The Secretary of Agriculture is authorized by the Agricultural Marketing Act of 1946 (AMA), as amended (7 U.S.C. 1621, et seq. ), to provide voluntary Federal meat grading and certification services to facilitate the orderly marketing of meat and meat products and to enable consumers to obtain the quality of meat they desire. The AMA also provides for the collection of fees from users of the Federal meat grading and certification services that are approximately equal to the cost of providing these services. The hourly fees are established by equitably distributing the program's projected operating costs over the estimated hours of service—revenue hours—provided to users of the service on a yearly basis. Program operating costs include employee salaries and benefits, which account for 80 percent of the operating costs, with travel, training, and administrative costs making up the remainder. Periodically, the fees must be adjusted to ensure that the program remains financially self-supporting.

AMS regularly reviews its user-fee-financed programs to determine if the fees are adequate. The most recent review determined that the existing fee schedule for the MGC Branch would not generate sufficient revenues to recover operating costs for current and near-term periods while maintaining an adequate reserve balance. The operating loss for fiscal year (FY) 2005 totaled $1.8 million. Without a fee increase, the operating loss for FY 2006 is projected to be $1.1 million. These combined losses will deplete MGC Branch's operating reserve and place the MGC Branch in an unstable financial position that will adversely affect its ability to provide meat grading and certification services.

This proposal is necessary to offset decreased revenue hours and increased program operating expenses incurred since the last fee increase. The MGC Branch has lost revenue due to the implementation of more efficient audit-based and pilot certification programs and the continued consolidation within the livestock and meat industry. Audit-based and pilot certification programs, while providing the same or a higher level of assurance, employ fewer personnel and, therefore, generate fewer revenue hours as compared to traditional certification services.

MGC Branch operating expenses have increased due to: (1) Cyber Security upgrades mandated by the Department and system technologies; (2) mandated salary increases for all Federal Government employees in 2004, 2005, and 2006; (3) inflation of nonsalary operating costs; and (4) accumulated increases in continental United States (CONUS) per diem rates, mileage rates, and office maintenance costs.

Since the last fee increase in 2003, the MGC Branch has made efforts to control operating costs by closing 3 field offices and reducing the number of support staff by 33 percent. The MGC Branch has also increased the use of computer information systems for data collection, retrieval, and dissemination; applicant billing; and disbursement of employee entitlements. This reduction in field offices and support personnel, and the increased use of automated systems to process data has enabled the MGC Branch to absorb a substantial portion of the operating costs and minimize the need for hourly fee increases in past years. However, these management efforts have not negated the need to maintain trust fund balances to assure operating expenses are met in the future.

Despite the cost reduction efforts, the MGC Branch incurred a $1.8 million operating loss in FY 2005. Furthermore, AMS projects that without an hourly fee increase, the MGC Branch will lose approximately $6.5 million from FY 2006 through FY 2009, and totally deplete program reserves to the point of deficit operations (i.e. FY 2006, $1.1 million; FY 2007, $1.2 million; FY 2008, $1.8 million; and FY 2009, $2.4 million).

In view of the increased costs and decreased revenues, AMS proposes to increase the hourly fees to cover the operating deficits. The base hourly fee for commitment applicants would increase from $55 to $61. A commitment applicant is a user of meat grading and certification services who agrees to pay for five continuous 8 hour days, Monday through Friday between the hours of 6 a.m. and 6 p.m., excluding legal holidays. The base hourly fee for noncommitment applicants would increase from $64 to $71. A noncommitment applicant is a user of meat grading and certification services, who agrees to pay an hourly fee without committing to a certain number of service hours. The premium hourly fee would increase from $70 to $78. The premium hourly fee is charged to applicants when meat grading and certification services (1) exceed 8 hours per day, (2) are performed before 6 a.m. and after 6 p.m. Monday through Friday, and (3) any time on Saturday or Sunday, except on legal holidays. The legal holiday fee would increase from $110 to $122 and is charged to applicants for meat grading and certification services provided on legal holidays.

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

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), AMS considered the economic impact of this proposed action on small entities and determined that it will not have a significant economic effect on a substantial number of small entities.

AMS, through its MGC Branch, provides voluntary Federal meat grading and certification services to 285 businesses, including 100 livestock slaughterers, 66 facilities that process federally donated products, 62 meat processors, 28 livestock producers and feeders, 9 brokers, 11 trade associations, and 9 State and Federal entities. Eighty seven percent of these businesses qualify as small entities; a company that employs less than 500 employees. Small entities generate approximately 33 percent of the MGC Branch's revenues and are under no obligation to use voluntary Federal meat grading and certification services provided under the authority of the AMA.

Federal meat grading and certification services facilitate the orderly marketing of meat and meat products and enable consumers to obtain the quality of meat they desire. Grading services consist of the evaluation of carcass beef, lamb, pork, veal, and calf in accordance with the appropriate official U.S. Standard. The MGC Branch grades approximately 20.0 billion pounds of meat each year. Certification services consist of the evaluation of meat and meat products for compliance with specification and contractual requirements. Certification services are regularly used by meat purchasers to ensure that the quality and yield of the products they purchase comply with the stated requirements. The MGC Branch certifies approximately 22.4 billion pounds of meat and meat products each year.

This action would raise the hourly fees charged to users of Federal meat grading and certification services. AMS estimates that this action would provide the MGC Branch an additional $210,210 in revenue per month in FY 2006. Since 245 small entities account for 33 percent of MGC Branch revenues, this action would result in an average increase of $65 per week per applicant. This action would increase revenues by almost $2.5 million per year and offset the projected losses of $1.1 million in FY 2006 and $1.2 million in FY 2007. Even with this action, the unit cost for MGC Branch service (revenue/total pounds graded and certified) would actually decrease from $0.0006 to $0.0005 per pound, due to increased projected grading and certification volumes.

This action is necessary to offset decreased revenue hours and increased program operating costs incurred since the last fee increase. The MGC Branch has lost revenue due to the implementation of more efficient audit-based and pilot certification programs and the continued consolidation within the livestock and meat industry. Audit-based and pilot certification programs employ fewer personnel, and, therefore, generate fewer revenue hours as compared to traditional certification services. The implementation of audit-based programs has decreased overall costs to smaller entities.

MGC Branch operating expenses have increased due to (1) Cyber Security upgrades mandated by the Department and system technologies; (2) congressionally mandated salary increases for all Federal Government employees in 2004, 2005, and 2006; (3) inflation of nonsalary operating costs; and (4) accumulated increases in continental United States (CONUS) per diem rates, mileage rates, and office maintenance costs.

Since 2003, the MGC Branch has made efforts to control operating costs by closing 3 field offices and reducing the number of support staff by 33 percent. At the same time, the MGC Branch has utilized automated information management systems for data collection, retrieval, and dissemination; applicant billing; and disbursement of employee entitlements. The reduction in field offices and support personnel and the increased use of automated systems has enabled the MGC Branch to absorb a substantial portion of the operating costs and delay hourly fee increases.

Despite these cost reduction efforts and previous hourly fee increases, the MGC Branch incurred a $1.8 million operating loss in FY 2005. Furthermore, AMS projects that without an hourly fee increase; the MGC Branch would lose approximately $6.5 million from FY 2006 through FY 2009 and totally deplete program reserves to the point of deficit operations.

In view of these increased costs, AMS proposes to increase the hourly fees for Federal meat grading and certification services. The base hourly fee for commitment applicants would increase from $55 to $61. A commitment applicant is a user of meat grading and certification services who agrees to pay for five continuous 8 hour days, Monday through Friday between the hours of 6 a.m. and 6 p.m., excluding legal holidays. The base hourly fee for noncommitment applicants would increase from $64 to $71. A noncommitment applicant is a user of meat grading and certification services, who agrees to pay an hourly fee without committing to a certain number of service hours. The premium hourly fee would increase from $70 to $78. The premium hourly fee is charged to applicants when meat grading and certification services (1) exceed 8 hours per day, (2) are performed before 6 a.m. and after 6 p.m. Monday through Friday, and (3) any time on Saturday or Sunday, except on legal holidays. The legal holiday fee would increase from $110 to $122 and is charged to applicants for meat grading and certification services provided on legal holidays.

This action has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect and would not pre-empt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

This action would not impose any additional reporting or recordkeeping requirements on users of Federal meat grading and certification services.

For the reasons set forth in the preamble, it is proposed that 7 CFR part 54 be amended as follows:

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

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. The United States Grain Standards Act (USGSA) provides in section 87g that no State or subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this proposed rule will not preempt any State or local laws, regulations, or policies, unless they present any irreconcilable conflict with this rule. There are no administrative procedures, which must be exhausted prior to any judicial challenge to the provisions of this proposed rule.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601, et seq. ) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose is to fit regulatory actions to the scale of businesses subject to the action.

GIPSA has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act. Under the provisions of the USGSA, grain exported from the United States must be officially inspected and weighed. Mandatory inspection and weighing services are provided by GIPSA and delegated states at 54 export elevators (including four floating elevators). All of these facilities are owned by multi-national corporations, large cooperatives, or public entities that do not meet the requirements for small entities established by the Small Business Administration. Most users of the official inspection and weighing services, and these entities that perform these services, do not meet the regulations for small entities. Further, the regulations are applied equally to all entities. In addition to GIPSA, there are 58 official agencies that perform official services under the United States Grain Standards Act, and most of these entities do not meet the requirements for small entities. GIPSA is proposing to amend the sorghum standards to amend the definitions of the classes Sorghum, White sorghum, and Tannin sorghum, and to amend the definition of nongrain sorghum. The proposal also recommends amendments to the grade limits of BNFM, to the grade limits of FM, and the associated inspection plan tolerances. GIPSA further proposes to insert a total count limit for other material into the sorghum standards and will revise the method of certifying TW. These proposed changes will help to facilitate the marketing of sorghum.

The U.S. sorghum industry, including producers (approximately 40,000 (USDA-2002 Census of Agriculture)), handlers, processors, and merchandisers are the primary users of the U.S. Standards for Sorghum and utilize the official standards as a common trading language to market grain sorghum. We assume that some of the entities may be small. Further, the United States Grain Standards Act (USGSA) (7 U.S.C. 87f-1) requires the registration of all persons engaged in the business of buying grain for sale in foreign commerce. In addition, those individuals who handle, weigh, or transport grain for sale in foreign commerce must also register. The USGSA regulations (7 CFR 800.30) define a foreign commerce grain business as persons who regularly engage in buying for sale, handling, weighing, or transporting grain totaling 15,000 metric tons or more during the preceding or current calendar year. At present, there are 92 registrants who account for practically 100 percent of U.S. sorghum exports, which for fiscal year (FY) 2004 totaled approximately 2,926,726 metric tons (MT). While most of the 92 registrants are large businesses, we assume that some may be small.

Pursuant to the Paperwork Reduction Act of 1995, the existing information collection requirements are approved under the Office of Management and Budget (OMB) Number 0580-0013. No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, no further OMB clearance is required under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

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.

Grain sorghum (Sorghum bicolor (L.) Moench, trivially: milo, sorghum) is a cereal crop of African origin, whose kernels are used in both human and animal food, as well as industrial products. In the sorghum standards, sorghum is defined as “Grain that, before the removal of dockage, consists of 50 percent or more of whole kernels of sorghum (Sorghum bicolor (L.) Moench) excluding nongrain sorghum and not more than 10.0 percent of other grains for which standards have been established under the United States Grain Standards Act.” Grain sorghum usage as animal feed is seen primarily in the United States and Mexico, while sorghum use in human food is global: porridge, flatbread, and beer in Africa; Maotai (distilled spirits) in China/Taiwan; flatbread in the Asian sub-continent; wheat flour replacement for Celiac disease patients. Industrial uses of grain sorghum include ethanol production for fuel.

In the United States, grain sorghum production has decreased dramatically, dropping from over 18 million planted acres in 1983 to an estimated 7 million acres in 2005 (USDA-NASS estimate June 30, 2005). These acres have been largely replaced with corn and cotton. The majority of grain sorghum is produced in the southern Great Plains of the United States. Kansas and Texas collectively accounted for 69 percent and 76 percent of production for the harvests of 2003 and 2004 respectively, while Nebraska accounted for an additional 8 percent of production in each year (USDA-NASS). For both the 2002/2003 and 2003/2004 marketing years, the leading importers of United States sorghum were Mexico, Japan, Israel, and the European Union.

The United States Standards for Sorghum were established December 1, 1924, and have been amended or revised numerous times since then, most recently in 1993. In August 1998, GIPSA conducted a review of the sorghum standards (63 FR 43641). No changes to the standards were proposed as a result of that action. On September 24, 2003, GIPSA was asked by the National Sorghum Producers (previously known as the National Grain Sorghum Producers) to initiate a review of the sorghum standards. Accordingly, on December 17, 2003, GIPSA published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register (68 FR 70201) requesting views and comments on the sorghum standards.

GIPSA received 35 comments to the ANPR from sorghum market participants including producers, sorghum market development groups, and exporters. After the ANPR comment period ended, there were further discussions with the industry, including a recommendation to reduce the test weight minimum for U.S. No. 1 sorghum from 57 to 56 pounds per bushel. Considering the comments to the ANPR, and other available information, several specific issues emerged in connection with revising the sorghum standards. The issues are (1) sorghum class definitions, (2) nongrain sorghum definition, (3) structure and grade limits in BNFM, FM, and Damaged Kernels Total (DKT), (4) definitions of heat damaged kernels and damaged kernels, (5) TW certification and (6) other material count limits.

Based on comments received and other available information, GIPSA has decided to propose amendments to the United States Standards for Sorghum to help facilitate the marketing of sorghum.

Sorghum has four classes: Sorghum, Tannin sorghum, White sorghum, and Mixed sorghum. The definition of three of the classes, Sorghum, Tannin sorghum, and White sorghum, refer to tannin level in a qualitative manner ( i.e. , as being either low or high in tannin content). Numerous commenters specifically cited the phrase “low in tannin content” in the class definition of Sorghum and White sorghum, maintaining that references to tannin content do not reflect current science and understanding of sorghum genetics and impart a negative connotation with regard to sorghum quality, which hampers market development. These commenters stated that nearly all sorghum hybrids grown for grain do not contain tannins, stating that over the last approximately 30 years, the understanding of tannin genetics deepened such that sorghum breeders produced varieties essentially devoid of tannins. GIPSA was asked to define Sorghum and White sorghum based on the absence of tannin compounds.

Tannins are considered both nutritional and anti-nutritional, depending on the concentration and target organism. Some level of tannin ingestion can impede weight gain in animals, by making certain amino acids metabolically unavailable and inhibiting the activity of certain enzymes. Alternately, tannins have antioxidant properties, so may be of economic interest.

A manuscript published in “ Phytochemistry ” reported that 99 percent of U.S. sorghum hybrids are tannin-free. Tannins are phenolic compounds which derive from the presence of a pigmented testa layer (a.k.a. ‘subcoat’), controlled by two genes known as B1 and B2. When both of these genes are dominant, the caryopsis (kernel) develops a pigmented testa. The testa, located between the aluerone cells and endocarp cells, derives from layers of cells in close proximity which have collapsed, forming one layer several cells thick. Because of sorghum hybrid improvement programs, the genes for a pigmented testa are recessive in almost all commercial grain sorghum hybrids, thus, a pigmented testa does not form.

GIPSA considers the term “absence of tannin compounds” to have a precise meaning, i.e. , containing zero tannin content. The industry claim of “essentially devoid of tannins” anticipates the possibility of a small amount of tannin, thus GIPSA does not consider “tannin free” acceptable for defining the classes of sorghum. However, GIPSA will propose to amend the definitions of Sorghum, Tannin sorghum, and White sorghum based on the absence or presence of a pigmented testa.

Nongrain sorghum is defined as “Seeds of broomcorn, Johnson-grass, Sorghum almum Parodi, sorghum-sudangrass hybrids, sorgrass, sudangrass, and sweet sorghum ( sorgo )”. The relevance of nongrain sorghum is that it counts as foreign material. GIPSA received comments regarding the definition of nongrain sorghum, specifically asking GIPSA to remove certain sorghum species named as nongrain sorghum, specifically, sorgrass, sorghum-sudangrass hybrids, and sweet sorghum ( sorgo ). A commenter stated that sorgrass is nearly extinct in the United States, thus is no longer relevant to the sorghum production situation. GIPSA believes this has merit and proposes to remove sorgrass from the definition of nongrain sorghum. Although GIPSA is proposing to remove sorgrass from the definition of nongrain sorghum, it would function as foreign material if discovered in a sample.

The same commenter also stated that sweet sorghum was grown in such small quantity as to be non-problematic with regard to commingling with grain sorghum. In further discussions, sweet sorghum producers (who grow this crop for molasses production) expressed an opposite opinion. They recommended against removing sweet sorghum from the definition of nongrain sorghum, because they want it well understood that their crop is nongrain sorghum. As a result, GIPSA will not remove sweet sorghum from the definition of nongrain sorghum.

Sorghum-sudangrass hybrids (botanically, Sorghum bicolor (L.) Moench) are grown for forage, are very unlikely to be harvested for grain due to plant height, and may or may not produce kernels which appear (and function) like grain sorghum. Depending on the genetics, some kernels appear to meet the criteria for grain sorghum and should be graded as such, while others exhibit characteristics of forage type kernels (with respect to kernel morphology, tannin presence (hence, a pigmented testa) and glume adherence), thus should be counted as nongrain sorghum. If GIPSA removes sorghum-sudangrass hybrids from the definition of nongrain sorghum, all sorghum-sudangrass hybrids would be classified as grain sorghum, including those kernels having forage-type characteristics (and potentially containing a pigmented testa and/or some level of tannin). Kernels of sorghum-sudangrass hybrids which exhibit morphological traits consistent with grain sorghum should not be excluded from the definition of grain sorghum. Accordingly, GIPSA believes the definition of nongrain sorghum should be revised such that only kernels of sorghum-sudangrass hybrids with an appearance atypical of grain sorghum, meaning kernels which are morphologically consistent with those from a forage-type plant, should be considered nongrain sorghum.

GIPSA received comments expressing opposing viewpoints, regarding DKT, BNFM, and FM. Some comments favored loosening grade limits for BNFM and dropping FM as a subfactor. Others favored tightening the grade limits for DKT and BNFM, such that the aggregate of these factors would be equivalent to the aggregate of the DKT and Broken Corn and Foreign Material (BCFM) grade limits in the U.S. Standards for Corn.

FM was added as a subfactor of BNFM in the most recent amendment of the sorghum standards (effective date June 1, 1993; 57 FR 58967), based on the Grain Quality Improvement Act of 1986 (Pub. L. 99-641, Title III; 7 U.S.C. 76) and a recommendation of the Grain Quality Workshop. Prior to 1993, FM could have been 100 percent of the BNFM content. Inspection data for exports from 2002-2005 indicate an FM average of 1.1 percent, lower than the grade limit of 1.5 percent for U.S. No. 1 sorghum.

Analysis of official export inspection data for sorghum from 2002-2005 indicated an overall BNFM average of 3.9 percent (lower than the BNFM grade limit of 4.0 percent for U.S. No. 1 sorghum) thus averaging U.S. No. 1 sorghum, based on BNFM. Official inspection data for export yellow corn during the same period indicated an overall BCFM average of 2.8 percent (over the BCFM grade limit of 2.0 percent U.S. No. 1 corn) thus averaging U.S. No. 2 Yellow Corn, based on BCFM. Sorghum received a higher average grade than corn during the period covered by the data, based on the factors BNFM and BCFM.

Tightening the BNFM grade limits to match the tighter BCFM grade limits for corn would result in grade deflation. Using the export inspection data cited above, more than ninety percent of the sorghum grading U.S. No. 2 or better under the current BNFM grade limits, would receive a grade of U.S. No. 3 or 4, if the corn BCFM grade limits were utilized.

GIPSA examined export inspection data for the period 2001 through 2004 (the last three year period for which this data is available), to determine the rate at which sorghum failed to meet inspection loading plan requirements, based on the factor BNFM. BNFM exceeded inspection loading plan requirements for BNFM at a 0.4 percent rate, whereas corn failed to meet inspection loading plan requirements for BCFM at a 3.0 percent rate. Accordingly, the BNFM grade limits in the sorghum standards are not overly restrictive. Moreover, the grade limits for BNFM and FM can be tightened somewhat without causing grade deflation.

A review of the Agency’s official grain inspection data has shown that the average BNFM and FM values are within the U.S. No. 1 grade limits. GIPSA concludes that the grade limits for BNFM and FM should be revised to better reflect the quality of sorghum moving through the marketplace, i.e. , tighter grade limits would better reflect sorghum quality in the market place.

In Table 1, GIPSA data show that sorghum moving through the U.S. marketing system on truck, rail and barge, and export, have average BNFM and FM levels which are within the U.S. No. 1 grade limits. Table 2 shows the cumulative distribution of sorghum at grades 1, 2, 3, and 4 for different shipment modes, for the factors BNFM and FM. Virtually all sorghum moving in the marketplace receives a grade of U.S. No. 2 or better regardless of where in the value chain the sorghum is inspected.

Based on a review of the comments, GIPSA data, and other available information, GIPSA is proposing to reduce the BNFM and FM grade limits. GIPSA proposes to reduce the BNFM grades limits for U.S. Nos. 1, 2, 3, and 4 from 4.0, 7.0, 10.0, and 13.0 percent to 3.0, 6.0, 8.0, and 10.0 percent, respectively. For FM, GIPSA proposes to reduce the grade limits for U.S. Nos. 1, 2, 3, and 4 from 1.5, 2.5, 3.5, and 4.5 percent to 1.0, 2.0, 3.0, and 4.0, respectively. Table 3 shows the effect of this change on the cumulative distribution of sorghum available at grades 1 through 4. There will be minimal impact throughout the marketing system for grades 2, 3 and 4. GIPSA projects that some sorghum currently grading U.S. No.1 will receive a grade of U.S. No.2 under the proposed BNFM and FM grade limits. Because virtually all sorghum inspected will continue to receive a grade of U.S. No. 1 or 2, there will be minimal impact on the amount of sorghum available for trade at the common market standard, i.e., U.S. No. 2 or better. GIPSA believes these changes will better reflect, and improve, the quality of sorghum moving through the marketplace.

The grade limit for DKT in sorghum is presently tighter at U.S. No. 1 than for corn (2.0 percent vs. 3.0 percent respectively) and equal at U.S. No. 2 (5.0 percent). For the period 2002 through 2005, the average of DKT in export sorghum was 1.6 percent (compared to the U.S. No. 1 grade limit of 2.0 percent). Based on DKT, one hundred percent of the sorghum inspected at export received a grade of U.S. No. 2 during the period. Accordingly, the DKT grade limits in the sorghum standards are not overly restrictive, and GIPSA will not propose changes to the grade limits for DKT.

GIPSA received a comment recommending deleting the reference to ‘other grains’ from the definitions of damaged kernels and heat-damaged kernels to better reflect levels of damage in sorghum kernels. The definition of damaged kernels is: kernels, pieces of sorghum kernels, and other grains that are badly ground damaged, badly weather damaged, diseased, frost-damaged, germ-damaged, heat-damaged, insect-bored, mold-damaged, sprout-damaged, or otherwise materially damaged. The definition of heat-damaged kernels is: kernels, pieces of sorghum kernels, and other grains that are materially discolored and damaged by heat.

Before promulgation of the sorghum standards, addition of damaged, or otherwise out-of-condition grains to sorghum, was not an uncommon practice. In order to limit how much damaged grain was added, ‘other grains’ was added to the definitions of damaged kernels and heat-damaged kernels in a 1934 amendment of the sorghum standards. ‘Other grains’ was also included in the grading factor ‘Broken kernels, foreign material, and other grains’ until 1993, when GIPSA amended the sorghum standards, changing that grading factor to ‘Broken kernels and foreign material’, and added the subfactor, ‘Foreign material’, with maximum limits under BNFM for each grade. Separating and identifying the individual components of ‘Broken kernels, foreign material, and other grains’ was required by the Grain Quality Improvement Act of 1986, which also prohibited the blending of “different kinds of grain except when such blending will result in grain being designated as Mixed grain * * *”.

Section 74(b)(3)(D) of the USGSA states “* * * that official United States standards for grain shall * * * provide the framework necessary for markets to establish grain quality improvement incentives.” Official inspection data (previously cited) for DKT (which includes damaged other grains) shows the average DKT in export sorghum was 1.6 percent for the period 2002-2005 (within the U.S. No. 1 grade limit of 2.0 percent). This low value suggests that the system is working and further, that the grain handling industry is acting in accordance with the policy of the Congress. Removing ‘other grains’ from the definitions of damaged kernels and heat damaged kernels could provide disincentives to improving sorghum quality. Accordingly, GIPSA will not propose to remove the reference to ‘other grains’ from the definitions of damaged kernels and heat-damaged kernels.

In further discussions within the industry, a request was made to lower the test weight grade limit for U.S. No. 1 sorghum from 57 to 56 pounds per bushel. National inspection data show the average TW for the period 2001 through 2004 was well above 57.0 lb/bu. Sorghum market developers have a goal of promoting the high quality of their commodity. GIPSA believes that lowering the TW grade limit would not be consistent with the goal of promoting high quality sorghum, because lower test weight values imply lower quality. Sorghum users have indicated that TW and moisture content are the primary quality factors upon which discounts are based. Therefore, given the importance of TW to users, and the fact that the average TW is usually higher than the current U.S. No. 1 grade limit, GIPSA will not propose to lower the test weight grade limit.

However, GIPSA believes it is appropriate to revise the certification for TW from whole and half pounds, with a fraction of a half pound disregarded, to certification in tenths of a pound, in order to bring TW reporting for sorghum in line with reporting requirements for other factors, such as foreign material and damaged kernels total, in the U.S. Standards for Sorghum. The U.S. Standards for Corn was amended in 1995 to make a similar change (60 FR 61194).

GIPSA received a comment to the ANPR expressing concern over the lack of a maximum count limit on other materials allowed before sorghum would be considered U.S. Sample Grade, as well as the format in which maximum count limits of other material are presented in the standard. Although most of the grains do not have a total limit, wheat and soybeans do have maximum count limits of other materials. In sorghum, 30 pieces of other material are theoretically allowed before becoming U.S. Sample Grade, whereas in wheat and soybeans, totals of 4 and 10, respectively, are permitted before becoming U.S. Sample grade. Since sorghum is used as a food grain in much of the world, these factors should be consistent with other grains used for food. GIPSA proposes to include a total (combined) maximum count limit of 10 for other material.

The format of the maximum count limits table is the most recent version GIPSA used in revisions of the standards for wheat, soybean and canola and is the format GIPSA will use on future revisions of the standards. Therefore, to maintain consistency with the format to be used in future revisions, GIPSA will not propose a change in the format of the table presenting maximum count limits of other material.

Shiplots, unit trains, and lash barge lots are inspected with a statistically based inspection plan. Inspection tolerances, commonly referred to as Breakpoints, are used to determine acceptable quality. The proposed changes to the sorghum standards require revisions to some breakpoints. Therefore, GIPSA proposes to change the current grade limits and breakpoints for sorghum BNFM and FM which are listed in Table 15 of section 800.86(c)(2).

GIPSA proposes to change the BNFM breakpoints for U.S. Nos. 1, 2, 3, and 4 from 0.3, 0.4, 0.5, and 0.6 to 0.5, 0.6, 0.7, and 0.8, respectively. GIPSA proposes to change the FM breakpoints for U.S. Nos. 1, 2, 3, and 4 from 0.3, 0.4, 0.5, and 0.6 to 0.4, 0.5, 0.6, and 0.7, respectively.

GIPSA is issuing this proposed rule to invite comments and suggestions from all interested persons on how GIPSA can further enhance and best facilitate the marketing of sorghum.

GIPSA proposes to revise § 800.86, Inspection of shiplot, unit train and lash barge grain in single lots, paragraph (c) (2) Table 15 by revising the breakpoints and associated grade limits for U.S. Nos. 1, 2, 3 and 4 BNFM and FM.

GIPSA proposes to revise § 810.102 Definition of other terms by revising subparagraph (d), TW per bushel. It is proposed that TW in sorghum be reported to the nearest tenth of a pound per bushel.

GIPSA proposes to revise § 810.1402 Definition of other terms by revising subparagraph (c) (1)-(3), to remove tannin content from the definitions of Sorghum, Tannin sorghum, and White sorghum, respectively.

GIPSA proposes to revise § 810.1402 Definition of other terms by revising subparagraph (h) to remove sorgrass from the definition of nongrain sorghum, and to replace sorghum-sudangrass hybrids with “seeds of Sorghum bicolor (L.) Moench that appear atypical of grain sorghum”.

GIPSA also proposes to revise § 810.1404 Grade and grade requirements for sorghum to reduce the grading limits for BNFM to 3.0, 6.0, 8.0, and 10.0 percent for U.S. Nos. 1, 2, 3, and 4, respectively. GIPSA further proposes to reduce the grading limits for FM to 1.0, 2.0, 3.0, and 4.0 percent for U.S. Nos. 1, 2, 3, and 4, respectively. GIPSA also proposes to revise § 810.1404; to add: “Total:” and the number 10 under ‘Maximum count limits of’; and a footnote numbered 3.

Comments, including data, views, and arguments are solicited from interested persons. Pursuant to Section 4(b)(1) of the USGSA, as amended (7 U.S.C. 76(b)(1)), upon request, such information concerning changes to the standards may be presented orally in an informal manner. Also, pursuant to this section, no standards established or amendments or revocations of standards are to become effective less than one calendar year after promulgation unless, in the judgment of the Secretary, the public health, interest, or safety require that they become effective sooner.

For reasons set out in the preamble, 7 CFR parts 800 and 810 are proposed to be amended as follows:

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

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. The United States Grain Standards Act provides in section 87g that no State or subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this proposed rule will not preempt any State or local laws, regulations, or policies, unless they present any irreconcilable conflict with this rule. There are no administrative procedures, which must be exhausted prior to any judicial challenge to the provisions of this proposed rule.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose is to fit regulatory actions to the scale of businesses subject to the action.

GIPSA has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act. Under the provisions of the United States Grain Standards Act, grain exported from the United States must be officially inspected and weighed. Mandatory inspection and weighing services are provided by GIPSA at 36 export elevators (including 4 floating elevators). All of these facilities are owned by multi-national corporations, large cooperatives, or public entities that do not meet the requirements for small entities established by the Small Business Administration. GIPSA is proposing to amend the soybean standards to change the minimum test weight per bushel from a grade determining factor to an informational factor. GIPSA also is proposing to change the reporting requirements for test weight per bushel in soybeans from whole and half pounds with a fraction of a half pound disregarded to reporting to the nearest tenth of a pound. Additionally, GIPSA is proposing to clarify the reporting requirements for test weight in canola. These proposed changes are needed to ensure market-relevant standards and to clarify reporting requirements. Further, the regulations and standards are applied equally to all entities. In addition to GIPSA, there are 58 official agencies that perform official services under the United States Grain Standards Act, and most of these entities do not meet the requirements for small entities.

The U.S. soybean industry, including producers (approximately 663,880), handlers (approximately 6,000 domestic elevators), traders (approximately 1,402 eligible soybean futures traders), processors (approximately 70 facilities), merchandisers, and exporters, are the primary users of the U.S. Standards for Soybean and utilize the official standards as a common trading language to market soybean. We assume that some of the entities may be small. Further, the United States Grain Standards Act (USGSA) (7 U.S.C. 87f-1) requires the registration of all persons engaged in the business of buying grain for sale in foreign commerce. In addition, those individuals who handle, weigh, or transport grain for sale in foreign commerce must also register. The USGSA regulations (7 CFR 800.30) define a foreign commerce grain business as persons who regularly engage in buying for sale, handling, weighing, or transporting grain totaling 15,000 metric tons or more during the preceding or current calendar year. At present, there are 92 registrants who account for practically 95 percent of U.S. soybean exports, which for fiscal year (FY) 2004 totaled approximately 22,544,688 metric tons (MT). While most of the 92 registrants are large businesses, we assume that some may be small.

Pursuant to the Paperwork Reduction Act of 1995, the existing information collection requirements are approved under OMB Number 0580-0013. An insignificant change in burden will result from the soybean informational factor change. However, any burden measurement, as a result of this change, will remain within the previously approved information collection requirements. Accordingly, no further OMB clearance is required under the Paperwork Reduction Act.

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.

The U.S. Standards for Grain serve as the starting point to define U.S. grain quality in the marketplace. The United States Standards for Soybeans (7 CFR 810.1601-810.1605) were established in 1940 under the authority of the United States Grain Standards Act (7 U.S.C. 71 et seq. ) and since establishment, minimum test weight per bushel has been included as a mandatory grade determining factor. Test weight is the weight of a measured volume of grain (bulk density) and is expressed in pounds per Winchester bushel. In the current U.S. Standards for Soybeans (7 CFR 810.1604), the minimum allowable test weight per bushel is stated for each numerical grade. The grade table for soybeans (§ 810.1604) contains the minimum test weight limits for grades U.S. Nos. 1, 2, 3, and 4 as 56.0, 54.0, 52.0, and 49.0 respectively.

Over the past several years, GIPSA's Grain Inspection Advisory Committee has engaged in the discussion of test weight (TW), and in November 2003 passed the following resolution:

The specific issues for consideration in this proposed rule are: (1) Designation of test weight in soybeans as a non-grade determining informational factor; and (2) amending the definition to report test weight to the nearest tenth pound. While proposing to amend the standards, GIPSA will also clarify the regulations concerning the certification requirements for test weight in soybeans and canola.

Since the establishment of the United States Standards for Soybeans in 1940, minimum TW has been included as a mandatory grade determining factor and has historically been perceived as a general indicator of overall soybean quality. Some perceive that a higher TW, or density, is indicative of a higher yield of oil and protein. Research indicates, however, that TW is not a good indicator of the oil and protein yield of processed soybeans (Ref. 1, 2). A University of Illinois study concludes that the correlation coefficients between TW and protein and oil content are as low as 0.077 and 0.016 respectively (Ref. 3). GIPSA's analysis of its own inspection data supports the researchers' findings. In recognition of protein and oil as the true determinants of value in soybean processing and the markets' need to identify these intrinsic properties, GIPSA incorporated tests for both soybean protein and oil as official criteria under the USGSA (54 FR 33702) in 1989.

As part of its evaluation of TW, GIPSA conducted a statistical review of inspection data to determine the impact of removing TW as a grade determining factor on the certified grades. The review established that in over 400,000 soybean inspections, certified between January 1, 2001, and September 30, 2003, 99.5 percent of the official grades would have been unaffected by the removal of TW as a grading factor. In other words, the market should not anticipate grade inflation or deflation due to GIPSA's actions.

Although TW does not imply intrinsic quality, TW is of value as a measurement of stock and production, in stowage calculations, and in determining operational value. The USDA's Risk Management Agency and Farm Service Agency, as well as private auditors, use TW to verify stock and production. Soybean handlers use TW in stowage calculations to determine the appropriate container size for a specific quantity of soybeans. Some processors use TW to determine the operations value of soybean lots. For example, one processor explained that knowing the TW of a lot of soybeans allowed him to know the approximate amount of soybeans that would fit into a crusher and approximately how much flake would be produced.

Based on its findings, GIPSA proposes that the minimum TW per bushel be changed from a grade determining factor to a non-grade determining informational factor in the official U.S. Standards for Soybeans. Even though an informational factor, GIPSA will require the measurement and reporting of TW for each official soybean grade inspection. GIPSA's evaluation indicates that not all buyers of soybeans are interested in the TW information; consequently, GIPSA will also propose regulatory language to allow for an optional exemption in the certification reporting requirements.

GIPSA proposes to revise § 810.102(d) of the United States Standards for Grain to report TW in soybeans to the nearest tenth of a pound. Presently, TW in soybeans is certified in whole and half pounds with fractions of a half pound disregarded. This change will bring the reporting requirements for TW into line with the reporting requirements for other factors in the Official Standards for Soybeans, such as foreign material and moisture content.

To reflect the proposed change of TW from a grade determining factor to a non-grade determining informational factor, GIPSA proposes to revise the tables pertaining to soybean grade limits in § 800.86 of the regulations. Shiplots, unit trains, and lash barge lots are inspected in accordance to a statistically based inspection plan (55 FR 24030; June 13, 1990). Inspection tolerances, commonly referred to as breakpoints, are used to determine acceptable quality. GIPSA's proposal to change TW from a grade determining factor to an informational factor necessitates removing soybean TW breakpoints from the Grade Limits and Breakpoints for Soybeans table and replacing them in the Breakpoints for Soybean Special Grades and Factors table.

As GIPSA proposes changes to the soybean standards for TW, it allows GIPSA to clarify the TW certification reporting requirements for both soybeans and canola in § 800.162(c). With regard to soybeans, GIPSA proposes to clarify the reporting requirements for test weight as a non-grade determining factor and the optional exemption for TW determination. The exemption will allow the applicant for inspection to request that TW not be determined, and therefore not reported. With regard to canola, GIPSA proposes to clarify that TW in canola is only determined and reported upon request of an applicant.

GIPSA proposes to revise § 810.1604, Grades and grade requirements for soybeans. It is proposed that minimum TW per bushel be eliminated from the grade chart as a mandatory grade determining factor, but be retained in the standards as a non-grade determining informational factor.

GIPSA proposes to revise § 810.102, Definition of other terms, by revising subparagraph (d), TW per bushel. It is proposed that TW in soybeans be reported to the nearest tenth of a pound per bushel.

GIPSA also proposes to revise § 800.86, Inspection of shiplot, unit train, and lash barge grain in single lots, paragraph (c)(2) by reassigning TW from table 17 to table 18.

Finally, GIPSA proposes to incorporate clarification for the TW certification reporting requirements for both soybeans and canola in § 800.162(a) and § 800.162(c).

Comments, including data, views, and arguments are solicited from interested persons. Pursuant to section 4(b)(1) of the United States Grain Standards Act, as amended (7 U.S.C. 76(b)(1)), upon request, such information concerning changes to the standards may be presented orally in an informal manner. Also, pursuant to this section, no standards established or amendments or revocations of standards are to become effective less than one calendar year after promulgation unless, in the judgment of the Secretary, the public health, interest, or safety require that they become effective sooner.

For reasons set out in the preamble, 7 CFR parts 800 and 810 are proposed to be amended as follows:

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

We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this notice between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

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

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

Airbus applied for FAA certification/validation of the provisionally designated Model A3XX-100 in its letter AI/L 810.0223/98, dated August 12, 1998, to the FAA. Application for certification by the Joint Aviation Authorities (JAA) of Europe had been made on January 16, 1998, reference AI/L 810.0019/98. In its letter to the FAA, Airbus requested an extension to the 5-year period for type certification in accordance with 14 CFR 21.17(c). The request was for an extension to a 7-year period, using the date of the initial application letter to the JAA as the reference date. The reason given by Airbus for the request for extension is related to the technical challenges, complexity, and the number of new and novel features on the airplane. On November 12, 1998, the Manager, Aircraft Engineering Division, AIR-100, granted Airbus' request for the 7-year period, based on the date of application to the JAA.

In its letter AI/LE-A 828.0040/99 Issue 3, dated July 20, 2001, Airbus stated that its target date for type certification of the Model A380-800 had been moved from May 2005, to January 2006, to match the delivery date of the first production airplane. In a subsequent letter (AI/L 810.0223/98 issue 3, dated January 27, 2006), Airbus stated that its target date for type certification is October 2, 2006. In accordance with 14 CFR 21.17(d)(2), Airbus chose a new application date of December 20, 1999, and requested that the 7-year certification period which had already been approved be continued. The FAA has reviewed the part 25 certification basis for the Model A380-800 airplane, and no changes are required based on the new application date.

The Model A380-800 airplane will be an all-new, four-engine jet transport airplane with a full double-deck, two-aisle cabin. The maximum takeoff weight will be 1.235 million pounds with a typical three-class layout of 555 passengers.

Under the provisions of 14 CFR 21.17, Airbus must show that the Model A380-800 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-98. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Airbus A380-800 airplane because of novel or unusual design features, special conditions are prescribed under the provisions of 14 CFR 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A380-800 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 93-574, the “Noise Control Act of 1972.”

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with 14 CFR 11.38 and become part of the type certification basis in accordance with 14 CFR 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of 14 CFR 21.101.

The A380 is equipped with an electronic flight control system. In this system, there is not a direct mechanical link between the airplane flight control surface and the pilot's cockpit control device as there is on more conventional airplanes. Instead, a flight control computer commands the airplane flight control surfaces, based on input received from the cockpit control device. The pilot input is modified by the flight control computer—based on the current airplane flight parameters before the command is given to the flight control surface. Therefore, there is not a direct mechanical relationship between the pilot command and the command given to the control surface.

The formulation of airplane design load conditions in 14 CFR part 25 is based on the assumption that the airplane is equipped with a control system in which there is a direct mechanical linkage between the pilot's cockpit control and the control surface. Thus for roll maneuvers, the regulation specifies a displacement for the aileron itself, and does not envision any modification of the pilot's control input. Since such a system will affect the airplane flight loads and thus the structural strength of the airplane, special conditions appropriate for this type of control system are needed.

In particular, the proposed special condition would adjust the design roll maneuver requirements specified in § 25.349(a), so that they take into account the effect of the A380's electronic flight control computer on the control surface deflection. The proposed special condition would require that the roll maneuver be performed by deflection of the cockpit roll control, as opposed to specifying a deflection of the aileron itself as the current regulation does. The deflection of the control surface would then be determined from the cockpit input, based on the computer's flight control laws and the current airplane flight parameters.

As discussed above, these special conditions are applicable to the Airbus A380-800 airplane. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of the Airbus A380-800 airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration (FAA) proposes the following special condition as part of the type certification basis for the Airbus A380-800 airplane.

In lieu of compliance with 14 CFR 25.349(a), the following special condition is proposed:

The following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero and two-thirds of the positive maneuvering factor used in design. In determining the resulting control surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):

a. Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.

b. At V A , sudden movement of the cockpit roll control up to the limit is assumed. The position of the cockpit roll control must be maintained, until a steady roll rate is achieved and then must be returned suddenly to the neutral position.

c. At V C , the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than that obtained in paragraph b. above.

d. At V D , the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than one third of that obtained in paragraph b. above.

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

We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this notice between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

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

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

Airbus applied for FAA certification/validation of the provisionally-designated Model A3XX-100 in its letter AI/L 810.0223/98, dated August 12, 1998, to the FAA. Application for certification by the Joint Aviation Authorities (JAA) of Europe had been made on January 16, 1998, reference AI/L 810.0019/98. In its letter to the FAA, Airbus requested an extension to the 5-year period for type certification in accordance with 14 CFR 21.17(c). The request was for an extension to a 7-year period, using the date of the initial application letter to the JAA as the reference date. The reason given by Airbus for the request for extension is related to the technical challenges, complexity, and the number of new and novel features on the airplane. On November 12, 1998, the Manager, Aircraft Engineering Division, AIR-100, granted Airbus' request for the 7-year period, based on the date of application to the JAA.

In its letter AI/LE-A 828.0040/99 Issue 3, dated July 20, 2001, Airbus stated that its target date for type certification of the Model A380-800 had been moved from May 2005, to January 2006, to match the delivery date of the first production airplane. In a subsequent letter (AI/L 810.0223/98 issue 3, dated January 27, 2006), Airbus stated that its target date for type certification is October 2, 2006. In accordance with 14 CFR 21.17(d)(2), Airbus chose a new application date of December 20, 1999, and requested that the 7-year certification period which had already been approved be continued. The FAA has reviewed the part 25 certification basis for the Model A380-800 airplane, and no changes are required based on the new application date.

The Model A380-800 airplane will be an all-new, four-engine jet transport airplane with a full double-deck, two-aisle cabin. The maximum takeoff weight will be 1.235 million pounds with a typical three-class layout of 555 passengers.

Under the provisions of 14 CFR 21.17, Airbus must show that the Model A380-800 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-98. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Airbus A380-800 airplane because of novel or unusual design features, special conditions are prescribed under the provisions of 14 CFR 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A380-800 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 93-574, the “Noise Control Act of 1972.”

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with 14 CFR 11.38 and become part of the type certification basis in accordance with 14 CFR 21.17(a)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of 14 CFR 21.101.

The Airbus Model A380-800 airplane has 16 emergency exits and 16 escape slides to be used for evacuation of passengers in case of emergency. Of these, 14 are fixed-length escape slides, and two (at door M1) are extendable length escape slides. The extendable length escape slides have a 16-foot extension packed at the toe.

Typically, airplanes have fixed length escape slides. However, it was not possible to use fixed length escape slides for the A380 door M1 because of the extreme difference between normal sill height and high sill height associated with collapse of some of the landing gear in an emergency. Some combinations of landing gear collapse could cause the airplane to tip back on its tail.

On the door, there is an electronic sensor that evaluates the attitude of the airplane and determines whether the extension is needed. During normal operation, the extension remains packed at the toe end of the escape slide. When the extension is needed, the system sends a signal to a squib that allows the extension to be inflated during deployment. If the system detects that the slide extension has failed to deploy, a warning is activated that tells the flight attendants that the slide should not be used. The warning will also activate—if after initial deployment of the slide without the extension deploying—the attitude of the airplane changes to the extent that the extension should be deployed. The slide system design cannot accommodate deploying the extension after deployment of the main body of the slide.

The performance requirements for escape systems are contained in 14 CFR 25.810 and address several abnormal operating conditions as well as failure conditions and reliability. The requirements of § 25.810 remain applicable for the slide in the unextended mode, and for the most part, in the extended mode. The special conditions indicate where the requirements differ from the requirements of § 25.810 for the slide in the extended mode.

The extension is intended only for use at high sill heights. A typical fixed-length slide operating at high sill height does not satisfy all of the performance requirements of § 25.810, but its variations in performance are understood and largely predictable. Certain performance criteria are valid regardless of sill height, whereas other aspects of performance can be expected to decline at higher sill heights. With an extendable slide, there is a step change in configuration and potentially a step change in performance.

Therefore, special conditions are needed to ensure acceptable performance in the extended mode. Section 25.810 specifies the basic performance requirements for escape slides including wind testing, repeatability testing, and testing at adverse sill heights. Section 25.1309(a) requires that systems perform under foreseeable operating conditions, such as extreme temperatures, and a demonstration that the system design is appropriate for its intended function. Standards for the equipment itself are contained in Technical Standard Order C69c and contribute to a satisfactory installation.

Existing 14 CFR part 25 regulations governing the certification of the A380 do not adequately address certification requirements of an extendable length escape slide. The FAA is proposing special conditions to ensure that an extendable length escape slide performs adequately in both the unextended and the extended configuration.

Technical Standard Order C69c addresses many detailed aspects of escape slide performance that are not specified in 14 CFR part 25 but are generally considered essential to assuring adequate escape slide performance. These special conditions supplement the requirements of 14 CFR part 25, for the slide in its extended mode. However, because of the novel nature of this design, the special conditions will require that the escape slide receive TSO authorization or satisfy an equivalent standard.

Wind tests are typically conducted only on fixed length slides at normal sill height. Since the regulations require that the 25 knot standard is met at the most critical wind angle, escape slides usually exceed 25 knots performance at other than the critical angle. The same is expected to be true of the slide in its extended mode, but some reduction in the required wind velocity is appropriate since the slide will be in an abnormal condition. Available data indicates that a value of 22 knots is appropriate to cover the slide in its extended mode at normal sill height. This corresponds to roughly 75% of the wind energy required for the slide in its normal attitude and will ensure that the slide can function in its extended mode at least as well as a fixed length slide under similar abnormal conditions.

The special conditions also specify a rate for evacuation of passengers which is consistent with that of fixed length escape slides.

As discussed above, these special conditions are applicable to the Airbus A380-800 airplane. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of the Airbus A380-800 airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Airbus A380-800 airplane.

In addition to the provisions of 14 CFR part 25, the following special conditions apply:

1. The extendable escape slide must receive TSO C69c authorization or the equivalent.

2. In addition to the requirements of § 25.810(a)(1)(iii) for usability in conditions of landing gear collapse, the deployed escape slide in the extended mode must demonstrate an evacuation rate of 45 persons per minute per lane at the sill height corresponding to activation of the extension.

3. In lieu of the requirements of § 25.810(a)(1)(iv), the escape slide deployed in the extended mode must be capable of being used in 22 knot winds directed from the critical angle, with the airplane on all its landing gear.

4. Pitch sensor tolerances and accuracy must be taken into account when demonstrating compliance with § 25.1309(a) for the escape slide in both the extended and unextended modes.

5. Design of the “slide extension” warning must be such that the cabin crew is made aware of a non usable slide ( i.e. , the main slide has deployed, and the door sill height is such that the extension should be deployed but cannot be deployed), even if this is due to the airplane attitude changing during the evacuation. The ability to provide such a warning must be available for ten minutes after the airplane is immobilized on the ground.

We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2006-24095; Directorate Identifier 2006-CE-21-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified FAA that an unsafe condition may exist on all DORNIER Models 228-100, 228-101, 228-200, 228-201, 228-202, and 228-212 airplanes. The LBA reports that vibrations are causing the plastic wire tie attachment holder in the flight deck overhead panels to lose its adhesiveness and become detached.

When the wire tie attachment holder becomes detached, the wiring in the flight deck overhead panels is loose and may rub against the pins of the switches in the overhead panel causing chafing and damage to the wiring insulation.

This condition, if not corrected, could result in electrical failure of affected systems and potential fire in the flight deck.

We have reviewed RUAG AOT Dornier 228, All Operators Telefax service information No. AOT-228-24-028, Date of Issue: November 9, 2005.

The service information specifies:

• Repetitively inspecting the wiring in the flight deck overhead panels (locations 5VE and 6VE) for chafing and damage;

• Repairing any chafed or damaged wire(s); and

• Assuring correct installation of the wiring in the flight deck overhead panels by reattaching or replacing the wire tie attachment holders and securing any loose wires to the wire tie attachment holders with plastic wire ties.

The LBA classified the service information as mandatory and issued German AD Number D-2005-438, Effective Date: December 14, 2005, to ensure the continued airworthiness of these airplanes in Germany.

These DORNIER Models 228-100, 228-101, 228-200, 228-201, 228-202, and 228-212 airplanes are manufactured in Germany 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 LBA has kept us informed of the situation described above.

We are proposing this AD because we have examined the LBA's findings, evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design that are certificated for operation in the United States.

This proposed AD would require you to repetitively inspect the wiring in the flight deck overhead panels (locations 5VE and 6VE) for chafing and damage and repair any chafed or damaged wires. Regardless of the results of each inspection, this proposed AD would require you to assure correct installation of the wiring in the flight deck overhead panels by reattaching or replacing the wire tie attachment holders and securing any loose wires to the wire tie attachment holders with plastic wire ties.

How many airplanes would this proposed AD impact? We estimate that this proposed AD would affect 14 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 any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this repair:

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We encourage you to submit comments and related material pertaining specifically to the navigation safety and waterways management aspects of the proposed rule. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-04-133), and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the project officer at the addresses or phone numbers listed under FOR FURTHER INFORMATION CONTACT , but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached U.S. Coast Guard Sector Southeastern New England, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not intend to hold additional public meetings on this proposed rule. As part of the Advance Notice of Proposed Rulemaking announced in the October 26, 2004, edition of the Federal Register , (Vol. 69, No. 206, pages 62427 to 62430) two public meetings were held to obtain direct feedback from the public on November 16, 2004, at the New Bedford Whaling Museum, and on November 17, 2004, at the Massachusetts Maritime Academy. Comments received at those meetings, as well as written comments, are summarized below. You may submit a request for an additional public meeting to the address contained in ADDRESSES above, explaining why an additional public meeting would be beneficial. If we determine that an additional public meeting is necessary, we will hold one at a time and place announced by a later notice in the Federal Register .

This NPRM is subsequent to an Advance Notice of Proposed Rulemaking (ANPRM) published on October 26, 2004 in Volume 69, No. 206, pages 62427 to 62430 of the Federal Register , under the heading “Navigation and Waterways Management Improvements, Buzzards Bay, MA”. Congress designated Buzzards Bay as an Estuary of National Significance in 1985, one of only five estuaries in the U.S. so designated. The Bay has some of Massachusetts' most productive shellfish beds. It interacts with three very different marine systems, the Atlantic Ocean to the south, Vineyard Sound to the east, and Cape Cod Bay to the north. In 2002, there were nearly 10,000 commercial vessel transits and over 1200 tank barge transits in Buzzards Bay. An estimated 80% of those tank barges were single hull vessels. Note that the term “single hull” and other terms used in this proposed rule have the same meaning as those found in Title 33, Code of Federal Regulations (CFR), § 165.100(b).

Since 1969 there have been several incidents of tank barge groundings with oil spills in Buzzards Bay. These include the grounding of the tank barge Florida in 1969 with a spill of approximately 175,000 gallons of No. 2 fuel oil; the grounding of the tank barge Bouchard in 1977 with a spill of approximately 81,000 gallons of No. 2 fuel oil; the grounding of the tank barge ST-85 in 1986 with a spill of approximately 119,000 gallons of gasoline; the grounding of the tug Marie J. Turecamo and its asphalt-laden barge in 1999; the grounding of the tug Mary Turecamo and its barge Florida in 1999 carrying 4.7 million gallons of No. 6 fuel oil; and the grounding of the barge B-120 in April 2003 with a spill of No. 6 oil estimated to be of approximately 22,000 to 98,000 gallons.

Groundings, allisions, or collisions of tank barges or other laden vessels could lead to a discharge or release of oil or other hazardous materials, as demonstrated by the incidents noted above, with potentially adverse impacts to people, property, the coastal and maritime environment, and the local economy. The purpose of these proposed regulations for navigation safety and waterways management improvements in Buzzards Bay is to reduce the likelihood of another incident that might result in the discharge or release of oil or hazardous material, or other serious harm, on the navigable waters of the United States.

After a previous oil spill from the tank barge North Cape off of Point Judith, Rhode Island, in 1996, the Coast Guard chartered a Regional Risk Assessment Team (RRAT), comprised of government, commercial, and environmental entities, to examine navigation safety issues within New England waters. The RRAT recommended, and the Coast Guard implemented, a RNA that imposed certain requirements on single-hulled tank barges transiting New England waters, including Buzzards Bay. Regulations governing the RNA in First Coast Guard District waters are contained in 33 CFR § 165.100.

Subsequent to an oil spill in Buzzards Bay in April, 2003, noted above, the Coast Guard sponsored a Ports and Waterways Safety Assessment (PAWSA), which was conducted by a cross-section of key Buzzards Bay waterways users and stakeholders, resulting in numerous suggestions for improving navigation safety in the Bay. The safety assessment process is a disciplined approach to identify major waterway safety hazards, estimate risk levels, evaluate potential mitigation measures, and set the stage for implementation of selected measures to reduce risk. The process involves convening a select group of waterway users/stakeholders and conducting a two-day structured workshop to meet these objectives. The assessment process represents a significant part of joint public-private sector planning for mitigating risk in waterways. When applied consistently and uniformly in a number of waterways, the process is expected to provide a basis for making best value decisions for risk mitigation investments, both on the local and national level. For further information on PAWSA visit: http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_home.htm.

The PAWSA report suggested, in part, that the risk for oil or hazardous material discharge in Buzzards Bay is relatively high, and that one method of reducing that risk, among many that were suggested, might be to “establish requirements for escort tugs.” (The PAWSA report is available in docket CGD01-04-133. See ADDRESSES above on procedures to access the docket.) The PAWSA also recommended that Recommended Routes be established to help assist vessel traffic and provide safer transit routes for commercial vessels.

Additionally, in a letter from several members of the U.S. Congressional delegation from Massachusetts, the Coast Guard was asked to consider measures similar to those recommended in the PAWSA, specifically: assist tugs, Recommended Routes, and an Automatic Identification System (AIS). This letter, along with the Coast Guard's response, is available in the docket. Automatic Identification System (AIS) is a data transmission system for ship-to-ship, ship-to-shore, and shore-to-ship communication adopted by the International Maritime Organization (IMO). AIS shipboard equipment consists of a transceiver that continually transmits and receives vessel navigational information (position, course, speed, etc.) over VHF-FM maritime frequencies. AIS units operating in proximity to each other automatically create a virtual network. Shore stations can also join these virtual networks, and they may receive shipboard AIS signals, perform network and frequency management and send additional broadcast or individual informational messages to AIS equipped vessels.

As of December 31, 2004, AIS is required on most commercial vessels either navigating abroad or within a Vessel Traffic Service area. (See 33 CFR § 164.46.) Under a separate regulatory initiative, the Coast Guard sought public comments on the notion of expanding AIS requirements beyond the regulations of 33 CFR § 164.46. Expansion of AIS requirements may apply to Buzzards Bay and/or tug/barge combinations. This initiative is still in progress. See Federal Register Vol. 68, No. 128 of July 1, 2003, pages 39369 to 39371 and docket [USCG 2003-14787] at http://dms.dot.gov/ .

The National Oceanic and Atmospheric Administration (NOAA), at the request of the Coast Guard, has already overlaid Recommended Routes on navigational charts for Rhode Island Sound, Narragansett Bay, and Buzzards Bay. These recommended Routes are currently included on all new editions of charts 13205, 13218, 13221, and 13230. To allow maximum operating flexibility to meet differing conditions and situations, at this time the Coast Guard is not proposing to make the recommended vessel routes depicted on these charts mandatory.

Currently, an escort tug is required in Buzzards Bay only for single hull tank barges, unless the single hull tank barge is being towed by a primary towing vessel with twin-screw propulsion and with a separate system for power to each screw. Consequently, the vast majority of tug and barge combinations transiting Buzzards Bay (of which most barges are single hull) employ tugs with twin screws and twin engines, but with no additional positive control.

On October 26, 2004, the Coast Guard published an Advance Notice of Proposed Rule Making (ANPRM) that sought public comments regarding the necessity and type, if any, of additional navigation safety measures that might be implemented within Buzzards Bay (See Federal Register , Vol. 69, No. 206, pages 62427 to 62430). Approximately forty written comments were received. Additionally, two public meetings were held to obtain direct feedback from the public on November 16, 2004, at the New Bedford Whaling Museum, and on November 17, 2004, at the Massachusetts Maritime Academy. There were 76 and 47 speakers offering comments at each meeting, respectively. Written comments, and a roster of speakers from each meeting, are available for viewing in the docket at http://www.uscg.mil/d1/units/msoprov/ .

Comments (both oral and written) generally fell within the following categories:

Root Cause: Comments noted that the root cause of most maritime incidents in Buzzards Bay could be attributed to human error rather than equipment failure, hazardous weather, or other factors.

The Coast Guard agrees that the root cause of many maritime incidents and casualties, including the B-120 oil spill in Buzzards Bay, may be attributed to human factors. Consequently, in this rulemaking the Coast Guard proposes certain measures such as mandatory pilotage by a federally licensed pilot, escort tugs, and a vessel monitoring system, to reduce the likelihood that human factors may cause an accident, and to mitigate the adverse impact of any casualties that may occur.

Pilotage: Comments noted that the proficiency standards for federally licensed pilots were inadequate and in need of revision, and that federally licensed pilots were generally not as experienced in tug/barge navigation as were the captains of the tugs themselves.

Currently, to obtain a Federal pilot's license (or endorsement) to operate a vessel in Buzzards Bay, a person must pass a comprehensive examination, which includes, but is not limited to, performing a chart sketch of the area, demonstrating proficiency in the use of navigational aids, and maneuvering and handling ships in high winds, tides, and currents. Further, a person must complete a specific number of round trips and demonstrate specialized knowledge of the waters for which the license (or endorsement) is issued.

The Coast Guard considers these proficiency standards to be sufficient for monitoring and guiding the movements of tug/barge combinations through Buzzards Bay.

Crewing: Comments noted that the crewing requirements for tugs towing barges were inadequate, and recommend increased crewing requirements.

The Coast Guard concurs with the view that current crewing requirements may be insufficient for the navigational demands associated with transiting Buzzards Bay, and so has proposed in this rule to require a federally licensed pilot in addition to the crew to advise the master and assist in the navigation of the vessel.

Cost/Availability of Escort Tug: Comments expressed concern regarding the cost of escort tugs and pilotage, and also the availability, or lack of, escort tugs within Buzzards Bay of sufficient capability to provide escort services.

Based on interviews with representatives from various components of the maritime industry, the Coast Guard considers escort tug capacity to be sufficient to meet the projected demand for escort tugs. In our Regulatory Evaluation that accompanies this rulemaking and is available in the docket (CGD01-04-133), the Coast Guard projects that the demand for escort tugs will decrease over time as progressively fewer transits of Buzzards Bay are made with single hull tank barges. Also, in our Regulatory Evaluation we have documented anticipated costs associated with escort tugs and federally licensed pilots and found those costs, when compared to the benefits realized by the avoidance of vessel casualties and oil spills, to be reasonable.

Definition of Escort Tug: Comments noted that “escort tug” should be well-defined in any regulation, and also provided suggestions on what that definition should include.

“Escort tug” as used in this proposed rule has the same meaning as the description of escort tug already found in 33 CFR 165.100(d), i.e. , the escort tug must be of “sufficient capability to promptly push or tow the tank barge away from danger or grounding in the event of—

(A) A propulsion failure;

(B) A parted tow line;

(C) A loss of tow;

(D) A fire;

(E) Grounding;

(F) A loss of steering; or

(G) Any other casualty that affects the navigation or seaworthiness of either vessel.”

Aids to Navigation: Comments expressed a need for improved aids to navigation within Buzzards Bay, including a wave height indicator at the Buzzards Bay tower, a weather buoy at the east end of the Cape Cod Canal, and auxiliary navigation channels adjacent to the Buzzards Bay recommended vessel route.

The Coast Guard has reviewed the aids to navigation system in Buzzards Bay and has re-positioned several buoys, and has plans to install some new lighted aids and ranges, particularly in Cleveland Ledge and Hog Island channels, in 2006 or 2007, pending funding. Additionally, the National Oceanic and Atmospheric Administration (NOAA) operates a wave height indicator at the Buzzards Bay tower.

Increased Navigation Risks Due to Presence of Escort Tugs: Comments noted that escort tugs themselves could increase danger due to additional vessels in the constrained channels of Buzzards Bay and the Cape Cod Canal.

Voluntary use of escort tugs in Buzzards Bay and the Cape Cod Canal has long been practiced with no adverse impacts on the ability of other vessels to navigate safely. The amount of good water in lower Buzzards Bay is considered sufficient for vessels to navigate safely, even with the addition of escort tugs. Additionally, the U.S. Army Corps of Engineers' authority for (and control of) the Cape Cod Canal encompasses in their entirety the constrained waterways of Cleveland Ledge Channel, Hog Island Channel, and the canal itself (the canal land cut). On those few occasions (primarily in winter when home heating oil deliveries increase) where several tugs with tows and escort tug may converge, or approach converging, near one of these constrained waterways, the Corps would direct vessel traffic to minimize risk of collision. Lastly, this proposed rule includes establishment of a Vessel Movement Reporting System (VMRS) in Buzzards Bay that would provide for monitoring of all tug and tank vessel traffic in the Bay, and would provide an opportunity for the Coast Guard to issue advisories should traffic be congested to a point that adversely affects navigation safety. Consequently, because most tug and tank vessel operators that routinely navigate in Buzzards Bay are already familiar with the Corps' requirements and practices for transiting the Cape Cod Canal, and because VMRS would add an additional means to monitor vessel traffic, it is felt that tug and tank vessel operators should experience little or no difficulty accommodating an escort tug in accordance with this proposed rule.

Increased Danger to Pilots: Comments suggested there may be increased danger to a pilot required to embark either an escort tug or primary tug ( i.e. , the tug towing the tank vessel) from a pilot boat, where no special accommodations to embark a pilot at sea are normally available on a tug.

The Coast Guard recognizes the danger inherent in pilots embarking escort tugs or primary tug while underway within Buzzards Bay. In this proposed rule we permit the federally licensed pilot to monitor the navigation of the tug/barge combination from the escort tug, assuming the federally licensed pilot would embark the escort tug pierside before departing for its escort duty. This practice has been in effect since at least March 10, 2004, when Bouchard Transportation Company agreed to accommodate federally licensed pilots in this manner.

Recommendation for Draft Restrictions: Comments noted that an effective way to improve navigation safety and reduce the likelihood of a spill would be to reduce the allowable draft of laden barges transiting Buzzards Bay.

Regulations in 33 CFR 157.455 currently address under-keel clearance requirements ( i.e. , “draft restrictions”) for single-hull tank vessels. Those regulations require, among other things, that owners/operators of single-hull tank barges provide written guidance to towing vessel masters regarding under-keel clearance, and include factors to consider such as controlling depth of water, deepest navigation draft, weather, and other environmental conditions. While under-keel clearance restrictions may expand the margin of error afforded tank vessels being towed through Buzzards Bay, the Bay remains a confined waterway and history has demonstrated that such regulations alone are insufficient to attain the level of navigation safety required for Buzzards Bay. For example, despite being subject to (and complying with) these under-keel clearance regulations, tank vessels continue to ground and spill oil in Buzzards Bay, notably the barge Florida in 1999 and the barge B-120 in 2003. Additionally, more severe under-keel clearance requirements would most likely reduce the amount of oil carried each transit and thus may have the unintended consequence of actually increasing the risk of vessel casualties and oil spills as more vessel traffic would be required to carry a similar amount of oil to meet demand for heating and electrical generation. Lastly, should draft restrictions result in additional voyages with smaller cargoes of oil, the cost of the delivery would rise and would almost assuredly be passed to consumers. Consequently, the Coast Guard considers under-keel regulations in addition to those already found in 33 CFR 157.455 to be unnecessary as they would not add significant value in terms of preventing an incident.

Miscellaneous: Some comments noted that current regulations were insufficient to prevent accidents and spills in Buzzards Bay; others commented that current regulations were sufficient, if only they were properly enforced. Other comments suggested that, as an alternative to escort tugs, rescue tugs be strategically stationed in Buzzards Bay, ready to respond at a moment's notice. Although the comments did not specifically recommend the nature or specific mission of a “rescue tug,” generally a rescue tug is considered to be a dedicated tugboat equipped to respond and provide assistance to distressed vessels, primarily by towing. Rescue tugs typically have capabilities for pumping, fire fighting, and pollution response. Normally a rescue tug is continuously manned and “on station”, which means it is either at its berth or assigned location (e.g., a designated anchorage) ready for immediate dispatch, or underway presumably involved in a rescue. Evaluations of the potential benefit of rescue tugs in other waterways of the country (specifically, Puget Sound) have determined them to be a high-cost, low-benefit alternative as they have little or no capability to prevent collisions, allisions, or groundings, which is a primary goal of this proposed rule. (See “Regulatory Assessment, Use of Tugs to Protect Against Oil Spills, in the Puget Sound Area”, Report Number 9522-022, November 15, 1999, available in the docket.)

The Coast Guard examined both our current regulations and our enforcement policies and determined that additional regulations, as proposed in this rule, were required to achieve our goal of preventing vessel casualties and spills within Buzzards Bay.

The proposed amendments to the current First Coast Guard District RNA would require that all single-hull tank barges carrying 5000 or more barrels of oil or other hazardous material and being towed through Buzzards Bay, meet the following requirements:

1. Be accompanied by an escort tug between the west entrance to Buzzards Bay and the east end of the Cape Cod Canal.

2. Be accompanied by a federally licensed pilot, who may remain on the escort tug vessel, to monitor the navigation of the tug/barge, and to advise the master of the tug/barge accordingly.

Additionally, this rule proposes to establish a Vessel Movement Reporting System (VMRS) (33 CFR part 161, subpart B) within Buzzards Bay to monitor the movements of all vessels subject to Vessel Bridge-to-Bridge VHF Radiotelephone regulations (33 CFR part 26), either by AIS, and/or via voice reporting via VHF radiotelephone. Daily operations of the VMRS would be monitored and managed by the U.S. Army Corps of Engineers at its Cape Cod Canal control center on behalf of the Coast Guard. (The Corps has indicated its willingness and ability to perform this function.) The Coast Guard would retain authority to enforce this proposed rule and other regulations to ensure navigation safety. Should the VMRS proposed in this rule ultimately be established, the Coast Guard and the U.S. Army Corps of Engineers will enter into a Memorandum of Understanding to delineate the functions and responsibilities of each agency in operating the VMRS. This MOU will be a public record and would be available in the final docket CGD01-04-133.

This proposed rule is needed for navigation safety reasons to protect people, property, waterways users, the environment, and the economy from the adverse affects of a spill of oil or other hazardous material. Vessels subject to this proposed rule would be required to have a escort tug and federally licensed pilot, and would also be required to participate in a Vessel Movement Reporting System.

This regulation is proposed under the authority of 33 U.S.C. 1321, in addition to the authority contained in 33 CFR 1.05-1(g)(4). Vessels or persons violating this section would be subject to the civil or criminal penalties set forth in 33 U.S.C. 1232.

Executive Order 12866, “Regulatory Planning and Review”, 58 FR 51735, October 4, 1993, requires a determination whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and subject to the requirements of the Executive Order. This rule is not significant under Executive Order 12866 and has not been reviewed by OMB.

During the period of analysis, 2006-2014, this rule is expected to cost approximately $3.9 million net present value (7 percent discount rate). A copy of the regulatory evaluation, which further describes the expected costs and benefits of this proposed rule, is posted in the docket and is available to the public at http://www.uscg.mil/d1/units/msoprov/.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of tugs and/or single hull barges carrying 5000 or more barrels of oil or other hazardous materials and intending to transit or anchor in Buzzards Bay, Massachusetts.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons: This proposed rule requires escort tugs and federally licensed pilots only for single hull barges, which are being phased out of operation in accordance with the Oil Pollution Act of 1990 (OPA), specifically 46 U.S.C. 3703a, and will be prohibited from operating effective January 1, 2015. Additionally, the VMRS proposed in the rule making applies only to vessels subject to the bridge-to-bridge radiotelephone regulations in § 26.03 (and therefore already equipped with VHF radios), so no additional costs will be incurred to participate in the VMRS. Those vessels with a type-approved, properly installed, operational AIS would be relieved from the voice reporting requirements as proposed in this rule making.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Edward G. LeBlanc at Coast Guard Sector Southeastern New England, Providence, RI, 401-435-2351. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The reports required by this rule are considered to be operational communications, transitory in nature, and, do not constitute a collection of information under the Paperwork Reduction Act.

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. The U.S. Supreme Court, in the cases of United States v. Locke, 529 U.S. 89 (2000) and Ray v. Atlantic Richfield Co ., 435 U.S. 151 (1978) has ruled that certain categories of regulation issued pursuant to the Ports and Waterways Safety Act of 1972, as amended, are reserved exclusively to the Coast Guard, and that state regulation in these areas is preempted.

On August 4, 2004, the Commonwealth of Massachusetts enacted Chapter 251 of the Acts of 2004, an Act Relative to Oil Spill Prevention and Response in Buzzard's Bay and other Harbors and Bays of the Commonwealth. It is the view of the Coast Guard that several provisions of the Massachusetts Act touch categories of regulation reserved to the Federal Government and are preempted per the rulings in Locke and Ray. The regulations proposed in this notice of proposed rule would likewise touch categories of regulation reserved to the Federal Government, thus becoming further indicia of preemption.

For example, section 11 of the Massachusetts Act purports to impose escort tug requirements on vessels operating in Buzzards Bay. The issue of escort tugs is already addressed in the regulations governing the First District RNA at 33 CFR 165.100 and further addressed in this notice. Section 11 also purports to make the recommended route depicted on the NOAA charts described earlier in this notice mandatory. The Coast Guard has decided not to make this route mandatory at this time. Section 17 of the Massachusetts Act purports to impose a state pilotage requirement on certain vessels engaged in the coastwise trade. It is the view of the Coast Guard that this provision is void by operation of law pursuant to 46 U.S.C. 8501. This notice of proposed rulemaking proposes pilotage by federally licensed pilots for single hull tank barges operating in Buzzards Bay.

Because of the preemption issues described above, the Coast Guard will conduct a Federalism analysis pursuant to E.O. 13132 for any rules promulgated as a result of this notice. Sections 4 and 6 of E.O. 13132 require that for any rules with preemptive effect, the Coast Guard shall provide elected officials of affected state and local governments and their representative national organizations the notice and opportunity for appropriate participation in any rulemaking proceedings, and to consult with such officials early in the rulemaking process. Although it is the view of the Coast Guard that certain sections of the Massachusetts law are preempted for reasons independent of any potential rulemaking action here, in order to comply with the spirit of E.O. 13132, the Coast Guard has already begun consultations with the state government of the Commonwealth of Massachusetts. In addition, at the public meetings held in November 2004, the towns of Bourne, Marion, and Westport, Massachusetts also requested consultations, as did 10 other communities in the vicinity of Buzzards Bay through letters to the docket. Such consultations will continue throughout the rulemaking process and we invite comments from those who have expressed a desire to be consulted. We also invite other affected state and local governments and their representative national organizations to indicate their desire for participation and consultation in the rulemaking process by submitting comments to this notice.

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

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

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

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

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

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

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

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

As required under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), a preliminary “Environmental Analysis Checklist” was completed for this NPRM. The Checklist is available in the docket where indicated under ADDRESSES. The level of NEPA documentation for the Rule is recommended in the Checklist. Comments on this section will be considered before we make the final decision on whether or not the rule should be categorically excluded from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 161 and 165 as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule addressed by this proposal with the date it was adopted by District and submitted by the California Air Resources Board (CARB).

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ) in WT Docket No. 06-49 released March 7, 2006. The complete text of the NPRM is available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-09A257, Washington, DC 20554. The NPRM may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-09B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com . When ordering documents from BCPI please provide the appropriate FCC document number, FCC 06-24. The NPRM is also available on the Internet at the Commission's Web site through its Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.

Initial Paperwork Reduction Act of 1995 Analysis: This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. This rulemaking proceeding considers possible measures that could introduce greater flexibility for licensees in the multilateration Location and Monitoring Service (M-LMS) for the purpose of enabling greater responsiveness to changing market conditions, and more efficient and effective use of the M-LMS Band. M-LMS licensees provide service in the 904-909.75 and 919.75-928 MHz portions of the 902-928 MHz band. Multilateration systems track and locate objects over a wide geographic area (e.g., tracking a bus fleet) by measuring the difference in time of arrival, or difference in phase, of signals transmitted from a unit to a number of fixed points, or from a number of fixed points to the unit to be located. This 14 megahertz of spectrum has been shared by a variety of part 15 devices and, since 1995, has been licensed for specified uses by M-LMS defined in part 90 of the Commission's rules. While the NPRM focuses on part 15 and M-LMS operations in the 904-909.75 and 919.75-928 MHz frequency ranges, the Commission acknowledges the many other important uses of these frequencies, including amateur use, and invites such interested parties to comment on the issues raised in the NPRM .

2. Although the proceeding originates partly in response to a 2002 Petition for Rulemaking, the Commission initiates this proceeding to evaluate the ability of the part 90 M-LMS rules to afford licensed service providers greater flexibility to respond to changing market conditions. On April 10, 2002, the Wireless Telecommunications Bureau (Bureau) issued a public notice seeking comment on the Petition under RM No. 10403. The Bureau subsequently extended the comment cycle on the Petition. Given the length of time that has passed since the Bureau issued its Public Notice, the Commission is terminating RM No. 10403 and invites interested parties to submit new and/or updated comments and reply comments in WT Docket No. 06-49.

3. While the Commission considers the advantages and disadvantages of rule changes that could facilitate higher-valued licensed uses of the spectrum in the M-LMS Band, the Commission is mindful that this band is shared by a mixture of licensed services (both federal and non-federal), amateur radio operators, and numerous unlicensed devices authorized under part 15 of the Commission's rules. The Commission makes clear at the outset of this proceeding that the Commission does not seek to alter the rules that govern the relationship among the various federal and non-federal licensed services in this band. Moreover, the Commission recognizes the importance of maintaining the existing accessibility of the band for unlicensed devices, which has led to a proliferation of important public, private, and consumer applications, and for amateur operators. Under 47 CFR 90.361of the Commission's rules, the Commission has established a “safe harbor” rule providing that part 15 and amateur operations that comply with certain technical parameters will not be considered to be causing harmful interference to M-LMS systems. The safe harbor rule defines technical parameters involving antenna location, gain, and height as well as transmitter power. Given the public interest benefits associated with these uses, the Commission tentatively concludes to retain this safe harbor.

4. The Commission's goal in the proceeding is to consider whether greater opportunity can be afforded M-LMS licensees to provide services while ensuring continued access for other licensed and unlicensed uses that share this band. This spectrum has desirable propagation characteristics for mobile and other applications offered by both licensed service providers and certain unlicensed users. The Commission therefore believes it is in the public interest to evaluate whether it is possible to revise the rules in a way that would promote more efficient and effective use of this spectrum. The Commission also views this as an opportunity to consider the spectrum access needs of multiple users and to evaluate any proposals that may improve access and use of the band by both M-LMS and part 15 operations.

5. In 1995, the Commission issued a Report and Order , 60 FR 15248-02, March 23, 1995, which established the Location and Monitoring Service (LMS) as a new radio service to be licensed in the 902-928 MHz spectrum band. This band is shared by a variety of users under a hierarchy of spectrum usage rights. Specifically, this band is allocated on a primary basis to federal radiolocation systems and Industrial, Scientific, and Medical (ISM) equipment. Federal fixed and mobile services are allocated on a secondary basis to federal radiolocation systems and ISM equipment. LMS licensees are allocated on a secondary basis to federal users and ISM devices and may not cause interference to and must tolerate interference from these users and devices. Amateur radio operations are allocated on a secondary basis to LMS. Finally, unlicensed devices are authorized under part 15 to use the 902-928 MHz band, but such devices are not afforded interference protection rights and may not cause harmful interference to LMS licensees, amateur operations, or other licensed systems. These unlicensed part 15 devices, which number in the millions, use this spectrum for a variety of purposes, including remote meter reading, utility load management, cordless telephones, wireless local area networks, and other diverse applications.

6. To facilitate sharing of the band by multiple licensed services as well as unlicensed devices, the Commission placed certain limitations on M-LMS operations, including restrictions on the types of services that could be provided, in part to make for less-intensive location-based applications. The Commission anticipated that these M-LMS service restrictions would spur the provision of new vehicle and other location services while also limiting the potential disruption to existing part 15 operations and other users from unrestricted M-LMS system operations. Specifically, the part 90 rules circumscribe the scope of permissible M-LMS service offerings such that licensees may only use non-voice radio techniques to determine the location and status of mobile radio units and may transmit status and instructional messages, either voice or non-voice, only so long as they relate to the location or monitoring functions of the system. In addition, M-LMS licensees are prohibited from using real-time interconnection with the public switched telephone network (PSTN), except for emergency communications sent to or received from a system dispatch point or public safety answering points. The Commission reasoned that these restrictions would ensure that LMS systems are utilized primarily for location service and not as a general messaging or interconnected voice or data service.

7. Apart from restrictions designed to limit the scope and intensity of M-LMS services, and thereby maintain the coexistence of the many varied users of the band, other part 90 provisions also seek to facilitate spectrum sharing by regulating potential interference between M-LMS operations and part 15 devices. Thus, while unlicensed devices must generally avoid harmful interference to licensed services, the Commission adopted a safe harbor rule for unlicensed devices and amateur operations operating in the band. This rule provides that amateur and part 15 operations conforming to specified technical standards are insulated from claims that such devices cause harmful interference to M-LMS systems. Also, to facilitate coexistence of licensed and unlicensed uses, and in recognition of extensive existing part 15 use of the band, the Commission adopted a rule, 47 CFR 90.361, which requires M-LMS licensees to demonstrate through field tests that their systems do not cause unacceptable levels of interference to part 15 devices. The Commission, however, did not adopt a uniform testing method given the varied technologies, and anticipated that M-LMS licensees and unlicensed users of part 15 devices would collaborate to establish consensus on testing guidelines.

8. Although M-LMS services have not developed as anticipated in the M-LMS Band, users of unlicensed part 15 devices continue to find the 902-928 MHz environment well suited for important applications that benefit consumers. Since adoption of the LMS rules, there has been continued growth in the use of unlicensed devices in this spectrum. Consumers and businesses benefit greatly from their ability to use unlicensed devices in the 902-928 MHz band, and such devices continue to operate effectively despite the assignment of higher-priority spectrum usage rights to M-LMS and other licensed uses of the band.

9. Since 1995, the Commission has sought to provide for, and encourage, the coexistence of both licensed and unlicensed uses in the M-LMS Band. While the unlicensed use of this band has successfully provided consumers with numerous spectrum-based products, the licensed plan for this band has not similarly led to the development of new services. In the NPRM, the Commission seeks comment on whether the Commission can take steps to provide M-LMS licensees additional flexibility to respond to changing market conditions while protecting other licensed applications and federal applications and minimizing interference to unlicensed users.

10. The Commission seeks comment on the feasibility of modifying the part 90 LMS rules in ways that would provide greater flexibility to M-LMS licensees while maintaining continued access for unlicensed devices and other users in this band. The current M-LMS rules place significant restrictions on M-LMS operations that were designed in large measure to limit interference among the variety of users within this band. The Commission inquires whether these restrictions might unnecessarily restrict the use of the band and impede more efficient use of spectrum. The Commission notes that these restrictions were in place at the time the licensees decided to acquire the M-LMS spectrum at auction. A consequence of these restrictions, however, has been that M-LMS licensees may be unnecessarily prevented from providing other services, even as technical advances and market demands change what may be feasible within the interference parameters established for this band. The Commission seeks comment on whether the existing restrictions may be impeding the development of more services of greater value to the public, as well as comment on the feasibility of changing certain rules to provide licensees additional flexibility.

11. The Commission seeks comment on whether restricting M-LMS use to vehicle location and other location-based services continues to serve the public interest. Recent actions by the Commission have advanced the broader development of location-based services in other bands. Shortly after adoption of the M-LMS rules, the Commission adopted its initial E-911 rules, requiring all commercial mobile radio service (CMRS) carriers to meet standards for identifying the location of emergency callers and passing this information to the relevant public safety entities. In addition, there are several non-LMS service providers that offer location service to consumers and businesses. Under these circumstances, the Commission seeks comment on whether there is any public interest benefit associated with continuing to limit M-LMS service flexibility to promote vehicle and other location-based services in the nation's transportation infrastructure? Alternatively, should the Commission maintain these restrictions to preserve M-LMS as essentially a location-based service, but provide licensees with some additional flexibility to offer their location-based services by, e.g. , eliminating spectrum aggregation constraints, testing conditions, or limits on non-vehicular offerings?

12. Commenters should consider whether it is possible to replace some or all of the M-LMS service restrictions with more flexible rules that would allow licensees to provide additional services, provided they would not cause any significant increase in interference to other users in the band. Specifically, the Commission seeks comment on the extent to which stricter power limits or other technical restrictions, could limit the potential for interference between more flexible licensed use and existing unlicensed use of the M-LMS Band. Should M-LMS licensees be permitted to provide any type of service, whether or not it is location-based, provided they comply with such limits? Would such an approach be more effective than existing use restrictions in promoting flexibility for M-LMS licensees, protecting other licensed and federal users, and minimizing interference to part 15 users? In addition, should the Commission eliminate limits on real time interconnection limiting such applications to emergency communications only?

13. Assuming it is technically feasible to afford flexibility without major consequences to part 15 devices, are there reasons why the Commission should not extend to M-LMS additional flexibility to meet market demands? To what extent do existing restrictions impair (or not impair) the ability of M-LMS licensees to provide services that may be desired by the public? The Commission directs commenters to consider whether the interference environment in the M-LMS Band has changed since adoption of the M-LMS rules in 1995 and whether there are new technologies (such as innovations in frequency agility) that obviate the need for the M-LMS service or interconnection restrictions.

14. Alternatively, if commenters believe that it would not be in the public interest to completely eliminate the restrictions on the types of services that may be offered, the Commission asks them to comment on the degree to which the Commission could or should relax the restrictions on permissible communications and type of interconnection. Should the Commission permit any type of location or location-based service? Or, should the Commission continue to limit M-LMS to vehicle location as a primary service and non-vehicular location only on an ancillary basis? Should the Commission afford M-LMS licensees the additional flexibility to provide new non-location based services, but not permit unrestricted real time interconnection? Could limits on real time interconnection be modified, if not eliminated, such that licensees could provide additional PSTN-oriented services while not increasing the potential for interference to users of part 15 devices in the band? If parties believe that any alteration of the status quo would create an unacceptable increase in the risk of interference, they should support their position with specific analysis demonstrating the degree to which other alternatives (presented here or by other parties) would impact their operations.

15. The Commission notes that the part 2 Table of Allocations for the 902-928 MHz Band does not contain a general non-federal allocation, but a footnote to the table specifically references LMS. Note US218 to the U.S. Table of Allocations provides that the 902-928 MHz band is available for LMS provided that LMS systems do not cause harmful interference to federal stations, and that they tolerate interference from ISM devices and federal stations in the band. In this context, the Commission seeks comment on whether affording M-LMS licensees additional flexibility would require it to clarify or redefine the range of permissible communications by M-LMS licensees in the Table of Allocations. The Commission stresses that if this is required, the Commission does not propose to change the fundamental relationship between ISM and federal users, on the one hand, and M-LMS licensees on the other. Rather, the Commission only considers modification of Commission rules to promote additional flexibility for M-LMS while maintaining its allocation on a secondary basis to ISM devices and federal operations.

16. The Commission also seeks comment regarding whether provisions of other rule parts should govern the provision of M-LMS services. For example, if the Commission decides to provide licensees the flexibility to provide a variety of services (e.g., fixed, mobile, etc.) under more than one regulatory status (i.e., common carrier, non-common carrier, private internal), should a M-LMS licensee then be subject to other regulatory requirements? The Commission seeks comment on any provisions in existing, part 90 M-LMS rules that may require specific recognition or adjustment to comport with the potential definition of an expanded scope of permitted M-LMS services. In addition, the Commission seeks comment on part 1 and any other wireless radio services rules that should be modified or updated to reflect a service-neutral approach to permissible M-LMS communications.

17. The Commission seeks comment on whether, by adopting stricter power limits for M-LMS licensees, the Commission can better serve the goal of providing these licensees more flexibility while minimizing interference to these unlicensed devices. The Commission also solicits comment on any other technical approaches that could be used independently, or with a reduced M-LMS power limit, including possible technical approaches that are similar to the Commission's frequency hopping and digital modulation rules set forth in 47 CFR 15.247.

18. The Commission believes any proposal to provide more flexibility to M-LMS licensees in terms of permissible services requires consideration of other rule revisions that may be necessary to minimize the potential for interference to part 15 devices in the M-LMS Band. The Commission seeks comment on whether revising existing power limits applicable to M-LMS licensees would achieve this goal. One factor in the potential for interference from M-LMS to part 15 operations results from the difference in power between the potentially competing uses. Currently, M-LMS licensees are permitted a maximum of 30 Watts effective radiated power (ERP), which equals 49.2 Watts equivalent isotropically radiated power (EIRP). Part 15 devices (utilizing spread-spectrum or wide digital emissions) may operate with parameters that result in a maximum permitted EIRP of 4 Watts in the 902-928 MHz band. Because existing M-LMS licensees may operate with 12.3 times as much power as part 15 devices, more flexible M-LMS operations could result in a significant increase in interference to nearby part 15 devices. Thus, reducing the maximum permitted M-LMS transmitter power across some minimum bandwidth could reduce the potential area around an individual M-LMS station where interference to part 15 devices is most likely.

19. The Commission therefore seeks comment on the consequences of reducing the maximum permitted transmitter power in the three primary M-LMS band segments: 904.000-909.750 MHz, 919.750-921.750 MHz, and 921.750-927.250 MHz. The Commission seeks specific comment on whether reducing the maximum permitted transmitter power of M-LMS in these segments, from the current limit of 30 Watts ERP to a new lower limit of 6.1 Watts ERP (which equals 10 Watts EIRP), would result in an environment where M-LMS stations operate on far more comparable power levels with part 15 devices, provided an appropriate minimum bandwidth or methodology is specified on how power would be measured for new flexible M-LMS operations. In this regard, the Commission notes the possibility of imposing a power spectral density requirement. In commenting on reduced M-LMS power limits, commenters should raise and discuss minimum bandwidths or other appropriate methodologies underlying the degree of power differentials. Under such a rule change, M-LMS licensees would be allowed to operate their stations with only 2.5 times as much power as part 15 device users, rather than the 12.3 times now permitted under Commission rules. The Commission seeks comment on whether this would sufficiently minimize the potential for interference to part 15 users, if the M-LMS service-based restrictions were modified or eliminated. Would reducing the maximum power from 30 Watts ERP to 6.1 Watts ERP be sufficient by itself to mitigate the potential for interference? Is such a limitation more or less restrictive than the status quo, especially since M-LMS licensees may be permitted under current rules to provide packet-based, voice and other services that bypass the PSTN? If a commenting party believes that lowering the transmitter power limit to 6.1 Watts ERP is insufficient to address potential interference, or too great for M-LMS licensees to provide economically viable services to the public, it should specifically state what an appropriate power limit would be.

20. Each of the three M-LMS block licenses has an associated 0.25 megahertz channel (located in the 927.25 to 928 MHz portion of the band), which is subject to a current 300 Watts ERP (which equals 492 Watts EIRP) power limit per transmitter. The Commission seeks comment on reducing these limits to a maximum 10 Watts ERP power limit for each channel to mitigate the potential for unreasonable interference to existing part 15 devices. The Commission also seeks comment on whether more flexible M-LMS operations could be provided at a power level higher than 10 Watts ERP on these channels without impairing the viability of unlicensed operations. In addition, the Commission seeks comment on whether the current field strength limit of 47 dBuV/m at the M-LMS licensee's EA boundary would continue to be reasonable, if the Commission adopts changes to the technical rules as contemplated herein.

21. The Commission also seeks comment on other technical approaches that could be used independently or with these reduced M-LMS power limits. For example, the Commission seeks comment on whether to adopt technical rules for M-LMS operations that are similar to the frequency hopping and digital modulation rules set forth in section 15.247 of the Commission's regulations. Section 15.247 generally permits a higher than normal transmitting power for part 15 devices that use frequency hopping or digital emissions which cause the transmitted energy to be spread out across the band rather than concentrated in a relatively narrow bandwidth. Spread spectrum emissions mitigate potential interference, particularly to narrowband operations in the same spectrum, because not only do they cause less interference by inducing less energy into the receivers of such operations, but also because spread spectrum receivers have a much greater immunity to interfering signals. Commenters should address whether the Commission could allow the greater M-LMS service flexibility if stations were required to use spread spectrum or broadband digital emissions.

22. If the Commission were to adopt rules similar to those set forth in section 15.247 and apply them to M-LMS, these licensees (with their 10.9 dB greater power than part 15 operations) could possibly use the same equipment (only with more power), be interoperable with part 15-based services, and have common subscribers. The Commission seeks comment on the advantages or disadvantages of permitting M-LMS stations to provide the same types of services using the same technologies that part 15 devices already are permitted to use in the M-LMS Band. To the extent that a subset or all of the spectrum in this band could be used to accelerate the deployment of broadband through new technical provisions, the Commission seeks comment generally whether the public interest would be served.

23. Under such an adaptation to the M-LMS rules, the Commission seeks comment on whether the spectral power density limit of section 15.247, adjusted for the power levels for M-LMS stations ( i.e. , a 10 Watt EIRP limit for M-LMS stations, which represents a 4 dB increase over the existing 4 Watt EIRP limit for part 15 devices), would satisfactorily eliminate unreasonable interference to part 15 operations. Specifically, would a spectral power density limit of 12 dBm per 3 kHz be technically reasonable and appropriate? The Commission also seeks comment on a minimum bandwidth for digital modulation (including direct sequence spread spectrum). Would the 6 dB emission bandwidth of 500 kHz used in section 15.247 also be technically reasonable and appropriate for M-LMS and permit part 15 devices to continue to use the M-LMS Band without unreasonable interference? Section 15.247 of the Commission's rules, 47 CFR 15.247, also includes provisions regarding occupancy time, and separate power limits based on the number of hopping channels used for frequency hopping spread spectrum devices. If the Commission were to adopt spread spectrum rules for M-LMS that are similar to those in section 15.247 should M-LMS licensees be permitted to use frequency hopping spread spectrum modulation? If so, what power and other technical limits would be appropriate and enable users of part 15 devices to continue to operate in the band without unreasonable interference?

24. In order to ensure that existing part 15 devices do not suffer any significant increase in interference from a flexible M-LMS service, the Commission asks parties to come forward with any other technical solutions that they would support in this context. The Commission notes ideas such as limiting the number of simultaneous M-LMS spread spectrum users to reduce the potential for interference to unlicensed users of the M-LMS Band, as well as limiting the duty cycle of non-spread spectrum emissions to reduce the potential for interference to unlicensed users. Would such limits protect primary band users ( e.g. , ISM devices and federal radiolocation service) while limiting adverse effects on users/services allocated on a secondary basis? The Commission invites comment on these and any other proposals. Besides power-related limits and measures, the Commission will consider any other proposals that would provide more flexibility to M-LMS than current rules. The Commission also seeks comment on whether allowing these stations to operate using such technologies at higher power levels than permitted generally under section 15.247 would raise any questions related to human exposure to electromagnetic radiation and whether they therefore should be subject to sections 2.1091 and 2.1093 of the Commission rules, 47 CFR 2.1091, 2.1093.

25. The Commission's part 90 M-LMS rules provide that within an EA, a licensee may aggregate M-LMS spectrum in Blocks B (2.25 megahertz) and C (5.75 megahertz), for a total of 8 megahertz, but spectrum Block A (6 megahertz) may not be aggregated with these other blocks. The Commission notes that when adopting this aggregation restriction in 1995, the Commission reasoned that the restriction would foster multiple M-LMS location service providers and technologies. Today, numerous types of location services exist using a variety of bands and technologies. The Commission therefore seeks comment on whether the original rationale for restricting aggregation of M-LMS licenses remains valid in the current communications marketplace.

26. The Commission also seeks comment on whether eliminating the M-LMS aggregation limits has the potential to reduce interference to other users of the M-LMS Band and facilitate the provision of new M-LMS services. For example, would eliminating this restriction increase the potential for unlicensed use and reduce the potential for interference by giving M-LMS licensees greater flexibility to choose among a greater pool of available frequencies? Or would permitting one provider to control all 14 megahertz of M-LMS spectrum in an EA make access for unlicensed devices in the 902-928 MHz band more difficult? For example, would it be more difficult for unlicensed users to frequency-hop, especially if PSTN interconnection by the M-LMS licensee were permitted? Finally, in considering whether to allow M-LMS aggregation, to what degree should the continued availability to part 15 operations of the 12 megahertz of non-multilateration LMS spectrum be a factor in the Commission's analysis?

27. As stated at the outset of the NPRM, the Commission tentatively concludes that the section 90.361 safe harbor provision should be retained. The Commission believes this rule effectively delineates rights and responsibilities such that the efficient sharing of the band can occur with limited potential for interference. The safe harbor provides a bright line for all parties, licensed and unlicensed, operating in this band. The Commission believes that defining the scope of unlicensed operations legally protected from claims of harmful interference by M-LMS licensees has served the public interest. In originally adopting this standard, the Commission explained that the safe harbor rule was the result of an extensive rulemaking record and careful consideration of all parties' interests. The Commission does not believe that there have been sufficient changes in the 902-928 MHz interference environment, or the Commission's policy objectives regarding use of the band by unlicensed part 15 devices and amateur radio licensees, to support a repeal of the safe harbor.

28. Moreover, to provide M-LMS licensees with the flexibility of use, the Commission does not believe it is necessary to eliminate a provision that adds certainty for the multitude of users of part 15 devices in this band. The Commission is cognizant of the competitive impact that elimination, or substantial modification, of the safe harbor standard could have on the large number of manufacturers and users of existing part 15 devices in the M-LMS Band. Elimination of the safe harbor provision could come at great cost to part 15 manufacturers and systems that have made investments in developing and deploying equipment within the safe harbor provision.

29. Thus, the Commission proposes to retain the section 90.361 safe harbor provision as an effective standard that precisely defines part 15 and amateur radio operators' rights relative to M-LMS licensees. The Commission seeks comment on this tentative conclusion. Parties who oppose this tentative conclusion should provide arguments that identify specific, alternative mechanisms that would provide the existing level of access for part 15 and amateur operations in this band, and they should provide specific economic and technological evidence supporting their proposals and views. In addition, parties supporting any modifications to the safe harbor that would be based on proximity to M-LMS sites or other factors should offer proposed rules and specifically explain how such provisions would ensure the same degree of access for part 15 devices that exists today.

30. Section 90.353(d) of the Commission's rules, 47 CFR 90.353(d), requires M-LMS licensees to “demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to 47 CFR 15 devices.” The Commission seeks comment on modifying or eliminating this part 90 regulation.

31. Given the Commission's proposals discussed above to consider revisions to the M-LMS rules designed to facilitate shared use of the band, as well as the Commission's tentative conclusion to retain the part 15 safe harbor, the Commission seeks comment on whether the interference-testing requirement is necessary. Can reliance on well-defined technical limits, instead of the testing requirement, facilitate the introduction of new services by M-LMS licensees without jeopardizing the ability of users of part 15 devices to continue to operate in the M-LMS Band? To what extent can technologies such as dynamic frequency selection, spread spectrum, and others be adequate to avoid interference instead of field tests? Given these considerations, what would be the impact to part 15 operations of repealing the testing requirement? If the Commission decided to repeal the testing requirement, are there other technical limits (other than those described above) that the Commission should consider to mitigate interference concerns?

32. The Commission also seeks comment on the costs and benefits of developing a more specific rule in place of the part 15 interference-testing requirement. The testing requirement requires M-LMS licensees to consider existing systems of part 15 devices when designing and constructing their systems to minimize interference. Is this burden warranted given that users of part 15 devices do not have priority over M-LMS operations, and there is no database identifying the actual unlicensed users and operators? What effect would a modified and more specific testing condition have on the development and deployment of more flexible M-LMS equipment and services? Parties who favor retention of the testing requirement should explain why it remains necessary, and how it could be defined so that M-LMS licensees could readily assess whether they would cause unacceptable levels of interference to part 15 devices.

33. The Commission seeks comment generally on any further proposals that could allow greater flexibility while avoiding any significant increase in interference to part 15 operations. The Commission notes that the technical limitations are specifically intended to reduce the potential for interference in the band. Nonetheless, the potential remains, and conflicts among competing uses could result, because no one technical rule can guard against all interference, whether or not it is classified as legally harmful.

34. Thus, the Commission seeks comment on how to maintain, and clarify or augment if necessary, the ability of M-LMS licensees and operators of part 15 devices to coexist in the M-LMS Band. Given the Commission's belief that the best course is to facilitate objective measurement of currently subjective assessments as to what may be “harmful,” the Commission seeks comment generally on any other proposals that would be appropriate to reach an appropriate balance between multiple users. Would prior notification or other coordination measures be beneficial and appropriate to reach a balancing of interests? What about industry-run solutions or additional safe harbors? For example, should the Commission adopt a reciprocal safe harbor for M-LMS whereby M-LMS licensees would have some assurances against objections from operators of part 15 devices, yet included in the safe harbor could be certain conditions that M-LMS licensees would have to meet to ensure that they considered existing part 15 devices before deploying new services?

35. In addressing the possible rule changes in the NPRM, the Commission asks parties to comment on the degree to which the part 15 devices of interest here are operating in the 14 megahertz of spectrum in the M-LMS Band compared to operations in other portions of the band. The Commission intended to assign the 12 megahertz of non-multilateration spectrum to portions of the band where amateur, federal, and part 15 use of the band is the greatest. Accordingly, the Commission requests information ( e.g. , including data points and relevant percentages of use where available) from interested parties using or manufacturing part 15 devices for operation in the M-LMS Band. For example, what percentage of a party's part 15 devices used to read meters, support WISP operations, etc. are designed or programmed to operate on the 904-909.75 and 919.75-928 MHz portions of the 902-928 MHz band? If such data is available, it would also be helpful if parties, including those parties using authorized frequency-hopping devices, could provide information regarding the intensity, duration, etc. of actual operations on the 904-909.75 and 919.75-928 MHz as compared to other portions of the 902-928 MHz band.

36. As required by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in the NPRM. The IRFA is set forth in the Appendix. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to the NPRM, and must have a separate and distinct heading designating them as responses to the IRFA.

37. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It does not, therefore, contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

38. The rulemaking the NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules.

39. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules considered in the NPRM, WT Docket No. 06-49. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided on page one of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

40. This rulemaking proceeding considers possible measures that could introduce greater flexibility for licensees in the multilateration Location and Monitoring Service (M-LMS) for the purpose of enabling greater responsiveness to changing market conditions, more efficient and effective use of the M-LMS Band, and more robust secondary markets in radio spectrum usage rights. M-LMS licensees provide service in the 904-909.75 and 919.75-928 MHz portions of the 902-928 MHz band. This 14 megahertz of spectrum has been shared by a variety of part 15 devices and, since 1995, has been licensed for specified uses by M-LMS defined in part 90 of the Commission's rules. Multilateration systems track and locate objects over a wide geographic area (e.g., tracking a bus fleet) by measuring the difference in time of arrival, or difference in phase, of signals transmitted from a unit to a number of fixed points, or from a number of fixed points to the unit to be located.

41. In the decade since M-LMS was established there has been very limited development of M-LMS under the existing rules. Specifically, when the Commission adopted its LMS rules in 1995, it expected that both M-LMS and non-multilateration LMS systems would play an integral role in the development and implementation of advanced radio transportation-related services. However, only two M-LMS licensees, Teletrac and Ituran, operate M-LMS systems, and these exist in only a small number of markets. Given these present circumstances, the Commission initiates this proceeding to determine whether new approaches could produce more efficient and effective use of the 904-909.75 and 919.75-928 MHz spectrum band by LMS licensees.

42. Through the NPRM, the Commission seeks to determine whether current M-LMS rules are limiting licensees from providing services that are desired in the market and that could be profitably deployed without causing harmful interference to other users. Specifically, the part 90 rules circumscribe the scope of permissible M-LMS service offerings such that licensees may only use non-voice radio techniques to determine the location and status of mobile radio units and may transmit status and instructional messages, either voice or non-voice, only so long as they relate to the location or monitoring functions of the system. In addition, M-LMS licensees are prohibited from using real-time interconnection with the public switched telephone network (PSTN), except for emergency communications sent to or received from a system dispatch point or public safety answering points.

43. The Commission seeks comment on whether it can promote more efficient use of the M-LMS Band by modifying or eliminating M-LMS restrictions on types of communication and interconnection, while avoiding any significant increase in interference to unlicensed users. The Commission also seeks comment on whether interference that might result from expanded service M-LMS offerings could be mitigated by adopting stricter power limits for M-LMS licensees, introducing frequency hopping, or altering digital modulation rules.

44. In addition, the Commission seeks comment on whether eliminating the M-LMS aggregation limits has the potential to reduce interference to other users of the M-LMS Band and facilitate the provision of new M-LMS services. The Commission also seeks comment on its tentative conclusion that it should retain the part 90 safe harbor provision. Furthermore, the Commission seeks comment on whether reliance on well-defined technical limits, instead of the testing requirement, can facilitate the introduction of new services by M-LMS licensees without jeopardizing the ability of users of part 15 devices to continue to operate in the M-LMS Band.

45. The Commission makes clear at the outset of this proceeding that it does not seek to alter the rules that govern the relationship among the various federal and non-federal licensed services in this band. It also recognizes the importance of maintaining the existing accessibility of the band for unlicensed devices and for amateur operators. The Commission's goal in this proceeding is to consider whether greater opportunity can be afforded M-LMS licensees to provide services while ensuring continued access for other licensed and unlicensed uses that share this band. In the following paragraphs, the Commission discusses the potential impact on small entities of proposals made in the NPRM to accomplish this goal.

46. The potential actions about which comment is sought in the NPRM would be authorized pursuant to the authority contained in sections 1, 4(i), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 303(r).

47. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one 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.

48. The NPRM could result in rule changes that, if adopted, would create new opportunities and obligations for M-LMS licensees as well as operators and manufacturers of part 15 devices for unlicensed uses on the fourteen megahertz of spectrum that is shared with M-LMS in the 902-928 MHz band.

49. Multilateration Location and Monitoring Service (M-LMS). For purposes of auctioning LMS licenses, the Commission has defined a “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $3 million. These definitions have been approved by the SBA. The Commission auctioned M-LMS licenses in 1999 (Auction 21) and 2001 (Auction 39). As a result of the two auctions, six entities currently hold a total of 452 M-LMS licenses. Each one of these entities qualified as either a small business or a very small business.

50. Part 15 Device Operators. The SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” (CWT), which consists of firms having 1,500 or fewer employees. According to the latest Census Bureau data for this category, there are a total of 1,378 firms that have 999 or fewer employees. The Census does not provide data for the number of firms with 1,500 or fewer employees, but does indicate that nineteen firms have 1,000 or more employees. Consequently, even if all nineteen of these firms are part 15 device operators and have more than 1,500 employees, the Commission estimates that the majority of businesses in the CWT category are small businesses that may be affected by rules and policies that could be adopted in this rulemaking.

51. Part 15 Device Manufacturers. The SBA has developed small business size standards for two pertinent Economic Census categories, “Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing” (RTB) and “Other Communications Equipment Manufacturing,” (OCE) (NAICS code 334290), both of which consist of all such companies having 750 or fewer employees. According to the latest Census Bureau data, there are a total of 1,041 establishments in the RTB category. Of this total, 1,010 establishments have 499 or fewer employees, thirteen establishments have between 500 and 999 employees, and eighteen establishments have 1000 or more employees. Consequently, even if all thirteen establishments with between 500 to 999 employees have more than 750 employees, the Commission estimates that the majority of businesses in the RTB category are small businesses that may be affected by the rules and policies that could be adopted in this rulemaking. Concerning the OCE category, the latest Census Data show that there are a total of 503 establishments. Of this total, 493 establishments have 499 or fewer employees, seven establishments have between 500 and 999 employees, and three establishments have from 500 to 2,499 employees. Consequently, even if all seven establishments with 500-999 employees have more than 750 employees, the Commission estimates that the majority of businesses in the OCE category are small businesses that may be affected by rules and policies that could be adopted in this rulemaking.

52. Amateur Radio Operators. Amateur radio operators are not small businesses or small entities as defined by the RFA and the Commission's rules.

53. The Commission seeks comment on reducing or eliminating certain recordkeeping obligations for M-LMS operators. Section 90.353(d)-(g) of the Commission's rules, 47 CFR 90.353(d)-(g), requires that M-LMS licensees operating in the 902-928 MHz band “maintain whatever records are necessary” and make such records “available to the Commission upon request” that demonstrate compliance with specified operating parameters designed to limit interference with part 15 devices. In particular, section 90.353(d) of the Commission's rules, 47 CFR 90.353(d), requires M-LMS licensees to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to 47 CFR 15 devices. The Commission seeks comment on whether such testing and associated recordkeeping and reporting requirements are necessary if well-defined technical limits are put in place and the part 15 safe harbor provision is retained. The Commission does not seek comment on specific reporting or recordkeeping requirements, but, it seeks comment on whether M-LMS licensees should adhere to stricter power limits as a condition for relaxing the restrictions on the scope of services that M-LMS providers are permitted to offer.

54. The RFA requires an agency to describe any significant, specifically small business, 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 and reporting requirements under the rule for such 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 such small entities.”

55. The Commission invites comment on a number of alternatives to the current LMS rules that could modify or eliminate certain restrictions on the M-LMS service in order to provide M-LMS licensees greater flexibility to respond to changing market conditions. The Commission addresses alternative approaches to flexibility. These alternatives have been grouped according to five aspects of the current M-LMS service rules that affect flexible use for M-LMS licensees: (1) Restrictions on the scope of permissible communications and interconnection; (2) power and other technical limitations; (3) the M-LMS spectrum aggregation limit; (4) the part 90 safe harbor for operations under parts 15 and 97; and (5) the M-LMS testing requirement and associated recordkeeping obligations.

56. With respect to the limits on the scope of M-LMS services, the Commission seeks comment on whether there are any public interest benefits associated with relaxing or eliminating M-LMS restrictions on permissible communications (e.g., vehicle location as primary operation) and interconnection. The Commission seeks comment on alternatives ranging from partial to complete replacement of M-LMS service restrictions that prevent the provision of additional services. In particular, the Commission seeks comment on the benefit that each alternative could provide to M-LMS licensees (all of which qualify as small businesses), and how each alternative might impact small businesses that use or manufacture part 15 devices.

57. The Commission seeks comment on alternative approaches to satisfying an expanded range of M-LMS service offerings while avoiding any significant increases in interference. For example, the Commission seeks comment on whether any such interference could be mitigated by reducing the allowable power levels at which M-LMS services could be offered. Another alternative to increase M-LMS licensee flexibility while reducing the likelihood of accompanying interference might be a relaxation or elimination of the M-LMS aggregation limit. The Commission seeks comment on the likely effect of this alternative on M-LMS licensees (all of which qualify as small businesses), and any impact to small businesses that use or manufacture part 15 devices.

58. Regarding the part 90 safe harbor provision, within which authorized operations under parts 15 and 97 of the Commission's rules will not be considered to be causing interference to an M-LMS operator, the Commission seeks comment on its tentative decision to retain this provision. The Commission states in the NPRM that it tentatively concludes that the safe harbor fosters efficient sharing of the band with limited interference, and it asks all parties that disagree to provide arguments that identify specific, alternative mechanisms that would provide the existing level of certainty in this band, and to provide specific economic and technological evidence supporting their proposals.

59. Another alternative approach to increasing flexibility for M-LMS licensees is to eliminate the testing and recordkeeping obligations associated with demonstrating that there is no unacceptable interference to part 15 devices. While these obligations previously have been deemed essential, the Commission seeks comment on whether they would be necessary if the testing rules were replaced by well-defined technical limits while retaining the safe harbor provision.

60. In addition to specific alternative approaches for expanding flexibility to M-LMS licensees while avoiding any significant increases in interference to part 15 devices, the Commission seeks comment on any additional approaches to accomplishing these dual goals. These include any other techniques and approaches that would better optimize the goals of this proceeding.

61. None.

62. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 303(r), the notice of proposed rulemaking is hereby adopted.

63. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the notice of proposed rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

On September 13, 2004, we received a petition from Mr. Sam Wright of Olympia, Washington, to list Puget Sound steelhead as an endangered or threatened species under the ESA, and to designate critical habitat. On April 5, 2005, we issued our finding that the petition presents substantial information indicating that the petitioned action may be warranted (70 FR 17223), and we announced that we would initiate an updated review of the species' status. This Federal Register notice summarizes the information gathered and the analyses conducted as part of this review, and announces our finding regarding the ESA listing status of steelhead in Puget Sound.

For a more detailed summary of the specific information presented in the petition, the reader is referred to the Federal Register notice which describes our analysis of the petition (70 FR 17223; April 5, 2005). Most significantly, the petitioner provided 10 years of new harvest, spawning escapement, and total-run-size data for nine natural-origin Puget Sound steelhead stocks. The petitioner concluded that the new information describes significant short- and long-term declining trends in nearly all river systems where data are available, despite significant reductions by the State of Washington in recreational and tribal harvest rates on wild steelhead. The petitioner argued that the populations of Puget Sound steelhead are at such low levels of abundance that risks posed by catastrophic events, environmental and demographic variability, and depensation confer a high level of extinction risk for the foreseeable future. The petitioner also underscored concerns regarding the widespread propagation of domesticated and non-indigenous stocks of hatchery steelhead, a lack of adequate monitoring of steelhead stocks, and habitat loss and degradation in the Puget Sound area.

Section 3 of the ESA defines “species” as including “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The term “distinct population segment” is not recognized in the scientific literature. In 1991 we issued a policy for delineating distinct population segments (DPSs) of Pacific salmon (56 FR 58612; November 20, 1991). Under this policy a group of Pacific salmonid populations is considered an “evolutionarily significant unit” (ESU) if it is substantially reproductively isolated from other conspecific populations, and it represents an important component in the evolutionary legacy of the biological species. Further, an ESU is considered to be a “DPS” (and thus a “species”) under the ESA. On February 7, 1996, we and FWS adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722). The DPS Policy adopts criteria similar to, but somewhat different from, those in the ESU Policy for determining when a group of vertebrates constitutes a DPS: the group must be discrete from other populations; and it must be significant to its taxon. A group of organisms is discrete if it is “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, and behavioral factors.” Significance is measured with respect to the taxon (species or subspecies). Although the ESU Policy did not by its terms apply to steelhead, the DPS Policy states that NMFS will continue to implement the ESU Policy with respect to “Pacific salmonids” (which include O. mykiss ). FWS, however, does not use our ESU policy in any of its ESA listing decisions. In a previous instance of shared jurisdiction over a species (Atlantic salmon), we and FWS used the DPS policy in our determination to list the Gulf of Maine DPS of Atlantic salmon as endangered (65 FR 69459; November 17, 2000).

In the recently published findings of our updated status review of listed West Coast steelhead ESUs (71 FR 834; January 5, 2006), we departed from our previous practice of applying the ESU policy to delineate species of O. mykiss , and instead applied the joint DPS policy. Given our shared jurisdiction with FWS over O. mykiss , and consistent with our approach for Atlantic salmon, we believe that application of the joint DPS policy is logical, reasonable, and appropriate for delineating species of O. mykiss under our jurisdiction. In applying the joint DPS policy, we concluded that the resident and anadromous life forms of identified population groups of O. mykiss are “discrete,” and we delineated 10 steelhead-only DPSs of O. mykiss . In this notice we similarly apply the joint DPS policy in defining the group of steelhead populations in the Puget Sound area that qualifies for listing consideration under the ESA. The reader is referred to previously published Federal Register notices for further discussion of the delineation of O. mykiss DPSs under the joint DPS policy (70 FR 67131, November 4, 2005; 71 FR 834, January 5, 2006).

The ESA defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future throughout all or a significant portion of its range (sections 3(6) and 3(20), respectively). The statute requires us to determine whether any species is endangered or threatened because of any of the following five factors: (1) the present or threatened destruction, modification or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence (section 4(a)(1)(A) (E)). We are to make this determination based solely on the best available scientific information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species. The focus of our evaluation of the ESA section 4(a)(1) factors is to evaluate whether and to what extent a given factor represents a threat to the future survival of the species. The focus of our consideration of protective efforts is to evaluate whether and to what extent they address the identified threats and so ameliorate a species' risk of extinction. The steps we follow in implementing this statutory scheme are to: (1) delineate the species under consideration; (2) review the status of the species; (3) consider the ESA section 4(a)(1) factors to identify threats facing the species; (4) assess whether certain protective efforts mitigate these threats; and (5) predict the species' future persistence.

As noted above, as part of our listing determinations we must consider efforts being made to protect a species, and whether these efforts ameliorate the threats facing the species and reduce risks to its survival. Some protective efforts may be fully implemented, and empirical information may be available demonstrating their level of effectiveness in conserving the species. Other protective efforts are new, not yet implemented, or have not demonstrated effectiveness. We evaluate such unproven efforts using the criteria outlined in the Policy for Evaluating Conservation Efforts (“PECE”; 68 FR 15100; March 28, 2003) to determine their certainties of implementation and effectiveness.

Steelhead is the name commonly applied to the anadromous form of the biological species O. mykiss . The present distribution of steelhead extends from Kamchatka in Asia, east to Alaska, and extending south along the Pacific coast to the U.S. Mexico border (Busby et al. , 1996; 67 FR 21586, May 1, 2002). O. mykiss exhibit perhaps the most complex suite of life-history traits of any species of Pacific salmonid. O. mykiss can be anadromous (“steelhead”), or freshwater residents (“rainbow or redband trout”), and under some circumstances yield offspring of the opposite life-history form. Those that are anadromous can spend up to 7 years in freshwater prior to smoltification (the physiological and behavioral changes required for the transition to salt water), and then spend up to 3 years in salt water prior to first spawning. O. mykiss are also iteroparous (meaning individuals may spawn more than once), whereas the Pacific salmon species are principally semelparous (meaning individuals generally spawn once and die). Within the range of West Coast steelhead, spawning migrations occur throughout the year, with seasonal peaks of activity. In a given river basin there may be one or more peaks in migration activity; since these “runs” are usually named for the season in which the peak occurs, some rivers may have runs known as winter, spring, summer, or fall steelhead.

Steelhead can be divided into two basic reproductive ecotypes, based on the state of sexual maturity at the time of river entry and duration of spawning migration (Burgner et al. , 1992). The summer or “stream-maturing” type enters fresh water in a sexually immature condition between May and October, and requires several months to mature and spawn. The winter or “ocean-maturing” type enters fresh water between November and April with well-developed gonads and spawns shortly thereafter. In basins with both summer and winter steelhead runs, the summer run generally occurs where habitat is not fully utilized by the winter run, or where an ephemeral hydrologic barrier separates them, such as a seasonal velocity barrier at a waterfall. Summer steelhead usually spawn farther upstream than winter steelhead (Withler, 1966; Roelofs, 1983; Behnke, 1992).

In 1996, we conducted a comprehensive status review of coastal and inland steelhead stocks in California, Oregon, Washington, and Idaho (Busby et al. , 1996). We convened a Biological Review Team (BRT) (an expert panel of scientists from NMFS' Northwest and Southwest Fisheries Science Centers, FWS, the U.S. Geological Survey, and the U.S. Forest Service) to: (1) identify ESUs of West Coast steelhead; and (2) evaluate the risk of extinction for the identified ESUs. As part of this review we identified a Puget Sound ESU of coastal steelhead occupying river basins of the Strait of Juan de Fuca, Puget Sound, and Hood Canal (Washington), as far west as the Elwha River, and as far north as the Nooksack River and Dakota Creek (inclusive), and the United States/Canada border. The Puget Sound ESU is primarily composed of winter steelhead stocks, but also includes several small stocks of summer steelhead occupying limited habitat. The BRT also included the resident life-history form in the Puget Sound ESU. Genetic studies generally show that, in the same geographic area, the resident and anadromous life forms of O. mykiss are more similar to each other than either is to the same form from a different geographic area. In particular, the BRT cited a scientific study indicating that rainbow trout and steelhead are not reproductively isolated in two river basins within the Puget Sound ESU (Leider et al. , 1995).

In the 1996 status review the BRT concluded that the Puget Sound steelhead ESU was not in danger of extinction or likely to become endangered in the foreseeable future throughout all or a significant portion of its range. However, the BRT did express concern that 17 of 21 stocks in the ESU for which there were adequate data exhibited overall declining trends. Positive trends in abundance for the two largest steelhead runs in the ESU (the Skagit and Snohomish Rivers) mitigated the immediacy of extinction risk, although there was significant concern regarding the sustainability of other steelhead runs in the ESU (most notably the Deer Creek summer and Lake Washington winter steelhead populations, and populations in the Hood Canal area). Given the lack of strong trends in abundance for the major populations and the apparent limited contribution of hatchery fish to natural production, the BRT concluded that most winter steelhead stocks in the Puget Sound ESU appeared to be naturally self-sustaining.

The BRT noted concern about the potential threat to the genetic integrity of Puget Sound steelhead posed by past and present hatchery practices in the Puget Sound area. Hatchery production in this ESU is widespread, and it is managed to support harvest. Most of the hatchery fish propagated in the Puget Sound region are winter-run steelhead derived from a single stock (the Chambers Creek hatchery stock) that is indigenous to the ESU but generally is not native to the local river basins where it is propagated. The summer steelhead hatchery programs in the Puget Sound area are derived from an out-of-ESU stock (the Skamania summer steelhead stock from the Columbia River). The Skamania hatchery stock has generally been introduced in river systems where summer steelhead did not naturally exist, although it has been introduced in some Puget Sound river basins having native summer steelhead populations (e.g., the Stillaguamish and Snohomish Rivers). The Washington Department of Fish and Wildlife (WDFW) employs a hatchery management strategy of promoting isolation between hatchery and natural stocks by releasing smolts early and selecting for early spawn timing in winter steelhead hatchery programs. This separation in run timing is intended to: allow for high rates of selective harvest on returning hatchery fish, while limiting harvest mortality on wild stocks; and minimize competition (as smolts and adults) and opportunities for interbreeding between naturally spawning hatchery fish and wild fish. However, the BRT noted that separation of run timing is seldom complete. High harvest rates targeting early-returning hatchery fish have likely resulted in high mortality levels for early-run natural fish and reduced the natural diversity in spawn timing. Naturally spawning hatchery fish comprise a substantial proportion of the spawning escapement in many of the rivers in the ESU, possibly competing with, and posing genetic risks to, the local steelhead populations. Additionally, the BRT discussed evidence for hatchery introgression in some natural Puget Sound winter steelhead populations (Phelps et al. , 1994).

Informed by the BRT's findings (Busby et al. , 1996), we concluded that the Puget Sound steelhead ESU did not warrant listing under the ESA (61 FR 41541; August 9, 1996), but expressed concern regarding the sustainability of summer steelhead populations and potentially adverse impacts from hatchery practices in Puget Sound.

To ensure that our review was based on the best available and most recent scientific information, we solicited information during a 60-day public comment period regarding the ESU structure and extinction risk of, and efforts being made to protect, the species (70 FR 17223; April 5, 2005). In July 2005 we convened a BRT to review the available information regarding the ESU structure and extinction risk of O. mykiss in the Puget Sound area. Specifically, the BRT addressed: (1) whether the geographic boundaries of the previously identified Puget Sound ESU warrant redelineation or refinement; (2) the relationship to the defined ESU of hatchery programs propagating O. mykiss within the Puget Sound area; (3) the relationship to the defined ESU of resident rainbow trout above and below impassable barriers; and (4) the level of extinction risk of the ESU throughout all or a significant portion of its range, including the consideration of the contribution of within-ESU hatchery programs and resident populations to the viability of the ESU. The data reviewed, analyses conducted, and findings by the BRT are summarized in a July 26, 2005, memorandum “Status Review Update for Puget Sound Steelhead” (NMFS, 2005).

On June 28, 2005, NMFS finalized a new policy for the consideration of hatchery-origin fish in ESA listing determinations (“Hatchery Listing Policy;” 70 FR 37204). Under the Hatchery Listing Policy, hatchery stocks are considered part of an ESU if they exhibit a level of genetic divergence relative to the local natural population(s) that is no more than what occurs within the ESU (70 FR at 37215; June 28, 2005). We recognize that there are a number of ways to compute and compare genetic divergence and that it is not possible to sample all fish within the ESU to precisely determine the range of genetic diversity within an ESU. In evaluating hatchery stocks associated with Puget Sound steelhead, the BRT included as part of the ESU those hatchery stocks that are no more than moderately diverged from local, native populations in the watershed(s) in which they are released. This approach is consistent with our recent status review updates for 27 West Coast ESUs (see 71 FR 835, January 5, 2006; 70 FR 37160, June 28, 2005; NMFS, 2003; NMFS, 2004). In factoring artificial propagation into the extinction risk assessment for the ESU, the BRT evaluated potential risks to the naturally-spawned components of the ESU posed by Puget Sound area hatchery programs determined not to be part of the ESU; as well as the specific benefits and risks for each of the hatchery programs included in the ESU.

1. April 26, 2006 from 7-9 p.m. Ponce Hilton, 1150 Caribe Avenue, Ponce, PR. 00716.

2. April 27, 2006 from 6-8 p.m. Florence Williams Public Library, 1122 King Street, Christiansted, St. Croix, U.S. Virgin Islands. 00802.

3. May 18, 2006 from 7-9 p.m. City of Madeira Beach, 300 Municipal Drive, Madeira Beach, FL 33708.

4. June 1, 2006 from 6-8 p.m. Town Hall, 407 Budleigh Street, Manteo, NC 27954.

5. June 7, 2006 from 6-8 p.m. NMFS Laboratory, 3500 Delwood Beach Drive, Panama City, FL 32408.

The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The FMP for Atlantic Tunas, Swordfish, and Sharks and Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks are implemented by regulations at 50 CFR part 635. The fisheries for spiny lobster, queen conch, reef fish, and corals and reef-associated invertebrates in the exclusive economic zone (EEZ) off Puerto Rico and off the U.S. Virgin Islands are managed under fishery management plans prepared by the CFMC. These fishery management plans are implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.

An objective of the final rule implementing Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks, was to minimize, to the extent practicable, bycatch of living marine resources and the mortality of such bycatch that cannot be avoided in the fisheries for Atlantic sharks. That rule finalized measures that required the use of non-stainless steel, corrodible hooks aboard shark BLL fishing vessels, the possession of release equipment (line cutters and dipnets, both with extended reach handles), and also required BLL vessels to immediately release any sea turtle, marine mammal, or smalltooth sawfish that is hooked or entangled and then move at least one nautical mile (2 km) before resuming fishing activities. At that time, NMFS had not yet approved dehooking devices for sea turtles. Therefore, while Amendment 1 to the HMS FMP requires vessel operators to possess, maintain, and utilize, dehooking and release equipment, implementation of the measure was delayed pending approval.

The purpose of this proposed rulemaking is to update the necessary equipment and protocols that vessel operators in the BLL fishery must possess, maintain, and utilize for the safe handling, release, and disentanglement of sea turtles and other non-target species. Significant new information, techniques, and equipment have been approved and implemented for the PLL fishery since NMFS enacted Amendment 1 to the HMS FMP's requirements for the BLL fishery. Participants in the pelagic longline (PLL) fishery are required to possess, maintain, and utilize a suite of NMFS-approved handling and dehooking equipment when engaged in fishing activities (July 6, 2004, 69 FR 40734). Research conducted in the Northeast Distant statistical reporting area (NED) has indicated that removing the maximum amount of gear from sea turtles significantly increases post-release survival. Dehooking devices that meet NMFS design standards are necessary for removal of fishing gear and are now available to release sea turtles. Because of similarities between the fisheries, NMFS is reassessing the BLL requirements in light of the July 6, 2004, rule for the PLL fishery.

Another objective of this action is to propose for commercial Atlantic shark BLL fisheries, implementation of measures that are complementary to CFMC-recommended measures that NMFS implemented on October 28, 2005 (70 FR 62073). These measures would minimize adverse impacts to EFH and reduce fishing mortality for mutton snapper, red hind, and other reef-dwelling species. Scoping hearings for the Comprehensive Amendment to the FMPs of the Caribbean, including the bottom longline closures being considered in this rulemaking, were conducted from June 4 to June 12, 2002, in Puerto Rico and the U.S. Virgin Islands. The Environmental Protection Agency published a notice of availability (NOA) of the Draft Supplemental Environmental Impact Assessment (DSEIS) in the Federal Register on March 18, 2005 (70 FR 13190). The final supplemental environmental impact statement for the Comprehensive Amendment to the FMPs of the Caribbean was filed with the Environmental Protection Agency on June 17, 2005, with the Notice of Availability published on June 24, 2005, (70 FR 36581).

The Comprehensive Amendment to the FMPs of the Caribbean addressed several requirements of the Magnuson-Stevens Act including, but not limited to, reducing overfishing, rebuilding overfished stocks, and minimization, to the extent practicable, of the adverse effects on EFH caused by fishing. A proposed rule containing measures specific to Council-managed species in the Comprehensive amendment was published in the Federal Register on September 13, 2005 (70 FR 53979), with a comment period ending on September 28, 2005. The final rule, specific to Council-managed species, published in the Federal Register on October 28, 2005 (70 FR 62073), with an effective date of November 28, 2005.

Most of the elements contained in the Comprehensive Amendment, such as the establishment of biological reference points, rebuilding plans, and possession limits, apply solely to Council-managed species such as reef fish, queen conch, and spiny lobster. However, in several geographic areas, year-round prohibitions on BLL and other gear have been established to minimize, to the extent practicable, adverse effects on essential fish habitat caused by fishing activities and reduce fishing mortality of reef-dwelling species. These management measures could potentially impact commercial shark fisheries and are the subject of this current proposed rule.

Currently, to reduce injuries and mortalities associated with protected resources interactions, all Atlantic vessels that have BLL gear onboard must use corrodible, non-stainless steel hooks. If a marine mammal, sea turtle, or smalltooth sawfish, is hooked or entangled by the gear, the operator of the vessel must immediately release the animal, retrieve the BLL gear, and move at least 1 nm (2 km). Vessel operators are required to follow guidelines for sea turtle handling in accordance with procedures specified by the NMFS at § 223.206(d)(1). Furthermore, vessel operators are required to possess long-handled (6 ft., 1.83 m) line cutters and a long-handled (6 ft., 1.82 m) dipnet, capable of supporting 100 lbs (39.4 kg). Dipnets are required to boat sea turtles, when practicable, and line cutters are required to disengage any hooked or entangled sea turtles by cutting the line as close as possible to the hook. If a smalltooth sawfish is caught, the fish should be kept in the water while maintaining water flow over the gills, examined for research tags, and then the line should be cut as close to the hook as possible.

The preferred alternative would require vessel operators aboard all Federally permitted vessels for Atlantic HMS with BLL gear onboard to possess, maintain, and utilize additional equipment and protocols consistent with what is currently required for the PLL fishery. The preferred alternative would not change the requirements regarding use of corrodible, non-stainless steel hooks, moving 1 nautical mile after a protected resource interaction, or the handling of smalltooth sawfish. Diagrams, design specifications, and additional descriptions of the proposed pieces of equipment that vessels must possess, maintain, and utilize are provided in Appendix A of the draft environmental assessment (EA) prepared for this proposed rule and also listed in Table 1. Vessels would also be required to possess onboard a copy of the document entitled “Careful Release Protocols for Release with Minimal Injury” which describes the procedures for hook removal and careful release of sea turtles in detail. NMFS already provided these documents in either English, Spanish, or Vietnamese, to PLL and BLL fishermen. This document is available upon request from the HMS Management Division (see ADDRESSES section).

This proposed rule would allow for use of other items that are not listed to fulfill the requirements, provided they meet the minimum design standards at 50 CFR 635.21. For this proposed rule, those design standards are also described in Appendix A of the draft environmental assessment. At this time, NMFS is aware of only one commercial manufacturer of long and short-handled dehookers for ingested hooks that meet the minimum design standards.

The preferred alternative would require that vessels possess, maintain, and utilize items A through L (already required to possess long-handled linecutters (item A) and dipnets (item E)). For long-handled items (A-E), handle length must be at least 6ft. (1.83 m) or 150 percent of freeboard height, whichever is greater. Freeboard is defined at 50 CFR 635.2 as the working distance between the top rail of the gunwale to the water's surface, and will vary based on the vessel design. Two different mouth openers or gags (items L1-L7) are required. Both long and short-handled dehookers for ingested hooks (items B and G) can be used in lieu of dehookers for external hooks (items C and H), provided all vessels possess both a short and a long-handled dehooker for ingested hooks (at a minimum). Furthermore, if vessels possess a 6ft. (1.83 m) J style dehooker to satisfy the requirement for item C, it would also satisfy the requirement for item D. Items A-D are intended to be used for turtles that are not boated. Items E-L are intended to be used for turtles that are boated.

The design standards for the NMFS-approved items are described in Appendix A of the draft EA for this proposed rule. These standards would allow fishermen to construct some of the equipment from material that is readily available to them and to use skills that most fishermen likely possess, provided the equipment meets design standards listed at 50 CFR 635.21. This gear is necessary to release sea turtles effectively with minimal harm or injury; however, the handling, release, and disentanglement equipment may also assist fishermen with other non-target species that are encountered during fishing activities. Possession of this equipment would not impact the number of interactions between BLL gear and sea turtles and other non-target species.

As described in Appendix A of the draft EA, NMFS also recommends possession and utilization of a “turtle tether” for controlling large turtles at the side of the boat and a “turtle hoist” for moving large turtles onto the boat, but these items are not being proposed as requirements at this time.

The existing requirements for sea turtle handling and resuscitation procedures specified by NMFS are described at 50 CFR 223.206(d)(1)(i). Additional handling requirements for sea turtles and other protected resources are described at 50 CFR 635.21(c)(5)(ii). This proposed rule makes a minor revision to the regulatory text at 50 CFR 223.206(d)(1)(ii) to clarify that the turtle handling and resuscitation provisions of § 223.206 (d)(1)(i) are in addition to the turtle handling requirements at 50 CFR 635.21.

The preferred alternative would have ecological, economic, and social impacts. The additional equipment required is necessary to maximize gear removal and would have positive ecological impacts by maximizing post-release survival of sea turtles and other non-target species after interactions with longline gear. It is estimated that approximately 17 leatherback and 123 loggerhead sea turtles are killed annually as a result of interactions with BLL gear. It is estimated that between two and ten fewer leatherback sea turtles, and between 12 and 71 fewer loggerhead sea turtles would die as a result of interactions with BLL gear by employing the additional dehooking equipment required by this alternative. Negative economic impacts would be expected initially as participants would be required to purchase or construct additional equipment as a result of this alternative. NMFS estimates that the one-time costs of initial compliance would range from $253 to $977; exact costs would depend on how much of the equipment the fishermen are able to construct themselves, the vessel's freeboard height (freeboard height is related to handle-length required on items A-E), and the amount of equipment that they already possess. Some of these economic impacts may be offset over time as fishermen are able to retrieve more of their hooks by using the dehooking equipment. Costs may also be incurred in the future as equipment may need to be maintained or replaced, as necessary. NMFS anticipates negligible social impacts as a result of the preferred alternative.

NMFS also considered two other alternatives for this rulemaking. A status quo alternative would maintain the current dehooking equipment requirements and would result in negative ecological impacts as the equipment currently required does not ensure that participants are able to remove the maximum amount of fishing gear from sea turtles to reduce post-hooking mortality. Furthermore, this alternative does not comply with the October 2003 BiOp which required NMFS to implement additional dehooking equipment for the shark BLL when it was approved. This alternative would not result in any economic or social impacts as it would not require participants to modify their behavior or attain any additional equipment.

The other alternative that NMFS considered would require participants to possess additional equipment based on their vessel's freeboard height. Vessel's that have a freeboard height less than or equal to 4 feet (1.22 m) would not have to possess the full suite of long-handled dehooking equipment (items B (and/or C) and D). Vessel's with freeboard height greater than 4 feet (1.22 m) would be required to possess the full suite of long-handled equipment. This alternative was considered because BLL vessel's are generally smaller and have a lower freeboard height than PLL vessel's. The shark BLL fishery interacts with fewer sea turtles in general, and interactions with larger leatherback or loggerhead sea turtles that cannot be boated are more infrequent. For these smaller BLL vessels, the length of a short handled dehooker (items G and/or H), in addition to a fisherman's arm length, may be sufficient to dehook and release turtles that are too large to be brought on board. This alternative would result in positive ecological impacts relative to the status quo, however, these impacts would be less positive than those achieved with the preferred alternative which requires all participants to possess the full suite of long-handled equipment for dehooking or disentangling turtles that can not be boated. The preferred alternative has increased positive ecological impacts because possessing the long-handled equipment would increase the likelihood that fishermen are able to dehook and or remove as much gear as possible from turtles that cannot be brought onboard. Similar to the preferred alternative, negative economic impacts would occur as a result of this alternative initially as it would require participants to procure additional equipment that would range in price from $152 to $477. Social impacts as a result of this alternative would likely be negligible.

The preferred alternative was selected in order to maximize post-hooking survival of sea turtles and maintain consistency between the PLL and BLL fisheries because of the similarities between these fisheries, the gear employed, and the fishermen. Furthermore, since many vessel operators and owners fish with both BLL and PLL gear NMFS selected a preferred alternative that would enable operators to possess the same equipment required in the PLL fishery. This would facilitate and improve compliance with the regulations and maintain consistency among longline and HMS fisheries. The economic impacts of compliance may be reduced if Atlantic shark fishermen construct additional equipment themselves, provided it meets the design specifications at 50 CFR 635.21.

This proposed rule would prohibit persons issued an HMS permit with BLL gear onboard a vessel from fishing or deploying any type of fishing gear, on a year-round basis in: (1) The newly-implemented Grammanik Bank closed area; (2) the existing mutton snapper spawning aggregation area off the southwest coast of St. Croix, U.S. Virgin Islands; and (3) the existing red hind spawning aggregation areas (East of St. Croix, and West of Puerto Rico (including Bajo de Cico, Tourmaline Bank, and Abrir La Sierra Bank)). See 50 CFR 622.33(a) for the exact coordinates of these areas. The year-round prohibition on the use of BLL and other fishing gears within these discrete spawning aggregation sites would protect EFH and contribute to needed reductions in fishing mortality of mutton snapper, red hind, and other reef-dwelling species. As described in the Comprehensive Amendment to the Caribbean FMPs, there were several other requirements regarding fish traps and pots that do not impact HMS fisheries, in addition to a No Action alternative.

The only HMS fishery in the Virgin Islands and Puerto Rico that could potentially be affected by this proposed action is the commercial shark BLL fishery. As of October 2005, only one shark incidental permit was held by a vessel in the USVI, and no shark limited access permits were held by vessels in Puerto Rico. Similarly, only one dealer held an Atlantic shark dealer permit in the USVI, with no dealer permits issued in Puerto Rico. Accordingly, the volume of sharks landed in Puerto Rico and the Virgin Islands from 1997 through 2002 was relatively minor. Based upon dealer weigh-out data, shark landings totaled less than 3,200 lb (1,422 kg) and consisted of 66 individual fish for that six-year period. It is possible, however, that these data may not be reflective of the actual extent of the Caribbean shark fishery due to unreported landings.

Due to the low level of documented commercial shark landings in Puerto Rico and the U.S. Virgin Islands, the social and economic impacts associated with this proposed action on HMS fisheries are expected to be de minimus . In fact, because the affected areas are significantly smaller than the area from which the landings estimate was derived, and because these areas are already closed to bottom-tending gears in other fisheries, the social and economic impacts are likely to be negligible. Based on the available data, NMFS does not anticipate that the proposed measures would result in a measurable reduction or redistribution of HMS-related effort, including shark BLL fishing, or any changes in HMS fishing practices.

The proposed measures are not expected to impact fishing costs, ex-vessel prices, or market availability given the limited quantities of sharks landed in the U.S. Caribbean. However, by complementing existing management measures to protect EFH in the Caribbean, the biological impacts associated with this alternative are expected to be positive. The non-preferred No Action alternative would not have adverse economic impacts on federal permit holders. Any positive ecological impacts on HMS are expected to be minimal because there has been little reported or observed HMS fishing effort in recent years. However, such complementary management measures could prevent future increases in fishing effort and provide ancillary conservation benefits to HMS in addition to Council-managed species.

The proposed rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.

The final rule implementing management measures specific to Council-managed species was determined to be significant for purposes of Executive Order 12866. This proposed rule, which would close complementary areas for HMS fisheries and require dehooking equipment for BLL fishermen, has been determined to be not significant for purposes of Executive Order 12866.

As required under the Regulatory Flexibility Act (RFA), NMFS has prepared an Initial Regulatory Flexibility Analysis (IRFA) that examines the impacts of the preferred alternatives and any significant alternatives to the proposed rule that could minimize significant economic impacts on small entities. A summary of the information presented in the IRFA is provided below. The draft EA prepared for this proposed rule provides further discussion of the biological, social, and economic impacts of all the alternatives considered.

NMFS prepared a final Regulatory Flexibility Act analysis (FRFA) for the final rule that implemented the management measures in the Comprehensive Amendment to the Caribbean FMPs. The FRFA incorporated the Initial Regulatory Flexibility Act analysis (IRFA) published on September 13, 2005 (70 FR 53979), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to public comments on the IRFA, and a summary of the analyses completed to support that action. No comments were received in response to the IRFA that related to HMS fisheries. The IRFA in this proposed rule incorporates by reference the findings of the FRFA published on October 28, 2005 (70 FR 62073), and describes the economic impact this proposed rule, if adopted, would have on small entities participating in HMS fisheries.

This proposed rule would apply to all vessels that have BLL gear onboard and have been issued, or are required to have, Federal HMS limited access permits. NMFS considers all commercial permit holders to be small entities. NMFS estimates that, as of October 2005, approximately 235 directed and 320 incidental shark permits (555 permits total) had been issued. It is estimated that 284 directed and incidental shark permit holders do not also fish with PLL gear, and therefore, do not already possess the handling, dehooking, and release equipment that would be required by this rulemaking. These permit holders also do not possess directed or incidental swordfish permits, therefore, it can be assumed that they do not fish with PLL gear. Eighty percent of permit holders fish from the state of Florida. Since the same safe handling and release equipment and protocols are already required for the PLL fishery and permit holders that use PLL gear are already required to possess the equipment necessary to satisfy the requirements for the BLL fishery, fishermen who use PLL gear would not be affected by this current rulemaking.

Other sectors of HMS fisheries such as dealers, processors, bait houses, and gear manufacturers might be indirectly affected by the proposed alternative because of the direct impacts on fishermen. The proposed rule only applies directly to permit holders and shark BLL fishermen.

This proposed rule would also prohibit vessels issued an HMS permit with BLL gear onboard from fishing or deploying any type of fishing gear on a year-round basis in the: (1) Newly-implemented Grammanik Bank closed area; (2) existing mutton snapper spawning aggregation closed area off the southwest coast of St. Croix, U.S. Virgin Islands; and (3) existing red hind spawning aggregation closed areas (East of St. Croix, West of Puerto Rico (including Bajo de Cico, Tourmaline Bank, and Abrir La Sierra Bank)). This alternative could potentially impact one shark incidental permit holder and one shark dealer permit holder in the USVI. There are no shark limited access permit holders or shark dealer permit holders in Puerto Rico. It is possible, however, that the permit data may not reflect the actual number of small entities participating in the federal shark fishery in the U.S. Caribbean EEZ. The non-preferred No Action alternative would not affect any federal permit holders.

The proposed regulations do not contain additional reporting or record-keeping requirements, but would result in additional compliance requirements, including the possession of specific protocols that describe the proper handling, release, and disentanglement of sea turtles and other non-target species and how to employ the required equipment. A document entitled “Careful Release Protocols for Sea Turtle Release with Minimal Injury” contains the sea turtle careful release protocols and would be required to be possessed onboard. NMFS has already provided this document in English, Spanish, or Vietnamese (see ADDRESSES ).

NMFS considered three alternatives for the implementation of additional dehooking requirements for protected resources in the BLL fishery. The alternatives included: no action, requiring additional handling and release equipment based on vessel freeboard height, and implementing the same dehooking equipment and protocols as those that are currently required in the PLL fishery. Maintaining consistency between the PLL and BLL fisheries by implementing the same dehooking equipment for both fisheries is the preferred alternative.

One of the requirements of an IRFA is to describe any alternatives to the proposed rule that accomplish the stated objectives and that minimize any significant economic impacts (5 U.S.C. 603 (c)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four categories for alternatives that must be considered. These categories are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage for small entities.

In order to meet the objectives of this proposed rule, consistent with Magunson-Stevens Act, Atlantic Tunas Convention Act (ATCA), and the Endangered Species Act (ESA), NMFS cannot exempt small entities or change the reporting requirements only for small entities. Additionally, the handling and release gear requirements would not be effective with different compliance requirements. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting or compliance requirements (category two above). All alternatives considered are based on design standards rather than performance standards; fishermen would be in compliance of the proposed rulemaking as long as they possess and utilize gear that conforms to the design specifications located in Appendix A for the safe handling, release, and disentanglement of protected resources. Any item meeting the design standards may be constructed or purchased and used, as long as the design is first certified by the NMFS Pascagoula Laboratory. When new items are certified, a notice would be published in the Federal Register . As described below, NMFS considered three different alternatives in this proposed rulemaking.

The no action alternative would not result in any economic impacts as it would not require Atlantic shark fishermen in the BLL fishery to possess additional sea turtle handling and release equipment. This alternative is not preferred, as it would result in negative ecological impacts, compared to the preferred alternative. Fishermen would not be able to effectively handle, release, and/or disentangle sea turtles and other non-target catch, which would not result in a decrease in post-hooking mortality.

Requiring additional equipment and release guidelines based on vessel freeboard height would result in negative economic impacts because fishermen would be expected to possess, maintain, and utilize additional equipment that would range from $152 - $477. Costs would vary depending on what equipment vessels already possess, how much of the equipment fishermen are able to construct themselves, and the vessel's freeboard height. This alternative would not require vessels with a freeboard height of 4ft. (1.22 m) or less to possess the full suite of long-handled equipment.

The four-foot or less freeboard height was chosen as the threshold for exempting vessels from possessing long-handled dehookers because it is assumed that the handle length of a short-handled dehooker, in addition to a fisherman's arm length, might be sufficient for reaching and dehooking most non-boated sea turtles and other protected resources. The majority of sea turtles that would interact with Atlantic BLL fisheries are large juvenile loggerhead and adult leatherback sea turtles. Requiring additional long-handled equipment would facilitate more effective handling of these larger turtles that can not be boated. Long-handled dehookers might facilitate improved hook removal, release, or disentanglement of larger turtles. Research in the NED for the PLL fishery has shown that some turtles released alive may subsequently die from hook ingestion, trailing gear, or injuries suffered when entangled in gear. Therefore, a freeboard height dependant alternative would have less of an ecological benefit compared to the preferred alternative. The freeboard height based alternative is also not preferred because it would result in inconsistency between the PLL and BLL fisheries.

The preferred alternative would maintain consistency between the PLL and BLL fisheries by requiring Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize the same equipment currently required on PLL vessels. This alternative would enable Atlantic shark fishermen with BLL gear onboard to follow the protocols and possess the equipment necessary for the PLL fishery, easing determination of compliance for both fishermen and enforcement. This alternative would have negative economic impacts as it would impose initial compliance costs for some Atlantic shark fishermen ranging from $253 to $977, depending upon on what equipment vessels already possess, how much of the equipment fishermen are able to construct themselves, and the vessel's freeboard height because freeboard height is related to required handle length on long-handled equipment (items A-E).

These proposed regulations are not expected to increase endangered species or marine mammal interaction rates. A Biological Opinion (BiOp) issued October 29, 2003, concluded that the continued operation of the Atlantic shark fisheries was not likely to jeopardize the continued existence of any listed species under NMFS purview. An analysis of the anticipated incidental takes of sea turtles (primarily loggerhead and leatherback sea turtles) and smalltooth sawfish resulted in a “non-jeopardy” determination in the BiOp. Measures proposed in this rule are expected to reduce post hooking mortality by removing the maximum amount of gear from sea turtles and other non-target species that are caught incidentally on BLL gear in the Atlantic shark fishery. This proposed rule would implement handling and release measures beyond those required in the October BiOp. Furthermore, this proposed rule would not alter fishing practices or fishing effort significantly and therefore should not have any further impacts on endangered species or marine mammals beyond those considered in the October 29, 2003, BiOp for Atlantic shark fisheries.

The preferred alternative of closing certain areas in the Caribbean would reduce fishing mortality of reef-dwelling species and minimize adverse effects on EFH, to the extent practicable, caused by BLL fishing. It is expected to have a negligible impact on small entities participating in HMS fisheries due to the small number of permit holders, and the low level of documented commercial shark landings in Puerto Rico and the U.S. Virgin Islands. Based upon dealer weigh-out data, shark landings totaled less than 3,200 lbs. and consisted of 66 individual fish for the six-year period from 1997 through 2002. Because the affected areas are significantly smaller than the area from which these landings estimates were derived, and because these areas are already closed to bottom-tending gears in other fisheries, the impacts are expected to be minor. A No Action alternative was considered, and would have less onerous impacts on small businesses but would not satisfy Magnuson-Stevens Act requirements to minimize, to the extent practicable, adverse effects on EFH caused by fishing.

The preferred alternatives are not expected to alter HMS fishing practices, techniques, or effort in any way that would increase interactions with protected species or marine mammals.

NMFS has determined preliminarily that these regulations would be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of those coastal states on the Atlantic, including the Gulf of Mexico and Caribbean, that have approved coastal zone management programs. Letters will be sent to the relevant states asking for their concurrence when the proposed rule is filed with the Office of the Federal Register.

This proposed rule does not contain any new reporting or recordkeeping requirements.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS does not believe that the proposed regulations would conflict with any other relevant regulations, Federal or otherwise (5 U.S.C. 603(b)(5)).

Endangered and threatened species, Exports, Imports, Transportation.

Fisheries, Fishing, Fishing Vessels, Foreign Relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

For reasons set out in the preamble, 50 CFR part 223 Chapter II and part 635 Chapter VI are proposed to be amended as follows:

1. The authority citation for part 223 continues to read as follows:

2. In § 223.206, paragraph (d)(1)(ii) is revised to read as follows:

3. The authority citation for part 635 continues to read as follows:

4. In § 635.21, paragraph (d)(3)(iv) is removed and paragraphs (a)(3), (d)(1), (d)(3)(i), (d)(3)(ii), and (d)(3)(iii) are revised to read as follows:

5. In § 635.71, paragraph (a)(33) is revised to read as follows:

The groundfish fisheries in the exclusive economic zone of the BSAI and the Gulf of Alaska are managed by NMFS under the FMPs for these areas. The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.

Management of the Pacific halibut fisheries in and off Alaska is governed by an international agreement between Canada and the United States. This agreement, entitled the “Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea” (Convention), was signed at Ottawa, Canada, on March 2, 1953, and was amended by the “Protocol Amending the Convention,” signed at Washington, D.C., March 29, 1979. The Convention is implemented in the United States by the Northern Pacific Halibut Act of 1982 (Halibut Act). The directed commercial Pacific halibut fishery in Alaska is managed under an IFQ Program, as is the fixed gear sablefish fishery. The IFQ Program is a limited access management system. Both species are also a part of the annual apportionment under the CDQ Program. These programs are codified at 50 CFR part 679.

The International Pacific Halibut Commission (IPHC) develops halibut fishery management regulations pursuant to the Convention and submits those regulations to the U.S. Secretary of State for approval. NMFS publishes approved IPHC regulations in the Federal Register as annual management measures pursuant to 50 CFR 300.62. NMFS published the IPHC's current annual management measures on February 25, 2005, at 70 FR 9242. The Halibut Act also authorizes the Council to develop Pacific halibut fishery regulations in and off Alaska that are in addition to, but not in conflict with, the approved IPHC regulations (Halibut Act, section 773c(c)). Regulations developed by the Council pursuant to the Halibut Act are implemented only with the approval of the U.S. Secretary of Commerce (Secretary).

In December 1991, the Council adopted a limited access system for managing the Pacific halibut and sablefish fixed gear fisheries in and off Alaska. The Council designed the IFQ and CDQ Programs to allocate specific harvesting privileges among U.S. fishermen and eligible western Alaska communities to resolve management and conservation problems associated with “open access” fishery management, and to promote the development of fishery-based economic opportunities in western Alaska. Acting on behalf of the Secretary, NMFS initially implemented the IFQ Program and CDQ halibut and sablefish programs through regulations published in the Federal Register on November 9, 1993 (58 FR 59375), and fully implemented beginning in March 1995.

NMFS and the State of Alaska jointly manage the CDQ Program that was adopted by the Council in 1991 for halibut, fixed gear sablefish, and pollock in the BSAI. The CDQ Program for pollock was implemented beginning in 1992, and for halibut and fixed gear sablefish in 1995. The CDQ Program has expanded several times and now includes allocations of all FMP groundfish and crab species, and allocations for bycatch of prohibited species. Currently, 65 communities, representing about 27,000 western Alaska residents, are eligible to participate in the CDQ Program. These communities are located within 50 nautical miles of the Bering Sea coast and are predominantly populated by Alaska Natives. The eligible communities formed six non-profit corporations, known as CDQ groups, to manage and administer allocations, investments, and economic development projects.

The IPHC tags Pacific halibut with external research tags to obtain general information on their life history. Tagging information also is used to improve the estimates of halibut incidental catch mortality rates or to evaluate the survival of halibut released by longliners that use the prescribed “careful release techniques” (i.e., careful shaking, gangion cutting, and hook straightening). Over the years, the IPHC has used several types of external research tags, including spaghetti-wire tags, metal- or plastic-tipped dart tags, and electronic Pop-up Satellite-transmitting Archival Tags.

In 2003, the IPHC also began using internal tags called Passive Integrated Transponder (PIT) tags, which are inserted into the heads of the fish. These PIT tags cannot be identified from any external marking and cannot be recovered by fishermen. Only shoreside scan samplers using special electronic equipment can locate the PIT tags after the fish are landed.

NMFS has been tagging and releasing sablefish in waters adjacent to Alaska since 1972 under the Sablefish Tag Program. Each year, NMFS catches thousands of fish in the course of NMFS surveys. NMFS weighs and measures the fish, determines their sex, and tags them before releasing them. Fishermen and seafood processors subsequently find the tagged fish. Since 1972, about 300,000 tagged sablefish have been released, of which nearly 26,000 have been recovered. Additionally, the Alaska Department of Fish and Game has used PIT tags for sablefish studies off Alaska.

Sablefish tagging supports estimates of important biological parameters such as fishing and natural mortality, growth, and migration of fish among management areas. These parameters are incorporated into stock assessment models that are used to recommend harvest levels. Information derived from tagging results in stock assessments that enhance the fishery management process and decrease costs associated with under- and over-harvest of groundfish resources. The common types of external tags used for sablefish include plastic T-bar tags, and tags alerting fishermen to the presence of surgically implanted electronic tags in particular fish.

The purposes of this action are: (1) To eliminate an inconsistency between Federal and IPHC regulations, and (2) to include the CDQ Program in the exemption from deduction of halibut and sablefish tagged with external research tags.

IPHC regulations at Section 21(3) require externally tagged halibut and sablefish harvested in commercial fisheries to count against Individual Vessel Quotas (used in Canada), CDQs, IFQs, or daily bag or possession limits “unless otherwise exempted by state, provincial, or federal regulations.” Federal regulations at 50 CFR 679.40(g) exempt any tagged halibut and sablefish landed in Federal commercial IFQ fisheries from counting against a person's IFQ. The regulatory language currently included in the Federal exemption is inconsistent with that in the IPHC regulations because it does not specifically identify “external” tags for halibut. This Federal regulatory text was written when only external tags were used on Pacific halibut and sablefish. Now, various types of internal and external tags are used to identify fish for scientific purposes. The proposed action would amend Federal regulations so only halibut and sablefish that are “externally” tagged may be excluded from quota deduction.

The exemption from quota deduction for tagged fish currently provided in Federal regulations for IFQ halibut and IFQ sablefish does not extend to CDQ halibut and CDQ sablefish. Halibut CDQ and sablefish CDQ are allocated to Western Alaska CDQ groups as fixed percentages of the annual total allowable catch of halibut and of sablefish. IFQ holders and CDQ groups operating in the Western Alaska CDQ region target essentially the same stock of fish and either may harvest externally tagged fish. However, CDQ groups do not currently receive the incentive of a deduction exemption for externally tagged fish from CDQ limits. Thus, to encourage recovery of scientific information used to evaluate and manage the halibut and sablefish fisheries, the exemptions from deduction of harvested halibut and sablefish with attached external research tags would be extended to CDQ catches.

This action will improve governmental processes. Externally tagged halibut and sablefish are not counted against a fisherman's IFQ allocation if they are reported when landed. This exemption from quota deduction is intended to give fishermen an incentive to take the time to report tagging information that is important to the management of the halibut and sablefish fisheries. The original tag exemption regulations were prepared prior to the introduction of internal tags. Because fishermen are unaware of the tags' presence prior to discovery by scan samplers, this incentive does not apply to internally tagged fish. This regulatory change would eliminate the potential for ambiguity and confusion over the exemption status of fish. Extension of the exemption to the CDQ fisheries will provide an incentive for fishermen operating in these programs to return tags.

NMFS proposes to amend the current regulations on tagging at 50 CFR 679.40(g) by removing “Tagged” and adding in its place “External research tags for.” This action would specify that only halibut or sablefish bearing an external research tag issued by any state, Federal, or international agency, are excluded from program quota deduction.

In section 679.40 paragraph (g)(1), the phrase “a research tag” would be revised to read “an external research tag” to ensure that only halibut and sablefish bearing external research tags are exempt from quota deduction.

Paragraph (g)(1)(i) would be amended by removing “50 CFR 300.18” and adding in its place “50 CFR 300.62 and 50 CFR part 679.” The reference to “50 CFR 300.18” is an artifact from when the IPHC regulations for annual management measures were codified in the Code of Federal Regulations (CFR). NMFS publishes the IPHC regulations as annual management measures in the Federal Register , but now does not codify them in the CFR.

Paragraph (g)(1)(ii) would be revised to require fishermen to comply with all sablefish regulations at 50 CFR part 679 in addition to turning in a tagged sablefish.

Paragraph (g)(2) would be amended by removing “Tagged halibut and sablefish” and adding in its place “Halibut and sablefish bearing an external research tag from any state, Federal, or international agency.” In addition a reference to 50 CFR 679.5(l) would be added. Section 679.5 paragraph (l) describes the recordkeeping and reporting requirements for the IFQ Program. Language specifying which quotas would not be debited by harvest of externally tagged halibut or sablefish would be broken out into two separate paragraphs (g)(2)(i) and (g)(2)(ii). The first would address halibut IFQ and sablefish IFQ, while the second would address halibut CDQ and sablefish CDQ.

Additional language would be added to § 679.40(g)(1) and (g)(2) to improve the clarity of the regulations.

NMFS has determined that the proposed rule is consistent with the Halibut Act and the FMPs, and preliminarily determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, the reasons why it is being considered, a statement of the objectives of, and legal basis for, this action are contained in the preamble and are not repeated here. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ).

The entities that would be directly regulated by this action are the Western Alaska CDQ groups that annually receive halibut and sablefish quota, and those entities harvesting halibut and/or sablefish under the IFQ and CDQ Programs. There were six Western Alaska CDQ groups in 2004. Each of these groups is organized as a not-for-profit entity, and none is dominant in its field, thus, each group is considered to be a directly regulated small entity.

In 2004, 1,524 unique vessels harvested halibut and/or sablefish. A total of 1,304 unique vessels were used to harvest IFQ halibut, 199 to harvest CDQ halibut, and 1,489 to harvest IFQ halibut and/or CDQ halibut (i.e., 14 harvested both). A total of 396 unique vessels were used to harvest IFQ sablefish, 18 to harvest CDQ sablefish, and 403 to harvest IFQ and/or CDQ sablefish (i.e. 11 harvested both). Contractual arrangements, ownership information, and any resulting affiliations between such parties are proprietary. Though affiliation status for these entities is not well known, vessel operations are believed to be small entities and will be treated as such for the purposes of this action.

This action would amend regulations to provide that only halibut or sablefish that are externally tagged with research tags would be exempt from deduction from IFQ or CDQ accounts. The exemption is believed to provide an economic incentive for fishermen to take the additional time to notify fishery managers about the tags and about the tagged fish they encounter during their fishing operations. This information is important for the conservation and management of the halibut and sablefish fisheries.

The benefits of this action are as follows: (1) Regulatory consistency leading to the potential for fewer disagreements and lower transactions costs during landings, (2) potentially improved fisheries management via improved collection of scientific data, and (3) a potential, although very slight, economic benefit to CDQ groups, which recover and turn in external halibut and/or sablefish research tags, accruing from the exemption from quota deduction. The benefits to the CDQ groups are expected to be small due to the overall low numbers of halibut and sablefish external tag returns.

This regulation appears to impose no costs on directly regulated small entities. IFQ fishermen currently voluntarily bear the small burden of collecting and returning tags. Fishermen in the IFQ halibut and IFQ sablefish fisheries are accustomed to IFQ exemptions for delivery of externally tagged fish, and would continue to enjoy this benefit. CDQ groups harvesting CDQ halibut and CDQ sablefish would, under the proposed action, also benefit from this exemption. CDQ groups would not be required to return tags, so no costs would be imposed on them. Overall, this action would have no known adverse impacts on the profitability or competitiveness of small regulated entities.

This proposed regulation does not impose new recordkeeping or reporting requirements on the directly regulated small entities. Affected small entities may choose to ignore external research tags and are not under any obligation to report them. However, if affected small entities wish to benefit from this regulation, they must report the presence of external research tags to IPHC port samplers, to the IPHC directly, to the Alaska Department of Fish and Game, or to NMFS as appropriate.

This proposed action does not duplicate, overlap, or conflict with other Federal rules.

The no action alternative would have no direct impact on small entities. Under this alternative the regulations would not be changed to eliminate the inconsistency between IPHC and Federal regulations, nor would CDQ groups be eligible for exemptions from quota deduction for halibut or sablefish tagged with external tags issued by any state, Federal, or international agency. Therefore, the no action alternative would not meet the objectives of this action to eliminate inconsistency in the regulations and to extend the exemption from quota deduction to the CDQ groups.

An alternative that would leave the CDQ program fisheries out of the proposed action was considered but was rejected. This alternative would not encourage all fishermen that harvest halibut and sablefish in quota fisheries to return tagged fish. Moreover, this alternative would provide less benefit to CDQ groups, which are small entities under SBA guidelines. This alternative, therefore, would not meet the objectives of this action.

This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA), which has been approved by OMB under control number 0648-0276. Public reporting burden for tag information is estimated to average five minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to David_Rostker@omb.eop.gov , or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

1. The authority citation for part 679 continues to read as follows:

2. In § 679.40, paragraph (g) is revised to read as follows: