On March 19, 2012 (77 FR 15976), the Food Safety and Inspection Service published a proposed rule. Due to an editing error, the RIN number was omitted. The RIN number for this rule is 0583-AD48.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0330; Directorate Identifier 2011-NM-116-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0078, dated May 5, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Saab AB, Saab Aerosystems has issued Saab Service Bulletin 340-27-100, dated February 1, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Based on the service information, we estimate that this proposed AD would affect about 162 products of U.S. registry. We also estimate that it would take about 1 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $13,770, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $1,588 for a cost of $2,183 per product. We have no way of determining the number of products that may need these actions.

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 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 this 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);

3. Will not affect intrastate aviation in Alaska; and

4. 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.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0329; Directorate Identifier 2011-NM-139-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0120R1, dated July 13, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0169), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number (USCG-2012-0169) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2012-0169) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LCDR Christopher O'Neal at the telephone number or email address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

Marine events are frequently held on the navigable waters within the boundary of Fifth Coast Guard District. The water activities that typically comprise marine events include sailing regattas, power boat races, swim races and holiday parades. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.

This regulation proposes to add an enforcement period of a new special local regulation for one marine event within Fifth Coast Guard District.

On June 24, 2012, the Chesapeake Bay Workboat Race Committee will sponsor the “2012 Chesapeake Bay Workboat Races” on the waters of Back River. The event will consist of approximately 75 powerboats conducting high-speed competitive races on the waters of Back River, Messick Point, Poquoson, VA. A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the races. The regulation at 33 CFR 100.501 would be enforced for the duration of the event. Under the provisions of 33 CFR 100.501, from 11 a.m. to 5 p.m. on June 24, 2012, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard is establishing a temporary special local regulation on specified waters of the Back River, Messick Point in Poquoson, Virginia. The regulated area will be established in the interest of public safety during the “Chesapeake Bay Workboat Race”, and will be enforced from 11 a.m. to 5 p.m. on June 24, 2012. The Coast Guard, at its discretion, when practical, will allow the passage of vessels when races are not taking place. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.

This regulation would establish an enforcement location to include all waters of the Back River, Poquoson, Virginia, bounded to the north by a line drawn along latitude 37°06′30″ N, bounded to the south by a line drawn along latitude 37°16′15″ N, bounded to the east by a line drawn along longitude 076°18′52″ W and bounded on the west by a line drawn along longitude 076°19′30″ W.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule prevents traffic from transiting a portion of certain waterways during specified times, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. In some cases, vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

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 vessels intending to transit this section of the Back River during the event.

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) explaining why you think it qualifies and how and to what degree this rule would economically affect it. This regulation will not have a significant impact on a substantial number of small entities because: (i) It will be enforced only for a short period of time (six hours); (ii) vessels may be granted the opportunity to transit the safety zone during the period of enforcement if the Patrol Commander deems it safe to do so; (iii) vessels may transit around the safety zone; and (iv) before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

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 LCDR Christopher O'Neal. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0130), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2012-0130” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2012-0130” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one by using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The legal basis for the proposed rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.

This proposed safety zone is necessary to ensure the safety of spectators and vessels from hazards associated with the fireworks display.

Ocean State Pyrotechnics, Inc is sponsoring a wedding fireworks display on the waters of Boston Inner Harbor in the vicinity of Anthony's Pier 4, Boston, MA. The Captain of the Port (COTP) Boston has determined that fireworks displays in close proximity to watercraft and waterfront structures pose a significant risk to public safety and property. Such hazards include obstructions to the waterway that may cause marine casualties and the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Establishing a safety zone around the location of this fireworks event will help ensure the safety of spectators, vessels and other property and help minimize the associated risks. This proposed safety zone will encompass a 450-foot radius around the firework barge.

The fireworks display will occur from approximately 8:30 p.m. until 10:30 p.m. on May 19, 2012. To ensure public safety the proposed safety zone will be enforced immediately before, during, and immediately after the fireworks launch. If the event is cancelled due to inclement weather, then the proposed safety zone will not be enforced.

All persons and vessels shall comply with the instructions of the COTP or the designated on-scene representative. Entry into, transiting, or anchoring within the regulated area is prohibited unless authorized by the COTP or the designated on-scene representative. The COTP Boston or the on-scene representative may be contacted via VHF Channel 16.

The Final Rule will not be published 30 days before the event and the effective date of this proposed rule as is generally required by 5 U.S.C. 553(d)(3). The Coast Guard will accept comments on this shortened period and address them in the final rule.

Public notifications will be made prior to the event via appropriate means, and may include the Local Notice to Mariners and marine information broadcasts.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

This determination is based on the limited time that vessels will be restricted from the fireworks display area. The safety zone will be in effect for approximately three hours during the evening hours. The Coast Guard expects minimal adverse impact to mariners from the activation of the zone as information on the event will be extensively advertised in the public, affected mariners may request authorization from the COTP or the designated on-scene representative to transit the zone, and advance notification will be made to the maritime community via Local Notice to Mariners and Broadcast Notice to Mariners.

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 will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the Boston Inner Harbor in the vicinity of Anthony's Pier 4, Boston, MA during the effective period.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only three hours on a single day during the late evening and vessels will be able to transit around the safety zone. Before the effective period, we will issue maritime advisories widely available to users of the waterway.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (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 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) 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 cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination will be available in the docket where indicated under ADDRESSES. This proposed rule involves establishment of a safety zone on the waters of the East River during a firework works display. This rule appears to be categorically excluded, under figure 2-1, paragraph (34)(g), of the Commandant Instruction.

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 12-69, adopted March 21, 2012, and released March 21, 2012. The full text of the NPRM is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com. Copies of the NPRM also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket No. 12-69. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov.

1. The Communications Act directs the Commission to, among other things, promote the widest possible deployment of communications services, ensure the most efficient use of spectrum, and protect and promote vibrant competition in the marketplace. On each occasion where the Commission has made available new spectrum for mobile telephony and/or broadband, it has strived to meet these important goals. This was the case when the Commission launched its proceeding to free up the 700 MHz band for commercial mobile services, as it expressly recognized the need to “balance several competing goals, including facilitating access to spectrum by both small and large providers, providing for the efficient use of the spectrum, and better enabling the delivery of broadband services in the 700 MHz Band.”

2. Since the completion of the 700 MHz auction and the subsequent clearing of the spectrum, however, certain Lower 700 MHz A Block licensees have asserted that the development of two distinct band classes within the Lower 700 MHz band has hampered their ability to have meaningful access to a wide range of advanced devices. The result, they argue, is that this spectrum is being built out less quickly than anticipated (and in some cases not at all), so that a large number of Lower 700 MHz A Block licensees are unable to provide the level of service and degree of competition envisioned at the close of the auction and as contemplated by the Communications Act. The 700 MHz band, at 70 megahertz, one of the largest commercial mobile service bands, is the only non-interoperable commercial mobile service band.

3. The record to date in response to the underlying Petition for Rulemaking reveals disagreement over the rationale for the distinct band classes, and the wisdom of maintaining both. At its core, the dispute is whether a unified band class would result in harmful interference to Lower 700 MHz licensees in the B and C Blocks and whether, if harmful interference exists, it reasonably can be mitigated.

4. There is express agreement, however, that a unified band class across the Lower 700 MHz band has the potential to yield significant benefits for all licensees. Indeed, as AT&T, the primary holder of Lower B and C Block licenses, affirmed in a recent letter to the Commission, “[AT&T] indeed anticipate[s] that there would be increased opportunity [if interference concerns were addressed] for commercial relationships with A Block licensees.” Unfortunately, no industry-led solution to the lack of interoperability has yet emerged.

5. Therefore, the Commission initiates this rulemaking proceeding to promote interoperability in the Lower 700 MHz band and to encourage the efficient use of spectrum.1 The Commission will evaluate whether the customers of Lower 700 MHz B and C Block licensees would experience harmful interference—and if so, to what degree—if the Lower 700 MHz band were interoperable. The Commission also explores the next steps should it find that interoperability would cause limited or no harmful interference to Lower 700 MHz B and C Block licensees, or that such interference can reasonably be mitigated through industry efforts and/or through modifications to the Commission's technical rules or other regulatory measures.

6. 700 MHz Band. The 700 MHz band (698-806 MHz), illustrated in the following figure, is comprised of 70 megahertz of commercial, non-guard band spectrum, 4 megahertz of guard band spectrum, 24 megahertz of public safety: Spectrum, and 10 megahertz of spectrum that will be reallocated for public safety use pursuant to recent Congressional mandate.

7. As shown above, the Lower 700 MHz band spectrum (698-746 MHz) consists of 48 megahertz of commercial spectrum, with three blocks of 12 megahertz each of paired spectrum (Lower A, B, and C Blocks), and two blocks of 6 megahertz each of unpaired spectrum (Lower D and E Blocks). The Lower A Block spectrum is adjacent to Channel 51 (692-698 MHz), which has been allocated for TV broadcast operations at power levels of up to 1000 kW.2 The Lower A Block is also adjacent to the unpaired Lower 700 MHz E Block, where licensees (along with Lower 700 MHz D Block licensees) may operate at power levels up to 50 kW.3 The Upper 700 MHz band (746-806 MHz) consists of the C Block, which is comprised of 22 megahertz of paired spectrum for commercial use, two guard bands, the public safety allocation, and the D Block, which consists of 10 megahertz of paired spectrum that will be reallocated for use by public safety entities, in accordance with the Middle Class Tax Relief and Job Creation Act of 2012.

8. Assignment of Licenses in the 700 MHz Band. The Commission has assigned licenses for the 700 MHz band through several auction proceedings. The Commission auctioned licenses for the guard bands in the Upper 700 MHz band in 2000, and it initially auctioned licenses in the Lower C and D Blocks in 2002. In 2008, the Commission auctioned licenses in the Lower 700 MHz band A, B, and E Blocks, as well as the Upper 700 MHz band C Block.

9. Performance Requirements. In adopting rules for the 700 MHz band, the Commission's goals included promoting commercial access to 700 MHz band spectrum, as well as providing licensees with flexibility in the services to be offered and the technologies to be deployed. For the Lower 700 MHz C and D Block licenses that were auctioned in 2002, the Commission required licensees to provide “substantial service” to their license service areas no later than the end of the license term. In 2007, the Commission adopted performance requirements for licenses in the 700 MHz band that subsequently were auctioned in 2008, including Lower 700 MHz A Block. Specifically, Cellular Market Area (CMA)-based and Economic Area (EA)-based licensees are required to provide service sufficient to cover 35 percent of the geographic area of their licenses within four years and 70 percent of this area within ten years (the license term), and Regional Economic Area Grouping (REAG) licensees must provide service sufficient to cover 40 percent of the population of their license areas within four years and 75 percent of the population within ten years. For licensees that fail to meet the applicable interim benchmark, the license term is reduced by two years, which would require that the end-of-term benchmark be met within eight years, and the Commission may take other enforcement action. At the end of the license term, licensees that fail to meet the end-of-term benchmark are subject to a “keep what you use” rule, which will make unused spectrum available to other potential users.

10. Development of 3GPP Technical Standards. Industry standards for Long-Term Evolution (LTE) wireless broadband technology are developed by the 3rd Generation Partnership Project (3GPP), a consensus-driven international partnership of industry-based telecommunications standards bodies. 3GPP, established in 1998, is an industry-based group and it is not associated with any governmental agency.4 In the Lower 700 MHz band, there are two different 3GPP operating bands: 5 Band Class 12, which covers operations in the Lower A, B, and C Blocks, and Band Class 17, which covers operations in the Lower B and C Blocks only. The spectrum to which Band Class 17 applies is a subset of the spectrum covered by Band Class 12. Entities involved in the creation of Band Class 17 during 3GPP proceedings assert that it was necessary to create a separate band class for Lower 700 MHz B and C Block licenses in order to avoid interference issues from DTV in Channel 51 and high power operations in the E Block. In the Upper 700 MHz band, the Band Class 13 specification provides for operations in the Upper C Block, and Band Class 14 provides for operations in the public safety spectrum (including the Upper 700 MHz D Block). 3GPP has adopted certain technical specifications for user equipment operating in different 700 MHz bands. Output power and the OOBE specifications for LTE equipment are the same for all commercial paired frequencies in the Lower 700 MHz band.6 The 3GPP specifications differ for receiver blocking requirements. The 3GPP specified requirements for receiver blocking are the same for Band Class 13 and Band Class 14 equipment, but Band Class 12 and Band Class 17 each have different and distinct blocking requirements, due to differences in each band's relative proximity to neighboring high-powered operations in the E block.7

11. 700 MHz Interoperability Petition for Rulemaking. In late 2009, an alliance comprised of four Lower 700 MHz A Block licensees (Petitioners) filed a petition for rulemaking, asking the Commission to “assure that consumers will have access to all paired 700 MHz spectrum that the Commission licenses, to act so that the entire 700 MHz Band will develop in a competitive fashion, and to adopt rules that prohibit restrictive equipment arrangements that are contrary to the public interest.” Petitioners request the Commission to require that all mobile units for the 700 MHz band be capable of operating over all frequencies in the band. Petitioners further request “an immediate freeze on the authorization of mobile equipment that is not capable of operation on all paired commercial 700 MHz frequencies.” The Wireless Telecommunications Bureau sought comment on the Petition in 2010. See 75 FR 9210. All future filings concerning RM-11592 should be made in this docket, WT Docket No. 12-69.

12. The Commission received 18 comments and 13 reply comments in response to the Petition. Commenters are divided on the merits of the relief sought in the Petition. Commenters in support of the Petition include smaller, regional 700 MHz licensees, a coalition including Sprint Nextel and T-Mobile, trade associations representing rural and smaller providers, a coalition of public interest groups, and public safety associations. These supporters assert that the mobile devices currently being developed for AT&T and Verizon Wireless preclude supporting operation on Lower A Block spectrum and that this is contrary to the public interest and anti-competitive. They argue that small providers that acquired Lower band 700 MHz Block A spectrum are left without viable and widely usable equipment options. Thus, they contend that unless Verizon Wireless and AT&T are required to support Band Class 12 in their devices, Lower A Block licensees will not be able to obtain devices with competitive economies of scale. They also argue that requiring full 700 MHz support will maximize roaming opportunities. Specifically, Petitioners assert that a prerequisite for negotiating roaming agreements is the availability of capable devices and that there is no basis for negotiation if there are no mobile devices that work across 700 MHz frequency blocks. While the Petition requests interoperability across the entire 700 MHz band, subsequent filings from some of the proponents of an interoperability requirement, including parties to the Petition, have asked the Commission to first focus on establishing an interoperability requirement for the Lower 700 MHz band.

13. In their initial comments, parties such as AT&T and Verizon Wireless, device manufacturers Motorola and Qualcomm, and TIA, a manufacturer trade association, opposed the Petition. They argued that without Band Class 17 filtering, Lower 700 MHz B and C licensees will face greater levels of harmful interference. Further, they suggested that an interoperability requirement at that time, spring 2010, would have unnecessarily delayed the deployment of 700 MHz mobile broadband devices. They contended that the existing 3GPP band classes were crafted through an open process and are responsive to the realities of the engineering and manufacturing constraints of the Commission-defined spectrum blocks. Further, AT&T asserted that nothing prevents 700 MHz A Block licensees from negotiating roaming deals with any provider offering services on other 700 MHz blocks. AT&T also argued that even if A Block licensees will have greater difficulty or face higher costs in developing handsets for use on the A Block, those disadvantages are fully reflected in the lower prices A Block licensees paid to obtain A Block spectrum.

14. Workshop on Interoperability. Last year, to update the record and gather additional information, the Wireless Telecommunications Bureau held a workshop on the status and availability of interoperable mobile user equipment across commercial spectrum blocks in the 700 MHz band. Panelists included a range of industry experts, including licensees holding spectrum in different portions of the 700 MHz band, as well as public interest advocates and equipment manufacturers. In addition to exploring solutions for promoting the development and availability of equipment for the 700 MHz band, the workshop discussed providers' technology choices, such as the planned deployment of LTE, and how these technology choices affect equipment availability, competition, and roaming. Panelists discussed the technical feasibility of an interoperability condition, as well as how an interoperability requirement might affect such factors as device cost and performance, and the need for additional development and testing.

15. Other Developments Regarding the 700 MHz Band. On March 15, 2011, CTIA and RCA filed a petition for rulemaking and request for licensing freezes on Channel 51, urging the Commission to facilitate the deployment of wireless broadband services in the Lower 700 MHz A Block by providing a stable interference environment that allows licensees to plan network deployments. The petition noted the potential for interference between Channel 51 broadcast and Lower 700 MHz A Block licensees. On March 28, 2011, the Media Bureau requested comment on the petition, and in August 2011, the Media Bureau adopted a freeze on the filing of certain applications with respect to operations on Channel 51. The freeze covers (1) applications for low power television, TV translator, replacement translators, and Class A television facilities on Channel 51, and displacement applications on this channel; and (2) applications for minor change for low power and full power television stations on Channel 51.

16. AT&T/Qualcomm Transaction. On January 13, 2011, AT&T and Qualcomm filed an application for Commission consent to the assignment or transfer of control of all eleven of Qualcomm's D and E Block licenses in the Lower 700 MHz band to AT&T. The Commission sought comment on the proposed transaction. Several parties asked the Commission to impose requirements relating to device interoperability as a condition of approving the transaction. After examination of the record, the Commission approved the assignment on December 22, 2011, but declined to adopt an interoperability condition. The Commission observed that even assuming that the lack of Lower 700 MHz interoperability causes significant competitive harm, such harm already existed independent of the license transfer applications. The Commission concluded that the better course would be to consider the numerous technical issues raised by the lack of interoperability through a rulemaking proceeding, which the Commission undertakes in this NPRM.

17. The Commission historically has been interested in promoting interoperability. Beginning with the licensing of cellular spectrum, the Commission has opined that consumer equipment should be capable of operating over the entire range of cellular spectrum as a means to “insure full coverage in all markets and compatibility on a nationwide basis.” Although the Commission did not adopt a rule to require band-wide interoperability for PCS, it again stressed the importance of interoperability by acknowledging industry efforts to establish voluntary interoperability standards and asserted that “[t]he availability of interoperability standards will deliver important benefits to consumers and help achieve the Commission's objectives of universality, competitive delivery of PCS, that includes the ability of consumers to switch between PCS systems at low cost, and competitive markets for PCS equipment.” The Commission also stated that if PCS technology did not develop in a manner to accommodate roaming and interoperability, it might consider “what actions the Commission may take to facilitate the more rapid development of appropriate standards.”

18. Availability of End-User Equipment. According to the Petitioners, a lack of interoperability in the Lower 700 MHz band has cut off meaningful access for many Lower A Block licensees to cutting-edge devices, and even those that do have access are able to acquire only a fraction of what other 700 MHz licensees are able to procure. Petitioners and proponents of a near-term interoperability requirement make essentially two arguments. Specifically, Vulcan argues that equipment vendors currently first serve the needs of “the unique band class that is dominated by AT&T” and that this slows the time to market for Lower A Block licensees because they experience a lack of access to new devices and face delays in the development of standards, chipsets, and equipment. Similarly, RTG asserts that equipment manufacturers have little incentive to innovate and provide compatible devices for smaller markets, particularly when providing interoperable devices would run contrary to their largest customers' desires.

19. Petitioners and other proponents also claim that an interoperability requirement should enable Lower A Block licensees and other Lower 700 MHz licensees to benefit from economies of scale with respect to mobile devices, which in turn would promote greater affordability that can be passed along to consumers. RCA argues that even where Band Class 12 equipment can be made available, the costs are unnecessarily inflated by the limited scale resulting from the lack of interoperability across the 700 MHz spectrum. According to the record, Cellular South was able to find a manufacturer willing to supply it with devices that included, at a minimum, Band Class 12 frequencies, but “the cost of obtaining such devices without the economies of scale available based upon demand for similar devices by a nationwide carrier made pursuing the opportunity not economically feasible.” Cellular South asserts that the necessary “scale” to obtain pricing that would allow it to bring devices to market would be expected to involve more than one million devices and in any case no less than a half million devices.

20. Nationwide providers AT&T and Verizon Wireless respond that Lower 700 MHz A Block licensees are free to negotiate with device manufacturers. Verizon Wireless claims that “those decisions have to be made by those carriers to meet their own individual business plans. Verizon Wireless has nothing to do with those decisions.” Verizon Wireless also asserts that there are at least 33 companies that manufacture devices for the U.S. market and that Petitioners “provide no evidence about their efforts (or the apparent lack thereof) to obtain the devices they want, either individually or through a consortium, from any of these potential suppliers.”

21. The Commission seeks comment on Petitioners' and other proponents' argument that an interoperability requirement in the 700 MHz band is necessary to obtain affordable, advanced mobile devices to deploy service to consumers in smaller, regional, and rural service areas. To what extent have any Lower A Block licensees successfully negotiated with equipment vendors to date? What efforts have other Lower A Block licensees undertaken to negotiate with equipment vendors? Would an interoperability requirement help enable Lower A Block licensees to benefit from economies of scale with respect to mobile devices, and what would be the benefits to consumers? Do manufacturers require a provider to purchase a minimum number of devices? If so, what is that number and is it prohibitive for a smaller provider to achieve such a scale? The Commission seeks data and evidence in support of all of these claims.

22. Effect on the Deployment of Advanced Broadband Services. The record to date suggests that, unless mobile user equipment is capable of operating on all paired commercial Lower 700 MHz spectrum, the deployment of facilities-based mobile broadband networks could be hampered, particularly in rural and unserved areas. The Commission notes that a significant number of Lower A Block licenses are held by smaller, rural, and regional licensees. Petitioners and proponents argue that requiring all Lower 700 MHz licensees to use interoperable equipment would increase the likelihood that these Lower A Block licensees can obtain the necessary financing to deploy networks and devices. They add that the inability of small and regional providers to obtain interoperable devices impedes their ability to compete in the provision of 4G services, makes it difficult to maintain current customers and acquire new ones, results in equipment costs that are higher than for other bands, and creates uncertainty for spectrum holders that could have adverse effects on investment in deployment of networks and devices. RCA and Triad argue that Lower A Block licensees' inability to obtain affordable end user devices could cause the A Block spectrum to remain fallow for an extended period of time.

23. AT&T responds that an interoperability requirement in the Lower 700 MHz spectrum would impose unreasonable burdens on AT&T's ability to build out its Lower 700 MHz spectrum. Specifically, AT&T claims that such a requirement would create “substantial disruption and delay to [its] current LTE deployment plans and significant additional costs.” AT&T claims that if it were required to abandon plans to use Band Class 17 and deploy a network around Band Class 12, it would need to upgrade its LTE base stations and develop and obtain “new chipsets, devices and radio equipment, a process that usually takes years to complete.” It also asserts that adding Band Class 12 capabilities into its mobile devices along with Band Class 17 capabilities would make the devices substantially larger, likely shorten battery life, and potentially require the tradeoff of other uses, such as bands used for international roaming. In addition, as discussed below, AT&T's objections also stem from issues associated with potential interference concerns from Channel 51 operations and high power Lower E Block broadcasts.

24. The Commission asks commenters to submit additional detailed metrics to evaluate the effects of an interoperability requirement on competition. Specifically, would the use of interoperable equipment promote consumer choice by facilitating the portability of mobile devices between service providers, thereby allowing consumers to switch more easily between providers? At the same time, would deployment of Lower 700 MHz B and C Block service be delayed by a move towards interoperability, either by rule or industry agreement? What would be the relevant costs associated with possible Commission action? What costs would Lower 700 MHz B and C licensees who have already committed to Band Class 17, or who plan to do so, incur if the Commission adopts an interoperability rule in the Lower 700 MHz spectrum?

25. Would a requirement that mobile user equipment be capable of operating on all paired commercial Lower 700 MHz spectrum facilitate deployment of facilities-based mobile broadband networks in rural and unserved areas? Are Lower A Block licensees just as likely to obtain funding and obtain affordable mobile equipment without Commission action? The Commission also seeks specific data and anecdotal evidence to support claims that an interoperability obligation would require complete redesign and upgrade of devices and base stations. The Commission seeks additional information on the necessary changes to chipsets and the timeframes these changes will impose.

26. U.S. Cellular recently announced the planned launch of a 4G LTE network that will cover 25 percent of U.S. Cellular's customers and will use the 700 MHz licenses of its partner, King Street Wireless. C-Spire, in contrast, reportedly has delayed its previously announced launch of its 4G LTE network. The Commission asks Lower A Block licensees to provide detailed information on the effect that a lack of interoperability has had, if any, on their efforts to deploy service. Commenters should be as specific as possible and should, where possible, include data or affidavits.

27. Roaming. A number of commenters argue that an interoperability requirement would promote roaming among 700 MHz licensees. These proponents argue that requiring the use of interoperable equipment in the Lower 700 MHz band would promote the commercial availability of mobile device equipment for all Lower 700 MHz licensees. Without that equipment, Lower 700 MHz A Block licensees maintain they cannot build out their networks, which they claim is a prerequisite for the negotiation of roaming agreements. Petitioners also claim that they have no reason to expect such mobile devices to be available on a widespread, affordable basis in the 700 MHz band and without such devices, there is nothing to negotiate. Petitioners contend that small rural and regional carriers are in no position to place bulk orders for mobile devices that work in the Lower 700 MHz A Block and also work in other 700 MHz frequency blocks. They claim that AT&T and Verizon Wireless are the only ones who hold the market power with the device manufacturers and the two carriers currently are developing mobile devices that work exclusively on their bands. Without interoperable devices, Petitioners state that there will be no roaming in the 700 MHz band.

28. NTCA states that mobile customers rely on and expect a “seamless experience” that is made possible by roaming arrangements. Without roaming, NTCA explains that customers will experience “isolated islands of service.” Further, Petitioners and other supporters assert that even if Band Class 12 equipment were available, from a technical perspective, Band Class 17 device users would be unable to roam on Band Class 12 networks operating on Block A. They argue that a lack of interoperability leaves customers of small carriers “without an option for a nationwide service, perpetually unable to roam on the networks of the large carriers.”

29. AT&T and Verizon Wireless respond that the Lower A Block licensees are not prevented from negotiating roaming arrangements with providers offering services on the other 700 MHz blocks. AT&T also responds that A Block licensees are free to negotiate with handset manufacturers to design, manufacture and deploy wireless handsets and other devices that operate within the spectrum bands that are needed based upon their spectrum holdings and business plans, including Band Class 12 or other commercial spectrum.” AT&T argues that “[t]he Commission should not take action to force carriers to utilize a certain spectrum band for roaming,” but that carriers should be able “to choose their roaming partners based on factors like network compatibility, price, coverage, and call quality.” The Commission seeks comment on whether interoperability would promote reasonable roaming arrangements among 700 MHz providers and would increase the number of providers that are technologically compatible for roaming partnership.

30. Even if the record demonstrates that the existence of two distinct band classes in the Lower 700 MHz band is creating a device and network deployment problem, the Commission must ultimately resolve the central question as to whether a single band class would cause widespread harmful interference to Lower 700 MHz B and C Block licensees, who would otherwise use Band Class 17 devices rather than Band Class 12.

31. Interoperability issues are particularly relevant at this time, as licensees are in the process of deploying LTE in the Lower 700 MHz band. As of December 2011, AT&T has launched LTE service using its Lower 700 MHz B and C Block licenses in 15 markets. In addition, as noted above, U.S. Cellular recently announced the planned launch of an LTE network that will cover 25 percent of its customers and will use the 700 MHz licenses of its partner, King Street Wireless. As discussed earlier, there are two Lower 700 MHz band LTE standards for the Lower 700 MHz band, with 3GPP Band Class 17 spanning the B and C Blocks, and Band Class 12 spanning the A, B, and C Blocks. Some commenters have argued that this, in turn, fragments the device ecosystem for LTE devices that operate in the Lower 700 MHz band and prevents interoperability.

32. Commenters argue that there would be two primary interference concerns for providers operating in the Lower 700 MHz B and C Blocks if these providers were to substitute Band Class 12 for Band Class 17 in newly-offered devices (as opposed to adding Band Class 12 capabilities into devices along with Band Class 17): (1) Reverse intermodulation interference from adjacent DTV Channel 51 operations; and (2) blocking interference from neighboring high-powered operations in the Lower 700 MHz E Block. The Commission focuses its technical analysis on these two primary issues. The Commission notes that some commenters also express concern regarding the need to deploy wider filters in order to migrate to Band Class 12. The Commission observes, however, that a transition from Band Class 17 to Band Class 12 does not necessitate a change to base station filtering. Operators deploying networks in the Lower 700 MHz B and C Blocks can continue to filter base station receivers as they would for Band Class 17, and thus interference from Channel 51 to B and C Block base stations is the same regardless of whether Band Class 12 devices or Band Class 17 devices are used. Commenters also raise other potential interference concerns, including interference from Band Class 12 devices into Channel 51 television receivers, and other interference issues that are specific to operations in the A Block. The Commission does not address those issues herein. The Commission focuses the scope of this proceeding to interference to Lower 700 MHz B and C Block operations that may result from the adoption of Band Class 12 devices by Lower 700 MHz B and C licensees, whether voluntarily or by regulatory mandate.

33. AT&T asserts that both reverse intermodulation and blocking interference are significant issues. It expects that managing and mitigating the interference from Channel 51 and any high power Lower E Block broadcasts to its network would account for the greatest expenses, and that its customers would not, on balance, benefit from AT&T migrating to Band Class 12. AT&T argues that if it were required to use Band Class 12 devices as opposed to Band Class 17 devices, its customers would be forced to use devices that would expose them to interference risks (from Channel 51 and the E Block) they otherwise would not face. Notwithstanding the foregoing, AT&T affirms that it does not object to supporting interoperability in the Lower 700 MHz band, assuming supply chain availability, if interference challenges from Channel 51 and the Lower 700 MHz E Block licensees are addressed to its satisfaction.

34. With regard to the Channel 51 interference concerns, Motorola's view in its original 3GPP proposal to create Band Class 17 was that reverse intermodulation interference could happen when Band Class 12 devices are close to high-powered Channel 51 transmission towers, which it believes could result in in-band interference because of the limited radio frequency (RF) filtering capability of Band Class 12 filters. According to Motorola's paper, “the key issue” in determining the possibility of such interference is “the level of the DTV Channel 51 wideband signal that would be present at the UE antenna port based on a reasonable deployment scenario,” but Motorola does not provide evidence showing the circumstances that could produce conditions suitable to create reverse intermodulation interference from Channel 51.

35. Proponents of an interoperability requirement argue that no reverse intermodulation interference would occur, and that if an operator does experience any such interference, solutions exist to mitigate Channel 51 interference concerns to Band Class 12 devices operating in the B and/or C Blocks. According to Cellular South and King Street Wireless, “With [less than five megahertz] Tx bandwidth, any Channel 51-700 intermodulation products would not fall within the device receive blocks (no self-interference issue).” They represent that this is because a strong signal from Channel 51 must mix with a full-power Lower 700 MHz B and C Block device transmission, but “LTE base stations do not allow devices to transmit at full power with [greater than five megahertz] bandwidth due to a self-desense issue.” Essentially, Cellular South and King Street Wireless argue that power amplifier linearity in a mobile device improves considerably when it is not transmitting at full power and that if the device transmitted bandwidth is less than five megahertz, then intermodulation products resulting from the combination of Channel 51 and Lower 700 MHz band C Block transmit frequencies would not cause intermodulation interference. Finally, they point out that if intermodulation interference is experienced, the wireless operator “may deploy an LTE base station several hundred meters away from the Channel 51 station to control device transmit power and provide a stronger downlink desired signal.”

36. Vulcan performed lab and field tests to test the assertion that “reverse intermodulation distortion caused by Channel 51 using a Band Class 12 device would create an interfering signal in the B Block receiver.” Based on the results of lab tests, Vulcan concludes that a minimum signal level of 0 dBm from Channel 51 would be necessary to create an interference signal at the noise floor of the B Block receiver, and field measurements showed that Channel 51 transmissions were no stronger than -21 dBm. The report indicates that the strongest signal strength in the field measurements of DTV Channel 51 is typically much lower than necessary to generate noticeable reverse intermodulation interference. AT&T responds that the tests referenced by Vulcan do not represent real-world situations, because the tests occurred only within a two kilometer radius of the Channel 51 tower, whereas stronger signals from Channel 51 can occur at closer distances.

37. With regard to interference from Lower E Block operations, Motorola asserts that receiver blocking performance may be degraded when Band Class 12 devices are close to high-powered Lower E Block transmission towers, due to limited Band Class 12 device out-of-band blocking rejection. According to AT&T, Band Class 17, with an extra six megahertz of separation from the Lower E Block, was created to alleviate this concern, so that the device filter can provide sufficient attenuation of the E Block transmissions. It further asserts that Band Class 12 has sub-optimal filtering because of the lack of sufficient frequency separation between the Lower E Block and the starting frequencies of Band Class 12.

38. The Coalition for 4G asserts that network operators can eliminate potential interference from Lower E Block operations by deploying the A, B, or C Block base stations near the E Block transmitters. In support of its position that interference from Lower 700 MHz E Block transmitters is manageable for Band Class 12 devices operating in Lower 700 MHz B and C blocks, Vulcan's lab and field tests assess the severity of interference issues to Band Class 12 devices from high power 50 kW transmissions in the Lower 700 MHz E Block. The tests indicate that the Atlanta field measurements of the highest signal power ratios between the 50 kW Lower E Block and B Block are typically 15 to 30 dB lower than necessary to produce Lower B Block receiver blocking. The tests conclude that real-world tests found the anticipated interference circumstances are manageable and Band Class 17 is redundant. Vulcan also asserts that the test results confirm Band Class 12 devices performance would not be worse than Band Class 17 devices, and that Band Class 17 already has greater levels of internal interference from within the Lower B and C Blocks.

39. In response, AT&T disagrees generally with the effectiveness of these potential mitigation techniques, stating that (1) increasing the number of cell sites near E Block transmitters or Channel 51 towers would increase the cost of providing 4G service, which would eventually be passed on to consumers, and (2) given the limited number of available site locations, coordination alone is insufficient to solve Band Class 12 interference issues. AT&T also asserts that adequate coverage of a 50 kW mobile broadcast service in the market in which Vulcan conducted its testing would require at least thirteen Lower 700 MHz E Block transmitters, which would lead to higher signal levels compared to the four transmitters that were active when testing was conducted by Vulcan. It is unclear, however, how much higher the signal levels may be close to a Lower E Block transmitter that is surrounded by twelve additional E Block transmitters versus one that is surrounded by only three. Whereas more base stations will improve overall signal levels and coverage, basic engineering calculations would suggest that any increase to the signal levels close to each base station, where signals may be strong enough to cause in-band receiver blocking interference to neighboring bands, would be negligible.

40. The Commission seeks comment on these and any additional technical and operational factors that should be taken into consideration in any transition to an interoperable Lower 700 MHz band. The Commission asks interested parties to submit measurements and quantitative analyses regarding the magnitude and extent of the interference risk from adjacent Channel 51 and Lower Block E transmissions for Band Class 12 devices operating in the Lower B and C Blocks. How effective are existing mitigation measures, such as coordination between Lower 700 MHz and DTV Channel 51 licensees? Further, what innovative technical measures might be introduced in the near future, such as better performing RF duplexers and filters? What additional interoperability solutions exist or are being developed to address these interference concerns? The Commission also seeks comment on the performance of Band Class 12 devices compared to Band Class 17 devices, as well as on other factors relating to the operations in the Lower B and C Blocks. Furthermore, in the event unwanted harmful interference cannot be mitigated in some areas, the Commission seeks comment on whether the potential harm resulting from interference in those areas is outweighed by the public interest benefits that would result from interoperability in the Lower 700 MHz band, and what factors should be considered in balancing these concerns.

41. As noted above, should Band Class 12 be substituted in devices for Band Class 17, operational issues may arise to the extent that a single network must be capable of supporting more than one device band class. That is, if a licensee chooses to continue supporting its existing grandfathered Band Class 17 devices, the wireless network will need to support both Band Class 17 devices and Band Class 12 devices. The Commission seeks comment on possible ways to address this issue. Since the two Band Classes overlap in frequencies, the Commission thinks it is likely that there are relatively simple, cost effective solutions that will allow a single network to accommodate devices from both band classes. For example, would the Equivalent Home Public Land Mobile Network file (EHPLMN) update in devices allow the LTE network to support both Band Class 12 and Band Class 17 devices?

42. The Commission seeks comment on whether there are measures it should take to address Lower 700 MHz interference concerns that may be preventing the voluntary adoption of Band Class 12 by Lower B and C Block licensees. The Commission notes that AT&T asks it to “modify the rules governing service in Channel 51 and in the 700 MHz Lower E Block to permit power levels, out of band emissions and antenna heights that are no greater than those currently permitted in the 700 MHz Lower A and B blocks, to allow downlink only in the Lower E Block and uplink only in Channel 51, and to relocate any incumbent high power broadcast operations out of Channel 51 and the Lower E Block.” In approving AT&T's acquisition of Qualcomm's Lower 700 MHz licenses (comprising all of the Lower 700 MHz D Block licenses and five of the Lower E Block licenses), the Commission included a condition that AT&T operate under the same power limits and height restrictions applicable to Lower 700 MHz A and B Block licensees, which will reduce the instances of high-powered operations in the Lower D and E Blocks. Specifically, the Commission stated that “AT&T must operate on the Lower D and E Block licenses consistent with the limits set forth in Section 27.50(c), excluding Subsection 27.50(c)(7).” The Commission also conditioned the transaction on AT&T's use of this spectrum only for downlink transmissions. In addition, it conditioned the transaction on AT&T taking certain steps to mitigate possible interference caused by AT&T's use of the Lower D and E Blocks to the uplink operations of licensees operating in the Lower 700 MHz A, B, and C Blocks, including mitigating interference within 30 days after receiving written notice from the A, B, or C Block licensee.8

43. The Commission seeks comment on whether it should modify its rules for Lower 700 MHz D and E Block operations, using the technical conditions set forth in the AT&T/Qualcomm decision as a template. Modifying the Commission's rules in this manner would lead to consistency in the technical requirements for the Lower D and E Blocks and would help to address potential harmful interference from operations on the Lower E Block licenses that are not held by AT&T. Would these modifications adequately address concerns that Lower B and C Block licensees may experience harmful interference from Lower D and E Block operations if they transition to Band Class 12? As a practical matter, would modifying the Commission's rules in this manner encourage Lower B and C Block licensees to voluntarily adopt interoperable devices? The Commission also seeks comment on how such modifications would affect the operations and plans of Lower E Block licensees, other than AT&T. What other modifications to the Lower 700 MHz D and E Block technical operational rules should the Commission consider and what are the costs and public interest benefits of these alternative rules?

44. With respect to potential interference as a result of Channel 51 operations, are there steps the Commission could take to reduce the threat of such potential interference that would balance the needs and rights of Channel 51 incumbents with Lower 700 MHz licensees? What role, if any, should the passage of the Middle Class Tax Relief and Job Creation Act of 2012, which gives the Commission authority to conduct incentive auctions, including in the television broadcast bands, have in the Commission's approach to potential interference from Channel 51 to the Lower 700 MHz band licensees? Could any measures be implemented without causing an undue burden on existing licensees? What is the likelihood that Channel 51 licensees will experience interference from operations in the Lower 700 MHz band? Vulcan asserts that “Band Class 12 device interference into TV receivers is a claim that has never been substantiated,” and that the potential for Channel 51 licensees to cause interference to A Block base stations “is a deployment issue to be managed by the Lower A Block licensees.” Aside from regulatory measures, what steps should the Commission take to encourage voluntary industry efforts to find solutions to interference concerns?

45. Other Issues. Commenters are concerned that if a provider adds Band Class 12 capabilities into mobile devices along with Band Class 17 (as opposed to substituting Band Class 12 for Band Class 17 in newly offered devices), the devices will be adversely affected with respect to form factor, cost, and battery life. The Commission seeks comment on these assertions. What network-specific issues would arise, and how could licensees address those issues? How difficult or costly would it be for licensees to address any network-specific issues? Are there interim as well as long-term solutions that might be employed, and what is their timing? Are there any roaming or legacy device support issues that one solution may address that another may not? Given the highly technical and complex nature of this proceeding, the Commission seeks qualitative and quantitative data and engineering analyses to support commenters' claims.

46. Finally, the Commission seeks comment on whether its efforts should be focused exclusively—as they are now—on interoperability in the Lower 700 MHz band, as opposed to the entire band. As the Commission noted above, although the Petition initially requests an interoperability requirement that requires mobile equipment to be capable of operating on all paired commercial frequency blocks in both the Upper and Lower 700 MHz bands, subsequent filings from some of the proponents of an interoperability requirement focus on requiring the use of Band Class 12 devices in the Lower 700 MHz band.9 The Commission notes that there are unique interference environments and different technology-related issues, including the ability of equipment to accommodate multi-band interoperability, that are specific to the Lower versus Upper 700 MHz bands, as well as additional issues pertaining to consideration of requiring equipment to accommodate multi-band interoperability.10

47. Assuming the Commission concludes that concerns regarding harmful interference to Lower 700 MHz B and C Block licensees are not a reasonable obstacle to interoperability or can be mitigated through industry efforts and/or Commission action, the Commission seeks comment on whether there is likely to be a timely industry solution to interoperability in the Lower 700 MHz band, or whether additional regulatory measures will be necessary to promote interoperability across the Lower 700 MHz band. Commenters currently supporting Band Class 17 suggest that resolving interference concerns would encourage the use of Band Class 12. For example, Verizon asserts that it “fully supports commercial development of Band Class 12 devices,” and that “actions addressing interference issues would spur evolution of the device market toward full Lower 700 MHz interoperability.” AT&T asserts that, if interference challenges from high power broadcasts in Channel 51 and in the Lower 700 MHz E Block are addressed satisfactorily, it will not object to supporting interoperability in the Lower 700 MHz band. Further, AT&T contends that “these challenges can and should be addressed.” Absent a regulatory mandate to implement interoperability, will Lower 700 MHz licensees voluntarily ensure that all of the Lower 700 MHz spectrum used for mobile transmit is included in their mobile equipment?

48. In what timeframe would a voluntary migration to interoperable devices reasonably take place? The Commission notes that while U.S. Cellular recently announced that it has impending plans to launch 4G LTE service, together with its partner King Street Wireless L.P., it nevertheless asserts that “the Commission must still act quickly to address issues related to interoperability within the lower 700 MHz bands.” Similarly, proponents of an interoperability requirement argue that action must be taken by the end of 2012. Aside from the widespread and exclusive adoption of Band Class 12 in devices, which would necessitate only a single duplexer solution, what other solutions exist that might address interoperability concerns without regulatory intervention and within a reasonable timeframe? What would be a reasonable timeframe for a path to interoperability, and how will this timing affect consumers and competition?

49. The Commission thinks that an industry solution to the question of interoperability in the Lower 700 MHz band would be preferable because such a solution allows the market greater flexibility in responding to evolving consumer needs and dynamic and fast-paced technological developments. At the same time, the Commission recognizes that if the industry fails to move timely toward interoperability once interference concerns are adequately addressed (by regulatory action or otherwise), additional regulatory steps might be appropriate to further the public interest. The Commission staff will remain vigilant in monitoring the state of interoperability in the Lower 700 MHz band to ensure that the industry is making sufficient progress. What metrics and quantifiable data can the Commission use to measure whether the industry is making adequate progress towards achieving interoperability in the Lower 700 MHz band? In the event that such steps are warranted, the Commission seeks comment on whether it would be necessary to mandate interoperability in the Lower 700 MHz band or whether there are other, flexible regulatory measures that the Commission should consider.

50. In the event that interference concerns are reasonably addressed and the Commission is left with no other option to maximize innovation and investment in the Lower 700 MHz band besides mandating mobile device interoperability, one approach would be to require Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these blocks. For example, those licensees deploying LTE in the Lower 700 MHz band would no longer be allowed to offer mobile units operating on Band Class 17, which provides for operation on only the Lower 700 MHz B and C Blocks. Those licensees deploying LTE in the Lower 700 MHz band would substitute Band Class 17 with Band Class 12. The Commission notes that this approach focuses on mobile user device interoperability and would not require modifications to Lower 700 MHz B and C Block licensees' base stations beyond those necessary to support Band Class 12 devices operating on these licensees' authorized Lower 700 MHz frequencies only. In other words, the Commission is not contemplating requiring licensees to implement base station operations on frequencies they do not have the potential to use, in order to spur production of base station elements that can be used only by licensees operating on other frequencies. The Commission seeks comment on this approach and how, if adopted, it would promote key public interest objectives, including competition and consumer choice among mobile broadband service providers, the widespread deployment of 4G networks, particularly in rural and unserved areas, the availability of additional innovative 4G devices, and increased roaming opportunities. In order to facilitate a smooth transition to interoperable mobile equipment use in the Lower 700 MHz band, the Commission would propose a reasonable transition period of no longer than two years after the effective date of an interoperability requirement, thereby minimizing the possibility of stranded investments in existing equipment. Furthermore, the Commission would propose to grandfather the use of devices already in use by consumers as of the transition deadline, so that consumers using existing Band Class 17 equipment would not be adversely affected. The Commission seeks comment on this approach—as well as on any alternative approaches, including associated costs and benefits—that might equally satisfy the Commission's public interest objectives in promoting the widespread deployment of broadband service and increased competition and consumer choice in the mobile broadband marketplace.

51. The Commission notes that, in considering whether to adopt rules to promote the development of interoperable equipment in the Lower 700 MHz band, the Commission will consider a number of factors, including the costs or burdens that any such new obligation would impose on licensees or others, and whether the costs would be offset by benefits to consumers, including those that would result from innovation in the marketplace, increased investments in networks, or additional competition. The Commission therefore requests comment on the costs and the benefits of adopting rules that would promote interoperability. The Commission also seeks comment on the costs and benefits of an industry-based solution to interoperability in the Lower 700 MHz band. Are there cost savings to consider, or conversely, are there costs that Lower 700 MHz licensees would incur if the industry resolved the interoperability issue without a regulatory mandate?

52. Commenters should quantify the costs of implementing any proposed solutions to the interference issues discussed above. The Commission seeks comment on costs that Lower 700 MHz B and C licensees are likely to incur in order to comply with a device interoperability requirement, including quantification of the costs to develop and obtain new compatible chipsets or front ends; design and manufacture new mobile devices; and develop any hardware or software changes necessary to implement an interoperability requirement. How much will the costs and prices of devices change as a result of an interoperability requirement? The Commission seeks comment on the revenue implications an interoperability requirement would have for providers and device manufacturers. The Commission also seeks comment on quantifiable ways in which licensees may benefit from a sunset of devices capable of operating only on a subset of paired Lower 700 MHz frequencies. For example, will Lower 700 MHz licensees achieve economies of scale in devices? The Commission seeks quantification of these economies of scale. What cost savings might result from an interoperability rule? The Commission also seeks comment on the potential costs associated with interoperability if interference cannot be mitigated in some areas. In these areas, will the public interest benefits from interoperability outweigh the costs?

53. The Commission seeks data on consumer benefits that may result from interoperability, including greater affordability and availability of 4G equipment, increasing consumer choice in equipment, promoting the widespread deployment of broadband services, providing greater options in selecting a service provider, and facilitating greater roaming opportunities. How would a rule requiring interoperability affect innovation and investment, both in the near term and in the longer term? Would such a requirement foster additional competition, and how would any increase in competition be measured?

54. What are the particular benefits to consumers or others that would result from a device interoperability requirement that includes a reasonable transition period (e.g., two years) and grandfathers the use of existing, non-interoperable devices after the transition deadline? The Commission seeks comment on the costs that licensees may incur in continuing to offer service for non-interoperable devices. How long will such devices need to be supported? Are there any classes of customers that will require longer-term support than others? Further, the Commission seeks comment on the extent to which the proposed transition period minimizes or alleviates any adverse economic impact to licensees and device manufacturers. Is there an optimal transition period that would reduce costs to the extent practicable while maximizing benefits?

55. In providing responses to these questions, the Commission asks commenters to take into account only those costs and benefits that directly result from the implementation of particular rules that could be adopted. Commenters should identify the various costs and benefits associated with a particular requirement. Further, to the extent possible, commenters should provide specific data and information, such as actual or estimated dollar figures for each specific cost or benefit addressed, including a description of how the data or information was calculated or obtained, and any supporting documentation or other evidentiary support.

56. Legal authority. Finally, the Commission seeks comment on its authority to mandate a device interoperability requirement should interference concerns be reasonably addressed and there be no industry solution in place. The record is divided on this issue. On the one hand, Petitioners argue that the Commission should find the current contractual arrangements between wireless providers and equipment providers unlawful under Section 201(b), which prohibits unjust or unreasonable practices in connection with communications services, and Section 202(a), which prohibits unjust or unreasonable discrimination. Petitioners also claim that a device interoperability requirement would fall within the purview of Section 1 of the Communications Act, which directs the Commission to establish policies that promote the provision of communications service to all people of the United States, without discrimination. Petitioners argue that, at a minimum, “Section 1 can be combined by the Commission with other `express delegations of authority' to enable the Commission to exercise ancillary jurisdiction over issues that are reasonably related to the policies stated in Section 1.” Commenters also reference additional sections of the Communications Act as support for Commission authority, including: Section 4(i), which specifies that the Commission “may * * * make such rules and regulations * * * as may be necessary in the execution of its functions;” Section 254(b)(3), which sets forth universal service principles; Section 303(g), to “encourage the larger and more effective use of radio in the public interest;” Section 303(r), which directs the Commission to prescribe such restrictions and conditions as necessary to carry out the provisions of the Act; Section 307(b), which directs the Commission to consider a “fair, efficient and equitable” distribution of radio services in applications for licenses, modifications, and renewals; and Section 706, which encourages the reasonable and timely deployment of advanced telecommunications capability to all Americans through “measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”

57. On the other hand, other commenters argue that Petitioners fail to cite a valid legal basis to adopt such an interoperability requirement. Both Verizon and AT&T argue that Sections 201 and 202 prohibit providers from unreasonable practices or discrimination among consumers. Verizon and AT&T also argue that the other provisions referenced by supporters of an interoperability requirement do not grant the Commission the authority to regulate equipment, or else are not substantive grants of authority for Commission action.

58. The Commission observes that, under Title III of the Communications Act, the Commission has broad and extensive authority to manage the use of spectrum.11 This authority includes the power and obligation to condition the Commission's licensing actions on compliance with requirements that the Commission deems consistent with the public interest, convenience, and necessity,12 including operational requirements, if the condition or obligations will further the goals of the Communications Act without contradicting any basic parameters of the agency's authority.13 It also includes the powers to “prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class,” 14 to “generally encourage the larger and more effective use of radio in the public interest,” 15 and to modify licenses if, in the judgment of the Commission, such action will promote the public interest, convenience, and necessity.16 Furthermore, the Communications Act provides the Commission with broad powers under such provisions as Section 302(a) to promulgate regulations designed to address radio frequency (RF) interference, including the regulation of devices that are capable of emitting RF energy,17 and Section 303(e) and (f), which empower the Commission to regulate licensees and the equipment and apparatus they use.18

59. The Commission seeks comment on its statutory authority to adopt a device interoperability requirement. The Commission notes that it has previously required interoperability across licensed spectrum as a means to “insure full coverage in all markets and compatibility on a nationwide basis.” 19 In addition, by promoting the availability of subscriber handsets and network buildout of Lower 700 MHz A Block licenses an interoperability requirement of the type discussed here can facilitate the provision of roaming services, which is subject to Commission rules.20 The Commission seeks comment on its analysis of these Title III statutory provisions as a basis for its authority to take the actions proposed herein.

60. In this Notice of Proposed Rulemaking, the Commission is focused primarily on resolving a long-running dispute over the threat of interference to Lower 700 MHz B and C Block licensees either by agreement on the part of these licensees to be interoperable with the Lower 700 MHz A Block licensees, or by a regulatory mandate for such interoperability. Should the Commission find that interference concerns are truly minimal or can be reasonably mitigated, then the Commission, along with industry, must determine the next best steps to ensure interoperability. The Commission's aim is to explore various options through this proceeding that help achieve the ultimate goal of interoperability.

61. As required by the Regulatory Flexibility Act of 1980, as amended (the RFA),21 the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact of the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM) on a substantial number of small entities. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the NPRM provided in the item. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).22 In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.23

62. Certain Lower 700 MHz A Block licensees have asserted that the development of two distinct band classes within the Lower 700 MHz band has hampered their ability to have meaningful access to a wide range of advanced devices. The Commission initiates this rulemaking proceeding to promote interoperability in the Lower 700 MHz band. The Commission states that the Communications Act directs it to, among other things, promote the widest possible deployment of communications services, ensure the most efficient use of spectrum, and protect and promote vibrant competition in the marketplace. In this NPRM, the Commission's objective is to evaluate whether the customers of Lower 700 MHz B and C Block licensees would experience harmful interference, and if so to what degree, if the Lower 700 MHz were interoperable. Assuming that interoperability would cause limited or no harmful interference to Lower 700 MHz B and C Block licensees or that such interference can reasonably be mitigated through industry efforts and/or through modifications to the Commission's technical rules or other regulatory measures, the Commission asks whether there is likely to be a timely industry solution to interoperability in the Lower 700 MHz band, or whether additional regulatory measures will be necessary to promote interoperability across the Lower 700 MHz band, such as requiring Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these paired commercial 700 MHz blocks.

63. The Commission considers whether a requirement that mobile user equipment be capable of operating on all paired commercial Lower 700 MHz spectrum could foster deployment of facilities-based mobile broadband networks, particularly in rural and unserved areas. The Commission also considers whether such a requirement would increase the likelihood that the Lower A Block licensees can obtain the necessary financing to deploy networks and devices, particularly in smaller and regional areas. The Commission considers the extent to which Lower A Block licensees have successfully negotiated with equipment vendors, whether an interoperability requirement will enable the A Block licensees to benefit from economies of scale with respect to mobile devices and whether manufacturers require a provider to purchase a minimum number of devices. The Commission considers whether interoperability would promote reasonable roaming arrangements among 700 MHz providers and would increase the number of providers that are technologically compatible for roaming partnership.

64. With respect to the technical issues, the Commission states that it must ultimately resolve the central question as to whether a single band class would cause widespread harmful interference to Lower 700 MHz B and C Block licensees, who would otherwise use Band Class 17 devices rather than Band Class 12. The Commission's goal is to determine the extent of two primary interference concerns for providers operating in the Lower 700 MHz B and C Blocks if these providers substitute Band Class 12 for Band Class 17 in newly-offered devices: (1) Reverse intermodulation interference from adjacent DTV Channel 51 operations; and (2) blocking interference from neighboring high-powered operations in the Lower 700 MHz E Block. The Commission considers and seeks comment on the extent of the interference risk from adjacent Channel 51 and Lower Block E transmissions for Band Class 12 devices operating in the Lower B and C Blocks, the effectiveness of existing mitigation measures, and the extent of any innovative technical measures in the near future, or that can be developed. The Commission also considers how licensees can continue to support its existing grandfathered Band Class 17 devices and Band Class 12 devices.

65. Through the NPRM, the Commission's objective is to develop a record to determine whether there are measures it should take to address Lower 700 MHz interference concerns that may be preventing a voluntary adoption of Band Class 12 by Lower B and C Block licensees. For instance, the Commission seeks comment on whether to modify its technical rules for Lower 700 MHz D and E Block operations. In addition, the Commission considers steps to take to reduce the threat of potential interference to balance the needs and rights of Channel 51 incumbents with Lower 700 MHz licensees.

66. The Commission thinks that an industry solution to the question of interoperability in the Lower 700 MHz band would be preferable to a regulatory approach because such a solution allows the market greater flexibility in responding to evolving consumer needs and dynamic and fast-paced technological developments. The Commission considers what would be a reasonable timeframe for a voluntary migration to interoperability and how such timing may affect consumers and competition.

67. However, the Commission recognizes that if the industry fails to move timely toward interoperability once interference concerns are adequately addressed, by regulation or otherwise, additional regulatory steps might be appropriate to further the public interest. If interference concerns are reasonable addressed and the Commission is left with no other option to maximize innovation and investment in the Lower 700 MHz band besides mandating mobile device interoperability, one approach to achieve the Commission's goals would be to require Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these blocks. For example, the Commission considers whether to prohibit those licensees deploying LTE in the Lower 700 MHz band from offering mobile units that operate on Band Class 17, which provides for operation on only the Lower 700 MHz B and C Blocks. In order to facilitate the goal of a smooth transition to interoperable mobile equipment use in the Lower 700 MHz band, the Commission would propose a transition period of no longer than two years after the effective date of an interoperability requirement. The Commission also would propose to grandfather the use of devices already in use by consumers as of the transition deadline, so that consumers using existing Band Class 17 equipment would not be adversely affected.

68. The authority for the actions taken in this Notice is contained in Sections 1, 2, 4(i), 4(j), 301, 302(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302a(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1), and Sections 1.401 et seq. of the Commission's rules. 47 CFR 1.401 et seq.

69. 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.” 24 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.25 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).26

70. In the following paragraphs, the Commission further describes and estimates the number of small entity licensees that may be affected by an interoperability rule. Implementing a mobile user equipment interoperability requirement in the Lower 700 MHz band affects 700 MHz spectrum licensees.

71. This IRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that could be affected by the Commission's new rules, this IRFA provides information that describes auction results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or a transfer of control application that involves unjust enrichment issues.

72. Wireless Telecommunications Carrier (except satellite). The appropriate size standard under SBA Rules is for the category Wireless Telecommunications Carriers. The size standard for that category is that a business is small if it has 1,500 or fewer employees.27 Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms had employment of 1,000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by its proposed action.28

73. Upper 700 MHz Band Licensees. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz licenses.29 On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one nationwide license in the D Block.30 The auction concluded on March 18, 2008, with 3 winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) and winning five licenses.

74. Lower 700 MHz Band Licensees. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits.31 The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years.32 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years.33 Additionally, the lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years.34 The SBA approved these small size standards.35 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) was conducted in 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won licenses.36 A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses.37 Seventeen winning bidders claimed small or very small business status, and nine winning bidders claimed entrepreneur status.38 In 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band. All three winning bidders claimed small business status.

75. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order.39 An auction of A, B and E Block 700 MHz licenses was held in 2008.40 Twenty winning bidders claimed small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years). Thirty three winning bidders claimed very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years).

76. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” 41 The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for part or all of the entire year. According to Census Bureau data for 2007, there were a total of 919 firms in this category that operated for the entire year. Of this total, 771 had less than 100 employees and 148 had more than 100 employees.42 Thus, under that size standard, the majority of firms can be considered small.

77. This NPRM proposes no new reporting or recording keeping requirements.

78. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.43

79. As an alternative to a regulatory approach, the Commission considers the impact of a timely voluntary industry solution to interoperability in the Lower 700 MHz band. The Commission considers how this alternative approach may affect consumers and competition. The Commission seeks comment on the economic impact of this approach on licensees, including small entities. In addition, the Commission seeks comment on other alternative approaches to interoperability in the Lower 700 MHz band that would reduce or eliminate economic adversity on licensees, including small entities.

80. Whether the Commission implements an interoperability requirement, or an industry solution, it seeks comment on the relevant costs and benefits on small entities. The Commission considers the potential benefits to consumers, innovation, and investment. In addition, it considers the revenue implications, cost savings, or adverse economic impact of an interoperability rule or an industry-based solution for Lower 700 MHz providers and device manufacturers.

81. None.

82. The proceeding initiated by this Notice of Proposed Rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

83. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (“ECFS”), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. The filing hours are 8 a.m. to 7 p.m.

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

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

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

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

86. For additional information on this proceeding, contact Brenda Boykin of the Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at (202) 418-2062.

87. As required by the Regulatory Flexibility Act of 1980 (“RFA”), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) relating to this NPRM. The IRFA is attached to this NPRM. 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 this Notice of Proposed Rulemaking as set forth on the first page of this document and have a separate and distinct heading designating them as responses to the IRFA.

88. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not 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).

89. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(j), 301, 302(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1), and § 1.401 et seq. of the Commission's rules, 47 CFR 1.401 et seq., that this Notice in WT Docket No. 12-69 IS adopted.

90. It is further ordered that the Petition for Rulemaking of the 700 MHz Block A Good Faith Purchaser Alliance is granted to the extent described herein.

91. It is further ordered that the proceeding in RM-11592 is hereby terminated.

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

On February 13, 2012, FMCSA published a notice of intent in the Federal Register announcing the Agency's plan for the Electronic On-Board Recorders and Hours of Service Supporting Documents rulemaking (EOBR 2) by working towards preparing a Supplemental Notice of Proposed Rulemaking (SNPRM) (77 FR 7562). In this notice, FMCSA stated it would do the following: (1) Hold listening sessions on the issue of driver harassment; (2) task the Motor Carrier Safety Advisory Committee (MCSAC) to assist in developing material to support this rulemaking, including technical specifications for EOBRs and their potential to be used to harass drivers; and (3) conduct research by surveying drivers, carriers, and vendors regarding harassment issues.

The following discussion summarizes the recent regulatory history of the agency's EOBR program:

On April 5, 2010, the Agency issued a final rule (EOBR 1) (75 FR 17208) that provided new technical requirements for EOBRs. The EOBR 1 final rule also required the limited, remedial use of EOBRs for motor carriers with significant HOS violations. The EOBR 1 final rule required a motor carrier found to have a 10 percent violation rate for any HOS regulation listed in Appendix C of 49 CFR part 385 during a single compliance review to install and use EOBRs on all of its CMVs for a period of 2 years. The compliance date for the rule was June 4, 2012.

The Owner-Operator Independent Drivers Association (OOIDA) challenged the final rule in the United States Court of Appeals for the Seventh Circuit. OOIDA raised several concerns relating to EOBRs and their potential use for driver harassment. On August 26, 2011, the Court vacated the entire final rule. Owner-Operator Indep. Drivers Ass'n et al. v. Fed. Motor Carrier Safety Admin., 656 F.3d. 580 (7th Cir. 2011). The Court held that, contrary to statutory requirements, the Agency failed to address the issue of driver harassment, including how EOBRs could potentially be used to harass drivers and ways to ensure that EOBRs were not used to harass drivers. The basis for the decision was FMCSA's failure to directly address a requirement in 49 U.S.C. 31137(a), which reads as follows:

The court's expectation about how the Agency should address harassment and productivity under the statutory directive included the following:

As a result of the vacatur, carriers relying on electronic devices to monitor HOS compliance are currently governed by the Agency's previous rules regarding the use of automatic on-board recording devices (49 CFR 395.15). The requirements set forth in 49 CFR 395.15 were not affected by the Seventh Circuit's decision regarding the technical specifications set out in 49 CFR 395.16 in the EOBR 1 Final Rule.

The listening session is open to the public. Speakers' remarks will be limited to five minutes each. The public may submit material to the FMCSA staff at the session for inclusion in the public docket, FMCSA-2010-0167. FMCSA will docket the transcription of the listening session that will be prepared by an official court reporter.

FMCSA tasked the MCSAC with addressing harassment through Task 12-01, titled, “Measures to Ensure Electronic On-Board Recorders (EOBRs) Are Not Used to Harass Commercial Motor Vehicle (CMV) Operators”. MCSAC held public meetings on this task on February 7-8, 2012, and based on its deliberations, submitted a report to the FMCSA Administrator on February 8, 2012. This report is available for review at http://mcsac.fmcsa.dot.gov/meeting.htm and in the public docket, FMCSA-2010-0167. The questions posed to MCSAC will be used as a template for public comment and discussion at the listening session.

The comments sought from the questions below may be submitted in written form at the session and summarized verbally, if desired:

1. In terms of motor carriers' and enforcement officials' monitoring or review of drivers' records of duty status (RODS), what would constitute driver harassment? Would that definition change based on whether the system for recording HOS is paper or electronically based? If so, how? As a starting point, the Agency is interested in potential forms of harassment, including but not limited to those that are: (1) Not prohibited already by current statutes and regulations; (2) distinct from monitoring for legitimate business purposes (e.g., efforts to maintain or improve productivity); and (3) facilitated or made possible solely by EOBR devices and not as a result of functions or features that motor carriers may choose to purchase, such as fleet management system capabilities. Is this interpretation appropriate? Should it be broader? Or narrower?

2. Are there types of driver harassment to which drivers are uniquely vulnerable if they are using EOBRs rather than paper logs? If so, what and how would use of an EOBR rather than a paper log make a driver more susceptible to harassment? Are there ways in which the use of an EOBR rather than a paper log makes a driver less susceptible to harassment?

3. What types of harassment are motor carrier drivers subjected to currently, how frequently, and to what extent does this harassment happen? How would an electronic device capable of contemporaneous transmission of information to a motor carrier guard against (or fail to guard against) this kind of harassment? What experience have motor carriers and drivers had with carriers using EOBRs as compared to those who do not use these devices in terms of their effect on driver harassment or complaints of driver harassment?

4. What measures should the Agency consider taking to eliminate the potential for EOBRs to be used to harass drivers? Are there specific functions and capabilities of EOBRs that should be restricted to reduce the likelihood of the devices being used to harass vehicle operators?

5. Motor carriers are often responsible for managing their drivers and equipment to optimize efficiency and productivity and to ensure transportation services are provided in accordance with a planned schedule. Carriers commonly use electronic devices, which may include but are not limited to EOBRs, to enhance productivity and optimize fleet operation. Provided such devices are not used to coerce drivers into violating Federal safety regulations, where is the line between legitimate productivity measures and inappropriate oversight or actions that may be construed as harassment?

FMCSA also seeks concepts, ideas, and comments from enforcement personnel on the HOS information they would need to see on the EOBR display screen at the roadside to effectively enforce the HOS rules and the type of evidence they would need to retain in order to support issuing drivers a citation for HOS violations observed during roadside inspections.

FMCSA will webcast the listening session on the Internet. Specific information on how to participate via the Internet and the telephone access number will be on the FMCSA Web site at http://www.fmcsa.dot.gov. FMCSA will docket the transcripts of the webcast and a separate transcription of the listening session that will be prepared by an official court reporter.

The Board favors the resolution of disputes through the use of mediation and arbitration procedures, in lieu of formal Board proceedings, wherever possible.1 To that end, the Board has existing rules that encourage parties to agree voluntarily to mediate or arbitrate certain matters subject to its jurisdiction. The Board's mediation rules are set forth at 49 CFR 1109.1, 1109.3, 1109.4, 1111.2, 1111.9, and 1111.10. Its arbitration rules are set forth at 49 CFR 1108, 1109.1, 1109.2, 1109.3, and 1115.8. In a decision served on August 20, 2010,2 and published in the Federal Register on August 24, 2010,3 the Board sought input regarding measures it might implement to encourage or require greater use of mediation, and to encourage greater voluntary use of arbitration, including making changes to the Board's existing rules and establishing new rules. The Board also sought input regarding possible changes to its rules to permit the use of Board-facilitated mediation procedures without the filing of a formal complaint. The Board served a subsequent notice in this matter on December 3, 2010,4 to clarify that any comments filed by the Railroad-Shipper Transportation Advisory Council (RSTAC) would be accorded the same weight as other comments in developing any new rules.5 The modifications to the Board's rules proposed in this decision are intended to increase the use of mediation and arbitration in lieu of formal adjudication to resolve disputes before the Board.

The proposed changes to the existing mediation rules would establish procedures under which the Board could compel mediation in certain types of adjudications before the Board, on a case-specific basis, as well as to grant mediation requests of parties to disputes.6 As is the current practice, the Board would assign staff from its Rail Customer and Public Assistance (RCPA) program, who are trained mediators, to conduct the mediation process. Mediation periods would last up to 30 days, and could be extended upon the mutual request of the parties. The Board would reserve the right to stay underlying proceedings and toll any applicable statutory deadlines. The Board believes that the proposed mediation rules would be in the public interest. If a dispute is amicably resolved, the parties could do so at considerably less expense and in less time than if they used the Board's formal adjudicatory process, and could better preserve their ongoing commercial relationship.

The proposed changes to the Board's arbitration rules are intended to consolidate the separate arbitration procedures in Parts 1108 and 1109, to encourage greater use of arbitration to resolve disputes before the Board by simplifying the process, and by clarifying the types of disputes that may be submitted for arbitration.7 Moreover, the Board proposes establishing an “arbitration program” to cover a subset of arbitrable disputes, in which rail carriers may voluntarily participate. The Board believes that the proposed arbitration program would provide value to both carriers and shippers, because disputes can be resolved through arbitration in a more timely and less adversarial fashion than through the Board's formal adjudicatory processes, and arbitration could help the parties to preserve their commercial relationship. It likewise would allow carriers more flexibility in resolving customer-specific disputes because resolution would be confidential and nonprecedential, unless the arbitrator's decision is appealed.

Under the arbitration program, rail carriers would agree, in advance, to submit to binding arbitration certain defined types of disputes, such as complaints related to demurrage and accessorial charges, or the misrouting or mishandling of rail cars, where the complainant seeks monetary damages for past harm, not for injunctive or prospective relief. The Board also proposes to limit the relief that an arbitrator could award to no more than $200,000, plus interest. Commenters are invited to suggest a different dollar cap that they believe would better capture the majority of such disputes that would be best resolved through arbitration. Arbitration under the arbitration program would be mandatory for the carrier either where the dispute involves only carriers that are participants in the Board's arbitration program, or where the dispute involves at least one carrier-participant and all other parties to the dispute consent to arbitration pursuant to the arbitration program.

In addition, the proposed rules provide for arbitration of most other types of adjudicatory disputes before the Board where all parties agree, on a case-by-case basis, to participate in binding arbitration. In all arbitrations, the Board would assign an arbitrator from a roster of eligible arbitrators, or could grant a mutual request from the parties to use a particular arbitrator, whether listed on the roster or not.

The proposed mediation and arbitration rules would not be available, however, to resolve any matter in which the Board is statutorily required to determine the public convenience and necessity (PCN). Thus, these procedures would not be available to obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling) or exemption related to these matters. Should participants in such matters, however, reach a voluntary agreement resolving certain issues pertaining to a license or authorization proceeding, the Board would give due consideration to that resolution in weighing the PCN. These rules would also not be available to arbitrate a labor protection dispute, which has its own procedures; however, voluntary mediation of such disputes under the proposed rules would be available.

Additional information is contained in the Board's decision. The full decision is available on the Board's Web site at www.stb.dot.gov.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

It is ordered:

1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.

2. Comments regarding these proposed rules are due by May 17, 2012. Replies are due by June 18, 2012.

3. This decision is effective on the day of service.

For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend parts 1002, 1011, 1108, 1109, 1111, and 1115 of title 49, chapter X, of the Code of Federal Regulations as follows:

Background

On January 28, 2011, the Secretary of Commerce received a petition from the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company (hereafter, the petitioners), to list Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath Basin under the ESA. Because their request is generally made in reference to the UKTR ESU of Chinook salmon, we use the description of that ESU (Myers et al., 1998 and 63 FR 11482; March 9, 1998) as the area in which they are requesting that we list Chinook salmon, and hereafter refer to that area as the Upper Klamath and Trinity Rivers basin. The petitioners identified three alternatives for listing Chinook salmon in the UKTR ESU: (1) Listing spring-run Chinook salmon in the UKTR ESU as a separate ESU; (2) listing spring-run Chinook salmon in the UKTR ESU as a distinct population segment within the currently defined UKTR Chinook salmon ESU; or (3) listing the currently defined UKTR Chinook salmon ESU, which includes both spring-run and fall-run populations. The petitioners also requested that we designate critical habitat for any Chinook salmon populations found to warrant listing.

After reviewing the petition, the literature cited in the petition, and other literature and information available in our files, we found that the petition met the criteria in our implementing regulations at 50 CFR 424.14(b)(2) that are applicable to our 90-day review and determined that the petition presented substantial information indicating that the petitioned action may be warranted (76 FR 20302; April 12, 2011). In that 90-day finding, we explained why we would not further consider Petitioners' second alternative for listing Chinook salmon in the UKTR ESU. We described NMFS' Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 68612; November 20, 1991), which explains that a Pacific salmon stock will be considered a distinct population segment, and hence a “species” under the ESA, if it represents an ESU of the biological species. We also explained the two criteria for delineating an ESU. Under its second alternative, Petitioners suggest that, even if we determine that spring-run Chinook salmon in the UKTR ESU do not meet the criteria to be delineated as a separate ESU under the ESU Policy, we should apply the two criteria under the U.S. Fish and Wildlife Service (USFWS) and NMFS Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act (DPS Policy; 61 FR 4722; February 7, 1996) to determine that spring-run Chinook salmon in the UKTR ESU are a separate distinct population segment within the UKTR ESU. As we described in the 90-day finding, NMFS will continue to apply the criteria in the ESU Policy to Pacific salmon, which includes Chinook salmon, rather than the criteria in the DPS Policy. Because the ESU Policy explains under what criteria Pacific salmon populations will be considered a distinct population segment, and hence a “species” under the ESA, if we evaluate spring-run Chinook salmon in the UKTR according to the criteria of the ESU Policy, we will be determining whether spring-run Chinook salmon are considered a distinct population segment. In the 90-day finding, we also solicited information pertaining to the species and the issues raised in the petition. Following publication of our 90-day finding, we commenced a status review of Chinook salmon in the UKTR ESU. In response to the 90-day finding we received over 50 written comments from the public, which we considered in making this 12-month finding.

In support of the status review, NMFS' Southwest Fisheries Science Center (SWFSC) convened a Biological Review Team (BRT) charged with compiling and reviewing the best available scientific and commercial information on Chinook salmon necessary to: (1) Evaluate whether this information supports the current UKTR Chinook salmon ESU configuration or the separation of spring-run and fall-run Chinook salmon into separate ESUs; and (2) assess the biological status of Chinook salmon populations comprising whichever ESU configuration was best supported by the available information using NMFS' viable salmonid population (VSP) framework for the analysis. The BRT was composed of scientists from the SWFSC and Northwest Fisheries Science Center, USFWS, and U.S. Forest Service with expertise in the biology, genetics, and ecology of UKTR ESU Chinook salmon. The BRT compiled, reviewed, and evaluated the best available scientific and commercial information concerning the ESU configuration and biological status of spring-run and fall-run Chinook salmon populations in the UKTR basin, including information provided by the petitioners, peer-reviewed literature, information provided by other parties interested in this issue, and other information deemed pertinent by the BRT. Following its review, the BRT prepared a report summarizing the information they reviewed, their analysis, and conclusions regarding ESU configuration and biological status (Williams et al., 2011). This report was peer reviewed by two independent scientific experts who have expertise with salmon and steelhead issues in the Klamath Basin. One reviewer has specific expertise on UKTR Chinook salmon genetics, and the other reviewer has expertise in the ecology of UKTR Chinook salmon. The reviewers' comments were incorporated into the final report.

If a petition is found to present substantial scientific information indicating that the petitioned action may be warranted, ESA section 4(b)(3)(B) (16 U.S.C. 1533(b)(3)(B)) requires the Secretary of Commerce to make a finding within 12 months of receipt of the petition (commonly referred to as a 12-month finding) as to whether a petitioned action is warranted. The Secretary has delegated the authority to make this finding to the NOAA Assistant Administrator for Fisheries. This Federal Register notice documents our 12-month finding on this petition.

Information on the biology and life history of UKTR Chinook salmon is summarized in Myers et al. (1998) and a listing determination for west coast Chinook salmon (63 FR 11482; March 9, 1998). In 1998, NMFS completed a status review of the UKTR Chinook salmon ESU and found that it is comprised of both spring-run and fall-run populations (Myers et al., 1998), as will be further described in the following section. Historically, spring-run Chinook salmon were likely the predominant run type in the Klamath-Trinity River Basin (Myers et al., 1998). Most spring-run spawning and rearing habitat was blocked by the construction of dams in the late 1800s and early 1900s in the Klamath River and in the 1960s in the Trinity River Basin (Myers et al., 1998). As a result of these and other factors, spring-run populations were considered to be at less than 10 percent of their historical levels (Myers et al., 1998). Fall-run populations now comprise the majority of UKTR Chinook salmon. Most of the spring-run populations are currently distributed throughout the New, South Fork Trinity, Upper Trinity, and Salmon rivers. The more widely distributed fall-run Chinook salmon inhabit most accessible streams in the ESU, though their distribution generally does not extend as far into the tributary drainages as spring-run Chinook salmon. As with all Chinook salmon populations south of the Columbia River, the majority of Chinook salmon in the UKTR ESU exhibit an “ocean-type” life history with juveniles migrating to the ocean within one year of hatching (Myers et al., 1998). Anadromous salmonids in California, like UKTR Chinook salmon, exist at the southern edge of their range along the west coast of North America.

Two hatcheries are operated in the UKTR basin, Iron Gate Hatchery on the Klamath River and Trinity River Hatchery on the Trinity River, that annually release large numbers of spring-run and fall-run Chinook salmon fingerlings and yearlings into the basin. Marine recoveries of coded-wire tags indicate that hatchery-origin fall- and spring-run Chinook salmon from these hatcheries have a similar coastal distribution offshore of California and Oregon (Myers et al., 1998).

ESA Section 3(16) (16 U.S.C. 1532(16)) defines a “species” to include any subspecies of fish or wildlife or plant, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. In 1991, we published the ESU Policy (56 FR 58612; November 20, 1991), which describes how we apply the definition of “species” in evaluating Pacific salmon populations for listing under the ESA. Under this policy, a group of Pacific salmon populations is considered an ESU if it is (1) reproductively isolated from other con-specific population units, and (2) represents an important component in the evolutionary legacy of the species. Under this policy, an ESU is considered to be a “distinct population segment” and thus a “species” under the ESA.

Based on biological, genetic, and ecological information compiled and reviewed as part of a previous west coast status review for Chinook salmon (Myers et al., 1998), we included all spring-run and fall-run Chinook salmon populations in the Klamath River Basin upstream from the confluence of the Klamath and Trinity rivers in the UKTR Chinook salmon ESU (Myers et al., 1998 and 63 FR 11482, 11487; March 9, 1998). The petitioners contend new information demonstrates that spring-run and fall-run Chinook salmon in the UKTR ESU qualify as separate ESUs based on significant and persistent genetic and reproductive isolation resulting from their different run timing. They further argue that the genetic differences between spring-run and fall-run Chinook salmon in the UKTR Chinook salmon ESU are comparable to genetic differences between spring-run and fall-run Chinook salmon in California's Central Valley, which are recognized as separate ESUs by NMFS (Myers et al., 1998 and 70 FR 37160; June 28, 2005). The BRT carefully reviewed the petition and all other available and relevant information regarding the ESU configuration of Chinook salmon populations in the UKTR basin and prepared a report detailing their review and conclusions (Williams et al., 2011).

Under our ESU policy, Williams et al. (2011) indicate that for spring-run and fall-run Chinook salmon populations in the UKTR ESU to be considered separate ESUs, they would need to be substantially reproductively isolated from each other, and they each must represent an important component in the evolutionary legacy of the species. Under the ESU Policy framework, they indicate that the concept of evolutionary legacy implies there would need to be a monophyletic pattern in the evolutionary history of each of the two run types within the UKTR basin, and that spring-run Chinook salmon individuals and populations would need to be more similar genetically to each other than to fall-run Chinook salmon individuals and populations.

As discussed in Williams et al. (2011), NMFS has delineated populations of spring-run and fall-run Chinook salmon in the same basin as separate ESUs in only two areas: California's Central Valley and in the interior Columbia River Basin. Chinook salmon populations in the Central Valley are monophyletic in origin, meaning they descended from a common ancestor and are more closely related to each other than to Chinook salmon populations in any other basin on the west coast. However, there is significant genetic divergence between most naturally spawning populations of fall-run and spring-run Chinook salmon that occur in the same rivers in the Central Valley and both run types are monophyletic rather than polyphyletic. For these and other reasons, NMFS separated spring-run and fall-run Chinook populations in the Central Valley into separate ESUs. In the interior Columbia Basin, spring-run and fall-run Chinook salmon are not closely related genetically and represent two very divergent evolutionary lineages (Myers et al., 1998; Waples et al., 2004), and therefore were placed into separate ESUs.

In contrast, spring-run and fall-run Chinook salmon populations found in the coastal basins in California, Oregon, and Washington or the lower Columbia River basin have not been separated into separate ESUs despite differences in adult run-timing, life-history strategies, and other phenotypic characteristics that sometimes accompany genetic differences (Williams et al., 2011). The primary reason for not separating fall-run and spring-run Chinook salmon into separate ESUs in these coastal basins is that their genetic population structure strongly suggests a polyphyletic pattern of run timing evolution (Myers et al., 1998; Waples et al., 2004), with spring and fall-run life histories having evolved on multiple occasions in different watersheds. Williams et al. (2011) indicate this polyphyletic pattern of run timing is observed in watersheds adjacent to the Klamath basin and across a range of watershed sizes in California (Mad River, Redwood Creek and Eel River) and Oregon (Rogue and Umpqua rivers).

Williams et al. (2011) reviewed new genetic information for Chinook salmon populations in the UKTR ESU (Banks et al., 2000a; Kinziger et al., 2008a; Kinziger et al., 2008b; Kinziger et al., In Preparation,), as well as other studies (Lindley et al., 2004; Waples et al., 2004; Garza et al., 2007), to assess patterns of genetic population structure and population differentiation within the UKTR ESU and to compare those patterns with what has been observed in other basins (e.g., Central Valley and other coastal watersheds). Kinziger et al. (2008a) found that there are four genetically differentiated and geographically separated groups of Chinook salmon populations in the UKTR basin and that spring-run and fall-run Chinook life histories have evolved independently and in parallel within both the Salmon and Trinity rivers. Kinziger et al. (In Preparation) documented the same geographic population structure reported by Kinziger et al. (2008a) and indicated the genetic difference between populations was related to geographic distance and was independent of run timing (i.e., spring-run versus fall-run). In addition, they found that spring-run and fall-run populations in the Salmon River were nearly indistinguishable genetically and that spring and fall-run populations in the South Fork Trinity were extremely similar to each other and to the Trinity River hatchery stocks. Banks et al. (2000a) reported they found greater genetic distances between some fall-run populations than among fall-run and spring-run populations in the Klamath Basin and concluded that populations diverged according to geographic location first and life history second. Banks et al. (2000a) emphasized that this pattern of geographic differentiation is in strong contrast to that found for Chinook salmon populations in the Central Valley.

The petition contends that genetic differentiation of Chinook salmon populations in the UKTR ESU and the Central Valley is of a similar scale, and that our separation of spring and fall-run Chinook into separate ESUs in the Central Valley means that spring-run and fall-run Chinook salmon in the UKTR ESU should also be separated. The structure of Central Valley spring-run and fall-run Chinook salmon populations was recently reviewed by Lindley et al. (2004), Good et al. (2005), and Garza et al. (2007), all of whom supported the general conclusions that: (1) Central Valley Chinook salmon of all run-types represent a separate lineage from Chinook salmon populations found in coastal watersheds; and (2) Central Valley spring-run populations are monophyletic, with spring-run Chinook salmon from different basins more closely related to each other than to fall-run Chinook salmon from the same basin. Lindley et al. (2004), Good et al. (2005), and Garza et al. (2007) also support the conclusion of Banks et al. (2000a, 2000b) that the genetic population structure and genetic variation observed in Chinook salmon populations in the Central Valley is organized by life history (run-type) rather than geographic location, unlike that which is observed with the UKTR Chinook salmon populations where Chinook salmon populations are organized by geographic location rather than life history type (see Banks et al., 2000a).

Based on a review and evaluation of this information, Williams et al. (2011) concluded that spring-run and fall-run Chinook salmon populations in the UKTR ESU constitute a single ESU as originally defined by Myers et al. (1998), and that the expression of the spring-run life-history variant is polyphyletic in origin in all of the populations in the ESU for which data are available.

UKTR spring-run Chinook salmon do not warrant being separated into a separate ESU because they fail to meet the reproductive isolation and evolutionary legacy criteria in our ESU Policy for Pacific Salmon. The available genetic evidence considered by Williams et al. (2011) clearly demonstrates that spring-run and fall-run Chinook salmon populations in the UKTR basin are genetically very similar and are not substantially reproductively isolated from each other. The degree of genetic differentiation between spring and fall-run Chinook salmon in the UKTR basin is comparable to that observed in other coastal basins that support the two run types (Waples et al., 2004) and is much less than that which has been observed in the Interior Columbia Basin and the Central Valley where the two run types have been separated into different ESUs. The available evidence indicating that spring-run and fall-run Chinook salmon in the UKTR basin are polyphyletic in origin and have evolved on multiple occasions, together with the ocean type life-history characteristics exhibited by both run types, suggests that spring-run Chinook salmon do not represent an important component in the evolutionary legacy of the species.

In 2005, NMFS published a policy on how it would consider hatchery-origin fish when making ESA listing determinations for Pacific salmon and steelhead (Hatchery Listing Policy; 70 FR 37204; June 28, 2005). Under this policy, hatchery stocks are considered part of an ESU in making ESA listing determinations if their level of genetic divergence relative to local natural populations is no more than what occurs between natural populations in the ESU. NMFS used this policy and a previous assessment of all west coast hatchery programs (NMFS 2003) to determine which hatchery stocks would be considered part of west coast salmon and steelhead ESUs in a series of listing determinations published in 2005 and 2006, respectively (70 FR 37160; June 28, 2005 and 71 FR 834; January 5, 2006). The assessment of hatchery stocks (NMFS 2003) used to support these listing determinations evaluated each hatchery stock associated with individual salmon and steelhead ESUs to determine its level of genetic divergence relative to natural populations. Based on this assessment and application of our Hatchery Listing Policy (70 FR 37204; June 28, 2005), we determined that hatchery stocks that were no more than moderately divergent from natural populations would be considered part of an ESU in making listing determinations under the ESA.

Iron Gate Hatchery (IGH) produces fall-run Chinook salmon and releases approximately 6 million fish (fingerlings and yearlings combined) annually in the upper Klamath River. Trinity River Hatchery (TRH) produces both fall-run and spring-run Chinook salmon and releases approximately 3 million fall-run fish (fingerlings and yearlings combined) and 1.3 million spring-run fish (fingerlings and yearlings combined), respectively, annually in the Trinity River. The SWFSC reviewed and evaluated the available information on broodstock origin, history, and genetics for these three Chinook salmon hatchery stocks and concluded that each stock was founded from a local, native population in the watershed where fish are released and that each stock is no more than moderately divergent from other local, natural populations. Moderate divergence in this case means that the hatchery stocks and local natural populations are no more genetically divergent than what is observed between closely related natural populations. Based on this assessment and the criteria in our Hatchery Listing Policy, we conclude that these three hatchery stocks are part of the UKTR Chinook salmon ESU.

Williams et al. (2011) assessed the biological status of the UKTR Chinook salmon ESU using methods similar to those described in Good et al. (2005). In conducting their review, Williams et al. (2011) considered the best available information on the species' current distribution, historical abundance, recent abundance, trends in abundance, population growth rates, the distribution of hatchery-origin spawners in natural areas, and fishery exploitation rates. To the extent possible, Williams et al. (2011) evaluated the available data on the basis of putative population units that are currently recognized by management agencies in the Klamath Basin such as sub-basin units (e.g., Scott River) or specific geographic areas (e.g., upper Klamath River mainstem). Wherever possible, spring-run and fall-run Chinook salmon populations were assessed separately within specific population units. The following discussion summarizes the biological status assessment of UKTR Chinook salmon from Williams et al. (2011).

Williams et al. (2011) concluded there have been no changes to the distribution of UKTR Chinook salmon since the review of Myers et al. (1998). Williams et al. (2011) summarized information from Myers et al. (1998) and the California Department of Fish and Game (CDFG 1965) that indicates the historical abundance of Chinook salmon in the UKTR ESU was estimated to be approximately 130,000 adults in 1912 (based on peak cannery pack of 18,000 cases) and 168,000 adults in 1963, with the 1963 abundance estimate from CDFG split evenly between Klamath and Trinity rivers.

As reported in Williams et al. (2011), the numbers of adults returning to spawning grounds (e.g., Upper Klamath, Trinity, Scott, Salmon, and Shasta rivers and smaller tributaries) and returns to Iron Gate and Trinity River hatcheries are monitored using a variety of methods by a combination of State, Federal, and Tribal agencies. Williams et al. (2011) characterized the recent spawner abundance in a manner that was consistent with the previous coast-wide salmon and steelhead status reviews (Good et al., 2005). Based on this analysis, recent spawner abundance estimates of both fall-run and spring-run Chinook salmon returning to spawn in natural areas are generally low compared to historical estimates of abundance; however, the majority of populations have not declined in spawner abundance over the past 30 years (i.e., from the late 1970s and early 1980s to 2010) except for the Scott and Shasta rivers where there have been modest declines. While the BRT considered and presented both short- and long-term population growth rate, to be consistent with Good et al. (2005), the BRT stated that they viewed population growth rates based on just 13 years of data with caution given the highly variable population dynamics typical of salmon populations and influences of shifting environmental conditions. Of most interest to the BRT were the long-term population growth rates of the populations individually and the ESU as a whole.

Williams et al., (2011) reported that short-term trends in spawner abundance declined slightly for about half of the population components over the past 13 years, and that fall-run Chinook salmon returns to Trinity River hatchery have been more variable than returns of fall-run Chinook salmon to Iron Gate hatchery. Williams et al. (2011) found that hatchery returns did not mirror (or did not track) escapement to natural spawning areas. Overall, Williams et al. (2011) concluded that there has been little change in the abundance levels, trends in abundance, or population growth rates since the review by Myers et al. (1998). They noted, however, as did Myers et al. (1998), that the recent abundance levels of some populations are low, especially in the context of historical abundance estimates. This was most evident with respect to two of the three spring-run population units that were evaluated (Salmon River and South Fork Trinity River).

Williams et al. (2011) evaluated the occurrence of hatchery-origin Chinook salmon spawners in several natural spawning areas (i.e., Bogus Creek and the Upper Klamath, Shasta, Scott, Salmon, Trinity, and South Fork Trinity rivers) over the past decade and concluded that the majority of hatchery-origin Chinook salmon that stray to natural areas do so in areas adjacent to the hatcheries. This is not unexpected since both hatcheries release fingerlings and yearlings “on-site,” as opposed to other locations further downstream in the basin. This finding was supported by recent genetic analyses from Kinziger et al. (In Preparation) that found strong evidence for genetic isolation-by-distance that is inconsistent with hatchery-origin fish straying in large numbers throughout the basin.

Williams et al. (2011) used a risk matrix approach to assess the viable salmonid population (VSP) criteria (i.e., abundance, productivity, spatial structure, and diversity) for the UKTR Chinook salmon ESU. This approach was used in the most recent west coast salmon and steelhead status reviews (Good et al., 2005) and the details of the methodology are described in both Williams et al. (2011) and Good et al. (2005). Based on this risk matrix approach, Williams et al. (2011) concluded that the UKTR Chinook salmon ESU was at a relatively low risk of extinction based on abundance, growth rate and productivity, and spatial structure and connectivity; and the UKTR Chinook salmon ESU was at a moderate risk of extinction based on diversity. The following sections briefly summarize the conclusions of Williams et al. (2011) regarding each of the four VSP criteria.

Abundance of spawning populations in the ESU appear to have been fairly stable for the past 30 years and since the review by Myers et al. (1998). Although current levels of abundance are generally low compared with historical estimates of abundance, the current abundance levels do not constitute a major risk in terms of ESU extinction. Long-term population growth rates are positive for most population components that were analyzed, indicating they are not currently in decline and, in general, most populations are large enough to avoid genetic problems.

There is no indication that growth rates or productivity of populations have changed since the review of Myers et al. (1998); however, the impact of hatchery-origin fish in some locations and in some years is uncertain and is a concern. Based on the available information, hatchery influence appeared to be most concentrated in areas adjacent to the two hatcheries, and spawning survey information (i.e., estimates of adipose fin-clipped fish) and genetic analyses suggest there is a low hatchery fish influence elsewhere in the ESU.

There is a broad geographic distribution of fall-run Chinook salmon throughout the UKTR ESU, with genetic data (i.e., isolation-by-distance information) indicating that there is connectivity among populations. There are no cases where fall-run Chinook were found to be locally extirpated and the spatial distribution of fall-run Chinook salmon in the UKTR ESU indicates that it currently occupies all accessible available habitat. Conversely, spring-run Chinook population numbers are low, with few if any spring-run fish recently observed in the Scott and Shasta rivers. The geographic distribution of spring-run Chinook salmon is of some concern, with possible extirpations perhaps reflecting the effects of low water years and habitat accessibility.

Although there are extant spring-run and fall-run Chinook salmon populations in the basin, the low spawner abundance in spring-run populations continues to be a concern, as it was in the previous review (Myers et al., 1998). In addition to the continued presence of both the spring-run and fall-run life-history types in the basin, the presence of large sub-yearlings in the Shasta River was considered evidence of continuing life history diversity in the ESU. Hatchery influence in natural spawning areas near the two hatcheries is a concern because of its possible impacts on the productivity and diversity of natural spawning Chinook salmon populations in those areas, but hatchery-origin fish appear to be most concentrated in relatively small areas located near the two hatcheries rather than elsewhere throughout the geographic area occupied by the ESU.

To assess the overall extinction risk of the UKTR Chinook salmon ESU, Williams et al. (2011) employed a methodology (the Forest Ecosystem Management Assessment Team, (FEMAT) approach) that has been used in previous west coast salmon status reviews (see Good et al., 2005). Under this approach, the members of the BRT made informed professional judgments about whether the UKTR Chinook salmon ESU was presently in one of three extinction risk categories: “high risk,” “moderate risk,” and “neither at high risk or moderate risk” (low risk) based on the results of the VSP criteria assessment and other relevant information on the status of the ESU as discussed previously. In its assessment, the BRT members interpreted the high risk category as “a greater than 5% risk of extinction within 100 years”, and the moderate risk category as “more likely than not risk of moving into the high risk category within 30-80 years.” Beyond these time horizons, the BRT members concluded it was difficult with any degree of confidence to project ESU extinction risk. Based on this assessment process, Williams et al. (2011) concluded that the UKTR Chinook salmon ESU was at a low risk of extinction in the next 100 years, although the BRT did express some uncertainty as to whether the ESU was at low risk or moderate risk of extinction (Table 5, Williams et al., 2011).

Under NMFS' Hatchery Listing Policy, any hatchery stocks that are part of an ESU must be considered in status assessments for the ESU if it is being considered for possible listing (70 FR 37204; June 28, 2005). As discussed in the policy, any status assessment of an ESU which includes hatchery stocks should evaluate the manner in which the hatchery stocks contribute to conserving natural populations by considering their impact on the VSP criteria for natural populations comprising the ESU. As noted previously, the SWFSC determined that the fall-run Chinook salmon stock from IGH and the spring-run and fall-run Chinook salmon stocks from TRH are no more than moderately diverged from the local, natural populations, and as a result NMFS has concluded that these three hatchery stocks are part of the UKTR Chinook salmon ESU. Based on the hatchery operations and releases, as well as the assessment of hatchery-origin fish spawning in natural areas presented by Williams et al. (2011), we conclude that these three hatchery stocks: (1) Slightly reduce ESU extinction risk by increasing abundance of Chinook salmon in the UKTR ESU; (2) have a neutral or uncertain effect on ESU extinction risk associated with productivity and spatial structure because hatchery origin fish spawn in natural areas primarily near the hatcheries and naturally produced Chinook salmon populations are widely distributed throughout the basin; and (3) have a slightly increased effect on ESU extinction risk associated with diversity because of the potential impacts of hatchery fish on naturally spawning populations near the hatcheries. Overall, we conclude that including these three hatchery stocks in the UKTR Chinook salmon ESU does not appreciably alter the Williams et al. (2011) assessment of the VSP status of the UKTR Chinook salmon ESU or its extinction risk.

As part of their status review, Williams et al. (2011) assessed whether there are portions of the UKTR Chinook Salmon ESU that would constitute a significant portion of its range. In making this assessment they considered a portion of the range to be significant if its contribution to the overall viability of the ESU was so important that, without it, the ESU would be in danger of extinction. The geographical range of the ESU they considered in their assessment was the current geographical distribution of Chinook salmon in the UKTR ESU, and thus they did not consider inaccessible portions of the historical range of Chinook salmon upstream of dams. These considerations are consistent with interpretations and principles in the NMFS and USFWS Draft Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species,” which we consider as nonbinding guidance in making listing determinations until a final policy is published (76 FR 76987; December 9, 2011). Lastly, they assumed that a significant portion of the ESU's range could be a geographic sub-unit of the current ESU (e.g., the Salmon River) or a life-history variant (spring-run or fall-run life-history type), but based on the petition, focused their assessment on whether the spring-run Chinook salmon component of the UKTR ESU constituted a significant portion of the ESU's range.

Williams et al. (2011) concluded that Chinook salmon are distributed broadly throughout the UKTR ESU and that there is connectivity among the component populations in the basin based on the available genetic information. Within the current geographic range of the ESU, they did not find any situations where there was substantial unused habitat (i.e., extirpations) and concluded the spatial distribution of Chinook salmon in the ESU appeared to be appropriate given the current condition of the habitat. Williams et al. (2011) expressed concern about the overall status of spring-run Chinook salmon populations in the UKTR Chinook salmon ESU, but they did not conclude that these populations were at immediate risk of extinction (i.e., within the timeframe of generations as opposed to tens of generations) or that their demographic status posed an immediate risk of extinction to the ESU. The complete loss of spring-run Chinook salmon is unlikely in the foreseeable future, but if that occurred Williams et al. (2011) indicated it would reduce the viability of the ESU by reducing its overall diversity. Despite such a reduction in the viability of the ESU, the BRT concluded that the complete loss of spring-run would not result in an immediate risk of extinction to the UKTR Chinook Salmon ESU. Based on these considerations, we conclude that spring-run Chinook salmon do not constitute a significant portion of the range of the UKTR Chinook salmon ESU.

Section 4(a)(1) of the ESA (16 U.S.C. 1533(a)(1)) and NMFS' implementing regulations (50 CFR Part 424) set forth factors and procedures for listing species. NMFS must determine if a species is endangered or threatened based upon any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) its overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. NMFS has previously reviewed and evaluated these listing factors for west coast Chinook salmon, including those populations that comprise the UKTR Chinook salmon ESU (63 FR 11482, March 9, 1998; and NMFS 1998). These reviews have identified a wide range of factors that have adversely impacted Chinook salmon and their habitat on the west coast as well as in the UKTR ESU. The following discussion is based on those reviews and other more recent sources of information.

Previous reviews as cited above have identified a range of historical and ongoing land management activities and practices that adversely impact freshwater habitat used by Chinook salmon in the UKTR ESU, including construction of dams and other barriers that block access to historical habitat, water diversions, agriculture, timber harvest, road construction, grazing, and mining. The impacts associated with these activities have altered or in some cases eliminated habitat for Chinook salmon. A more detailed discussion of the impacts associated with these activities can be found in Nehlsen et al. (1991), Moyle (2002), and NRC (2004).

Within the freshwater range of the UKTR ESU there are two important migration barriers that block access to historical spawning and rearing habitat: Iron Gate Dam on the Klamath River (DOI and CDFG 2011) and Lewiston Dam on the Trinity River (DOI 2000). Many of the streams blocked by these dams were high quality snowmelt-driven tributaries or groundwater dominated streams that supported adult spring-run and fall-run Chinook salmon (Moyle 2002). The presence of these dams has impacted the production of both spring-run and fall-run Chinook salmon in the UKTR ESU, but they have had a greater impact on the distribution and abundance of spring-run Chinook salmon (63 FR 11482; March 9, 1998).

Water diversion and agricultural activities in the Klamath River and Trinity River basins have altered the timing and volume of flows in streams, reduced habitat availability, reduced water quality, and contributed to the reduced productivity of natural-origin Chinook salmon (NMFS 2010; DOI 2000). Stream water is diverted for consumptive use in the Upper Klamath Basin, in the Shasta and Scott River valleys, and from the Trinity River into other river basins (e.g., Rogue River, Sacramento River). Substantial water diversions, particularly during dry water years, can nearly dewater sections of rivers, creating barriers to Chinook salmon migration (e.g., Scott River), reducing the amount of available juvenile rearing habitat, and contributing to poor water quality. The Klamath River is impaired by a variety of water quality problems, including temperature, dissolved oxygen, nutrients, organic matter, and microcystin (NCRWQCB 2010), all of which can adversely impact Chinook salmon.

Historical and ongoing timber harvest activities in the UKTR ESU have reduced habitat quality for Chinook salmon (Moyle 2002). Timber harvest can result in the loss of riparian vegetation, increased stream sedimentation, warmer water temperatures, reduced availability of large woody debris, increased peak runoff events, and simplified stream habitat, including filling of pools (Chamberlain et al., 1991). Road systems used to access timber areas cause high rates of erosion, landslides and in some cases block access to habitat when poorly designed culverts are used in road-stream crossings (Chamberlain et al., 1991). While mining in the UKTR ESU has been significantly curtailed in the past several decades, some lingering effects from tailings piles and other disturbances remain. Currently, there is a moratorium on suction dredge gold mining in California, which limits the impact of this activity on UKTR Chinook salmon habitat. The impacts to UKTR Chinook salmon from land management activities that were identified in Myers et al. (1998) and NMFS' 1998 listing determination for this ESU (63 FR 11482; March 9, 1998) continue today, with a few exceptions as noted above. Chinook salmon in the UKTR ESU have persisted for several decades at relatively stable levels of abundance, despite the existence of these threats to freshwater habitat, and, therefore, it is unlikely that destruction or modification of habitat or curtailment of the species' range will threaten its continued existence now or in the foreseeable future.

UKTR Chinook salmon are harvested in commercial and recreational fisheries in the ocean as well as Tribal and recreational fisheries in the Klamath Basin. Ocean harvest of Klamath Basin fall-run Chinook salmon is coordinated by the Pacific Fishery Management Council (PFMC), Tribal harvest is managed by the individual tribes in the Klamath Basin, and in-river recreational fisheries are managed by the California Fish and Game Commission. From the mid-1980s through 2011, the PFMC managed the Klamath Basin fall-run Chinook salmon fishery with twin conservation objectives aimed at not surpassing a maximum total exploitation rate of 67 percent of projected returning natural adult spawners and achieving a minimum of at least 35,000 natural area adult spawners, with occasional allowances for smaller harvests when projected returns were less than 35,000 adults (i.e., de minimis fisheries; PFMC 2011). The PFMC Salmon Fishery Management Plan was amended in 2011 and, beginning in 2012, the maximum allowable exploitation rate will be 68 percent of projected natural area adult spawners, subject to a minimum escapement of 40,700 natural area adult spawners, with allowances for de minimis fisheries when the stock is at low abundance (PFMC and NMFS 2011). The minimum natural area spawner escapement of 40,700 adults is the best estimate of an escapement level that will produce maximum sustainable yield (Salmon Technical Team 2005). Fisheries have very rarely resulted in exploitation rates meeting or exceeding the maximum allowable level of 67 percent and the observed total exploitation rate on Klamath Basin fall-run Chinook salmon has varied between approximately 20 and 65 percent since the late 1990s (Williams et al., 2011).

Ocean exploitation rates for Klamath Basin spring-run Chinook salmon are not available (Williams et al., 2011). However, restrictions on ocean fisheries that have been implemented as a result of the status of Klamath Basin fall-run Chinook salmon, Sacramento River fall-run Chinook salmon, and ESA listed salmon stocks also protect UKTR spring-run Chinook salmon, given the general overlap in the ocean distribution of these other stocks and UKTR spring-run Chinook salmon (Williams et al., 2011). In their final year of life, fall-run Chinook salmon leave the ocean and return to the river for spawning later in the year than do spring-run Chinook salmon. As a consequence, fall-run fish are exposed to the summer ocean fishery in their final year of life, whereas spring-run are not. Thus, the ocean exploitation rate on Klamath Basin spring-run Chinook salmon is considered to be lower than on Klamath Basin fall-run Chinook salmon, because of their lack of exposure to the summer ocean fishery in their final year of life.

In-river recreational fishery exploitation rates in the Klamath Basin for spring-run Chinook salmon are unknown. Williams et al. (2011) indicated that in-river Tribal exploitation rates in recent years have generally been comparable to or slightly greater than those reported by Myers et al. (1998), particularly for spring-run Chinook salmon. To reduce impacts on spring-run adult escapement, the Yurok Tribe has enacted voluntary conservation measures since the early 1990s. The most recent example is the closure of the gillnet fishery three days per week and the prohibition of commercial fishing during the 2011 spring-run Chinook salmon migration period. Overall, impacts from commercial, recreational, and Tribal harvest do not appear to have changed significantly since they were last reviewed in 1998 (Myers et al., 1998).

Because of the relatively robust regulatory controls on the harvest and other uses of Chinook salmon in the UKTR ESU and the reductions in overall harvest from historic levels, overutilization of Chinook salmon in this ESU for commercial, recreational or scientific purposes is unlikely to threaten the ESU's continued existence now or in the foreseeable future.

Diseases that cause mortality to UKTR Chinook salmon adults and juveniles are prevalent in the Klamath Basin, particularly in the mainstem Klamath River. In the fall of 2002, over 30,000 fall-run Chinook salmon died in the Klamath River as a result of low water discharge, large run size, high water temperatures, and an epizootic outbreak of the bacterium Flavobacterium columnare (columnaris) and the parasite Ichthyopthirius multifilis (ich) (CDFG 2004). Since that event, there have been substantial efforts to reduce the likelihood that such events will occur in the future or to minimize the impacts of any future event (CDFG 2011). An interagency task force has been organized to provide early warning and response to a potential fish kill that would entail requesting water releases from either Iron Gate or Lewiston dams if Klamath River flows fall below a specified minimum threshold during the adult fall-run Chinook salmon migration period.

An area of high parasite infections exists in the upper Klamath River from its confluence with the Shasta River downstream to the Seiad Valley (Foote et al., 2011). Infection by Ceratomyxa shasta can be a significant mortality factor for juvenile Chinook salmon; the average infection rate for fish in the Klamath River upstream from its confluence with the Trinity River was 30 percent from 2004-2008, and 54 percent in 2009 (True et al., 2011). Because high water temperature is one of the primary drivers for disease infection rates (Foote et al., 2011), increased water temperatures associated with drought, climate change, and human activities (e.g., water diversions) are predicted to increase disease rates in the future (Woodson et al., 2011).

Naturally-produced Chinook salmon fry are preyed upon by hatchery steelhead in the upper Trinity River (Naman and Sharpe 2011). There is limited information on pinniped predation of Chinook salmon in the UKTR ESU, but one study from the Klamath River estuary in 1997 estimated that over 8 percent of the fall-run Chinook salmon escapement was consumed by pinnipeds (Hillemeier 1999).

Diseases are unlikely to threaten the ESU's continued existence now or in the foreseeable future, unless climate change in the basin causes a substantial increase in disease related mortality. However, the magnitude of any such effects is difficult to predict with any degree of certainty. Predation is unlikely to threaten the ESU's continued existence now or in the foreseeable future.

Forest practices, managed by the State and the Federal Government, have generally improved since 1998, although some practices do not adequately protect Chinook salmon or other salmonids. About 68 percent of the land within the UKTR ESU is managed by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) under the Northwest Forest Plan (NWFP). The NWFP and its associated Aquatic Conservation Strategy (ACS), which was designed to protect salmon and steelhead habitat by maintaining and restoring ecosystem health at watershed and landscape scales, has improved the landscape through changes in timber harvesting and road maintenance and construction. A recent report assessing the overall effectiveness of the NWFP indicates that there have been positive changes in watershed condition scores throughout the range of the NWFP, with trends indicating small increases in vegetation scores (Lanigan et al., 2011). While overall road density changed only slightly across the area of the NWFP, road densities remain high in some portions of the UKTR Chinook salmon ESU (e.g., South Fork Trinity River).

Since 1998, NMFS has actively engaged with the State Board of Forestry to facilitate improvements in California's state forest practice rules to improve aquatic habitat protection. The Board of Forestry has made some improvements to the rules. However, the current forest practice rules will continue to be considered inadequate for anadromous salmonids until the full suite of needed protections outlined by NMFS in public hearings and the Northern California steelhead listing (65 FR 36074; June 7, 2000) are adopted.

Enforcement of State fishery regulations and Tribal trust fishing rights is a challenge within the UKTR ESU. The Yurok Tribe and Hoopa Valley Tribe have Federally reserved fishing rights, but the Federally reserved salmon and steelhead fishing rights of other Tribes have not been established. Under their Federally reserved rights, the Yurok Tribe and Hoopa Valley Tribe are entitled to a moderate living standard or 50 percent of the harvest of Klamath-Trinity Basin salmon. However, members of the Karuk Tribe are authorized to fish with traditional hand-held dip nets at their indigenous fishing site at Ishi Pishi Falls under State fishing regulations. Thus, the management of in-river harvest of salmonids is shared between Federal, Tribal, and State agencies and depends upon whether the Tribe has a Federally reserved fishing right or is harvesting salmon under State fishing regulations. Monitoring and enforcement of in-river harvest is hampered by the complexity of the regulations governing the in-river fishery. Although the extent to which illegal harvest is a problem is unclear, illegal harvest of UKTR Chinook salmon has been documented. For example, State law enforcement officers have confiscated gill nets and fishing rods in the New River watershed, even during periods when the river is closed to fishing (Leach 2012).

While some water diversions in the UKTR Chinook salmon ESU are well monitored, consumptive water use is often poorly or, in some cases, entirely undocumented. Groundwater withdrawals are not monitored or quantified and water master service is lacking in much of the UKTR Chinook salmon ESU. The effects of water utilization on UKTR Chinook salmon are not well understood, and few studies have been developed to quantify the effects.

Current regulatory mechanisms are not quantifying or addressing consumptive water use, land clearing, chemical spills, and fertilizer and pesticide use associated with outdoor cannabis cultivation in the UKTR ESU.

There is no comprehensive drought plan for the Klamath Basin (including the Trinity River) or coordinated strategy that directs actions of resource management agencies to reduce the effects of drought or climate change on Chinook salmon. However, parties to the Klamath Basin Restoration Agreement have drafted a Drought Plan which, if finalized and implemented, is expected to reduce the effects of drought on UKTR Chinook salmon in the mainstem Klamath River. Without appropriate mechanisms in place to reduce the effects of drought or climate change throughout the UKTR ESU, both remain threats to the ESU.

Though there are examples of existing regulatory mechanisms not adequately protecting Chinook salmon in the UKTR ESU, Chinook salmon populations in the ESU have persisted at current levels for several decades despite these limitations. Overall, we conclude that it is unlikely that inadequacies in these regulatory mechanisms threaten the continued existence of the ESU.

Natural events like prolonged drought or catastrophic flooding could pose significant threats to UKTR Chinook salmon. Prolonged drought (more than two years) would magnify already challenging water quality, disease, and freshwater habitat conditions for UKTR Chinook salmon. A decadal scale drought, such as the one that lasted from the late 1920s until the late 1930s (McCabe et al., 2004), would adversely affect several generations of Chinook salmon and increase the population's extinction risk. Although many shorter term droughts (two to three years) have occurred in the recent past, a decadal scale drought has occurred once in approximately the past 100 years.

Catastrophic flooding events like those in 1955, 1964 and 1997 in the Klamath Basin destroyed a large area of salmonid habitat, the effects of which are still presently evident (Cover et al., 2010). In addition to adverse impacts to the spawning and rearing of Chinook salmon during flood events, such events also degrade habitat conditions by filling in holding pools, changing channel hydraulics, reducing the amount of large woody debris, and increasing summer stream temperatures through loss of riparian vegetation (Lisle 1982). While improvements to watershed conditions have been made which could help reduce the intensity of debris flows and sedimentation, catastrophic flooding poses a risk to UKTR Chinook salmon, though the timing and frequency of such events are difficult to predict.

Climate change projections for the Klamath Basin predict greater relative warming in the summer than in other seasons, drier summers, less snowpack, lower stream flow, and changes in predominant vegetation types such that wildfires are projected to increase in frequency and area (Woodson et al., 2011). These predicted changes would impact UKTR Chinook salmon by altering fish migration and timing, decreasing the availability of side channel and floodplain habitats, the loss of cool-water refuge areas, higher rates of disease incidence, lower dissolved oxygen levels, and potentially earlier, longer, and more intense algae blooms (Woodson et al., 2011). Climate change will likely exacerbate existing stressors as well as create new stressors for salmonids in the Klamath River (Quiñones 2011). A transition to a warmer climate state and sea surface warming may be accompanied by reductions in ocean productivity, which affects Chinook salmon survival (Behrenfeld et al., 2006).

Iron Gate Hatchery and Trinity River Hatchery release roughly 14.2 million hatchery salmonids into the UKTR basin annually, of which 10.3 million are Chinook salmon that we have determined are part of this ESU. Releases of hatchery fish can create a host of ecological (Kostow 2009) and genetic (Reisenbichler and Rubin, 1999; Araki et al., 2009) problems that can result in lower productivity of natural-origin salmonids (Buhle et al., 2009; Chilcote et al., 2011). Genetic information and escapement estimates indicate straying of hatchery Chinook salmon adults into tributaries is more acute for those streams or areas located closest to the two hatcheries in the Klamath Basin (Williams et al., 2011). The extent to which hatchery-origin fish affect the productivity of UKTR Chinook salmon is unknown, but given research on the effect of hatchery fish on the productivity of natural-origin fish in other systems (Buhle et al., 2009; Chilcote et al., 2011), it is likely that productivity of UKTR Chinook salmon is impacted at least in those areas near hatcheries where hatchery-origin fish are most abundant.

Floods and droughts are natural phenomena that have affected UKTR Chinook salmon for millennia. Although these natural phenomena temporarily reduce the ability of freshwater habitat to support UKTR Chinook salmon, they are unlikely to threaten the continued existence of the species. Climate change has the potential to threaten the ESU's continued existence, particularly if precipitation and snowpack markedly decrease and temperatures substantially increase. However, the magnitude of climate driven changes in precipitation and snowpack in the foreseeable future and the response of Chinook salmon populations in the ESU to any such changes is unknown. Efforts to reform hatchery practices at Trinity River and Iron Gate hatcheries are increasing, in part driven by the recent scientific review of hatchery operations by the California Hatchery Scientific Review Group. If changes in hatchery operations resulting from this process are implemented in the future, they are expected to reduce the potential adverse effects of hatchery releases on the productivity of naturally spawning Chinook salmon in this ESU.

When considering the listing of a species, section 4(b)(1)(A) of the ESA (16 U.S.C. 1533(b)(1)(A)) requires consideration of efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect the species. On March 28, 2003, NMFS and the USFWS published the final Policy for Evaluating Conservation Efforts When Making Listing Decisions (68 FR 15100), that provides guidance on evaluating current protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, State and local governments, Tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or that have been implemented but have not yet demonstrated effectiveness.

There is a wide range of conservation efforts focused on salmonids, including Chinook salmon, in the UKTR ESU. One important effort is the Trinity River Restoration Program. This ongoing program established restoration goals for spring-run and fall-run Chinook salmon, identified actions that must be taken to restore Trinity River Chinook salmon populations, established quantifiable performance measures, and incorporated the principles of adaptive management (TRRP 2012). Removing Iron Gate Dam and three other dams upstream of Iron Gate Dam on the Klamath River (if the Secretary of the Interior makes an affirmative determination under the Klamath Hydroelectric Settlement Agreement) or adding fish passage facilities around these and other upper basin dams on the Klamath River (if the Secretary of the Interior does not make an affirmative determination under the Klamath Hydroelectric Settlement Agreement) and associated restoration efforts will likely improve the viability of UKTR Chinook salmon (CDFG and DOI 2011), but there are uncertainties regarding which of these efforts will be implemented. Several other efforts are ongoing in the Klamath Basin; in particular, improved forest practices, land management, and purchase of private land for conservation. Ongoing research on diseases that afflict UKTR Chinook salmon is expected to provide greater understanding of the factors that contribute to disease infection and management efforts that can ameliorate disease impacts in the UKTR ESU.

We have reviewed the status of the UKTR Chinook salmon ESU and considered the best scientific and commercial data available, and we conclude that the petitioned action is not warranted. In reaching this conclusion, we conclude that spring-run and fall-run Chinook salmon in the UKTR Basin constitute a single ESU. We have considered the conservation efforts for the ESU. In addition, we have considered the ESA section 4(a)(1) (16 U.S.C. 1533(a)(1)) factors in the context of the biological status of the species, the assessment of the risks posed by those threats, the possible cumulative impacts, and the associated uncertainties. Despite the issues discussed under those factors, consistent with the 1998 status review and listing determination for the UKTR Chinook salmon ESU, and based on a comprehensive review of the best scientific and commercial data currently available, NMFS concludes the overall extinction risk of the ESU is considered to be low over the next 100 years.

Based on these considerations and others described in this notice, we conclude that the UKTR Chinook salmon ESU is not in danger of extinction throughout all or a significant portion of its range, nor is it likely to become so in the foreseeable future. Therefore, the UKTR Chinook salmon ESU does not meet the ESA definition of an endangered or threatened species, and listing the UKTR Chinook salmon ESU under the ESA is not warranted at this time.

A complete list of references cited herein is available upon request (see ADDRESSES section).

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

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan or fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

This notice announces that proposed Amendments 10, 11, and 12 to the FMP are available for public review and comment. The salmon fisheries in the exclusive economic zone (EEZ, 3 to 200 nautical miles) off Alaska are managed under the FMP. The FMP was prepared by the Council under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. The following paragraphs provide information on Amendments 10, 11, and 12. Because Amendment 12 would comprehensively amend the FMP and incorporates FMP language for Amendments 10 and 11, it is described first in this NOA. Descriptions of Amendments 10 and 11 follow the description of Amendment 12.

The FMP originally was approved in 1979 and last comprehensively revised in 1990. The FMP conserves and manages the Pacific salmon commercial and sport fisheries that occur in the EEZ off Alaska. The FMP establishes two management areas: the East Area is the EEZ in the Gulf of Alaska east of Cape Suckling (143°53.6″ West Longitude) and the West Area is the EEZ off the coast of Alaska west of Cape Suckling. The FMP manages commercial salmon fisheries differently in each area. In the East Area, the FMP delegates management of the commercial troll salmon fishery to the State of Alaska (State) to manage in compliance with the Pacific Salmon Treaty, Magnuson-Stevens Act, and FMP. The FMP prohibits commercial salmon fishing with net gear in the East Area. In the West Area, the FMP prohibits commercial salmon fishing, except for commercial salmon fishing with net gear in three defined areas of the EEZ adjacent to Cook Inlet, Prince William Sound, and the Alaska Peninsula. The FMP delegates management of the sport fishery to the State in both areas.

Although the FMP has been amended nine times in the last two decades, no comprehensive consideration of management strategy or scope of Federal management has occurred since 1990. State fisheries regulations and Federal and international laws affecting Alaska salmon have changed since 1990, and the reauthorized Magnuson-Stevens Act expanded the requirements for FMPs. Additionally, the current FMP is vague with respect to management authority for commercial salmon fishing in the three defined areas that occur in the West Area.

Therefore, the Council determined that the FMP must be updated, in order to comply with the current Magnuson-Stevens Act requirements, and amended, to more clearly reflect the Council's policy with regard to the State's continued management authority over commercial fisheries in the West Area, the Southeast Alaska commercial troll fishery, and the sport fishery.

In December 2011, the Council voted unanimously to recommend Amendment 12 to the FMP. The Council considered revisions to the FMP at five separate meetings that occurred over more than a year. At each regularly scheduled and noticed public meeting, the Council took public testimony and considered written and oral public comments, providing stakeholders with opportunities for involvement on this issue. Additionally, the Council conducted a special open workshop for stakeholders in September 2011, which was attended by more than 20 members of the public, three Council members, Council staff, and State and Federal agency staff. The Council considered the comments and suggestions made during that workshop in developing Amendment 12.

Amendment 12 would comprehensively revise the FMP to reflect the Council's salmon management policy, which is to facilitate State of Alaska salmon management in accordance with the Magnuson-Stevens Act, Pacific Salmon Treaty, and applicable Federal law. Under this policy, the Council identified six management objectives to guide salmon management under the FMP and achieve the management policy: (1) Prevent overfishing and achieve optimum yield, (2) manage salmon as a unit throughout their range, (3) minimize bycatch and bycatch mortality, (4) maximize economic and social benefits to the Nation over time, (5) protect wild stocks and fully utilize hatchery production, and (6) promote safety. The Council, NMFS, and the State of Alaska will consider these management objectives in developing FMP amendments and associated management measures.

To reflect the Council's policy and objectives, Amendment 12 would redefine the FMP's management area to exclude the Cook Inlet, Prince William Sound, and the Alaska Peninsula net fishing areas and the sport fishery from the West Area. In removing these three areas and the sport fishery from the FMP, the Council provided a rationale for why Federal conservation and management are not necessary, consistent with the Magnuson-Stevens Act. The Council recognized that FMP management would only apply to the portion of the fisheries in the EEZ, and that salmon are more appropriately managed as a unit in consideration of all fishery removals to meet in-river escapement goals. The Council determined that excluding these areas and the sport fishery from the West Area and the FMP would allow the State to manage Alaska salmon stocks as seamlessly as practicable throughout their range, rather than imposing dual State and Federal management. Under Amendment 12, the FMP would continue to apply to the vast majority of the EEZ west of Cape Suckling and would maintain the prohibition on commercial salmon fishing in the redefined West Area.

In the East Area, Amendment 12 would maintain the current scope of the FMP and would reaffirm that management of the commercial and sport salmon fisheries in the East Area is delegated to the State. The FMP relies on a combination of State management and management under the Pacific Salmon Treaty to ensure that salmon stocks, including trans-boundary stocks, are managed as a unit throughout their ranges and interrelated stocks are managed in close coordination. Maintaining the FMP in the East Area would leave existing management structures in place, recognizing that the FMP is the nexus for the application of the Pacific Salmon Treaty and other applicable Federal law.

The Council also recommended a number of FMP provisions to update the FMP and bring it into compliance with the Magnuson-Stevens Act and other applicable Federal law. Amendment 12 would include these changes in a reorganized FMP with a more concise title, “Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska.”

The primary new FMP provision is a mechanism to establish annual catch limits (ACLs) and accountability measures (AMs) for the salmon stocks caught in the East Area commercial troll fishery, the only commercial fishery authorized under the FMP. Amendment 12 would not establish ACLs or AMs in the West Area because no commercial salmon fisheries are authorized in the West Area. The mechanism to establish ACLs and AMs for the commercial troll fishery builds on the FMP's existing framework for establishing status determination criteria. The commercial troll fishery harvests primarily Chinook and coho salmon; though chum, sockeye, and pink salmon are also harvested occasionally. The FMP currently separates these salmon stocks into three tiers for the purposes of status determination criteria.

Tier 1 stocks are Chinook salmon stocks covered by the Pacific Salmon Treaty. Amendment 12 would not establish a mechanism for specifying ACLs and AMs for Chinook salmon because the Magnuson-Stevens Act exempts stocks managed under an international fisheries agreement in which the United States participates from the ACL requirement (16 U.S.C. 1853 note).

Under Amendment 12, the mechanisms for specifying ACLs for Tier 2 (coho salmon) and Tier 3 (coho, pink, chum, and sockeye salmon stocks managed as mixed-species complexes) salmon stocks would be established using the State's scientifically-based management measures to control catch and prevent overfishing. This approach represents an alternative approach to the methods prescribed in NMFS's National Standard 1 Guidelines (50 CFR 600.310) for specifying ACLs. The National Standard 1 Guidelines contemplate limited circumstances where the standard approaches to specification of reference points, including ACLs, and management measures detailed in the guidelines may not be appropriate. The National Standard 1 Guidelines specifically cite Pacific salmon as an example of stocks that may require an alternative approach. Under this flexibility within the guidelines, the Council may propose an alternative approach for satisfying the requirements of National Standard 1, other than those set forth in the guidelines. The guidelines require that the Council document its rationale for proposing an alternative approach in an FMP amendment and document its consistency with the Magnuson-Stevens Act. Amendment 12 would modify the FMP to include the rationale for this alternative approach as the mechanism for specifying ACLs.

The Council proposes an alternative approach because the State's escapement-based management system is a more effective management system for preventing overfishing of Alaska salmon than a system that places rigid numeric limits on the number of fish that may be caught. Escapement is defined as the annual estimated size of the spawning salmon stock in a given river, stream, or watershed. Given salmon's particular life history attributes, the Council's preferred method to annually ensure that surviving spawners will maximize present and future yields is a system that establishes escapement goals intended to maximize surplus productivity of future runs, estimates run strength in advance, monitors actual run strength and escapement during the fishery, and utilizes in-season management measures, including fishery closures, to ensure that minimum escapement goals are achieved. Further, escapement-based management, with real-time monitoring of run strength, inherently accounts for total catch and all sources of natural mortality. As part of the alternative approach the Council recommends that Amendment 12 establish a peer review process in the FMP that utilizes the State's existing salmon expertise and processes for developing escapement goals as fishing level recommendations.

The State's escapement-based management system includes the added features of in-season monitoring to confirm actual run strength and in-season management measures that adjust fishing pressure, or close a fishery, to ensure that escapement goals are met if pre-season predictions of run strength prove inaccurate. Under Amendment 12, these features would be the AMs to prevent ACLs from being exceeded and to correct overages of the ACL if they do occur.

Amendment 12 also would revise the definition of optimum yield. For the East Area, several economic, social, and ecological factors are involved in the definition of OY. For Chinook salmon stocks in Tier 1, an all-gear maximum sustainable yield (MSY) is prescribed in terms of catch by the Pacific Salmon Treaty and takes into account the biological productivity of Chinook salmon and ecological factors in setting this limit. Under Amendment 12, the portion of the all-gear catch limit allocated to troll gear would represent the OY for that fishery and takes into account the economic and social factors considered by the State of Alaska in making allocation decisions. For stocks in Tiers 2 and 3, MSY currently is defined in terms of escapement. MSY escapement goals account for biological productivity and ecological factors, including the consumption of salmon by a variety of marine predators. Under Amendment 12, the OY for the troll fishery would be that fishery's annual catch, which, when combined with the catch from all other salmon fisheries, results in a post-harvest run size equal to the MSY escapement goal for each indicator stock. The portion of the annual catch harvested by the troll fishery reflects the biological, economic, and social factors considered by the State of Alaska in determining when to open and close the coho salmon harvest by the troll fishery.

For the redefined West Area under Amendment 12, commercial fishing is prohibited; therefore the directed harvest OY would be zero. The redefined West Area has been closed to commercial net fishing since 1952 and commercial troll fishing since 1973 and there has not been any commercial yield from this area. This proposed OY recognizes that salmon are fully utilized by state-managed fisheries and that the State manages fisheries based on the best available information using the State's escapement goal management system. This OY also recognizes that non-Alaska salmon are fully utilized and managed by their respective management authorities when they return to their natal regions.

Amendment 12 would add a fishery impact statement to the FMP that includes fishery information required by the Magnuson-Stevens Act (16 U.S.C. 1853(a)(2), (3), (5), (9), (11), and (13)). The fishery impact statement contained in Amendment 12 analyzes the effects of the conservation and management measures on participants in the fisheries, fishing communities affected by the FMP, and safety of human life at sea. The fishery impact statement also describes the salmon fishery, specifies the present and probable future condition of the fishery, and describes the commercial, recreational, and charter fishing sectors which participate in the salmon fishery. Additionally, the fishery impact statement assesses the economic impacts of the salmon fishery by sector.

Amendment 12 also would revise the current FMP process for Federal review of State management measures to more fully describe the process and bring the process into compliance with Magnuson-Stevens Act requirements (16 U.S.C. 1856(a)(3)(B)). With the delegation of management authority of the East Area commercial troll salmon fishery and the East Area sport fishery to the State of Alaska, the Council and NMFS must stay apprised of State management measures governing commercial and sport salmon fishing in the East Area and, if necessary, review those measures for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law. Also, members of the public may request that the Secretary review State salmon management measures in the East Area for consistency with the FMP, the Magnuson-Stevens Act and other applicable Federal law. Under Amendment 12, the FMP would describe (1) how the Council and NMFS fulfill this oversight role, (2) the ways in which the Council and NMFS will monitor State management measures that regulate salmon fishing in the East Area, (3) the process by which NMFS will review State management measures governing salmon fisheries in the East Area for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law, (4) the process by which a member of the public can petition NMFS to review State management measures in the East Area for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law, and (5) the process NMFS will follow if NMFS determines that State management measures in the East Area are inconsistent with the FMP, the Magnuson-Stevens Act, or other applicable Federal laws.

Amendment 12 would remove existing FMP language governing the issuance of Federal salmon permits. The Council recommended removing FMP language related to Federal salmon permits because Federal permits are no longer necessary. All current participants have State of Alaska limited entry permits. According to language included in the original 1979 FMP, provisions for Federal salmon permits were established as a complement to the State limited entry permit, in order to limit capacity in the EEZ so that persons who did not receive a State limited entry permit would not simply shift their fishing efforts into Federal waters. Additionally, the 1979 FMP explains that there was an interest in ensuring that the few vessels that had fished in the EEZ but not landed their catch in Alaska could continue to have access to the EEZ, even if they were not eligible for a state limited entry permit. The problems identified in the 1979 FMP were addressed by this Federal permit system. In 1979 or 1980, NMFS issued 2 non-transferrable limited entry permits and these permits are no longer active in the fishery.

An Environmental Assessment/Regulatory Impact Review was prepared for Amendment 12 that describes the management background, the purpose and need for action, the management alternatives, and the environmental, social, and economic impacts of the alternatives (see ADDRESSES). Additional details on the basis of specific policy and management measures are provided in the analysis.

In October 2009, the Council adopted a motion to revise all six of its fishery management plans to provide authority for recovering the administrative costs of processing applications for permits required under those plans, except for exempted fishing permits and prohibited species donation permits. Amendment 10 would amend the FMP to provide authority for NMFS to recover the administrative costs of processing applications for any future permits that may be required under this FMP, except for exempted fishing permits and prohibited species donation permits. Amendment 10 would implement the following FMP language: “NMFS may assess and collect fees to recover the administrative costs incurred by the Federal government in processing applications for permits required to participate in the fisheries managed under this FMP as authorized by the Magnuson-Stevens Act, 16 U.S.C 1853(b).” If Amendments 10 and 12 are approved by NMFS, this language would be included at section 4.2 of the FMP. If Amendment 10 is approved but Amendment 12 is not, then this language would be included at section 5.2 of the FMP.

In April 2011, the Council recommended Amendment 11 to (1) revise the timeline associated with the Council's process to identify Habitat Areas of Particular Concern so that the process coincides with the EFH 5-year review, (2) revise habitat research priority objectives, and (3) update EFH conservation recommendations for, and the analysis of the impacts of, non-fishing activities. If Amendments 11 and 12 are approved by NMFS, Amendment 11 would to include the most recent scientific information resulting from the 5-year review in chapter 7 of the FMP and the FMP's Appendix A “Essential Fish Habitat and Habitat Areas of Particular Concern”. If Amendment 11 is approved but Amendment 12 is not, then this language would be included in section 6.3 of the FMP and in the FMP's Appendix E. These changes are necessary to update the FMP based upon the best scientific information available and the guidelines articulated in the final rule to implement the EFH provisions of the Magnuson-Stevens Act (see 50 CFR part 600, subpart J).

NMFS is soliciting public comments on proposed Amendments 10, 11, and 12 through the end of the comment period (see DATES). NMFS will consider all comments received by the end of the comment period on Amendments 10, 11, and 12, in the FMP approval/disapproval decision. To be considered, comments must be received, not just postmarked or otherwise transmitted, by 5 p.m. Alaska local time on the last day of the comment period. Comments received after that date will not be considered in the approval/disapproval decision on the amendment.

NMFS intends to publish in the Federal Register a proposed rule that would implement Amendment 12 and seek public comment on that proposed rule, following NMFS's evaluation of the proposed rule under the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period for Amendment 12 to be considered in the approval/disapproval decision on Amendment 12. Implementing regulations are not needed for either Amendment 10 or Amendment 11, and therefore no proposed rule for these amendments will be published.