Technological developments are dramatically altering the ways in which national banks conduct their business. Telecommunications advances offer banks faster and more efficient communication and data transmission. Improvements in computer hardware and software are opening up new banking applications. These rapid developments in new technologies are causing banks to reevaluate existing delivery channels and business practices and to develop new products and services in order to reach new customers, better serve existing customers, and take advantage of cost efficiencies.

The explosive growth of the Internet also is prompting banks to reconsider business strategies and adopt alternative distribution and marketing systems. The recent chartering of Internet-only banks that operate without a conventional brick and mortar physical presence and the use of the Internet by existing banks to establish transactional World Wide Web (Web) sites  1 present new opportunities and challenges for national banks.

The OCC has already taken a number of steps to facilitate national banks' use of developing technology, including the Internet. For example, in 1996, we revised our data processing regulation to reflect the fact that banks today use technology to engage in a range of electronic activities. 61 FR 4849 (Feb. 9, 1996). As revised, the regulation authorizes national banks to conduct through electronic means or facilities any activity that they are otherwise authorized to conduct and permits banks to sell excess electronic capacities acquired or developed in good faith for banking purposes. 12 CFR 7.1019.

The OCC has also recently issued a comprehensive handbook that addresses the risks presented by Internet banking activities. Comptroller's Handbook, Other Income Producing Activities, Internet Banking (Oct. 1999) (Handbook). 2 The Handbook describes procedures for examining Internet banking activities in national banks. It also provides guidance to national banks that are conducting, or considering, Internet banking activities by outlining business and technical issues associated with offering banking products and services through the Internet. The Handbook follows previous OCC guidance on electronic banking issues, including certification authority systems, technology risk management, retail personal computer banking, Web privacy statements, cyber-terrorism, reporting computer-related crime, and consumer compliance. 3

In addition, on a case-by-case basis, the OCC reviews specific bank uses of technology. To date, we have approved a number of Internet applications, including transactional Web sites, commercial Web site hosting services, a virtual mall, an electronic marketplace for non-financial products, and Internet access services. 4 The OCC also has permitted national banks to engage in a number of electronic payment systems activities. For example, we have allowed national banks to provide electronic bill payment and presentment services, stored value systems, electronic data interchange (EDI) services, and to dispense prepaid alternate media (such as stamps and prepaid phone cards) from automated teller machines (ATMs). 5 Finally, the OCC has authorized national banks to offer additional technology-based services, such as digital certification authority services and electronic correspondent banking services. 6

We periodically review and reevaluate our regulations to ensure that they encourage national banks' efficiency and competitiveness, consistent with safety and soundness. The purpose of this ANPR is to invite public comment on a wide range of issues involving national bank involvement in electronic banking to determine whether the OCC's regulations should be revised to remove regulatory impediments and unnecessary burdens, if any, to bank use of technology, or add new provisions that would facilitate national banks' use of new technologies. Based on the comments we receive, we may propose specific revisions to our rules for comment or issue additional supervisory guidance. 7

The following discussion identifies some areas where modification of the OCC's regulations or supervisory policies may be useful to national banks that provide financial services electronically. Commenters are invited to respond to the questions presented and to offer comments or suggestions on any other issues related to electronic banking that are not specifically mentioned here, including whether OCC initiatives other than regulatory changes are appropriate. 8

Recognizing the fluid, fast-evolving nature of bank use of technology, the OCC wants to ensure that its regulations are flexible enough to address emerging trends and new banking activities. To this end, we invite commenters to describe how national banks want to use new technologies and how these technologies will impact the ways in which national banks operate under the OCC's current regulations. For example, are there specific regulations that the OCC should modify because they impede the use of developing technology?

Technology also enables national banks to reach nationwide markets for the financial products and services they provide. Are there areas where conducting electronic banking activities could particularly benefit from a single set of standards that can be applied uniformly on a nationwide basis?

Electronic banking activities of all forms expose banks to new combinations of risks from different sources. Through the issuance of the Internet Banking Handbook and other supervisory guidance, the OCC is working to identify, and educate national banks about, the risks presented by electronic banking and to ensure that its regulations appropriately address these risks. We invite comment on whether existing OCC regulations adequately address the risks presented by current or future electronic banking activities. Are there areas where banks would benefit from additional clarification in our rules or in other guidance on the risks associated with electronic banking activities? For example, are banks experiencing problems related to the permissibility, validity, and enforceability of electronic transactions? What could the OCC do to provide greater legal certainty in these or other areas?

Electronic banking also provides consumers with more convenient access to a wider variety of financial services. Studies indicate that a significant percentage of households in the United States will do their banking online as a growing number of consumers conduct their banking and other financial transactions through automated teller machines and over the Internet. We invite comment on whether there are specific areas in which regulatory changes are needed to enhance consumer acceptance of, confidence in, or access to, electronic banking.

Internet banking raises legal issues with respect to how the OCC should construe references in existing law to the “location” of a national bank. A number of statutes applicable to national banks refer to the state or place where the bank is “located” or use similar terms.  9 In some of these statutes, the activities and operations of a national bank depend on the laws of the state in which the bank is located.

Generally, for many of these statutes, banks have been considered located in a state where they have a main office or a branch. For some statutes, only the main office is considered. For others, a bank has been considered located in a state with a non-branch office, as well as the states of its main office and branches. Moreover, the determination of the bank's location focuses on the location of the bank's offices and activities, not the location of the bank's customers.

We invite comment on whether new developments in bank technology require the OCC to address how “location” applies in the context of activities conducted via the Internet. Specifically, is the determination of “location” for purposes of the statutes an impediment to national banks conducting all or part of their operations on the Internet? If so, should we further clarify our regulations on this issue? Is there a uniform approach to “location” that works for all the relevant statutes or should we address each statute separately?

The rapid growth of electronic commerce has resulted in many marketing arrangements involving providing bank customers with access to providers of retail or financial services through hypertext links on the bank's Web site. Under some marketing arrangements, the bank is the dominant brand and refers its customers to non-bank third parties for additional products and services not provided by the bank directly. In other cases, the non-bank is the dominant brand and it uses a bank to provide its customers with access to bank services while minimizing the bank's brand.

It is well settled that a national bank may lease excess space on bank premises to other businesses and share space jointly with other businesses, subject to certain conditions. These conditions, which are currently set forth in the OCC's regulation governing the sharing of space and employees, are intended to minimize customer confusion about the nature of the products offered and promote the safe and sound operation of the bank. See 12 CFR 7.3001.

We invite comment on whether the OCC should issue a regulation similar to § 7.3001 that would apply to these types of electronic marketing arrangements. Commenters are specifically requested to address whether any or all of the supervisory conditions set forth in § 7.3001(c) are relevant in the electronic banking context and whether other conditions intended to minimize customer confusion should apply to these arrangements.

National banks may receive deposits and pay withdrawals in a variety of ways that are not subject to geographical restrictions or the need to apply for branch certification. For example, it is well settled that national banks may arrange to have their customers use ATMs established by third parties in order to undertake transactions with the bank. In 1996, Congress passed legislation permitting national banks to establish ATMs and remote service units (RSUs) without geographical limits or the need to seek approval to establish these types of facilities.  10

Both Congress, through legislation, and the OCC, through interpretation, also permit national banks to arrange for their customers to undertake banking transactions with the national bank through offices of affiliated banks and thrifts without implicating branching restrictions. Additionally, the OCC has established guidelines to enable national banks and their customers to transact business with each other through messenger services without implicating branching restrictions. Of course, national banks and their customers can transact business electronically without raising branching concerns.

The OCC seeks comment on whether these forms of delivery systems are flexible enough to permit technology-based banks to serve the transaction-related needs of their retail, as well as their commercial, customers. Specifically, are existing regulations sufficient to permit customers of technology-based banks to make deposits in the bank by cash or check in an efficient and expeditious manner? Additionally, are there other types of transactions that banks are considering where geographical restrictions create impediments or that could benefit from the development of alternative delivery systems not within the scope of branching restrictions?

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-203-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-203-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On June 16, 1998, the FAA issued AD 98-13-34, amendment 39-10625 (63 FR 34274, June 24, 1998), applicable to all EMBRAER Model EMB-145 series airplanes, to require repetitive emergency extension (free-fall) functional tests of the nose landing gear (NLG), and lubrication of all NLG hinge points, to ensure that the NLG extends and locks down properly; and corrective action, if necessary. That action was prompted by a report indicating that the NLG on a Model EMB-145 series airplane failed to extend and lock down upon landing, even after accomplishment of procedures for abnormal emergency landing gear extension by the override switch and free-fall mechanism. The requirements of that AD are intended to prevent damage to the airplane structure, and consequent reduced controllability of the airplane upon landing.

The actions required by AD 98-13-34 were defined as interim actions until a permanent modification could be developed. Since the issuance of that AD, EMBRAER has determined that the unsafe condition can be eliminated by replacement of the NLG door solenoid valve with a new valve; replacement of the landing gear (LG) safety pins holder with a new holder; and by replacement of the NLG maneuvering actuator with a new actuator. The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, issued Brazilian airworthiness directive 98-05-01R1, dated July 8, 1999, to require these replacements.

EMBRAER has advised the FAA that a new NLG door solenoid valve, safety pins, and safety pins holder have been installed during production on Model EMB-145 series airplanes having serial numbers (S/N) 145001 through 145003 inclusive, and 145088 and subsequent. EMBRAER has also advised the FAA that a new NLG maneuvering actuator has been installed during production for Model EMB-145 airplanes S/N 145001 through 145003 inclusive, 145104, and 145107 and subsequent. Therefore, only Model EMB-145 series airplanes, S/N 145004 through 145103 inclusive, 145105, and 145106 are subject to the unsafe condition.

EMBRAER has issued Service Bulletin 145-32-0036, dated February 1, 1999, which describes procedures for replacing the NLG door solenoid valve with a new valve; and replacement of the LG safety pins holder with a new holder.

EMBRAER also has issued Service Bulletin 145-32-0037, dated February 12, 1999, which describes procedures for replacing the NLG maneuvering actuator with a new actuator.

The DAC classified these service bulletins as mandatory and issued Brazilian airworthiness directive 98-05-01R1, dated July 8, 1999, in order to assure the continued airworthiness of these airplanes in Brazil.

This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 98-13-34 to continue to require actions specified in that AD. This proposed AD would also require accomplishment of the actions specified in the service bulletins described previously.

There are approximately 66 airplanes of U.S. registry that would be affected by this proposed AD.

The actions that are currently required by AD 98-13-34, and continue to be required by this proposed AD, take approximately 4 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $15,840, or $240 per airplane, per inspection cycle.

The new replacements that are proposed in this AD action would take approximately 6 work hours (3 work hours per airplane for the solenoid/holder replacement) and 3 work hours per airplane for the actuator replacement, at an average labor rate of $60 per work hour. EMBRAER and Libherr Aerospace Linberg have previously committed to supplying the necessary parts free of charge. Based on these figures, the cost impact of the proposed replacements required by this AD on U.S. operators is estimated to be $23,760, or $360 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that 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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-330-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-330-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report indicating that a crack was found in the upper half of the aft pressure bulkhead on a Boeing Model 747 series airplane. The crack was located at the aft/inner fastener row, which attaches the web to the “Y” ring, and was 7.5 inches long. Analysis indicates that the crack was initiated and propagated by fatigue. Such cracking, if not detected and corrected, could result in rapid decompression of the fuselage or overpressurization of the tail section.

The FAA has reviewed and approved Boeing Alert Service Bulletin 747-53A2425, dated October 29, 1998, which describes procedures for repetitive inspections of the aft pressure bulkhead at the “Y”-ring-to-web lap splice to detect cracking, and repair, if necessary. The inspections to detect cracking include a detailed visual inspection of the upper half of the bulkhead and a high frequency eddy current (HFEC) inspection of the upper and lower halves of the bulkhead. Accomplishment of the actions specified in the alert service bulletin is intended to adequately address the identified unsafe condition.

The FAA has previously issued AD 98-20-20, Amendment 39-10786 (63 FR 50495, September 22, 1998). That AD requires repetitive inspections to detect damage and cracking of the aft pressure bulkhead on certain Boeing Model 747 series airplanes, line numbers 1 through 671 inclusive. The inspections required by that AD are similar to the ones described in this proposed AD, but this proposed AD would apply to Boeing Model 747 series airplanes having line numbers 672 and subsequent, as listed in Boeing Alert Service Bulletin 747-53A2425.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the alert service bulletin described previously, except as discussed below.

Operators should note that, although the alert service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposed AD requires the repair of those conditions to be accomplished in accordance with a method approved by the FAA, or in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

The alert service bulletin also specifies that certain inspections and repairs required by this proposed AD may be accomplished in accordance with “an operator's equivalent procedure.” However, this proposed AD requires that those actions be accomplished in accordance with the procedures specified in appropriate chapters of the Boeing 747 Maintenance Manual or the Boeing 747 Structural Repair Manual. An “operator's equivalent procedure” may be used only if approved as an alternative method of compliance in accordance with paragraph (g) of this AD.

The FAA has been advised that the intent of the manufacturer in the service bulletin is that accomplishment of an HFEC inspection implies concurrent accomplishment of a detailed visual inspection. Therefore, this proposed rule clarifies the manufacturer's intent, in that it proposes to require accomplishment of repetitive detailed visual inspections at intervals not to exceed 1,500 flight cycles, and repetitive HFEC inspections at intervals not to exceed 3,000 flight cycles.

There are approximately 552 airplanes of the affected design in the worldwide fleet. The FAA estimates that 84 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 7 work hours per airplane to accomplish the proposed detailed visual inspection, at the average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed detailed visual inspection on U.S. operators is estimated to be $35,280, or $420 per airplane, per inspection cycle.

It would take approximately 7 work hours per airplane to accomplish the proposed HFEC inspections, at the average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed HFEC inspections on U.S. operators is estimated to be $35,280, or $420 per airplane, per inspection cycle.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that 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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-83-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-83-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-145 series airplanes. The DAC advises that the damage tolerance for EMB-145 series airplanes indicates that reinforcements must be installed in the lower portion of the wing at rib 15 on the right-and left-hand sides of the airplane in order to maintain the validity of the current inspection interval of 2,000 flight cycles (prescribed in the maintenance instructions for the airplane). Such reinforcements will help to preserve the structural integrity of the wing flap support structure.

EMBRAER has issued Service Bulletin 145-57-0008, Change No. 01, dated February 12, 1999, which describes procedures for installation of reinforcements in the lower portion of wing rib 15 on the left-hand and right-hand sides of the airplane. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DAC classified this service bulletin as mandatory and issued Brazilian airworthiness directive 1999-01-02R1, dated March 15, 1999, in order to assure the continued airworthiness of these airplanes in Brazil.

This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.

The FAA estimates that 33 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 20 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $3,124 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $142,692, or $4,324 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that 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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-54-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-54-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports of evidence of electrical arcing on structure near the lower body anti-collision light on Boeing Model 767-200 and -300 series airplanes. The lower body anti-collision light is installed below the center fuel tank in a flammable leakage zone. Results of an operator survey and a review of installation drawings revealed that it is possible to install the lower body anti-collision light assembly backwards with the aft edge forward. This incorrect orientation of the light assembly results in misalignment of the connector and cable with the opening of the web, which necessitates a sharp bend of the cable for routing through the web opening. A sharply bent cable loop against the structure causes chafing and eventual wire damage of the cable. This condition, if not corrected, could result in electrical arcing or sparking in a flammable leakage zone of the airplane.

The subject cable assembly of the lower anti-collision light on Boeing Model 767-300F series airplanes is identical to that of the affected Boeing Model 767-200 and -300 series airplanes. Therefore, all of these airplanes may be subject to the same unsafe condition.

The FAA has reviewed and approved Boeing Service Bulletin 767-33A0075, Revision 1, dated May 27, 1999. The service bulletin describes procedures for repetitive general visual inspections to detect damage or chafing of the insulation or wires of the lower body anti-collision light, and repair, if necessary. In lieu of accomplishing the repetitive inspections, the service bulletin also describes procedures for either modification of the cable assembly, and repairs, if necessary; or replacement of the cable assembly of the lower anti-collision light with a new cable assembly. The modification involves removing the strain relief and bushing, installing a backshell extender with a new strain relief, and re-identifying the part number of the cable assembly.

Boeing Service Bulletin 767-33A0075, Revision 1, dated May 27, 1999, refers to Grimes Service Bulletin 60-3414-33-SB01, dated December 8, 1998, as an additional source of service information for accomplishment of the modification described previously.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The proposed AD would differ from the service bulletin in that it would mandate, within 1,800 flight hours after the effective date of this AD, either a one-time general visual inspection to detect damage or chafing of the insulation or wires, modification of the cable assembly of the lower body anti-collision cable assembly, and repairs, if necessary; or replacement of the cable assembly of the lower anti-collision light with a new cable assembly. The service bulletin provides for the modification or replacement as optional.

The FAA has determined that long-term continued operational safety will be better assured by design changes to remove the source of the problem, rather than by repetitive inspections. Long-term inspections may not be providing the degree of safety assurance necessary for the transport airplane fleet. This, coupled with a better understanding of the human factors associated with numerous continual inspections, has led the FAA to consider placing less emphasis on inspections and more emphasis on design improvements. The proposed modification or replacement requirement is in consonance with these conditions.

There are approximately 740 airplanes of the affected design in the worldwide fleet. The FAA estimates that 263 airplanes of U.S. registry would be affected by this proposed AD.

In lieu of accomplishing the replacement, it would take approximately 3 work hours (1 work hour per airplane for the inspection and 2 work hours per airplane for the modification) to accomplish the proposed inspection and modification. Required parts would cost approximately $157 per airplane. Based on these figures, the cost impact of the inspection and modification proposed by this AD on U.S. operators is estimated to be $337 per airplane.

In lieu of accomplishing the inspection and modification, it would take approximately 3 work hours per airplane to accomplish the proposed replacement, at an average labor rate of $60 per work hour. Required parts would cost approximately $1,552 (for Group 1 airplanes) or $2,234 (for Group 2 airplanes) per airplane. Based on these figures, the cost impact of this replacement proposed by this AD on U.S. operators is estimated to be $1,732 (for Group 1 airplanes) or $2,414 (for Group 2 airplanes) per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that 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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 98-NM-285-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 98-NM-285-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On September 14, 1998, the FAA issued AD 98-20-20, amendment 39-10786 (63 FR 50495, September 22, 1998), applicable to certain Boeing 747 series airplanes, to require certain repetitive inspections for damage or cracking of the aft pressure bulkhead, and repair, if necessary. In addition, that AD removes repetitive detailed visual inspections for cracking of the bulkhead web to Y-ring lap joint area, but retains the initial inspection for cracking in that area. That AD also adds a one-time detailed visual inspection from the forward side of the bulkhead to detect fatigue cracking of the upper segment of the bulkhead web, and follow-on corrective actions, if necessary. That action was prompted by reports indicating that the inspections required by AD 87-23-10, amendment 39-5758 (52 FR 41551, October 29, 1987), may not detect cracking of the bulkhead web in a timely manner. The requirements of AD 98-20-20 are intended to detect and correct fatigue cracking of the upper segment of the bulkhead web, which could result in rapid depressurization of the airplane, and consequent reduced controllability of the airplane.

In the preamble of AD 98-20-20, the FAA specified that the actions required by that AD were considered to be interim action. The FAA indicated that it may consider further rulemaking action to require repetitive detailed visual inspections and surface probe high frequency eddy current (HFEC) inspections to detect cracking of the upper and lower segments of the aft pressure bulkhead web, and repair if necessary. The FAA has determined that further rulemaking is indeed necessary; this proposed AD follows from that determination.

The FAA has reviewed and approved Boeing Alert Service Bulletin 747-53A2275, Revision 6, dated August 27, 1998, which describes procedures for, among other things, repetitive inspections from the forward side of the bulkhead web at body station (BS) 2360 to detect cracking. The inspections to detect cracking include a detailed visual inspection of the upper half of the bulkhead and a surface probe HFEC inspection of the upper and lower segments of the bulkhead. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 98-20-20 to continue to require the actions specified in that AD. This action also would require that the one-time detailed visual inspection required by AD 98-20-20 be accomplished repetitively, and would add repetitive surface probe HFEC inspections, and repair, if necessary. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

Operators should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain cracking conditions, this proposal would require the repair of those conditions to be accomplished in accordance with a method approved by the FAA.

The FAA has been advised that the manufacturer's intent of the surface probe HFEC inspection, as described in Figure 15 of the service bulletin, is that accomplishment of a surface probe HFEC inspection implies concurrent accomplishment of a detailed visual inspection, as described in Figure 14 of the service bulletin. This proposed rule clarifies the manufacturer's intent, in that it would explicitly require accomplishment of the repetitive detailed visual inspections at intervals not to exceed 1,500 flight cycles, and repetitive surface probe HFEC inspections at intervals not to exceed 3,000 flight cycles.

There are approximately 671 airplanes of the affected design in the worldwide fleet. The FAA estimates that 149 airplanes of U.S. registry would be affected by this proposed AD.

The actions that are currently required by AD 98-20-20 and retained in this proposed AD, take approximately 360 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $3,218,400, or $21,600 per airplane, per inspection cycle.

The new repetitive detailed visual inspections that are proposed in this AD action would take approximately 4 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $35,760, or $240 per airplane, per inspection cycle.

The new repetitive HFEC inspections that are proposed in this AD action would take approximately 48 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $429,120, or $2,880 per airplane, per inspection cycle.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations proposed herein would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that 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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 99-AGL-59.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Federal Aviation Administration, Office of Public Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence Avenue, S.W., Washington, DC 20591, or by calling (202) 267-3484. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class E airspace at Coldwater, MI, to accommodate aircraft executing the proposed GPS Rwy 06 SIAP at Branch County Memorial Airport by modifying the existing controlled airspace. Controlled airspace extending upward from 700 feet above the surface is needed to contain aircraft executing the approach. The area would be depicted on appropriate aeronautical charts. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore this, proposed regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 99-AGL-60.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, Office of the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Federal Aviation Administration, Office of Public Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence Avenue, SW, Washington, DC 20591, or by calling (202) 267-3484. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class E airspace at Watertown, SD, and Britton, SD, to accommodate aircraft executing instrument flight procedures into and out of numerous airports in southeastern North Dakota, northeastern South Dakota, and western Minnesota. Several small portions of uncontrolled airspace between Wahpeton, ND, and Brookings, SD, created as a result of the cancellation of a portion of Federal Airway 220 (V-220), Airspace Docket No. 98-AGL-49, published September 7, 1999 (64 FR 48527), would be eliminated. The area would be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document would be published subsequently in the Order.

The FAA has determined that his proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore this, proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 99-AGL-58.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket, FAA, Great Lakes Region, office of the Assistant Chief Counsel, 2300 Eat Devon Avenue, Des Plaines, Illinois, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Federal Aviation Administration, Office of Public Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence Avenue, SW, Washington, DC 20591, or by calling (202) 267-3484. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.

The FAA is considering an amendment to 14 CFR part 71 to modify Class E airspace at Saginaw, MI, to accommodate aircraft executing the proposed GPS Rwy 27 SIAP at Saginaw County H.W. Browne Airport by modifying the existing controlled airspace. Controlled airspace extending upward from 700 feet above the surface is needed to contain aircraft executing the approach. The area would be depicted on appropriate aeronautical charts. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore this, proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA issued “Certification of Screening Companies, Notice of Proposed Rulemaking,” on December 15, 1999, proposing procedures for certification of screening companies; and proposing other requirements to improve screening, such as performance measurements and new training and FAA testing requirements for screeners. The FAA is announcing this public meeting to give the public an additional opportunity to comment on the proposed rule.

The FAA should receive requests from persons who wish to present oral statements at the meeting no later than February 24, 2000. Such requests should be submitted to Judy Courbois, as listed above in the section titled FOR FURTHER INFORMATION CONTACT , and should include a written summary of oral remarks to be presented and an estimate of time needed for the presentation. The FAA will prepare an agenda of speakers, which will be available at the meeting. The names of those individuals whose requests to present oral statements are received after the date specified above may not appear on the written agenda. To accommodate as many speakers as possible, the amount of time allocated to each speaker may be less than the amount of time requested. Persons requiring audiovisual equipment should notify the FAA when requesting to be placed on the agenda.

The FAA will use the following procedures to facilitate the meeting:

(1) There will be no admission fee or other charge to attend or to participate in the meeting. The meeting will be open to all persons who are scheduled to present statements or who register between 8:30 a.m. and 9 a.m. on the day of the meeting. While the FAA will make every effort to accommodate all persons wishing to participate, admission will be subject to availability of space in the meeting room. The meeting may adjourn early if scheduled speakers complete their statements in less time than is scheduled for the meeting.

(2) An individual, whether speaking in a personal or a representative capacity on behalf of an organization, may be limited to a 10-minute statement. If possible, we will notify the speaker if additional time is available.

(3) The FAA will try to accommodate all speakers. If the available time does not permit this, speakers generally will be scheduled on a first-come-first-served basis. However, the FAA reserves the right to exclude some speakers if necessary to present a balance of viewpoints and issues.

(4) Sign and oral interpretation can be made available at the meeting, as well as an assistive listening device, if requested 10 calendar days before the meeting.

(5) Representatives of the FAA will preside over the meeting. A panel of FAA personnel involved in this proposal will be present.

(6) The meeting will be recorded by a court reporter. A transcript of the meeting and any material accepted by the FAA representatives during the meeting will be included in the public docket. Any person who is interested in purchasing a copy of the transcript should contact the court reporter directly. Additional transcript purchase information will be available at the meeting.

(7) The FAA will review and consider all material presented by participants at the meeting. Position papers or material presenting views or arguments related to the certification of screening companies may be accepted at the discretion of the presiding officer and subsequently placed in the public docket. The FAA requests that persons participating in the meeting provide six copies of all materials to be presented for distribution to the FAA representatives; other copies may be provided to the audience at the discretion of the participant.

(8) Statements made by FAA representatives are intended to facilitate discussion of the issues or to clarify issues. Any statement made during the meeting by an FAA representative is not intended to be, and should not be construed as, a position of the FAA.

(9) The meeting is designed to solicit public views and gather additional information on the certification of screening companies. Therefore, the meeting will be conducted in an informal and non-adversarial manner. No individual will be subject to cross-examination by any other participant; however, FAA representatives may ask questions to clarify a statement and to ensure a complete and accurate record.

The Controlled Substances Act (CSA), specifically 21 U.S.C. sections 802(34) and (35); 21 CFR 1310.02(c), provides the Attorney General with the authority to specify, by regulation, additional precursor and essential chemicals as “listed chemicals” if they are used in the manufacture of controlled substances in violation of the CSA. This authority has been delegated to the Administrator of DEA by 28 CFR 0.100 and redelegated to the Deputy Administrator under 28 CFR 0.104 (Subpart R) Appendix Sec. 12.

This notice provides advance notification that the U.S. Drug Enforcement Administration is considering the control of red phosphorus as a listed chemical. Red phosphorus has been identified as being an important chemical used in the illicit production of methamphetamine. The public health consequences of the manufacture, trafficking, and abuse of methamphetamine are well known and documented.

Since red phosphorus is a common chemical used in methamphetamine production, it has already been placed on the Attorney General's “special surveillance list” of “laboratory supplies”. The Comprehensive Methamphetamine Control Act of 1996 (MCA) amended the CSA via the addition of 21 U.S.C. 842(a)(11), which makes it unlawful for any person to distribute a laboratory supply to a person who uses, or attempts to use, that laboratory supply to manufacture a controlled substance or a listed chemical, with reckless disregard for the illegal uses to which such laboratory supply will be put.

The MCA defines “laboratory supply” as a “listed chemical or any chemical, substance, or item on a special surveillance list published by the Attorney General, which contains chemicals, products, materials, or equipment used in the manufacture of controlled substances and listed chemicals.” This special surveillance list was published by DEA on May 13, 1999 (64 FR 25910) and includes red phosphorus.

Due to the continued use of red phosphorus in illicit methamphetamine synthesis, the DEA is considering whether to place additional controls on red phosphorus, by adding red phosphorus as a listed chemical. As such, red phosphorus would be subject to additional CSA regulatory controls such as registration, recordkeeping, reporting, and import/export requirements as specified in 21 CFR part 1300. DEA is considering whether these additional regulatory controls are needed to prevent the diversion of red phosphorus to clandestine laboratories.

DEA is seeking information on red phosphorus trade so that diversion of red phosphorus may be prevented with minimal impact on legitimate trade. DEA is aware that the industrial uses of red phosphorus include the manufacture of pyrotechnics, safety matches, phosphoric acid and other phosphorus compounds, fertilizers, incendiary shells, smoke bombs, tracer bullets, and pesticides. DEA recognizes that regulation of red phosphorus may have some effect upon these, and other, industrial activities. However, DEA is not aware of the entire scope of use of red phosphorus by industry and consumers.

The DEA is soliciting input from the potentially affected parties regarding (1) the nature of the legitimate phosphorus industry, (2) the legitimate uses of red phosphorus at all levels of distribution (including industrial uses and use by individual end-users at the retail level of distribution), (3) the potential burden such regulatory controls may have on legitimate industry (particularly with respect to the impact on small businesses), (4) the potential number of individuals/firms which may be adversely affected by increased regulatory requirements, and (5) any other information on the manner of manufacturing, distribution, consumption, storage, disposal, and uses of red phosphorus by industry and others. Both quantitative and qualitative data are sought.

Such information may be submitted to the Drug and Chemical Evaluation Section and is requested by April 3, 2000. Information designated as confidential or proprietary will be treated accordingly. The release of confidential business information that is protected from disclosure under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4) (FOIA), is governed by section 310(c) of the CSA (21 U.S.C. 830(c) and the Department of Justice procedures set forth in 28 CFR 16.7.

This document proposes to amend the VA educational assistance and educational benefit regulations in 38 CFR part 21, subparts D, K, and L to conform with the Veterans' Benefits Improvement Act of 1996 (Pub. L. 104-275).

The provisions of the 1996 Act, with certain exceptions noted below, mandate that VA cannot approve an enrollment for VA training in a course not leading to a standard college degree offered by a proprietary profit or proprietary nonprofit educational institution if (1) the institution has been operating for less than two years, (2) the institution offers the course at a branch or extension and the branch or extension has been operating for less than two years, or (3) the institution offering the course completely moved outside its original general locality or has changed ownership and, in either event, does not retain substantially the same faculty, student body, and courses as before the change in ownership or move, unless the institution has operated for two years following the change in ownership or move. However, if the course were offered under a contract with the Department of Defense (DOD) or the Department of Transportation (Coast Guard) and were given on or immediately adjacent to a military base, Coast Guard station, National Guard facility or facility of the Selected Reserve, these restrictions do not apply. The regulations would be amended to reflect these statutory changes.

VA proposes to define “proprietary educational institution” (including a proprietary profit or proprietary nonprofit educational institution) as an educational institution that: (1) Is not a public educational institution, (2) is in a State, and (3) is legally authorized to offer a program of education in the State where the educational institution is physically located. VA believes that this definition accords with the common understanding of “proprietary educational institution.”

VA proposes to recognize that a proprietary educational institution has been “in operation” for at least two years if it has been offering courses for 24 consecutive months, inclusive of normal vacation periods or holidays or periods when the educational institution is closed due to a natural disaster. VA believes that this interpretation of the two-year operation requirement is in accordance with the common meaning of the term “in operation” as it relates to educational institutions, and, in our view, reflects the statutory intent.

VA proposes to provide that a move by a proprietary educational institution outside the same general locality is a move beyond normal commuting distance which VA regulations have long recognized as being more than 55 miles (see 38 CFR 21.4200). This seems to be an appropriate interpretation of the statutory language.

As noted above, VA cannot approve an enrollment for VA training in a course not leading to a standard college degree offered by a proprietary profit or nonprofit educational institution if the institution offering the course completely moved outside its original general locality or has changed ownership and, in either event, does not retain substantially the same faculty, student body, and courses as before the change in ownership or move, unless the institution has operated for two years following the change in ownership or move. In this regard, it is proposed to set forth provisions indicating what VA considers to constitute “change in ownership.”

A “change in ownership” would occur when a person acquires, or ceases to have, operational management and/or control of the proprietary institution and its educational activities. “Control” is proposed to be defined as the possession, direct or indirect, by a “person” or “persons”, of the power to direct or cause the direction of the management and policies of the institution whether through the ownership of voting securities, by contract or otherwise. “Person” is proposed to be defined as a legal person (corporation) or an individual or individuals. Transactions causing a change of ownership would include, but not be limited to, the following: (1) The sale of the educational institution; (2) the transfer of the controlling interest of stock of the educational institution or its parent corporation; (3) the merger of two or more educational institutions; or (4) the division of one educational institution into two or more educational institutions. A “change of ownership” would not include transfer of ownership or control of the institution, upon the retirement or death of the owner, (1) to the owner's parent, sibling, spouse, child, spouse's parent or sibling, or sibling's or child's spouse or (2) to an individual with an ownership interest in the institution who has been involved in management of the institution for at least two years preceding the transfer.

These provisions appear to reflect adequately the kinds of institutional changes that could constitute a “change in ownership.”

As regards the requirement that the educational institution “retain substantially the same faculty, student body, and courses” following change in ownership or move outside the same general locality, it is proposed that VA will consider that a proprietary educational institution has “substantially the same faculty, student body, and courses” both before and after the move or ownership change when:

• Faculty members who teach a majority of the courses after the move or change in ownership were employed by the educational institution before the move or change in ownership.

• Faculty use the same instructional methods after the move or change in ownership as were used before the move or change in ownership,

• The courses offered after the move or change in ownership lead to the same educational objectives as did the courses offered before the move or change in ownership, and

• Except for those who graduate, all, or a majority of the students enrolled in the educational institution on the last day of classes before the move or change in ownership are also enrolled in the educational institution immediately after the move or change in ownership.

The preceding criteria appear to assure adequately the institutional continuity contemplated by the statutory scheme.

It also is proposed to amend § 21.4233 by adding new paragraphs (d)(6), (d)(7), and (d)(8) to reflect statutory provisions set forth in 38 U.S.C. 3675(b)(3) regarding criteria for determining whether accredited courses should be approved for VA training.

Further, it is proposed to amend 38 CFR 21.4252 by adding new paragraph (m) to reflect amendments made by the Veterans' Benefits Act of 1997 (Pub. Law 105-114) and set forth in 38 U.S.C. 3680A(f) and (g) regarding approval of courses under contract.

Other nonsubstantive changes are made to conform the regulations to the statutory changes.

The Department of Defense (DOD), the Department of Transportation (Coast Guard), and VA are jointly issuing this final rule insofar as it relates to the Montgomery GI Bill—Selected Reserve. This program is funded by DOD and the Coast Guard, and is administered by VA. The remainder of this final rule is issued solely by VA.

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

The Secretary of Defense, Commandant of the Coast Guard, and the Secretary of Veterans Affairs hereby certify that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would not cause educational institutions to make changes in their activities and would have minuscule monetary effects, if any. Pursuant to 5 U.S.C. 605(b), this proposed rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

For the reasons set forth in the preamble, 38 CFR part 21 (subparts D, K, and L) is amended as set forth below.

On March 25, 1999, the Postal Service published a final rule in the Federal Register adopting revised regulations governing the operation of commercial mail receiving agencies (CMRAs) with an effective date of April 26, 1999. (64 F.R. 14385). The final rule amended sections D042.2.5 through D042.2.7 of the Domestic Mail Manual (DMM) to update and clarify procedures for delivery of an addressee's mail to a CMRA. The rule provided procedures for registration to act as a CMRA; an addressee to request mail delivery to a CMRA; and delivery of the mail to a CMRA. The rule was applicable to all businesses that provide agent mailing services to their customers; that is, receive delivery of mail for others from the Postal Service.

A corporate executive center (CEC) is a business that operates primarily to provide shared private office facilities and business support services to individuals or firms. These CEC customers may also receive mail at the CEC address. CECs also have customers that do not occupy space and use the CEC address primarily to receive mail.

Postal customers have asked the Postal Service to provide guidance when a CEC is considered a CMRA for purposes of postal standards; that is, when it and its customers must comply with rules governing the operation of CMRAs in sections D042.2.5 through D042.2.7 of the DMM. This proposal responds to that request and seeks to clarify and set forth guidelines when a CEC customer must comply with those standards. The proposal provides an objective test, based on the terms of the relationship between the CEC and its customer, to determine whether a customer is considered a “CMRA customer.” The CEC must register as a CMRA and comply with all CMRA regulations if one or more customers receiving mail at its address are considered “CMRA customers.” Each customer considered a “CMRA customer” must comply with the standards set forth in the DMM. Other customers, not considered to be “CMRA customers,” need not comply with these standards. A CEC will receive single point delivery of mail regardless whether its customers are deemed to be receiving CEC or CMRA services.

Although exempt from the notice and comment requirements of the Administrative Procedures Act (5 U.S.C. of 553 (b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed revisions to the Domestic Mail Manual, incorporated by reference in the Code of Federal Regulations. See CFR 111.1.

This table is not intended to be exhaustive, but rather provides a guider for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether you are regulated by this action, you should carefully examine the applicability criteria in part 130 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

Section 303(d)(1) of the CWA requires States, Territories and authorized tribes to submit to EPA “from time to time” a list of waterbodies for which existing pollution controls are not stringent enough to attain and maintain State, Territorial and authorized Tribal water quality standards. The statute requires EPA to review and approve or disapprove the lists within 30 days of the time they are submitted. If EPA disapproves a list, EPA must establish the list for the State, Territory or authorized Tribe.

In 1992, EPA revised the regulations implementing section 303(d)(1) to require States, Territories, and authorized tribes to submit lists of impaired and threatened waterbodies to EPA every two years, with the 1992 lists due to EPA no later than October 22, 1992, and subsequent lists due on April 1 of even-numbered years. The most recent listing deadline was April 1, 1998, and all States, Territories, and authorized tribes have now submitted 1998 section 303(d) lists to EPA. As of January 2000, EPA had approved the vast majority of the lists.

Today, EPA is proposing to revise the existing regulatory requirement that section 303(d) lists be submitted on April 1, 2000. Under the existing regulations, States, Territories and authorized tribes are required to submit the next section 303(d) list to EPA on April 1, 2000, and thereafter on April 1 of every even-numbered year. EPA is today proposing to remove only the April 1, 2000, listing requirement for the following reasons.

First, comprehensive revisions to the listing regulations were proposed in August 1999 in the Revisions to the Water Quality Planning and Management Regulation rule (also known as the TMDL Rule). See 64 FR 46012 (Aug. 23, 1999). The changes in the listing requirements proposed in August would, if adopted, result in significant changes to the list development and submission process. The proposed changes are intended to provide clearer direction to States, Territories and authorized tribes in how to develop their lists, result in a comprehensive public accounting of impaired and threatened waterbodies, promote consistency among States, Territories and authorized tribes in the listing process, and ensure public participation. EPA believes that these proposed changes will result in better section 303(d) lists than are being prepared under current rules, and believes that States should devote resources to prepare for the anticipated new listing requirements rather than develop year 2000 lists under the current requirements.

Second, EPA believes that establishing TMDLs is the crucial step in identifying actions needed to assure that waterbodies identified as impaired or threatened on the section 303(d) list attain and maintain water quality standards. Given the anticipated changes in listing requirements, EPA believes that until those new requirements are promulgated, States, Territories and authorized tribes should focus their resources on establishing TMDLs for waters already listed under section 303(d) and submitting them to EPA for review and approval, rather than developing a new list in the year 2000. It is important to note that, since EPA is proposing to remove the requirement for only the April 1, 2000, deadline, States, Territories and authorized tribes will be required to submit section 303(d) lists on April 1, 2002, under the current regulatory requirements. In addition, the date established for submission of the first 303(d) list in the promulgated TMDL Rule may be in advance of the existing April 2002 submittal requirement. In this case, less than four years would have elapsed between 1998 and when the first lists required by the revised regulations are submitted to EPA.

Third, since all States, Territories and authorized tribes submitted 1998 section 303(d) lists and EPA has approved the vast majority of these lists, there currently exists an extensive, complete, and public accounting of impaired and threatened waterbodies for the entire Nation. If, as EPA is proposing, there is no requirement for an April 1, 2000 list, EPA expects States, Territories, and authorized tribes to continue monitoring the quality of their waterbodies and to establish and implement TMDLs for the waterbodies on their 1998 section 303(d) lists. This will ensure continued progress towards attainment and maintenance of water quality standards Nationwide.

The proposed rule includes a limited exception which would require a State to submit a list in the year 2000 only if a court order, consent decree, or settlement agreement dated prior to January 1, 2000, expressly requires EPA to take action related to that State's year 2000 list. In recent years, litigation under section 303(d) has resulted in court orders, consent decrees, and settlement agreements in a number of States related to EPA obligations in implementing section 303(d). In order to avoid unsettling a commitment embodied in a court order, consent decree, or settlement agreement, today's proposed rule would not relieve such a State of the obligation to submit a year 2000 list if a court order, consent decree, or settlement agreement dated prior to January 1, 2000, expressly requires EPA to take action related to that State's year 2000 list. The Act grants EPA the discretionary authority to interpret the requirement that States submit lists “from time to time.” In the exercise of its discretionary authority, EPA believes it is appropriate to continue to require a year 2000 list in those States in which the absence of a year 2000 list would unsettle an existing court order, consent decree or settlement agreement. EPA has reviewed the consent decrees, court orders, and settlement agreements in cases involving TMDL programs and believes the only order, consent decrees, or settlement agreement with a requirement for EPA to take an action expressly related to a year 2000 list is a consent decree for Georgia. EPA solicits public comment on whether there are any other such court orders, consent decrees, and settlement agreements. If there are, EPA will notify those States and will identify those States in the notice of final rulemaking as States in which a year 2000 list would be required. EPA solicits comment on whether to include this exception in the final rule.

In its August 1999 TMDL Rule proposal, EPA proposed to amend the existing regulations to change the April 1, 2000, deadline to October 1, 2000, for submission by the States, Territories, and authorized tribes of their lists of impaired waters. EPA made this proposal in recognition of the fact that it was unlikely that the comprehensive changes it announced in August 1999 would be finalized far enough in advance of April 2000 to inform the States' April 2000 lists (64 FR 46030). EPA proposed that States submit lists in October 2000 either using the new TMDL Rule (if finally promulgated “well in advance of October 1”) or the current regulations (in the event the new regulations were delayed). Upon further consideration, EPA believes the best course is to eliminate the year 2000 list entirely. Today's proposal represents EPA's current thinking; however, the public may still submit comments on the August 23, 1999, TMDL Rule proposal to move the date of the year 2000 list from April 1 to October 1, 2000.

Even though EPA is proposing to eliminate the requirement that States, Territories, and authorized tribes submit lists of impaired waters in April 2000, EPA understands that some States may wish to submit such lists anyway. In the event that States submit such lists to EPA, EPA intends to review and either approve or disapprove them even if this proposal to eliminate the April 2000 list becomes final.

EPA intends to carefully review any proposed removal of a waterbody from a section 303(d) list to ensure there is information specific to the waterbody to support the removal. Some examples of such information are when a State develops and EPA approves a TMDL for the waterbody/pollutant on the prior list, new information shows that the waterbody is achieving water quality standards for the pollutant at issue, or re-evaluation of the information supporting the initial listing shows that this information is incorrect. In particular, where a waterbody was previously listed based on certain data or information, and the State removes the waterbody without developing or obtaining any new information, EPA will carefully evaluate the State's re-evaluation of the available information, and would not approve such removals unless the State's submission describes in detail why it is appropriate to remove each affected waterbody. EPA has the authority to disapprove the list if EPA identifies existing and readily available information that was existing and readily available at the time the State submitted list showing that a waterbody does not achieve water quality standards or is water quality limited and is required by the regulations to be listed. In August, 1999, EPA proposed to establish specific criteria for removing a water from a Section 303(d) list, and is considering whether to promulgate that specific provision as part of final action on today's rule. See 64 FR 46049, 40 CFR 130.29. EPA also intends to exercise its authority to add appropriate waterbodies if a State submits a year 2000 list before EPA promulgates the comprehensive changes to the TMDL program that were proposed on August 23, 1999.

In developing today's proposal, EPA also considered retaining the existing regulatory requirement that States, Territories, and authorized tribes submit lists to EPA on April 1 of every even numbered year, including April 1, 2000. EPA rejected this option because, in light of EPA's pending effort to revise significantly the rules governing submission of lists and for the reasons discussed above, it does not promote effective and efficient use of government resources in identifying impaired waters as a first step toward restoring and maintaining the quality of the Nation's waters.

EPA seeks comments on whether to eliminate the April 1, 2000, listing deadline in light of the comprehensive improvements and clarifications being proposed to the existing listing requirements. EPA also requests comments on whether to move the April 2000 list submission date to another date prior to April 2002. EPA also requests comment whether to include in the final rule the limited exception which would require a State to submit a list in the year 2000 only if a court order, consent decree, or settlement agreement dated prior to January 1, 2000, expressly requires EPA to take action related to that State's year 2000 list.

RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

The RFA requires analysis of the impacts of a rule on the small entities subject to the rule's requirements. See United States Distribution Companies v. FERC , 88 F.3d 1105, 1170 (D.C. Cir. 1996); Mid-Tex Electric Co-op., Inc. v. FERC , 773 F.2d 327 (D.C. Cir. 1985); Motor & Equipment Manufacturers Ass'n v. Nichols , 142 F.3d 449 (D.C. Cir. 1998). Today's rule establishes no requirements applicable to small entities, and so is not susceptible to regulatory flexibility analysis as prescribed by the RFA. “[N]o [regulatory flexibility] analysis is necessary when an agency determines that the rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule.” United Distribution at 1170, quoting Mid-Tex Elec. Co-op., Inc. v. FERC , 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis added by United Distribution court). After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This proposed rule will not impose any requirements on small entities. It merely eliminates the current regulatory requirement which directs States, Territories and authorized tribes (and EPA, if it disapproves the State's, Territory's or authorized tribe's efforts) to establish lists of impaired waterbodies in the year 2000. The proposed rule applies only to those three categories of entities and does not impose requirements upon any small entities. Moreover, today's proposal would eliminate a requirement to submit a list of impaired waters in the year 2000, thereby saving States, Territories, and authorized tribes the economic impact of developing such lists.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal Mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. The rule imposes no enforceable duty on any State, local, or tribal governments or the private sector. The proposal is deregulatory in nature in that it eliminates the current regulatory requirement that States, Territories, and authorized tribes submit lists of impaired waters in 2000. In addition, since today's proposal does not impose any requirements on the private sector, the private sector will incur no costs. Thus, today's proposal is not subject to the requirements of section 202 and 205 of UMRA.

For the same reasons as listed above, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of UMRA.

This proposed rule does not contain any information collection, reporting, or record keeping requirements. Thus, this rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This rule would actually streamline and reduce existing OMB-approved requirements by 25,424 hours in the year 2000.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless EPA consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As discussed above, the proposed rule is deregulatory in nature and eliminates a current requirement that States, Territories, and authorized tribes submit lists of impaired waters in 2000. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's proposal does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose substantial direct compliance costs on them. The proposal is deregulatory in nature in that it eliminates the current regulatory requirement that States, Territories, and authorized tribes submit lists of impaired waters in 2000. Currently, there are no tribes authorized to establish TMDLs or lists of impaired waters. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to today's proposal.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to Executive Order 13045 because it is not “economically significant”. As noted earlier, this rule is deregulatory in nature.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rule does not involve any technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comment on this aspect of the proposal rulemaking and specifically invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

This is a summary of the Commission's Notice of Proposed Rule Making in ET Docket No. 00-11, FCC 00-17, adopted January 13, 2000, and released January 20, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

1. In the Notice of Proposed Rule Making (NPRM), the Commission proposes rules prescribing a point-to-point predictive model for determining the ability of individual locations to receive an over-the-air television broadcast signal of a specific intensity through the use of a conventional, stationary, outdoor rooftop receiving antenna. Our goal in developing this model is to provide a means for reliably and presumptively determining whether the over-the-air signals of network affiliated television stations can be received at individual locations. Such determinations are used in establishing the eligibility of individual households to receive the signals of television broadcast network stations by satellite carriers. In issuing this proposal, we are complying with new statutory requirements set forth in the Satellite Home Viewer Improvement Act of 1999 (SHVIA). The signal intensity for determining eligibility is the Grade B standard set forth in § 73.683(a) of the Commission's rules.

2. The SHVIA revises and extends statutory provisions established by Congress in the 1988 Satellite Home Viewer Act (SHVA). With regard to prediction of signal availability, the SHVIA adds a new section 339(c)(3) to the Communications Act of 1934, as amended, which requires that “[W]ithin 180 days after the date of enactment of the Satellite Home Viewer Improvement Act of 1999, the Commission shall take all actions necessary, including any reconsideration, to develop and prescribe by rule a point-to-point predictive model for reliably and presumptively determining the ability of individual locations to receive signals in accordance with the signal intensity standard in effect under section 119(d)(10)(A) of title 17, United States Code.” Section 339(c)(3) further provides that “[I]n prescribing such a model, the Commission shall rely on the Individual Location Longley-Rice model set forth by the Federal Communications Commission in Docket No. 98-201, and ensure that such model takes into account terrain, building structures, and other land cover variations. The Commission shall establish procedures for the continued refinement in the application of the model by the use of additional data as it becomes available.” The SHVIA also requires that the courts rely on the Individual Location Longley Rice model established by the Commission for making presumptive determinations of whether a household is capable of receiving broadcast television signals of Grade B intensity.

3. In its Report and Order in CS Docket No. 98-201, 64 FR 7113 (February 12, 1999), (SHVA Report and Order), the Commission endorsed the use of a specific model for predicting signal strength at individual locations. This model, which the Commission termed “Individual Location Longley-Rice” or “ILLR,” is a version of Longley-Rice 1.2.2. The Commission recommended that the ILLR model be used for determining a presumption of service or lack of service by local over-the-air television signals at individual locations for purposes of establishing a household's eligibility to receive network television programming by satellite carriers under the SHVA.

4. The Commission found that vegetation and buildings affect signal intensity at individual locations. However, it also found that at the time of the SHVA Report and Order, there was no standard means of including such information in the ILLR that had been accepted by the technical and scientific community. The Commission therefore stated that land use and cover information will be included in the ILLR when an appropriate method for using such information in the context of determining the field strength of broadcast television signals at individual locations has been developed and accepted. In its Order on Reconsideration in CS Docket 98-201, 64 FR 73429 (December 30, 1999), the Commission denied DirecTV's petition for reconsideration, in part, on the basis that it failed to provide the information and details necessary to evaluate an application to consider land use and cover in the ILLR.

5. Subsequent to the SHVA Report and Order, the ILLR has been implemented by several commercial companies as a tool for determining whether particular households, identified by street address, are served or unserved for purposes of the SHVA. Providers of programming service by satellite carriers are screening potential customers for eligibility at the point-of-sale using the ILLR model.

6. Following the direction of Congress in the SHVIA, we are proposing to define an improved model for predicting the field strength produced by a television network affiliate broadcasting station at individual locations, using as a guide the ILLR model as described in the SHVA Report and Order. This model would be incorporated into our rules as the required method for making presumptive determinations of individual household's eligibility for satellite retransmission of distant network signals. The prediction model we are proposing takes into account terrain, building structures, and other land cover variations, some of which are yet to be evaluated and accepted by the scientific and technical community. We therefore are also outlining a process through which values can be developed for these parameters. This process provides for continued refinement of the model on the basis of reliable technical evidence, as it becomes available.

7. The current ILLR model is the version of Longley-Rice 1.2.2 that we endorsed in the SHVA Report and Order. It is similar to the point-to-point predictive model we established for digital television (DTV) coverage and interference prediction. The ILLR model does not replace the current Commission rules for field strength contours (§ 73.683) or prediction of coverage for non-SHVA purposes (§ 73.684). In fact, the ILLR model may identify unserved households lying within a station's Grade B contour and may, likewise, identify served households outside a Grade B contour.

8. In Appendix A, we specify the technical details that are to be used with Longley-Rice 1.2.2 to qualify the latter as the ILLR model required under the SHVIA. The SHVA Report and Order left some of these details to choice since it offered ILLR only as a means to make administration of the unserved household rule under SHVA easier and more cost-effective. Here, some of the Longley-Rice 1.2.2 input parameters have values different from those utilized for application of the model to DTV.

9. We propose to improve the ILLR model by adding clutter loss parameters. The clutter loss includes the effects of both vegetation and buildings and is dependent upon the environment of the individual household reception point. Reception point environments are to be classified in terms of the codes used in the Land Use and Land Cover (LULC) database of the United States Geological Survey, and clutter loss values are to be added to the radio propagation loss predicted by basic Longley-Rice 1.2.2.

10. To simplify use of the database for ILLR purposes, we have reorganized the LULC categories in a way specifically relevant to radio propagation. After regrouping, we identify 10 environmental classes, almost all of which are combinations of several of the original LULC categories. Since many of the original LULC categories distinguish between environments in ways that are unimportant for propagation prediction, it is clear that simplification is in order. The particular simplification we are proposing for the ILLR is defined in Appendix A along with other details of the ILLR model. This simplification is the same as a classification system currently under consideration by an industry standardization committee.

11. In the improved ILLR model, it is contemplated that a clutter loss value (a reduction in available signal intensity) will be associated with each and every LULC classification in a way that is also dependent upon frequency. However, the available data for assigning values to these parameters is limited, and we believe it is reasonable to assign values only in situations for which measurement data have been analyzed and published, or for which we have some confidence in deriving such values. We are basing the ILLR table of clutter loss on the results published in a recent engineering journal by Thomas N. Rubinstein. Since the Rubinstein values of clutter loss are derived exclusively from measurements made at receiver sites with Fresnel clearance, the values should apply only to matching situations. For other situations, the clutter loss will have to remain equal to the default value of zero dB, the value it effectively has in the current ILLR model where LULC data is not used. We recognize that, under this approach, the number of situations in which clutter loss may be taken into account will be limited. We therefore request comment on whether other data are available that would allow us to expand the application of clutter loss considerations, and whether there are other approaches that are scientifically supported and could be integrated into the ILLR model to take into account losses due to vegetation and man-made structures.

12. It is particularly problematic that the Rubinstein table of losses does not cover low band VHF television, channels 2 through 5, so that no clutter loss can be assigned to reception on these channels without introducing an exception to our principle of not assigning values unless measurement data have been analyzed and published for matching situations. We are proposing to address this problem by using clutter loss values for low band channels that are derived by applying frequency trend data to the Rubinstein clutter loss values for high band VHF. The frequency trend we have applied is that found by Okumura. The low band values obtained in this way are tabulated in Appendix A. Comments are requested on the acceptability of this approach.

13. Because of copyright law implications addressed by the SHVIA, we believe that formal rule making is appropriate to make changes in the future in the ILLR model that we adopt in this proceeding. We seek comment on this proposed procedure and any other suggestions for revising the ILLR in a timely fashion.

14. In addition to requiring that the Commission conduct a rule making to improve the ILLR predictive model, section 339 prescribes procedures for selecting a qualified, independent person to test the signal at a household. In particular, section 339(c)(4)(B) provides:

15. We seek comment on how to identify qualified entities as candidates to fulfill this legislative requirement. What types of qualifications should such an entity possess? Are there industry testing labs in existence that could fill this role? What characteristics will demonstrate the independence and neutrality contemplated by the statute? Should there be multiple designating entities across the country or one central clearinghouse?

16. We recognize the importance of completing the proceeding to determine the designated tester as quickly as possible and, therefore, include this issue in this expedited proceeding to revise the ILLR.

This is a summary of the Commission's Notice of Proposed Rulemaking (“NPRM”), FCC 00-4, adopted January 5, 2000; released January 7, 2000. The full text of the Commission's NPRM is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW Washington, DC 20554, or may be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036, or may be reviewed via internet at http://www.fcc.gov/csb/

1. In this Notice of Proposed Rulemaking (“ Notice ”), we seek comment on our implementation of certain aspects of the Satellite Home Viewer Improvement Act of 1999 (“SHVIA”), which was enacted on November 29, 1999. This act authorizes satellite carriers to add more local and national broadcast programming to their offerings, and to make that programming available to some subscribers who previously have been prohibited from receiving broadcast programming via satellite. The legislation generally seeks to place satellite carriers on an equal footing with cable operators with respect to the availability of broadcast programming. By this Notice we seek comment on the adoption of implementing regulations that apply network nonduplication, syndicated program exclusivity, and sports blackout requirements to satellite carriers.

2. Section 1008 of the SHVIA creates a new section 339 of the Communications Act of 1934 (“Communications Act”) entitled “Carriage of Distant Television Stations by Satellite Carriers.” Section 339(b) directs the Commission to apply these three rules ( i.e. , network nonduplication, syndicated exclusivity, and sports blackout), previously applicable only to cable television systems, to satellite carriers' retransmission of nationally distributed superstations to subscribers. The Commission must also apply the cable sports blackout rule to satellite carriers' retransmission of network stations to subscribers, but only “to the extent technically feasible and not economically prohibitive.” This proceeding will consider how best to apply these rules to satellite carriers consistent with the statutory requirements and the Commission's goal of facilitating competition in the multichannel video programming distribution marketplace.

3. The complexity of both the statutory provisions and the existing cable rules that we are charged with applying in this new context requires that we include an explanation of the existing network nonduplication, syndicated exclusivity, and sports blackout rules as they apply to cable operators. We seek here to minimize the likelihood of confusion in the future by assuring that we begin with a common understanding of the rules and terminology. These rules have been in existence for 25 years, and the nuances attendant to enforcement and compliance require some explication to provide a solid foundation from which to build a new set of rules to apply to satellite carriers. This is particularly important given that Congress has asked us to implement these new rules so that they will be “as similar as possible” to the rules applicable to cable operators. Our goal throughout this proceeding is to develop regulations that will be as clear and easy to follow as possible. Our purpose in laying out the cable rules here is so that the newly covered satellite carriers and other parties will have an understanding of the existing rules for the preparation of their comments in this proceeding. Likewise, it is important to describe in some detail the interpretation of the statute upon which we will base our rulemaking. We seek comment on these explanations and interpretations.

4. The first statutory provision discussed, section 339(b)(1)(A), requires application of three cable rules, network nonduplication, syndicated exclusivity, and sports blackout, to satellite retransmission of nationally distributed superstations. The second statutory provision, section 339(b)(1)(B), applies one of these cable rules, sports blackout, to satellite retransmission of network stations. As discussed, one important distinction between these provisions is that nationally distributed superstations may be retransmitted to both served and unserved households, but network stations may only be retransmitted to unserved households.

5. The Commission rules in question here, as applied in the cable context, generally protect exclusive contractual rights that have been negotiated between broadcasters and program providers or other rights holders. These exclusive contractual rights are potentially threatened by cable systems that are capable of retransmitting programming from distant sources beyond the control of the contracting parties. The Commission's network nonduplication, syndicated exclusivity and sports blackout rules provide that specific programs must be deleted from distant signals delivered to cable subscribers if the programs are subject to exclusive contracts to local stations or, in the context of sporting events, if carriage from distant stations would violate sports blackout arrangements to protect gate receipts in the local market. To determine how best to apply these cable rules in the satellite context, it is first necessary to understand the underlying statutory scheme. To that end, we first discuss the relevant provisions of the SHVIA statute and our interpretations of these provisions.

6. Section 339(b)(1)(A) of the Communications Act requires the Commission “to apply network nonduplication protection (§ 76.92), syndicated exclusivity protection (§ 76.151), and sports blackout protection (§ 76.67) to the retransmission of the signals of nationally distributed superstations by satellite carriers to subscribers.” For these purposes, a “nationally distributed superstation” is a term that is defined as a television broadcast station, licensed by the Commission, that meets the following three criteria:

(A) is not owned or operated by or affiliated with a television network that, as of January 1, 1995, offered interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more States;

(B) on May 1, 1991, was retransmitted by a satellite carrier and was not a network station at that time; and

(C) was, as of July 1, 1998, retransmitted by a satellite carrier under the statutory license of section 119 of title 17, United States Code.

It appears that the television broadcast stations that meet the foregoing criteria are limited to KTLA-TV (Los Angeles), WPIX-TV (New York), KWGN-TV (Denver), WSBK-TV (Boston), WWOR-TV (New York) and WGN-TV (Chicago). We do not believe that any other station could meet these criteria in the future due to the date-specific conditions set forth in the definition. We believe this is, therefore, a finite list of the nationally distributed superstations covered by the statute, but we invite comment on this issue. We also note that the statutory definitions of network station, television network, and television broadcast station generally contemplate entities within the United States. We seek comment on the relevance of this issue in this proceeding. Are stations based in foreign countries affected by the SHVIA provisions requiring application of the cable exclusivity and sports blackout rules to satellite retransmissions?

7. A nationally distributed superstation is a type of “superstation,” which is defined in the Copyright Act of 1947, as amended (“Copyright Act”), as “a television broadcast station, other than a network station, licensed by the Federal Communications Commission that is secondarily transmitted by a satellite carrier.” By creating this special category known as nationally distributed superstations, Congress permits satellite carriers to retransmit these superstations to subscribers regardless of whether they are “served” or “unserved” pursuant to the Copyright Act. Congress achieved this result by amending the section 119 compulsory copyright license in the Copyright Act. The amended copyright provision provides that the retransmission of nationally distributed superstations to subscribers who do not reside in “unserved households” shall not violate the compulsory copyright license. While section 1005(b) of the SHVIA does not refer to nationally distributed superstations expressly, the criteria for its application are identical to those contained in the definition of a nationally distributed superstation. Thus, we believe that based on section 1005(b), there is no geographic restriction on the retransmission of “nationally distributed superstations” pursuant to the compulsory copyright license.

8. In addition to amending the Copyright Act, section 1009 of the SHVIA amends the retransmission consent section of the Communications Act, which generally prohibits multichannel video programming distributors from retransmitting the signals of a broadcaster absent the broadcaster's written authorization. The SHVIA exemption allows a satellite carrier to retransmit the signal of a superstation in the absence of written consent from the superstation if: (i) the station was a superstation on May 1, 1991, and (ii) the station was retransmitted by the satellite carrier as of July 1, 1998, provided the satellite carrier complies with the Commission's nonduplication, syndicated exclusivity, and sports black out rules. This provision differs slightly from the definition of a nationally distributed superstation in that it does not specify that the superstation must not be affiliated with a network that existed as such as of January 1, 1995. At this time, this distinction is without practical significance because the six television stations cited meet the relevant criteria of either definition, and there are no additional stations that are included or excluded by operation of this third criterion. Taking all these provisions together, we believe that, pursuant to these new statutory provisions in the Copyright Act and the Communications Act, satellite carriers are permitted to retransmit the signals of the nationally distributed superstations covered by section 339(b)(1)(A) to both served and unserved households without the station's consent and without geographic restriction.

9. We believe that Congress' purpose in applying the network nonduplication, syndicated exclusivity, and sports blackout rules to these satellite retransmissions reflects a balance between providing access to national programming carried by the superstation and a recognition that, in the absence of retransmission consent requirements, broadcasters and rights holders will have no opportunity to protect their contractual rights. We also believe Congress is seeking to create parity between the regulations covering satellite carriers and cable operators. We seek comment on this interpretation of the operation and underlying intent of the statutory requirements.

10. In addition to applying the existing cable rules to nationally distributed superstations, section 339(b)(1)(B) requires the Commission to “apply sports blackout protection (§ 76.67) to the retransmission of the signals of network stations by satellite carriers to subscribers” “to the extent technically feasible and not economically prohibitive.” By its terms, section 339(b)(1)(B) applies only to “network stations,” which are, generally, television broadcast stations owned or operated by, or affiliated with, one or more of the television networks. Affiliates of these networks are the only entities that meet the definition of a television network station contained in the Copyright Act and are the only stations covered by section 339(b)(1)(B). We note that in the cable context, the Commission's sports blackout rule applies to any television broadcast station and is not limited to network stations. We seek comment on whether the cable rules are indeed broader in scope than section 339(b)(1)(B).

11. We also observe that the title of new section 339, “Carriage of Distant Television Stations by Satellite Carriers,” suggests that this section is intended to apply to satellite retransmission of distant network stations, notwithstanding that the text of section 339(b)(1) does not specifically so state. We seek comment on this interpretation, which is relevant to determining which satellite retransmissions are covered by this section of the statute.

12. In general, under the new statutory provisions, the network nonduplication, syndicated exclusivity, and sports blackout rules will apply when a satellite carrier retransmits a nationally distributed superstation to a household within a local broadcaster's zone of protection, and the nationally distributed superstation carries a program to which the local station has exclusive rights. In these cases, the television broadcast station holding exclusive rights may require the satellite carrier to blackout these particular programs for the satellite subscriber households within the protected zone. We seek comment generally on the appropriate manner in which to implement the provisions of section 339(b)(1) of the Communications Act. In particular, we seek comment on whether the amended provisions should be incorporated into existing §§ 76.67, 76.92, and 76.151 of the Commission's rules, or whether we should adopt new separate rules for satellite carriers.

13. The Commission's cable television network nonduplication rule allows a television broadcast station that has purchased exclusive rights to network programming within a specified area to protect its exclusivity on local cable systems. The rules allow a local television broadcast station to demand that a local cable system's duplicate carriage of the same program from an otherwise distant station be blacked out. A station may assert its exclusivity rights regardless of whether its signal is carried by the cable system in question. These rules are not statutorily mandated. They arose from the Commission's recognition in the 1970s and 1980s that protection of exclusive contractual rights is necessary both to protect local broadcasters from the importation of non-local stations by cable systems and to provide appropriate protections and incentives to program producers and distributors to provide the programming desired by viewers.

14. Under the network nonduplication rule, a television station is entitled to assert its exclusivity rights against a cable system serving any “cable community unit” within its “specified zone” that is carrying duplicative programming for which the local station has obtained exclusive distribution rights. The rule applies on a community unit basis by requiring the cable system for a particular community unit to black out a specific program based on the priorities established in the rule. The “specified zone” of a television broadcast station is the 35 mile area surrounding its community of license. The zone of exclusivity protection for television stations licensed to smaller television markets extends an additional 20 miles, for a total 55 miles surrounding a smaller television station's community of license. We seek comment on whether Congress intended to retain the same geographic zones for satellite carriers as those used in the cable context.

15. While the Commission's rules allow television stations to assert their nonduplication rights within the above territorial limits, a television station's rights within these areas are limited by the terms of the contractual agreement between the station and the holder of the rights to the program (“rights holder”). Thus, if the rights holder grants the television station a zone of protection of ten miles, then that station would be precluded from exercising its nonduplication rights against any cable system located more than ten miles from that station's city of license. In addition, for local programming to be protected, the local programming must be the same as the distant programming that is being imported into a local station's market.

16. In order to exercise nonduplication protection, a television broadcast station must notify cable operators of the rights they have obtained within 60 days of the signing of a contract affording exclusive rights. In adopting these rules, the Commission recognized that affected cable operators would need sufficient time to negotiate for the lifting of the requested protection or to arrange for alternative sources of programming to fill the void left when a station exercised its rights. In this regard, television stations have been required to disclose the exact contractual terms under which they have been granted exclusivity protection. We seek comment on how the notification process described in the network nonduplication rule can be applied to satellite carriers and on whether the 60 day period and the other notification periods used in the cable context are appropriate for satellite carriers.

17. There are several exceptions to application of the network nonduplication rule. First, the network nonduplication rule is inapplicable to any non-commercial educational (“NCE”) station programming carried in fulfillment of a cable system's mandatory carriage rules. Second, because of the cost of the equipment necessary to carry out deletions, the Commission exempted cable systems having fewer than 1,000 subscribers.

18. The rule also does not apply if the distant station's signal is “significantly viewed” in a relevant cable system community. The concept of significant viewing is directly related to whether an otherwise distant station's broadcast signal is viewable over-the-air in a cable community unit. The significantly viewed exception to the exclusivity rules is meant to insure that any programming that is available terrestrially in a community from an over-the-air station will not be blacked out on a community's cable system. We seek comment on the relevance in the satellite context of the exception for significantly viewed stations. Are there situations in which a nationally distributed superstation from an adjacent market could be significantly viewed within the relevant specified zone based on terrestrial transmission? We believe a nationally distributed superstation could only qualify as significantly viewed based on terrestrial broadcast reception over-the-air in the areas surrounding its city of license, thus limiting the relevance of this exception to those circumstances in which the superstation is actually functioning as a local station, and therefore, arguably, not covered by the terms of section 339(b)(1)(A).

19. Under the cable network nonduplication rules, if the cable community unit is located in one or more overlapping specified zones, neither station can blackout the other station's duplicating programming because both stations have equal priorities. We do not believe a similar situation could occur in the satellite carrier context because superstations, as such, do not have specified zones outside of the markets from which they originate, and, under the new statutory requirement, network nonduplication applies only to the retransmission of nationally distributed superstations and not to retransmission of network stations. We seek comment on this issue.

20. The Commission's syndicated program exclusivity rule allows local stations to protect their exclusive distribution rights for syndicated programming on local cable systems in a local market. This rule is similar in operation to the network nonduplication rule, but it applies to exclusive contracts for syndicated programming, rather than for network programming. In this rule, too, a local television station is entitled to assert its exclusivity rights within a specified zone of 35 miles surrounding a television station's city of license. Unlike the network nonduplication rule, however, the maximum zone of protection allowed under the rules is 35 miles surrounding a television station's city of license in a non-hyphenated television market and 35 miles surrounding each named city in any size hyphenated market; the zone of protection is not greater in smaller markets.

21. As with network nonduplication, the syndicated exclusivity rule applies on a community unit basis by requiring the cable system for a particular community unit to black out a specific program based on the priorities established in the rule. In addition, the geographic limits for exclusivity under the Commission's rules are limited by the terms of the contractual agreement between the station and the holder of the rights to the program. Thus, if the rights holder grants the television station a zone of protection of ten miles, then that station would be precluded from exercising its exclusivity rights against any cable system located more than ten miles from that station's city of license. In addition, as with the network nonduplication rules, for syndicated programming to be protected, the programming covered by the contract must be the same as the distant programming.

22. To exercise syndicated exclusivity protection under the cable rule, a television broadcast station must notify cable operators of the rights they have obtained within 60 days of the signing of a contract affording exclusivity rights, and must disclose the exact contractual terms under which they have been granted exclusivity protection. In addition to the television broadcast station, distributors of syndicated programming are also allowed to seek protection for a period of one year from the initial licensing of such programming anywhere in the United States, except where the relevant programming has already been licensed. We seek comment on whether the rights holder should, in the satellite context, notify the satellite carrier directly. We also seek comment on whether the 60 day period and the other notification periods used in the cable context for both network nonduplication and syndicated exclusivity are appropriate for satellite carriers.

23. The exceptions to application of the syndicated program exclusivity rule are similar to those that apply to the network nonduplication rule. Cable systems with fewer than 1,000 subscribers are exempted, again because of the cost of the equipment necessary to carry out deletions. This rule also does not apply if the distant station's signal is “significantly viewed” in a relevant cable system community. In addition, the syndicated programming of an otherwise distant station need not be blacked out if that station's grade B signal encompasses the relevant cable community. There is no exception to the syndicated exclusivity rules for NCE station programming carried pursuant to mandatory carriage because the syndicated exclusivity rule applies only to commercial stations.

24. The Commission's sports broadcasts rule (“sports blackout rule”) is designed to allow the holder of the exclusive distribution rights to local programming, in this case sporting events, to control, through contractual agreements, the display of that event on local cable systems. Unlike the other cable rules we are required to apply to satellite carriers, only the sports blackout rule applies to retransmission of both nationally distributed superstations and network stations. The purpose of the sports blackout rule is to insure the continued general availability of sports programming to the public. The Commission adopted this rule based on a concern that sports teams would refuse to sell the rights to their local games to television stations serving distant markets due to their fear of losing gate receipts if the local cable system imported the local sporting event carried on the distant station. The Commission stated this would have the ultimate undesirable effect of making sporting events available to fewer viewers. When a subject sporting event will not be aired live by any local television station carried on a community unit cable system, the sports blackout rule allows the rights holder to the event to demand that the local cable system blackout the distant importation of the subject sporting event. Section 76.67(a) applies “if the event is not available live on a television broadcast signal carried by the community unit meeting the criteria specified in §§ 76.5(gg)(1) through 76.5(gg)(3) of this part.” 47 CFR 76.5(a). The former § 76.5(gg) defined “basic cable service” for purposes of basic cable service rate regulation and incorporated the standard for mandatory carriage under the Commission's original 1972 must-carry rules. In summary, for purposes of rate regulation of the basic tier at that time, § 76.5(gg) provided that the basic tier for cable systems serving communities located outside all major and smaller television markets included television broadcast stations within whose Grade B contours the community of the community unit was located; for communities in smaller television markets, the basic tier included television broadcast stations within whose specified zone the community of the community unit is located, commercial television broadcast stations licensed to communities in other smaller television markets within whose Grade B contours the community of the community unit is located, and television broadcast stations licensed to communities that are generally considered to be part of the same smaller television market; and for communities in major television markets, the basic tier included television broadcast stations within whose specified zone the community of the community unit is located and television broadcast stations licensed to other designated communities of the same major television market; as well as, in all size markets, commercial television broadcast stations that were significantly viewed in the community of the community unit. The zone of protection afforded by the sports blackout rule is generally 35 miles surrounding the reference point of the broadcast station's community of license in which the live sporting event is taking place. As with the Commission's exclusivity rules, the sports blackout rule specifies notification procedures regarding the sports programming to be deleted. However, the time frame allowed for notification is significantly shorter in the case of the sports blackout rule, and can be as little as 24 hours in contrast to 60 days for the other rules. We seek comment on whether the same timing should apply for both cable operators and satellite carriers.

25. As with the network nonduplication and syndicated exclusivity rules, the sports blackout rule does not apply to cable systems with fewer than 1,000 subscribers. This exemption is based on the cost of the equipment needed to delete programming. We seek comment on whether there is an analogous situation for satellite carriers. Will there be situations in which there may be no more than 1,000 subscribers in an area subject to program blackout, and, if so, is there a significant cost to blacking out this limited number of subscribers? We seek specific information from satellite carriers on the likelihood of the occurrence of this situation. We seek comment on these questions with respect to the network nonduplication and syndicated exclusivity rules, as well as the sports blackout rule. We particularly seek specific information from satellite carriers on the comparative costs per subscriber of deleting programming where more than or less than 1,000 subscriber households are affected.

26. As noted, the sports blackout rule for cable systems applies only in a limited 35 mile geographic area surrounding the relevant broadcast station's community reference point and only when no local television station is carrying the event. Typically this area contains households that can receive a signal of Grade B intensity or better. Because the section 119 compulsory copyright license only allows the retransmission of distant network stations to unserved households, i.e. those that cannot receive a signal of Grade B intensity, and because the existing sports blackout zone is typically limited to an area containing only served households, we expect that there would be few occasions where a subscriber residing within a sports blackout zone would be eligible to receive protected programming via distant network retransmissions made pursuant to the section 119 compulsory copyright license. Thus, there may be very few occasions where, as a practical matter, the sports blackout rule could be invoked for a satellite retransmission of network stations. It may, however, present technical and economic challenges to the satellite carrier to take the actions necessary to blackout out the sports broadcast in these comparatively few situations. We seek comment on this issue.

27. The SHVIA's directive to apply the network nonduplication, syndicated exclusivity, and sports blackout rules to satellite retransmission of nationally distributed superstations appears to apply without any limitation based upon a satellite carrier's technical ability to comply. The SHVIA, however, limits application of the sports blackout rule to retransmission of network stations “to the extent technically feasible and not economically prohibitive.” The legislative history suggests that a “very serious economic threat to the health of the carrier” is necessary to justify deviating from the cable rules. We seek comment concerning the circumstances in which the sports blackout rule should apply in the satellite context, on whether the 35 mile zone is appropriate in the satellite context, and, particularly, on the technical and economic consequences related to satellite carriers' compliance with the rule.

28. We note that satellite carriers routinely provide pay-per-view events and descramble programming by use of “conditional access” mechanisms. With regard to the question of technical and economic effects on the satellite carrier, we ask whether conditional access mechanisms can be used to blackout sports programming on network stations. If the satellite provider can identify the households required to be blacked out for a specific sporting event, would conditional access provide the means to initiate the blackout? How much lead time would a satellite carrier need if conditional access can meet this requirement? What would the cost be per subscriber to implement sports blackout, as compared to the other exclusivity rules, using conditional access? Commenters are asked to address consideration of both the economic and technical considerations facing satellite carriers.

29. Under the new section 122 of the Copyright Act, a satellite carrier may retransmit the signal of a network station to all subscribers within that station's local market, which is defined as its Designated Market Area (“DMA”). It is possible that in areas in which there are two affiliates of the same network within the same DMA, a “served” subscriber would be eligible to receive both network stations based on the satellite carrier's “local-into-local” license because the subscriber resides in the DMA of the second station. The geographic area for purposes of the sports blackout zone surrounding one of the affiliates is most often smaller than the DMA. If one of the affiliates is not carrying the event, the sports blackout rule can be triggered. If the second affiliate is carrying the event, then the satellite carrier might be required to blackout the event being transmitted by the second affiliate to subscribers within the 35 mile zone. Alternatively, this situation may never occur if, as a practical matter, the contractual arrangements allow the rights holder to prohibit both affiliates from broadcasting the event in question. We seek comment on whether the two-affiliates-in-one market scenario is likely to occur, and whether the rules should treat this situation differently from the retransmission of a distant network station.

30. We also seek comment, generally, on how to apply the terms of the three existing cable rules to satellite carriers. As discussed, the cable rules refer to “community units,” which correspond to separate and discrete communities or municipal entities that comprise cable systems. In the cable context, all cable subscribers who are in a community unit that lies in whole or in part within the specified zone experience program deletions if the program is covered by one of these rules. There are, however, no boundaries for satellite service that readily and necessarily correspond to the cable community unit. Is it necessary to administer these rules in the satellite context using the same community unit concept that applies in the cable context? Or, is it more appropriate to consider each household served by the satellite carrier and determine if it is within a broadcaster's specified zone for protection under the rules? In either case, the satellite carrier must be able to determine the location of each subscriber in relation to the relevant zone of protection for each local broadcast television station. How can a satellite carrier accurately locate a subscriber whose address is a post office box or rural route number? Is it appropriate to use the subscriber's zip code for this purpose? We seek comment on which approach best serves the purposes of the statute while not unnecessarily depriving satellite subscribers who are beyond the specified zone—but within a community unit that lies partially within the specified zone—of programming. We also seek comment on how the use of DMA in the SHVIA to define the local market applies to determination of the specified zone for purposes of the nonduplication, syndicated exclusivity and sports blackout rules in the satellite context.

31. The syndicated exclusivity and sports blackout rules make specific provision for what type of programming a cable system may substitute for programming deleted pursuant to these rules. For example, when a program is blacked out based on syndicated rights, a cable operator may substitute a program from any other television broadcast station and carry that program. We seek comment on what types of programming and methods of substitution are appropriate for satellite carriers. What role do retransmission consent requirements, as well as copyright licensing requirements, play in determination of substitute programming?

32. Congress apparently chose not to extend application of the network nonduplication and syndicated exclusivity rules to retransmission of television broadcast stations other than nationally distributed superstations. We believe that the statutory requirements, nevertheless, will protect all contractual arrangements because the satellite carrier either needs the retransmission consent of the independent station or voluntarily complies with the exclusivity and sports blackout rules. We believe, therefore, that the interests of rights holders and local broadcasters are protected, but we seek comment on this issue.

33. It has been suggested that the Commission consider certain additional issues concerning the distribution of sports programming that are related to, but not directly covered by, the SHVIA. The National Football League sells packages of programming to networks on a national basis, but different games are broadcast locally on a regional basis, often in two-game packages. To the extent that broadcasts of games are carried into local markets on distant broadcast signals via satellite, the network nonduplication and other rules involved in this proceeding appear to offer neither the stations nor the leagues involved any protection beyond the rights to the particular games that local stations are authorized to broadcast. In light of the SHVIA's restrictions on households that are eligible to receive distant network signals, it is not clear to what extent carriage of distant signals providing different games merits remedial action. We seek comment on the question of how the patterns of sports carriage involved are addressed by the new law, and whether they can and should be addressed in the regulations the Commission is required to adopt pursuant to it.

34. We note, too, that WPIX, KTLA, and KWGN are WB affiliates and WSBK and WWOR are UPN affiliates; thus all are both “network stations” as well as “nationally distributed superstations,” pursuant to the definitions in the SHVIA. Should the exclusivity rules apply to blackout programming on a local station if that station is also a nationally distributed superstation or should the station be treated only as a local station within its local market, notwithstanding that it is a nationally distributed superstation outside its market? We note by way of analogy that, in the context of mandatory cable carriage, we have concluded that local commercial stations do not become superstations until such time as they are retransmitted via satellite outside their market, an activity unrelated to their status as local commercial broadcast stations within their market. We seek comment on the applicability of that conclusion in the satellite context.

35. In addition, if we decide that it is necessary for the satellite carrier rules for sports blackout protection for network stations to differ from sports blackout protection for nationally distributed superstations due to technical feasibility and economic prohibitions, we seek comment on whether the sports blackout protection for these stations should apply to them as superstations, rather than as network stations.

36. Section 339(b)(1) and the relevant part of the Joint Explanatory Statement are silent regarding application of the exclusivity and sports blackout rules to the retransmission of digital broadcast signals. In the pending proceeding considering cable mandatory carriage of digital signals, we requested comment on how these cable rules would function for cable carriage of digital signals. Similarly here, we question whether Congress intended to apply these rules to satellite retransmission of digital broadcast signals. We note that the SHVIA can be read as applying to both analog and digital broadcast signals. An alternative interpretation is that Congress was only concerned about the carriage of analog signals given that elsewhere in the statute Congress expressly mentioned digital signals and, presumably, could have done so in this context as well. We seek comment on whether and how the exclusivity rules could apply to satellite carriage of digital broadcast signals, and whether there is a meaningful distinction between analog and digital carriage issues for satellite carriers in this context.

37. As a final matter, we note that several sections of the existing cable rules contain outdated cross-references to other sections of the rules. We welcome comment on these and any other such corrections that are needed. For example, § 76.67 contains a reference to § 76.5(gg) for purposes of identifying the broadcast television stations that trigger the rule's application. Section 76.5(gg) has been eliminated. The Commission deleted § 76.5(gg) in its 1993 Order rescinding cable service rate regulation. We seek comment on whether we should reinstate a standard based upon the original criteria incorporated into § 76.5(gg) or adopt a new standard. In addition, we welcome comment on changes to the application of the rules in the cable context to the extent necessary or desirable for harmonizing the regulatory requirements among the affected parties. Also, existing § 76.5(ii) references § 76.5(o). The correct reference should be to § 76.5(m). Furthermore, the existing Note to § 76.92 references § 76.658(m) in the last sentence. The correct reference should be to § 73.658(m), as correctly stated in the second sentence of the Note.

38. In addition, § 76.51 lists the top 100 television markets in the United States. The “Los Angeles-San Bernardino-Corona-Fontana-Riverside, Calif.” market is listed at § 76.51(a)(2). In 1995, the Commission redesignated the “Los Angeles-San Bernardino-Corona-Fontana-Riverside, Calif.,” market as the “Los Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif.” market. However, the published amendment to § 76.51(a) intended to effectuate the foregoing change inadvertently amended § 76.51(a)(28), rather than § 76.51(a)(2). As a result, the redesignated “Los Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif.” market is listed as § 76.51(a)(28) and the “Los Angeles-San Bernardino-Corona-Fontana-Riverside, Calif.” market still is listed as § 76.51(a)(2). The “Tampa-St. Petersburg-Clearwater, Florida” market, which was listed at § 76.51(28) at the time the Commission adopted the Los Angeles Redesignation Order, was deleted inadvertently from § 76.51(a)(28) and currently is not listed elsewhere in § 76.51. The correct reference in § 76.51(a)(2) should be to the “Los Angeles-San Bernardino-Corona-Riverside-Anaheim, Calif.” market. The correct reference in § 76.51(a)(28) should be to the “Tampa-St. Petersburg-Clearwater, Florida” market.

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

40. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before February 7, 2000 and reply comments on or before February 28, 2000. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc/e-file/ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address.” A sample form and directions will be sent in reply.

41. Parties who choose to file by paper must file an original and four copies of each filing. If participants want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. If more than one docket or rulemaking number appears in the caption of this proceeding commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554. The Cable Services Bureau contact for this proceeding is Eloise Gore at (202) 418-7200, TTY (202) 418-7172, or at egore@fcc.gov.

42. Parties who choose to file by paper should also submit their comments on diskette. Parties should submit diskettes to Eloise Gore, Cable Services Bureau, 445 12th Street NW, Room 4-A802, Washington, DC 20554. Such a submission should be on a 3.5-inch diskette formatted in an IBM compatible form using MS DOS 5.0 and Microsoft Word, or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the party's name, proceeding (including the lead docket number in this case [CS Docket No. 00-2]), type of pleading (comments or reply comments), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, referable in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Service, 1231 20th Street, NW, Washington, DC 20036. Written comments by the public on the proposed information collections are due March 3, 2000. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collections on or before April 3, 2000. In addition to filing comments with the Secretary, a copy of any comments on the information collection(s) contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Virginia Huth, OMB Desk Officer, 10236 NEOB, 725—17th Street, NW, Washington, DC 20503 or via the Internet to vhuth@omb.eop.gov.

Paperwork Reduction Act: This NPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. OMB notification of action is due April 3, 2000. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-xxxx.

Title: Implementation of the Satellite Home Viewer Improvement Act of 1999: Application of Network Nonduplication, Syndicated Exclusivity, and Sports Blackout Rules to Satellite Retransmission.

Type of Review: New collection or revision of existing collection.

Respondents: Business or other for-profit entities.

Number of Respondents: Satellite carriers—xxxx.

Estimated Time Per Response: xxxx hours.

Total Annual Burden: xxxx.

Cost to Respondents: xxxx.

Needs and Uses: Congress directed the Commission to adopt regulations that apply network nonduplication, syndicated program exclusivity, and sports blackout requirements to satellite carriers pursuant to the changes outlined in the Satellite Home Viewer Improvement Act of 1999. The availability of such information will serve the purpose of informing the public of the method of broadcast signal carriage.

a. As required by the Regulatory Flexibility Act (“RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on small entities by the possible policies and rules that would result from this Notice of Proposed Rulemaking (“Notice”). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

b. Need for, and Objectives of, the Proposed Rule Changes. On November 29, 1999, the Satellite Home Viewer Improvement Act of 1999 was enacted (“SHVIA”). Section 1008 of the SHVIA creates a new section 339 of the Communications Act entitled “Carriage of Distant Television Stations by Satellite Carriers.” The Notice discusses adoption of implementing regulations relating to the cable rules concerning network nonduplication, syndicated program exclusivity, and sports broadcasts to satellite carriers. Section 339(b) directs the Commission to apply these three cable rules to satellite carriers' retransmission of nationally distributed superstations to subscribers. The Commission is also to apply the sports broadcasts rule to satellite carrier's retransmission of network stations to subscribers, but only to the extent technically feasible and not economically prohibitive.

c. Legal Basis. The authority for the action proposed in this rulemaking is contained in sections 1, 4(i) and (j), 339 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), and 339.

d. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply. The IRFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The IRFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act. Under the Small Business Act, a small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). The rules we may adopt as a result of the Notice will affect television station licensees, satellite carriers and video program distributors and delivery services.

e. Television Stations. The proposed rules and policies will apply to television broadcasting licensees. The Small Business Administration defines a television broadcasting station that has no more than $10.5 million in annual receipts as a small business. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Included in this industry are commercial, religious, educational, and other television stations. Also included are establishments primarily engaged in television broadcasting and which produce taped television program materials. Separate establishments primarily engaged in producing taped television program materials are classified under another SIC number. There were 1,509 television stations operating in the nation in 1992. That number has remained fairly constant as indicated by the approximately 1,579 operating full power television broadcasting stations in the nation as of May 31, 1998.

f. Thus, the proposed rules will affect many of the approximately 1,579 television stations; approximately 1,200 of those stations are considered small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-television affiliated companies.

g. In addition to owners of operating television stations, any entity that seeks or desires to obtain a television broadcast license may be affected by the proposals contained in this item. The number of entities that may seek to obtain a television broadcast license is unknown. We invite comment as to such number.

h. Small Multiple Video Program Distributors (“MVPDs”): SBA has developed a definition of small entities for cable and other pay television services, which includes all such companies generating $11 million or less in annual receipts. This definition includes cable system operators, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau data from 1992, there were 1,758 total cable and other pay television services and 1,423 had less than $11 million in revenues. We address services individually to provide a more precise estimate of small entities.

i. Direct Broadcast Satellite (“DBS”): There are four licenses of DBS services under Part 100 of the Commission's Rules. Three of those licensees are currently operational. Two of the licensees which are operational have annual revenues which may be in excess of the threshold for a small business. The Commission, however, does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. DBS service requires a great investment of capital for operation, and we acknowledge that there are entrants in this field that may not yet have generated $11 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated.

j. Home Satellite Delivery (“HSD”): The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt and distribution by MVPDs, of which 115 channels are scrambled and approximately 150 are unscrambled. HSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming package. Thus, HSD users include: (1) Viewers who subscribe to a packaged programming service, which affords them access to most of the same programming provided to subscribers of other MVPDs; (2) viewers who receive only non-subscription programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled packages of programming are most specifically intended for retail consumers, these are the services most relevant to this discussion.

k. According to the most recently available information, there are approximately 30 program packages nationwide offering packages of scrambled programming to retail consumers. These program packages provide subscriptions to approximately 2,314,900 subscribers nationwide. This is an average of about 77,163 subscribers per program package. This is substantially smaller than the 400,000 subscribers used in the Commission's definition of a small MSO. Furthermore, because this is an average, it is likely that some program packages may be substantially smaller.

l. Entities which may be indirectly affected by the rules we may adopt as a result of the Notice are cable television systems.

m. Cable Systems: The Commission has developed, with SBA's approval, our own definition of a small cable system operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable systems operators that may be affected by the decisions and rules emanating out of the Notice.

n. The Communications Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliate with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, an operator serving fewer than 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals approximately 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. It should be further noted that recent industry estimates project that there will be a total of 64,000,000 subscribers and we have based our fee revenue estimates on that figure.

o. Description of Projected Reporting, Recordkeeping and other Compliance Requirements. In order to implement Section 1008 of the Satellite Home Viewer Improvement Act of 1999, which creates a new Section 339 of the Communications Act, the Commission has proposed to add new rules and modify others, as the provisions at issue previously were applicable only to cable. We have yet to determine whether to amend existing provisions of the Commission's rules, or to adopt some other regulatory framework or procedures. There are compliance requirements involving the nonduplication protection, syndicated exclusivity, and sports blackout rules. To exercise nonduplication protection and syndicated exclusivity protection, the rights holder to specific network or syndicated programming will have to notify and report to the satellite carrier, and do so within 60 days of the signing of a contract affording exclusivity rights. Such notification and reporting is required to take place within a shorter time period in the sports blackout context. In certain instances, staff may have to dedicate time and effort to monitoring and ensuring that notifications are properly given in a timely manner to satellite carriers.

p. There may be costs associated with hiring accounting or engineering personnel, as there may be instances where entities may have to provide detailed information relating to such aspects of their particular operations. Specifically, costs here may relate possibly to conducting engineering studies to accurately determine zones of protection. Further, there will likely be costs in equipment necessary to carry out deletions. The Commission recognized the significant costs involved in implementing deletions and exempted systems having 1,000 or fewer subscribers.

q. In terms of record keeping, entities may have to keep a record of the contractual terms and agreements and may be required to maintain such information within their business environment. At this time, small businesses might not be impacted differently in any of the above, but we seek comment on these matters.

r. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (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.

s. As indicated, the provisions of Section 339 refer to superstations and network stations, in terms of television broadcast stations. This legislation, however, applies to small entities and large entities equally. The Commission acknowledges that consideration should be given to possible differences in size of entities, as evidenced by the fact that there are certain exemptions in the application of these rules. Overall, at this time, small entities are not treated differently and might not be impacted differently, but we seek comment.

t. Federal Rules Which Duplicate, Overlap, or Conflict with the Commission's Proposals. None.

43. Pursuant to section 1008 of the Satellite Home Viewer Act of 1999, section 339(b)(1) of the Communications Act of 1934, as amended, notice is hereby given of the proposals described in this Notice of Proposed Rulemaking.

44. The Commission's Consumer Information Bureau, Reference Information Center shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The Cowhead Lake tui chub is a fish in the minnow family and can be primarily distinguished from other tui chubs by the number of bony projections in the gills. It is now found only in pump canals in the lakebed of Cowhead Lake and in Cowhead Slough in extreme northeastern Modoc County, California. Prior to hydrological modification of the Cowhead Lake watershed, including drainage of the lake for agricultural purposes, Cowhead Lake is thought to have contained the majority of the Cowhead Lake tui chub population, especially in wet years. The entire population now appears to occur only the 5.4 kilometers (3.4 miles) of Cowhead Slough and pump canals in the bed of Cowhead Lake. Habitat protection is required to conserve this subspecies, which is threatened throughout its range by a variety of impacts including loss of habitat from agricultural activities, risk of disease and contamination, loss of genetic variability, and naturally occurring random events.

On March 30, 1998, the Service published in the Federal Register a proposed rule to list the Cowhead Lake tui chub as endangered (63 FR 15152). The original comment period closed on May 29, 1998 but the comment period was reopened at the request of private citizens and organizations (63 FR 33033-33034). The second comment period closed on August 3, 1998 after which the Service, BLM, CDFG, and private landowners in the Cowhead Lake watershed signed a Conservation Agreement (C.A.) for the Cowhead Lake tui chub on October 22, 1999. The actions and goals committed to in the C.A. help to ensure the long-term survival of the subspecies by balancing current practices in the watershed with the long-term needs of the subspecies.

The Conservation Strategy of the C.A. includes two phases. Phase I, expected to be in effect for two years from signing, involves studies of the distribution, abundance, life history and habitat preferences of Cowhead Lake tui chubs and hydrology of the Cowhead Lake watershed. Phase II will build on what has been learned in Phase I to implement specific actions to improve the quality and availability of habitat for the subspecies. Phase II is estimated to be in effect for 10 years and includes monitoring to determine the effectiveness of conservation actions. The Conservation Strategy has an adaptive management approach; conservation actions will be modified when monitoring results indicate that such modification is necessary to conserve the Cowhead Lake tui chub.

The signatories of the C.A. have requested that the Service reopen the public comment period so the Service may also consider the conservation measures of the C.A. when making a final determination on the listing proposal of the Cowhead Lake tui chub. Written comments may be submitted until February 16, 2000 to the Service office in the ADDRESSES section.

The primary author of this notice is Catherine Hibbard, U.S. Fish and Wildlife Service (see ADDRESSES section).

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

The deep-sea red crab ( Chaceon quinquedens ) is a deep-water benthic species that supports a small commercial fishery on the Atlantic coast in southern New England and on the southern slope of Georges Bank. Although not regulated, the commercial fishery appears to be limited to approximately six vessels, with some possible seasonal participation by offshore lobster vessels. There is no FMP for red crab.

Information is scarce for this resource, but recent annual landings appear to be close to estimates of maximum sustainable yield (MSY) (5.5 mil lb (2.5 mil kg)). Current capacity in this fishery is sufficient to harvest or exceed MSY; there is concern about excess harvesting capacity entering this fishery. The Council is considering development of a controlled access system in the red crab fishery to address the principle of matching capacity to sustainable harvest level. The limitation of entry into the fishery may be based on levels of participation or other criteria, such as domestic harvest capacity. The Council will consider other management measures (e.g., minimum size, quotas, trap limits and/or requirements, fishing seasons, etc.) as appropriate.

All persons affected by or otherwise interested in red crab fishery management are invited to participate in determining the scope and significance of issues to be analyzed by submitting written comments (see ADDRESSES ) or attending one of the scoping meetings. Scope consists of the range of actions, alternatives, and impacts to be considered. Alternatives include preparing an FMP that contains management measures such as the ones previously mentioned in this notice; preparing an FMP that does not contain management measures, but that has a framework procedure for the development of such measures in the future; not preparing an FMP at this time; or other reasonable courses of action. Impacts may be direct, indirect, individual, or cumulative. The scoping process also will identify and eliminate from detailed study issues that are not significant. If, after the scoping process is completed, the Council proceeds with the development of an FMP, the Council will prepare an EIS or Environmental Assessment, as appropriate, depending on the nature of the FMP to be developed. The Council will hold public hearings to receive comments on the draft FMP and the analysis of its impacts on the human environment.

The Council will discuss and take scoping comments at public meetings as follows:

February 11, 2000 , 1:00 p.m., Urban Forestry Center, State of New Hampshire Division of Parks and Lands, 45 Elwyn Road, Portsmouth, NH 03801, (603) 431-6774 and

February 14, 2000 , 1:00 p.m., Center for Marine Science and Technology (CMAST), University of Massachusetts, 706 South Rodney French Boulevard, New Bedford, MA, (508) 999-8193.

Additional scoping meetings may be scheduled as needed.

The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES ) at least 5 days prior to the meeting date.