and make potential refilings subject to the resolution of the licensing issues raised in this proceeding? Should the Commission dismiss the pending mutually exclusive FM translator applications? As an interim measure while considering these important questions, the Commission directs the Media Bureau to stop granting FM translator new station construction permits for which short-form applications were filed in the 2003 window. This freeze is effective upon the release of this FNPRM and shall remain in effect for six months.

26. In addition to requesting that the Commission grant LPFM stations priority with respect to FM translators, some LPFM advocates have requested that the Commission adopt more flexible technical licensing rules for the LPFM service as a partial remedy to the preclusive impact of the FM translator filings and limited LPFM spectrum availability in many large and medium-sized communities. Specifically, they have requested that LPFM applicants be permitted to utilize the contour overlap interference protection approach, rather than mileage separations. Adoption of a contour overlap approach is statutorily barred at this time. Congress has mandated the use of a distance separation methodology to protect FM stations from LPFM station interference by directing the Commission to prescribe co-, first-, second-, and third-adjacent channel “minimum distance separations” for LPFM stations. Thus, the Commission may not use the fundamentally different contour methodology to license LPFM stations.

27. Even if the Commission were not statutorily prohibited from adopting a contour approach, significant policy considerations weigh in favor of continuing to license LPFM stations in accordance with the minimum distance separation methodology adopted in the Report and Order . This protection scheme is modeled on the certain “go-no go” predicted interference licensing methodology utilized for commercial FM stations. Although this methodology is more restrictive than the FM translator contour methodology, implementation of LPFM minimum distance separation requirements has proven to be simple and reliable, and therefore appropriate for the LPFM service. Because adoption of a contour methodology would require the preparation of complex and costly engineering exhibits, such approach would inevitably result in higher application error rates, extended processing time frames, and licensing delays. The Media Bureau has processed over 3000 applications from the first LPFM window. At this point, it is abundantly clear that many LPFM applicants had significant problems successfully preparing basic technical showings, completing simplified application forms, and responding to staff requests for required amendments. Excluding the Congressionally mandated dismissals of applications that failed to protect full service stations operating on third-adjacent channels, the staff dismissed approximately one-third of all applications for basic technical and legal defects. The Commission believes that the more complex contour methodology would create even more processing problems. In addition, the choice of a distance separation methodology was critically important in the Audio Division's development of the extremely accessible and successful LPFM channel finder tool utility.

28. An equally important policy consideration is that an integral part of the more flexible translator rules, 47 CFR 74.1203(a), would be wholly inappropriate for the LPFM service. Under this rule, an FM translator may not cause any actual interference to any authorized broadcast station. (In contrast, an LPFM station may continue to operate when it would cause interference within the 60 dBu contour, but not 70 dBu contour, of a full service FM station; in addition, if an LPFM station is predicted to cause interference within a full service station's 70 dBu contour, it may continue to operate if it can show that actual interference would be unlikely). This rule is a necessary complement to the more flexible translator contour rule, essentially shifting to translator applicants, permittees, and licensees the risk that a translator must go off the air if interference cannot be eliminated. The 47 CFR 73.1203(a) interference complaint procedure regularly results in the cancellation of FM translator authorizations by the Media Bureau. The risks associated with a rule prohibiting any interference, such as the rule applicable to translators, far outweigh the potential benefit of additional LPFM licensing opportunities that use of the contour method might afford. The Commission believes that it would be inappropriate to expose community organizations with limited funds and little technical and legal sophistication to this kind of uncertainty, particularly given the effort invested by organization members, station management, and numerous volunteers. Given the high level of uncertainty associated with the more flexible translator allocation scheme, adoption of this approach for LPFM seems ill-advised in light of the interest expressed by many LPFM operators for greater “primary” status and for greater protection against “encroachments” from new full power stations and facility modifications by existing stations.

29. Full-service FM stations, including subsequently authorized new stations, facility modifications, and upgrades, are not required to protect facilities specified in LPFM applications or authorizations. In order to provide a measure of stability to operating LPFM stations, however, the Commission concluded in the Report and Order that an LPFM station generally may continue to operate even if it is predicted to cause interference within the protected service contour of a subsequently authorized FM service, including new stations and facilities modifications or upgrades of existing stations. Under 47 CFR 73.809, LPFM stations are responsible for resolving all allegations of actual interference to the reception of a co-channel or first-, second-, or third-adjacent channel full service station within the full service station's 70 dBu contour. This rule requires an LPFM station to cease operations if the LPFM station cannot demonstrate that interference is unlikely to occur.

30. Although to date only one LPFM station has been forced off the air pursuant to this procedure, operating LPFM stations have expressed concerns about the potential impact of “encroaching” full-service stations. MAP has requested that the Commission adopt a “processing policy” that would permit the denial of a full service FM station's modification application if “grant of the application will deny a local community content by reducing the coverage area available to LPFM stations.” Such an ad hoc processing policy would afford any degree of certainty to operating LPFM stations. Moreover, the Commission disagrees with the basic thrust of this proposal, which effectively would provide primary status to LPFM stations with respect to subsequently filed applications for new or modified full service station facilities. As stated in the Report and Order , “[w]e do not believe that an LPFM station should be given an interference protection right that would prevent a full-service station from seeking to modify its transmission facilities or upgrade to a higher service class. Nor should LPFM stations foreclose opportunities to seek new full-service radio stations.” It would be useful, however, to consider whether to limit the 47 CFR 73.809 interference procedures to situations involving co- and first-adjacent channel predicted interference, where the predicted interference areas are substantially greater than for second- and third-adjacent channel interference. Although the effective service area of an LPFM station could be diminished as a result of a second-or third-adjacent channel full service station “move-in,” the predicted interference area to the full service station would be limited to a small area in the immediate vicinity of the LPFM station transmitter site. In these circumstances, the public interest may favor continued LPFM second- and third-adjacent channel operations over a subsequently authorized upgrade or new full service station.

31. The Commission seeks comment on whether to amend 47 CFR 73.809. Should an LPFM station be permitted to continue to operate even when interference is predicted to occur within the 70 dBu contour of an “encroaching” second-or third-adjacent channel full service station? Should an LPFM station be permitted to remain on the air if the area of predicted interference does not receive service from the full service station prior to the grant of a construction permit for a new station or facilities modification of an existing station? Should the LPFM station be permitted to remain on the air if the full service station's community of license would not be subject to predicted interference? It is always the case that an “encroachment” issue involves the licensing of a subsequently filed full service station application. As such, would an amendment to 47 CFR 73.809 be consistent with Congress's directive barring the reduction of third-adjacent channel distance separations for “low-power FM radio stations”?

32. The Commission has not announced any upcoming filing windows for new or major change LPFM applications. MAP requests that the Commission establish “regular” filing windows for new LPFM stations. Currently, all licensable aural services use some form of a window filing process for new stations and for major modifications to authorized stations. As a general matter, the Commission agrees that windows should be scheduled at reasonable intervals for each of the aural services. However, it would be premature to schedule a window for the filing of LPFM new station and major modification applications at this time. First, it would be inefficient to open a window prior to the Commission completing consideration of the FM translator and other licensing issues raised in this FNPRM . Second, the Media Bureau has recently begun the process of awarding construction permits under the new NCE full-service comparative criteria. Following the resolution of the approximately 170 “closed” NCE groups (consisting of approximately 870 applications), the Commission will open a national filing window for new NCE stations and for major changes in authorized NCE facilities, the first such filing opportunity since April 21, 2000. Although the Commission recognizes the critically valuable service that LPFM stations can play in serving their communities, this NCE full service licensing process must remain a higher priority at this time. The Commission intends to proceed in a manner that takes into account the limited staff resources that can be devoted to processing applications for service in the FM band. This approach will, in the long run, permit the more prompt processing of applications filed in the next LPFM window, a goal endorsed by numerous LPFM advocates.

33. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this FNPRM . Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the FNPRM , and they should have a separate and distinct heading designating them as responses to the IRFA. The Commission will send a copy of the FNPRM , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a).

34. Since the LPFM service was created in 2000, the experiences of LPFM applicants, permittees, and licensees have demonstrated that the Commission's LPFM rules may need some adjustment in order to ensure that the Commission maximizes the value of the LPFM service without harming the interests of full-power FM stations or other Commission licensees. In this FNPRM , the Commission seeks comment on a number of technical and ownership issues related to LPFM. The Commission believes this proceeding will result in an improved LPFM service, while maintaining the integrity of the FM service.

35. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. See 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” small organization,” and “small government jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the SBA. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

36. The Small Business Administration (SBA) defines a radio broadcasting station that has $5 million or less in annual receipts as a small business. See 13 CFR 121.201. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. The 1992 Census indicates that 96 percent (5,861 of 6,127) of radio station establishments produced less than $5 million in revenue in 1992.

37. The Commission's LPFM rules apply to a new category of FM radio broadcasting service. As of the date of release of this FNPRM , the Commission's records indicate that more than 1,175 LPFM construction permits have been granted. Of these 1,175 permits, approximately 590 stations are on the air, serving mostly mid-sized and smaller markets. It is not known how many entities ultimately may seek to obtain low power radio licenses. Nor does the Commission know how many of these entities will be small entities. The Commission expects, however, that due to the small size of low power FM stations, small entities would generally have a greater interest than large ones in acquiring them.

38. The FNPRM seeks comment on a number of technical and ownership issues related to LPFM. The potential reporting requirements that could be adopted include: (i) applications to be filed to seek authority for assignment of an LPFM station or transfer of control of an LPFM permittee or licensee; (ii) waiver requests for assignment of an LPFM station or transfer of control of an LPFM permittee or licensee, pending the Commission's consideration of the issues raised in the FNPRM ; (iii) forms to be filed by new applicants or proposed assignees or transferees to demonstrate local eligibility and/or compliance with a multiple ownership prohibition; (iv) renewal applications to be filed by involuntary time-share licensees; (v) waiver requests for extension of an LPFM construction period; and (vi) applications to be filed seeking approval to centrally relocate a transmitter site in the case of a voluntary time share proposal.

39. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. See 5 U.S.C. 603(c)(1)-(c)(4).

40. The LPFM service has created and will continue to create significant opportunities for new small businesses. In addition, the Commission generally has taken steps to minimize the impact on existing small broadcasters. To the extent that rules proposed in the FNPRM would impose any burdens on small entities, the Commission believes that the resulting impact on small entities would be favorable because the proposed rules, if adopted, would expand opportunities for LPFM applicants, permittees, and licensees to commence broadcasting and stay on the air.

41. The Commission will send a copy of this FNPRM in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

42. Permit-But-Disclose. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under 47 CFR 1.1206(b). 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. Additional rules pertaining to oral and written presentations are set forth in 47 CFR 1.1206(b).

43. Comments and Replies. Pursuant to 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before 30 days after publication in the Federal Register and reply comments on or before 45 days after publication in the Federal Register . 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.

44. 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.

45. 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 the Commission continues 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.

46. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to Cathy.Williams@fcc.gov , and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503, via Internet to Kristy_L.LaLonde@omb.eop.gov , or via fax at 202-395-5167.

47. 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.

48. 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 .

For the reasons discussed in the preamble, the FCC proposes to amend 47 CFR part 73 as follows:

We proposed to designate for the southwestern willow flycatcher approximately 376,095 acres (ac) (152,124 hectares (ha)) [including approximately 1,556 stream miles (2,508 stream kilometers)] of critical habitat, which includes various stream segments and their associated riparian areas, not exceeding the 100-year floodplain or flood-prone area, on a combination of Federal, State, tribal, and private lands in southern California, southern Nevada, southwestern Utah, south-central Colorado, Arizona, and New Mexico. The proposed rule was published in the Federal Register (69 FR 60705) on October 12, 2004, pursuant to a court order.

On September 30, 2003, in response to a complaint brought by the Center for Biological Diversity, the U.S. District Court of New Mexico instructed us to propose critical habitat by September 30, 2004, and publish a final rule by September 30, 2005. Additional background information is available in the October 12, 2004, proposal to designate critical habitat.

Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. During the comment period we anticipate receiving Tribal conservation plans and conservation plans from local government entities with authority over areas covered under the proposed designation. We note that areas covered under such plans, received during the comment period, will be considered for exclusion in the final rule pursuant to section 4(b)(2) of the Act. Additionally, as noted in our proposal, we will consider excluding, pursuant to section 4(b)(2) of the Act, (1) legally operative Habitat Conservation Plans (HCPs) that cover the species and provide assurances that the conservation measures for the species will be implemented and effective, as well as draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective ( i.e. , pending HCPs), (2) National Wildlife Refuges with Comprehensive Conservation Plans (CCPs) or conservation programs that provide assurances that the conservation measures for the species will be implemented and effective, (3) water systems that provide flood control or water supply benefits, and (4) tribal lands.

Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment period upon finding that there is good cause to do so. In our proposed rule, we withheld our determination of whether this designation would be in compliance with certain Executive orders and statutes until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination. This notice serves to provide the factual basis for this determination, as outlined below. We deem this consideration as sufficient cause to reopen the comment period.

We are required by court order to complete the final designation of critical habitat for the southwestern willow flycatcher by September 30, 2005. To meet this date, all comments on or proposed revisions to the proposed rule need to be submitted to us by July 18, 2005 (see DATES ).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the southwestern willow flycatcher will result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.

Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, then the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweighs the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. As noted above, in our proposed rule we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if this proposed designation of critical habitat for the southwestern willow flycatcher would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities ( e.g. , water management and supply, livestock grazing, land development, recreation). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.

If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our economic analysis of this proposed designation we evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in four categories: Water management and supply activities, livestock grazing, land development, and recreation. The following summary of the information contained in Appendix A of the draft economic analysis provides the basis for our determination.

Under one scenario analyzed in the draft economic analysis, water operators are assumed to be required to change their management regimes to avoid adverse affects to southwestern willow flycatcher habitat, resulting in a loss of water for beneficial use ( i.e. reservoir pools will be limited to current levels in order to avoid inundation of southwestern willow flycatcher habitat). Facilities assessed under this scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant Valley Reservoir, Isabella Dam, Hoover Dam, Parker Dam, Alamo Dam, Roosevelt Dam, and Horseshoe Dam. Under this scenario, it is expected that this economic cost will result in higher water prices to commercial and residential users; however, we find that no small businesses are directly impacted under this scenario.

Some water users may be more directly affected by changes in water supply that could occur as a result of southwestern willow flycatcher conservation activities, specifically, agricultural users dependent on the drought reserves provided by these systems. Appendix A of the draft economic analysis provides a profile of the agricultural users that are at greatest risk from direct losses in water supply under this scenario. The four water systems that provide water to agricultural users include Lake Isabella (including the North Kern Water Storage District, the Buena Vista Storage District, and the City of Bakersfield Water Resources Department); Roosevelt and Horseshoe (the Salt River Project operates six reservoirs and dams on the Salt and Verde Rivers); Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River (water from the Colorado River is diverted to six States and is used for every purpose, including agricultural uses).

Impacts to livestock grazing include an estimated reduction in the level of grazing effort within the proposed designation of 89,300 AUM (animal unit months), of which 1,300 are federally permitted, and 88,000 are on private lands. The AUM reduction could represent approximately 1 percent of AUMs for each of 105 affected ranchers holding Federal grazing permits in the proposed designation cumulatively over 20 years. On non-Federal lands, impacts on grazing efforts are more uncertain, since maps describing the overlap of privately grazed lands and the designation are not available. However, if each ranch affected is small, then 0 to 110 ranches cumulatively over 20 years could experience a total reduction in private lands grazing effort. We believe that this would represent approximately 0.3 percent of beef cow operations in affected States. However, we will continue to evaluate the potential economic impacts by determining the number of AUMs per region and the number of ranches per the region to determine if our assessment is accurate.

Impacts to development activities within the proposed designation include land value loss, other project modifications, California Environmental Quality Act costs, and project delay costs in the Mojave and Santa Ana Management Units in California. It was determined in the draft economic analysis that less than 1 percent of land developers will be affected, and 0.02 percent of annual revenues of small land developers in this area may be lost.

Impacts to recreation activities include limitations on vehicle use, fires, and cigarette smoking in two areas near Roosevelt Lake on the Tonto National Forest, and fewer trips to the area for hunting and fishing for a total annual impact of approximately 0.25 percent of annual small business revenues in Gila County.

Based on this data we have determined that this proposed designation would not affect a substantial number of small businesses involved in or affected by water management and supply activities, livestock grazing, land development, and recreation. Further, we have determined that this proposed designation would also not result in a significant effect to the annual sales of those small businesses impacted by this proposed designation. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities.

On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 due to it potentially raising novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Appendix B of the draft economic analysis provides a detailed discussion and analysis of this determination. Specifically, two criteria were determined to be relevant to this analysis: (1) reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity, and (2) increases in the cost of energy production in excess of 1 percent. The draft analysis finds that no net reduction in electricity production is anticipated, and thus we do not anticipate that the suggested OMB threshold of 1 billion kilowatt hours will be exceeded. In addition, total financial impacts related to southwestern willow flycatcher conservation activities ($2.7 million annually) represent 0.02 percent of the estimated annual baseline cost of regional energy production, and this is well below the 1 percent threshold suggested by OMB. Therefore, this action is not a significant action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) The economic analysis discusses potential impacts of critical habitat designation for the southwestern willow flycatcher on water management activities, administrative costs, livestock grazing, residential and commercial development activities, Tribes, transportation activities, recreation activities, and fire management activities. The analysis estimates that annual costs of the rule could range from $29.2 to $39.5 million annually using the most likely costs scenario. Impacts are largely anticipated to affect water operators and Federal and State agencies, with some effects on livestock grazing operations, land development activities, and recreation activities. Impacts on small governments are not anticipated, or they are anticipated to be passed through to consumers. For example, costs to water operations would be expected to be passed on to consumers in the form of price changes. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for the southwestern willow flycatcher will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the southwestern willow flycatcher in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the southwestern willow flycatcher does not pose significant takings implications.

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).

NMFS is charged with the recovery of Pacific salmon and steelhead species listed under the ESA. Recovery under the Act means that listed species and their ecosystems are restored, and their future secured, so that the protections of the ESA are no longer necessary.

There are 15 “distinct population segments” or ESUs of salmon and steelhead listed as threatened or endangered in Oregon, Washington, and Idaho:

Chinook Salmon ( Oncorhynchus tshawytscha ): Upper Willamette River; Lower Columbia River; Upper Columbia River Spring-run; Puget Sound; Snake River Fall-run; and Snake River Spring/Summer-run.

Chum Salmon ( Oncorhynchus keta ): Hood Canal summer-run; Columbia River.

Sockeye Salmon ( Oncorhynchus nerka ): Snake River; Ozette Lake.

Steelhead Salmon ( Oncorhynchus mykiss ): Upper Willamette River; Lower Columbia River; Middle Columbia River; Upper Columbia River; Snake River Basin.

NMFS has proposed to list Oregon Coast coho and the Lower Columbia River coho ESUs as threatened (69 FR 33102; June 14, 2004). If these ESUs are listed, they will be included in the Oregon Coast and Willamette/Lower Columbia River recovery planning efforts. Notice of recovery plans for the Southern Oregon/Northern California Coast coho ESU will be announced separately with other California ESUs.

The ESA requires that NMFS develop and implement recovery plans for the conservation and survival of endangered and threatened species. These recovery plans provide blueprints to determine priority recovery actions for funding and implementation. The ESA specifies that recovery plans must include: (1) a description of site-specific management actions as may be necessary to achieve the plan's goals for the conservation and survival of the species; (2) objective, measurable criteria, which when met, would result in the species being removed from the list; and (3) estimates of the time and costs required to achieve the plan's goal and achieve intermediate steps toward that goal. NMFS will take into consideration information provided during this comment period to prepare draft recovery plans.

In order to develop recovery plans that address multiple species in an ecosystem context, NMFS organized the listed and proposed ESUs in the Northwest into six recovery areas or “domains” (Puget Sound, Upper Columbia, Middle Columbia, Snake River, Oregon Coast, and Willamette/Lower Columbia). Each domain will have a recovery plan that addresses all listed salmon and steelhead ESUs within that area. While each recovery plan will meet the requirements of the ESA and will utilize consistent scientific principles, each plan also will be unique because of conditions in that domain and because it will be based on local initiatives such as the State of Washington's regional recovery boards, the Northwest Power and Conservation Council's subbasin plans and the State of Oregon's Oregon Plan for Salmon and Watersheds' Oregon Coast Coho Project. To develop key technical products and provide science support NMFS formed teams of scientists, called “Technical Recovery Teams” for: Puget Sound, Willamette/Lower Columbia, Interior Columbia, and Oregon Coast recovery domains. Finally, NMFS has developed a schedule for producing draft recovery plans in each recovery domain by December 2005. Because draft recovery plans will be based on local recovery planning efforts, the level of detail in these draft recovery plans completed by December will vary. After further local public review by federal agencies, state and tribal co-managers, and interested persons, NMFS will publish proposed recovery plans in the Federal Register and public comment will be sought for each proposed plan.

As part of its recovery planning process, NMFS published a Notice of Availability of a Draft Interim Regional Recovery Plan for Portions of Three ESUs of Salmon and Steelhead within the Washington Lower Columbia Management Unit (70 FR 20531; April 20, 2005). Public comment is being sought until June 20, 2005, on this draft regional recovery plan.

NMFS requests relevant information from the public that should be addressed during preparation of draft recovery plans. Such information should address: (1) criteria for removing the ESUs from the list of threatened and endangered species; (2) factors that are presently limiting, or threaten to limit survival of the ESUs; (3) actions to address limiting factors and threats; (4) estimates of time and cost to implement recovery actions; and 5) research, monitoring, and evaluation needs.